Blog - Brown Law Office

Nursing And The Coronavirus

March 12, 2020 by LORIE A BROWN, R.N., M.N., J.D. 2 Comments

A nurse working at Kaiser in California took care of a patient who was positive for the coronavirus. She volunteered to care for this patient because she had training on the recommended protective gear. Her assumption was that should something happen to her, she would be cared for.

Unfortunately, after a few days passed, the nurse became ill. She put herself on a 14-day self-quarantine period. However, she could not get tested to confirm whether she had contracted the coronavirus. At that time, she was put on some type of list.

The United States has the lowest number of tests conducted for the coronavirus as compared to the rest of the world. It goes without saying that if we cannot get tested, how do we know who has it and then how can we limit the spread of the coronavirus?

Fortunately, this nurse had the support of her union, National Nurses United, which hosted a press conference on this matter at 11:00 A.M. PDT on March 12, 2020. You can listen to it here.

What concerns me about this situation is that this nurse took care of a patient with confirmed coronavirus and became ill. My issue with this nurse who became ill after she cared for the patient is that if it is not proven that she contracted the coronavirus during her treatment of the patient, her employer would have grounds to deny any workers compensation claim she might make.

It is very important that nurses who are exposed to the coronavirus get the proper documentation, so they not only get their time off but also for any medical care co-pays and any other sequelae.

I hope nothing like this happens to you, but it possibly could. Approximately 65 employees from the nursing home where many of the deaths from coronavirus are now ill but unable to get confirmatory testing. It’s scary that all these people are getting infected and I am hopeful they can contain the virus.

In the meantime, do whatever you can do to keep yourself healthy including taking vitamin C, exercising, drinking plenty of fluids, get adequate sleep and taking probiotics.

What has your facility done in light of the coronavirus outbreak? Have any specific precautions been put in place there to protect you?

Please share in the comments below.

Nursing Scope Of Practice

February 13, 2020 by LORIE A BROWN, R.N., M.N., J.D. 2 Comments

Have you ever worked somewhere and your supervisor says, “Just write an order for that. We always do that to help out the physicians.”

In that situation, you feel like you’ve been put between a rock and a hard place. Your supervisor is telling you one thing and your gut is saying, “Hey! Wait a minute! I don’t have an order. I don’t have a policy and procedure and the physician is not available for me to ask.” Your gut tells you that this is something you should not do yet your Supervisor is ordering you to do exactly that.

This is a dilemma in which nurses frequently find themselves.

If you are asked to do something outside of the scope of your practice … trust your gut … don’t do it! The physician just might not cover you for what you did.

In addition, know your facility’s standing orders which are those that you can adjust medications based on labs and things like that. But they must be in the actual order or in the policies and procedures.

Taking it upon yourself to adjust or order medications or order labs is improper without the protection of a standing order or a policy and procedure. This would be called practicing medicine without a license and exceeding your scope of practice.

In addition, as nurses, we know too much. Sometimes when we have a pain, we are inclined to take a pain medication that we had around for a long time that was prescribed for another purpose or a previous episode of the same event. This also is considered practicing medicine without a license and exceeding your scope of practice.

It is really important that as nurses, we set the example. We cannot borrow a pain medication from someone else because we hurt our back. We have to go through the proper procedures as we are held to a higher standard than the general public and need to go through the same channels that the general public goes through. When we are sick, we go to the doctor, emergency room or urgent care to get a prescription.

If you are asked to take a drug test and have a positive urine for a medication for which you don’t have a prescription or a medication that has expired or prescribed for another reason, it is very difficult to protect and defend yourself.

When you take an expired medication or one borrowed from someone else, you are self-prescribing and practicing medicine without a license and exceeding the scope of your practice. It also is considered diversion because the medicine was not prescribed specifically for you or for that reason. Diversion simply means taking something from where it was supposed to go and moving it to another place.

This is such a big issue in healthcare.

Although you may not feel well, go to the doctor who knows the best way to help you. In this way, it is documented that everything was properly prescribed.

When you are faced with these difficult ethical dilemmas and you don’t have policies and procedures to support you, stand in your power and tell your supervisor that you do not feel comfortable doing something which is outside the scope of your practice.

Although you may fear you might lose your job, as I often say, you can always get another job but not another license.

Nurses As Independent Contractors

February 6, 2020 by LORIE A BROWN, R.N., M.N., J.D. 1 Comment

A new law went into effect in California last month regulating “gig” labor. The legislation was aimed at companies such as Uber and Lyft which inappropriately classify their drivers as independent contractors. The hope was that if they were to be labeled “employees,” they would be entitled to regular employment benefits such as minimum wage, sick pay and insurance benefits. However, the unintended consequence is that this could affect registered nurses, certified registered nurses, anesthetists and nurse practitioners.

