nursinglawbandit

Workplace Incident to State Nursing Board Complaints to Career Blow Out to Professional Suicide and No Lawyer

The headline above is worst case scenario but it is a growing reality for a number of nurses who represent, counsel, and advise themselves in legal matters involving their license. I cannot tell you how important it is for nurses, whether you are a LPN, RN, or APRN to seek advise and counseling from a private nursing law attorney when a patient care or other significant issues arises in the nursing workplace. No one, whether it is your nurse manager, nurse supervisor, union rep, risk manager, etc. is going to say to you "You need to consult with your own attorney about this situation." I haven't heard it in my 11 years of solo practice in nurse license defense. Not once. Most of the time, a nurse contacts a nurse license defense attorney or nursing law attorney ONLY AFTER the defecation hits the ventilation: the complaint is filed with the State Nursing Board, your union rep tells you "you may need to resign instead of being fired", your employer terminates you and says "we are required to report this to the State Nursing Board", you receive a letter of Complaint from the State Nursing Board, you are told you are being named as a defendant in a nursing malpractice case, you are contacted by local law enforcement about the "incident three weeks ago", etc.

I often hear nurses say "I didn't know there were nursing practice attorneys or nursing law attorneys that help nurses." Yes, there are nursing practice attorneys and nursing law attorneys whose primary role is to assist nurses and/or other licensed healthcare professionals. See www.taana.org.

It is not the role of your nursing manager, nursing supervisor, nursing union representative, risk manager, or anyone else to counsel and advise you objectively about the seriousness of an incident from a licensure, career, employment, or credentialing perspective. This is the role of a private attorney who has experience in nurse license defense, nursing law, and professional nursing practice matters. And guess what? You can't find an attorney with this type of expertise and experience in the yellow pages usually.

Yes, you can call the attorney who handled your divorce, you call the attorney who has helped your extended family in a number of cases, you can put on a blind fold and open the yellow pages and pick an attorney and call for a "free consultation" about your specific issues which is usually a combination of nursing law, professional nursing practice, employment law, labor law, credentialing, criminal law, nursing negligence, etc. Guess what? That attorney will not PROBABLY NOT give you the answer you need because the attorney does not have experience in the area.

Also I am pleasantly surprised yet again by the number of attorneys who represent nurses before the State Nursing Board just to take a case and make a few bucks and who know little or nothing about what it takes to adequately and effectively defend a nurse before the Board and counsel and advise the nurse on attending matters. Is a nurse a nurse a nurse? Of course not. Therefore an attorney is not an attorney is not an attorney. Why do you want an attorney who practices primarily wills and trust representing you before the State Nursing Board? Is it better to have any attorney (regardless of whether or not the attorney has ever practiced before the Board or has experience advising nurses) as opposed to an attorney who can competently handle your case and assist you?

It is your case, your license, and your livelihood and this is a question you as the nurse should answer and consider when retaining counsel. I only practice in the areas of nurse license defense, nursing practice, and nursing law; no wills, no personal injury, no workers comp, etc. You don't have to retain me in Ohio, Kentucky or Indiana; just retain an attorney who can effectively represent you and who has experience representing nurses. Nurses as licensed healthcare professionals have different legal needs than your average consumer and this is significant in the context of representation. These cases are time intensive and you don't want an attorney to take your case and not work it like it should be worked.

What am I saying? I don't say much on the blog these days because my law practice is keeping me busy but I am getting fired up again because I am seeing where nurses are being TOO TRUSTING and not looking after and protecting THEIR LICENSE, CAREER, CREDENTIALS, and hard earned EDUCATION.

Sorry to say this but I am a nurse first also. Nurses are fungible; just look at how nursing employers terminated and discipline nurses: at the drop of a hat. A healthcare organization will fire a nurse with 25 years of experience and loyalty to the organization just as fast as it will terminate a new employee. If you pass gas (and you are not a CRNA :) on a patient care unit, you will be terminated and reported to the State Nursing Board because it "looks better" from a liability, public relations, and accreditation perspective.

But guess what, more facilities are throwing nurse supervisors, nurse managers, and nurse executives to the wolves and under the bus also. This does make me feel better and it shouldn't please you either because it typifies the harsh reality & environment of nursing practice now. More nurse managers and nurse executives are being terminated and I am receiving more and more of these calls and these nurse managers and nurse executives are also being reported to the State Nursing Board.

What am I saying?

