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Medical License Disputes

MASSACHUSETTS NURSES
DEFENDING YOUR LICENSE

THE IMPLICATIONS OF A BOARD COMPLAINT

In the last few years the Board of Registration in Nursing has stopped sending reminders to renew your license. So, if you receive a letter from the Board, it is not a routine communication. Most likely it will be a notice that they have received a complaint about you or your professional conduct. Some complaints originate from the Department of Public Health as a result of an incident at your place of work. Some are sent to the Board by a patient. Your employer also may file a complaint about your practice.

If you ever receive such a communication from your licensing Board, it most likely will worry you. After all, your professional reputation has been challenged. It would be natural to be concerned about what the complaint may mean to your future.

This article will provide you with helpful information so that you can know how to proceed, should you receive such a notice from the Board. It will provide you with tools to protect yourself from unwarranted disciplinary actions.

First, it’s important to note that the Board holds your livelihood in its grasp. It allows you to practice your profession and it has the power to take it away. The primary goal of the Board in the regulation of your practice is to protect the public. However, the Board cannot act against you without a full investigation into the complaints against you. Your license comprises a protected interest, affording you procedural and substantive fairness, including an opportunity to a full and fair hearing under the due process standards of both Federal and Massachusetts law. As a result, the majority of Board investigations will not result in a loss of your license, unless the Board finds serious infractions. If the Board investigators find that you made mistakes, the representatives are more likely to recommend corrective strategies such as remedial education.

PREVENTIVE STRATEGIES

Let us put ourselves in the patient’s shoes. If we do, it may be useful to understand what factors influence a person’s reasons for filing a complaint.

  1. If the patient doesn’t know you well. A patient who knows you will often choose not to make a complaint against you, even if the complaint is warranted. The decision not to complain about you is based on the level of trust you have established and whether the patient likes you, not just about how long you have known the patient.
  2. If a patient feels slighted or ignored. If the patient feels rushed or if you don’t show her that she is important, she may find fault with you.
  3. If she doesn’t trust you. If you tell her you will be back to see her at a particular time, and you don’t. This goes for nurses in hospital or clinic settings. Essentially, don’t forget your promises. If your plans change, you owe it to her to tell her. In the clinic, and the wait is longer than you anticipated, take a moment to update her.
  4. If you don’t give her eye contact when you talk to her. If you can sit down with the patient and establish eye contact, you will be on the road to establishing trust and developing a professional relationship with her.

Consequently, if your patient perceives that you are a caring and trustworthy individual who has treated her with respect, you have minimized your risk.

It may be more challenging to develop a trusting relationship with patients in the high risk areas of Emergency Room, Operating Room, and ICU. It’s not impossible. Establishing a trusting relationship in a shortened period of time is the challenge. Naturally, the patient will be under heightened stress. It cannot be over-emphasized how significant a warm, gentle touch or a kind word can be.

In most practice areas, you will come in contact with the family members of your patient. They are an extension of your patient. They are important to your patient so they must be important to you. Your support for them can be instrumental to the development of a relationship with both the family and the patient. A welcoming attitude will show them that you include them and that you acknowledge their importance to your patient’s well-being.

While you may think that you don’t have time that these suggestions require, it is not about the quantity of time you have to spend with each patient. Instead it’s about the quality of time, using each moment to its fullest potential. You can make it your personal policy to ask your patient what they need before you leave them, ask if they understand your instructions and to answer their questions in an understandable way. Your patient will be grateful for your thoughtfulness. You would be surprised how little actual time your thoughtfulness can take. It can be as little as 30 seconds to maintain a respectful relationship with you patient.

To recap:

  • Cultivate a relationship with your patient that begins with respect;
  • Develop/maintain an unhurried approach;
  • Give eye contact when explaining care and treatment plans;
  • Ask if the patient understands;
  • Make family members feel welcome and include them in patient care;
  • Recognize and acknowledge that each patient and family is anxious.

RESPONDING TO A COMPLAINT

Despite your best efforts, you may receive a notice from the Board requiring you to respond to the allegations within a complaint. A letter from an investigator at the Board will require you to answer the complaint within a certain period of time, normally 10 to 15 days. Often the investigator’s letter will include a copy of the complaint. The Board letter will include requests for the following documents:

  • An current resume or curriculum vitae;
  • Copies of all out-of-state licenses and certifications you hold;
  • Copies of CEU certificates for the past two licensing periods (this does not include the current licensing period);
  • Performance evaluations for the past three years.

SHOULD YOU RETAIN AN ATTORNEY?