This legislation came from an April 2018 California Supreme Court ruling that independent contractors must be free to perform their work as they choose and it must be in a different line of work from the contracting company and the independent contractor must operate their own business.

Here, nurses, CRNAs and NPs are not allowed to work as they wish but must conform to the hospital’s policies and procedures while working in the same line of work as the company contracting their services.

The legislation requires an ABC test which the independent contractor must:

Be free from the hiring entity’s control;
Do work which is “outside the usual course of the hiring entity’s business”; and
Be established in a trade similar to the work being performed.

If nurses work as independent contractors, they’re working within the course of company’s usual business. So, they would fail Part B of the test.

The upsides of the law are that nurses who lack the ability to get benefits can unionize and receive legal protection and health insurance now will be able to have those benefits provided.

Although California’s new law is stronger than many similar laws, 20 states have already implemented the ABC test in one form or another. Therefore, if you take away that this pertains only to the Golden State, you must think again.

There are many pros and cons to being an independent contractor versus an employee. As an independent contractor, you usually can work when you want, make more money and have more write offs than would a traditional employee such as anything that can be considered as a business expense if you are contracting as a business.

The downside to being an independent contractor is that the hospital does not pay their share of taxes which, of course, means you will owe more taxes.

That notwithstanding, having a nicer paycheck upfront certainly is helpful.

Be very careful if you are working as an independent contractor and should have been an employee. This considers your status as misclassified as an independent contractor rather than properly as an employee. There are serious consequences such as owing back taxes to the state and federal governments which could include penalties.

Trusted Nurses

January 23, 2020 by LORIE A BROWN, R.N., M.N., J.D. Leave a Comment

In a Gallup Poll, nursing has again been voted as the most trusted profession for the 18^th year in a row.

One of the reasons it has been so long acclaimed is because of nursing ethics. However, anything that nurses do that may not put our profession in the most favorable light, can be detrimental.

In an MTV reality TV show “Scrubbing In”, they portrayed nurses going to bars in their scrubs. This negatively portrayed the nursing profession. We are held to high standards, just like a physician. Because we are a nurse 24/7, If we go out and drink, we should not wear our hospital attire, nor should we get behind the wheel of a car.

Be careful of any behavior which could be negatively interpreted by the public. As stewards of health, let’s do our part to put our best foot forward in all situations whether or not we are at work.

Having a criminal matter can reflect negatively on the profession. Because we are nurses 24/7, having a positive urine test even with a valid prescription, the Board cannot tell when you took that medication, even if you did take it after work.

Just remember, as a nurse, we are under the public spotlight. Ask yourself if you would have judgement toward a nurse engaging in certain behaviors. If the answer is “Yes,” then don’t do it! For example, if you take controlled substances off work, and the same medication you took comes up missing or a patient says they never received it, it will be difficult to defend yourself.

As nurses, we want to help. But sometimes, helping can mean crossing the line. One nurse went to the ATM for a patient across the street and the patient now claims she never received the money.

I am proud to be a member of the most trusted profession. Hopefully it offsets the reputation of some attorneys! Please join me in continuing to make nursing the most trusted profession and being professional even when you’re not at work.

Malpractice Claims are on the Rise with Electronic Health Records

January 9, 2020 by LORIE A BROWN, R.N., M.N., J.D. 2 Comments

According to The Doctor’s Company, a medical malpractice insurance company, more and more claims are being filed as a result of Electronic Health Records (EHR). Because of drop down menus and lack of alerts, patients are getting harmed.

In one example, a physician intended to order 15mg of Morphine. The drop-down menu gave him the choice of 15mg or 200mg. The physician mistakenly ordered the 200mg. The patient took the 200mg Morphine with Xanax and became somnolent and spent the night in the hospital.

There are numerous problems with copy and paste. In one case, a 38-year-old man presented to his PCP with symptoms of shortness of breath and dizziness. The man died 5 days later of pulmonary embolus, the Plaintiff’s Attorney was able to show that the physician copied and pasted his previous note into the visit just prior to his death. Not only is this information available in the audit trials to show everything which was done to the EHR, but the same exact vital signs were copied, and numerous spelling errors were noted in the previous note and copied with the same errors. The allegation was failure to properly assess this man. Had he been properly assessed; the physician would have been able to identify signs and symptoms of a pulmonary embolus.

Risk management strategies include:

Do not copy and paste anything except patient’s past medical history if you are sure it is accurate.
If your EHR auto populates information, ask that that feature be removed.
Be extra careful in selecting items from a drop-down menu and make sure it is correct.
Make sure you read and review prior medical records, so you have an accurate history.
If you use a scribe, you are responsible for the entry so double check to make sure it is accurate.
It is easy to save your charting for later and even do it at home but how do you remember the information? Remember attorneys can find out what time the patient’s visit was scheduled and what time the entry was made.

What do you do to avoid malpractice with EHR? I would love to hear your comments below.

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