1. You know your practice area, don't you? If something happens and its triggers an investigation in the workplace and you are involved, get your own attorney involved to review the situation with you and give you OBJECTIVE legal advice and counseling. You need to have your own Nursing Practice and Nursing Law counsel you can consult with about situations which happen in the workplace. If you are a nurse supervisor, nurse manager, and nurse executive, are you aware of your exposure?

2. Stop listening to the advice and counseling of everyone and their momma about the seriousness of an incident. It is human nature to underestimate the seriousness of an incident to a friend, colleague, or relative because you don't want the worry the person and you want the best for the person.

If I call one of my grandmother's right now and say "mom, I slapped someone and I may be charged criminally", the response will be "it is going to be okay. You are a good person. Who did you slap?  and "I know you type a lot, did you hurt your hand when you slapped this person?"

This may help me feel better emotionally but it certainly doesn't help me deal with the criminal, licensure, legal, and career implications of pimp slapping someone.

By the way, my little sister's 1 y/o son, open hand slapped me so hard (yes, he pimp slapped me) he knocked my glasses off. My sister says he picked this up this behavior in daycare and/or watching cartoons. Really? This was last month and I still smile about it daily. Thank you Baby Chris for putting a smile on Auntie's face whenever I think of you!!!

3. Nurses don't have the income and prestige of dentists or physicians but nurses certainly have similiar liability just a different context. http://www.nso.com/. Take a look at the report, Understanding Nurse Liability from 2006-2010 from Nursing Service Organization.

The public is more aware than ever that you can be sued and you can be reported to a licensing board. Nurses are not self-employed like most dentists and physicians and therefore USUALLY do not have a personal and private attorney for practice, workplace, and career issues. This should not prevent you from consulting with an attorney even if it is one a time basis.

Most nurse attorneys or license defense attorneys may offer a legal consultation. Pay the money and consult with an attorney. It is only your License, Livelihood, and Career on the line. I receive at least 10-35 calls or emails a month from nurses who need legal services but do not want to pay for a legal consultation or legal services. Attorneys like nurses don't work from free (this one doesn't anyway) and it is worth the money to consult with an attorney for a few hundred dollars rather than gamble with your career, isn't it?

I never represent myself. Why would I because I am biased and I would see the facts as I want to see the facts. This is human nature and this is why now more than ever it is important for nurses, a front-line providers who work as at-will employed nurses or who are part of bargaining unit, to consult with a private nursing law or nursing practice attorney about situations in the workplace. Gone are the days when you could say a hospital, nursing home, or healthcare organizations acted in the best interest of its employees; an organization asks what is in the best interest of the organization, right? It is the role of YOUR ATTORNEY to ask what is in the best interest of YOU, as a licensed nurse.

4. If you can, try to negotiate an individual employment contract with a healthcare organization which afford you the same rights physicians have in the medical staff bylaws. Individuals employment contracts hold power for nurses; it is not at-will employment or even collective bargaining. The future of nursing should be Nursing Staff Bylaws and Individual Employment Contracts for All Nurses.

Yes, I said it and I stand by it. I am on the front lines of representation because my clients are front line and bedside providers. The future of nursing lies in securing power and negotiating a seat at the table in healthcare and in the nursing workplace; this power can be obtained in Nursing Staff Bylaws and Individual Employment Contracts not Collective Bargaining Agreements and certainly not At-Will Employment, which is for the birds. This is my opinion and you should have your own opinion. You can email me until the cows come home baby and I will not change my opinion which has been solidified from years of nurse license defense practice and actual nursing practice in a variety of healthcare settings. I seriously doubt I will see cows in my backyard at my home or my office; maybe deer at my home but certainly not cows. Also I don't eat meat, but I may start again, if I see a cow in my backyard.

 

Kentucky Bar Association Executive Director is Leaving and the President is Facing a Disciplinary Complaint

I received my January 2009 Kentucky Bar Association Bench and Bar magazine which mentioned the limitation (this is first in the history of the KBA) of President Barbara Bonar's power as a president and then mentioned the resignation of the current Executive Director, Jim Deckard who hasn't been in the position very long. The last ED, Bruce Davis served in the position 24 years.

Bar Association ED are usually boomers and lifers, you stay in those position until you die or for twenty to thirty years and when you leave those positions you receive a blurb in the Bar Association magazine, a party with punch, cake and ice cream, a pension, small wood clock or cheap gold plated watch, and a plaque.

