A Nurse Attorney's Thoughts

2009-10-20T17:16:00.003-05:00

My blogs have moved to www.nursingattorney/b. I have not posted in a while because we were busy setting up the new blog site. I hope that putting the blogs on my website will help readers navigate the blogs and the articles. Let me know what you think.

Tort Reform's unexpected impact on nurses

2009-08-26T12:44:00.002-05:00

The National Council of State Boards of Nursing met August 12th – 14th in Philadelphia. Approximately 300 Boards of Nursing executives and member delegates as well as interested organizations were present. During a discussion of Discipline Texas reported that since the state tort reform caps on punitive damages was passed in 2003, aggrieved consumers are turning to the licensing boards to seek redress and licensee sanctions. This is particularly troubling, given the varying burdens of proof between a court of law and an administrative proceeding. (Thanks to Rosemary for this update).

What this means is that previously when patients were unhappy with their care, they would sue in court but now they are reporting the health care professionals to their licensing boards because it is too difficult to sue for malpractice now. But do not think that this means that you do not need malpractice insurance--remember that malpractice insurance covers more that lawsuits and one of the major reasons to have coverage is for legal representation before the Board of Nursing.

Just a Thought

2009-08-04T20:17:00.001-05:00

Whenever I feel blue, I start breathing again.

I know...nurse humor!!

Additional Information about the Fired Nurses

2009-07-22T18:08:00.002-05:00

This information was received from the Texas Nurses Association (where a legal defense fund has been set up): "A brief summary of the facts is:

1. Vicki and Anne had concerns about whether a physician was practicing at an acceptable standard of care. They tried to raise those concerns at the facility level and with medical staff but got nowhere.

2. They were accused of anonymously reporting the physician to Texas Medical Board (TMB). That report included the medical record case numbers of six patients but no patient names. They did not sign the letter, stating they feared for their jobs, but that they would speak with an investigator at the appropriate time if an investigation by TMB was determined to be warranted. In the report, one of the nurses described herself as being a female over 50 years old and employed at the facility since the 1980s, etc.

3. The hospital apparently has a policy of “Self-Review” which prohibits the reporting of any concerns to any Board/Agency without the hospital being notified of the intent to report.

4. When the TMB notified the physician that a complaint had been filed against him, the physician filed a complaint for harassment with the county sheriff’s department against the unknown persons making the report.

5. The sheriff interviewed all of the patients whose medical record case numbers were listed in the report. Apparently, either TMB or the sheriff used the case numbers to obtain the patients’ names from the hospital to determine who filed the complaint. The sheriff also asked the hospital to identify who would have had access to the patient records in question. At some point, the sheriff obtained a copy of the anonymous complaint from TMB and used the description of a female over 50 to narrow the potential complainants to Vicki and Anne. He then got a search warrant to seize their work computers and found a copy of the letter to TMB on one of them.

6. The nurses have been indicted and arrested under Texas Penal Code Sec. 39.06 for misuse of official information a, third degree felony, which carries potential penalties of two-to-ten years’ imprisonment and up to a $10,000 fine.

7. Both had to retain legal counsel and post a $5,000 bond to defend these criminal charges.

8. Both have been fired by the hospital."

What Are They Thinking?!?!?!

2009-07-19T14:38:00.003-05:00

The American Nurses Association and the Texas Nurses Association issued a press release on July 16, 2009 and here is part of it: "Winkler County Memorial Hospital nurses Anne Mitchell, RN and Vicki Galle, RN, were charged with violating the law by sending an anonymous letter to the Texas Medical Board that expressed concern about a physician at the hospital. After receiving a complaint of harassment from the physician, the Winkler County Sheriff’s Department initiated an investigation that resulted in criminal charges against both nurses.

Because the two nurses worked for a county hospital – and included medical record numbers of the patients in their reporting (no patient names were disclosed) – the County Attorney’s office indicted them on misuse of official information – a third-degree felony that carries potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Mitchell and Galle, both long-time nurses at the hospital, were fired from their positions."

I will have to assume that since the Medical Board, ANA and TNA all are in support of the nurses that there is validity to the complaints. There have been malicious reporting to the Boards to "get back" at practitioners, but we have to be careful not to sway into discouraging a way to have nurses advocate for patients. That said and assuming that there are standard of care issues, I find it incredible that nurses are being vilified for advocating for patients. Nurses have a duty to advocate for patients. Too often a complaint to the Medical Board is the only way to protect patients because hospitals refuse to recognize dangerous physicians because the physicians are revenue resources for the hospital (and often in small towns for the town). To say that these nurses misused official information appears to be a ridiculous stretch and it causes one to question the real reason behind the actions against these nurses.

If you want to vocalize your opinions the contact information for the Winkler County Attorney's office which was obtained online is:

COUNTY ATTORNEY, Scott Tidwell,
COUNTY ATTORNEY, Belle Armendariz
100 EAST WINKLER, SECOND FLOOR COURT HOUSE,
KERMIT, TX 79745 OR
CO. ATTORNEY, P.O. BOX 1015, WINKLER COUNTY,
KERMIT, TX 79745

(432) 586-2596 (432) 586-3535

Public Hearing on proposed CUE rules

2009-07-01T10:09:00.001-05:00

The Texas Board of Nursing has posted the following public hearing regarding the proposed CUE rules. If you would like to inform the Board of your concerns, please be sure to show up:

NOTICE OF PUBLIC HEARING
JULY 9, 2009
9:00 am - 11:00 am

The Texas Board of Nursing (Board) is holding a public hearing on July 9, 2009, to receive public comments on the proposed repeal of 22 TAC Chapter 216,concerning Continuing Education, and proposed new Chapter 216, concerning Continuing Competency, as were published in the Texas Register on May 15, 2009 (34 TexReg 2864 - 2877). This hearing is designed to provide an opportunity for nurses and others to comment on the proposed repeal and proposed new sections.

The hearing will take place on July 9, 2009, from 9:00 a.m. to 11:00 a.m., in Room 100, in the William P. Hobby Building, located at 333 Guadalupe, Austin, Texas 78701.
The proposed repeal of 22 TAC Chapter 216, concerning Continuing Education, and proposed new Chapter 216, concerning Continuing Competency, may be viewed at: http://www.sos.state.tx.us/texreg/pdf/backview/0515/0515prop.pdf.

The Board appreciates all stakeholder participation and feedback on these proposed rule changes. Feedback received is important to the Board and makes a difference in the regulation of nursing in the State of Texas.

Because many participants may wish to provide public comments at this hearing, the following guidelines will be used:
1. Any person who wishes to appear before the Board during the hearing shall present himself/herself in person at the meeting and must fill out a registration form, which will be available at the meeting. Individuals not completing this form may not be allowed to speak, subject to the discretion of the President of the Board, or her designee.
2. Each speaker will be allowed five (5) minutes to present verbal comments.
3. Speakers are requested not to read prior written submissions.
4. Each organization with several representative members in attendance should have one representative speaker present the organization's comments.
5. The public hearing will be presided over by the Board's President, or her designee, who will reserve the right to modify time limits and order of presentation, should there be good cause to do so.

Persons with disabilities or who have special needs and who plan to attend the hearing should contact Patricia Vianes-Cabrera at 512-305-6811.

Have a License, but not working as a nurse? You had better read this!!

2009-06-09T18:28:00.000-05:00

Do you have a nursing license and are not currently working as a nurse? If so, you should read the Texas Board's proposed CUE rules because they will affect you. Go to the Board's website and click on the May 15, 2009 proposed rules for Chapter 216. The new rules require nurses to demonstrate continuing competency in the nurse's specific area of practice. The problem is that if you are not working as a nurse, you do not have an "area of practice."

Every nurse that this impacts needs to immediately read the rules and send a comment to the Board detailing how they would be impacted by the new rules. According to the Board "To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 14, 2009, 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.state.tx.us, 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 Denise Benbow, Nursing Practice Consultant, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to denise.benbow@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

Economic downturn and nursing

2009-06-01T19:10:00.003-05:00

As I hear and read about the financial outlook for the US and I see the legislation that is getting signed into law for Texas nurses, I want to take the time to urge ALL nurses to get malpractice insurance. The insurance is not to protect you against lawsuits (but it does), it is to insure your license. Most malpractice insurance policies protect a nurse's license in Regulatory actions or what is commonly called licensure defense.

It is awful to have a complaint filed you, but to then not be able to afford legal assistance is stressful. Insurance policies are not expensive especially when you consider that you are insuring your career. In my January 2009 blog, I list some commonly found insurance companies/agents in order to give nurses a place to start searching for a policy. And if someone tells you that you don't need a policy, don't believe them. I have posted replies to all the myths surrounding malpractice insurance.

H1N1/Swine Flu--What are you going to do?

2009-05-28T08:44:00.002-05:00

As health care providers, have you set up your own pandemic/disaster preparation plan? I know the hospitals and clinics are looking at their policies and what procedures will be implemented in case of a pandemic/disaster, but every health care provider needs to look at their personal life and make plans.

-Do you have a change of clothes and toiletries in your car or locker in case you have to stay at work?

-Do you have a backup plan for child care? pet care? etc?

-Are you keeping up to date on what is going on? Looking at various sources for information? I think this is important because I question how much true information we are being told. Here in Texas a woman died and it was reported that she had health problems, but then her husband was interviewed and stated that she had no health problems. I have seen similar posts and it makes me wonder if the reporting is faulty when we are told that the people dying also have additional health conditions and then the family disputes that information or if a decision is being made to downplay that the flu is infecting healthy young adults as did the Spanish flu.

-Are you prepared to feed your family (pets included) for a week or more if stores are closed?

-There are more preparations that each provider should consider, but this is just to get you thinking about preparation.

Thinking ahead, planning and preparation are some important cornerstones of health care practice.

Attorneys urged to become nurses

2009-05-12T13:41:00.002-05:00

"Why Not Doctor a Stalled Legal Career With a Nursing Degree?" was posted on the May 11, 2009 Legal Blog Watch. The posting discusses how a nursing degree may be the solution for attorneys that are being laid off or that cannot find a position after law school. The posting is not as interesting as the comments posted on ABA Journal site. I have to agree with the majority of postings; a person should not go to nursing school unless they want to be a nurse. The fields mentioned as potential career choices ignore the fact that most of those careers require EXPERIENCE in nursing.

I get phone calls from nurses that are either thinking about becoming legal nurse consultants or they have already paid the money to become a certified nurse consultant and now they are seeking work (as a note, I do not typically use consultants in my practice, just my own nursing knowledge). Many of those nurses do not have enough nursing experience to be marketable. Most of what makes a LNC valuable is the nursing background and vast experience that the nurse has. Think back---how much did you really know in your first few years of experience?

Just like nurses want to pick an attorney who has appropriate legal experience, an attorney does not want to hire a nurse that has no appropriate nursing experience.

Thanks to LaTonia Denise Wright, R.N.,B.S.N., J.D. for the heads up on this article.

Watch Out Texas Nurses!!! New bills affecting nursing may harm you

2009-04-21T17:39:00.001-05:00

If you have not been tracking legislation that could affect your nursing practice, you need to do so NOW. The Board of Nursing has a great handout listing the various proposed bills. The bills that I have been watching closely are:

**HB 998, in support [this bill makes the current contested case procedure fair and is long overdue]

**SB 1880, against [see my explanation below]

Please take the time to educate yourself on the bills and contact your Senators and Representatives to tell them what you think about the bills. Too often the actual people that are going to be affected by the bills do not voice their opinion regarding the legislation.

I am very worried about various sections in SB 1880 and that the bill is trying to fix a few isolated problems with a mighty big hammer and that the resulting effect on nurses will be very sad. This bill came in the middle of my dear friend's illness and death, so I was not able to voice my opinion but I plan on doing so now. What bothers me is that when I looked at the witness list, I did not see any organizations or individuals that had experience with the day-to-day application of the incidents this bill proposes to affect. As I said, the bill on its face seems reasonable until you know about the actual application and the unfair, adverse effects the various sections will have on hard-working good nurses. I think it is crucial that our Legislators know about the effect various sections of this bill will have on nurses and ultimately the public because this bill will cause nurses to leave nursing, thereby increasing the nursing shortage.

Please contact your Legislators now or you will have to suffer the consequences of no action. I also want to point out that, unlike organizations with paid lobbyists, no one pays me to watch these bills or to take time to contact my Legislators or to sit at the Capitol for hours to testify; I do these things because I want to try to help nurses get the best possible laws in place that protect them and the public. And some of the proposed sections that I am fighting against or fighting for would actually take work away from attorneys, so there is no compensation there either. I am taking these stands because I believe that it is the right action to take.

The Loss of a very special nurse

2009-04-12T14:36:00.003-05:00

If any of you had the privilege to know Victoria Berry or had the good luck to hear her speak on nursing issues, it is with great sadness that I inform you of her death.

Victoria Lynn Berry
April 24, 1950 - April 7, 2009

The light in the world is a little less bright as Victoria Berry, age 58, was called home to heaven after her courageous battle with inflammatory breast cancer. She was optimistic throughout her treatment and true to her nature was more concerned about the problems of others around her than her own discomfort. She died at home surrounded by her family, friends and pets.

