nursing license | The Health Law Firm Blog

New Jersey Appeals Court Says Plaintiffs Don’t Need Presuit Affidavits to Sue LPNs in Medical Malpractice Cases

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

In a possibly precedent-setting case, on November 9, 2022, for the first time, an appeals court in New Jersey ruled that plaintiffs in medical malpractice cases do not need an affidavit of merit to file claims against a licensed practical nurse (LPNs). The Superior Court of New Jersey, Appellate Division, said that an LPN is not included in the “licensed person” definition under the state’s affidavit of merit statute.

Additionally, the court’s ruling stated that an LPN could not use the absence of such an affidavit to avoid a medical malpractice suit. In this case, the malpractice suit was brought by a widower who says his wife died as a result of bad medical advice given by her LPN.

Allegations Made in the Lawsuit.

The plaintiff claimed that the defendant (an LPN) responded to his complaints about his wife being in pain and unable to eat following her colon surgery by blaming the issue on “post-operative gas.” After allegedly ignoring numerous messages he left regarding her condition, the LPN allegedly told the husband to give his wife, Pepto Bismol. The following day, his wife died, according to the lawsuit.

In July 2020, the plaintiff filed a medical malpractice claim on behalf of himself as the administrator of his wife’s estate. The lawsuit originally named the doctor, Virtua Surgical Group, and an unknown nurse. Following discovery, the plaintiff dismissed the claims against the doctor and Virtua Surgical Group, and proceeded against only the LPN. According to the opinion, the plaintiff alleged that the LPN was negligent in providing medical advice and in failing to consult with her doctor.

You can view the court’s opinion in full here on our website.

Is a Licensed Practical Nurse a “Licensed Person” Covered by the AOM Statute?

In New Jersey professional negligence cases, plaintiffs must file an “affidavit of merit,” or AOM, signed by a licensed medical professional, before they are allowed to sue those [professionals for malpractice. This results from a tort reform package passed by the state government in 1995.

Why there hasn’t been a case similar to this one, or lobbying by LPNs to sew up the legal “loophole” before now, is unclear.

Like many similar state statutes passed around the same time, the New Jersey statute was designed to balance between reducing frivolous lawsuits and permitting injured plaintiffs recovery for meritorious claims. According to the court’s decision, a plaintiff claiming “malpractice or negligence by a licensed person” must file an “affidavit of an appropriate licensed person” who can attest that there is a “reasonable probability” that defendant’s conduct “fell outside acceptable professional or occupational standards or treatment practices.”

The defendant in this case argued that since the nursing portion of the statute defines “the practice of nursing” for “a registered professional nurse,” the Legislature intended for licensed practical nurses to be included. However, the New Jersey appeals court held that the tort reform package would not protect the LPN from the lawsuit because she was a different kind of nurse from a registered nurse.

In his written opinion for the court, New Jersey Superior Court Judge Robert J. Gilson considered whether a licensed practical nurse is a “licensed person” covered under the AOM statute. “The AOM statute expressly uses the term ‘a registered professional nurse.’ Yet, nowhere in that definition of a registered professional nurse is there a reference to a licensed practical nurse,” he added.

Gilson stated in the court’s opinion that the Legislature was aware that it had separately defined the two types of nurses. In other words, if it had wanted to protect LPNs at the same time as it was protecting RNs, it could have done so. Therefore, the plaintiff was allowed to pursue claims without an AOM. However, the plaintiff would still be required to prove the defendant’s negligence to succeed.

Click here to view the opinion in full.

Click here to read one of our related blogs about legal issues LPNs often face.

Who Is a “Professional” and What Is “Malpractice”?

“Malpractice” is usually defined as the negligence of or the breach of a professional duty by a professional. In other words, professional negligence.

How do we determine who is a “professional” then? The simple rule of thumb is that anyone who is required to have a license in order to perform his or her occupation is a professional. Thus, under this definition, we have attorneys, dentists, accountants, architects, engineers, funeral directors, teachers, all are required to have licenses, depending upon what state they are in. