Kudos to Wyoming State Board of Nursing for its Accurate Information on its Website for Nurses

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

As a nurse, when you are the subject of a complaint that alleges improper conduct or action that could result in discipline against your license, finding correct information regarding the disciplinary process is vital. I’ve recently found that the Wyoming State Board of Nursing (BON) is one of the few nursing board websites that provide accurate information on discipline. On this website, there is information about  nurses’ legal rights, and explanations of the investigation or hearing process, for Advanced Practice Registered Nurses (APRNs), Registered Nurses (RNs), Licensed Practical Nurses (LPNs) and Certified Nursing Assistants (CNAs).

Click here to go to the Wyoming State BON website.

Wyoming State BON Website Provides Information Regarding the Board’s Duty of Reporting to National Practitioner Data Bank.

Information about nursing discipline actions was previously reported to the Healthcare Integrity and Protection Data Bank (HIPDB) by the Board taking action. The HIPDB collected reports made by federal and state licensing agencies, federal and state prosecutors, and federal and state government agencies that had excluded a practitioner, provider or supplier from their health plan.

On May 6, 2013, the HIPDB officially merged with the National Practitioner Data Bank (NPDB). The two data banks are now known as the NPDB. To read a blog on how this merger affects you, click here. For more information about NPDB, visit the website: http://www.npdb-hipdb.hrsa.gov/.

Wyoming Website Provides Information Regarding Actions by Office of Inspector General and the Exclusion List.

The Office of the Inspector General (OIG) has the authority to exclude individuals and entities from federally funded health care programs (Medicare, Tricare, Medicaid) and maintain a list of all currently excluded individuals and entities. This is called the List of Excluded Individuals and Entities (LEIE). Anyone who hires an individual or entity that is listed on the LEIE may be subject to civil monetary penalties (CMP).

The OIG has discretion to exclude individuals such as nurses or nursing assistants on a number of grounds, including misdemeanor convictions related to health care fraud (other than Medicare or a state health program); misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; and purposes of disciplinary action by the Board including suspension, revocation or surrender of a license for reasons baring on professional competence or professional performance.

This means that if your license or certificate is suspended, revoked or voluntarily surrendered, your ability to be employed by a health care provider or facility that also receives federal funding, such as Medicare, may be precluded despite the statue of your licensure. In other words, once you are on the exclusion list and have not been taken off even after a reinstatement, you will not be able to be hired as a nurse or nursing assistant by medical facilities receiving federal funds.

To read more on the devastating and far-reaching effects of being excluded, click here.

The Wyoming BON website is the only one I have come across that accurately advises nurses of the collateral consequences of disciplinary action.

Legal Advice for Nurses in These Situations.

I want to commend the Wyoming State BON for including this information on its website. The information provides a great start for nurses with complaints against their licenses.

I’d like to offer up some additional advice. I encourage all nurses to buy insurance to cover license investigation legal defense expenses. Most nursing malpractice insurance policies are very inexpensive and provide excellent coverage. Most contain insurance coverage that will pay for an attorney and other legal defense expenses if you are being investigated or charged with a licensure offense. You should have at least $25,000 in coverage for such investigations and administrative proceedings.

Obtain an Experienced Health Law Attorney Immediately After Receiving Any Notification of an Investigation.

If the BON is investigating a complaint against your license, immediately obtain an experienced health law attorney to represent you throughout the investigation and disciplinary proceedings.

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.

Comments?

What do you think of the information listed on the Wyoming State Board of Nursing website? Please leave any thoughtful comments below.

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. 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.

Nursing Liability and Nursing Malpractice – Part 2

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In this blog I discuss the concept of nursing malpractice. It is the second blog of my two-part series. To read part one, click here.

The Duty of Reasonable Care.

The plaintiff must first show that the nurse had a duty to provide care for the plaintiff. The element of duty is usually straightforward and relatively easy for the plaintiff to prove because once nurses undertake care for their patients they have a clear duty to provide care for that patient in a competent and reasonable manner. Nurses owe a clear duty of care to all of their patients.

Breach of Duty.

