Nurses, No More Excuses: Get Personal Professional Liability Insurance Policy Now-Part 2

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

Nurses, I am writing this to strongly encourage you to purchase your own professional liability insurance policy. I have noticed many nurses fail to carry any insurance to protect one of their most precious assets, their nursing licenses. Yet such insurance is cheap and easy to obtain. Professional liability insurance will protect a nurse in the event of a lawsuit, and it may also pay legal defenses in the event of a complaint against a nurse’s license to practice or for other legal problems. If you already have nursing liability insurance, make sure it also pays all legal expenses incurred in defending a complaint against your license.

I’ve heard every excuse as to why a nurse does not have professional liability insurance. In this blog series, I am exploring many of those excuses. I want every nurse to understand the importance of buying personal professional liability insurance now, before it is too late.

This is part two of the series, click here to read part one.

Excuse: Professional Liability Insurance is Expensive.

All nurses should protect themselves by obtaining professional liability insurance. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The costs on these policies vary, but it is generally quite reasonable. It is common to find professional liability insurance that provides excellent coverage and excellent benefits for less than a dollar a day. We’ve seen policies cost as low as $10 to $15 a month. That is a small price to pay to protect your livelihood.

Excuse: Licensure Defense Coverage Is Not Necessary.

When you buy professional liability insurance, again, it is very important you make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000. If it does not, I recommend you purchase a “rider” or additional coverage from that insurer for a small additional premium.  Also, attempt to obtain “broad form coverage.” This will pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one).  There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late.

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?

Do you have personal professional liability coverage? Are you thinking about getting a personal policy now? 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.

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Florida Woman Arrested for Allegedly Posing as a Nurse, Giving Botox Injections-For Second Time

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 Boca Raton, Florida, woman was arrested on June 21, 2013, after authorities say she posed as a nurse and offered Botox injections. The fake nurse has been charged with unlicensed practice of a health care professional. If found guilty, the phony nurse could be sentenced to up to five years in jail. This was a joint investigation between the Florida Department of Health (DOH) Investigative Services Unit, the City of Boca Raton Police Department and the Florida Department of Corrections.

To read the press release from the DOH, click here.

Undercover Agents Visited Fake Nurse at her Place of Business.

According to The Palm Beach Post, officials began their investigation of the fake nurse on June 6, 2013, after receiving an anonymous tip. Local police officials and the DOH set up an undercover sting. Days later an undercover agent scheduled a Botox appointment with the phony nurse and then visited the office. Hours later, investigators allegedly arrested the fake nurse.

Click here to read the entire article from The Palm Beach Post.

According to the DOH, this is not the first time she has claimed to be a nurse and got caught. The same phony nurse was allegedly previous arrested for unlicensed activity in Palm Beach, Florida, according to DOH authorities.

Verifying the License of a Health Care Professional.

This particular woman allegedly claimed to be an operating room nurse and on the website Groupon.com she allegedly claimed to be a surgical nurse.

The DOH has several resources to fight unlicensed activity. Patients are encouraged to check the DOH’s website to verify the license information of their health care providers. Complaints can also be filed calling the DOH. Click here to view the DOH’s website.

Practicing Without a License Is a Crime.

Practicing medicine without a license is a crime. Additionally, so is helping someone practice medicine without a license. As a practitioner, you may be asked to supervise or join a practice. Remember, your license may be at stake with any wrongdoing by your subordinates. Before you join a practice or agree to supervise others, check first with the DOH that the other providers are legitimate. You can verify a license for free on the DOH’s website.

Remember, a license to practice medicine in Venezuela, Cuba, or anywhere else, is just that: a license to practice in that country. It does not allow a person to practice medicine in the United States.

More Stories on Fake Physicians and Other Health Professionals to Come.

In the future on this blog, we will continue to include additional articles on fake doctors and health professionals.

To see a blog on a fake South Florida dentist and the damage he inflicted on a teenage girl, click here. To read a blog on an infamous Florida teen impersonating a physician assistant (PA), click here. You can also read the story of a fake plastic surgeon in New York by clicking here.

Contact a Health Law Attorney Experienced in Representing Health Care Providers in DOH Cases.

If you find yourself working for or supervising someone that does not have a valid Florida license, your own license may be at risk. If and when the Department of Health (DOH) becomes involved, do not sign anything, do not speak to the investigators and do not make any statements. Contact an experienced health law attorney immediately to review your case.

The Health Law Firm represents physicians, nurses, dentists, pharmacists, pharmacies and other health care providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Agency (DEA), Department of Health (DOH), and other law enforcement agencies. If you are aware of an investigation of you or your practice, or if you have been contacted by the DEA or DOH, contact an experienced health law attorney immediately.

