Workplace Issues Archives - Brown Law Office

Nurses With Substance Abuse Problems

June 14, 2018 by LORIE A BROWN, R.N., M.N., J.D. 6 Comments

Recently, an article in The Atlanta Journal Constitution detailed how the Georgia Board of Nursing secretly handles more than half of its disciplinary cases. What I gather from the article is that nurses who are put into a monitoring program, as long as they are compliant, will have not have discipline against their license.

The article pointed out that in 2017, the Board has 333 new disciplinary orders. Of that number, 54% were private with just under half of that group being alcohol or drug related. In order for the Board to issue an emergency suspension, the Georgia Attorney General’s office says the nurse must be an imminent threat to the public.

By the time the complaint reaches the Board, the accused nurse has usually already entered rehab and has been viewed as safe.

At one time in Indiana, if a nurse entered into a monitoring program, then no action would be taken against their license as long as they were compliant with the program. However, since that time, the Board has gone 180 on that position and now feels that anyone with a substance abuse problem should be disciplined and have their license placed on probation or suspension. Also, that discipline should be public record for all to see.

Substance abuse is a medical issue. I don’t believe that anyone wakes one morning deciding to abuse drugs. I think there is a part of the brain that craves these substances and there are some people who are more susceptible to substance abuse than others which may indicate the problem could be genetic.

The article continues in discussing other types of Boards and what are considered private vs. public. The Board of Physical Therapy in Georgia, almost all of their orders are private, whereas the Medical Board has only 18% considered to be private.

It would be nice to see some consistency among Boards and states. Just because someone is lucky enough to live in Georgia when they develop their substance abuse problem, versus their peer in Indiana, why should each be treated differently?

I believe everyone deserves a second chance. If a nurse develops a substance abuse problem, is able to successfully participate in the monitoring and is active in their recovery, is it necessary to disclose their medical condition to the public?

However, if they have a relapse, at least they have the initial opportunity and then it can become public record.

Do you believe the public has a right to know if a nurse had a substance abuse problem and is in recovery? Do you think these matters should be private? I would love to hear your thoughts in the comments below.

Criminal Charge For Nurse In Patient’s Death

May 24, 2018 by LORIE A BROWN, R.N., M.N., J.D. 7 Comments

On April 12^th of this year, Christann Shyvin Gainey, L.P.N., was caring for a patient named H.R. McMaster, Sr. who was recovering from a stroke in a Pennsylvania facility. During her shift and unwitnessed, Mr. McMaster fell and nurse Gainey was seen on surveillance video failing to perform neuro checks thereafter as required by the facility’s policy. Mr. McMaster was found dead sitting in the lobby of the facility. He suffered blunt trauma to the head from an unwitnessed fall and developed a subdural.

Nurse Gainey has now been criminally charged for the involuntary manslaughter of Mr. McMaster and faces possible other charges as well.

I wish to point out that the late Mr. McMaster was the father of President Trump’s former National Security Advisor, H.R. McMaster, Jr.

What bothers me about this case is that, if the claims are true, then this is malpractice. She had a duty to perform a neuro check and breached that duty by not doing it. Had she performed the neuro check, it is possible that Mr. McMaster’s declining neuro status would have been recognized and he might have had treatment and survived.

This is negligence; not a criminal matter. I have been involved in several of these types of cases and I don’t know of any nurse who was charged criminally. If every nurse who fails to do something could be subject to criminal charges and loss of their livelihood and freedom, what person would want to ever go into the nursing profession?

Every day, nurses have the duty to do the most difficult things in taking care of their patients. Yet, if their freedom should be on the line by being subjected to criminal charges, that is another story. We don’t know if she had 50 patients to care for or what was happening that night.

According to the news accounts, Ms. Gainey tried to cover up the neuro checks and reportedly falsified her paperwork by documenting the neuro checks and one 20 minutes after Mr. McMaster passed away. The video showed otherwise.

Admittedly, this is just one side of the story and it belongs to the prosecutor. We will not full story until when and if everything is released.

If it is proven that Nurse Gainey falsified the medical record, and apparently there is video to document this, that would show a fatal flaw.

