Friday, November 8, 2019

Should nurses get malpractice insurance?

The answer is simple and quick---YES, YES, YES!!!  Nursing Defense Attorneys advise nurses who interact with patients to carry their own malpractice insurance.

The biggest worry is not getting sued in civil court, but rather an investigation by the Board of Nursing.  Malpractice insurance typically covers professional license defense and this is a HUGE reason to pay a little money every year to a nursing malpractice insurance company to ensure that if a complaint is filed against you there is money to hire an experienced defense attorney.

Nurses continue to refuse insurance due to various myths:

1. I am a good nurse and won't get sued/reported to the BON:  Good nurses are reported every single day to the BON or named in a lawsuit.  Good nurses make mistakes and are reported or sued; being good at your job is not an absolute defense.  Good nurses can be the victim of mistaken identity or identity theft.  What about the nurse who had her information stolen and it was used to write fictitious prescriptions.  The board ignored the nurse's denial, samples of her handwriting, and letters from her employer and pharmacist stating the prescriptions were not hers.  The nurse had to pay legal fees, expenses and a private investigator fee out of pocket before the BON would believe she did not write the prescriptions and dismiss the case.  Bad things can happen to Good nurses.  Good nurses get their own malpractice defense policy.

2. My employer has insurance so I do not need my own policy:  I have never seen an employer's insurance used to provide legal defense for a complaint to the BON.  In addition, since most complaints originate from the employer, why would the employer also provide the financial means to defend against their complaint?  If you use your employer's malpractice insurance company the company/attorney's concern is the employer first.  This means any advice given to the nurse must first be a benefit to or not harm the employer.  If a nurse wants a non-biased defense, the nurse needs his/her own malpractice defense policy.

3. Having your own insurance will get you sued:  Plaintiffs find out a nurse has insurance two ways-first the nurse tells them (do not tell anyone you have insurance when an incident/error occurs) OR AFTER the lawsuit is filed interrogatories are filed asking if the nurse has insurance (so the insurance did not cause the lawsuit; they had already decided to sue you before they knew you had insurance).  Get your own malpractice defense policy because doing so will NOT cause you to be sued.

4. It is too expensive:  Not really.  A nurse told me that she obtained a policy and paid premiums for 10 years and the total amount was still less that what hiring an attorney out of pocket would cost her.  There is also a huge peace of mind aspect when you know you have the  money to take your case to the hearing stage and fight the allegations/complaint against you.  Many of the disciplinary actions occur because the nurse was forced to accept what the BON offered in settlement because the nurse could not afford to fight the BON (hearings before an Administrative Law Judge can cost anywhere from $10,000 to $30,000 or more depending on the length, number of witnesses and experts, and the complexity of the case; civil cases cost even more).

I received a sad phone call from a nurse who received notice she was named in a lawsuit.  I told her to contact the hospital immediately to see if they would cover her legal defense because they were probably also named in the lawsuit.  The nurse got very upset because the hospital had declared bankruptcy and was closed.  This meant the hospital was no longer in business and she was the only one named in the lawsuit meaning she was responsible out of pocket for her defense, expenses, and ultimately if she lost the case, she would be responsible for the cost of the judgment!!!   Very expensive and it could have been avoided if she had her own malpractice defense policy.

5. I was told in nursing school/at a CNE seminar/by a co-worker/etc. that I should not get insurance because.... Whatever the reason and no matter who is telling you, they are wrong.  The people who defend nurses are in agreement that nurses need to carry their own policy for malpractice/professional license defense.

