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Former Texas Official Sentenced for Retaliation Against Nurses

According to ABC News, Scott Tidwell, a former West Texas county attorney, will serve four months in jail and 10 years of probation for retaliating against two nurses.

The nurses filed an anonymous complaint to state medical regulators against a doctor who used herbal remedies and hospital supplies to perform at-home procedures. The doctor then ordered a friend, a county sheriff at the time, to investigate the complaint, which resulted in the nurses being fired from their jobs and charged with felonies.

Tidwell acted as the prosecutor in the trial against one of the nurses. She was acquitted, and the charges against the other nurse were dropped.

Tidwell is not the only player in this case who is suffering from involvement. The Texas Medical Board found that the doctor tried to intimidate the nurses and placed him on probation for four years. He has also been charged with aggravated perjury and two counts each of retaliation and misuse of official information.

Earlier this year, a law was passed that adds protection from retaliation for nurses who advocate for patients. This bill allows nurses to report unsafe care with immunity from criminal liability.

Nurses and other health care professionals need this kind of legislation to allow them to fulfill their responsibilities to their patients. Without legal protection, health care professionals cannot be assured that there won’t be repercussions for acting on concerns. If our health care professionals are not protected, the care and safety of patients is compromised.

For more information about legal matters involved in nursing, visit www.TheHealthLawFirm.com or read the Nursing Law Manual.

Nurses Rx: Medication Administration

From George Indest’s Nursing Law Manual

Nurses face a busy schedule often including a long list of patients and extensive work hours. As a result, they can become overworked and overtired, which may lead to mistakes when carrying out essential job duties like administering medication. An Institute of Medicine (IOM) report titled To Err is Human: Building a Safer Health System (IOM, Dec. 1999) states the deaths from medication errors that take place both in and out of hospitals, more than 7,000 annually, exceed those from workplace injuries. In a separate report, investigation by the Chicago-Tribune states that since 1995, at least 1,720 hospital patients have died and 9,548 others have been injured because of mistakes made by RN’s across the country (Associated Press, Sept. 10, 2000).

Because nurses are usually the front-line health care providers who are required to administer medications prescribed by physicians (and often the most potent medications to critically ill patients), they must be especially careful in their procedures and practices to avoid one of the many types of common medication errors. The most common types of medication errors include:

1. similar sounding medication name;

2. administration without a prescription;

3. the wrong medication;

4. the wrong dosage;

5. negligent injection;

6. failure to note an order change;

7. failure to administer medication;

8. failure to discontinue medication;

9. use of an unsterile needle;

10. the wrong patient;

11. allergic reactions; and

12. failure to assure patient taking medications.

Nurses are required to handle and administer a vast variety of drugs that are prescribed by physicians and dispensed by an organization’s pharmacy. Medications may range from aspirin to esoteric drugs that are administered through intravenous solutions. These medications must be administered in the prescribed manner and dose to prevent serious harm to patients.

There are a variety of ways to ensure that, as a nurse, you are helping to prevent medication errors within your facility. Use this checklist from George Indest’s Nursing Law Manual in order to maintain safe administration procedures.

Nurses are exempted from the various pharmacy statutes when administering a medication on the oral or written order of a physician. However, the improper administration of medications can lead to malpractice suits.

ADMINISTRATION OF CONTROLLED MEDICATIONS WITHOUT A PRESCRIPTION

A nurse should never administer prescription medications without a valid prescription or order from a physician. In effect, doing that constitutes practicing medicine without a medical license and is beyond the scope of a nurse’s license. Administering medications without approval may give rise to legal liability and disciplinary action against the nurse.

ADMINISTERING THE WRONG MEDICATION

The injection of the wrong medication into a patient can lead to civil liability or to a charge of substandard nursing care made to the Department of Health. A nurse who prepares medication for a physician is liable for the preparation of that medication. A physician can blame a nurse who fails to prepare the medication properly in order to escape liability.