I hope this does not set a precedent to criminally charge nurses for what should be classified as negligence. I hope Ms. Gainey is acquitted. It is sad to think that there may be a different handling of a case if a patient is connected to someone who worked at the White House.

I’d love to hear your comments below.

Nursing Boards: Why Are They So Harsh?

May 10, 2018 by LORIE A BROWN, R.N., M.N., J.D. 1 Comment

I am frequently asked why nursing boards are so harsh. The Boards are composed of nurses and shouldn’t the Board understand the situations in which nurses get involved?

California has had issues with their Board. California has a separate Board of Nursing for Registered Nurses and one for License Vocational Nurses. The RN Board is called the Board of Registered Nursing (“B.R.N.”). In some parts of the country, licensed vocational nurses are called licensed practical nurses, L.P.N.

In 2009, the Los Angeles Times and ProPublica analyzed the records of 2,400 California nurses who faced disciplinary action by the Board between 2002 and September 2009. What they found was that many of these nurses were allowed to continue in their practice while they still had serious allegations against their licenses. The investigation process took so long. They were left free to practice for years while the investigations continued. Many of these nurses simply moved to another state where they continued to practice

The then governor, Arnold Schwarzenegger, replaced most of the B.R.N. due to the extreme length of time it was taking the Board to discipline egregious conduct. It is my opinion that the other Boards learned of this and did not wish to become the subject of criticism and publicity like in California.

However, despite the previous California problems, it appears that the California Board of Registered Nursing is still having issues due to delays in resolving complaints against nurses accused of negligence involving patient injury or death or posed a serious risk of harm to others.

At the closing of 2016, an auditor’s report showed that there still was a delay in resolving these complaints. The audit reviewed 40 cases between June 1, 2013, and June 30, 2016, and found that the Board failed to resolve 31 of those complaints.

There was one complaint against a nurse for a toddler’s death in which there was a delay in referring it to the Consumer Affairs investigators. This complaint took more than 3 years (39 months) to resolve during which time the nurse was allowed to continue to practice!

One of the concerns with the California Board was that its state’s Medical Board has 1 staff member for 900 licensees while the Nursing Board has 1 staff member for 3,000 licensees. I know that funding is a big issue for these Boards. But, when you look at the Medical Board compared to the Nursing Board, the former has more staff and takes much less action against their licensees than does the latter.

I think Nursing Boards are a representative of nurses. In my addresses, I often provide case studies and ask my audience what they would do if they were a member of the Board in those matters. Some interesting responses included taking actions that would be more serious than that which the Board actually took.

Unlike the Nursing Board, the Medical Board protects its licensees. It may not be appropriate for Boards to protect doctors who are not safe to practice but, at the same time, excessive action against nurses is also is inappropriate. When a nurse is accused of the same conduct as a physician and if nothing is done against the physician’s license while sanctioning the nurse for the same conduct, that is not proper.

I am hoping that the Board can find a middle ground when protecting the public as well as rehabilitating the nurse. While I am an advocate for nurses, if a nurse should not be practicing then there is nothing that can be done to help them.

Do you believe Nursing Boards are excessively harsh? If so, what would be your suggestion(s) to resolve this? Let me know your thoughts below.

Initiatives to Stop Violence Against Health Care Providers

May 3, 2018 by LORIE A BROWN, R.N., M.N., J.D. Leave a Comment

Guest Blog by Mathew Keller, RN, JD. Reprinted with Permission from The American Association of Nurse Attorneys (TAANA)

The forcible and violent July 26^th, 2017 arrest of Utah nurse Alex Wubbels was a proverbial shot heard around the nursing world, provoking national media attention and a visceral reaction of support for nurses culminating in national campaigns to #EndNurseAbuse (ANA), #STAMP (stop assaults against medical providers, Show Me Your Stethoscope), and initiatives to escalate assaults in medical facilities to felony levels (NNU and other nurse unions).

But how did we get here? Statistics show that anywhere from 13 to 82 percent of nurses experience physical assaults each year, translating to a Department of Labor estimate of 22,250 to 80,710 incidences of physical assault in healthcare facilities in 2011. Indeed, there were several instances of violence in healthcare around the same time as the Wubbels assault that were perhaps also deserving of a national spotlight: In May, a nurse in Illinois was taken hostage at gunpoint and raped/beaten for 3.5 hours; in June, Massachusetts nurse Elise Wilson was brutally stabbed by a patient; and a month before the Wubbels assault, a former employee of a New York hospital gunned down a physician and wounded several others.