How to find a policy:  Search for nursing malpractice insurance and talk to the various providers.  Make sure the policy:
* covers professional licensure defense
*allows you to pick your OWN attorney [Some insurance companies have a list of attorneys you must choose from and these attorneys may not have experience with the BON or not enough experience]
*has a cap per incident of at least/a minimum of $25,000 [this usually provides enough money for a BON investigation and a normal hearing; there are some policies that have a cap of $5,000-$10,000 per incident and that is not enough to cover the investigation and possible hearing]

Changes to Texas BON's Crminal Guidelines

I continue to hear from nurses (who have spoken with other attorneys in regards to criminal convictions) that are told they are going to receive disciplinary action or that they will have to obtain some type of evaluation; in many cases this is not true because the guidelines changed.  The Texas BON revised  their criminal guidelines in 2018 and some attorneys apparently have not kept up with the new regulations and policies.  What the Texas BON used to do in response to convictions before 2/2018 has changed and you need to be sure you are receiving current information.  Before agreeing to anything, be sure to speak to several attorneys that have experience with the BON (check Google or AVVO.com for information on attorneys and their experience).

Sunday, June 8, 2014

This is from my firm's website, www.nursingattorney.com:

Nurses always ask what can they do to improve  the regulation of their practice by the Texas Board of Nursing.  There are questions of how to make the process more fair, especially for those nurses who have never had a violation before and have a wonderful history of nursing practice.  Now, nurses can make a difference and ensure that two proposed rules pass; two proposed rules which will benefit nurses in Texas.

All nurses should read the recently proposed changes for the BON's  rules sections §213.32, Corrective Action Proceedings and Schedule of Administrative Fines and §213.35, Knowledge, Skills, Training, Assessment and Research (KSTAR) Pilot Program(22 Texas Administrative Code §213)  These rules will help nurses with minor practice violations resulting in disciplinary actions at the level of Remedial Education (§213.32) and at the level of Warning with Stipulations and Remedial Education (§213.35).  The levels include with and without a fine.

The Corrective Action Proceeding is non-reportable to the databanks and is not considered a disciplinary action.  Previously this option was restricted previously to administrative documentation type cases such as failing to inform the Board of a minor past criminal conviction or a failure to monitor the renewals of nurses under your supervision.  Expanding this option to practice issues will help the type of cases in the past where a nurse has a stellar nursing practice history but has made an error of some type; having these nurses put under disciplinary orders was one of the biggest problems facing the Board in my opinion.

Allowing deficiencies in nursing practice to be corrected by the KSTAR program is a great step in the regulation of nurses.  The  typical Board Order may not have addressed specific issues a nurse had and instead lumped all violations of a certain level into the same remedial courses.  The program will not be cheap for the nurse, but if the success is anything like that of other professions who have utilized a KSTAR like program, the program will be successful in preventing recurring Board Orders for additional violations.  This program will be reportable and will be a disciplinary action.

Each program has specific requirements and restrictions, but these two proposed rules are something nurses should support.  In order to help ensure passage of these rules, read the rules and if you are in support, send a letter to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101.  An additional copy of the comments on the proposal or any request for a public hearing must be simultaneously submitted to Melinda Hester, RN, Lead Nursing Consultant for Practice, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to melinda.hester@bon.texas.gov, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

A public hearing is where the public is allowed to voice their opinions regarding the rule in person before the Board; a hearing is not required for comments to be considered if submitted in writing, to the two staff members above as directed and submitted no later than 5:00 p.m. on June 23, 2014  for §213.32, the Corrective Action Proceeding proposed rule and no later than 5:00 p.m. on July 7, 2014 for  §213.35, the KSTAR proposed rule.

Tuesday, September 24, 2013

The BON and Criminal Background Questions-the truth may set you free

If the BON asks a question on application/renewal paperwork, answer the question truthfully.  The area which trips up more Texas nurses is the criminal background question.  This particular question has undergone multiple changes and refinements based on what the Board heard back from nurses who did not understand the question.  When in doubt, answer the question "yes" rather than marking "no".  If you have been involved with the Police, arrested, jailed, posted bail, anything associated with the criminal system, you will most likely have to answer yes (the only exception is expungment or nondisclosure orders, see below).  The best option is to check with an attorney who is experienced with the Board, not your criminal attorney, not your best friend, not your co-workers or supervisors, and sometimes not even Board staff**.

