Lorie Brown interviews criminal attorney, Marc Lopez of Marc Lopez Law to discuss the difference between Dismissal and Expungement in criminal matters and how each affect matters before the Board of Nursing or the Exclusion List with the Office of the Inspector General (OIG).
Each year 7,000 nurses have some type of discipline put on their license.
When a Board disciplines a nurse, it can usually do 1 of 4 things.
- Give the nurse a reprimand which is like a slap on the wrist.
- Place the nurse’s license on probation.
- Suspend the license.
- Revoke the license.
The most common option seems to be placing the nurse’s license on probation. This is called an encumbered license which will be noted in the public records. A nurse on probation may have a difficult time finding a job with an encumbered license and it must be disclosed to any potential employer.
Furthermore, a potential employer can easily find this information on nursys.com or on the website of the Nursing Board in your state. In addition, the nurse will be reported to the National Practitioner Data Bank any time an action is taken against their license.
One of my sayings is it’s easy to get on probation and may be hard to get off probation. At least in Indiana, to get off probation, a nurse must petition the Board and actually attend a hearing where the nurse is put under oath and the proceedings are transcribed by a court reporter.
The nurse then must present an opening statement, call witnesses, introduce evidence, cross examine any opposing witnesses and then present a closing argument. This is a legal proceeding and the nurse has a right to be represented by an attorney.
The nurse not only must show that she has complied with every requirement of the probation but also present that the conditions that led to her license being placed on probation are no longer present.
My best words of advice are to take your probation seriously and comply with every requirement as if your livelihood depended on it! In fact, it very well may determine your future career as a nurse.
If you are required to submit documents to the Board, make sure that you send them via certified mail or, in the alternative, by email … and make sure you keep copies of everything.
As I noted, finding a job may be difficult while on probation however, nurses are needed now more than ever.
Rather than just submitting an employment application online, I advise you to find out who the “decision-maker” is and talk directly to that person.
Probation is not the end of the world but you do want to avoid that possibility because prevention of a problem is the best defense.
In Midland, Texas, 6 nurses who contracted with Midland County Detention Center were criminally indicted recently for manslaughter, criminal negligent homicide and tampering with a governmental record allegedly failing to keep proper records and possible false charting. There is not much information in the media to glean except that it involved nebulizer treatments. There is no mention of the medication in the nebulizer treatments.
This is very concerning that nurses are being indicted criminally. They may have made a mistake. Does that rise to the level of criminality?
I believe that it may be malpractice, if proven, but should nurses be charged criminally for making a mistake?
I have discussed and written on this matter previously regarding RaDonda Vaught. As you may recall, she is the Vanderbilt Healthcare System nurse who gave a patient Vecuronium rather than Versed for a patient undergoing radiologic imaging. The patient became paralyzed including her respiratory muscles and she died.
The Tennessee Nursing Board originally chose not to file disciplinary action against Ms. Vaught. However, when criminal charges were filed against Ms. Vaught, the Tennessee Board of Nursing chose to reconsider and then did file charges against her.
Now, Ms. Vaught is facing disciplinary action against her license which could lead to the revocation of her license. She wants to fight the criminal charges and the Nursing Board matter.
Unfortunately, when these things happen, the nursing board matter often is addressed sooner than the criminal matter.
Ms. Vaught’s attorney argued to the Board that its matter should be stayed until resolution of the criminal matter. The Board did not agree.
Originally, her Nursing Board Hearing was scheduled for May 20, 2020. Ms. Vaught’s criminal trial was scheduled to begin July 13, 2020. However, I believe, with COVID, all of these things have been continued as my reference was pre-COVID.
According to the Fifth Amendment, every American citizen has a right to protect themself against self-incrimination. However, Ms. Vaught does not feel she can successfully defend her nursing license unless she is allowed to testify. Unfortunately, her criminal attorney will not allow her to testify as the attorney has recommended that she plead the protection of the Fifth Amendment.
Because it is an administrative agency, the Nursing Board can determine whatever weight or inferences to a nurse pleading the Fifth Amendment. I believe that when someone pleads the 5th, it should not be used against them.
Ms. Vaught’s attorney is appealing the decision to require her to proceed in the Nursing Board matter prior to her criminal trial but I do not believe there has been a ruling yet.