When applied to nursing, a breach of a duty occurs when a nurse does, or does not do, what a reasonable nurse would have done under the same, or similar, circumstances. This would mean that the nurse’s care fell below the acceptable standard of care.
The standard of care is a legal concept which reflects how a nurse is expected to act professionally. It incorporates the expectation that nurses conduct themselves with the degree of care, skill and knowledge that reasonably competent nurses would exhibit in a similar situation. It is important to remember that the standard represents a minimum level of practice to which nurses must adhere in order to avoid being found negligent. In other words, nurses do not have to exert heroic efforts to perform their job satisfactorily; they are expected to exercise their good judgment, education and training to the best of their ability, under the circumstances. Nursing care that falls below the acceptable standard of care may result in a medical malpractice lawsuit against the nurse. The standard of care is particular to each field of nursing practice. For instance, orthopedic nurses determine the standard of care for orthopedic nurses.

Injury or Damage.

To prove the element of injury the plaintiff must be able to establish that, in addition to pain and suffering, they have experienced a physical injury, lost money or have an actual reduction in the quality of their life. The injury which the plaintiff suffered will help to determine the monetary damages that will be awarded if the plaintiff succeeds at trial.

Causation.

Causation is often the most difficult element of medical malpractice to prove. In order to prove that the defendant caused their injury, loss or harm, the plaintiff must show that the defendant’s act or omission either caused, or was a substantial factor in causing, harm to the plaintiff. If the defendant proves that the harm would have occurred anyway, irrespective of the defendant’s act or omission, then the negligence action will fail for lack of causation.

Sources for the Standard of Care.

Where do nursing standards come from, and who decides what the standard of nursing care should be in each particular medical malpractice case? The answer is that the sources for nursing practice standards are varied. The court relies on some or all of theses sources to help determine the applicable standard of care in each individual case.
Some of these sources for nursing standards include:

1. Florida Nurse Practice Act, Chapter 464, Florida Statutes;
2. Other Florida Statutes and the Florida Administrative Code;
3. Case law;
4. Principles, guidelines and standards of professional associations such as the American Nursing Association (ANA);
5. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO);
6. Hospital Policies;
7. Standards of Care as testified to by other members of the profession; and
8. Authoritative Nursing Texts and Journals.


Nurse’s Accountability for the Standard of Care.

As a licensed nurse, you are expected to know what the generally accepted standard of care entails and follow that general standard in your daily practice. The policy and procedure manual of your facility should contain nursing care guidelines. However, if the facility you are working in does not adhere or comply with the generally accepted standard of nursing care, then, following the facility’s policies and procedures will not protect you from a charge of malpractice. This is because all nurses are accountable for the nurse’s standard of care. If you are aware that your facility’s policies and procedures are below the generally accepted standard of care, then you should promptly notify your nurse-manager or the risk-control committee of your concerns.

Conclusion.

Over the years nurses are becoming ever more likely targets for plaintiffs, and their attorneys, in medical malpractice cases. It is extremely important for a nurse to know the malpractice laws that encompass the nursing profession. By knowing each element of medical malpractice and the different standards of care that a nurse is held to. A nurse who can adhere to the different standards of care can avoid being held liable for medical malpractice.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) 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: 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. 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.

Nursing Liability and Nursing Malpractice – Part 1

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A wrongful act that causes harm to a person for which the law allows a person to recover is called a “tort.” The most common type of tort is one based on negligence. In order to recover form a tort based on negligence, there are four elements which must be met are that there is an act (or failure to act) in which the following are present: 1) a duty owed by the one performing the act to the one who is harmed; 2) an act (or failure to act) which breaches that duty; 3) actual damage or harm sustained; and causation (in other words, the act or failure to act caused the damage or harm).

Malpractice is just another name for professional negligence. Professional negligence is a tort committed by a licensed professional, in this case a nurse. In order to show nursing malpractice, one must show all of the elements of a negligence tort. The only difference is that in professional negligence, the duty that must be shown is the professional duty that the licensed professional owes to the one injured, in this case, her patient. Accordingly, the duty owed will be one of the nurses professional duties as a nurse.

I will discuss the concept of nursing malpractice further in this two-part blog series.

Defining Negligence.

Negligence is the failure to use such care as a reasonably prudent person would use under similar circumstances.

The law of negligence is part of what is known as “tort” law. The term “tort” originates from the French word meaning “wrong.” The law of negligence therefore deals with injuries or a wrong caused by one person towards another. Most negligence lawsuits are civil, not criminal, cases. A person can be found negligent even though they did not actually intend to harm the inured party, because negligent conduct is the behavior which results in unintended harm.

Defining Medical Malpractice.

Medical malpractice can occur when a health care professional fails to exercise the degree of care that a reasonable health care professional would exercise under the same or similar circumstances. In other words, medical malpractice is negligence committed by a health care professional.

