Blog - Brown Law Office

Malpractice and License Claim Report

October 15, 2020 by LORIE A BROWN, R.N., M.N., J.D. 2 Comments

Every couple of years, the Nursing Service Organization (“NSO”) publishes a claim report and their most recent one is the 4^th edition and some interesting things surfaced. Since NSO provides insurance for nursing representation for medical malpractice and for the Board matters, the claims report is split into 2 sections: malpractice defense claims and license defense claims. You can check out the claims report here.

Of interest is that the number of medical malpractice claims have increased in home care because everything is outpatient these days and more and more patients are being discharged still with acute medical conditions to convalesce at home.

Regarding state Board of Nursing claims, I always knew that substance abuse was not the majority of claims before the Board. In fact, substance abuse and drug diversion represented 42.3% of professional misconduct matters which accounted for 32.5% of claims. Therefore, substance abuse and drug diversion was only 42.3% of 32.5% of all claims. Sixteen-point one percent (16.1%) of the 32.5% of all claims involved criminal conduct. Interestingly for the “most trusted profession,” criminal and drug diversion or substance abuse issues were pretty high.

Six percent (6%) of claims involved reciprocal actions meaning there was an action in one state, so another state took action. Twenty nine percent (29%) of claims involved provision of services beyond the scope of practice. This involved nurses making changes to patients’ prescribed treatments or administering medications that had not been prescribed. Forty-nine-point six percent (49.6%) of documentation matters involved fraudulent or falsified patient care or billing records. This is so interesting and can include failure to document.

One of the biggest concerns that nurses have is that their license will be suspended or revoked. Only 1.5% of licenses were revoked.

What also was interesting is that 45.6% of claims that are investigated actually get dismissed. Just because an investigation is being performed does not necessarily mean that action will be taken against your license.

So, the converse is true. Approximately 55% of licensed Board matters lead to some type of Board action against a nurse’s license.

Lastly, I hope I get this statistic correct: nurses are approximately 43% more likely to have Board matter rather than a malpractice claim.

It would be nice to see all of these numbers decrease because I truly believe the vast majority of nurses do their best to give excellent patient care with the information, staffing, equipment, supplies, conditions, etc., that they have

I would love to get your thoughts on the claim report. Please leave your comments below.

Speech Is Not Always Free

October 8, 2020 by LORIE A BROWN, R.N., M.N., J.D. 3 Comments

Typically, I don’t comment on cases that occur outside of the United States but I feel strongly to bring up a case now that is not only interesting but has implications for all nurses.

In 2015, a nurse from Saskatchewan, Canada posted a Facebook criticism regarding her grandfather’s care. Carolyn Strom made her posting as a private citizen, however, the Saskatchewan Registered Nurses Association (“SRNA”) found her comment to be professional misconduct. She was fined $26,000 Canadian Dollars (about $19,600 U.S.) which she tried to appeal in 2018.

However, that appeal was unsuccessful leading her to then appeal to the Saskatchewan Court of Appeal which overturned the SRNA and lower court decisions. The issue involved was freedom of speech and the statement which she had made in her personal capacity. The Court of Appeal ruled that “criticism of the health care system is in the public interest and when it comes to frontline workers it can bring positive change.” For the full story, click here.

For a number of reasons, this case has captured my interest. I am not aware whether she was charged with the Board’s attorney fees or exactly why her fine was so high.

Fortunately, she had the support of other organizations arguing on her behalf including the Saskatchewan Union of Nurses, the BC Civil Liberties Association and the Canadian Constitution Foundation.

As the matter progressed, Carolyn started a GoFundMe page which provided her with about $27,000 Canadian Dollars ($20,400 U.S.) to help with legal costs. I am sure those costs were expensive.

The SRNA, which is similar to boards in the United States, claimed that Ms. Strom should not have taken her initial grievance to Facebook but to their organization.

As I say, “You are a nurse 24/7.” Always be careful of what you post on social media! My belief is that nurses should have free speech and be allowed to speak up, regardless whether they be acting in their personal or professional capacity. That being said, at least the SRNA initially felt differently. It is unfair that any nurse would be forced to take on these legal fees to pursue a matter before the courts in order to receive justice.

I applaud Carolyn for her efforts in sticking to her beliefs and not being silenced for her personal beliefs about care rendered to her grandfather. I can’t imagine what she endured for this 5-year legal battle.

What would you do in this situation? Would you accept the excessive fine or continue your fight with an appeal? Let me hear below what you think.

Scam Bon Actions

September 3, 2020 by LORIE A BROWN, R.N., M.N., J.D. 4 Comments

You receive a letter from the Board of Nursing, and you’re scared to death!

Would you believe that, in Idaho, nurses are receiving mailings from the U.S. Department of Justice Drug Enforcement Administration accompanied by a cover letter from that state’s Board of Nursing notifying the recipient that their license is to be suspended. Click here.

On first blush, it appears to be official and all legal in notifying the nurse that their license is about to be suspended. It has the nurse’s name, registered address, an investigation number and even her nursing license number.

The letter asks for money to post a bond which MAY be refunded once the case is resolved.

These are FAKE!

There are red flags throughout this letter.

(1) The Board of Nursing would never ask for money upfront. You have an opportunity to contest your matter.

(2) One of the requirements cited in the letter was that the nurse was not to share or disclose anything about this “investigation” to any third party. An attorney is a third party. This letter does not say you have the right to talk to an attorney. This is paramount language for all Board matters. Some letters even say if you choose not to hire an attorney, we will consider this a waiver of your right to counsel.

(3) The letter demands you submit a refundable government security bond for which the Board never requests.

These are huge red flags that these letters and documents are not legal. In fact, the mailings are an act of fraud.

Unless a Board of Nursing takes action for emergency suspension, which is required to give notice, the nurse’s license cannot be suspended in any way without first having an opportunity to be heard. The Board also would have to give the nurse an opportunity to seek legal counsel.

It is infuriating that these scam artists play on the fears of dedicated, hardworking nurses to steal their money. A nurse getting such a communication would be terrified in thinking that their license is about to be suspended.

Any nurse who receives a suspicious letter from the Board of Nursing, any state or federal entity, should have as their first response to seek the advice of an attorney.

These scams are facilitated by the fact that a nurse’s information is a matter of public record and the thief has no challenge in getting the victim’s address and license number to initiate their crime.

Hopefully, you will note and take heed of the “red flags” noted above to protect yourself by immediately seeking the assistance of an attorney should you ever receive such mail.

Pass my warning around to all your nursing colleagues and please report any such scams to the appropriate authorities. This is our best way stop or at least curb this type of criminal behavior.

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