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

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!!!

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

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

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

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

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

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

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

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

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?

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

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

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

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

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

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

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

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

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!!!!

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?

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

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

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:

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

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

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?

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

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

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

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

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.