Advanced Practice May Mean Even More Legal Issues for ARNPs

The advanced nurse is a registered nurse (RN) who has completed some form of advanced nursing education and training. Two types of advanced nurses are the advanced registered nurse practitioner (ARNP) and the certified nurse specialist. In Florida, there are three types of certified nurse specialists: certified registered nurse anesthetists, certified nurse midwives, and nurse practitioners. The potential risk of liability for an advanced nurse is as real as the risks for any other nurse. In addition to all of the legal issues that a registered nurse is faced with, the advanced nurse is susceptible to even more legal issues.

Advanced nurses are held to higher standards of care than RNs or licensed practical nurses (LPNs) because of the higher degree of education and training that an advanced nurse is required undergo. Advanced nurses are required to meet further certification requirements in order to become licensed. The additional certification requirements were established because advanced nurses have a much broader scope of practice than RNs or LPNs.

An advanced nurse is held to all of the same duties and standards as a RN, as well as additional duties that are placed on the advanced nurse because of advanced training. A failure to uphold the duties of a nurse can lead to the same consequences that a registered nurse could face, including action being taken by the Board of Nursing against the nurses license.

Advanced Registered Nurse Practioner (ARNP)

In Florida, an advanced registered nurse practitioner (ARNP) can only perform medical acts of diagnosis, treatment and operation under the supervision of a Florida-licensed medical doctor, osteopathic physician, or dentist.

The Board of Nursing, has established rules, pursuant to Florida Statutes, which regulate the requirements for a protocol between a physician or a dentist and an ARNP. The protocol must be in writing and signed by both the ARNP and the physician or dentist, showing a mutual agreement between the parties. The protocol must also include a description of the duties of the ARNP; a description of the duties of the physician or dentist; the management areas for which the ARNP is responsible, including the conditions for which therapies may be initiated and the treatments that may be initiated by the ARNP, depending on patient condition and judgment of the ARNP; and the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order. The protocol must include a provision for annual review by the parties which are privy to the protocol

In addition, the original protocol must be submitted to the Board within thirty days of the renewal of the ARNP’s license. A copy of the protocol and a copy of the notice required by Section 458.348(1), Florida Statutes, shall be kept at the site of practice of each party to the protocol. Any alterations to the protocol or amendments should be signed by the ARNP and the physician, or dentists and filed with the Board within 30 days of the alteration to be kept in the Department of Health for filing purposes only. Specific conditions and a procedure for identifying those conditions that require direct evaluation or specific consultation by the physician or dentist must be contained within the protocol.

Certified Registered Nurse Anesthetists (CRNA)

Administration of anesthesia by a certified registered nurse anesthetists requires special training and certification. Oversight and availability of an anesthesiologist is required by most organizations. The major risks for registered nurse anesthetists include the improper placement of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

Nurse Practitioner (NP)

A nurse practitioner, NP, is a registered nurse who has completed the necessary education to engage in primary health care decision making. A physician may not delegate a task to a NP when regulations specify that the physician must perform it personally or when the delegation is prohibited by state law or by an organizations own policies. A NP who practices outside of her scope of practice can be sanctioned by the Department of Health and if an injury occurs to a patient that NP can be civilly liable to the patient.

Certified Nurse Midwives (CNM)

Nurse midwives provide comprehensive prenatal care including delivery for patients who are at low risk for complications. Nurse midwives manage normal prenatal, intrapartum and postnatal care. In addition, nurse midwives will care for newborns as long as there are no complications. Nurse midwives also provide primary care for women’s issues from puberty to post menopause. The standard of care for a certified nurse midwife is that of a reasonably prudent certified nurse midwife engaged in the practice obstetrics and gynecology.

DEPARTMENT OF HEALTH (DOH) INVESTIGATION

One of the biggest mistakes an advanced nurse makes when being investigated by the Department of Health, DOH, is failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation process. If the advanced nurse does not make an objection to the DOH investigators request for a copy of a patient’s medical record, he or she is required to forward the medical record to the investigator. A failure to comply with this can lead to further disciplinary action against a nurse’s license.

For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.

How Can I Tell Whether or Not My Attorney Knows Anything about Florida Board of Nursing or Disciplinary Cases?