Victoria had a way of lightening everyone’s burdens. She was described often as an “angel on earth.” More so than her stunning physical beauty, she was known for her wonderful, vibrant spirit and grace. People were naturally drawn to her and she made them feel comfortable and safe when they were around her. Victoria was also an artist and she found a way to beautify everything around her. She was an avid doll collector and loved looking for antiques, but what gave her the most joy was spending time with her family, especially her grandchildren.

Victoria was born in Bridgeport, Texas. She is survived by the love of her life, Roger Berry of Manheim, Texas; daughter, Tammy Jo McCleney and son-in-law, Brett McCleney of Manheim, Texas; her grandson, Jacob McCleney and her granddaughter, Jett McCleney of Manheim, Texas; her adopted Father, Paul Harrison of Ben Wheeler, Texas; her sister, Berma Thomas and niece, LeVita Barrett of Ryan Oklahoma; and her Father-in-law, Richard A. Berry, Sr. and Mother-in-law, Alma Berry of Sycamore, Ohio. She was preceded in death by her son, Shawn Skelton; mother, Lorene Shawn; adopted mother, Elvie Deitsch; Father, Weldon Shawn; and brother, Larry Shawn.

Victoria graduated from the University of Texas in 1980 with a Bachelors Degree in Nursing; she obtained her Masters Degree in Nursing in 1982. She was a Registered Nurse, a Clinical Nurse Specialist and a Certified Wound Care Nurse. The highlights of her nursing career included Director of Marketing at Healthcare Rehabilitation Center, the Director of Nursing at Shoal Creek Hospital, an Investigator at The Texas Medical Board and a Certified Legal Nurse Consultant. Victoria was known to be a tireless supporter of nurses and nursing issues.

Funeral Services will be at 11 am Saturday, April 11, 2009 at Phillips & Luckey Funeral Home, 588 N. Main, Giddings, Texas.

Victoria dearly loved God’s creatures and she spent many hours caring for her dogs, cats, birds, horses and donkeys, but she did not stop there. She was a tireless supporter of animals and donated much time and money to help various organizations. In keeping with her goals in life, in lieu of flowers, the family requests donations be sent to the National Miniature Donkey Association Incentive Fund at NMDA Central Office, 6450 Dewey Road, Rome, New York 13440.

Nursing Board Attorney for Houston or Dallas or___(wherever)?

2009-03-23T14:45:00.002-05:00

This blog entry is to clarify a common misconception I keep coming across: I have gotten several phone calls from nurses in cities in Texas outside of Austin searching for an attorney to represent them before the Texas Board of Nursing and they want a referral to someone in their city. Unlike other areas of law where it may be better to hire a local attorney, administrative lawyers can easily handle a client's case from anywhere within the state of Texas or even the country (if the nurse lives in another state, but has an issue before the Texas BON). The bigger issue when choosing an administrative lawyer is that you chose one that is very experienced before the Board and one that you feel comfortable with. Be sure to read my past posts regarding how to chose an attorney.

Vicodin and Dr. House

2009-03-12T19:37:00.003-05:00

I overheard a conversation that I just had to share:

A woman was stating that she had taken a Vicodin for severe pain, but it really was not helping. The guy she was talking to said, "Just take more." The woman replied that she was not sure if it was okay to take more than one Vicodin. The man replied....

Wait for it.....

"Dr. House takes handfuls of Vicodin all the time and it doesn't hurt him."

Gotta love what nurses and doctors are up against!!!

Keep contacting your Legislator

2009-03-09T19:13:00.002-05:00

Do not forget to contact your Texas State Legislator regarding supporting HB 998. This bill helps nurses and makes the current regulatory system much more fair and just. I have blogged about this subject several times because I want to see changes in the laws and rules to make the process fair to all.

So, please take the time today to call, write or email your Legislator and express how much it means to nurses in Texas to have HB 998 pass.

No jobs for Nurses

2009-02-27T09:07:00.002-06:00

I have just heard from another nurse that is unable to get a job due to the mere presence of a Board Order. For some reason, some employers have decided that any disciplinary probation warrants termination or a refusal to hire. The employers are not reading the facts that led to the Order and too often they are refusing to employ nurses that either made errors due to mitigating factors or nurses that agreed to the Board's disciplinary restrictions purely because they could not afford to fight the BON.

Employers should take the time to read the Orders, check references and throughly interview nurses. They are turning away extremely qualified, caring professionals. Too often the nurses who take the difficult patients or that are in a charge position are the ones that get investigated by the Board simply because they put themselves out there to care for patients, while the nurses who show up, take simple assignments and never fully engage are kept safe. Ask yourself--which type of nurse would you rather have care for you.

So, EMPLOYERS---Give the nurses a chance! You are losing out on hiring competent, caring, experienced nurses who just happen to have been in the wrong place at the wrong time or who decided to continue working even though the unit was short and because of their dedication, they were overwhelmed and made an error.

Let Your Legislator Know-Support HB 998

2009-02-13T10:26:00.001-06:00

Go to Texas Jurisprudence and read about HB 998 filed by Fred Brown. It is a helpful bill and it needs to pass. Please take the time to contact your Legislators.

What does Panasonic know that we don't?

2009-02-10T16:00:00.003-06:00

Bloomberg.com just posted a story that Panasonic ordered employees working in some areas outside of Japan to return to Japan because of concerns about an influenza pandemic. This action seems interesting since supposedly there has not been a huge increase in cases.

Picking a Local Attorney

2009-02-04T11:46:00.003-06:00

Just recently, I have heard from a few nurses that utilized local attorneys to handle their cases before the BON. These attorneys are not administrative lawyers and have little or no experience with the BON. I am speaking to the nurses because they are either not satisfied with their legal representation or the local attorney has told them that they are unsure of what to do next with the BON. When choosing an attorney (for the BON, for a property issue, family law, whatever the issue), do a little research and chose experience. Frequently, hiring an experienced attorney will not cost more or it may actually cost less (One of the nurses had already paid a local attorney TWICE what I charge and the case was still pending). Be sure to Google the attorney's name and see what they list as their experience, check them out on the State Bar of Texas, and ask questions when you talk to them. My clients come from all over the state of Texas and the nation. They do not have to live in Austin for me to represent them before the Texas Board of Nursing.

I use the same thought process when choosing a doctor. If I have an idea of what area is affected and it is serious, I will go see a specialist rather than my regular GP (my insurance company allows me to choose). The cost is almost the same, but I am seeing the specialist rather than being referred later on. Think of it as cutting out the middle man.

Just my Thoughts and Opinion.

The Horror of a Nursing Error

2009-01-21T15:31:00.002-06:00

I see daily the intense anguish nurses go through when they have made an error or are accused of making an error. The error may be a medication error, a documentation error, an assessment error etc.; it does not matter which type, the emotional trial is the same. Nurses, even those that have done nothing wrong, begin to question their skills and knowledge. Insight is a good thing, but too frequently, the nurse experiences deep emotional impact from someone questioning their nursing practice.

RN magazine has an article in the December 2008 issue, "Sharing the load of a nurse "second victim 'Rescuing the healer after trauma'", that discusses this problem. It is helpful for nurses to be familiar with the issue because if you have been lucky enough to never have had scrutiny of your practice, you need to know what your colleague may be going through in order to be supportive.

How nurses treat each other is crucial to a good work environment and to the progression forward of the nursing career. All nurses must treat each other with respect, even if you do not always agree. This is being a professional and to elevate the profession, nurses must be seen by all as professionals.

I am serious - get malpractice insurance now

2009-01-09T07:51:00.003-06:00

You may have read my other posts regarding malpractice insurance but as I sit here reading the news, I have to say it again - Get Insurance Now!

The economy is in tough times, which means it is not a good time to have concerns about keeping your job. The Nursing Board is asking for additional funds this Legislative session in order to hire more staff to process complaints. Complaints against nurses have increased and most of these involve minor errors or incidents (in other words, these are not "bad" nurses). It is peace of mind to have insurance that will pay for your legal representation before the Board and your expenses and the yearly premiums for insurance are very cheap.

To make it easier for you and because so many are still not getting insurance, I did a quick search for nursing malpractice insurance and the following are companies that you can contact to inquire about insurance (I do not work for these companies and this list is by no means exhaustive since I did not look much past the first page, it is just a way to get you moving on getting insurance and you should definitely check out many policies to be sure you get the best fit):

www.bbi-tx.com
www.nso.com
www.medmal4nurses.com
www.proliability.com

Be sure to ask questions about the insurance policy:
Do you cover nurses in Texas? In ______ specialty area?
Can you pick your own attorney (important) or is one assigned?
What are the coverage limits (there needs to be at least $10,000 for licensure cases, but more is better in case there is a drawn out hearing)?
Does the policy cover administrative/licensure actions (VERY important)?
What expenses are covered under the policy?

Can You Help?

2009-01-02T15:05:00.002-06:00

Please Help Victoria Berry: She has always helped in the past and now she needs help

Many of you know Victoria Berry, MSN, RN from her work at the Texas Medical Board in the 1990s and in her subsequent role as a private sector health care consultant. She has been a part of the health care community for many years including service as a DON and as a registered nurse in long-term care facilities where she practiced as a wound care specialist. Victoria has been a long-time advocate for nurses and has freely given her time to help nurses in need. Victoria has also been a force in animal rescue donating both time and money to help dogs, cats, donkeys and horses.

In November of 2007, Victoria was diagnosed with Inflammatory Breast Cancer (IBC). This form of cancer is particularly resistant to treatment and often carries a bleak prognosis. IBC is a very rare cancer representing 1% of breast cancer diagnoses.
Little is known about IBC and clinical studies are desperately needed to offer hope to those who are currently suffering from it and to save those who will be afflicted in the future. MD Anderson opened the first IBC clinic to focus on the research and treatment of IBC, and is embarking on an experimental study specifically targeting Victoria¹s type of cancer. Victoria continues to fight the disease and has been accepted into the program.

A fund has been set up to assist Victoria and her family. If you are willing and able to help, contributions can be made through the Classic Bank of Giddings. No amount is too small to make a difference.

Contributions can be made in person, by mail, or electronically. Please use the information below to help Victoria as well as others who may be diagnosed with this insidious form of cancer and who may ultimately benefit from the results of the clinical study.
>
> Bank Info:
> Donation Account for Victoria Berry
> c/o Classic Bank of Giddings
> Attn: Kathy (New Accts.)
> P.O. Box 820
> Giddings, Texas 78942
>
For questions regarding electronic contributions, call the Classic Bank at (979) 542-6666.

World's Best Boss and a Heck of a Good Person

2008-12-10T08:24:00.004-06:00

As it gets closer to the Holidays, I think about what the General Counsel for the Texas Medical Board used to do when I worked there as a staff attorney. The General Counsel at the time, Tim Weitz, would instruct the attorneys to hold all legal documents (unless there was a court induced deadline or patients were in immediate danger of course) from approximately the beginning/middle of December until after January 1st. He did this because as he explained, no person deserved to have their holidays and their family's holidays ruined by legal proceedings at the Board. He would tell us to work during that time on the documents so that as soon as the new year was here, we would be ready to send everything out.

I always thought that considering the effect receiving bad news would have on someone's holidays was so compassionate and incredibly thoughtful. I find myself reflecting on this every single year at this time and then hoping that everyone would step back and look at their actions and the ramifications on others. So here is my holiday wish - Let's all make the world a little less cold and scary and connect more with each other by being more responsible and considerate!

As a note, just because he is compassionate does not mean that Tim is a pushover. He is one of the most intense, intelligent and powerful advocates I know and he has quite a reputation of a darn great attorney.

Nurses At the Top AGAIN!!!

2008-12-01T08:49:00.002-06:00

i-RN posts on her blog about the recent Gallop poll where nurses (7th straight year!) where voted the most ethical and honest. Nurses have been at the top for a long time except for a short time period in 2002 when first responders rated above nurses due to 9/11.

This is why I like my job--I like my clients, they are trying hard to provide care in some less than ideal situations and usually with minimal assistance and support. I just wish I did not have to meet them under the circumstances that bring them to me. But, that is why I write these blogs--to hopefully give you the information needed to protect yourself.

Words to Learn By

2008-11-19T09:25:00.002-06:00

I loved this Editor's section written by one of my law partners, Tim Weitz. He was the Executive Director for the Texas Physical Therapy Association for many years and recently left and this was his last article as Editor. I think it applies to many situations that nurses face daily, so here it is for you to ponder:

Long Last Words: Wise Old Sayings and Other Stuff

By Tim Weitz, J.D.
TPTA Executive Director

With my time at the TPTA coming to an end on October 31st, I have wondered what would be the best final message to leave on. Since it is my last message and there was some extra space to fill, I got to indulge myself by being even more long-winded than usual. Chalk it up to editor’s privilege and the fact that I’m leaving. With the holiday season close at hand and a new year not far away, it has been my experience that people tend to lean toward introspection and dwell on some of the more philosophical aspects of life. I certainly do. With my upcoming departure, I have done so even more than is typical for me. As a result, my comments in this Executive Director's Notebook reflect this mindset. Now understand that given the forum these comments are intentionally secular in nature. It isn't that I am not spiritual or don't have a view of the universe that is to a large extent grounded in a religious belief. It is simply that for an association newsletter, it is perhaps best that I stick to worldly things to avoid unintentionally offending the good people that I work for --- all of the members of the Texas Physical Therapy Association. In short, what follows are some things that I don't believe and a quite a few things that I do. I don't know who is responsible for all of these witticisms, cynicisms, and other "deep thoughts." I may not have the quotes exactly right or may use a version that is slightly different than the way you know it. Nor can I tell you who first said all of these things - maybe Ben Franklin, Shakespeare, Mark Twain, Truman, Gandhi, Sam Rayburn or someone else much smarter and certainly much better known than me --- nevertheless, these sayings have become integrated into our culture and are tossed about rather casually. So for me at least, they are worthy of a couple of comments as we move toward the new year and I go on to write the next chapter of my life.