Given the frequency with which these instances occur, it’s often not a question of whether or not a nurse will experience an assault, it’s when. So why isn’t more being done?

Perhaps a better question is, what can be done?

A review of the research presents a somewhat cynical view. In a New England Journal of Medicine literature review, James Phillips, M.D. found that:

The most recent critical review of the literature in 2000 identified 137 studies that described strategies to reduce work-place violence. Of these studies, 41 suggested specific interventions, but none provided empirical data showing whether or how such strategies worked.

Phillips goes on to describe the lack of evidence showing the efficacy of metal detectors as well as training programs, two commonly proposed interventions, in reducing workplace violence.

Despite their popularity amongst many in the profession, there is also a lack of evidence showing that felony laws for assaults in healthcare settings are effective in preventing workplace violence, as well as ethical concerns from some corners regarding reporting patients to law enforcement. However, such laws may get at the heart of a perhaps larger issue: a culture that accepts workplace violence as simply “part of the job” or that blames nurses for the violence perpetrated against them.

This culture is reflected in estimates that only 30% of violence incidents against nurses are reported, with nurses relaying that they fear retaliation, a lack of support, or simply that there will be no response from hospital administration; that they have not been trained on the reporting process; or that they are simply too understaffed (often a precipitating factor in workplace violence) and don’t have the time to report. Indeed, administrative support may be one of the larger factors in preventing instances of workplace violence.

Other creative solutions may prove fruitful in the future as well. For example, the VA has implemented a system which flags patient charts if they have perpetrated incidents of violence. Such patients may be put on a remedial plan where they must be escorted by security while on premises, may never be alone in a room with a provider, or can only be seen during certain hours.

As always, more research is needed. But one thing is certain: as nurse Wubbels found out, nobody else is going to take a stand for us. So when the spotlight hits, it’s on us as a profession to act together and seize the initiative to move the ball forward. See the below case study for such an example.

Case Study: Minnesota Passes Violence Prevention Against Healthcare Workers Law

In November 2014, a patient at St. John’s hospital in Minnesota attacked eight nurses with an IV pole, with one nurse suffering a collapsed lung. The incident was caught on surveillance film which was later released, gaining widespread local coverage as well as some national coverage.

Recognizing the opportunity, nurses in Minnesota teamed up with legislators and local law enforcement in an attempt to pass a comprehensive workplace violence prevention law requiring the following:

Healthcare facility establishment of a Safety Committee that develops incident/preparedness plans
Incident/preparedness coordinated with and given to local law enforcement
Annual staff training on violence reporting, de-escalation, violence prevention plan
Statewide, annual reporting to the Minnesota Nurses Association regarding incidents violence
NO interference with employees who wish to contact LE to report violence/press charges

Initial efforts were strenuously opposed by the Minnesota Hospital Association on the grounds that legislation would limit local hospital flexibility and cost too much money. The Hospital Association countered with a bill that would raise assault against healthcare workers to a felony level.

Nurses and their allies were able to overcome these objections on the strength of collective and individual efforts at the state capitol (including powerful nurse testimony regarding experiences of violence) as well as the momentum of media coverage. In 2015, the law was codified as MN Statute 144.566.

There continue to be issues with the law, including the following:

Many nurses, facilities, and managers unaware of requirements
Definition of incident of violence: “Act of violence” does not technically include verbal assault
A $250 fine may not be enough to induce compliance
If facility is not dedicated to a zero-tolerance philosophy, how effective will the law be?

Lessons Learned:

Media attention on an individual instance of workplace violence goes a long way to raising awareness of the issue and it behooves the profession to take advantage of such opportunities
Partnering with law enforcement is an effective tool for lobbying as well as key to addressing incidents of violence at the local facility level
Personal stories were much more persuasive than statistics at the Capitol
Facility/administration buy-in to zero-tolerance and violence prevention is all-important to true violence prevention efforts

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