Tag: board of nursing

Caution: Do not represent yourself before your licensing Board

I have written about this subject before, but the situation keeps reoccurring, and the “lesson” keeps repeating itself, so I will repeat myself:  Do not represent yourself when you are under investigation by your licensing Board.  Here are three recent examples of what can go wrong:

Example #1 – A pharmacist before the Oregon Board of Pharmacy

The first case involves an investigation by the Oregon Board of Pharmacy.  In this case, the pharmacist met the standard of care expected of a pharmacist when presented with a suspect prescription. Unfortunately, the pharmacist was so focused on the mistakes made by others that he (1) declined to provide the Board with a written statement and (2) appeared for his recorded interview prepared to talk about the mistakes of others, and little else.  The recorded interview went poorly, and the Board of Pharmacy issued a Notice of Proposed Disciplinary Action, threatening significant discipline, including probation and loss of pharmacist-in-charge (PIC).  The pharmacist hired me soon thereafter.  After completing my review, I find that the pharmacist had a near-perfect explanation (or defense) but, without the benefit of experienced legal advice, he failed to present that explanation when it mattered most.

Example #2 – A physician before the Oregon Medical Board

The second case involves an investigation by the Oregon Medical Board.  In response to the Board’s request, the physician submitted a written statement that was too short given the subject matter of the Board’s concerns.  The physician also appeared for her recorded interview before the Investigative Committee (IC) without adequate preparations.  The physician hired me after the Board requested that she consent to (1) an Interim Stipulated Order (ISO) significantly restricting her practice, and (2), an Order for Evaluation subjecting her to an expensive, out-of-state assessment, of her ability to practice medicine.  Although the Board’s requests may reflect poorly on the physician, with the benefit of my experience, I do not see the Board’s action as an accurate assessment of the situation, because I know the physician was unrepresented by legal counsel, and under prepared when it mattered most, i.e., when she submitted her written statement and when she attended her IC interview.

Example #3 – A nurse before the Oregon State Board of Nursing

The third case involves an investigation by the Oregon State Board of Nursing (OSBN).  In this case, the Board of Nursing made several offers to settle the case but, without the benefit of experienced legal counsel, the nurse failed to appreciate that the Board’s settlement attempts were offered in an effort to avoid discipline.  After several failed attempts to reach a compromise, the Board lost patience and voted to discipline the nurse, at which point, the nurse hired me.  Even the simplest of cases can become difficult when the parties are polarized against one another.

The lesson: Do not represent yourself before your licensing Board

The three cases summarized above, involve three different licensing Boards, and three different situations where things went poorly for the licensee.  In the first and second cases, the licensing Board sought serious discipline, and in the third case, the licensing Board sought minor discipline. The first case should have been easily defended and the third case should have been easily settled, while the second case needed to be developed and defended.  All three cases, however, have one thing in common:  The licensee mistakenly decided to proceed alone, without legal representation and, in each case, the licensee came to regret that decision.  Do not make this mistake. If you are a licensed healthcare provider facing an investigation by your licensing Board, I urge you to seek legal counsel from an experienced healthcare defense attorney at the first opportunity.

Do license applications cause a sinking feeling in the pit of your stomach?

If you are a physician, pharmacist, or nurse applying for a new license, or submitting a renewal application on an existing license, you have faced the “disclosure questions” that can be troublesome for some to answer. If you have recently hit the “submit” button, and experienced a sinking feeling in the pit of your stomach, you know what I am talking about.

Avoiding mistakes in the first place – one example

A common example is the arrest, stop, or conviction for driving under the influence of intoxicants – or a DUII. You must read the disclosure questions carefully, and just because you answered “no” in one state does not mean you will be able to answer “no” in all states in which you are licensed, or seek a new license. For example, a physician licensed in California, Oregon, and Washington, filing online renewal applications, will face different questions in each state and, depending on the facts of the DUII, may not need to disclose the traffic stop in Californian or Washington, but will almost always be required to disclose the traffic stop in Oregon. It all comes down to the specific facts of your case and how each state’s disclosure questions are worded and, with respect to this example, the Oregon Board of Medicine asks the tougher question. To avoid mistakes, it is necessary to read the disclosure questions very carefully, and to answer each question accurately. If you have a doubt, or experience that sinking feeling in the pit of your stomach, stop, and consult an experienced licensure lawyer immediately.

Too late? – Correct your mistake by filing an amended application

If you are a physician, pharmacists or nurse, and you have recently answered “no” to a disclosure question that required a “yes” answer, if you take quick action, it is not too late to amend your license application, to correct your mistake. I recently represented a out-of-state nurse that found herself in such a position. She had a minor criminal history incurred while she was young, before she was a nurse. She very much wanted an Oregon nurse’s license, and she did not want to make a mistake that would risk her license application, but the moment she submitted her online application to the Oregon State Board of Nursing, she feared she has acted too quickly, and that sinking feeling in the pit of her stomach set in. She called me, and I quickly called the Oregon State Board of Nursing, to ask that the Board hold off and wait for our amended application. Together we reviewed her application for completeness, and determined a small amount of information should be supplemented, and we quickly furnished it to the Board of Nursing, supplementing, or amending, her previous application. The Board of Nursing responding favorably, and she is now an Oregon registered nurse.