Let me start with some things that I don't believe. "The road to hell is paved with good intentions." While I certainly understand that good intentions without corresponding actions are virtually useless and can agree with that interpretation, I cannot agree that good intentions are the asphalt of the roadway to torment and misery. Frankly, from my experience, good intentions usually lead to good actions which in turn lead to good results. Even when good intentions yield bad results, I still think you should get credit for having your heart in the right place. More often than not, a good heart will get you there. It's right up there with "Nice guys finish last." Don't believe it. Never will. I guess part of this is how you define first and last place as well as what you mean by "nice." I can tell you that nice doctors don't get sued as much when they make mistakes. See the above discussion on good intentions. Then there is the ever popular "No good deed goes unpunished." Disagree. Sometimes doing the right thing is much harder than doing the easy thing. Sure it's hard, but it isn't really punishment. On the contrary, it is simply the price of taking the high road. It may go unappreciated, but good deeds don't usually come easy. The best ones are often the hardest.

Now for two of the dumbest ones I disagree with. "What you don't know won't hurt you." I believe this one was originally coined for people who rationalize cheating on their spouse, fiancé, boyfriend, or girlfriend. It'll hurt plenty. It just takes longer for the bad stuff to build up and bust its way into everyone's lives. Likewise, I am "underwhelmed" by the "gem" of "Ignorance is bliss." No, I don't believe that. To me, ignorance is a prescription for disaster. Stay ignorant about what is going on in government affairs or if there is gas leak in the old stove in the kitchen. Then get back to me after the legislative session is over or after you lit a match in a house filled with natural gas. Like the other adage about what you don't know, it may take some time, but believe me when I say that "bliss" is the last thing it will be when your ignorance blows up in your face. It will hurt plenty. While I'm alluding to the legislative arena, how about that consolation statement of "Better late than never." Wrong. Sometimes, late might as well be never. Some comets only come by once in a lifetime. You sleep through it, and it's gone. The last bus stops running at 11 p.m. so you better be on it. When legislation is passed and signed by the Governor or the President, late isn't any better than never. It just heightens your embarrassment because you knew and failed to act promptly.

Then there is "Only the good die young." Not true. We just miss them more. "Might makes right." No, it just makes for control, but a dictatorship no matter how strong, just ain't right in my book. "Like father like son." Not quite true either. I have found that many times the two are very different, and presumed honor or guilt by genetics doesn't fit in my experience. Same goes with the old saying of "The apple doesn't fall far from the tree." Look around. We aren't our parents - sometimes it's a good thing and sometimes it's not so good. I've seen lots of kids making up for the sins of their parents and vice versa. As for the classic "One bad apple spoils the whole barrel." Not in my book. I know one bad element in any mix of people can cause some problems, but from what I have seen one good apple can salvage a whole bunch of bad ones. One strong witness at a legislative hearing has been known to make up for all of the people who rolled over and stayed in bed because it was too cold and too far to drive.

"My country, right or wrong." Torn on this one, but I'll have to say that with a strong German heritage, this one doesn't fly with me either. Not to place all evil at the foot of Nazi Germany since I could cite to a number of other countries and horrendous transgressions against humanity, but it is a rather striking counter to this patriotic tripe. Even being a proud American, I will confess that there have been more than a few times I wanted to immigrate to Canada or Australia. I'll leave it to you to guess which times. We're all entitled to our political views, and I wouldn't want to offend --- just want to make you think.

"If you can't beat them, join them." Sorry. Can't do it. Think about the healthcare environment and physical therapy, and then tell me whether you're willing to go with this one. Yes, you know who I'm talking about, but I don't want to offend them either. It's getting close to the legislative session and the holidays. I'll wait to offend them during another time of the year.

"Better to be lucky than good." I don't think so. Luck runs out and it can be bad just as often as it can be good. Being good has staying power. Nice to be lucky and good, but in the long run I'll pick good over luck every time. "Even a blind hog finds an acorn sometimes." The hog is still blind and "sometimes" usually isn't often enough. That's the problem with relying on luck. So for me, this sort of ties in with "Don't sweat the details." Disagree. Sweating the details and getting them right is what makes you good, and causes others to think you're lucky. More to come on this subject.

"Best to forgive and forget." I'll go half way on this one. I'm all about forgiveness. Revenge is petty and a grudge kills your own soul. Just takes too much energy. Even so, forgetting a misdeed or a betrayal is just plain stupid. Sharks will be sharks and act like sharks. Forgive them for it, because those are their limitations. Forget it and you'll become their chum --- and not the good kind either. Pain keeps the memory sharp. There is a reason that it is one of the best teachers. Often unforgettable.

"All good things come to those who wait." I don't know who said this one, but I disagree. While "patience is a virtue," waiting around has just made me tired and not really brought me many freebies or good things. So with that said I'll switch to some of the things I believe to help put the foregoing comments in context. In fact, this is a good place to talk about my thoughts about waiting and the nonsense that all good things come to those who wait.

I believe "Who dares, wins!" as espoused by more than a few elite fighting units who have adopted the slogan. I believe that "Fools rush in where brave men fear to tread;" however, to succeed you often have to take calculated risks. At times you must dare to stick your neck out even if you risk having your head lopped off. This does not mean, blindly jumping into a pit of boiling tar. I believe in being bold, but also believe that you must "Look before you leap." I was always the kid that wanted to see how deep the water was or if there was an old sunken car beneath the water below the bridge we were going to dive off of. I'm in my forties now and have the use of all of my limbs. This one goes with "It's always good to have a worrier in the group." Keeps everyone on their toes, and if the worrier is wrong, no harm done --- if right and no one listened, then "Houston, we have a problem." Same concepts in "Better safe than sorry" and "An ounce of prevention is worth a pound of cure."

"The devil is in the details." This one doesn't require much explanation so I'll let your own experiences speak to that, but while you dwell on it, think about this: "Take care of the details and the big picture will take care of itself." Last time I checked, the big picture was made up of lots of little details. Ever look at all the little pixels on your old TV set? Taking care of the details also has convinced me that, "You make your own luck." Consequently, while some argue that it is better to be lucky than good, I respond that if you're good, you don't need luck but it will sure look like you have it.

Since there are more things that I believe than don't believe, I have to believe in editing. So what follows is a two-minute drill of some of the other things I believe. When I think it's needed, I'll throw in a short explanation. Otherwise, you will just have to ponder it over the coming year or call me for an explanation. "Misery loves company." Not sure why, but maybe it gives folks common ground and something to talk about. "He who laughs last laughs best." Usually the joke is over at that point and if you're laughing last you are probably not the one left holding the bag on a snipe hunt.

"There is no honor among thieves." No explanation required. If they steal from others, what makes you think that they won't steal from each other or from you? Are you really that special? Same goes for liars. "Ride with an outlaw, die with an outlaw." Go along with the gang or the mob and you share the responsibility. Simple as that. That's what felony murder laws are all about so that the driver of the get-away car is just as responsible for killing the bank guard as the guy who shot him. This criminal law comparison of course reminds me of the other good piece of advice, "If you can't do the time, don't do the crime." A broader application is if you can't live with the possible adverse results, then you have no business taking the risk. Sort of like, "If you can't stand the heat, get out of the kitchen." It also speaks to taking on stressful jobs and then complaining about them. Which makes me think of the legislature again and the saying "Politics is a long road." It is indeed. Don't kick people when they’re down or celebrate too much when you are up. Long roads have bumps as well as beautiful scenery.

Now for some good 'ol West Texas ones. "Don't take your guns to town." This was a favorite saying of my mom which she usually said to me on Friday and Saturday evenings when I was a teenager. Don't go looking for trouble. It finds you often enough on its own. On the other hand, "Don't take a knife to a gunfight." Don't go looking for trouble, but be prepared for it. Sort of links in to the more hawkish viewpoint of "Peace through superior fire power." I believe that too. I also believe the old wisdom of "It don't take long to look at a red hot horseshoe." Try picking one up and looking at it close. You'll be dropping it mighty fast. Frankly, not every problem requires a research committee or study group. Look, but not too long. Take action. Remember, "Who dares, wins."

"Birds of a feather flock together and so do pigs and swine." We usually focus on the first part of that saying. Look around at the flock you are in and then take a look at some of the pigs and swine you know to see who they hang with. Along these lines, I do believe "You can tell a lot about a person by who their friends are" and "you can tell even more by who their enemies are." As for "keeping your friends close and your enemies closer," I understand the first part of this saying completely, but the second part of it only makes sense if you interpret it to mean that you need to know what they are up to. Frankly, I try to keep my enemies as far away as possible. My brother always taught me, "Never let them walk up to you" and "Keep them at arms distance." Advice for basketball players in a hostile gym, but good advice in general when dealing with the enemy whoever they may potentially be.

"Two wrongs don't make a right." Agreed. If an explanation is required, I'm wasting my time. "The means justifies the ends." Disagree. Explanation shouldn't be required. Water boarding. Need I say more? "What goes around comes around." The world is round and we do in fact reap what we sow. "To get along, go along." Actually, this makes sense in the political context if you understand that compromise is what has to eventually happen. "If it ain't broke, don't fix it." No explanation required.

A couple more good legislative-oriented quotes should be thrown in here as well. "If at first you don't succeed, try, try, try again." "The world is run by those who show up." Good things to keep in mind when fighting legislative battles. I am also rather fond of "If you don't ask, the answer is always 'no.'" Even so, there are poor politicians and others that have proven up, "You can lead a horse to water but you can't make him drink." Substitute "think" for "drink."

"Don't look a gift horse in the mouth." You have to like this one. It's a gift. No complaining allowed even if the horse doesn't have good teeth. It is still more horse than you started the day with. I also favor the adage, "You get what you pay for." Quality is usually not inexpensive and contracting with the lowest bidder has not led to impressive results in most cases I have seen. This last one ties in with, "Money talks…."

A couple of thoughts on leadership are probably appropriate for this message as well. "Loyalty is a two-way street." Believe me when I say that if it isn't a two-way street, it is going to be a very short ride and it's time to get off the road. Likewise, using another West Texas favorite, "If you take the paycheck, you ride for the brand." If you don't like where the trail boss wants you to ride or how, then quit taking the paycheck and find another ranch. "You lead from the front." People can be led, not pushed. Lead by example, because it is true that "Actions speak louder than words" and you don't want to be "All hat and no cattle." While I agree that "Two heads are better than one," I also know that "Too many cooks spoil the soup." Not everything can be done by committee. "Too many chiefs and not enough Indians." Makes me think of the legislature again, but also applies in most other group contexts. Ultimately, someone has to be in charge and others have to follow. "The buck stops here." If you are the one that takes the paycheck, becomes the chief, leads from the front by example, and are responsible for the soup --- then the final responsibility is yours. "With great privilege comes great responsibility."

Let me end with some thoughts I believe that are perhaps more serious than some of the others. "Life is fragile." We should treat it like grandma's best and oldest china. "We are not made of iron." People make mistakes and feel pain. Allow for it and don't be too hard on yourself or others. "If you aren't making mistakes, you aren't doing anything at all." Oddly enough, to me not doing anything at all is a mistake. Bumper sticker: "Life is the school. Love is the lesson." Very true. I also believe that a society is judged by how it treats its most vulnerable --- animals, elderly, disabled, and children. I think Gandhi gets credit for that one. "Do unto others as you would have them do unto you." Most of us know where that came from - "Golden Rule" for generations of believers of all kinds. For those of us that like it in somewhat more modern jargon, I leave you with it all boiled down into the best quote from the movie Bill and Ted's Excellent Adventure. It is also my parting words for the members of the TPTA: "Be excellent to each other, and party on, dudes."

The MERCI project

2008-10-30T08:59:00.003-05:00

Nursetogether has an article about MERCI, Medical Equipment Recovery of Clean Inventory, a program developed by Helen French. This program gathers clean medical waste and donates the "waste" to needy areas. The MERCI project's website has more information about what they do.

I love this project. When I worked in surgery, I hated to see good supplies be discarded just because they were "opened". I worked for a physician who would collect this medical waste and ship it to a third world country where they had limited supplies, but not everyone was doing this. I knew of nurses that would collect the suture packs that were removed from their outer wrapper, but that had the inner wrapper unopened and instead of throwing them away would give the packs to Veterinarians to use. What great "recycling" ideas. So, if your facility is throwing away good supplies, look into setting up a MERCI project.

