How can nurse overcome sleeping on the job accusation?

By | 2022-05-26T11:08:31-04:00 December 6th, 2018|1 Comment

A home healthcare nurse was allegedly sleeping while caring for a patient and a family member reported him to his employer.

The home care agency fired the nurse and reported the firing to the state board of nursing. When fired, the nurse was told that despite no one being harmed by the sleeping on the job allegation, it is required to report the firing of any employee.

The nurse is very concerned because the allegation is not true, but he has no proof other than his word he was not sleeping. According to the nurse, the family has no proof of his sleeping either.

As I have emphasized many times, the state board of nursing’s major responsibility is to protect the public from incompetent and unsafe practice.

In order to help fulfill this responsibility, state boards of nursing require a report to the board when there is a violation of any of the grounds for discipline of the nurse licensee, such as unprofessional conduct or the failure to report suspected child abuse and neglect.

In addition, some state boards of nursing require employers to report an employee’s termination, along with the reason for the termination. The board can then determine if the dismissed employee is able to continue to practice or if a discipline is warranted based on the specific situation.

For example, Georgia requires that any nurse who is terminated or who resigns in order to avoid termination be reported to the state board of nursing.

Vermont requires a reporting to the office of the Secretary of State, along with supporting information and evidence, of any disciplinary action by an employer of a nurse that leads to expulsion from the institution.

It is important to note that in any situation in which a nurse is reported to a board of nursing, patient injury or death is not required.

Rather, it is the violation that is important because, although a patient injury or death did not occur in a specific reporting, the emphasis is to avoid any risk of harm to the public. Mandatory reporting to a board of nursing, then, is a risk prevention principle.

Nurse sitting at table leaning head on hand

Risk prevention is key to state board action

This principle is highlighted in the submitted situation. Assuming the sleeping on the job allegation is true, there was no harm to the patient.

However, many possible scenarios can be seen where harm to the patient might have occurred.

  • What if the patient stopped breathing while the nurse was sleeping?
  • What if the patient attempted to get out of bed and fell while the nurse was sleeping?
  • What if a required medication was not administered to the patient because the nurse was sleeping?

The nurse here has a difficult road ahead as he faces these allegations. Unfortunately, the complaint will boil down to a “he said, she/he said” situation. Moreover, the nurse must prove a negative: “I was not sleeping.”

Although the road is difficult, it is not an impossible path for the nurse or for you if such a false allegation is raised against you.

Seek expert legal advice

First and foremost, retaining a nurse attorney or attorney to represent you is vital. Because the situation essentially has no witnesses, your attorney will need to defend you by relying on your conduct in the past.

As an example, if you are able to provide sworn statements from former employers that you have never had such an allegation attributed to you in your past years as a home health nurse, such an allegation now would seem to be out of character for you.

A document of importance in this situation will be your nursing notes. Are your notations timely? Are there gaps in your entries during the time you were there or are there regular notations that would indicate you were awake and caring for the patient?

Third, the board will want to hear from you as to what exactly took place while you were with the patient and your attorney can help you prepare for your statement.

Questions you may need to answer include:

  • Was the patient awake during the entire time you were there?
  • Who was in the home during the time you were there?
  • Did any family member talk with you or observe you while there?
  • Did you initiate any conversations any family member?
  • What care, and when, did you provide care to the patient?

Other questions that would be of concern to the board are:

  • How was your relationship with this family and the patient?
  • Did they complain to you about your care or non-care of the patient?
  • What time did you arrive for your assignment?
  • What had you eaten beforehand?
  • Did you have anything to drink before you went to your assignment that might cause you to be sleepy?

The nurse did not include anything about the patient’s condition in his posting. However, if such an allegation arises against you and the patient is able to share what he or she observed or experienced while you were providing care, the board is able to take the patient’s statement into account as well, if it is obtainable.

If the patient expresses the fact that he or she did not observe you sleeping on the job at any time, this statement, coupled with your truthful and honest answers to the board’s concerns, will be of great help in overcoming the allegation of the family member.

The goal of truthfully defending such an allegation is to avoid a discipline by the board of nursing.

If the facts are in your favor, and you can raise a rational doubt about the allegation, you may avoid any discipline and your case will be closed/dismissed.

Take these courses on managing legal risks and charting:

Managing Legal Risks in Home Healthcare
(1 contact hr)
The demand for home health services continues to rise as the population ages and more and more healthcare is delivered outside of acute-care hospital settings. In 2010 alone, 3.4 million Medicare and Medicaid beneficiaries were provided with home health care of some type. The demand for providers of home health services, especially RNs, continues to increase as well. The 2013 National Workforce Survey of Registered Nurses found 6% of nurses in the United States work in home care. While some legal risks for nurses translate across all settings, the home care setting has some unique situations nurses should be prepared to recognize and manage.

Document It Right: A Nurse’s Guide to Charting
(5.2 contact hrs)
From the earliest beginnings of the nursing profession, nurses have carefully recorded their observations of patients and their interventions to help patients recover from illness and achieve optimal health. In the beginnings of the profession, the primary purpose of nurses’ notes was to verify that physician orders were completed. Today, professional nurses are vital partners with other healthcare professionals, and nursing documentation is an essential part of comprehensive patient care. Although documentation has always been an important part of nursing practice, the increasingly complex healthcare environment, litigious society and the diversity of settings in which patients receive care require that nurses pay more attention to documentation. The computerized patient record has become standard practice, and the days of repetitive task-oriented narrative notes are becoming part of nursing history.


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

One Comment

  1. Avatar
    Marsha Slade March 22, 2021 at 6:27 pm - Reply

    I am being retaliated against by an LpN.

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