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

Tort Reform's unexpected impact on nurses

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

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

Just a Thought

Whenever I feel blue, I start breathing again.

I know...nurse humor!!

Additional Information about the Fired Nurses

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



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

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

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

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

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

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

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

8. Both have been fired by the hospital."

What Are They Thinking?!?!?!

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

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

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

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

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

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

Public Hearing on proposed CUE rules

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

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

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

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

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

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

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

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

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

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

Economic downturn and nursing

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

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

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

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

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

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

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

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

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

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

Attorneys urged to become nurses

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

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

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

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

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

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

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

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

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

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

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

The Loss of a very special nurse

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

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

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

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

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

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

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

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

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

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

Vicodin and Dr. House

I overheard a conversation that I just had to share:

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



Wait for it.....




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


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

Keep contacting your Legislator

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

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

No jobs for Nurses

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

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

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

Let Your Legislator Know-Support HB 998

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

What does Panasonic know that we don't?

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

Picking a Local Attorney

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

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

Just my Thoughts and Opinion.

The Horror of a Nursing Error

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

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

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

I am serious - get malpractice insurance now

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

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

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

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

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

Can You Help?

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

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

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

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

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