McDonald, Mackay and White, LLP

Worried About a Malpractice Lawsuit? The Board of Nurses Should Worry You More.

by Taralynn Mackay, RN, JD

Most nurses only think about the Board of Nursing [the Board] when they are undergoing the process of obtaining their license or when they are renewing the license; however, the Board is involved with more than just the licensing of nurses. While most nurses worry and plan around avoiding lawsuits, they give little thought to which actions or omissions might attract the Board’s attention. Even though lawsuits affect a nurse’s wallet, the bigger concern is the impact the Board can have on a nurse’s ability to practice nursing. When most nurses think about relinquishing their nursing license, they assume that it will be due to a voluntary action like retirement or maybe a large inheritance or maybe even winning lottery millions. But, few nurses expect to have to give up their ability to earn money as a nurse because the Board revokes their license or forces the nurse to surrender the license. Even if the Board chooses not to revoke a license, they can still impose restrictions on the nurse’s license that can adversely affect a nurse’s employment. At this point many nurses may be tempted to stop reading because “good” nurses do not end up in front of the Board and they will never need the information contained in this article. However, a large number of nurses facing the Board are “good” nurses that may have made an error, or maybe they were not aware of the laws governing their practice, or perhaps they failed to document adequately. Perhaps the nurse is innocent, but still had a complaint filed with the Board. The one thing that is consistent with the nurses under investigation by the Board is that most NEVER expected their nursing practice to be under scrutiny by the Board. “Good” nurses can be investigated by the Board and “good” nurses can be disciplined by the Board and have their nursing practice restricted.

The first area to cover is what is the Board of Nurses and how can they restrict a nurse’s license. Each state’s legislature enacts laws, the Nurse Practice Act, governing nursing practice. The executive branch of the government enforces the practice act through the state’s regulatory agency, the Board of Nurses. The Board may be independent or part of a larger regulatory entity such as a Professional Registration Board or Licensing Board. The Board is comprised of nurses and other members such as public members or physicians. The Board members do not work for the Board full time and they are not usually involved in the day-to-day activities of the Board. To perform the day-to-day work, the Board has paid staff members. The Board is vested with immense power to regulate nursing. The Board has been charged by the state’s legislature with the regulation of nursing practice. Their regulation includes licensing, monitoring continued competency (continuing education, practice hours requirements), investigating complaints and the imposition of discipline for violations of the nurse practice act. The Board was not established to be the guardian and protector of nurses in their particular state. This is a surprise to many nurses who often misinterpret the Board as the “advocate” for nurses. The job of advocating for nurses is performed by professional organizations such as the state or national nursing association or specialty associations. Boards are entrusted to protect the public, not nurses. Think of the Board as the “nurse police” and a better understanding of their role emerges. The Board is on the side of the public, which sometimes means to be on the side against the nurse.

To protect themselves, nurses must be diligent and they must know the laws, rules and regulations that govern nursing practice and they must practice good risk management. The practice areas that cause the most problems for nurses are documentation, assessment, intervention, bypassing checks and balances and not knowing policies and procedures. Documenting timely and adequately would prevent many complaints or if the complaint involves another area of practice, documentation can help the nurse. There have been many instances when my clients have found themselves stating, “If only I had documented.” Nurses must be sure they document timely and adequately. Failing to assess, failing to thoroughly assess, or failing to reassess comprise the assessment problems. Assessments must address the patient’s problems and if a new problem arises, the assessment must be focused on that new problem. A nurse cannot just assess a patient, document the assessment and stop, the nurse must also intervene whenever necessary. If the nurse does not obtain what is needed for the patient from current orders, he or she must notify physicians and follow the nursing chain of command until intervention is no longer required. Bypassing checks and balances is a leading cause of medical errors. For example, medication errors can be traced to a nurse failing to go through the five rights of medication administration. Likewise, rushing through chart checks allows for orders to go unnoted and unimplemented. Finally, a nurse must know the facility’s policies and procedures because he or she will be held to those if a lawsuit or complaint before the Board arises. It is common that nurses practice on a unit or at a facility and they do not know what is required pursuant to the policies and procedures. However there is a common problem with policies and procedures in that they do not always cover all of a nurse’s obligations and some may be outdated or incorrect. Therefore, a nurse needs to also be aware of current nursing standards.

