More Information on IPN for Nurses

As health law attorneys, we are often contacted by nurses who decided to self-report, were set up by colleagues, involved in an off duty incident (DUI, narcotics possession), or drug tested at work and were directed to IPN as a result. These nurses now may face years of problems because they agreed to IPN in an attempt to save their license.

For those who have never heard of it, IPN stands for Intervention Project for Nurses. It is a program based in Florida aimed at providing an avenue for swift intervention/close monitoring and advocacy of nurses whose practice may be impaired due to the use, misuse, or abuse of alcohol or drugs, or a mental and/or physical condition. Other states have similar programs, like TPAPN (Texas Peer Assistance Program for Nurses)  in Texas or RAMP (Recovery and Monitoring Program) in New Jersey.

Let’s set things straight. IPN is not the easy way out if you are trying to save your license. Although IPN may have some benefits in rehabilitating a truly impaired nurse, for others, it only causes mounting problems. We hear so many horror stories about nurses who turned to IPN to save their licenses, only to never again be able to practice.

When you agree to IPN, you are agreeing to many, often unclear consequences. Nurses accepted into IPN must sign a five (5) year contract agreeing to monitoring, weekly counseling meetings, regular psychiatric visits, random urinalysis testing (with a mandatory call in every day of your life for the five year period), mandatory notification of all employers that you are in IPN and why, a strict prohibition on drinking any alcoholic beverage, or taking any medication (even over the counter medications) without the prior approval of IPN, possible loss of your privilege to administer narcotics, possible loss of your privilege to access any prescription medications, a possible requirement that you only work under the supervision of another registered nurse, and other possible requirements.

These stipulations are extremely expensive, especially if a nurse is not working (many currently or previously in IPN cannot find jobs). Drug testing, rehab and consults all must be paid for and can cost thousands of dollars. If you ever miss a drug test or a support group session or consultation ever comes back to IPN with less than perfect reviews of you, your contract may be extended or further consequences can be added (like license restrictions). Furthermore, not all IPN counselors and specialists should be viewed the same, and there are not any uniform evaluation requirements for the specialists. It is our experience that some are better than others, and some should be avoided at all costs! Just because you are 100% innocent of any charge against you and have a clean drug test, a specialist can still find fault leading to more problems for you.

Many nurses that have had major problems with IPN are nurses who have been prescribed medications. In IPN, it does NOT matter if you have a prescription. If you have a medical condition that requires treatment with a narcotic or other IPN banned medication (like Ritalin), you CANNOT take it. Shouldn’t nurses be able to be treated the same as anyone else? Additionally, you cannot have any alcohol, and IPN will test for alcohol use.

While the medication and alcohol restrictions are harsh, some nurses who have been subjected to IPN say that the worst thing is the negative stigma associated with nurses in IPN. You can get lucky with a contract that does not require random testing, without mandatory participation in weekly meetings. However, you will ALWAYS have to let your employer or potential employer know about IPN. It is our experience that this knowledge will prevent you from getting hired, most of the time, despite IPN’s claim that plenty of IPN nurses have jobs. Even if there are no restrictions on your license, you will still have a difficult time ever getting job, making your license (which you thought IPN could save) worthless.

When you are faced with any kind of allegation as a nurse, always remember that you have the right to an attorney during any questioning whether as part of an initial investigation, during a hearing, and while reviewing and considering a consent agreement. A drawback for many nurses faced with charges is the cost of an attorney. However, please consider that you are facing the possibility of a restricted license, a revoked license, and/or ending up with charges next to your name that may end your ability to ever practice as a nurse. Struggling to find work under IPN’s stipulations and with a restricted license is not easy, if at all possible. The cost of hiring an attorney who may be able to save your license and livelihood is well worth it when compared with the alternative of never being able to find work.

