Nurse Attorney Answers Common Legal Questions

For the past five years, nurse attorney Nancy J. Brent, RN, MS, JD, has responded to legal questions sent to her by readers who visit Nurse.com. The inquiries submitted have revealed some key issues of importance to readers. They include: clinical practice concerns, such as scope of practice and medication administration liability; employment issues, such as overtime, staffing ratios, disability, and relationships with nurse managers; substance use and abuse, and their ramifications for the nurse licensee; and nursing education, including progression within nursing programs, relationships with faculty and clinical rotations. The following are several of Brent's responses to questions that exemplify the overriding, yet consistent, concerns of our readers. Brent's responses are not specific legal advice nor are they to be used as such. Dear Nancy, I have a question about healthcare fraud. I reported a physician for doing extra procedures during a heart catheterization. The hospital supposedly talked to him. The next time I worked with him, it happened again, so I reported him to the state and The Joint Commission. Nothing was done. If I go to Wal-Mart and shoplift an item worth $50, it's a crime. But it seems like a physician can do unwanted procedures on patients without their consent and charge $400 to $600. What gives? -- George Dear George, You should be commended for reporting this physician to the hospital. You did not mention how long it has been since you made your concerns known. It appears the facility has not done anything about your concern. The same appears true for the state and The Joint Commission. However, it is important to note that such an allegation must be investigated thoroughly. Therefore, an instantaneous result is, unfortunately, not possible. It would be a good idea to consult with a nurse attorney or attorney in your state in order to obtain specific advice and information about the procedures the hospital, The Joint Commission and the state board of medicine must comply with when they receive a complaint such as yours. For example, an investigator may be contacting you for more information or may visit the facility to review patient records concerning this situation. Additionally, the attorney may discuss with you information about the federal False Claims Act. This statute establishes civil and criminal penalties when individuals bill the government falsely, among other grounds for potential liability. A cause of action under the act can be brought by the attorney general or by a private individual. If the latter occurs, it is called a qui tam lawsuit. -- Nancy Dear Nancy, I work on a med/surg unit, and we chart by exception. I chart my assessments and try to chart at least every two hours on patients, such as resting well with eyes closed. We are only supposed to chart if there is a change in condition. Of course I chart if there are changes in my patients. A lot of nurses chart this way. My boss told us that this is not a good way to chart because if the patient goes bad 15 minutes later, charting, resting well and call light in reach, could get us in trouble if this were to go to court. I feel like if I just chart by exception and there is no change in a stable patient, then it looks like I'm never checking on my patients. How do I chart by exception in a way that would cover me if something were to go to court? -- Madison Dear Madison, Charting by exception always has been the subject of debate. Obviously, if a facility has a policy that has a strict adherence to this method of documentation, that adherence could result in potential problems if a patient-care situation results in injury or death of the patient and the charting done was nothing more than "the usual" documentation. Remember that a nurse is always responsible for, among other things, a nursing assessment of the patient. Regardless of the format of documentation, this duty must be met and documented. Rather than have a strict policy that allows only for charting by exception, many facilities will promulgate a policy that allows -- even encourages -- additional documentation in a narrative, more traditional format when there is an exception to the patient's normal or usual condition. For example, at least one nurse author and clinician takes the position that charting by exception is fine for more routine patient-care situations. Where care is not routine or unanticipated outcomes may occur, charting by exception may be problematic if the policy, protocols, and guidelines are not in place to guide the nurse and clarify the use of this form of documentation (Laura Stokowski, The Current Legal Climate in Neonatology, Proceedings from The National Association of Neonatal Nurses 23rd Annual Conference, 2007). You may want to voice your concerns about the facility's charting-by-exception policy with nursing administration, risk management and your quality assessment committee. You can begin to formulate your concerns by simply placing charting by exception in the search bar of your search engine. There is a wealth of information available on legal issues in documentation generally and on this specific format of documentation. -- Nancy Dear Nancy, Several years ago, I diverted meds for my own use (no patient harm resulted, and I paid full restitution to the hospital where I worked after they had me arrested for taking the meds). I self-reported to the board and so did the hospital. I was placed on probation. At the time I entered into the contract of probation, the nursing board was aware of my plea to a misdemeanor charge agreement of ?attempt to possess an anabolic steroid substance? at the time my contract was written and signed. My minimum three-year contract is up for review. Could they take my license after I?ve complied will all the stipulations of their contract? I applied to the state to have my record either sealed or permanently removed. What are my chances of keeping my license? ? Larry Dear Larry, You should be commended for self-reporting and for paying in full the restitution you were