Nurses must protect their career by knowing whom to enlist to help them. Just as nurses should not try to represent themselves in a malpractice lawsuit, nurses should not try to represent themselves before the Board of Nurses. The Board works for the state protecting the public and thus, the Board is not required to be concerned about a nurse’s career or protecting the rights and interests of the nurse. The Board has attorneys that will aggressively protect the Board/public’s interests. Nurses need protection and guidance during any adverse interaction with the Board, which is why they should hire an experienced attorney to protect their interests. Based on personal experience as an attorney for a regulatory board and as a defense attorney for nurses, I have found that nurses who are represented by an attorney have a greater chance of obtaining a better outcome from a Board matter than those that are unrepresented. Nurses not only have to hire a lawyer, they need to hire the right lawyer. Nurses should thoroughly question any attorney they are thinking of hiring to ensure that the attorney has the proper experience and knowledge to practice before the Board. The area of law that involves regulatory agencies such as the Board of Nurses is called Administrative Law. Nurses should look for an attorney that is Board certified in administrative law and one that frequently represents nurses before the Board. Nurses should not assume that every attorney has the knowledge or the experience to adequately represent them before the Board.

Nurses should also protect themselves by purchasing their own malpractice insurance that contains administrative/regulatory Board coverage. Nursing Associations recommend that all nurses carry insurance even if they think they are covered under an employer’s insurance. There are many reasons why nurses do not purchase this inexpensive protection. For example, some nurses believe that an employer’s insurance will take care of any problems. However, the employer’s insurance may not completely cover the damages and it usually does not cover actions before the Board. Furthermore, in a situation where the employer reports the nurse to the Board, the employer is not going to then spend money defending the nurse. It is also a common misconception that having insurance raises a red flag that draws malpractice lawsuits. There are multiple reasons why a malpractice suit is filed against a nurse and whether you have malpractice insurance or not does not alter those reasons. Nursing malpractice insurance is inexpensive and it provides protection when protection is needed the most. When a nurse receives notice that he or she is being investigated before the Board, it is a great relief to know that malpractice insurance is going to cover the cost of an attorney to represent the nurse before the Board. The Boards of Nursing are getting busier every year and their regulatory powers are likewise increasing. It is crucial that nurses understand the seriousness of a Board investigation. Just like the state will close down a restaurant because they are a public health risk, the state through the Board of Nurses will stop a nurse from practicing if they are a risk to the health of the public. Nurses need to be cautious and prudent in order to protect themselves from possible adverse actions.

Taralynn R. Mackay, RN, JD, is a partner in the Austin law firm of McDonald, Mackay & Weitz, LLP where her practice focus is administrative/regulatory law, health care law, and professional licensing issues. Ms. Mackay is Board Certified in Administrative Law by the Texas Board of Legal Specialization. Ms. Mackay is a former Assistant General Counsel and Staff Attorney for the Texas State Board of Medical Examiners and the Texas State Board of Physician Assistant Examiners. Ms. Mackay received her BSN with Honors from the University of Texas Medical Branch and her Doctor of Jurisprudence from the University of Texas School of Law. Ms. Mackay is a frequent speaker and author on health care issues, risk management, regulatory issues, and medical law. For more information, please visit www.healthlicensedefense.com

The author has provided this information and opinion for educational purposes only. Obviously, this material cannot address all laws and regulations that may impact all aspects of health care and please note that such laws and regulations are constantly changing. This material should not be used as a substitute for legal counseling and should not be considered as legal advice or a legal opinion. This material is not intended to take the place on legal or professional advice or services and a reader should obtain independent legal advice before undertaking any activity that may be within the scope of any law or regulation discussed in these materials.