However, before you decide to hire legal representation, research health law expert attorneys in your area. A board certified health law attorney should be very familiar with cases involving IPN and should have experience going before the Board of Nursing. But do not make your attorney’s job difficult. Consult with a health law attorney before you make any decisions. After you sign an agreement with the Board of Nursing, an attorney’s options to assist you become limited. Even if you are 100% innocent, an attorney might not be able to get you out of IPN after you have already made a deal.

When the nurse may actually have committed the offense, there are a number of administrative and procedural measures which an experienced health care attorney may be able to use to avoid a suspension. This will also prevent the matter from becoming public until much later in the process.

For the innocent nurse, an experienced attorney familiar with Board of Nursing proceedings may be able to obtain additional drug testing, polygraph (lie detector) testing, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which shows that the nurse is innocent of the charges.

We hope that this information will help nurses navigate IPN and Board of Nursing negotiations. Please, pass this information on to all nurses you know, so that unnecessary consequences can be prevented.

For more information, visit www.TheHealthLawFirm.com.

Nurses: Advanced Practice May Mean Advanced Legal Issues

From George Indest’s Nursing Law Manual

The advanced nurse is a registered nurse (RN) who has completed some form of advanced nursing education and training.  Two types of advanced nurses are the advanced registered nurse practitioner (ARNP) and the certified nurse specialist.  In Florida, there are three types of certified nurse specialists: certified registered nurse anesthetists, certified nurse midwives, and nurse practitioners.  The potential risk of liability for an advanced nurse is as real as the risks for any other nurse.  In addition to all of the legal issues that a registered nurse is faced with, the advanced nurse is susceptible to even more legal issues.

Advanced nurses are held to higher standards of care than RNs or licensed practical nurses (LPNs) because of the higher degree of education and training that an advanced nurse is required undergo.  Advanced nurses are required to meet further certification requirements in order to become licensed.  The additional certification requirements were established because advanced nurses have a much broader scope of practice than RNs or LPNs.

An advanced nurse is held to all of the same duties and standards as a RN, as well as additional duties that are placed on the advanced nurse because of advanced training.  A failure to uphold the duties of a nurse can lead to the same consequences that a registered nurse could face, including action being taken by the Board of Nursing against the nurses license.

Advanced Registered Nurse Practioner (ARNP)

In Florida, an advanced registered nurse practitioner (ARNP) can only perform medical acts of diagnosis, treatment and operation under the supervision of a Florida-licensed medical doctor, osteopathic physician, or dentist.

The Board of Nursing, has established rules, pursuant to Florida Statutes, which regulate the requirements for a protocol between a physician or a dentist and an ARNP.  The protocol must be in writing and signed by both the ARNP and the physician or dentist, showing a mutual agreement between the parties.  The protocol must also include a description of the duties of the ARNP;  a description of the duties of the physician or dentist;  the management areas for which the ARNP is responsible, including the conditions for which therapies may be initiated and the treatments that may be initiated by the ARNP, depending on patient condition and judgment of the ARNP;  and the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order.  The protocol must include a provision for annual review by the parties which are privy to the protocol

In addition, the original protocol must be submitted to the Board within thirty days of the renewal of the ARNP’s license.  A copy of the protocol and a copy of the notice required by Section 458.348(1), Florida Statutes, shall be kept at the site of practice of each party to the protocol.  Any alterations to the protocol or amendments should be signed by the ARNP and the physician, or dentists and filed with the Board within 30 days of the alteration to be kept in the Department of Health for filing purposes only.  Specific conditions and a procedure for identifying those conditions that require direct evaluation or specific consultation by the physician or dentist must be contained within the protocol.

Certified Registered Nurse Anesthetists (CRNA)

Administration of anesthesia by a certified registered nurse anesthetists requires special training and certification.  Oversight and availability of an anesthesiologist is required by most organizations.  The major risks for registered nurse anesthetists include the improper placement of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

Nurse Practitioner (NP)

A nurse practitioner, NP, is a registered nurse who has completed the necessary education to engage in primary health care decision making.  A physician may not delegate a task to a NP when regulations specify that the physician must perform it personally or when the delegation is prohibited by state law or by an organizations own policies.  A NP who practices outside of her scope of practice can be sanctioned by the Department of Health and if an injury occurs to a patient that NP can be civilly liable to the patient.

