Nurse Attorneys, Lorie Brown and Todd Ess of Brown Law Office, P.C., discuss the consequences of criminal matters on a Nurse’s license, this also includes other healthcare providers such as Physicians, Pharmacists, etc. The discussion not only includes matters before the Board of Nursing, but pleading guilty to a felony, accepting a diversion, as well as the Office of the Inspector General’s (OIG) Exclusion List.
In a recent court case Stubblefield v. Morristown-Hamblen Hospital Association, where a patient underwent a cardiac catheterization procedure and was on a nitroglycerine drip, the patient begged the nurse to stop the nitroglycerine drip because of nausea and headache. The nursing staff refused and continued the drip. The doctor was never notified. It was later discovered that the patient had developed a hematoma and pseudoaneurysm in the groin and had to be taken to surgery to repair her femoral artery, no doubt due to vasodilation of the blood vessel from the nitroglycerine.
The patient brought a lawsuit against the facility and the nurse alleging battery and failure to properly assess the patient’s groin. The Plaintiff had hired a nurse expert witness to say it was below the standard of care to not abide by the patient’s wishes and notify the physician and failing to properly assess the groin area. However, the nurse expert received a phone call threatening that if she testified, she will lose her job.
There was what’s called a summary judgment proceeding which means if the Plaintiff/patient does not have an expert, the case will be dismissed.
Since the nurse expert had to withdraw at the last minute due to threat of loosing her job, they did not have an expert and the judge dismissed the case. However, the Court of Appeals recognized the witness intimidation of the threat to lose her job and sent the case back to the trial court for further review.
The point of this story is that if you are a witness in a medical malpractice case or choose to serve as an expert, it is important to tell the truth and if you feel you are being coerced or threatened or manipulated in any way, tell someone.
These tactics only serve to pollute our criminal justice system which is one of the best in the world. You may or may not agree with malpractice cases but that is why we have our legal system in place for a jury of our peers to decide these issues.
I’m curious as to whether you’ve been subject to witness intimidation and what did you do about it. I’d love to hear your comments below.
It is unusual for a matter before the Nursing Board to find its way into the court system primarily because of the cost. Recently, in Pennsylvania, one case did exactly that and wound up in court brought by an LPN.
In this particular case an LPN was charged on July 16, 2014 with 3 counts of drug related offenses and a count of disorderly conduct. To the charge of disorderly conduct, she entered a nolo contendere plea where a guilty plea is entered but the Defendant does not admit to the crime. She pled nolle prossed to the other 3 charges which means they were dismissed.
The LPN denied engaging in these types of behaviors but the Board believed the court documents and suspended her license for a period of 6 months. The National Council State Board of Nursing for the years 1996 through 2006, collected information showing 126,130 (more nurses than tin the entire state of Indiana!) actions were taken against nurses. 13% consisted of suspension and 7% consisted of revocation. Suspension is the second most common taken action. Probation was the most common Board action taken.
But what is interesting about this particular case is that the Board based the suspension on the conviction of a crime of moral turpitude which is an active behavior that gravely violates the sentiment of accepted standard of the community. However, the Court of Appeals stated that it was not a crime of moral turpitude and disagreed with the Board’s interpretation.
In my limited experience with these types of appeals before a court, this is a great result! I would love to see more people question the Board and appeal their actions to a regular court so that the Board can stay in check. Unfortunately, these kinds of matters are very expensive to pursue. The Boards have unbridled authority to do what they wish … and this needs to stop! This was an LPN who appealed the decision and I am so glad that the court agreed with her.
What are your thoughts? Let us know in the comments below.
On December 13, 2017, at Hiram Davis Medical Center in Petersburg, Virginia, a nurse was talking with Dr. Motsumi Moja while they were awaiting an elevator. During the conversation, he put his hand on her shoulder, removed his hand slowly, thus with intent, moving it across her breast. He then asked whether her breasts were real or fake
She was not only shocked, she was devastated!
