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The Collateral Effects of Voluntary Relinquishment with Investigation Pending or other Discipline on Your Massage Therapy License

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Many massage therapists are unaware of the drastic long-term effects that discipline on their massage therapist license could have. This includes submitting a voluntary relinquishment of the massage therapist’s license while there is an investigation pending or while there are charges pending. Although this particular article is being prepared specifically for massage therapists, similar principles apply to physicians, nurses, pharmacists, psychologists, dentists, mental health counselors and other licensed health professionals.

A voluntary relinquishment of the license after notice of the opening of an investigation or while a charge is pending is treated the same as a disciplinary revocation of the license. It is reported out the same and is treated the same. In some cases it may even be worse, if the agreement to voluntarily relinquish also includes an agreement to never apply for another license again.

Even discipline on the massage therapy license such as a suspension, probation, restrictions, etc., can have far-lasting adverse repercussions. Most people do not understand what else can happen as a result of a discipline, revocation or even voluntary relinquishment (under these circumstances).

Reports to National Organizations on the Discipline.

First and foremost, the discipline (including voluntary relinquishment) will be a public record. It will also be reported out to national reporting agencies, including the National Practitioner Data Bank (NPDB) and the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB).

As a result of the report to the NPDB, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will probably start action to exclude the disciplined therapist from the Medicare Program and place him or her on the OIG’s List of Excluded Individual’s and Entities (LEIE). This will bar you from the Medicare Program or working for or contracting with anyone else who does (including insurer’s medical clinics and most health care providers). This by itself will also have many negative consequences. For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) “debarred” list. You are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.

The NCBTMB will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state.

Summary of Adverse Consequences of Revocation or Other Discipline.

To summarize, the most important adverse problems that may be caused as a result of discipline on your license, may include the following:

1. May cause discipline to be commenced against any other health professional license you have, such as a nurse, acupuncture physician, chiropractic assistant, nurse’s aide, home health assistant, etc.

2. Will prevent you from obtaining any health professional license in the future.

3. May cause discipline to be commenced against any massage therapy establishment license for a massage therapy establishment you own in whole or in part.

4. Any other states or jurisdictions in which you have a license will also initiate action against him or her in that jurisdiction.

5. The National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state and will cause any other state in which you are licensed to take action against you.

6. Mandatory report to the National Practitioner Data Base (NPDB)), which remains there for 50 years. (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB.)

7. The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs, (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the OIG HHS.

8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

9. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

10. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

What Can be Done?

If you have submitted a voluntary relinquishment without understanding the consequences, and the Board of Massage Therapy (“Board”) has not acted to accept it, you may withdraw it. What we do is submit a letter to the Executive Director of the Board stating it was submitted by mistake without fully understanding the consequences, and the massage therapist desires to withdraw the voluntary relinquishment. We submit this immediately (keeping a copy, of course) and by certified mail, return receipt requested, so we have proof of sending and proof of receipt.

However, you must also ask for a formal hearing to dispute the facts in your case, as well. We usually do this at the same time and by the same method. If you fail to request a formal hearing, then you are waiving your rights to challenge your guilt or innocence.

If you have requested an informal hearing, you have made a big mistake. For an informal hearing, you admit that everything stated in the complaint against you is true. You have admitted that all of the charges against you are correct, so you are pleading guilty to the charges. You are then giving up the right to have a hearing to determine whether you are really guilty or innocent. All you are going to be arguing about is the punishment you will receive. You will not be allowed to testify on or introduce any evidence on your guilt or innocence.

If you have submitted a request for an informal hearing, not realizing this, then what we usually do is to submit an immediate request to have the hearing changed over to a formal administrative hearing where you are allowed to dispute the facts against you and prove your innocence. In such a case, it is necessary to submit a Petition for a Formal Administrative Hearing and to specify which facts are contested or disputed and why.

The case is then sent to a neutral administrative law judge (ALJ) to hold a hearing on the case. The state Department of Health (DOH) (the parent agency over the Board of Massage Therapy) is then required to prove the facts against you by clear and convincing evidence. In fact, you do not even have to introduce any evidence or testimony, the burden of proof is on the DOH to prove the case against you.