Certified Nurse Midwives (CNM)

Nurse midwives provide comprehensive prenatal care including delivery for patients who are at low risk for complications.  Nurse midwives manage normal prenatal, intrapartum and postnatal care.  In addition, nurse midwives will care for newborns as long as there are no complications.  Nurse midwives also provide primary care for women’s issues from puberty to post menopause.  The standard of care for a certified nurse midwife is that of a reasonably prudent certified nurse midwife engaged in the practice obstetrics and gynecology.

DEPARTMENT OF HEALTH (DOH) INVESTIGATION

One of the biggest mistakes an advanced nurse makes when being investigated by the Department of Health, DOH, is failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation process.  If the advanced nurse does not make an objection to the DOH investigators request for a copy of a patient’s medical record, he or she is required to forward the medical record to the investigator.  A failure to comply with this can lead to further disciplinary action against a nurse’s license.
For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.

Nurses Rx: Medication Administration

From George Indest’s Nursing Law Manual

Nurses face a busy schedule often including a long list of patients and extensive work hours. As a result, they can become overworked and overtired, which may lead to mistakes when carrying out essential job duties like administering medication. An Institute of Medicine (IOM) report titled To Err is Human: Building a Safer Health System (IOM, Dec. 1999) states the deaths from medication errors that take place both in and out of hospitals, more than 7,000 annually, exceed those from workplace injuries. In a separate report, investigation by the Chicago-Tribune states that since 1995, at least 1,720 hospital patients have died and 9,548 others have been injured because of mistakes made by RN’s across the country (Associated Press, Sept. 10, 2000).

Because nurses are usually the front-line health care providers who are required to administer medications prescribed by physicians (and often the most potent medications to critically ill patients), they must be especially careful in their procedures and practices to avoid one of the many types of common medication errors. The most common types of medication errors include:

1. similar sounding medication name;

2. administration without a prescription;

3. the wrong medication;

4. the wrong dosage;

5. negligent injection;

6. failure to note an order change;

7. failure to administer medication;

8. failure to discontinue medication;

9. use of an unsterile needle;

10. the wrong patient;

11. allergic reactions; and

12. failure to assure patient taking medications.

Nurses are required to handle and administer a vast variety of drugs that are prescribed by physicians and dispensed by an organization’s pharmacy. Medications may range from aspirin to esoteric drugs that are administered through intravenous solutions. These medications must be administered in the prescribed manner and dose to prevent serious harm to patients.

There are a variety of ways to ensure that, as a nurse, you are helping to prevent medication errors within your facility. Use this checklist from George Indest’s Nursing Law Manual in order to maintain safe administration procedures.

Nurses are exempted from the various pharmacy statutes when administering a medication on the oral or written order of a physician. However, the improper administration of medications can lead to malpractice suits.

ADMINISTRATION OF CONTROLLED MEDICATIONS WITHOUT A PRESCRIPTION

A nurse should never administer prescription medications without a valid prescription or order from a physician. In effect, doing that constitutes practicing medicine without a medical license and is beyond the scope of a nurse’s license. Administering medications without approval may give rise to legal liability and disciplinary action against the nurse.

ADMINISTERING THE WRONG MEDICATION

The injection of the wrong medication into a patient can lead to civil liability or to a charge of substandard nursing care made to the Department of Health. A nurse who prepares medication for a physician is liable for the preparation of that medication. A physician can blame a nurse who fails to prepare the medication properly in order to escape liability.