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 are your thoughts on this story? Please leave any thoughtful comments below.

Sources:

Florida Department of Health. “Joint Investigation Leads to Arrest in Palm Beach County.” Florida Department of Health. (June 21, 2013). From: http://newsroom.doh.state.fl.us/wp-content/uploads/newsroom/2013/05/062113Goldman.pdf

Alcantara, Chris. “Woman Arrested a Second Time for Allegedly Posing as Nurse, Offering Botox Injections in Boca Raton.” The Palm Beach Post. (June 22, 2013). From: http://www.palmbeachpost.com/news/news/crime-law/woman-arrested-a-second-time-for-allegedly-posing-/nYSDh/

Entin, Brian. “Sheri Goldman: Boca Woman Arrested After Police Say She Offered Botox, Told People She was a Nurse.” WPTV. (June 21, 2013). From: http://www.wptv.com/dpp/news/region_s_palm_beach_county/boca_raton/boca-woman-arrested-after-police-say-she-offered-botox-and-told-people-she-was-a-nurse

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 Registered Nurses Finalize Union Agreement with HCA

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

Registered nurses at ten HCA hospitals in Florida have reached a collective bargaining agreement with the hospital chain. After negotiating for over a year, National Nurses United–a union for registered nurses–announced that it finalized the agreement with HCA on May 7, 2012.

The agreement affects over 3,000 Florida registered nurses at HCA hospitals. It will be effective for three years.

According to National Nurses United, Florida HCA management has agreed to establish a committee of elected nurses at each hospital to make recommendations on improving patient care. The contract also protects nurses against forced overtime and provides for a new wage system based on experience.

Milestone for Florida Nurses.

This collective bargaining agreement is a milestone for Florida nurses. It provides some degree of security and assurances of fairness to nurses before they can be terminated. Internal grievance procedures will have to be complied with by the employing hospital which will no longer be able to arbitrarily terminate a nurse.

Unionization Means Written Contract for Nurses.

This also means that nurses employed by the hospital will now have a written contract and will have contractual rights. Most nurses work as “at will employees” without a contract. This allows them to be fired for any (non-discriminatory) reason or no reason at all. This will prevent that from happening from now on.

This also has an advantage even for those nurses who are not union members. The labor contract will apply to them, too, giving them contract rights, as well.

Union Representative.

Although the union believes that the RNs covered by the new agreement will greatly benefit from it, there are often problems that arise from union negotiations that may not be initially apparent.

For example, the nurse employee will have the right to have a union representative present at any disciplinary proceedings, interviews, or investigations by the hospital employer. A nurse may feel that having a union representative present will ensure that his or her legal interests are protected. However, this is not always the case. A union representative will generally not do anything to jeopardize the union’s relationship with the employer. Additionally, the union representative is not a lawyer and often will not be able to provide legal strategy, legal advice, or good defenses to the nurse.

Union reps should never be mistaken for legal counsel. They will likely have no legal background and are not a substitute for an attorney.

Nurses Unfairly Accused of Diverting Narcotics.

This firm has heard from a number of nurses employed by hospitals across the state and regularly represents them. Often we are contacted by nurses who state that they are unfairly and incorrectly accused of diverting narcotics from patients or pilfering them from Pyxis, Diebold or ther brands of automated pharmacy dispensing systems. Many of these have been terminated by their employers even though their drug tests came back negative or they passed a polygraph examination (lie detector test).

When nurses are unionized and have contractual rights, this helps to end unfair and arbitrary terminations. Such abuses by hospital employers cause nurses to decide to vote in favor of unionization.

Contact Health Law Attorneys Experienced with Nursing Issues Today.

The attorneys of The Health Law Firm provide legal representation to nurses, nurse practitioners, and CRNAs in investigations, contract negotiations, licensing issues and at Board of Nursing hearings.  They also advise nurses wrongfully accused of diverting drugs and those wrongfully terminated from employment.  Its attorneys represent nurses in DOH investigations, Board of Nursing cases and administrative hearings.

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

Sources Include:

Dymond, Richard. “Nurses Win First Bargaining Contract with HCA’s Blake, Doctor’s Hospital.” Bradenton Herald. (May 8, 2012). From
http://www.bradenton.com/2012/05/08/4029914/nurses-win-first-bargaining-contract.html

Peters Smith, Barbara. Registered Nurses Reach Labor Agreement with 10 Florida Hospitals.” Herald-Tribune. (May 7, 2012). From
http://health.heraldtribune.com/2012/05/07/registered-nurses-reach-labor-agreement-with-10-florida-hospitals/

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.