Myths that harm nurses

2008-10-30T08:33:00.003-05:00

Be sure to check out my new article, Malpractice Insurance: The myths that harm nurses located at www.nursetogether.com This website is full of useful information for nurses including forums, chat rooms, job information and hints, articles, and much more.

"SOAH" State Office of Administrative Hearings

2008-10-02T18:31:00.003-05:00

The State Office of Administrative Hearings ["SOAH"] is where contested cases are tried between a nurse and the Texas Board of Nursing. An administrative law judge (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the Board. The nurse’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD. The PFD is then presented to either the full Board or the Board’s Eligibility and Disciplinary Committee for approval. If presented to the full Board, they will hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action. (this is taken from information contained on my firm's website)

Very few nurses ever have to go to SOAH, which is good news considering the potential pitfalls discussed above and in an earlier blog. An experienced attorney can negotiate a resolution with the BON that addresses the Board's concerns for public safety and that is acceptable to the nurse. SOAH should be reserved for those times where a satisfactory resolution cannot be reached with the Board by way of negotiation.

Nurses need to beware of attorneys that use SOAH as a means to churn fees by creating unnecessary litigation. When I worked for the Medical Board, we were well aware that certain attorneys when hired would never negotiate and the case would end up in litigation at SOAH. To us it always seemed like such a shame that a licensee would be subjected to the stress and expense of a hearing when the Board was willing to negotiate. By failing to negotiate, the licensee is subject to a drawn out process that may generate unnecessary fees and expenses and the licensee potentially risks receiving more severe restrictions. Hearings should be reserved for those special cases where negotiation fails to reach a fair conclusion to the claim.

Maybe It's Just Me

2008-10-01T17:13:00.002-05:00

I could not believe this story when I read it so I had to share it.

According to Denver News 7, "The Denver police union is selling T-shirts that poke fun at protesters at last month's Democratic National Convention." "The back of the shirts reads, "We get up early to beat the crowds" and "2008 DNC," and has a caricature of a police officer holding a baton. The front has the number 68 with a slash through it, a reference to the Recreate 68 Coalition, which organized several demonstrations during the convention."

Maybe it's just me, but making fun of a serious situation always makes me cringe. I think this is even more heinous because the people being made fun of are protesters voicing their opinions. No matter what actually happened, this "joke" makes it appear that the people were being beaten by the Police because they were expressing their views.

I have always thought that those in "power" need to be very cautious with how they are perceived because if actions are not viewed as fair and just, the system will break down (and if their actions are not actually fair and just, the system needs to be broken down and repaired). I find this every day in my practice - if the Board's action is perceived as fair and just, the licensee accepts or at least understands the action, but if there is any aspect that is unfair, the licensee believes that the Board is "out to get them."

Do Not Wait, Plan Now

2008-09-15T08:26:00.002-05:00

I have been watching local Houston news all weekend and have spoken with several family members and friends in Houston. What has struck me about this entire situation is the lack of preparation. I am not addressing situations where people had prepared, but due to circumstances their preparations were destroyed. I am shocked at people who are only out of power and how devastated they are after only a few days. What would our society be like if a major disaster strikes without warning. If the scenes on TV are any indication, things will get bad very quickly. I have addressed disaster planning previously for nurses, but it seems timely to address it again.

Nurses are on the front lines (or just behind them) of any disaster; if nurses are not prepared, the system has the potential to fall apart. Not only must you know the disaster preparation for your work place, but you must be personally prepared at all times. In the Gulf Coast, there was prior knowledge that a hurricane was on the way, but what would happen if there was no advanced knowledge? Are you ready? Do you have enough food and water to take care of your family (including pets) for at least 3 days, but preferably a month or more? Do you have previsions for losing power (batteries; battery operated radios, tvs, lights; a way to charge your cell phone)? Do you have a back-up shelter option (located in your local area as well as a distant location)? What will your family do while you are working? Do you have a contact site if communications are down? Do you have copies of all of your important papers(including your nursing license)? There is much, much more and information can be found at the Red Cross's website.

Foot Experiment for Your Enjoyment

2008-09-02T22:59:00.003-05:00

This is a fun, yet strange, experiment to try that takes just a couple of seconds (I received an email with these instructions, so I had to share).

This will boggle your mind and you will keep you trying over and over again to see if you can outsmart your foot, but, you can't. It's pre-programmed in your brain!

1. Without anyone watching you (they will think you are GOOFY......) and while sitting at your desk in front of your computer, lift your right foot off the floor and make clockwise circles.

2. Now, while doing this, draw the number '6' in the air with your right hand. Your foot will change direction.

I told you so!!! And there's nothing you can do about it! You and I both know how stupid it is, but before the day is done you are going to try it again, if you've not already done so.

Impairment or Substance Abuse Attorney

2008-08-16T10:12:00.003-05:00

What to do and where to go when you have an impairment issue? Yesterday seemed to be a day where I spoke to many different people about impairment. I spent a great deal of time speaking to one of my law partners, Jeff McDonald (I think he is incredibly knowledgeable about substance abuse, recovery and professionals and I am not the only person who thinks this). I listened as Jeff McDonald explained our firm's stance toward substance abuse and mental illness: We represent many impaired professionals, doctors, nurses, and other health care providers before their respective boards. We believe that substance abuse and mental illness are diseases and that as the lawyer for a health care provider, it is our job to do what is best for the individual. Sometimes that involves getting the provider into treatment immediately if their disease has gotten the best of them. Some attorneys will appear before regulatory boards, such as the Medical Board or Nursing Board, and deny the disease. We do not believe that this approach is in the best interest of the licensee.

So, why am I posting this information? I also had a conversation yesterday regarding how many nurses do not see addiction or mental illness as diseases, but rather a personality choice or defect and how this perception is hindering providing much needed support for their colleagues. Currently, physicians, physician assistants and acupuncturists have private, non-disciplinary rehabilitation orders that allow these professionals to get treatment but not to be punished for it. Nurses have not been able to get the same option. Now, there are steps being considered to take the rehabilitation order away from those professions that do have it. We need to fight to get the best options available to professionals to help them obtain the help they need without the stigma and punishment attached. When professionals are punished rather than supported, it does not improve the practice and it definitely does not protect the public, it forces professionals to NOT seek treatment for fear of punishment. When employers refuse to hire a nurse because she is in TPAPN or under a Board Order for monitoring, they are sending a message to those nurses thinking about getting help - "If you are responsible and seek treatment, you will not have a job." This causes the nurse to choose his/her work over his/her treatment of the disease. We can stop this and we can make our practice safer by understanding and supporting our colleagues that need help.

Should you represent yourself before the Board of Nursing?

2008-08-11T10:26:00.007-05:00

It has happened again, a nurse called wanting to know if it was safe to represent herself before the Board of Nursing. She thought that they would understand her side of the story and that although she did violate the law, they know how it is for nurses right now. She had discussed the incident with some co-workers and they told her that the Board was on the side of nurses. Thank goodness while looking on the Internet, she came across some information that made her pause and call me for further information because what she had been told was incorrect and potentially damaging to her nursing license.

There are lots of articles and blogs out there explaining the pitfalls of representing oneself before the Board. I just read Latonia Wright's blog entry about the same issue, "Are You Receiving Legal Advice from your colleagues at the water cooler?" Ms. Wright is an attorney representing nurses in Ohio, Kentucky, and Indiana. So, this issue is not just limited to one state. All nurses in all states should contact an experienced lawyer to assist them if there is an inquiry or investigation by the Board of Nurses. Please read my posts about how to pick an attorney and why a nurse needs an attorney if facing the Nursing Board.

Just because it is something to think about

2008-07-28T10:46:00.002-05:00

In the July 14, 2008 issue of NurseWeek, there is a article that I can't seem to get out of my mind as I enjoy the summer. In the Germy Truth about public swimming pools, Connie C. Chettle, RN, MS, MPH, CIC, COHN-C writes, "Fecal accidents are not uncommon in pools. Each day, up to 2 to 3 pounds of feces can be found in the water of an average-sized public pool from fecal accidents and from swimmer's bodies from improper cleansing after bowel movements."**

There is much more to the article (regarding illnesses associated with public swimming pools), but it is the part quoted above that I keep thinking about when I am sitting at a pool. Especially when I see kids sucking the water up and spitting it at each other or when someone gets a mouthful of water. Just join me in saying, "Yuck!!"

**you can read the article without having to pay for the CUE

More TPAPN and the Board issues

2008-07-11T15:21:00.003-05:00

The BON is meeting July 17-18, 2008. One of the agenda items involves the Board's Legislative Appropriations Request. This is how the Board asks for money from the state to fund their activities. One of the requests in this draft documents involves TPAPN. The Board is requesting more money because there has been an increase in the number of nurses in TPAPN. Perhaps this number could be reduced if the problems that I previously addressed with TPAPN referrals would be resolved.

The document states:

Peer Assistance Program Increase - The current peer assistance funds are capped at $625,000 to fund a total of 550 registered nurses and 225 licensed vocational nurses each fiscal year. The TPAPN program has experienced a twelve (12) percent increase of nurses in the program in fiscal year 2007 over the current cap. The Texas BON is requesting that the cap be raised by an additional $75,000 each fiscal year and be added to the Peer Assistance Strategy. This would place the cap at $700,000 each fiscal year.

TPAPN and the Board of Nursing

2008-07-11T10:00:00.004-05:00

I think it is time for a discussion concerning how TPAPN is being used by the Board. I would like to see this be a public meeting so that nurses affected and also, defense counsel are allowed to bring forward the problems they experience or see.

Personally, I am seeing too many cases where nurses that are not appropriate for TPAPN are being referred there by the Board. The nurses frequently will agree to TPAPN because they want to get the issue resolved with the Board or because they do not know what being in TPAPN involves or they do not know that there are other options. These nurses then get into TPAPN and they do not fit.

I have seen nurses referred to TPAPN that have years of sobriety (TPAPN is geared more towards new addicts) or that have no chemical dependency problems or they have mental health issues that are under control and do not require monitoring. It appears that when the Board is overloaded or not sure what to do, they refer to TPAPN; that may not be the case, but that is exactly how it is appearing. Inappropriate referrals are not a good use of TPAPN's time or resources. It is interesting to note that the annual TPAPN audit was performed and is being presented to the Board at the July 17-18, 2008 meeting. Within that audit it is noted that TPAPN staff noted that the BON is sending fewer "nurses with histories that raise questions of current impairment."

The last poll was interesting, so how about another one? This poll is for nurses that are not in TPAPN or that have never been in TPAPN. I want to know if you were offered to go to TPAPN to resolve an allegation of substance abuse or mental illness before the BON, would you understand what would be required of you in the TPAPN program? This is a fair question because the program is not explained to nurses prior to them being offered the TPAPN option.

Teenage Crimes Prevent Licensure

2008-06-23T12:49:00.003-05:00

I have been seeing several cases lately where an individual's actions as a teenager have come back to haunt him/her when they attempt to become licensed as a nurse. Frequently it is a felony offense and the individual may still be on probation for the action. I wanted to know if you think that crimes (I am referencing crimes such as possession of controlled substances or theft crimes, not murder or attempted murder) committed while a teenager should affect someone's ability to become a licensed nurse so I posted the poll to the right.

A Loss at the Nursing Board

2008-06-12T09:10:00.002-05:00

Tuesday, June 10 was the last day of work at the Texas Nursing Board for Joy Sparks, Assistant General Counsel. This is a big loss for the Board. Ms. Sparks is a smart and professional attorney. Although she did not have medical knowledge prior to working at the BON, she picked up on issues very quickly. I always found her to be responsive to requests and willing to consider "our side" of the story. She spent many years at the Board and is now moving to another area of administrative law. Her new agency is very lucky and she will be missed.

Nightmares

2008-06-01T20:13:00.002-05:00

It has been a very busy time and so I have been a little delayed in getting posts done. I had a heck of nightmare the other night: I was arrested and I kept telling the Police that I had done nothing wrong but they continued the process making comments like "Yeah, right that is what they all say." When I told my husband, he said the cause of the nightmare was obvious because I am dealing with several cases where we keep telling the Board that they have the facts wrong and that the nurse is actually innocent or that the nurse did something so minor that it does not require action by the Board. Sometimes the Board listens and the case is dismissed and sometimes they don't and we continue in the process.

I get frustrated these days by what I see as the Board forgetting their mission, "to protect the public" because protecting the public means more than disciplining nurses. Too often I see punishment rather than regulation from the Board; regulation can occur without discipline. And, then what ends up happening is that good nurses either quit nursing out of frustration with the Board's reaction or they unable to obtain work because they are under a Board Order (the assumption is that the nurse must be bad if they are being regulated by the Board and thus, no job). How is the public protected if there are less nurses practicing?

Think that this does not impact you? It can. Once again, I spoke with a nurse who was shocked to be under investigation after years and years of nursing practice. She made an error but it was due to some specific mitigating factors that are unlikely to occur again. Unfortunately, her error will probably result in disciplinary action. If it can happen to a nurse like her, it can happen to you.

Happy Nurses Week

2008-05-05T04:14:00.002-05:00

Happy Nurses Week.