In the case of Ambercrombie v. Roof, a solution was prepared by a nurse employee and injected into the patient by a physician, 28 N.E. 2d 772 (Ohio 1940). The physician made no examination of the fluid, and the patient suffered permanent injuries as a result of the infection. An action was brought against the physician for malpractice. The patient claimed that the fluid injected into her was alcohol and that the physician should have recognized its distinctive odor. The court, in finding for the physician, stated that the physician was not responsible for the misuse of drugs prepared by the hospital, unless the ordinarily prudent use of his faculties would have prevented injury to the patient.

GIVING THE WRONG DOSAGE

A nurse is responsible for making an inquiry if there is uncertainty about the accuracy of a physician’s medication order in a patient’s record. A nurse who is in doubt about a physician’s orders should contact that physician and seek clarification of their order.

WRONG ROUTE

The nurse in Fleming v Baptist General Convention, 742 P.2d 1087 (Okla. 1987), negligently injected the patient with a solution of Talwin and Atarax subcutaneously, rather than intramuscularly. The patient suffered tissue necrosis as a result of the improper injection. The suit against the hospital was successful. On appeal, the court held that the jury’s verdict for the plaintiff found adequate support in the testimony of the plaintiff’s expert witness on the issues of nursing negligence and causation.

FAILURE TO NOTE AN ORDER CHANGE

A nurse’s failure to review a patient’s record before administering a medication, to ascertain whether an order has been modified, may render a nurse liable for negligence.

FAILURE TO ADMINISTER MEDICATION

In Kallenberg v. Beth Israel Hospital, 357 N.Y. S.2d 508 (N.Y. App. Div. 1974), a patient died after her third cerebral hemorrhage because of the failure of the physicians and staff to administer necessary medications. When the patient was admitted to the hospital, her physician determined that she should be given a ceratin drug to reduce her blood pressure and make her condition operable. For some unexplained reason, the drug was not administered. The patient’s blood pressure rose, and after a hemorrhage, she died. The jury found the hospital and physicians negligent in failing to administer the drug and ruled that the negligence had caused the patient’s death. The appellate court found that the jury had sufficient evidence to decide that the negligent treatment had been the cause of the patient’s death.

FAILURE TO DISCONTINUE A MEDICATION

A health care organization will be held liable if a nurse continues to inject a solution into a patient after noticing its ill effects. Once something is observed to be wrong with the administration of the medication, the nurse has a duty to discontinue its use.

NONSTERILE NEEDLE

The blood donor in Brown v. Shannon West Texas Memorial Hospital, 222 S.W. 2d 248 (Tex. 1949), sought to recover from a serious injury allegedly caused by the use of a nonsterile needle. The court held that the burden of proof was on the plaintiff to show, by competent evidence, that the needle was contaminated when used and that it was the proximate cause of the alleged injury. The mere proof, said the court, that infection followed the use of the needle or that the infection possible could be attributed to the use of an unsterile needle was insufficient. If the plaintiff had been able to prove the needle was not sterile, then the plaintiff would have recovered damages.

WRONG PATIENT

It is of utmost importance to check each patient’s name bracelet before administering any medication. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Especially in nursing homes and hospitals where there may be more than one patient in a room, this is exceptionally important. Should the nurse unwittingly administer one patient’s medication to a different patient, the attending physician should be notified and appropriate documentation placed on the patient’s chart.

ALLERGIC REACTIONS

Any adverse reactions to a medication should be charted on the patient’s medical record. The attending physician and the facility’s pharmacy should be advised as to the patient’s allergic reaction.

FAILURE TO MONITOR AND ENSURE PATIENT TAKING MEDICATIONS

A nurse normally has a duty to monitor and ensure that a patient is taking their medications. A failure to perform this act can lead to nursing negligence on the part of the nurse.

THE “SEVEN RIGHTS” OF PATIENT MEDICATION

There is a checklist every nurse should learn called the “Seven Rights of Medication.” If this checklist is memorized and followed in every case, medication errors would be significantly reduced or eliminated altogether. Every nurse and nursing student should memorize this list and go through it in her mind every time a patient is administered a medication by the nurse.

Always check for and confirm:

1. The right medication;

2. The right patient;

3. The right dose;

4. The right time;

5. The right route;

6. The right reason; and

7. The right documentation;

The nurse may be the last wall of defense to protect a patient from a medication error. The nurse should avoid at all costs, being rushed, tired, inattentive, sloppy, or lazy. Guard at every turn against medication errors. For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.

