This Could Be You: Cullen Law Under Scrutiny

By | 2022-02-08T17:37:25-05:00 February 23rd, 2009|0 Comments

A law passed in response to the serial killings by a former nurse, Charles Cullen, over several years in New Jersey and Pennsylvania hospitals is good in its intent but harmful in its execution, say two nurse attorneys who have been working to change it.

Kathleen Gialanella, RN, JD, LLM, and JoAnn Pietro, RN, JD, say the law often targets the wrong people and ruins the careers of healthcare professionals — often nurses — who never should have been reported to the N.J. Division of Consumer Affairs or their licensing boards.

About the Law

The Health Care Professional Responsibility and Reporting Enhancement Act was signed into law in May 2005, and it requires healthcare professionals or entities to notify the division when they have information regarding the incompetence, impairment, or negligence of a healthcare worker who could endanger patients. It also mandates criminal background checks of healthcare professionals seeking licensure in New Jersey. The law was intended to prevent another case like that of Cullen, who kept getting hired at different hospitals during his 16-year career, despite a questionable employment record. He claims to have killed up to 40 patients.

“Once Cullen was caught, in my opinion, the state got very nervous and essentially threw the baby out with the bathwater,” says Pietro, a partner at Wahrenberger & Pietro in Springfield, N.J. “From a nursing perspective, a Charles Cullen is an aberration.”

Unfair Targets

But under the stricter reporting laws, she says, nurses are being reported for medication errors, substance abuse issues, or for conduct seen as incompetent but that is really the result of inexperience. And the consequences of getting reported to the New Jersey Board of Nursing, which is part of the Division of Consumer Affairs, can be devastating.

One of the provisions Gialanella objects to is that under the law, the employer who reports a nurse to the board has an obligation for the next seven years to disclose to any prospective employer that that nurse was reported.

“It’s an albatross around someone’s neck for seven years and it doesn’t matter if the board took no action. If you are a prospective employer and you have an applicant who has been terminated and reported to the board, you’re going to think twice about hiring that nurse — or not hire her at all. That’s a huge concern,” she says.

Gialanella, who has a law office in Westfield, N.J., and teaches at Columbia University, also argues with the time allotted for nurses to mount a defense. “Within seven days of an action, it has to be reported to the board. Say a nurse makes a practice error and is terminated for that error — she will have very little time to protect herself,” she says.

Pietro says nurses are also unfairly targeted because they are hospital employees and can be reported by hospitals; physicians, on the other hand, are not considered employees, but have privileges at hospitals. Hospitals aren’t reporting physicians who make mistakes under this law, Pietro says.

She adds that many of the nurses being reported are new nurses, and they are examples of when incompetence is really inexperience. “New graduates are getting caught in this web and are being deemed incompetent when they’re still just learning,” Pietro says. “We don’t have a residency program and there’s very little mentoring, so new nurses are thrown to the wolves. In the past, they would have been nurtured and had months of orientation.”

Words of Wisdom

Pietro and Gialanella are working with state Senator Joseph F. Vitale, who introduced the legislation, to propose changes in the law. Meanwhile, if a nurse suspects he or she might be close to being reported, Gialanella and Pietro offer this advice:

• Find another job. “If you see the handwriting on the wall, voluntarily resign and walk away,” Pietro says. “If you don’t leave and are terminated, you could be in a situation where you might not get another job.”

• Don’t resign while you are under investigation. “The Cullen law says that if a licensee resigns from a job while under investigation, that has to be reported to the professional board,” Gialanella says.

• If you are terminated and told you’re being reported because of the Cullen law, seek an attorney’s advice as soon as possible. “As the licensee tries to find new work, the former employer may be reporting information about the employee that may make it almost impossible to find additional work,” Gialanella says.

• Know that you have a right to see the same reporting notice the hospital gives to the board at the same time that it is given to the board. Request a copy of the supporting documents as well, Pietro says.

• Know that the law says that the professional does not have to be reported for substance abuse if that person is willing to check into a licensed recovery and monitoring program.

Pietro says the law is clogging up an already overburdened system. “In 2004, the Board of Nursing would have an average of 160 matters open that they would be investigating. Last year, it was about 460. This is crazy. The board is understaffed, the state of New Jersey has a budget crunch, and these cases take forever to adjudicate. The overwhelming number of these cases would not have been here before [the Cullen law] and these are not nurses who need to be scrutinized by the board.”

Marcia Frellick is a freelance writer for Nursing Spectrum.

To comment, e-mail [email protected]

To learn more about national efforts aimed at preventing medical errors, go to Nursing Spectrum’s CE program at: www.nurse.com/ce/CE498.

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