The nurse reported the incident to the HR department but no response was forthcoming after several days. She was adamant in taking steps to ensure that this doctor would not violate anyone else. She spoke with her director of nursing who assured the nurse that immediate action would be taken and the police were called.
Dr. Moja was charged and found guilty of sexual assault and battery. Then, he was reported to the Board which, during its investigation, learned of similar comments he made to other nurses such as, “I’m going to the restroom. Want to come with me?” When that nurse refused, he reportedly said, “Are you sure? I don’t think I can handle it on my own.”
He had several inappropriate actions with multiple health care professionals. Now, guess what the Board did? They reprimanded him! That was it! No suspension, no probation, no nothing. And after that proverbial slap on the wrist, if you can believe it, Dr. Moja is appealing the Board’s disciplinary action as well as the criminal conviction. The burden of proof in criminal cases is much higher; beyond a reasonable doubt but in civil matters or administrative matters, it is much lower and only a preponderance of evidence.
When I read about this case, I was stunned and in disbelief.
Should a nurse, in any way, attempt to inappropriately touch a patient or make improper comments, serious action would be levied against that nurse’s license. This reaction to Dr. Moja’s offensive and invasive actions is quite disappointing. If anything can be taken away from this, it is that the victim nurse stood up for herself and reported the inappropriate behavior (again, sexual assault and battery).
However, the response from HR and the Virginia Board was wholly lacking though Dr. Moja at least now has the public record of a criminal conviction accompanying his credentials. The public now can know to avoid that physician.
I am disappointed with the Virginia Board for not taking more stiffer action with Dr. Moja. It sends a message that it is ok to be found guilty by a jury for sexual assault and battery, but you can continue to practice unimpeded. I think the man should be evaluated for being a sexual predator. If this were the nursing Board, much more serious action would be taken. If there is any concern for the public, the nursing Boards are very aggressive in their action.
What do you think of this crime and subsequent travesty? Let me know your thoughts below.
A guest blog by Evan Brown
Nursing boards take public health very seriously. In the interest of protecting public health, most boards take extra precautions to make sure that nurses licensed in their state have a proven track record of delivering excellent care. This includes a critical examination of nurses’ personal and professional histories.
Although you may be thinking that whatever happened was outside of work, the boards take the position that you are a nurse 24/7.
In most states, a blemish on one’s license or criminal record will not automatically bar a nurse from licensure of practice. The nursing board instead will conduct an investigation and make a decision in light of the circumstances at the time. In order to conduct an investigation, nursing boards need to be aware that an incident occurred. For this reason, nursing boards across the country have created self-reporting regulations for nurses to bring their criminal and disciplinary histories to the board’s attention.
Every nursing board asks about criminal and disciplinary history in its initial application for licensure and again on renewal. Boards differ in terms of what infractions must be reported. In general, any arrest, misdemeanor, felony, or plea of nolo contendre (an acceptance of the conviction without an admission of guilt) must be reported. Sometimes nurses must even report expunged convictions. Few require nurses to report minor traffic violations. When applying for licensure in a new state, every board also asks about prior and current disciplinary action by another board of nursing on the applicant’s license. An affirmative answer to any of these questions will often require the submission of court records and a written explanation of the event.
What about criminal convictions that occur after a nurse has received his or her license? When should these convictions be reported to the board? At minimum, every state board requires nurses to report such incidents when they renew their license. However, most states require self-reporting closer to the time of conviction. These timeframes range from “immediately” to between 10 and 90 days. One state, Arizona, requires notification of an arrest within 10 business days. Only in Massachusetts, Rhode Island, and Virginia is there no duty to self-report. These states often rely on automatic police and court reporting to the board, it is still wise to self-report.
It is always best to self-report as soon as possible, even if the board neither requires a self-report yet nor at all. Doing so demonstrates honesty and initiative, which an appreciative board may take into account when determining a response. Seeking rehabilitation or counseling, performing community service, and other voluntary measures of atonement can also help the board look more favorable on your case.