The nurse should always be careful when submitting a statement regarding criminal offenses.  There have been cases where what the nurse submitted as a statement is what got them in trouble with the Board and not the actual conviction.  Also, there have been many cases when the nurse fails to inform the Board of a criminal incident and are disciplined for the failure to disclose; if the nurse had informed the Board no action would have taken place which is why the action is based on the failure to disclose only (there are some minor criminal offenses for which the Board will not take disciplinary action).

If you are in nursing school or entering school, do not wait too long to obtain the Board's decision on your criminal incident.  It takes a while for the Board to review the multiple applications they receive and a positive criminal background will delay the process.  Then you have to wait and calling or writing will not speed the process; hiring an attorney will not speed the process except an experienced attorney can review what you have sent to make sure you provided all required information thereby eliminating that delay; and having your Legislator/Dean/Parent call on your behalf will not speed the process.  So, it is better to plan ahead.

**Remember that just like any employer, the Board will have new employees and they may not understand what you are asking or they may be confused to what is required; so if the answer sounds too good to be true, check with an administrative lawyer experienced with the Board.

Expunged offenses, Sealing of Records/Orders of Nondisclosure
First, if you do not have an Order signed by a Judge which states "Order of Expunction/Expungment" or  something similar, then get a copy of the Order.  If you cannot get a copy of the Judge Order,  answer "yes" and state you believe it was expunged.  Too often nurses are confused regarding expungments and think there is an Order when in actuality they were eligible for one; or the nurse may confuse a dismissal as a expungment.  If you can get a criminal offense expunged, get it done NOW; expunged offenses make the licensure process so much easier.

The same can be said for Order of Nondisclosure or Sealing of Records.  The difference is that the board can look at the underlying offense to determine if this action(s) causes concern for the licensing/renewal of a nurse.

Juvenile Records
Juvenile records are not automatically removed from someone's criminal history, so don't forget these when answering criminal background questions.

Deferred Adjudication, Pretrial diversion 
 Deferred Adjudication and Pretrial diversion  cases are considered convictions by the Board even though in the criminal courts they are not convictions.    Be sure to tell the Board about them.

Dismissals, No filing of charges etc.

The Board asks about any ARRESTS, so even though there were no action taken by the criminal court, you still need to tell the Board.  Why?  There are times when a case is dismissed because it is covered by another criminal charge, but for the Board they want to know about each incident.

Pending Charges

If you were arrested, you should have already answered yes, but if that question or the actual outcome question did not catch your attention the pending charges question should.  In other words, most of the time you will answer "yes" if you have been involved with the Police/Criminal Court system.

NJP, non judicial punishment by military administration
NJPs are administrative decisions and are not a result of the showing of evidence/witnesses before a Judge or jury; the nurse is just informed of the decision.  These are determinations made by the commanding officer.  They are not reported to any criminal database since they are non-criminal, administrative decisions.  Because of the nature of NJPs, I have argued several times to the Board that these do not belong in the same category as criminal cases and if it were not for the honesty of the nurse the Board would not even know about the NJPs since they typically do not show up on DPS and FBI background checks.  However, the board continues to ask for information regarding the NJPs and has taken disciplinary action on a nurse based on what occurred (usually when the facts involve substance abuse issues, positive screens, assault, theft).

Misdemeanor, Felony
It is a Misdemeanor, not a Felony so the BON won't be interested, right?  WRONG!!  The Board asks about all arrests and convictions, not just felonies.  If you have pending charges and the arrest was for a felony, tell your criminal attorney to plead that down to a misdemeanor.  Why?  If you have a felony conviction (and remember felony deferred adjudications are considered convictions for the Board) the Board takes much harsher action including the potential for revocation, suspension or surrender.  Sometimes a plea of guilty to a Class A misdemeanor results in a better outcome for the nurse than a Felony deferred adjudication.  It is best to have your criminal attorney speak to your administrative attorney when determining the best plea outcome.