I always liked the recognition when I was working and the food and little give-aways were nice, however, what I really liked was when a patient and/or family recognized the care being given to them. I don't mean gifts or cards or even verbal thank-yous, but that feeling you get when you know that someone else recognizes that you are not just there doing a job, earning money, but that you really care about what happens to them and that no matter what the outcome, you worked as hard as possible to make a difference. Sometimes the recognition was a look, a smile, a hug and maybe it was verbal.

So, here is a written thank you to all the nurses out there...THANK YOU FOR DECIDING TO BECOME A NURSE AND FOR STEPPING FORWARD TO CARE FOR ALL THAT DESPERATELY NEED YOU!!!!!

Another Nurse Bites the Dust

2008-04-24T09:52:00.002-05:00

I just spoke with a nurse who is taking steps to stop nursing. This is a nurse who properly cared for a patient and documented his care throughly. His level of care was excellent and he constantly watched the patient and intervened appropriately. But, the patient was transferred to acute care three days later and the BON is looking at every nurse involved. We explained the level of care that this wonderful nurse provided and the BON is still stating that SOMEHOW he did not follow policy and procedure and that what he did three days prior contributed to the patient's transfer and ultimate demise.

Understandably, the nurse is frustrated and worried. He is looking at other occupations because he can't believe that his care of the patient is being scrutinized. So, once again, we will loose a qualified, skilled nurse due to the unfairness and unreasonableness.

So much for protecting the public.

Don't Miss This!!!!

2008-04-14T17:55:00.003-05:00

At this week's Board meeting, the Board is presenting its proposed Disciplinary Sanctions for various violations. You must read this while understanding that these sanctions may be imposed on you in the future. Do not dismiss this because "I am a good nurse. I will never get in trouble with the Board." Many of my clients fell into this group; they are very good nurses that either made an error or found themselves subject to a violation because of actions outside of their control. I find some of these propositions troubling because the least intrusive of the sanctions are still heavy handed and do not allow for dismissal. Please review this immediately and be ready to comment when the proposed matrix is published.

How does this help the public?

2008-03-31T10:33:00.003-05:00

I have been receiving several phone calls regarding Office of Inspector General letters informing nurses that they may be excluded from the Medicare/Medicaid program. I discuss this on my Information for Nurses blog, but I wanted to address the underlying issue of the over intrusive government (both state and federal). When the OIG first began the exclusion, it was for providers that defrauded the government and the exclusion would seem to be warranted, but the exclusions have exploded.

Now, when we are in the middle of a HUGE nursing shortage, nurses are facing exclusion for a large variety of reasons that have nothing to do with fraud. This is nothing more that yet one more governmental entity getting a bite of the nurse when an issue arises. How many entities does one nurse have to face over one issue?

It is an election year, encourage your state and federal legislators to stop this overreaching. They are harming the public, not helping. We do not need more governmental control, we need less. Administrative Lawyers, such as myself, know that an agency/regulatory entity is only as good as the people working there and even then, they could be hindered by policies or supervisors.

Another burden for Disciplined Nurses

2008-03-27T09:17:00.004-05:00

Every nurse used to be worried about their name showing up in the Board's newsletter. That worry is still present, but now there is an additional burden for the disciplined nurse to endure; their Agreed Orders are available online for all to review. No more just seeing numbers and wondering what the nurse did, but now the facts are available for review.

My hope is that there will be positive outcomes from this additional information. I hope that nurses will recognize how vulnerable they are while practicing and become more involved in advocacy for nurses to limit disciplinary actions against nurses for minor violations. I also hope that nurses will realize that another nurse that has been disciplined by the Board is not a "bad" nurse and that after reviewing the facts, they realized that they have also been in the same situation and that only luck prevented them from ending up with disciplinary action. Just a note - I am not saying that there should not be regulation because there are often valid reasons to discipline licensees; my concern has always been a just review of the facts of the case and if the FACTS show a valid concern for the public's safety, then the application of appropriate discipline to protect the public.

My hope is always that nurses band together to provide a united front against those that are a danger to the nursing profession. Too many nurses are leaving nursing because of unjust actions and non-support from their fellow nurses. Nursing is a grand profession and nurses deserve respect from everyone including fellow nurses.

Justice for a Nurse

2008-03-06T17:41:00.002-06:00

Back in December I posted a message about the Texas Board of Nursing Investigator who refused to obtain documents that would help show my client's innocence in a case. I had to request a subpoena in order to get the needed documents and when I received the records and reviewed them---the records support exactly what my client said happened!!! The issue is that if the investigator was being non-biased and fair, she would have obtained the records when requested rather than having me request a subpoena to obtain the information. This situation makes me worry about nurses that do not know to hire an attorney and when faced with similar circumstances, give in and accept discipline when they are in fact, innocent.

I also want to point out that my experience with this investigator is not universal at the Texas BON. I have dealt with several investigators over the years, including one today, that are extremely helpful in obtaining information that the nurse needs. They understand that their role is to be open to both sides of the story and to obtain all necessary information prior to forming an opinion. They truly investigate a case. But, until the BON makes all investigators adhere to a non-bias, fact finding method of investigation, the potential remains for an innocent nurse to be wrongly disciplined.

In Celebration of Nurses and Black History Month:

2008-02-26T09:22:00.001-06:00

In 1793, a yellow fever epidemic gripped Philadelphia, PA (at that time, the temporary capital of the newly established US). The cause of yellow fever was unknown and it was laughable at the time that something as small as a mosquito could kill a human. Many thought it was contagious and they isolated the infected. The citizens left Philadelphia in droves, which left many desperately ill with no one to care for them or increasingly when they died, no one to bury them or care for their orphaned children.

Yellow fever patients in advanced stages would bleed from their nose and gums and because their intestines would also bleed, the patients would vomit noxious black bile. This presentation made it difficult to care for the sick.

“The vomit that yellow fever patients spewed forth, as well as the blood and offensive odors, were particular horrors to most people, even those medically trained. Young Dr. Isaac Cathrall found these bodily discharges disgusting: ‘The matter ejected [from the stomach] was of a dark color, resembling coffee grounds, sometimes mixed with blood; great flatulency; hemorrhages from different parts of the body; tongue frequently covered over with blood... urine very offensive.’” [An American Plague: The True and Terrifying Story of the Yellow Fever Epidemic of 1793, by Murphy, Jim. Scholastic, Inc. 2003, p. 53.]

Although subjected to slavery and discrimination by those now needing help, the members of the Free African Society stepped forward and cared for the people of Philadelphia. During the yellow fever outbreak, the black nurses, male and female, out numbered the white nurses. “Since the people they helped were usually poor, the black nurses often stayed and helped a person for no money at all.” [An American Plague: The True and Terrifying Story of the Yellow Fever Epidemic of 1793, by Murphy, Jim. Scholastic, Inc. 2003, p. 51.]

“Dr. Cathrall flatly refused to touch the vomit of a patient for any reason, as did most other people; the black nurses, however, had o choice. Their job, after all, was to care for and clean up the patients.” [An American Plague: The True and Terrifying Story of the Yellow Fever Epidemic of 1793, by Murphy, Jim. Scholastic, Inc. 2003, p. 54.]

I read about the yellow fever epidemic of 1793 in a intriguing book An American Plague: The True and Terrifying Story of the Yellow Fever Epidemic of 1793, by Jim Murphy. This book describes the progression of the epidemic and the huge impact it had on the entire town and even those towns surrounding Philadelphia. Within the book are descriptions of selfless individuals that stepped forward to help when it was unknown whether their kindness would be rewarded with their own development of yellow fever. With all the current discussions about potential pandemics, I found this book very interesting.

Texas Nursing Board Attorney

2008-02-19T10:31:00.003-06:00

I just spoke with a nurse that had hired a lawyer from her hometown to represent her before the Board. The attorney had never been before the Board, but assured the nurse that her that "it could not be too hard" and that he would have no problem. The disciplinary sanctions the nurse agreed to based on the advice of the attorney were not in line with what the incident warranted. It was obvious that the attorney did not understand what information must be presented to the Board. The attorney told the nurse to sign the Order (agreeing to the disciplinary sanctions)and that they could negotiate the terms afterwards. This was bad advice because it is difficult to modify an Order once it has been agreed upon. The nurse also stated that it was difficult to speak to the attorney and that when she did speak to him it was as though he did not remember her.

The nurse was distraught and asked how was she supposed to know the difference in attorneys. I explained that attorneys can specialize much in the same manner as doctors. While obtaining a law license enables a person to practice in any area, most attorneys focus on one or just a few specialties in order to gain expertise. Each area of law has constant changes due to case law, new rules, new regulations, new policies and new statutes being put in place, so attorneys must maintain their education. If an attorney focuses on too many areas of law, it becomes difficult to stay current in all of the areas.

Administrative law has another level of specialty in that lawyers also need to know the various state agencies, their procedures and their staff. Inexperienced lawyers frequently underestimate the importance of this knowledge. So, how does a nurse determine whether a lawyer is experienced? Look at the attorney's background. Look for a lawyer that is focused on the Board of Nursing. Ask what other areas of law they practice. Ask if they are Board Certified in Administrative Law. Go to the State Bar website and look up information about when they graduated and what area they indicate as their area of practice. Ask how many years they have been representing nurses before the Board.

Another area of distress for the nurse that I spoke with. She asked what I charged to represent nurses before the Board and she said that she paid $1500.00 more for the attorney she chose. Be an informed consumer and check out your attorney's credentials and chose wisely.

Maybe I am Naive

2008-02-12T15:30:00.000-06:00

I just read an article about Firefighters being attacked in England. Maybe I am naive, because I was shocked to read that some people are even starting fires and then attacking the firefighters when they show up to respond to the fire. I have heard about EMS, fire and other emergency workers being threatened when they arrived to provide care to a crime victim, but this article talks about situations that have increased in violence. Scary read for those in health care.

Do You Need an Attorney for the BON?

2008-02-02T11:42:00.001-06:00

I just received a call from a nurse in another state. She asked if she needed an attorney to represent her before the Board of Nurses in her state. She said that she thought if she just told the Board everything that she would be okay. Just in the short amount of time she took to explain her situation, she brought up several areas that would cause the BON concern and several things she brought up had nothing to do with the allegations against her. She was also very angry and then started crying.

I explained that almost every case a nurse going before the BON (in any state) should at least consult with an experienced attorney and in most cases, the nurse should hire an experienced attorney to assist with the BON. I told her that the Board is not there to protect or assist her, but to protect the public. I told her that an attorney can watch out for areas that have nothing to do with the allegations, but that are issues the nurse should not bring up; that an attorney can help the nurse in understanding the process and the easiest way to navigate the system and address the allegations; and since the attorney is not emotionally involved in the situation, the emotions do not become an issue.

I gave the nurse a couple of names of attorneys that I knew represented nurses in her state and then told her that she could contact The American Association of Nurse Attorneys or her state Nursing Association or the State's Bar Association for a referral. I also told her that doing an online search can give her some information as well. I told her to be sure that the attorney she hires is experienced in representing nurses before the BON (look at my other blogs for more info on how to do this).

Just like the disclaimers on TV: DO NOT ATTEMPT THIS ON YOUR OWN!

10 Ways a Ron Paul Presidency would Affect Health Care

2008-01-30T17:19:00.000-06:00

I found this discussion about Ron Paul in another blog. I find Dr. Paul very interesting based on my experiences dealing with state government as an administrative lawyer. Based on those experiences I am in favor of anyone that supports LIMITED governmental involvement in our lives. Go have a look at "10 Ways a Ron Paul Presidency would Affect Health Care" because Dr. Paul has some interesting ideas. Some of his ideas are a direct reflection of the issues he has faced as a health care provider.

Lawyer for Texas Medical Board

2008-01-20T22:09:00.000-06:00

I have received calls from physicians that find my blogs asking me to represent them before the Texas Medical Board. I refer physicians to one of my law partners, Tim Weitz, Jeff McDonald or Jon Porter. Please go to our website at www.healthlicensedefense.com to read the bios of each of my partners.

Nursing Board Investigations-Helpful Hints

2008-01-15T14:23:00.001-06:00

There is a very good article in the December 2007 "Nursing That Works" newsletter. In the article, "When the State Board Calls: "Part I: Guidance from Nurse Attorney, Latonia Denise Wright" by Diane E. Scott, RN, MSN, Ms. Wright is asked multiple questions about Board of Nursing Investigations. The recommendations are straightforward and helpful.

Ms. Wright points out that nurses should strongly consider hiring an experienced attorney to assist them before the BON because the adverse effects of representing oneself can be detrimental. The next issue will feature an interview with an Executive Director of one of the BONs.

Protecting Yourself

2008-01-07T16:18:00.000-06:00

My article "Protecting Yourself: What to watch for if the Board of Nursing comes knocking" was just published in the December issue of Advance for Nurses. In the article, I give some basic tips for dealing with the BON.

Nurses Eat Their Young and Others As Well

2007-12-12T09:21:00.002-06:00

We are all familiar with the saying "Nurses Eat Their Young" and unfortunately, I have seen many examples of this behavior. It is not limited to new graduates. It can strike anyone.

