The Cost of A Board of Nursing Investigation and Adjudication
The cost of a Board of nursing investigation can be excessive and complex. Most nurses immediately retain an attorney. We do not advise against obtaining the assistance of an attorney. We do work with nurses who are represented and we refer nurses to specific attorneys when indicated. We have found however, there are but a few licensing attorneys that seem to fight for the nurse. Recently, I had a licensing attorney tell me that she felt “so bad” when she knew a nurse had a chance of dismissal but could not afford to CONTINUE to fight. The reality is the nurse should not have to “fight” to prove their innocence over a long period of time. Sadly, though long, drawn out “fights” just to be heard are all to common experiences with nursing Boards. Licensing attorneys are best described as negotiators and not litigators. Litigators take a position of defending the client. Negotiators seek to get the best deal.
What if however, you do not want “a deal”? What if you want the charges dismissed because they are false? Many of the nurses we work with have been falsely accused. Reasons are many for filing a complaint with the Board of Nursing that are fabricated. It is not uncommon, in fact it is frequent, to see retaliatory complaints. I worked on a case where the jealous girlfriend of a client's former husband filed a complaint with the Board of Nursing that made several false, impugning accusations against the nurse’s practice. The Board knew the complaint was filed by a party with a likely nefarious intent. The Board of Nursing however, proceeded with filing charges based on this false complaint. The process was dragged out for two years when the nurse was finally permitted to present her case in an Office of Administrative Hearing, pre-trial mediation.
Though the nurse’s attorney had repeatedly filed the nurse’s rebuttal to the charges and evidence that the allegations were not true, the Board simply ignored the nurse’s rebuttal. Many nurses give in after enduring years of a process that Nursing Boards appear to deliberately prolong in the hope the nurse will concede. When this nurse appeared before the Administrative Law Judge, in an attempt to mediate, it quickly became clear there was no merit in the claims against her. The board was forced into the position of dropping the charges.
In another case a nurse was falsely accused after a bad outcome occurred revealing several system errors in the hospital. The Center for Medicare Services had been involved and the hospital scapegoated the nurse. The board again pushed forward with charges that were, according to the facts and the law, false. One charge was the nurse had failed to administer and document an antibiotic on time. The reality was that the records clearly demonstrated the antibiotic in question had been given on time and documented correctly and accurately. Throughout the nearly three-year agonizing process, the board simply failed to address this glaring error of their own that the Investigator had not noted the accurate and complete documentation of the antibiotic. Again, it appeared that the Board was less concerned with the truth and more concerned with forcing charges simply because there had been a complaint.
I once had a Board attorney tell me that he, “does not need evidence or proof of wrongdoing.” As he continued: “All I need is a to know is there was a complaint and that the respondent is a nurse.” Another Board attorney proudly informed a classroom full of nurses that she does not need a positive drug or alcohol test to charge a nurse with abuse of substances and being intoxicated at work. This attorney claimed that all she needed was a witness to report that they had seen the nurse “acting strange, slurring their words or stumbling.” I remember thinking I have slurred my words and stumbled likely more than once, after having a run of 13 traumas or after a particularly gruesome shift where I never got a chance to eat. Yet here in lays the truth, Boards of Nursing assume a complaint is true. That is why it is so especially important for nurses to first request their complete file so that they can review what the Board is relying upon and then as soon as possible request an informal hearing to be given the opportunity to present the evidence. Some Boards do not allow for informal hearings or conferences, as in such cases the nurse only has the opportunity for an unbiased hearing in a mediation with an Administrative Law Judge. Proceeding all the way to a State Office of Administrative Hearings trial is fraught with risk. The deck is stacked against the nurse at trial where the Board will put on several expert witnesses. The Board has the funds to put on a case that most nurses simply cannot afford. The other reason Administrative Trials are a poor bet is because even if the Administrative Law Judge’s proposed decision is that charges should be dismissed, the Board has not duty to follow the Judge’s proposal. This is only one of the shocking realities of Administrative Law.
When a nurse hires an attorney, she will be required to pay a 3,000.00 to 5,000.00 retainer. The problem is it does not take long for the attorney to exhaust the retainer. This is something the nurse is unlikely to have thought of since they did not expect the process to drag on for years. As the investigative and adjudication process drags along the attorney will bill hourly. Most attorneys charge upwards of 150.00 to 300.00 an hour. One can only imagine the cost as the attorney bills for phone calls with the nurse, phone calls to the Board investigator, preparing rebuttals, or for attending hearings. I recently heard of a case where a nurse had paid 50,000.00 for attorney representation.
A mediation recently the glaring lack of supporting evidence and the presence of exculpatory evidence lead to a dismissal. A dismissal that should have occurred three years earlier, but Boards rarely place much emphasis on establishing the innocence of the nurse. Guilt is assumed. The standard in Administrative Law is not, "within a reasonable doubt", it is instead "sufficient suspicion" or "more likely than not". This is a very low bar for placing blame.
Most nurses cannot afford legal representation throughout the often-protracted process of a Nursing Board investigation. There are ongoing attorney fees and such expenses as the several thousand-dollar cost of a Board ordered psychological forensic exam. Forensic exams are becoming more common as a measure of intimidating nurses . Nurses feel understandably fearful when they must face a Board selected forensic psychologist to be examined by and to administer the MMPI personality test.
We assist the nurse to develop a solid defense based on the standard of care, the Nurse Practice Act, the application of real-world nursing, expert testimony (by us) and based on the evidence revealed in the medical records or through other objective facts. We help the nurse prepare their own defense and will accompany the nurse to a hearing to act as an expert nurse and advocate. We have been highly successful in this approach of getting the facts and evidence heard early.
If the nurse must present at an actual Administrative trial, we then strongly recommend the nurse retain an attorney. At this stage, far into the process, an attorney is necessary because representation must be provided by someone who is familiar with the law and Rules of Civil Procedure. If the nurse, however, has already invested thousands in attorney representation, they may not be able to afford the remarkably high cost of attorney representation at trial. Therefore, we think it prudent for a nurse with limited funds and who is probably no longer working, to save money until and if she is unable to get charges dismissed or amended early in the process.
If you are facing a board action against your nursing license, please feel free to call us. We are here to help you defend your hard-earned license. We also have a commitment to provide emotional support to nurse, someone to listen who understands and will take the time needed. We can be reached at firstname.lastname@example.org.