A nurse licensee has the right to challenge a board discipline by filing an administrative review case in court.
In the following unpublished opinion, an RN appealed the state board of nursing disciplinary subcommittee’s order. The order resulted in a one-to-two year probation and a $250 fine.
The subcommittee found the RN violated sections of the nurse practice act that governed negligence or failure to exercise due care, incompetence, and lack of good moral character.
Details of the Case
A nursing staff member in a long-term care facility discovered a patient’s daily dressing change had not been done for three days, even though there was a physician’s order that the dressing change occur daily.
The RN who was caring for the patient, allegedly admitted to the staff nurse that she had changed the dressing. The staff nurse informed their supervisor, who also questioned the RN. The RN allegedly told the supervisor that she believed she had not changed the dressing.
The RN was terminated from her position, reported the termination to the board of nursing, and requested a hearing.
The Administrative Hearing
According to some of the hearing testimony:
- The RN did not remember having a conversation with the staff nurse.
- The RN told her supervisor that she was not sure whether she had changed the dressings.
- The RN frequently had trouble logging out of the EMR.
- The RN stated someone may have made entries under her name.
- The director of nursing verified there were no problems with the EMR system and detailed the sign-in process, which required the user name and password of staff members.
The administrative law judge held the RN ‘s violations of the nurse practice act were proven by a preponderance of the evidence. In other words, she failed to change the patient’s dressing and falsely documented that she had done so in the EMR.
The judge also found the RN’s testimony was less credible than that of the staff nurse who discovered the unchanged dressings. In addition, the judge held there was no evidence that the EMR system was “…compromised or not functioning correctly.”
The disciplinary subcommittee adopted the judge’s recommendations, and the RN was disciplined.
The RN appealed this decision to the appellate court.
The Appellate Court’s Ruling
The RN challenged the administrative hearing on several fronts, including that “competent, material, and substantial evidence” did not support the hearing officer’s decision.
She further argued that inadmissible evidence was used and the hearing officer improperly determined the staff nurse was “more credible” than she was.
The RN also raised her contention that no direct or eyewitness evidence or testimony was presented during the hearing. As an example, she asserted the director of nursing’s testimony that the RN made the EMR’s entry was not credible because she did not see the RN make the chart entry.
The RN further argued the staff nurse should have “retained the stale dressing” as direct proof that it had not been changed.
The appeals court rejected all of these arguments and cited legal cases and state statutes that supported the administrative hearing decision.
The court also pointed out that neither the director of nursing nor the staff nurse’s presence as an eyewitness to their testimony was necessary.
The appellate court also discussed the credibility of the director of nursing and the staff nurse as witnesses.
A credible witness is defined as “a witness whose testimony is more than likely to be true based on his/her experience, knowledge, training, and appearance of honesty and forthrightness, as well as common human experience. This is subjective in that the trier of fact (judge or jury) may be influenced by the demeanor of the witness or other factors.”
Despite their testimony being “circumstantial” (suggesting that a fact is true as opposed to directly knowing it), the testimony of both witnesses supported facts about the procedures surrounding documentation in the medical record and the staff nurse’s discovery of the unchanged dressing and the actions he took upon that discovery.
In short, the court held that based on all the evidence presented at the administrative hearing, a reasonable person would accept “the testimony and documentary evidence as sufficient” to support the RN’s neglect of the resident, her falsification of the EMR, and that her conduct showed a lack of good moral character.
The court affirmed the decision of the subcommittee of the board of nursing.
Takeaways from this Case
One of the most important principles gleaned from this case is that truthfulness is always the best approach, whether with your employer, in an administrative hearing, or in court.
When you falsely state or document what you did or did not do in a particular situation, not only does your “moral character” become an issue, so does your credibility. No matter what the consequences, truth must be your guiding mandate.
Although you have the ability to challenge a board of nursing disciplinary action by a court, it is essential you have a good basis to do so.
If, for example, the board of nursing’s action was not based on the specific facts of your situation, your chances of a judgment in your favor are much more likely.
But in the case addressed here, the evidence and testimony from credible witnesses supported the decision of the board’s subcommittee, and just as important, the RN’s testimony and evidence simply could not overcome the factual information.
Remember, too, that EMRs are in many ways much more difficult to falsify. Standard procedures require entering usernames and passwords before making an entry, and in this case, there were no identified problems with the EMR system.
And with the archival feature of EMR systems, you would be hard pressed to prove someone else made an entry using your username and password.
Credibility may be a subjective trait in any witness, but it’s important in legal proceedings. In this case, the administrative hearing officer did not believe the RN’s testimony was more than likely true, especially in view of the evidence presented.
The appellate court held that the determination of the credibility of the RN’s testimony was within the purview of the hearing officer, and it declined to overturn that ruling.
This case was based on “competent, material, and substantive evidence” presented by two credible witnesses. That evidence supported the hearing officer’s order.
In short, where no reliable, credible evidence and/or testimony exists to support your case, mere assertions fail.
Take these courses to learn more about protecting patients and yourself:
National Patient Safety Goals – Nursing
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This course covers the 2019 National Patient Safety Goals for nursing staff in the hospital setting.
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Protect Yourself: Know Your Nurse Practice Act
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