I don't follow bar associations as closely as I follow nursing associations, but maybe I should. What's up the Kentucky Bar Association? Things are on and popping it seems as the KBA.

See these links and make sure you read the comments. I thought it was interesting that one commenter mentioned Kentucky being a unitary bar as the problem. One blog speculated that Deckard being a Republican when the majority of Kentucky attorneys are Democrats was the issue:

http://www.courier-journal.com/article/20090206/NEWS01/902060397/1008/ARCHIVES

http://news.cincinnati.com/article/20090206/NEWS0103/902060411/-1/TODAY

http://bluegrassbulletin.typepad.com/bluegrass_bulletin/2009/02/ky-bar-association-exec-director-leaving-raises-questions.html

Are You A Specialist?

In Ohio, starting this Spring, you can't call yourself a specialist in a particular area unless you are a certified specialist in a particular area. See http://www.ohiobar.org/pubs/insideosba/?articleid=1373.

Specialization and certification is tricky especially if you are licensed in more than one jurisdiction. I am licensed to practice law in Ohio, Kentucky, and Indiana and only Ohio has a certified specialty in administrative law.

I don't plan to become a certified specialist in any state even if all three states where I practice offer the same specialization.

In my opinion, its not worth the confusion and the disclaimers I will have to make on my business cards, brochures, website, and other marketing materials to say I am certified by one state in a particular area and not in the other states. Specialists are also held to a higher standard of practice and care, not that I am planning to make mistakes....But that's just me.

I don't say I am a specialist now, it sounds funny and its discourged by the State Bars. You also have to be careful calling yourself an expert.

I say my law practice is limited to representing, counseling, and advising nurses or that I am a nursing licensure defense attorney. This accurately sums up and defines my law practice. My marketing and advertising notes I am a RN and that my law practice focuses on nurses.

I have a very distinct niche for my law practice as I focus exclusively on assisting LPNs, RNs, and APRNs (nurses) in professional practice and licensure matters. I have never referred to myself a specialist and I think its vain to refer to yourself as expert.  

Do you need to hire an attorney before you hire an attorney now?

Has the legal profession come to a point where you will need to hire an attorney before you hire an attorney?

I belong to several nursing chat rooms and the chat room administrators are constantly sanctioning members for seeking legal advice AND sanctioning members for giving legal advice in the chatroom.

One nurse warned that attorneys require ethical CLE (continuing legal education) for reason and to be careful when retaining an attorney.

Is the public perception of attorneys that bad?

Unauthorized Practice of Law vs. Nursing Scope of Practice

Do you think the Application for Licensure by Examination that is submitted to a State Board of Nursing is a legal document or a business document? Is it a legal document because its being submitted to a licensing board? Is it just a business document? What do you think?

I ask because I had a situation where a nursing instructor improperly advised a nursing student that the nursing student did not have to disclose a criminal conviction on the Application for Licensure via Examination to a State Board of Nursing.

Where is the line in this situation between the nursing scope of practice and the unauthorized practice of law (UPL)? 

I think that nursing instructors, faculty, and professors should discuss the Application with nursing students and this post isn't meant to discourage this practice. I would however like to create an awareness that there is a line between what's permissible in the nursing scope of practice and what can be construed as the practice of law by counseling and advising a party on his/her rights, obligations, and duties in a specific situation.

UPL is state-specific. In general reviewing, analyzing , and discussing specific facts and counseling and advising an individual on his/her options, rights, responsibilities, and obligations in a given situation, which can be construed as legal advice.

What do you think?

My concern as a nursing defense attorney that in this situation it will be a nurse, either the  nursing instructor or the nursing student in the hotseat. It will be the nursing student if he/she relies on the "advice" of a someone who is not admitted to the practice of law, to his/her own detriment and fails to disclose information to the State Board of Nursing. Some may argue the student should have known better than to rely on the advice of someone not admitted to law practice.

It will be the nursing instructor, faculty, or professor in the hotseat in the event a State UPL Committee or State/Local Bar Association investigates the allegations (Attorneys are very protective of their scope of practice. As an example multiple entry levels into the practice of law do not exist in general) which may eventually lead to a State Board of Nursing investigation for practicing outside the nursing scope of practice, and a criminal investigation as practicing law without a license may be a crime in some states. Who wants to be involved in something this convoluted?

What's the bottom line? Know your scope of practice and seek assistance when in doubt.