I just read this editorial in Advance for Nurses about horizontal violence by nurses. The piece mirrors what I have been speaking about in seminars - that nurses need to be supportive of each other and that other professions support each other, so why can't nurses. Be sure to read the article for more insight into this behavior.

I have seen too many cases of nurses turning against one another and going out of their way to sabotage another nurse's career. Nursing is a profession and as such, nurses should treat each other with respect and support. These attacks should not only be reported in writing to administration, but every nurse should police their work environment so that such a hostile environment is not allowed to thrive. I have never understood how such a giving and caring profession would allow such ugliness to exist within their ranks.

How the BON Wrongly Investigates Nurses

2007-12-06T18:19:00.001-06:00

I cannot believe that this happened. Today I requested that an investigator obtain records from a hospital to help show that my client did not divert medication as accused (we don't have subpoena power). The investigator told me that she had the evidence required to substantiate the allegations against my client. I explained that the evidence was incomplete and that based on how the facility handled wastages in order to show my client's innocence we needed the additional records. The investigator refused.

On the Board’s website under “Investigatory & Disciplinary Process”, it states that “[o]nce all necessary evidence has been obtained to either substantiate or refute the allegations, the investigations team reviews the evidence in order to “determine whether or not probable cause exists.” So much for obtaining evidence to refute the allegations. There are actions I can take and I plan on pursuing this fully.

I was shocked that the Board would not be interested in obtaining the truth. This is not an investigation. This is looking only at information that convicts a nurse. This is proof once again that the Board is not on the side of nurses. This is also why when you see a nurse's name in the newsletter, you should not assume that the nurse is "bad" because there are many factors that go into the Board's actions. Just because they are the government does not mean they are right and just.

The BON is not your friend

2007-11-26T11:53:00.001-06:00

I just heard from another nurse that initially thought the BON was there to protect nurses and was a friend to nurses. The Board's mission is to protect the public, not nurses. An additional note - if you are going to hire an attorney, DO NOT speak to the Board staff about your case. You can potentially harm your case because you are looking at the situation with emotion and you respond with emotion. The BON keeps extensive notes regarding these conversations.

Using Formal Charges as Intimidation

2007-11-15T14:37:00.001-06:00

Once again, I have heard from a nurse, distraught over their case with the Board of Nursing, who is threatening to leave nursing (and the alleged complaint is SO MINOR) because of their interaction with the Board's investigator. I always hate when I hear these type of stories because it reeks of unfairness and manipulation: A nurse is unsure whether the nurse wants to sign an Agreed Order with the Board and expresses that to the Board investigator. The investigator replies that if the nurse does not sign the Order, then FORMAL CHARGES will be filed. The nurse thinks that this means that the case will then proceed to a judge, which may be very terrifying to the nurse. Actually, the Texas Board of Nursing files Formal Charges within their agency, not with the State Office of Administrative Hearings. The Board says that they do so that the public is informed of the nurse's actions and thus can be protected from the nurse while the administrative case continues through the regulatory process. But, when you look at the cases where formal charges are file and the timing of those filings, I begin to suspect that the filing was more of an intimidation play rather than a protection of the public.

The good news is that most of the investigators at the Texas Board of Nursing do not function in this manner, but the few that do cast a bad light on the entire agency. I have always thought that regulators accomplish more and receive fewer criticisms if their actions are professional, fair and just. It involves looking at the allegations and determining whether the actions or inactions warrant restrictions in order to protect the public and then what degree of restrictions are required in light of the violation and the mitigating factors.

Regulation means to control or direct according to law or rule. The Nurse Practice Act under Sec. 301.416 states that if the Board determines that the reported conduct does not indicate that the continued practice of nursing by the nurse poses a risk of harm, the Board does not have to continue with the investigation or to file formal charges. So, the Board can be effective in the regulation of nurses without having to punish every error or incident. This ensures not only that the public is protected from nurses that are really a threat, but it also ensures that nurses do not stop being nurses (which protects the public by having enough nurses to care for patients).

Will you sit by or be part of the solution?

2007-11-06T11:21:00.000-06:00

I just posted on two of my blogs information about the new Peer Review rules proposed by the Board of Nursing, but I can't help but wonder how many nurses will take the time to review the rules and if there is something in the rules they like or dislike will take the time to comment to the Board. One of the biggest problems facing nursing and its advancement is the lack of advocacy by nurses. Too often nurses are not informed and do not participate in decision-making that directly affects them. Nurses must be informed, involved and vocal; if not individually, then by part of a nursing association.

The Boards Need Changes To Be Fair

2007-10-30T12:30:00.001-05:00

If you want to listen to the broadcast of the Appropriations subcommittee regarding the Texas Medical Board, go to the Texas House of Representatives and click on the 10/23/07 link. My law partner, Tim Weitz, chose to testify and you can hear his comments at about 6:64. Tim's comments are appropriate not only for the Medical Board, but also other regulatory boards such as the Texas Nursing Board.

For example, currently if a nurse(or doctor) goes to a contested case hearing with the Board at the State Office of Administrative Hearings (SOAH) and the Judge finds in favor of the nurse, the case still goes back to the Board for final determination. It has happened many times that the Board imposes their determination for that of the SOAH Judge, which means that the nurse spent money and time for the same result. The nurse's only recourse is to take the case to District Court. The fair way of resolving these cases as Tim explains to the Subcommittee is to have SOAH be the final decision maker and then either party (the health care provider or the Board) can appeal.

Another problem specific to the Texas Nursing Board is that the Board files "Formal Charges" within their agency, but this does not mean that the Board has submitted the case to SOAH and the procedure rules do not apply until the case is filed with SOAH. The main problem is that once these Formal Charges are filed, the charges are published online in the verification system. The problem with this is that the matter has not been resolved, it has not been submitted to SOAH, but it is now public knowledge.

Tim also points out ideals for regulatory agencies to follow. One of those is his statement that "Regulation does not always mean punishment." The idea that not every violation deserves regulatory action. Nurses need to pay attention to what is going on with the Medical Board because it may end up impacting nursing practice as well and if there are some legislative changes to improve the regulation of physicians, nurses need to be ready to request those changes for their agency as well.

Remember that knowledge is power and the first step for nurses to gain power in their occupation is to become knowledgeable about the laws governing the practice and then to join together to make the changes needed to fix the problems.

Meeting Involving the Texas Medical Board

2007-10-22T09:41:00.000-05:00

The meeting scheduled for tomorrow at 10 am is turning out to be much more than originally thought. I received an email from the Medical Board's Public Information Director. Ms. Wiggins provided the following article involving the meeting, "Texas Medical Board to be Questioned at Hearing." This really seems to be shaping up to be an interesting meeting that all doctors and anyone else interested in the Texas Medical Board should consider attending.

Texas Medical Board House Committee Meeting Scheduled

2007-10-19T15:56:00.000-05:00

I just found this upcoming committee meeting which is scheduled for next Tuesday. It is interesting that the committee is going to take testimony about the Texas Medical Board when it is outside the Legislative Session. Sounds interesting, let your physician friends know that this may interest them.

COMMITTEE:

Appropriations-S/C on Regulatory

TIME & DATE:

10:00 AM, Tuesday, October 23, 2007

PLACE:

E1.030

CHAIR:

Rep. Fred Brown

The Subcommittee will meet to take invited and public testimony regarding
the Texas Medical Board.

CEU gone BAD, BAD, BAD

2007-10-19T11:19:00.001-05:00

The Texas Board of Nurses has adopted the new CEU rules I warned you about in a June posting. The new rule allows the Board to refuse to renew a license if the nurse does not comply with continuing education requirements. Besides the complaints I had in that posting, I also question the legality of taking away a license without notice and a hearing. Since there were no comments about the proposed law and there were no complaints about the broad application of section 301.303(a) Nurse Practice Act, the rule will stand until there is a rule challenge.

The lessons to be learned here are to join organizations that monitor proposed rules and legislation and be sure that those organizations reflect your concerns about nursing practice AND be sure that your address is current with the Board so that you get all notices AND be sure to keep up with your continuing education credits and any audits.

The Nurse Police

2007-10-17T15:43:00.001-05:00

Be sure to check out my new article "The Nurse Police". I explain the role of Nursing Boards and some basic steps nurses can take to protect themselves.

Think for Yourself!

2007-10-05T17:11:00.001-05:00

I was driving home last night listening to a talk radio show. On the show the host was discussing whether a woman that had a mastectomy due to a misdiagnosis should be allowed to sue the doctor for a simple error. The host continued his discussion stating that simple errors should not be cause for litigation and that since the doctor did not intend to misdiagnose the woman, the doctor should not be sued. The host was getting very animated with each caller, discussing how he never sues anyone and that we are all litigation happy. The various callers were discussing how they would either only give the woman the cost of a "boob job" or give her nothing. The host was using all of this to continue to project how we need reforms and that lawsuits cost us all. He would spend a great deal of time with the callers that were agreeing with his premise of too many lawsuits, continuing to ask them questions to draw out more discussion about how this woman deserved no or little money.

I had heard the woman earlier that day describing what had happened and knew that the talk show host had key facts wrong. I called in and waited to talk to the host.
Since there had been discussion about the most this woman should expect to compensated was for the cost of a simple "boob job," I felt compelled when I FINALLY got on the air to discuss this misconception. I explained that the woman was facing extensive reconstructive surgery , not a simple breast enlargement and that her breasts would never be the same as they were before. I explained that women can have significant complications after reconstructive surgery so there was nothing simple about it.

I then proceeded to tell the host that this was not a simple error involving a doctor, instead it was a lab cutting corners and performing multiple tests at once to save money. And that due to the cutting corners, two women have been injured - the one who had the mastectomy and did not have cancer and the woman who did have cancer and has gone untreated for many months. The host then made a statement that surely I was in favor of cutting costs. When I replied, No, not when it ends up inflicting damage on people and I also added that there are continued cost cutting even when the corporate revenues are up and that patients are the ones being harmed and they have no recourse in many situations, but I was hung up on so that it seemed that my last statement was No, not when it ends up inflicting damage on people.

So, the radio station/host was editing people's comments to promote their agenda of too many lawsuits. Instead of allowing me to discuss the issue completely, they hung up on my call. I continued to listen and noticed that I could often pick out exactly when they hung up on other callers that disagreed with the host.

I thought here is another example of how the media is crafting what we hear and see to lead us to their ideas. They are not interested in the truth, but rather what makes better entertainment. I have been present when a person was interviewed for a story, yet when I watch the interview on TV the context is vastly different than what the reality was.

Once again, as nurses you have a scientific mind and you should utilize that mind to question what you are told and shown. Be an individual and investigate the truth. Make up your own minds and take action based on what you know to be right. Others are looking to you to be a leader or at least completely informed. Just because a co-worker, or administrator, or physician or a talk show host tells you something, you must decide for yourself what is correct. If you do not have enough information to determine what is the truth, investigate it until you are an informed nurse.

Just my Thoughts. You don't have to agree and that is the point of this entry.

Nurses! Please help each other

2007-10-01T09:19:00.001-05:00

I saw something the other day while I was waiting at a stop light. Off to the side, a man was jogging and he stopped to move a large tire that was in the middle of the access road. It was not his responsibility, he was not hired to move tires. It was not his tire, he was just jogging by the tire. But, he took it upon himself to protect others, to ensure safety.

That is the type of mindset all health care providers (and really, all of humanity) should have - if you see something that requires action, just do it. I have seen people waste more time complaining about a situation or trying to find out who is responsible than if they had just taken the initiative to fix the problem. This would also help morale. It is proven that people get a rush when helping others (there is more of a rush, if the help was given and not asked for).

So, Just DO It! And maybe start decreasing errors and start increasing job satisfaction.

Will I lose my license?

2007-09-24T08:45:00.001-05:00

This is always a question I get asked by nurses facing investigations by the Texas Board of Nursing. It comes from seeing so many names in the Board’s newsletter that have been revoked or suspended. The majority of nurses listed in the revocation section are there because they did not respond to the Board’s inquires or they allowed their case to proceed to a hearing and they failed to show up at the hearing. A few may not have even known that the Board was investigating them because the nurses failed to keep their address current with the Board and thus never received notification of the investigation/hearing.

The Board usually seeks revocation or suspension in cases where there is a concern for patient safety, such as an addicted nurse that is not in good recovery or an incompetent nurse that cannot be educated. If there is a violation, most nurses receive stipulations, not revocation. However, the amount and type of stipulations depends on how a nurse presents his/her case to the Board, which is why it is important to seek appropriate legal counsel.

Suing Nurses

2007-09-04T17:06:00.001-05:00

There is a good article that just came out - "Malpractice Suits Against Nurses On The Rise". They also suggest that nurses carry malpractice insurance, which is something I repeatedly tell nurses. Even if you are not sued for malpractice your chances of being reported to your state licensing board have also increased and malpractice insurance would help with legal representation costs.

Does the Nursing Board consider a nurse guilty when he/she has an attorney?

2007-08-29T08:50:00.001-05:00

No. I previously worked for the Texas Medical Board and I know that whether you have an attorney or not does not impact how your case is viewed - the Board has received a complaint and they must investigate it. This seems to come up frequently and it may be one of the causes as to why so many nurses go before the Board unrepresented (a VERY RISKY thing to do).