In the case of Ambercrombie v. Roof, a solution was prepared by a nurse employee and injected into the patient by a physician, 28 N.E. 2d 772 (Ohio 1940). The physician made no examination of the fluid, and the patient suffered permanent injuries as a result of the infection. An action was brought against the physician for malpractice. The patient claimed that the fluid injected into her was alcohol and that the physician should have recognized its distinctive odor. The court, in finding for the physician, stated that the physician was not responsible for the misuse of drugs prepared by the hospital, unless the ordinarily prudent use of his faculties would have prevented injury to the patient.

GIVING THE WRONG DOSAGE

A nurse is responsible for making an inquiry if there is uncertainty about the accuracy of a physician’s medication order in a patient’s record. A nurse who is in doubt about a physician’s orders should contact that physician and seek clarification of their order.

WRONG ROUTE

The nurse in Fleming v Baptist General Convention, 742 P.2d 1087 (Okla. 1987), negligently injected the patient with a solution of Talwin and Atarax subcutaneously, rather than intramuscularly. The patient suffered tissue necrosis as a result of the improper injection. The suit against the hospital was successful. On appeal, the court held that the jury’s verdict for the plaintiff found adequate support in the testimony of the plaintiff’s expert witness on the issues of nursing negligence and causation.

FAILURE TO NOTE AN ORDER CHANGE

A nurse’s failure to review a patient’s record before administering a medication, to ascertain whether an order has been modified, may render a nurse liable for negligence.

FAILURE TO ADMINISTER MEDICATION

In Kallenberg v. Beth Israel Hospital, 357 N.Y. S.2d 508 (N.Y. App. Div. 1974), a patient died after her third cerebral hemorrhage because of the failure of the physicians and staff to administer necessary medications. When the patient was admitted to the hospital, her physician determined that she should be given a ceratin drug to reduce her blood pressure and make her condition operable. For some unexplained reason, the drug was not administered. The patient’s blood pressure rose, and after a hemorrhage, she died. The jury found the hospital and physicians negligent in failing to administer the drug and ruled that the negligence had caused the patient’s death. The appellate court found that the jury had sufficient evidence to decide that the negligent treatment had been the cause of the patient’s death.

FAILURE TO DISCONTINUE A MEDICATION

A health care organization will be held liable if a nurse continues to inject a solution into a patient after noticing its ill effects. Once something is observed to be wrong with the administration of the medication, the nurse has a duty to discontinue its use.

NONSTERILE NEEDLE

The blood donor in Brown v. Shannon West Texas Memorial Hospital, 222 S.W. 2d 248 (Tex. 1949), sought to recover from a serious injury allegedly caused by the use of a nonsterile needle. The court held that the burden of proof was on the plaintiff to show, by competent evidence, that the needle was contaminated when used and that it was the proximate cause of the alleged injury. The mere proof, said the court, that infection followed the use of the needle or that the infection possible could be attributed to the use of an unsterile needle was insufficient. If the plaintiff had been able to prove the needle was not sterile, then the plaintiff would have recovered damages.

WRONG PATIENT

It is of utmost importance to check each patient’s name bracelet before administering any medication. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Especially in nursing homes and hospitals where there may be more than one patient in a room, this is exceptionally important. Should the nurse unwittingly administer one patient’s medication to a different patient, the attending physician should be notified and appropriate documentation placed on the patient’s chart.

ALLERGIC REACTIONS

Any adverse reactions to a medication should be charted on the patient’s medical record. The attending physician and the facility’s pharmacy should be advised as to the patient’s allergic reaction.

FAILURE TO MONITOR AND ENSURE PATIENT TAKING MEDICATIONS

A nurse normally has a duty to monitor and ensure that a patient is taking their medications. A failure to perform this act can lead to nursing negligence on the part of the nurse.

THE “SEVEN RIGHTS” OF PATIENT MEDICATION

There is a checklist every nurse should learn called the “Seven Rights of Medication.” If this checklist is memorized and followed in every case, medication errors would be significantly reduced or eliminated altogether. Every nurse and nursing student should memorize this list and go through it in her mind every time a patient is administered a medication by the nurse.

