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Insuring Your Future

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ADVANCE for Nurses serving nurse graduates & senior students • Page 35
Insuring Your Future

Protect yourself from liability by knowing your resources

When most nurses think about relinquishing their license, they assume it will be voluntary — retiring, inheriting money or even winning lottery millions. But few nurses expect suspension, or even a revoked or surrendered license.

Make sure you know how to protect yourself if a contentious situation arises.

State Regulation

Each state's legislature enacts laws, namely 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 nursing (BON), which may be independent or part of a larger regulatory entity such as a professional registration board or licensing board. The BON is comprised of nurses and public members, often physicians.

The BON is vested with immense power to regulate nursing and nursing practice. Regulation includes licensing, monitoring continued competency (continuing education, practice hours requirements), investigating complaints and imposing discipline for violations. If any violations of the law are found, the BON may require nurses to obtain additional skills or knowledge to correct any deficits, enter recovery for substance abuse or obtain rehabilitation help for mental or physical ailments.

The BON 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 BON as an advocate for nurses. Think of the BON as the nurse police or nursing regulators. The BON is on the public's side and serves to investigate the behavior of any nurse who may have violated the Practice Act. Advocating for nurses is performed by professional organizations, such as state or national nursing associations.

Protecting Yourself

To protect yourself, you must be diligent, know the rules and regulations that govern nursing practice, and follow good risk management. The practice areas that cause the most problems are documentation, assessment, intervention and understanding policies and procedures.

Documenting timely and adequately can prevent many complaints. If a 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."

Failing to assess at all, failing to thoroughly assess or failing to reassess can also lead to trouble. Assessments must address residents' problems. If a new problem arises, the assessment must focus on it. A nurse cannot just assess a resident, document the assessment and stop; he or she must also intervene whenever necessary. If the nurse doesn't obtain what is needed for the resident from current orders, he or she must notify physicians and follow the nursing chain of command until intervention is no longer required.

Finally, know your facility's policies and procedures because you will be held to those if a lawsuit or complaint before the BON arises.

Know Who Can Help

Protect your career by knowing your resources. Just as nurses should not try to represent themselves in a malpractice lawsuit, they should not represent themselves before the BON. The BON works for the state protecting the public and is not concerned about a nurse's career or protecting his or her interests. The BON has attorneys who will protect the public's interests, so it is wise for the nurse to have representation.

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 obtain a better outcome than unrepresented defendants. Make sure any attorney you are thinking of hiring has the proper experience to practice before the BON. Look for an attorney board-certified in administrative law and one who frequently represents nurses before the BON.

Insure Your Future

Protect yourself by purchasing malpractice insurance with administrative/regulatory BON coverage. Nursing associations recommend that all nurses carry insurance, even if they think they are covered under an employer's insurance. The employer's insurance may not completely cover damages and it usually doesn't cover actions before the BON. Furthermore, in a situation where the employer reports the nurse to the BON, the employer is not going to spend money defending the nurse.

It's also a common misconception that having insurance draws malpractice lawsuits. There are multiple reasons why a malpractice suit may be filed against a nurse and whether you have malpractice insurance or not doesn't alter those reasons. Nursing malpractice insurance is inexpensive, provides protection when needed the most and covers the cost of an attorney to represent the nurse before the BON.

BONs are busier every year and their regulatory powers are likewise increasing. Just as the state will close a restaurant because of public health risk, the state — through the BON — will stop a nurse from practicing if he or she is a public health risk. Nurses need to be cautious to protect themselves from adverse actions.

Taralynn R. Mackay is a partner in the Austin, TX, law firm of McDonald, Mackay & Weitz LLP, where her practice focus is administrative/regulatory law, healthcare law and professional licensing issues.


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