required to do as a result of the diversion of medications several years ago. The probation contract you entered into with the state board will be essential in determining whether probation will be terminated and your license no longer in a probationary status. If you have complied with your probationary order entered into with the board of nursing, and if you have had no further violations of any kind in relation to your state nurse practice act,there would be no basis for the board to ?take your license.? It is important to keep in mind that boards of nursing have specific responsibilities and powers that must be carried out and cannot be abused. Moreover, a board must make decisions based on their powers and the state nurse practice act. It does not sound as though there would be a basis for any further discipline from the state board. It might be helpful for you to consult with a nurse attorney or attorney in your state who can provide you with specific advice on your particular situation as you face the termination of your probation. You may also want to consider hiring the attorney to represent you in this matter if the termination of the probation is not ?automatic? in the board?s consent order. Many states do not provide for the expunging/sealing/removal of state board disciplines. Criminal convictions, however, often can be expunged, sealed or removed. Your attorney also can advise you about this concern. ? Nancy Dear Nancy, I was wondering what your opinion of medication management by unlicensed nurses was in assisted-living facilities. The aides seem to be giving medications in the same fashion that a nurse would ? some with a nurses? supervision and some without. ?Kelli Dear Kelli, In today?s healthcare world, there is always a concern that the scope of professional nursing practice will be encroached. Medication administration and management is one area of nursing practice that is often targeted for encroachment. Many states now allow unlicensed assistive personnel to administer medications to patients/residents in certain healthcare settings. Some states require a state-approved medication course to be completed by the individual and to follow requirements for the medication administration (e.g., no injectibles, only with direct nurse supervision). Other states have different requirements, including training by the facility rather than through a statewide approved program. If you are concerned about what is happening in your facility, a consultation with a nurse attorney or attorney in your state would be advisable. The attorney can review the state?s requirements for unlicensed individuals giving medications. If their administration is not consistent with required protocol, you can consider reporting the situation to the agency that oversees these individuals. Keep in mind, however, if unlicensed nurses are administering medications, those individuals are in violation of the state nurse practice act in a number of ways, including the fact they are practicing nursing without a valid and current license and are using a title that may be protected under the act (e.g., only a registered nurse can use the title ?nurse?). Discuss this with an attorney you meet with as well. ? Nancy Dear Nancy, Can LPNs supervise RNs? Can an LPN advise and sign off on an RN?s assessment? I work as a UR RN for workers? comp.There are several LPN supervisors with RNs under them. There have been occasions when an LPN has directed an RN to change his or her claim determination, stating the LPN?s assessment is more accurate/correct than the RN?s. Many RNs are uncomfortable with this and need to know if this is legal and within the scope of an LPN. ? Evelyn Dear Evelyn, The legal regulation of nursing practice, which occurs at the state level through the nurse practice act and its rules/regulations, includes the scope of practice of the LPN and the RN. There is no question that LPN practice is a dependent one. That is, the provision of patient care by the LPN is overseen in some way by a healthcare professional with more comprehensive educational requirements and therefore different scopes of practice. In state nurse practice acts, the LPN works under the direction or supervision of an RN, physician, or dentist, as examples. An LPN?s assessment cannot, nor should it, take the place of an RN assessment. If there is a disagreement about the accuracy or correctness of an assessment, one done by an RN and one by an LPN, neither should be required to change a claim because one of the parties believes he or she is superior to the other. Rather, there should be a mechanism in place where such conflicts can be taken to an objective third party who then makes a decision about which assessment will be used for the workers? compensation claim. Under no circumstances, however, can an LPN provide an assessment that is only to be done by an RN. Additionally, LPNs should not be supervisors of RNs. Direction for this prohibition can be found in the state nurse practice act. The act and rules would be a good resource for you to review in order to obtain the legal requirements of LPN and RN practice in your state. It would be a good idea to bring this issue to the attention of the administration of the organization where you work. Additionally, in your role as UR RN, this concern needs to be clarified. Neither you nor the company you work for need to have problems concerning how LPNs are used in the decision-making process concerning claimants? coverage. No claimant should have to question this either, but he or she might, with his or her lawyer?s advice, if the decision-making process is flawed because of the improper use of LPNs. Your concern should not be construed to support a belief that LPNs are not capable healthcare providers. They are, and they have contributed to quality patient care in many settings for many years. Rather, your concern, which should include a consultation with a nurse attorney or attorney in your state, may help you clarify exactly how LPNs can be utilized in the company with an eye toward compliance with the state nurse practice act. ? Nancy