LaTonia Denise Wright, R.N., a nurse attorney that represents nurses in Ohio, Indiana and Kentucky, also discusses this issue in her "My 2 cents worth"blog

More Nurses in Trouble with the Nursing Board

2007-08-09T10:20:00.001-05:00

Two other Nurse Attorneys have pointed out on their blogs/websites that there has been an alarming increase in Board of Nursing actions against nurses. On Constance Morrison's website the following is posted:

Did you know:
An alarming trend is that the numbers of state board of nursing actions against nurses has been steadily increasing since the 0.2-0.3 percent of all United States registered nurses who were annually disciplined at the turn of the twenty-first century (Benner et al., 2002). At the same time, the numbers of nurses who have had increased responsibility and accountability in their scope of practice have also faced intensified scrutiny by these same boards of nursing.

In her blog "My 2 Cents", LaTonia Denise Wright notes some personal experiences:

This is an alarming trend especially considering there is a documented need for more nurses across the country to practice in a variety of settings. Maybe Congress and the state legislatures when considering studies and funding for nursing schools/colleges, centers of nursing, and the lack of nursing faculty should also consider the following: Are we recruiting potential nurses only to have these nurses disciplined at some point in their career by a state Board of Nursing?

This does not even take into account criminal convictions (misdemeanor and/or felony) and the legal headaches faced by nursing students who have criminal convictions and then apply for initial licensure in a particular state. Or licensed nurses who face disciplinary investigations for a criminal conviction (misdemeanor or felony) even if unrelated to nursing practice in some states.

I had a family member of mine inquire about nursing school last week. She has several misdemeanor convictions from several years ago but no felony convictions. I advised her if she does enroll in nursing school and complete her education that depending on the state where she seeks initial RN or LPN licensure, she may need legal representation, counseling, and advising. I don't think she plans to apply now and if she does I will counsel her to seek initial nursing licensure in an appropriate state.

Should a new graduate and newly minted nurses start his/her career on probation with a Board of Nursing (depending on the Board of Nursing, this is akin to being "on criminal probation" or "on criminal parole") or with "action" against his/her license prior to the first day at work?

What a way to welcome new nurses to the practice of professional nursing!

I have found the same changes in Texas. I have been representing nurses before the Texas Board of Nursing for over 10 years (it is the only type of law I practice) and I have seen a big change in the way the Board of Nurse Examiners reviews complaints against nurses. It seems like the worse the shortage, the harsher the approach to regulation or perhaps it is in relation to the conservative political environment of the Board currently. It is distressing to see nurses disciplined when the discipline does nothing to protect the public, but only serves as punishment. I have always considered administrative law to be concerned with public welfare and not punishment.

The public, and the Legislature as well, is misled by ALL regulatory boards into acquainting disciplinary actions against licensees with public safety. So the public and the Legislature sees the names of licensees that have been disciplined or they see the number of board actions and they assume that their safety is being protected. The correlation is just not there. Too often I have seen fine health care practitioners disciplined for a problem with documentation years ago--where is the public safety concern? When the practitioner provides evidence of a lack of intent, of self-policing, and of correction of the problem with documented proof of improvement, the response from the regulatory agency is that they are glad the practitioner fixed the problem, but there was still a violation and they must punish that violation.

The Legislature could fix these problems. They could rein in the extensive power regulatory agencies have, but first they have to recognize the issues and then they have to want to correct the problems. What seems to happen is that the Legislature is very busy trying to do a large amount of work in a short time period and they rely on the very people they should be reviewing to provide insight into how their agencies are functioning.

But how can we hope to make these changes when we don't take the time to be informed or to be active in issues that matter (not whether Lindsey Lohan is in rehab or not and what is Paris Hilton doing or details about Anna Nichole, Tom Cruise, etc. etc. etc.). Those in power like it when the "people" are distracted and non-participatory. The lack of involvement allows for easier governing (akin to forcing a baby to go with you to the store compared to forcing a toddler who doesn't want to go). So, if you don't like where nursing is going, whether it is the Board of Nursing, the workplace situation for nurses, the pay for nurses, whatever, get involved and make a difference. Join nursing organizations, make your ideas known, get others involved, and don't be a sheep.

Complaint before the Board of Nurses

2007-08-07T18:55:00.001-05:00

I just spoke with a Board Investigator. Apparently they have had 2 investigators leave recently which bumps up the caseload per investigator to almost 200 cases. Most of my cases are taking 1-2 years to be resolved and it looks like it is just going to get worse. This makes it extremely frustrating for nurses under investigation because for 1-2, maybe even 3 years, the nurse is under constant stress from the pending investigation.

And now, the Board is in the process of getting background checks on every licensed nurse. This is only going to add more cases to an already bottlenecked situation. There are solutions but they are going to have come from the Legislature, which means that the issues have to be presented by nursing associations and advocates.

Renewal Dangers

2007-07-20T22:44:00.001-05:00

There is a new trap waiting for the unwary:

The Board of Nurses is getting fingerprints on every licensed nurse that has not already submitted fingerprints and they are also conducting CEU audits. So, if a nurse waits until a couple of weeks prior to the end of his/her renewal period, the nurse might be without an active license to practice with.

Don't be fooled by the Board's wording about "delinquent" licenses, if a nurse does not have an active license, he/she cannot work as a nurse. There is no grace period while the license is delinquent. The Board does not function like creditors where delinquent means that you are just late paying, delinquent for the Board means so much more.

Nurses be sure to renew 2 months prior to the expiration of your license and get those CEUs certificates organized to be sure that there are enough CEUs. Worried about your past criminal history and the effect on your license? Contact an experienced Administrative Lawyer with experience before the Board of Nursing.

The Board Wants a Forensic Psychiatric Evaluation and Polygraph

2007-07-05T12:25:00.001-05:00

The Board of Nurse Examiners has sent a nurse a request to obtain a forensic psychiatric/psychological evaluation and/or a polygraph examination, what should the nurse do? I have found that in some cases an evaluation and/or a polygraph are not warranted. The examinations are expensive and time consuming, so I do not recommend them unless there is a need based on the facts of the nurse's case.

I am also careful on which evaluator I recommend to the nurse. There are some evaluators on the BNE's list that will almost always find fault with the nurse. I prefer to use an evaluator that is middle of the road, that looks at the facts and findings and issues an opinion without taking the side of the Board or the nurse.

The best response to a request for a forensic evaluation and/or a polygraph examination is to contact an experienced Administrative lawyer immediately. See the post on "The best attorney for the job" and "Representing Yourself before the Board of Nurses".

Google ignores Nurses

2007-06-30T14:28:00.001-05:00

Google set up a new advisory group on health care, but they failed to include a member of the largest health care providers-- A Nurse. See the press release at google. Lots of doctors, but not one nurse. Nurses continue to be left on the sidelines. This is another example of why nurses need to become politically powerful. Nurses need to join together and become a force to be reckoned with so that when someone is looking for input on health care issues, they automatically think of consulting with a nurse as well as a physician.

My employer will pay for my legal representation

2007-06-28T12:31:00.001-05:00

I just spoke with a nurse who was under the common misconception that the employer will pay for the nurse's legal representation if the nurse is sued or reported to the Board because the employer carries malpractice insurance for the nurse. The glitch is that this nurse no longer works for the employer and the nurse is now without insurance coverage. It is too risky and costly to rely upon your employer's coverage, all nurses should obtain their own malpractice insurance coverage that also covers regulatory/licensure issues.

Recently I spoke with two nurses that were surprised that the malpractice insurance they thought was an unnecessary expense (but one they felt they should go ahead and pay) ended up paying for my representation of them before the Board of Nursing. I read in a forum post that this one nurse thought attorneys would cost around $40 -$100 an hour. However, most attorneys (depending on multiple factors like location, specialty, certification, years of experience etc.) charge $150 - $500 an hour. It is such a relief to be able to afford the legal representation you need and must have. Please get insurance today so that it is there if you need it.

You Have To Look At This...

2007-06-26T18:28:00.001-05:00

Go have a look at the blog "Running with Scissors". There are some incredible pictures shown on the blog that were taken inside the Nurse's Chapel in Westminster Abbey.

Your Job or Your Conscience?

2007-06-26T14:43:00.001-05:00

There is a recent news story about 3 nurses in Mesquite that were fired for refusing to accept patient assignments:

Fired nurses protest at Mesquite hospital

Mesquite: Hospital defends action as ICU patient ratio debated
12:00 AM CDT on Saturday, June 16, 2007
By KIM BREEN / The Dallas Morning News
kbreen@dallasnews.com

"Three nurses who say they were fired from a Mesquite hospital after refusing what they believed was an unsafe patient load are trying to bring attention to what they consider dangerous understaffing.
Nurses Diana Sepeda, Nancy Friesen and Sandra Taylor said they were fired this month from Dallas Regional Medical Center – formerly the Medical Center of Mesquite. During a night shift in the hospital's ICU in May, each nurse refused to take on three patients because they did not think they could provide adequate care...."

The article continues with a discussion of what the nurses found, what they did, what others think they should have done and what they are doing now. One of the statements in the article references that the nurses should have invoked "Safe Harbor Peer Review" because this would protect them in the workplace and before the Board. There are multiple problems with this recommendation: Safe Harbor does not protect nurses from lawsuits; the Nurse Practice Act 303.005 also states that nurses cannot be disciplined by the Board while the Peer Review for Safe Harbor is pending, but if the Peer Review committee determines that a nurse's action does not apply or is not related to the Safe Harbor request, the nurse may be disciplined; and although the employer cannot take retaliatory action against a nurse invoking Safe Harbor, the employer tends to wait awhile and then find a reason to terminate the nurse. Safe Harbor may be helpful for nurses, but I have only seen one case where it benefited the nurse: the nurse was still terminated for her actions, but when the Board asked her during a disciplinary proceeding about Safe Harbor, she produced her copy of the form she submitted to the employer and the Board dismissed the case, but the nurse had still lost her job and the problems continued at the facility.

There are multiple problems that need to be addressed for nurses and it is very difficult to do this on your own. Please join nursing associations and then push the associations towards the issues that concern you. See my discussion on why nurses should join nursing associations. This is the only way nurses are going to gain the power required to enact change; nurses must join together and demand better conditions to improve patient safety.

Why Did I Quit Nursing?

2007-06-18T09:04:00.001-05:00

I was asked a few days ago why I quit nursing and went into law. The simple answer is that law fits my personality better. I have always had a difficult time remaining quiet when something happens that "'taint fair". When I was in nursing school, I took up the cause of an LVN that had returned to school to obtain her BSN. She was brilliant, but had a horrible case of test anxiety. She knew everything and could explain in person, but the minute she was placed in a test situation, she froze up. So, she was failing. I went to the professors to plead that they find a way to help her overcome the anxiety because society was going to miss out on a great nurse. I compared her to another classmate that made all "A"s, but had no common sense at all. I told them that she was going to graduate, but that she was going to be a dangerous nurse [about 2 years later, I saw that her license had been revoked]. I was told that it was none of my business and to stop interfering. I told them that I had to intervene because the LVN was too scared and embarrassed to step forward and speak for herself.

Even when I was a child, I could never keep myself from stepping forward to advocate on behalf of someone that could not argue for themselves. What my Mom used to call being a "busybody" has now grown into a well suited career. As for quiting nursing, I didn't really quit. What I have done is to channel my work into a way to help nurses. That is why I call myself a "Nurse Attorney."

The Most Aggressive Board

2007-06-15T07:38:00.001-05:00

The Star-Telegram has written an article about the Texas Board of Nursing. The article states that "The board is perhaps the most aggressive healthcare regulator in Texas, taking patient safety to heart." I have represented nurses before the Board for over 10 years and before that I interacted with the Board while I worked at the Texas Medical Board, so I have seen the Board change over the years. What I have seen is that the Board has become much more conservative and much more punitive.

Complaints against nurses that used to be dismissed if the nurse could show knowledge of the incident and remediation of the issue. For several years now, those same types of complaints have resulted in increasingly harsher actions by the Board. Whenever the public sees the number of disciplinary orders increasing, they assume that the public is being protected. That is an illusion. Public Safety and high numbers do not go hand in hand. To obtain those numbers, many good nurses that were forced to choose between violating the Nurse Practice Act and caring for their patients are finding themselves under disciplinary sanctions. Yes, they violated the law, but the reality of nursing practice (too many very sick patients and too few nurses) is the cause of the violation, not the competency of the nurse.

I have always believed that all regulatory Boards need to focus on true public safety issues, which means discipline of those licensees that are truly a threat: incompetent without remediation potential, addicts that are not in recovery (although I do believe there needs to be a non-disciplinary, non-public method of monitoring all addicts), and those missing core ethical boundaries. SB 993/HB 2158 seems to be a step in that direction. this legislation defines what conduct by a nurse is subject to reporting. The requirements for reporting are:
1. Violating the law AND contributing to the death or SERIOUS injury of a patient;
2. Substance abuse impairment;
3. Intentional or knowing abuse, exploitation or fraud, violation of boundaries;
4. Incompetency where the nurse's continued practice could harm a patient.