Medical malpractice is a specialized area of law that deals with negligence claims against health care professionals. Medical malpractice is often perceived as conduct which is somehow more egregious than mere negligence. This perception is erroneous because medical malpractice is simply ordinary negligence by a healthcare provider that causes some injury to the patient.

Several years ago nurses were only liable for negligence. Although as nurses exercise more autonomy, their legal liability has changed. Courts in a number of states recognize and identify nursing negligence as a form of medical malpractice.

A Florida lawsuit helps to illustrate this point. In this case, a mother made a routine prenatal visit to the hospital. While in the waiting room the mother complained to the nurse of severe abdominal pain. Over the next hour and a half the mother complained of pain five times, each time she was told that she would have to wait to be examined. When the mother was finally examined her unborn child’s fetal heart rate was only 60 to 70 beats per minute. An emergency cesarean section was performed but the baby was born severely depressed, hypoxic, suffered from severe brain injury and developed seizures within the first hour.

In this case the nurse did not intend to cause harm to the baby or the mother, however the nurses failure to have the patient examined when she complained of severe abdominal pain and her failure to recognize the onset of fetal distress was negligent. A reasonably prudent nurse would have had the patient examined by a physician and recognized signs of fetal distress when the patient complained of acute abdominal pain. The hospital settled this case for $2 million.

The Four Elements of Medical Malpractice.

In order to prevail in a medical malpractice lawsuit, the plaintiff must prove each of these four elements:

1. the defendant owed the plaintiff a duty of reasonable care;
2. the defendant breached her duty;
3. the plaintiff incurred an injury, loss or harm; and
4. the defendant’s acts or omissions caused the plaintiff’s injury, loss or harm.

The plaintiff must prove each of these four elements by a preponderance of the evidence. A preponderance of the evidence means that it is more likely that the defendant committed the medical malpractice than not.

Check the Nursing Law Blog for More.

In the second part of this blog I will go into more detail about the four elements of medical malpractice. Check back next week for that blog.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) 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: 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. 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.

 

Florida Nurse Allegedly Filled Fake Prescriptions for Painkillers

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Central Florida nurse is in trouble with the law for allegedly writing fake prescriptions and illegally obtaining painkillers for herself, according to the Orlando NBC affiliate, WESH television. The nurse was allegedly arrested during the week of December 31, 2012. She is accused of trafficking in oxycodone and trying to fill forged prescriptions.

Click here to read the WESH article.

Pharmacist Did Not Fall For Fake Prescription.

According to an Orlando Sentinel article, a pharmacist, who was suspicious of one of the prescriptions the nurse tried to fill, called the doctor listed on the prescription. The doctor informed the pharmacist that she (the doctor) was the nurse’s employer, and the nurse was not a patient. It was then discovered that the nurse used the names of two doctors at her place of employment. She had stolen the prescriptions to obtain painkillers for herself.

A search of Florida’s Prescription Drug Monitoring Database allegedly showed that the nurse had obtained dozens of prescriptions for controlled substances for herself in the past year.

To read the article from the Orlando Sentinel, click here.

Check the Department of Health (DOH) Website for a Health Provider’s License Status. 

According to the Department of Health (DOH) the nurse’s license is currently suspended. A complaint on the nurse’s record also shows that in December 2009, the nurse admitted to stealing pain medication from her patients.

Preventing Employees from Stealing.

I recently wrote an article for Medical Economics on how to prevent or detect employee embezzlement in the medical or dental office. It contains valuable information for any small health care practice owner. Topics discussed in the article include: how to recognize embezzlement warning signs, steps to take to safeguard your assets, and the proper way to take action against a suspected embezzler. To read it in its entirety, click here.

I have also written a number of blogs on abuses with narcotics. See my blog on a fake prescription ring busted in Osceola County, and a Drug Enforcement Administration (DEA) arrest of a doctor allegedly on crack cocaine charges, for example.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) 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.

Comments?

As a health professional how do you keep tabs on your important office supplies? How would you handle an employee stealing from your office? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “Nurse Charged with Stealing Scripts, Illegally Obtaining Painkillers.” Orlando Sentinel. (January 3, 2013). From: http://articles.orlandosentinel.com/2013-01-02/news/os-nurse-arrested-prescription-drugs-20130102_1_fake-prescriptions-prescription-sheets-cvs

WESH-TV. “Nurse Accused of Illegally Obtaining Painkillers.” WESH. (January 3, 2013). From: http://www.wesh.com/news/central-florida/seminole-county/Nurse-accused-of-illegally-obtaining-painkillers/-/17597106/17995906/-/dmj2se/-/index.html?absolute=true

 

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. 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.