Emergency Suspension Orders (ESOs), Appeals and Election of Rights (EOR) Forms.

In Florida, if you have an Emergency Suspension Order (ESO), you can appeal it to a court of appeal. The problem with this is that it is very technical to do so and is very costly. Call an attorney who specializes in appeals or appellate law and ask. Additionally, the court of appeal only rules on the law and not the facts. The appeal court will be required to accept everything that is stated in the ESO as true. There is no fact hearing, there are only legal arguments. Your basic case will be delayed while this takes place, and you will probably lose on appeal. This may not be the correct choice for you.

However, if there is an ESO, you also have the right to an expedited fact hearing on it. This may be the best course of action if you have documents and facts to show you are not guilty of the charges.

Furthermore, there will also be an additional document served on you, an administrative complaint (AC). When you receive the AC, it will probably say just about the same thing as the ESO. You will be given your hearing rights when this occurs (called an “Election of Rights” form or “EOR”). As we indicated above, you will almost always want to select a formal administrative hearing in which you dispute (challenge or contest) the allegations (charges) made against you. This is the only way you will have the right to have a full and fair hearing on your innocence of the charges. Make sure it is submitted in plenty of time to be received within the 21 days given. Seek legal advice in completing it. Do not admit to anything; you don’t have to as the state DOH has the burden of proof.

The Need for an Experienced Health Law Attorney.

It is very difficult to take the actions necessary yourself if you do not have any legal training. Nonlawyers make many stupid mistakes in these proceedings, including submitting written statements that can be used against them when they do not have to do so, talking to the DOH investigator or Board personnel, talking to the DOH prosecuting attorney, making admissions which can be used against them, and waiving their rights when they do not have to do so.

Most attorneys are not familiar with these types of procedures if they do not practice health law. They do not realize that the same rights which apply in criminal cases also apply to professional licensure cases. You need to find and hire an attorney experienced in this type of case. That would be a health law attorney, and preferably one who is Board Certified by the Florida Bar in Health Law.

What You Should Do.

So the bottom line is that if you are innocent and want to dispute any charges against you, you should:

1. If you have professional insurance coverage, such as HPSO Insurance, see if your insurance will cover your legal defense expenses in this type of case. Many will. We know HPSO will.

2. Act right away to request all of your rights in any matter. Make sure that anything you submit is actually received (not mailed, received) before the deadline given.

3. Do not call, write or speak to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

4. Do not make a statement, written or oral, to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

5. Contest (dispute or fight) every action that might be stated against you, including one by the NCBTMB or OIG.

6. Do not admit to anything you don’t have to as the state DOH has the burden of proof.

7. Keep copies of all forms or letters submitted, along with proof of mailing and proof of receipt (send via certified mail, return receipt requested).

8. Retain the services of a health lawyer who has experience in Board of Massage Therapy/Department of Health (DOH) cases (ask him or her how many he or she has actually done). DO THIS FIRST, NOT LAST!

Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations of Massage Therapists.
The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

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Nurses Take a Look at This Disciplinary Action Database

By Christopher E. Brown, J.D.

Nurses, did you know the National Council of State Boards of Nursing (NCSBN) maintains a database of all state disciplinary actions?  This database, called Licensure QuickConfirm, lists all disciplinary actions from the Florida Board of Nursing and forty-six (46) other state boards. It is frequently used by hospitals and medical groups to screen potential employees.

To search the Licensure QuickConfirm list, click here.

The Boards of Nursing Supply Information to Database.

According to the website, all information listed on the database comes directly from the boards of nursing. A report will contain:
– the nurse’s name, – licensed jurisdiction,– license type

– license number,

– compact status (single state or multistate),

– license original issue date,

– license expiration date,

– discipline against license, and

– discipline against privilege to practice.

Check your Profile Immediately for Errors.

If you have recently received discipline from the Florida Board of Nursing, or any other state board of nursing, it would be prudent to immediately check this website to verify that any information listed under your profile is accurate.  The website clearly states that it is the nurse’s responsibility to contact the board of nursing to update his or her information.

Our law firm recently encountered errors on this database that our client contended caused him lost employment opportunities.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Christopher E. Brown, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

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.