Conclusion
Each case can have unique aspects which require the review by an administrative attorney experienced with the Board.  Be proactive and don't wait to get the right advice.  I met with a nurse who was going to sign a disciplinary order and only had questions about some of the restrictions proposed by the BON.  When I reviewed the Order and the underlying arrest, I informed the nurse that the BON had no statutory support for the imposition of an Order.  I wrote a letter to the Board explaining why the Order was not valid and the complaint was quickly closed (the case was being handled by a new investigator who did not know the statute and it was not caught when it went through review).  So, I know I harp on getting legal advice by an experienced attorney but I have seen over the years the need for an attorney's involvement and the definite need for an attorney who has experience with the BON and I have seen bad outcomes when the proper advice is not obtained.






Saturday, July 7, 2012

The Texas BON, the Judge's PFD and the battle over fairness

On July 3, 2012 a public hearing was held by the Texas Board of Nursing regarding the proposed rule changes to 22 Texas Administrative Code 213.23. The proposed rule changes will significantly alter what an Administrative Law Judge is able to do when issuing a PFD (proposal for decision).  This has been a hot issue for several years in Texas and there has been a movement to allow the State Office of Administrative Hearings Judges be the final decision maker instead of the current procedure which sends the Judge's PFD to the Board and the Board determines if they are going to accept the PFD or change it.  This "second bite of the apple" by regulatory agencies causes cries of unjust and unfair by licensees because a licensee can spend the time and money to go to a hearing, win and still end up with a disciplinary action if the Board decides to change the Judge's PFD.  The last session of the Legislature found a bill passing both the House and the Senate only to have Governor Perry veto the bill.  Gov Perry stated he did not believe the SOAH Judges had the same expertise as the Board members and the end result should then remain with the Boards.  However, the hearing process allows for the Board to provide its expertise to the Judge just as the licensee explains their stance.  The hearing process would allow for the Board's policies and procedures to be provided and explained.  Judges are not required to be experts, that is the role of expert witnesses.
Back to the proposed rule changes: 

The Texas Chapter of The American Association of Nurse Attorneys had provided written comments on June 18, 2012 and also requested a public hearing.  We  were not informed of the public meeting but one of our members discovered the scheduled meeting while reviewing the Texas Register.  There were 4 speakers commenting on the proposed rules and below are some of the comments made during the meeting:
A public member stated he did not believe the Board really wanted a public hearing because they limited notice of the public hearing and it was scheduled in the afternoon on the day before a major holiday (June 4).  [As a note, I also wondered why the Board scheduled the public hearing for such an inconvenient date and why the public hearing was not held during the upcoming July Board meeting.  The public hearing was held with only the President of the Board present; no other members were present to hear the comments made in response to the proposed rules]  The public member stated he believed this proposed rule will not decrease costs but will actually increase costs due to increased district court cases filed by nurses who feel so wronged by the process.  He stated this rule takes away from the right to a fair hearing and could lead to the formation of nursing unions as a means to fight the Board's increased regulation.  He said to decrease costs, instead of this rule change the push should be to have the staff move cases and resolve them quicker and the Board should be able to resolve a case within six months.
The Texas Chapter of The American Association of Nurse Attorneys pointed out in addition to their written comments that they believe the NPA requires a Judge to issue sanction recommendations.

The Texas Nurses Association urged the Board to delay any action because they believe the correct venue for deciding a Judge's role in issuing the Proposal for Decision (PFD) is the Legislature and not all the various health care regulatory agencies.  They stated there may be an issue with statutory authority.  They are concerned prohibiting SOAH Judges from making recommendations would have the potential of removing valuable information needed to determine appropriate sanctions.  Finally, they recommended it is probably time for there to be an overall evaluation of SOAH's role by all stakeholders and decide if they are going to be judicial or not.
A defense attorney stated the NPA 301.454 (d) gives SOAH authority and the Judge is bound by the same factors.  Also, this proposed rule will put the Board in the position of judging evidence.  She stated there is a current system which allows the Board to monitor the application of their policy.  Lastly, that there should be an individual approach to discipline because otherwise it is an assembly line approach which removes the need for the specialized Board members and staff.

[This info is also located on healthlicensedefense.com]