Almost 19% of Nurse Aides Charged with Abuse and Neglect, had Prior Criminal Records

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

A report released by the Department of Health and Human Services (HHS) Office of Inspector General (OIG) on October 5, 2012, found that nineteen percent (19%) of long-term care nurse aides who were found guilty of on-the-job abuse, neglect or property theft in 2010 had prior criminal records that would have showed up on a background check.

Click here to read the entire report from the HHS OIG.

Report is Part of the Affordable Care Act Background Check Program.

Section 6201 of the Affordable Care Act establishes a background check program. This voluntary program gives grants to states that support nursing home employee background checks.

The report was released to assess the ability of the background check program to help decrease the number of neglect, abuse and misappropriation of resident property cases.

Majority of Nurse Aides Convicted of Burglary, Larceny and Other Crimes.

Out of 1,611 nurse aides charged with abuse, neglect or property theft in 2010, 300 nurse aides had at least one prior criminal conviction. The Inspector General (IG) found the majority of disciplined nurse aides with records had been convicted of burglary, larceny or other crimes against property.

Of the 300 nurse aides, 170 of them had at least one conviction prior to their date of registration as a nurse aide. The remaining 130 nurse aides, each had at least one conviction after the date of their registration.

In a National Public Radio (NPR) story, a nursing professor from the University of California, San Francisco, said she is “most disturbed by the fact that nursing homes had hired some aides who’d been convicted of serious crimes.”

Click here to read the NPR article.

Contact Health Law Attorneys Experienced in Representing Nurses and Nurse Aides.
The Health Law Firm’s attorneys routinely represent nurses and nurse aides 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 http://www.TheHealthLawFirm.com.

Comments?

As a nurse, nursing aide or any other health professional, what do you think of this report? Please leave any thoughtful comments below.

Sources:

Schultz, David. “Among Disciplined Nurse Aides, Criminal Records Turn Up.” NPR. (October 11, 2012). From: http://www.npr.org/blogs/health/2012/10/11/162636910/among-disciplined-nurse-aides-criminal-records-turn-up

Wright. Stuart. “Criminal Convictions for Nurses Aides With Substantiated Findings of Abuse, Neglect, and Misappropriation.” Department of Health and Human Services Office of Inspector General. (October 5, 2012). From: http://www.thehealthlawfirm.com/uploads/Criminal%20Convictions%20for%20nurses%20aides.pdf

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.

 

North Florida Nurse Arrested for Neglecting Elderly Patient

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

An investigation led by the Attorney General’s Medicaid Fraud Control Unit (MFCU) ended with an arrest of a north Florida registered nurse (RN), in Suwannee County. The arrest was based on allegations of failing to assess and monitor a 94-year-old patient’s condition. The patient fell and broke her hip and shoulder, and later died.

Click here to see the full press release from the Attorney General’s (AG) Office.

RN Charged with Neglect and Falsifying Hospital Records.

According to the investigation, the RN allegedly failed to care for and monitor the condition of a 94-year-old woman. The RN is accused of falsifying hospital medical records to conceal her failure to provide proper nursing care to the victim.

The RN turned herself in to the Suwannee County Sheriff’s Office. The nurse faces up to five years and two months in prison and a $5,500 fine, according to the AG’s Office.

The AG’s press release states that this case will be prosecuted by the State Attorney’s Office for the Third Judicial Circuit of Florida.

Responding to a MFCU Investigation.

The MFCU is in charge of investigating and prosecuting health care providers suspected of defrauding the state’s Medicaid program. When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific patient records.

I previously wrote a blog with tips on how to properly respond to such a subpoena and how to be prepared to defend oneself. Click here to read that blog.

Contact Health Law Attorneys Experienced in Representing Nurses and Registered Nurses (RNs).

The Health Law Firm’s attorneys routinely represent nurses and registered nurses (RNs) in MFCU 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.

Sources:

Gainesville.com. “Nurse Arrested, Charged with Neglecting Elderly Patient Who Died.” The Gainesville Sun. (June 13, 2012). From: http://www.gainesville.com/article/20120613/articles/120619840

Meale, Jenn. “Attorney General Bondi Announces Arrest of Registered Nurse for Neglecting an Elderly, Disabled Adult.” Florida Office of the Attorney General. (June 13, 2012). From: http://www.myfloridalegal.com/newsrel.nsf/newsreleases/358A1FC528F9A06D85257A1C00729C63

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.  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.