Collateral Damage to Nurse's Lives Through an Unjust Process

Disciplinary action against nurses by Boards of Nursing has greatly increased over the past few years. Nursing Boards destroy careers by reporting thousands of nurses a year to the National Practitioner Data Bank and data bases like Nurseys, before charges are adjudicated.. It is impossible to believe that all of these nurses are guilty of some act that warranted their career being leveled. Yet nurses who are disciplined often for minor, non-injurious offenses and hundreds more who have non-adjudicated charges, are reported to the National Practitioner Data Bank. Even if they are later found on the basis of law and fact, to be not guilty, their names are forever listed in the data bank. Employers search the data bank before hire and will not hire nurses who are listed.

Nurses all over the country are subject to cruel treatment as they await in limbo the outcome of unduly long investigations often lasting ten to twelve months, during which time the nurse is essentially left in the dark denied the right to know the totality of the allegations against her. The Investigator does not interview the nurse or seek to develop insight into the nurse’s side of the story. Never does the Investigator seek the nurse’s input to clarify such things as interpretation of documentation in the medical record, written allegations by witness’s or other evidence. The investigation is conducted as a criminal investigation though basic civil rights of the defendant are denied. The nurse is treated as a criminal and presumed guilty.

Investigators are often without any nursing or medical training and yet they decide upon whether the standard of nursing care was met. Investigators without nursing or medical experience, training and education cannot possibly accurately determine if the standard of care was breached or understand the impact of mitigating circumstances. Nursing Board's employ non-nurses and criminal investigators as well as some nurses with distant clinical, bedside experience. These investigators not only do not have the education to determine if a nurse breached the standard, but neither can they properly interpret medical and such records as medication dispensing machine transaction logs. They are unable to apply real life experience and understand the big picture. Investigators will not speak to the nurse if she has an attorney, yet Board investigators are notorious for being non-responsive to the nurse's attorney requests for information. Nurses also should be afforded the right to have dialogue with investigators as only the nurse can effectively respond to the investigators developing charges.  Nurses are left to twist in the wind throughout the process, without a voice and most often without the ability to practice nursing and support themselves and their families.

Nurses are denied the ability to practice and earn an income. When going through the phases of a disciplinary actions, nurses are forced into financial hardship with such agonizing outcomes as losing their homes and vehicles, loosing medical coverage for themselves and their families or loosing such as the ability to pay for their children's schooling, dental needs, medications or simply pay the bills. It is a time of great despair, loss, shame, fear and undue hardship. It is a process that destroys lives as nurses who are innocent or who made a non-injurious, first time error are treated not only as if they are guilty but also as if they are criminals. The process is unduly punitive and cloaked in secrecy.

Many a nurse has discovered they are being made to suffer such torment based on employer retaliation most often for speaking up regarding patient safety concerns. Employers are given immunity from being held to their actions and complicity in creating unsafe conditions in which things predictably went wrong or fell through the cracks. Nurses are then scapegoated as the hospital protects themselves. Employers claim peer review immunity (sham peer review) as they scapegoat the nurse for being a victim of unsafe staffing levels, being assigned too heavy and too acute of assignments, or having inadequate resources or assistance in getting a patient's needs addressed. Boards of Nursing hear from accused nurses such mitigating circumstances all the time, yet they fail to hold accountable to the Nurse Practice Act those nurse leaders who knew of and allowed such threats to patient safety. Employer's and claimed witnesses provide solicited, accusatory statements to the Board that the nurse will never have the opportunity to review or rebut, because the employer has been granted immunity. And the Board will take those statements as fact as they are permitted to consider as evidence hearsay. This would never be permitted in criminal or civil cases, only in administrative law. Because of the Nursing Boards refusal to seek to uncover the root cause of breaches in the standard of care, mitigating circumstances, and complicity of Nurse Leaders they permit the continuation of unsafe conditions therefore failing to protect the public. They further fail to protect the public when they ignore exculpatory evidence in non-comprehensive investigations and in doing so permit the real wrong doer to continue to place patients at risk.

 

Nurses also find themselves reported to the Board for stable, non-impairing emotional challenges such as depression, anxiety or even insomnia.  Nurses are human and life often presents painful losses or struggles. Nurses who seek appropriate care and continue to practice safely, are subject to Board discipline not on the basis of actual impaired practice but instead on the basis that their illness may impair their practice.  A judgment is made by criminal investigators who have no training in mental health issues. The Board may request the nurse submit to a MMPI personality inventory at the nurse’s own expense. However, even if the MMPI fails to demonstrate characteristics that may affect safe practice, nurses still find their licenses restricted. The Board takes the position that a diagnosis is not necessary and that all they require is what they deem a probability.  Board retained Psychologists or Physicians will then be presented at trial as experts against the nurse and offer opinion on the nurse’s psychological state or personality traits. Very few nurses are able to afford experts to testify on their behalf. Without question at State Administrative Hearings (trial) the deck is stacked against the nurse who does not have the resources to put on a strong defense. Many nurses are forced to represent themselves at trial as they seek to be heard.

 

The Board also far over reaches its boundaries in judging nurses as lacking in morality or  engaged in dishonorable conduct. The Nurse may again be disciplined because extrapolated from some personal, off duty event, is what the Board may conclude a probability of future conduct that is not in keeping with the character worthy of a nurse (whatever that is.) Board’s of nursing warn that a nurse’s conduct is  An example is a nurse in Texas was alone in a parking lot when a male aggressively approached her. She reached for her gun found in her car. The man was a notice server serving her with notice of her husband having filed for divorce.  The process server declined to press charges and no police action was taken. Yet the Board intervened and revoked the nurses license for conduct that may lead her to jeopardize patient safety.

The Board of Nursing must be brought under a standard of clear and convincing evidence that a risk to patients reasonably exists based on fact. Even if a nurse proceeds to an Administrative Hearing where such a standard is used, the Board can disregard the Judges finding that the Board failed to meet their burden of proof. In no other arena of law can a prosecutor refuse a Judge's ruling outright and simply proceed to punish the defendant as they see fit. Attending a SOAH hearing is also far beyond what a nurse can financially afford. There is no civil right allowed of being assigned an attorney.  After long periods of loss of income, paying the cost of Board ordered polygraphs or personality testing, few nurses can afford the 30,000.00 to 50,000.00 cost of a trial.  Nurses simply are not permitted their civil and constitutional rights when defending themselves against unjust or even fabricated charges.

 

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