The Board letter does not usually explain that you may consult an attorney. However, you are entitled to representation even at this early stage. You may think you don’t need an attorney, but a wise person should not represent his/herself, especially when it relates to your career and your license. The discipline you may be facing could be a reprimand, a period of probation, a suspension, or a revocation of your license. The possibility of any discipline should help you understand the risk involved to go it alone.

Legal representation can assist you in developing your response to the complaint and negotiate with investigators and prosecutors at the Board to get you the best possible result. While many employers carry insurance to protect you from lawsuits in the event you are sued in your capacity as a professional nurse, most employers do not carry additional insurance to provide for your defense from a Board complaint. Consequently, it is advisable to carry your own liability insurance. This allows you to have peace of mind. If you are sued or if you must defend against a licensing complaint, you can retain legal representation without paying the legal fees out of pocket. You might think that you cannot afford such insurance, but be assured, the costs of insurance for nurses is very affordable, and for advance practice nurses, just a bit more. Whether or not you work in an expanded role, the cost for liability insurance is much more affordable than the cost of legal representation without insurance.

To recap, if you receive a letter from an investigator at the Board:

  • Immediately notify your insurance carrier;
  • Call the attorney assigned to your case (you might be able to choose your own attorney);
  • Gather all documents requested by the Board investigator;
  • Bring all documents including the complaint to meet with your attorney;
  • Review the draft of your final response to the Board carefully;
  • Sign the final response; and
  • WAIT.

AFTER YOU RESPOND TO THE COMPLAINT

After you have responded to the initial inquiry, the Board investigator begins an investigation to verify all aspects of the complaint. This may comprise interviewing all those involved identified in the complaint and in your response. It also may include a record review. Often, the investigation may take weeks or months to complete. Your attorney will represent you throughout this period and you may call him or her as often as you choose to check on the status of your case.

Eventually, the Board representative will notify you (through your attorney) about the Board’s determination. Often, the Board will dismiss the complaint. If not, many times, your attorney may be able to negotiate with the prosecutor who will be assigned to your case. For instance, if you have taken courses related to the alleged mistakes the complaint identified, your attorney will be able to demonstrate that the discipline the Board has recommended should be minimized.

HEARING OR NOT?

You are entitled to a hearing at the Board. Your attorney will represent you and present evidence for your defense. This may include witnesses as well as documents. The hearing is somewhat like a trial. You may testify on your own behalf and you may provide additional evidence.

An alternative to the hearing is normally provided by the prosecutor at the Board. She or he may propose a consent agreement that is similar to a settlement. You will have an opportunity to review the proposed consent agreement, which will include a statement of the deficiencies the Board has determined. It will also identify the particular discipline they are recommending. If you consent to the agreement, you will also be waiving your right to a hearing. Whichever way you decide to proceed, your attorney will advise you of the risks and benefits of both choices.

DISCIPLINE

Disciplinary action will be taken only if the Board finds that the evidence presented proves the need for corrective action. Discipline may be as mild as a reprimand. If the offense is more serious, probation is normally the next level of discipline. It most often is not less than a year. License suspension and revocation are for more serious offenses. Whatever the discipline, the result of the hearing or the consent agreement and the type of discipline will be available to the public on the Board’s website.

A FEW LAST WORDS

Because the Board of Registration in Nursing is responsible for the safety of the consumers of health care, the Board is entitled to obtain all relevant documents and records about your professional conduct. You can be best prepared to respond to a Board complaint if you follow the principles below:

  • Document instructions you give to the patient and the patient’s understanding of your instructions in the medical record;
  • Document any concerns or complaints the patient has as well as your efforts to resolve the concerns;
  • Document all notes, calls and phone messages related to the patient;
  • Record all accidents and incidents on designated incident reports;
  • Keep your resume or curriculum vitae up to date;
  • Keep your CEUS organized, making certain that you meet the minimum requirement per licensing period (i.e., 15 contact hours per period);
  • Above all, maintain a kind and supportive approach h to each patient.

This article is designed to provide you wit helpful information about the complaint process carried out by the Division of Health Professions Licensure in Massachusetts. Because a complaint has the potential to place your career at risk, all complaints, no matter how frivolous they may appear to you, should be handled with the utmost care and seriousness. In order to proceed in defending yourself against a complaint, it is the wise professional who consults with a knowledgeable attorney who is experienced in representing professionals like you and who can provide you with the best defense possible.

Attorney Lee Gosciminski, RN, MS, JD

145 Tremont Street 4th Floor
Boston, MA 02111
Phone: 617 423-2212
Fax: 857-317-2393
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