Nursing Professionals Cannot Afford to Not Carry Nursing Malpractice Insurance

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

Nurses: Please Protect Yourself With Professional Liability Insurance.

I am writing to strongly encourage you to purchase nursing professional liability insurance that covers you for complaints and investigations initiated against you and your nursing license.

I am not affiliated with any insurance company.  I am not receiving any commission, fee or reimbursement for writing this article.  My concern lies in the many, many nurses who contact our firm with Emergency Suspension Orders, Notices of Investigation, Administrative Complaints and Final Orders from the Department of Health, Board of Nursing, who do not have the funds to hire an attorney to defend themselves.

Employers Generally Do NOT Provide Legal Defense.

Many nurses mistakenly believe that their employer insures them for these types of events or that their employer will provide a legal defense.  In the vast majority of cases, this is false.  Often it is the employer that files the complaint against the nurse that causes the investigation.  If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any Department of Health investigation or subsequent administrative proceedings that arise out of your employment.  It is unlikely that you will get it.

You Will Need an Experienced Health Law Attorney to Help Navigate Department of Health Proceedings.

You need an experienced attorney to represent you in any sort of Department of Health complaint investigation from the very beginning.  The administrative law process is complex, especially when there is an Emergency Suspension Order or Administrative Complaint.  It is easy for a nonlawyer to be confused and to waive important legal rights that result in discipline on your license, requirements that cannot be met or the revocation of the nursing license.

For example, many nurses believe that if they elect an informal hearing, they will be allowed to go before the Board of Nursing and argue the facts of their case to their peers.  This is not true.  If you elect an informal hearing, you are admitting that all material facts stated against you in the Administrative Complaint are true (in effect you are pleading guilty).  You will only be allowed to argue about what discipline should be taken against you since you have admitted to the offense(s).  You have waived your right to a “formal hearing” where you are allowed to testify and introduce evidence to show you did not commit the offenses.

If you receive an Emergency Suspension Order and you believe you can successfully appeal it, you might be surprised.  Any such appeal is a formal legal appeal to a Florida District Court of Appeal (DCA).  This is a very formal procedure that only examines legal errors made by the Department of Health, Board of Nursing, in taking the action it took.  Furthermore, everything stated in the ESO is assumed to be true for the purpose of the appeal.  You are not allowed to dispute the facts stated in the ESO.

An appeal requires formal legal research and analysis, the preparation of legal briefs that comply with strict appellate rules of procedure.  Most nurses do not have a clue how to do this.  Even among attorneys, the practice of filing and arguing appeals is considered to be a legal specialty because of its complexity.

Additionally, there are other actions that an experienced health attorney may take, if you have an ESO or Final Order, that may be far more effective and expeditious to obtain relief for you than appealing it.

Regardless, if you do not have the money (usually $10,000 or more) or insurance coverage to retain the services of an experienced attorney to represent you, you may have little hope of successfully defending yourself from untrue or unjust complaints, from preventing an undesirable result, or from obtaining relief from an ESO or Final Order.

Make Sure that Your Professional Liability Insurance Covers Professional Licensing Defense.

If you have professional liability insurance, make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000.00.  If it does not, you should be able to purchase a “rider” or additional coverage from that insurer for a small additional premium.  Also, attempt to obtain “broad form coverage” that will also pay for your legal defense costs for other types of regulatory and administrative proceedings such as:  a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one).  There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

At the very least, however, you should have the basic coverage to defend you in a complaint against your nursing license.

Research Your Insurer’s Policy on Attorney Selection.

You should also check with the insurance company before you purchase a policy to determine if the insurer will allow you to choose your own attorney in a licensure defense action.  Some insurers may require you to use the attorneys with whom they contract, removing your ability to make this decision.

Insurance Companies That Provide Professional License Defense Coverage for Nurses.

Insurance companies that we are aware provide professional license defense coverage for nurses, include the following:

Nurses Service Organization (NSO) Insurance

Proliability Insurance Co. (endorsed by the ANA)

NurseGuard Insurance from Granite State Insurance Company

Healthcare Providers Service Organization (HPSO) Insurance

CPH & Associates Insurance

MAG Mutual

The Chicago Insurance Company

Nursing Malpractice Insurance is a MUST for all Nurses.

Nursing malpractice insurance that contains professional licensure defense coverage is inexpensive and can be easily and quickly obtained online.  The premium payments for this type of insurance for an R.N. or L.P.N. is usually less than $250 per year.  Monthly payment plans are usually available.