Florida Registered Nurses Finalize Union Agreement with HCA

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

Registered nurses at ten HCA hospitals in Florida have reached a collective bargaining agreement with the hospital chain. After negotiating for over a year, National Nurses United–a union for registered nurses–announced that it finalized the agreement with HCA on May 7, 2012.

The agreement affects over 3,000 Florida registered nurses at HCA hospitals. It will be effective for three years.

According to National Nurses United, Florida HCA management has agreed to establish a committee of elected nurses at each hospital to make recommendations on improving patient care. The contract also protects nurses against forced overtime and provides for a new wage system based on experience.

Milestone for Florida Nurses.

This collective bargaining agreement is a milestone for Florida nurses. It provides some degree of security and assurances of fairness to nurses before they can be terminated. Internal grievance procedures will have to be complied with by the employing hospital which will no longer be able to arbitrarily terminate a nurse.

Unionization Means Written Contract for Nurses.

This also means that nurses employed by the hospital will now have a written contract and will have contractual rights. Most nurses work as “at will employees” without a contract. This allows them to be fired for any (non-discriminatory) reason or no reason at all. This will prevent that from happening from now on.

This also has an advantage even for those nurses who are not union members. The labor contract will apply to them, too, giving them contract rights, as well.

Union Representative.

Although the union believes that the RNs covered by the new agreement will greatly benefit from it, there are often problems that arise from union negotiations that may not be initially apparent.

For example, the nurse employee will have the right to have a union representative present at any disciplinary proceedings, interviews, or investigations by the hospital employer. A nurse may feel that having a union representative present will ensure that his or her legal interests are protected. However, this is not always the case. A union representative will generally not do anything to jeopardize the union’s relationship with the employer. Additionally, the union representative is not a lawyer and often will not be able to provide legal strategy, legal advice, or good defenses to the nurse.

Union reps should never be mistaken for legal counsel. They will likely have no legal background and are not a substitute for an attorney.

Nurses Unfairly Accused of Diverting Narcotics.

This firm has heard from a number of nurses employed by hospitals across the state and regularly represents them. Often we are contacted by nurses who state that they are unfairly and incorrectly accused of diverting narcotics from patients or pilfering them from Pyxis, Diebold or ther brands of automated pharmacy dispensing systems. Many of these have been terminated by their employers even though their drug tests came back negative or they passed a polygraph examination (lie detector test).

When nurses are unionized and have contractual rights, this helps to end unfair and arbitrary terminations. Such abuses by hospital employers cause nurses to decide to vote in favor of unionization.

Contact Health Law Attorneys Experienced with Nursing Issues Today.

The attorneys of The Health Law Firm provide legal representation to nurses, nurse practitioners, and CRNAs in investigations, contract negotiations, licensing issues and at Board of Nursing hearings.  They also advise nurses wrongfully accused of diverting drugs and those wrongfully terminated from employment.  Its attorneys represent nurses in DOH investigations, Board of Nursing cases and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Dymond, Richard. “Nurses Win First Bargaining Contract with HCA’s Blake, Doctor’s Hospital.” Bradenton Herald. (May 8, 2012). From
http://www.bradenton.com/2012/05/08/4029914/nurses-win-first-bargaining-contract.html

Peters Smith, Barbara. Registered Nurses Reach Labor Agreement with 10 Florida Hospitals.” Herald-Tribune. (May 7, 2012). From
http://health.heraldtribune.com/2012/05/07/registered-nurses-reach-labor-agreement-with-10-florida-hospitals/

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.

Legal Responsibilities of Nurse Supervisors

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

Although a nursing supervisor is liable for her own negligent acts, the employer is liable for the negligent acts of all employees, including nursing supervisors. Supervisors are not generally liable under the doctrine of respondent superior for the negligent acts of those being supervised, unless they can be shown to be independently negligent in how they supervise or fail to supervise. They have the right to direct the nurses who are being supervised. In a health care facility, the supervisor’s powers are derived directly from the facility’s right of control.

