Nurses Eat Their Young and Others As Well

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

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

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

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?

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

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

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

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

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

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!

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

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?

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

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?

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

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

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

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

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

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

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...

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?

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?

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

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

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

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

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

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

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

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?

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

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

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

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

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

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.