We highly recommend that every nursing professional purchase it, even if you work for a hospital, the state or federal government, or in an administrative position.
Other Resources

Butler, T.: “Nurse’s Professional Liability Insurance,” LoveToKnow.com, at:
http://insurance.lovetoknow.com/Nurse%27s_Professional_Liability_Insurance

Chapman, D.:  “Professional Liability Insurance For Nurses – Important Facts,” (GoArticles.com,  Jan. 30, 2012) at:
http://goarticles.com/article/Professional-Liability-Insurance-For-Nurses-Important-Facts/6021710/

“Frequently Asked Questions about NP Liability Insurance” at:
http://www.acnpweb.org/i4a/pages/Index.cfm?pageID=3468

MacKay, T.:  “Worried About a Malpractice Lawsuit? The Board of Nurses Should Worry You More,” at:  http://www.healthlicensedefense.com/WorriedAboutaMalpracticeLawsuit.html

Wood, D.:  “Do Nurses Need Their Own Professional Liability Insurance?” (AMN Healthcare, Inc., 2011), at:
http://www.travelnursing.com/news-and-features/print-article/do-nurses-need-their-own-professional-liability-insurance/32984

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.

Advice for Nurses Regarding Department of Health Investigations

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

We see and hear about a lot of incorrect legal advice being given to nurses regarding what they should do if they are being investigated.

The incorrect advice being given even includes mailings they may have received containing a brochure “What Every Nurse Needs to Know” published by the National Council of State Boards of Nursing. It gives advice in response to the question: “What should you do if you are the subject of a complaint?” It advises the nurse to contact the Board of Nursing (BON) immediately in such an event and states that the complaint will be handled in a “fair and appropriate matter.” It advises that a BON representative will describe the investigation process and answer any questions that you may have about an investigation if a complaint is filed against you.

This does not appear to be sound advice and we would warn nurses against following it. Such advice may cause great damage to any defenses you may have, even if you are totally innocent.  If you don’t believe me, then contact a nurse who has been investigated and has received discipline and ask him or her what he or she thinks about this.  Alternatively, attend a Board of Nursing meeting and observe first hand the disciplinary cases that come before it (you can even get free continuing education credits for doing this) and talk to some of the nurses there.

You Have a Constitutional Right in Florida to Refuse to Make a Statement

Most states, Florida included, do not require you to make any statement to an investigator (or attorney) working on a Board of Nursing complaint.  We recommend that you not do so.

Under Florida law, your constitutional right to not make any statement that might help to incriminate you applies to such proceedings. Nurses are often falsely accused of misconduct or wrongdoing by patients, families of patients, employers and rivals. Most states do have adequate procedural safeguards in place that, if used by the nurse, will help to ensure the correct outcome of the matter. However, you must first know what these rights and safeguards are, and then know how to use them to your advantage in such proceedings. Very few attorneys are experienced in such matters and even fewer nurses are.

Investigations That May Affect Your Professional License Are Considered to Be “Penal” or “Quasi-criminal” Investigations

You should think of the investigation in the same light as a criminal investigation against you if you were wrongfully accused of a crime. In the case of a BON complaint, you can lose your license, lose your career, and be assessed monetary fines in the thousands of dollars. Why would you want to contact the investigator in such a matter and make statements that can later be used against you, if you don’t have to?

In most states, Florida included, the burden of proof is on the state to prove every element of the case against you. However, if you make any statements to the investigator (or the attorney for the Board), oral or written, this can be used against you. Even the simplest, most innocuous statements can cause you tremendous difficulty, because anything you say is something the state is no longer required to prove in an investigation or a hearing.

Even the Simplest Statement You Make Can Be Used Against You

For example, the state may not have an admissible document or a witness who is available at the time who can state that you actually saw or treated the patient. Without being able to prove this, the state may not be able to prove any charge against you.

Yet if you make a simple statement that you did treat the patient, the state no longer has to introduce any other proof of this. You have helped the state to prove its case against you without even meaning to do so. You have now made the case against you quicker, easier and less expensive for the state to prove; you may have made the case against you possible to prove when otherwise the state would not have been able to prove it at all.

Board of Nursing Does Not Usually Give Legal Advice to Nurses

It has also been our experience that BON representatives and staff do not have the time or resources to answer every question you may have. Furthermore, BON representatives are not able to give you legal advice on what to do. Even if you do speak with an attorney representing the BON, that attorney is not allowed by law to give you legal advice. Remember, the attorney representing the BON works for the state and is similar to a prosecutor. If you were charged with a criminal offense, would you call up the attorney prosecuting you and ask for her or his legal advice on what to do?

