Vol. 9 Issue 21
What to watch for if the Board of Nursing comes knocking
When most nurses think about relinquishing their license, they assume it will be voluntary, like retirement, a large inheritance or even winning lottery millions. But few nurses expect suspension, or a revoked or surrendered license.
How can you protect yourself if you made an error, were not aware of the laws governing your practice or failed to document adequately?
The Board's Call
The first area to cover is the Board of Nursing (BON) and its restrictions on a nurse's license. 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 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 the imposition of discipline for violations. If any violations of the law are found, the BON may require nurses obtain additional skills or knowledge to correct any deficits, enter recovery for substance abuse addiction 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 the advocate for nurses. Think of the BON as the nurse police or nursing regulators. The BON is on the side of the public, and has the role to investigate the behavior of any nurse who may have violated the Practice Act. Advocating for nurses is performed by professional organizations such as the state or national nursing association.
To protect yourself, you must be diligent, know the laws, rules and regulations that govern nursing practice, and practice good risk management. The practice areas that cause the most problems are documentation, assessment, intervention, bypassing checks and balances, and not knowing policies and procedures.
Documenting timely and adequately can 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."
Failing to assess, failing to thoroughly assess, or failing to reassess can also lead to trouble. 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.
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 the interests of the nurse. 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 nurses who are represented by an attorney obtain a better outcome from a BON matter than unrepresented defendants. Nurses should thoroughly question any attorney they are thinking of hiring to ensure the attorney has the proper experience to practice before the BON. The area of law involving regulatory agencies such as the BON is called administrative law. Nurses should 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 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 does not 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 is 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 does not 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 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 law firm of McDonald, Mackay & Weitz LLP, where her practice focus is administrative/regulatory law, healthcare law and professional licensing issues. Mackay is board certified in administrative law by the Texas Board of Legal Specialization. For more information, visit www.nursingattorney.com