A supervisor who knowingly fails to supervise an employee’s performance or assigns a task to an individual he or she knows, or should know, is not competent to perform can be held personally liable if an injury occurs. The employer will be liable under the doctrine of respondent superior as the employer of both the supervisor and the individual who performed the task in a negligent manner. The supervisor is not relieved of personal liability even though the employer is liable under respondent superior.

In determining whether a nurse with supervisory responsibilities has been negligent, the nurse is measured against the standard of care of a competent and prudent nurse in the performance of supervisory duties. Those duties include the setting of policies and procedures for the prevention of accidents in the care of patients.

I. Failure to Properly Supervise.

Nursing supervisors must properly supervise the care rendered to patients by their subordinates.

A. Special Duty Nurse.

A special duty nurse is a nurse hired by the patient or the patient’s family to perform nursing care for the patient. An organization and its supervisors are generally not liable for the negligence of a special duty nurse unless a master-servant relationship can be determined to exist between the organization and the special duty nurse. If a master-servant relationship exists between the organization and the special duty nurse, the doctrine of respondent superior may be applied to impose liability on the organization for the nurse’s negligent conduct.

Like a staff physician, a special duty nurse may be required to observe certain rules and regulations as a precondition to working in the organization. However, the observance of organization rules is insufficient to establish a master-servant relationship between the organization and the nurse. Under ordinary circumstances a special duty nurse is employed by the patient, and the organization has no authority to hire or fire the nurse. The organization has the responsibility to protect the patient from
incompetent or unqualified special duty nurses.

B. Student Nurses. 

Student nurses are entrusted with the responsibility of providing nursing care to patients. When liability is being assessed, a student nurse serving at a health care facility is considered an agent of the facility. This is true even if the student is at the facility on an affiliation basis. Student nurses are personally liable for their own negligent acts and the facility is liable for their acts on the basis of respondent superior. Students must be supervised by a registered professional nurse who is either the direct agent of the student’s nursing school or one who has been designated by the school to serve in that capacity. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts, in several decisions, have taken the position that anyone who performs duties customarily performed by professional nurses is held to the standards of professional nurses. Each and every patient has the right to expect competent nursing services even if the care is provided by students as part of their clinical training. It would be unfair to deprive the patient of compensation for an injury merely because a student was responsible for the negligent act. Until it is demonstrated clearly that student nurses are competent to render nursing services without increasing the risks of injury to patients, they must be supervised more closely than graduate nurses.

II. Unlicensed Assistive Personnel.

Every time you delegate tasks to unlicensed assistive personnel (UAPs), you’re legally accountable for the outcome. What can you do to reduce your malpractice risk? Here are some tips:
1. Assess the patient’s needs, the staff available to meet those needs, and the
level of supervision required for a UAP to safely perform any task you
delegate;

2. Know the training and qualifications of the UAPs you supervise;

3. Assign the right person to carry out a task, based on her competence and
the patient’s condition;

4. Provide clear directions for the task you want performed. Ensure that the
UAP understands your expectations and knows to ask for help if questions
or problems arise;

5. Monitor the UAP’s performance of the task and the patient’s response; and

6. Accurately document the care provided.

Once a UAP is hired, the supervisor must delegate tasks appropriate to the UAP’s training,
credentials, and experience. If the tasks exceed the UAP’s competency level, the employer may be liable for negligent training. Furthermore, under the theory of vicarious liability nurses, physicians, facilities, or agencies may be held responsible for UAPs’ actions. In essence, a supervisor is liable if she assigns inappropriate tasks to anyone who lacks the skill or training to perform them. A good way to prepare UAP’s is to provide standardized training or testing in basic skills and to assign only tasks in which the UAP’s have shown competency.

III. Inadequate Staffing.

Health care organizations must continuously monitor their staffing needs in order to provide adequate care. The organization’s leaders, including nurse supervisors, define for their respective areas the qualifications and job expectations of staff and to evaluate the degree to which expectations are satisfied. Under federal law nursing facilities must have sufficient nursing staff to provide nursing and related services adequate to attain and maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident, as determined by resident assessments and individual plans of care. Nursing facilities must provide 24-hour nursing services that are sufficient to meet the total nursing needs in accordance with patient care plans. 42 C.F.R. § 483.20 (1989). As nursing facilities are increasingly filled with older, disabled residents with ever-increasing complex care needs, the demand for highly educated and trained nursing personnel continues to grow. Inadequate career ladders and wage scales lower than those found in acute care hospitals, make it difficult for long-term care facilities to attract nurses.