This legislation should stop all the minor reporting of documentation issues and simple medication errors that are not due to incompetency. Perhaps this legislation will slow the reporting of nurses for minor, non-public safety issues and the Board can focus on those nurses that require monitoring by the Board to ensure public safety.

First Impressions

2007-06-12T11:50:00.001-05:00

I was sitting in the waiting room of the Texas BON today waiting to present a client's case. The room was full of individuals seeking licensure as either a registered nurse or licensed vocational nurse. When one young lady was called back to meet with the Board, as soon as she left the waiting room, the other people in the room began to comment on her appearance. The applicant had shown up to meet with the Board dressed in casual pants, a tight fitting shirt made of t-shirt material, and flip flops. One of the other applicants commented, "She is sending the Board a message that she does not take them or her license seriously." Everyone noticed that when the Board staff member called the girl back to meet with the Board members, that the staff member's face showed that she thought the exact same thing as the other people in the waiting room.

First impressions count so much when meeting with the Board of Nurses. It is important to look and act professional. The Board members/staff do not know the applicants/licensees and so they rely upon information gathering to determine which course is the best for the Board to take. A person's appearance becomes part of that information gathering, even if it is done on a subconscious level.

The girl left in tears and they were not tears of joy, so I would surmise that she was denied licensure.

My Aunt, the Nurse

2007-06-08T02:08:00.001-05:00

My aunt Mary Lou died recently and at her funeral a slide show was presented. Her career as a Nursery Room Nurse was presented and this photo of her LPN graduation was shown. It was not until after I went to nursing school that I learned that my aunt was also a nurse (we lived across the country from them and so I did not know very much of their lives). I enjoyed looking at the new nurses in this photo and thought I would share it.

Good Nurses Don't Need Malpractice Insurance

2007-06-04T12:47:00.001-05:00

Wrong, Wrong, Wrong. "Good" nurses get sued or reported to the Nursing Board all the time. The biggest excuse I hear from nurses as to why they do not carry malpractice insurance is that they did not think they needed it. Every nurse that does any kind of patient care needs to carry their own malpractice insurance that also covers license defense before the Nursing Board. Once an incident happens it is too late to obtain insurance, so take care of yourself and your career - get malpractice insurance today.

But My Employer Has Insurance

2007-05-28T14:28:00.001-05:00

Malpractice Insurance Misconception #2: "I don't need insurance because my employer covers me under their insurance

Although most hospitals cover nurses under the facility’s insurance, the insurance will only cover the nurse while the nurse is working at the facility. If the nurse has quit the hospital may choose not to cover the costs of the nurse's defense. If the nurse was terminated, the hospital is more inclined not to pay for the nurse's defense, especially if the lawsuit is due to the nurse's negligence. The insurance policy may not cover incidents that are caused by the nurse exceeding the nurse’s scope of practice (for example administering medication without a physician's order).

When the employer is a physician, a clinic, etc., nurses may or may not be insured under the employer's liability policy. It is important to know how much coverage is provided to the nurse.

If there is a lawsuit, there will most likely be a complaint filed with the Board of Nurses and most employer insurance will not cover the costs of defending the nurse before the Nursing Board. Another problem with using the facility’s insurance is that the loyalty is to the facility first and then to the nurse.

There have also been a few lawsuits filed against the negligent nurse by the hospital that was subjected to a lawsuit: If the hospital loses a lawsuit, the hospital may then sue the nurse to recover the damages. So in a case such as this the hospital is not going to pay for the nurse’s defense against its own suit.

Conclusion: All nurses should have their own malpractice insurance policies

Taking Responsibility

2007-05-21T07:11:00.001-05:00

I love those new Liberty Mutual commercials, not because I am looking for insurance, but for the message they send. The commercials are full of instances where one person looks out or takes responsibility and someone else sees them do this and in a "pay it forward" turn, that person then also does something responsible. For example, a woman stops a pizza delivery guy from walking in front of a truck/car and this is seen by a guy on a motorcycle who then sets up some cones around a road hazard to protect others and on and on.

This idea of "everyone is responsible" also applies to health care. When it comes to safety and advocating for patients, there are no "it is not my job" or "that's not my patient." In crew resource management (used in the aviation industry), safety is everyone's responsibility. If a health care worker sees a potential hazard, that worker steps in to take responsibility and correct the problem or they go up the chain of command to have the problem corrected. Supporting safety measures benefit everyone.

Anything you say can be used against you

2007-05-18T06:17:00.001-05:00

Actually, anything you say or write can be used against you. Keep this in mind when dealing with patients, employers, adverse parties and the Board. What may seem like a simple phone call may be tape recorded and used against you later. Most people, including businesses and the Board, have caller ID, so those anonymous calls are not so anonymous. A letter or note or email to a "friend" may haunt you later. Some of the most damaging information used against a nurse came from "friends."

Online chat rooms, myspace accounts, forums, etc. are other places where you must be careful. For example, I have seen posts by nurses who were bragging about substance abuse or venting about inappropriate care of patients online. I have figured out who certain nurses are by reading their posts and if I can figure it out, the Board or opposing attorneys may also be able to determine identities. I have heard the Board chastise a nurse for inappropriate and inaccurate comments made online.

Who Is In Trouble Now?

2007-05-15T15:16:00.001-05:00

You just received your Nursing Board newsletter, now it is time to quickly flip to the back and see who got in trouble. I know you do it, but please take a minute to realize how those nurses came to be in the newsletter. Most nurses just made a mistake. It is hard to practice nursing today without violating some aspect of the Nursing Practice Act or rules and regulations. Sometimes the nurse was overworked, maybe it was due to politics at the workplace, maybe the nurse did not know the correct law, maybe the nurse was relying on a physician order or an administrator's directive. There are some nurses that have issues that affect their competency or their ability to safely practice nursing, but the majority just made a mistake or overextended themselves.

As you look at those names, say a little prayer that it is not your name there because if you take the time, you will see all the little mistakes you made that were also violations of law, rules or regulations. So, do not shun your co-workers if their names are in the newsletter. Nursing is hard enough without nurses not being able to rely upon one another.

Malpractice Insurance Will Get You Sued

2007-05-14T19:09:00.001-05:00

Lots of nurses will not get malpractice insurance because they have been told that having malpractice insurance will get a nurse sued. WRONG!!!

Plaintiffs (the people suing) will not know initially whether a nurse has malpractice insurance or not unless the nurse voluntarily informs the potential plaintiff that the nurse has malpractice insurance. The decision on whom to name in a lawsuit is not based on whether potential defendants (the nurse being sued) have malpractice insurance or not. Whether a nurse has insurance is not even found out until after the lawsuit has been filed and the parties are in the discovery phase of the lawsuit.

Note however that having malpractice insurance might keep a nurse in a lawsuit. Some attorneys will keep a defendant in a lawsuit if the defendant has insurance to pay for potential settlements or judgments. In the past, not having insurance benefited nurses because attorneys would drop nurses out of a lawsuit because the nurses did not have "deep" pockets and did not typically have malpractice insurance. So, if there was not much money available the nurse was dismissed. Now, many attorneys will not dismiss any defendants from a lawsuit if there is potential to get any amount of money from them (plus nurses are being paid much better now).

So, malpractice insurance will not get a nurse sued. Nurses should purchase their own malpractice insurance policy with a license defense rider.

Protect Yourself Now

2007-05-11T09:56:00.000-05:00

I just spoke to another nurse who is trying to find the money to defend herself against an investigation by the Board. It is extremely risky and dangerous to represent yourself before the Board, so it is crucial that all nurses obtain legal representation. You need an attorney whether you are guilty or not and the Board does not think you are guilty just because you have an attorney. (More in a future post about why nurses should not represent themselves)

What can a nurse do today to plan for a potential investigation by the Board? Purchase malpractice insurance!!!! Be sure the policy contains licensure protection or a rider to cover any actions before the Nursing Board. By buying malpractice insurance with licensure protection, a nurse not only obtains legal representation for a lawsuit but also for legal representation before the Board of Nursing. But, a nurse cannot buy insurance for an incident that has already occurred. The insurance must be in place before an occurrence.

It costs money to defend yourself against a lawsuit or an action by the Nursing Board. Even if you are innocent, you will still have to defend yourself. The costs include legal fees, consultant fees, expenses, expert fees and more. It is cheaper and provides peace of mind regarding your finances to have malpractice insurance.

Watch for future posts explaining the misconceptions of malpractice insurance and how to find insurance.

DWI

2007-05-10T11:24:00.001-05:00

Do not take even one drink and drive because it is too costly: not only could you kill or harm yourself and others, but if you are arrested, you start down a course that can have extreme adverse results. DWIs/DUIs are expensive. A recent article in the Austin American-Statesman listed the various costs associated with a DWI. When I added up the high ranges for these costs it came to approximately $50,000 and that did not include recurrent costs such as drug screens. Then you are faced with the criminal repercussions. In addition, if you are licensed by a regulatory board, you will most likely be investigated for possible intemperate use.

For example, a nurse accused of intemperate use must prove his or her sobriety (the DWI or positive urine screen is used by the Board as evidence of the substance abuse). It takes a lot of time and money and produces quite a bit of stress to prove one's sobriety.

It is so much easier and cheaper to just pay for a taxi or have a true designated driver. Also, these decisions must be made prior to engaging in drinking because once a person drinks, their decision-making can be impaired and they will think that they are fine to drive. I represent many health care providers that are accused of substance abuse/addiction and they will agree - Not even one drink if you are going to drive!

Nurses Must Join Together to Become Powerful

2007-05-09T11:43:00.000-05:00

Should nurses join nursing associations? YES!, YES!, YES! There is a lot going on in the nursing field, new advancements, changes in laws, changes in the Board of Nurses' rules and regulations, etc. It is very difficult for an individual to keep abreast of what is changing, much less to take the time to advocate for positions supporting nurses. Just try to find all the bills affecting nurses during a Legislative Session and then what if one of them adversely affects nursing practice, would an individual have the time to comment on the proposed legislation or to attend the various meetings? New rules and regulations proposed by the Board of Nurses are even more difficult to track and rarely do individuals submit comments on proposed rules. As an example, a recent rule proposed by the Board of Nurses adversely affected nurses but only two individuals (I was one) and the Texas Nurse Association commented. The Board went ahead with adopting the proposed rule. With more support from Texas nurses, the rule could have been either withdrawn or changed to more favorable language.

Nurses typically do not join state, national or specialty associations. This is the reason why nurses are politically weak. Physicians and Hospitals join their associations and that is why those associations carry so much weight with politicians. Money and votes matter to our Legislators. If all nurses joined nursing associations, we would far outnumber the physician and hospital associations combined. The combined membership fees would provide the associations with the monetary power they need. Instead of gaining support for bills from physician groups and hospital associations, the Legislature would know that they need to listen to the nursing associations first.

I hear complaints that the nursing associations do not support bedside nurses, that they focuses on nursing educators and nursing administrators. Any association is a reflection of its members. Nursing educators and administrators know the value of joining associations and so the associations naturally reflect the goals of those members. If bedside nurses want to change this, they must join the associations and then seek to change the goals. The association will follow the desires of its members.

If nurses want to be powerful, they must join nursing associations that are active in the legislative arenas that are of interest to them. So, if a nurse cares about making changes in Texas State Politics and with the Texas Board of Nurses, the nurse should look to state nursing associations. Nurses need to stop being doormats and start standing up as a profession.

When an error becomes a crime

2007-05-08T16:14:00.001-05:00

Nurses should pay attention to a recent 2006 court case out of Wisconsin. In State of Wisconsin v. Julie Thao, Ms. Thao a nurse with 13 years of experience and an exceptional nursing practice history was charged with one count of neglect of a patient causing great bodily harm (which is a felony that can result in a significant fine and imprisonment). After plea bargaining, Ms. Thao was placed on 3 years criminal probation. Ms. Thao was also sanctioned by the Wisconsin Nursing Board. She received a suspension of her nursing license for 9 months, then she was placed on 2 years of restrictions (she could not work more than 12 hours per 24 hours or more than 60 hours per 7 days; she has to obtain 54 hours of CEUs in one year; she has to give 3 presentations to the nursing community and she has to pay a $2500 fine).

So what did Ms. Thao do that resulted in such actions? In July 2006, Ms. Thao worked 2 consecutive 8 hour shifts and then worked another 8 hour shift the next day on L&D unit. Midway through that shift, she pulled an epidural medication mini-bag (bupivacine & fentanyl) in anticipation of an epidural order for her 16 year old patient who was in labor. The mini bag was labeled with a bright pink label. She sat the mini-bag down at the bedside. She was supposed to hang a PCN piggyback, but instead she grabbed the epidural and administered it IV. The patient died (the baby was born by C-section).

Unfortunately, this is not the first time a health care provider has been charged with a crime as a result of their negligence. There have been other providers charged criminally such as a nurse for inserting a Foley catheter without an order (trying to obtain a urine specimen, the nurse botched the insertion resulting in the patient requiring a supra pubic catheter) or the provider who transported a patient in a wheelchair without putting the foot rests down causing the patient to pitch forward and suffer injuries from a fall. This is a disturbing trend that state nursing associations are trying to discourage.

Nurses need to be aware of ALL of the possible ramifications from nursing errors and take appropriate defensive action when an error occurs.