Always check for and confirm:

1. The right medication;

2. The right patient;

3. The right dose;

4. The right time;

5. The right route;

6. The right reason; and

7. The right documentation;

The nurse may be the last wall of defense to protect a patient from a medication error. The nurse should avoid at all costs, being rushed, tired, inattentive, sloppy, or lazy. Guard at every turn against medication errors. For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.

Nurses: Insuring Your Legal Protection

Though many nurses pursue a career in nursing hoping that they will never face disciplinary charges, any number of events not in a nurse’s control can lead to an investigation or administrative action. Nurses need to make sure they are covered if this ever occurs, with appropriate insurance.

The primary reason that a nurse should purchase a professional liability insurance policy is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a nurse.

License defense coverage pays the legal fees and costs associated with defending a nurse when an investigation is initiated that may result in action against her nursing license or disciplinary action against the nurse. Coverage is usually available from the time the nurse receives written notice that an investigation by a state agency has been initiated. It will also cover formal complaints made against the nurse, informal hearings before the Board of Nursing, and formal administrative hearings before an administrative law judge.

Such investigations, complaints, and administrative action may be opened based on events including patient complaints, hotline calls, Code 15 reports, nursing home and home health agency surveys, abuse investigations by the Department of Children and Families (DCF), newspaper articles, copies of lawsuits, and many other sources. It is far more likely that a nurse will be involved in one of these types of actions than being sued for nursing negligence.

Professional liability policies, which provide coverage for licensure defense, will usually provide compensation to the nurse for her out-of-pocket expenses (travel, postage, etc.) that she herself incurs, as well as lost wages because of working time missed for hearings, depositions, etc. However, the maximum coverage available under such policies for licensure defense is usually limited. to between $10,000 and $15,000. This amount will usually be sufficient to provide for most of the legal fees and costs involved in defense of such a case.

Does Vicarious Liability Actually Absolve the Nurse From Liability?

The assumption that vicarious liability or the legal doctrine of respondeat superior protects a nurse against a medical negligence claim is a mistaken one. If the employer provides legal representation, the attorney representing the nurse will almost always be the same attorney representing and being paid by the hospital or employer.

In many circumstances, the nurse may conclude that her interests are contrary to those of the hospital or employer, which could result in the attorney hired by the hospital withdrawing from further representation of the nurse. Additionally, it may be necessary for the nurse to raise evidence showing that the injury was caused by another nurse or hospital employee, in order to defend herself. It is doubtful that an attorney representing the employer or hospital would raise this defense since it would prove liability against the employer hospital.

Many employers will not provide legal representation if the matter involves licensing or disciplinary action against the nurse. This could force the nurse to fund all the fees and costs associated with her defense. However, some larger corporations with good risk management programs will provide the nurse with legal representation for such matters.

If you are an agency nurse, a home health agency nurse, a nursing home nurse, an independent duty nurse, or you are not employed by a large hospital chain, then you should consider nursing liability insurance mandatory. It appears that complaints of negligence against nurses working in these positions are far more likely. This may be because of the high turnover of nurses in some types of healthcare facilities (such as nursing homes), or because the nurse is no longer employed at the facility when the investigation begins (for example, in the case of an agency nurse). Additionally, agency nurses may only work in facility for a short period of time making them less familiar with the facility’s policies and procedures, and not a part of the permanent team of nurses who may have established relationships with each other and are more likely to cover for each other.

As previously mentioned, a number of different proceedings may be covered by the licensure defense coverage provided in professional liability insurance. These proceedings may include an investigation by the Department of Health based on a patient complaint or Code 15 report; an abuse investigation (abuse of a child, abuse of a developmentally disabled or vulnerable person, or abuse of an elderly person) by the Department of Children and Families (DCF); allegations of nursing negligence or abuse being investigated by a state “surveyor” by the Agency for Health Care Administration (AHCA); an investigation into allegations of Medicaid over-billing or fraud; an investigation by the Agency for Health Care Administration or on the Attorney General’s State-wide Medicaid Task Force; and allegations of improper Medicare billing or fraud.