I can understand why the nursing board would require a nurse to resolve their nursing board matter as soon as possible because when a nurse with a serious allegation is pending, there is concern for the safety of the public.
In some states, the board will request that you agree to a voluntary suspension of your license while your criminal matter is proceeding. This is a fair resolution because most likely, a nurse will not be working with a criminal matter pending and a complaint against the nurse’s license pending. The worst thing about this is that even if the criminal matter is dismissed or you get a not guilty verdict, the nursing board can still determine the case on its merit.
Post Traumatic Stress Disorder (PTSD) occurs in nursing from repeated direct and indirect exposure to traumatic situations. Nurses see every part of humanity: the good, the bad and the ugly.
In a study done prior to the COVID pandemic, 95% of psychiatric nurses in the nation matched the criteria for exposure to PTSD. Another study showed that 24% of ICU and general acute care nurses reported PTSD symptoms as well, while only 17% of emergency room nurses had a probable PTSD diagnosis.
Karen J. Foli, an associate professor at Purdue School of Nursing in Indiana, published an article in April noting that of the 1478 questionnaires, 372 nurses commented about job trauma they had experienced. Responding nurses who work longer shifts and are exposed to unsafe situations that jeopardize patient safety only intensified these findings.
Nurses are required to hurry through tasks, going without food and hydration during their shifts, sometimes without even a restroom break, resulted in unwittingly falsifying patient care documentation. Nurses experienced a range of emotions among which were stress, anxiety, grief, guilt, anger, burnout, and flashback.
According to a February 3rd press release from the University of California at San Diego (USC-San Diego Health), the suicide rates for the nation’s female nurses was 10 out of 100,000 while for male nurses it was 33 per 100,000! This data was compared to the general public counterparts which were 7 out of 100,000 for females and 27 per 100,000 for males.
According to the World Health Organization, suicide is the 10th leading cause of death in the global population. It is so sad that nurses are the forerunners in these studies. Most nurses recover naturally from the mental and physical toll that befalls them, however, a small minority will not.
As a nurse, it is important that you get the help that you need, to work in a safe, supportive workplace and to get early intervention if necessary.
Here are some courses available from nurse.com which can help you understand more about PTSD and anxiety disorder.
In the meantime, if you are not working in an environment that is safe and supportive, maybe you need a change because your mental health and wellbeing are too important, and so is your license. You can always get another job but not another license.
Let me preface this article by saying that long term care nurses work so hard. This article is not about the problems in long term care but an after effect of nurses speaking their mind. Reuters published an exposé on June 10, 2020, titled “Special Report: Pandemic Exposes Systemic Staffing Problems at U.S. Nursing Homes.”
In this article, residents complained about how they have called for nurses and not only does no one respond but the call light is shut off.
In one nursing home, a double-amputee hoisted herself into her wheelchair to take herself to the nurses’ station to get the help she needed. In another home, a resident was found sitting in a puddle of urine which was seeping into her coccyx wound.
These are the issues of the longstanding problem with staffing shortages and how they are reflective of chronic turnovers in nursing home.
Of the more than 100,000 COVID deaths in the United States, 40% are connected to long term care facilities.
The article discusses that in one facility, a teenage Certified Nursing Assistant was taking care of 30 residents. The article discusses how management failed to provide protective gear or to communicate how the virus was spreading. One nursing assistant noted that when she brought her own mask to work, management told her not to wear it.
Nurse, Lisa Harmon, who supervises weekend shifts, spoke up about the care and how when health care workers get ill with no one to replace them, the ones on duty have to take care of many more patients. After the article was released, she was barred from the building.
Another nurse who was interviewed about issues at the facility, Colleen Lelievre, was terminated for allegedly making clerical errors involving narcotics for residents. It’s suspicious how this was conveniently discovered just 2 days after the article came out.
It sounds like what was happening at the facilities was improper and endangered patients due to short staffing.
I’m not sure what has since happened with either of these nurses, but it is concerning that nurses who speak up are not being allowed to work or are even terminated afterwards. Nurses should be able to speak their mind about their care.
Nurses should not be afraid of speaking up about bad care. I encourage all nurses to stick together if there is a dangerous situation because that is the only way we can improve patient care.