What not to do

I am aware of one case involving an out-of-state pharmacist that never disclosed a decades-old drunk driving arrest, and another case involving a Certified Nursing Assistant (CNA) that never disclosed a decades-old disorderly conduct arrest. Their failure to disclose in other states went undetected for numerous renewal periods, creating a false sense of comfort, until the pharmacist and the nurse each applied for licenses in Oregon, with the Oregon Board of Pharmacy and the Oregon State Board of Nursing, and their failure to disclose was caught.

For whatever reason, an old incident that should have been disclosed in each case, but was not, and was never caught elsewhere, was caught in Oregon. I don’t know if this was due to constant improvements in search engines and data banks, or if the background checks in Oregon are more rigorous, but it matters not – if disclosure was required, and the failure to disclosure is caught, you have a problem.

Medical licensing Boards see the failure to disclose as a veracity problem, not a mistake, and oftentimes the failure to disclose is worse than the underlying problem that required disclosure in the first place. Do not make this mistake. Take proactive steps to correct your application before the mistake is discovered. Please know that once the mistake is caught by your licensing Board, it is no longer considered a mistake. You now have a larger problem.

The Department of Human Services (DHS) and findings of patient abuse

Two nurses face allegations by DHS of patient abuse but only one nurse hires a lawyer soon enough avoid a finding of abuse

As a lawyer representing nurses before the Department of Human Services (DHS), I was recently hired by two Certified Nursing Assistants (CNAs), each facing finding of patient abuse by DHS. Both cases involved allegations of rough treatment of a patient and, in both cases, DHS went the next step and issued a notice of intent to publish the findings of patient abuse in the registry maintained by the Oregon State Board of Nursing (OSBN), typically a career-ending event for the nurse.

The first case – a good outcome – DHS reverses finding of patient abuse

The factual records were similar in each case, but in the first case, the nurse hired me as soon as she received her notice from DHS, while the nurse in the second waited to hire a lawyer until the DHS finding of abuse was “finalized.” The defense in both cases was essentially the same, and both cases required that the nurse be interviewed by the investigators from DHS and the Board of Nursing.

In this first case, our preparations were extensive, including preparation of written statements well in advance of the DHS and OSBN interviews. At the DHS interview, we persuaded DHS investigators to withdraw their finding of patient abuse, a tremendous victory. Our success at DHS naturally influenced the mirror-image case pending before the Board of Nursing, and the Board of Nursing likewise chose to close its file without disciplining the nurse, a “double victory.”

The second case – off to a bad start – DHS defends its finding of patient abuse.

In sharp contrast, the nurse in the second case did not hire a lawyer, and she was unprepared when she attended the so-called “informal interview” at DHS. Although DHS characterizes this interview as “informal,” it is anything but; it is a very important interview. At the informal interview, the nurse will face the very same investigators who previously found that she committed patient abuse. This interview is also the last opportunity for the nurse to convince the DHS investigators that they got it wrong.

Without a lawyer, the nurse in the second case did not appreciate the importance of the informal interview, and she did not know how to prepare. She also mistakenly chose to attend the interview by telephone. Making matters worse, the nurse spoke broken English with a heavy accent, so it is doubtful that her concerns were properly understood by the DHS investigators on the other end of the phone during the informal interview. In sum, the informal interview by DHS investigators requires careful preparations and a near-perfect presentation, but without an experienced DHS lawyer, it is unlikely you will know how to prepare yourself. I believe that had the second nurse been represented by an experienced DHS lawyer, DHS would have withdrawn its findings of abuse in that case too.

It gets worse. Because the second nurse, without a lawyer and unprepared by a lawyer, failed to persuade DHS to reconsider and withdraw its finding of patient abuse, her only remaining choice was to give up, or to proceed forward, to a contested case hearing. A contested case proceeding is essentially a trial before an Administrative Law Judge (ALJ). The nurse in this second case chose to keep fighting. She had no practical alternative if she wanted to continuing working as a CNA. For the hearing, the second nurse finally hired a lawyer and she was well represented by that lawyer at hearing, and she made a good record. Although she won most of the factual disputes relevant to DHS’ finding of patient abuse, she did not win them all, and, in the end, the ALJ affirmed DHS’s finding of patient abuse. I was then hired to take her case up on appeal.

What was the difference between these two cases with similar findings of patient abuse?

I do not believe the facts of the two cases are much different. Both cases involved a CNA, allegations of rough treatment of a resident, and findings of patient abuse by DHS. Both cases include extenuating circumstances that explain what had happened, at least in part. Indeed, if I had to predict which case had the better odds of success at an informal interview with DHS, or at a hearing before an ALJ, I would be hard pressed to pick one case over the other. This is because the difference between these two cases is not so much the individual fact patterns, but instead the quality of the nurse’s early preparations, guided by an experienced lawyer.

The moral of the story

The moral of the story is that when defending against allegations or findings of patient abuse, hire a experienced DHS lawyer at the onset. Do not wait to hire a lawyer until you are faced with a hearing or, worse, you have lost your hearing and the only choice remaining is to take an appeal. The best results are almost always obtained well before that, during the early stages of the investigation. Retain and experienced attorney at the beginning, before you do anything else.