Nursing Liability Insurance May Cover Your Legal Defense of a Complaint Against Your License; Call Your Insurer Right Away

If you have nursing malpractice insurance, your professional liability insurance will most probably pay for your legal defense of a complaint filed against you, for a subpoena sent to you or for any deposition you must give. The need for defense of a complaint filed against you with the state licensing agency occurs many times more frequently than the need to defend a nursing malpractice claim or suit. This is the main reason we recommend that every nurse purchase nursing malpractice insurance. It is very inexpensive and usually provides excellent coverage.

However, always check to make sure that it will cover your legal expenses in a nursing complaint whether or not it results in a potential malpractice claim. If possible, purchase a rider to raise the limits of such legal defense payments for licensure defense to at least $50,000. If this is not available from this insurer, purchase a second policy.

Most nursing professional liability insurance allows the nurse to select the attorney of his or her choice to defend her or him. This is a very desirable feature to have in a professional liability insurance policy. Otherwise, the insurance company will reserve the right to pick your attorney, whether or not you agree with the choice.

Your Employer Ain’t Gonna Cover You

Many nurses make a terrible mistake thinking “I work for a hospital;  the hospital insures me.” Or “I work for a nursing home, the nursing home insures me.” This is not correct when it comes to complaints filed with the Board of Nursing or Department of Health. A hospital will have insurance (or will self-insure) to cover itself, not you. A nursing home will have insurance to cover itself, not you. If you have a complaint filed against you with the Board of Nursing, it is very rare that your employer will pay for your legal defense;  additionally this will almost never occur if you no longer work for that employer.

In many cases, and in most cases we have seen in the past, it has been the employer hospital or the employer nursing home that has filed the complaint with the against the nurse. You don’t think the employer is going to pay for your legal defense if it has filed the complaint against you, do you? In addition, the employer who has filed the complaint, in the vast majority of cases, also fires the nurse. So you may be out of a job as well as not be able to pay for a legal defense of your license.

If your employer obtains an attorney to represent you in a matter, ask the attorney: “Do you work for me or the employer?” Also ask: “If there is a conflict between my defense and the employer’s defense, will you continue to represent me or will you represent the employer?” Ask these questions in writing and get the answer in writing.

Failing to purchase professional liability insurance to protect your license is not very smart given how inexpensive it is. You have worked many years to obtain your professional license. You and your family have spent a great deal of money for your education to achieve it. If you can’t afford a legal defense, you may be forced into accepting a settlement agreement (also referred to sometimes as a “stipulation” or a “plea bargain”) for some type of disciplinary action. Even if you only receive some small disciplinary action, this will be shown on your license forever. It will be reported to national reporting agencies and will prevent many employers, especially the good employers from hiring you. It may even bar you from working in some circumstances. If you have a professional license in another state, it will be reported to the other states and similar disciplinary investigations will be started against you in these other states.

Consult with an Experienced Attorney, Regardless

Even if you don’t have insurance that covers your legal defense in an investigation that has been opened against you, please locate and consult with an experienced health lawyer who routinely defends nurses in nursing board cases. Additionally, don’t believe or rely on all of the rumors, gossip and “legal advice” that your colleagues who are not lawyers (or even your lawyers friends who are not experienced health lawyers) will give you. The fee for the legal consultation is worth the price. Make your decisions from a position of experienced knowledge, not one of ignorance or false assumptions.

We recommend that if you receive any notice or indication that anyone has filed a complaint against you with the BON or any other licensing agency that you do not contact the BON, its investigators, or any of its representatives.  We recommend that you immediately contact an attorney who specializes in defending nurses before the BON.

Locating an Experienced Attorney

If you are unable to locate an attorney experienced in handling nursing cases, contact The Health Law Firm, The American Association of Nurse Attorneys (TAANA), the American Health Lawyers Association (AHLA), or your state bar association, by telephone or by visiting their website. Ask for a referral to such an attorney. Be sure to ask the attorney how many similar cases has she or he actually handled before the Board of Nursing.

This Advice Applies to Other Health Professionals as Well

The foregoing information applies to doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, and all other licensed health professionals;  not just to nurses.

The attorneys of The Health Law Firm represent nurses, doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, physical therapists, respiratory therapists, medical students, residents, interns and all other licensed health professionals, in Florida and also in states other than Florida.  In many states we are permitted to represent the health professional in investigations and administrative proceedings.

The Bottom Line:  Don’t Talk to Investigators

The bottom line is:  Don’t talk to an investigator until your attorney has checked him or her out and advises you it is okay to do so.  This will rarely happen.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

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.