A nurse might be involved in a Medicaid fraud investigation, for example, in the case of an Advance Registered Nurse Practitioner (ARNP), Certified Registered Nurse Anesthetist (CRNA) or Certified Nurse Midwife (CNM) who has her own provider identification number and is allowed to bill as part of a group practice or independently. This might also occur, for example, in the case of a nurse working for a home health agency which receives its reimbursement for the nurse’s services from Medicare or Medicaid.

Cost of Professional Liability Coverage is Minimal

Nurses can purchase liability coverage rather inexpensively. For example, an excellent insurance policy providing coverage for nurses is available through the Nurses Service Organization (N.S.O.) for less than $100 per year. Professional liability coverage provided by this type of insurance represents a bargain at these rates.

Focusing on Protecting the Nurse’s Individual Interests

Perhaps most importantly, the nurse should have an attorney focusing on her interests only in defending her against any type of negligence or licensing complaint. A nurse with her own professional liability insurance coverage will be able to hire a separate, independent attorney, and often the insurer will allow her to pick her own attorney.

Important Considerations When Purchasing Liability Protection

When deciding on which professional liability insurance to purchase, the nurse should inquire as to the extent of coverage for licensing in disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the nurse in almost any type of administrative action. This might include, for example, defense of a discrimination complaint filed against the nurse with the Florida Commission on Human Relations (FCHR) or the U.S. Equal Employment Opportunity Commission and for Medicare and Medicaid complaints. Other companies limit coverage to only actions that may result in disciplinary action against the nurse’s license. The nurse should always attempt to get the broadest coverage available for disciplinary defense and licensure defense coverage.

Additionally, the nurse should inquire as to whether or not she will be allowed to select her own attorney. Many insurance companies have contracts with certain law firms to provide legal services on their cases for a reduced fee. The insurance company may require you to use one of its own contracted attorneys, or even one of its in-house attorneys which it employs directly. Given the limited number of attorneys with experience at handling nursing law issues and trying malpractice cases, the nurse should attempt to obtain coverage through a company which allows her to choose her own attorney.

The most important reason to purchase professional liability insurance is for the licensure defense coverage. A nurse does not want to risk losing her nursing license because she was unsuccessful at defending an investigation against her license or did not have the resources to do so. Since there are far more complaints filed each year against nurses’ licenses than here are nursing malpractice lawsuits, it is far more likely that a working nurse will need legal defense of a licensure complaint investigation.

For more information about the legal needs of nurses visit www.TheHealthLawFirm.com.

Former Texas Official Sentenced for Retaliation Against Nurses

According to ABC News, Scott Tidwell, a former West Texas county attorney, will serve four months in jail and 10 years of probation for retaliating against two nurses.

The nurses filed an anonymous complaint to state medical regulators against a doctor who used herbal remedies and hospital supplies to perform at-home procedures. The doctor then ordered a friend, a county sheriff at the time, to investigate the complaint, which resulted in the nurses being fired from their jobs and charged with felonies.

Tidwell acted as the prosecutor in the trial against one of the nurses. She was acquitted, and the charges against the other nurse were dropped.

Tidwell is not the only player in this case who is suffering from involvement. The Texas Medical Board found that the doctor tried to intimidate the nurses and placed him on probation for four years. He has also been charged with aggravated perjury and two counts each of retaliation and misuse of official information.

Earlier this year, a law was passed that adds protection from retaliation for nurses who advocate for patients. This bill allows nurses to report unsafe care with immunity from criminal liability.

Nurses and other health care professionals need this kind of legislation to allow them to fulfill their responsibilities to their patients. Without legal protection, health care professionals cannot be assured that there won’t be repercussions for acting on concerns. If our health care professionals are not protected, the care and safety of patients is compromised.

For more information about legal matters involved in nursing, visit www.TheHealthLawFirm.com or read the Nursing Law Manual.