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Hiring an attorney can be intimidating and costly. However, hiring representation for a Florida Board of Nursing or disciplinary case is an investment in your future and career. An experienced attorney is indispensable for preparing and defending your case. But how do you know if your representation is knowledgeable in health law?

Below are some examples of what an experienced attorney will not say to a nurse about his or her Board of Nursing or disciplinary case. Remember, if you hear any of the advice below, the attorney most likely has limited or no experience in this area of legal practice.

1. Your attorney tells you that you can argue your case to the Board of Nursing.

Reason:

You cannot “argue your case” in front of the Board of Nursing. If you are at a hearing before the Board of Nursing, it is because you have requested an “informal hearing.”

If you have requested an “informal hearing” this means you do not dispute any of the facts alleged against you in the Department of Health (DOH) complaint. If you are not disputing the facts, this means you are agreeing that you are guilty. If you are at a hearing in front of the Board of Nursing, you will not be allowed to argue that you are not guilty, and you will not be allowed to call any witnesses or introduce any documents. You are only there for the purpose of determining how much punishment the Board will give you and this is based on guidelines that the Board has previously enacted.

2. If your attorney tells you that he or she does not intend to submit any information or documents for consideration by the Probable Cause Panel (PCP) of the Board of Nursing.

Reason:

Many cases are dismissed by the Probable Cause Panel (PCP) and this is the easiest, most expedient, and least expensive way of winning your case. However, your presentation (written only) that is submitted to the PCP must be direct, concise, directly address the legal issues, and be well organized. It is not advisable to try to prepare this yourself. We often include affidavits from our own expert witnesses that have reviewed the case. If the PCP does not vote in favor of probable cause, the case is dismissed and closed. It is like it never happened. There is no record kept of the initial complaint.

The PCP of the Board of Nursing consists of between two and four members. Some of these can be laypersons with no experience in your area of healthcare. A majority has to vote and decide that there is probable cause. Therefore, if there are only two members, and you convince one that you did not do it, then there is no probable cause.

In my opinion, this is the best and quickest way to win your case, but you must know what you are doing. There are exceptions to every rule.

3. If your attorney tells you to meet with the DOH investigator or to give a statement (written or oral) to the investigator, especially without being present or preparing you.

Reason:

DOH investigators are similar to police. If you give them any statement, this can be used to prove the case against you. In most cases, you never want to do this. Although there may be a rare exception, we strongly advise the client against this in about 99% of the cases we handle.

Even if you believe that you are totally innocent, your former employer, the unhappy patient who reported you, or the DOH prosecuting attorney may be convinced that you are not innocent and recommend that charges are prosecuted against you. Exhibit 1 used against you at a hearing will be your own statement. The first witness the DOH prosecutor will call to testify will be you.

Be smart in such matters. Don’t think you can just explain the case away. Don’t give evidence that can be used against you. It is not required under Florida law, and you cannot be compelled to do this.

4. If your attorney says you should call and negotiate with the DOH attorney, or PRN/IPN case manager.

Reason:

As discussed above, anything you say can and will be used against you. This is one of the main reasons you should retain an experienced attorney: to act as a buffer between you and the legal system, to protect you, and shield you from mistakes you make that could hurt your defense.

Additionally, if your attorney is not much more familiar with the DOH and the PRN/IPN procedures than you are, then why have you hired him or her?

5. If your attorney tells you not to worry about the hearing, you can later appeal.

Reason:

Only about 20% of cases are won on appeal. On appeal, the Court of Appeal is limited to the record of the hearing that was held. You are not allowed to reargue the facts in an appeal. You are limited to arguing about legal errors that were made during the hearing. If you don’t know the law, you are unable to effectively appeal.

6. If your attorney tells you that he or she can represent you during the investigation but is unable to “try” your case at an administrative hearing.

Reason:

Representation only through the PCP hearing stage simply is not enough. An attorney should have sufficient knowledge, experience, and skill to represent you throughout the entire case. If he or she does not, and formal administrative charges are recommended by the PCP, you will then need to retain a completely new attorney who will need time, effort, and legal fees to learn your case in order to properly represent you.

Additionally only an attorney who has experience in litigation cases against the DOH and your professional board will have the credibility and experience to negotiate the most favorable deal for you if you later desire to settle the case.

Consult With An Experienced Health Law Attorney.

We routinely provide deposition coverage to registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners in investigations at Board of Nursing hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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