Nursing Law Manual.

This blog post came from The Florida Nursing Law Manual.

The Florida Nursing Law Manual and the forms and information contained in it is for general information and education only. It is not intended to be and does not constitute the provision of legal advice. Every case, every individual, and every set of circumstances is different. You should always consult with your own attorney when making any legal decision. We recommend that you only use an attorney who is Board Certified by the Florida Bar in the Legal Speciality of Health Law and who is experienced in the legal matters at issue.
Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at 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.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Nurses: Beware of Nationwide Telephone Prescription Drug Scam

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

The Drug Enforcement Administration (DEA) is warning nurses to be aware of a prescription drug scam. This telephone scheme is extorting money from people all over the country. On November 28, 2012, the DEA released a press release explaining the details of the scam.

Criminals Ask Victims for Cash Over the Phone.

The scam starts with criminals posing as DEA agents calling victims by telephone. Frequently the victims will have recently purchased prescription drugs over the internet or by phone. The imposters tell the victims that purchasing the drugs in that manner is illegal, and that they must pay a fine. If the victims refuse to send money, the phony DEA agents threaten to arrest the victims or search their property. Some of the victims have also reported unauthorized use of their credit cards after purchasing the prescription drugs.

Click here to read more on this scam from a DEA press release.

The DEA wants to remind nurses that no DEA agent will ever contact you by telephone. They might show up at your house early in the morning or while you are eating dinner, however. Also, agents never request money or any other form of payment.

Nurses You Need to Know the Rules for Purchasing Drugs Electronically or By Phone.

Many times it may be illegal to purchase controlled drugs by phone or over the internet. That’s why you should go to Canada to do it. There are direct flights from Orlando. However, some pharmacies that meet stringent requirements and are registered by the DEA are allowed to sell drugs over the internet or by phone. So don’t be fooled by this telephone scam.

How Do Scammers Get Your Information?

The scammers are counting on the fact that if you have done this, you, as a nurse, will get scared and believe their accusations. Many people have no idea whether such conduct is legal or illegal. These imposters are banking on your ignorance and fear of losing your license to practice. They are also banking on the fact you won’t report this to the real police.

Where do they get this information? Chances are, they are just “cold-calling” people. There are bound to be a certain number of people they reach who have done this. However, if they seem to have your personal information (or credit card number) report this to the police right away. Be sure to obtain a written police report. Also, you should file a HIPAA Privacy Complaint with the Office of Civil Rights (OCR) to begin an investigation if you believe your personal information has been stolen by or given to someone else to use.

Why Pain Patients Turn to Alternative Means to Obtain Drugs.

It is no surprise that the DEA, along with other law enforcement agencies, has stepped up its efforts to cut down on overprescribing. To see examples of what I am talking about read my past blogs: Walgreens fights the Drug Enforcement Administration’s (DEA) immediate suspension order and Drug Enforcement Administration (DEA) pulls controlled substance licenses from two Sanford, Florida, CVS pharmacies.

If the largest, legitimate pharmacy chains in the state and nation are not allowed to fill these prescriptions, where will chronic-pain patients turn? Are these actions driving our citizens into the hands of shady pharmacies that have fewer safeguards and less accountability, such as online pharmacies? Are these actions driving our citizens to seek out illegal drug dealers and turn to illegal drugs to cope with their legitimate medical problems? That is just one opinion. Tell us yours below.

Contact Health Law Attorneys Experienced with Investigations of Nurses.


The attorneys of The Health Law Firm provide legal representation to nurses and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a nurse, have you been contacted by these phony DEA agents? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “DEA Warns of Prescription-Drug Scam.” Orlando Sentinel. (November 29,2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-dea-warns-scam-internet-20121128,0,5800536.story

Drug Enforcement Administration. “DEA Scam Alert – Extortion Scheme.” DEA. (November 28, 2012). From: http://www.justice.gov/dea/divisions/mia/2012/mia112812a.shtml

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.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

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