LPN’s License Revoked for Pocketing Expired Medications

By | 2022-05-19T17:37:06-04:00 May 18th, 2022|0 Comments

In past blogs, I have reviewed cases that demonstrate the powers and authority of nursing boards. Oftentimes, such a discipline is based on the nurse licensee’s unprofessional conduct. When a nurse licensee challenges a board of nursing discipline, the licensee often bases the case on a violation of his or her due process rights.

In the following case, an LPN fought a board of nursing order revoking her license.

Expired Medications Discovered by ED Nurse

Jenny, an LPN, worked for a nursing home. After suffering a “medical incident” at her home, she was taken to an ED by paramedics along with her medications that they collected. An ED nurse inventoried the medications and found several expired packs of non-narcotic prescriptions in other individuals’ names. The ED nurse notified the state department of health which began an investigation.

Jenny admitted that she had taken expired medication from work rather than disposing of them, as required, because she didn’t always have enough money to purchase them.

The department filed a complaint against Jenny with the board of nursing alleging that she had engaged in unprofessional conduct by “misappropriating drugs” by removing them from the workplace (Count I) and that she failed to meet the “minimal standards of acceptable and prevailing nursing practices” by returning the expired medications to the nursing home pharmacy (Count II).

Jenny did not respond to the complaint, nor did she attend the hearing before the board. The department’s investigation report and exhibits were admitted into evidence, as well as the complaint itself.

The board found Jenny’s conduct was unprofessional and that she failed to meet minimal standards of nursing practice. Such conduct, the board held, required a revocation of her LPN license. Jenny appealed the board’s findings.

Appellate Court Opinion

The basis of Jenny’s appeal was that the board of nursing’s finding, that she failed to meet the minimal standards of nursing practice under the nurse practice act and its rule, was not supported by the evidence.

She also alleged that the board imposed a higher penalty — a revocation — than was permitted under the act and its rule. As a result, her due process rights were violated.

First, the court noted that although Jenny did not appear for the hearing or make any arguments, a due process violation can be raised on appeal, as it is a fundamental error. It also stated that the nurse practice act and its rules were passed by the legislature to ensure that every RN and LPN meet minimum standards of practice and it delegated to the board the power to interpret and enforce the act and its rules.

However, the court cautioned, the board’s authority is not without limits. Because disciplinary statutes like the nurse practice act are penal in nature, “They must be strictly construed with any ambiguities resolved in favor of the licensee.”

As to Count II, the noted that the practice act did not include a definition of minimal standards of practice. Rather, it included conduct related to patient care.

The definition did not include any act that was applicable to Jenny’s conduct. The board did not prove that Jenny improperly administered medications to patients or practiced beyond the scope of her training, as examples. As a result, the court opined that Jenny’s conduct had nothing to do with meeting minimal standards of practice included in this definition.

Therefore, the board’s finding based on allegedly failing to meet minimal standards of practice, was erroneous, resulting in the revocation of her license. The revocation was a “higher than permissible penalty” and therefore a violation of her due process rights.

Rather than revoke her license, the board should have followed the practice act and its rules, which specified that the minimum penalty for “unprofessional conduct” was a reprimand, a $250.00 fine, and continuing education. The maximum penalty requires a $500.00 fine and a suspension with probation or an Intervention Project for Nurses (IPN) evaluation to determine if a nurse has a substance abuse disorder.

The court did not uphold the board’s order revoking her license due to misappropriation of drugs, which was one allegation against her. The court affirmed the board’s finding of unprofessional conduct, which was another allegation, and sent the case back to the board for reconsideration of the revocation of her license, as the discipline did not conform to the state nurse practice act and rules and due process.

What This Decision Means for You and Your Nursing Practice

First, this case illustrates the folly of not following facility policies and procedures when dealing with patient medications, expired or otherwise. Here, the medications were non-narcotic, but this did not help the LPN in the long run. However, had the expired medications been narcotics, legally she would have been in a much more extremely difficult situation.

The case also emphasizes not taking anything from your workplace, however small or seemingly inconsequential.

The case underscores the importance of retaining a nurse lawyer or lawyer to represent you whenever you are named in any board of nursing proceedings, but certainly so when you are named in a board of nursing complaint. It is not known why Jenny did not do so.

Had she had an attorney who was familiar with disciplinary proceedings and the state nurse practice act and rules, the attorney could have raised the errors the board made prior to them being final, thus protecting her due process and other rights during the proceeding.

Also, remember that Jenny’s case was returned to the board of nursing for its reconsideration of her penalty. This meant for her — as for you if you find yourself in a similar situation — that the legal resolution of the complaint against her was far from over even with the appellate ruling in her favor.

Finally, this case clearly spells out several general legal principles applicable to board of nursing decisions. A board of nursing must use its granted discretionary powers to administer and enforce a state nurse practice act and rules within established boundaries of fairness, reason, and the statutory powers of its granted authority. If a decision is not based on these doctrines, a disciplinary order can be challenged.


Take these courses to learn more:

Protect Yourself: Know Your Nurse Practice Act
(1 contact hr)
Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. Nurses have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation, and genetic testing.

 

 

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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.

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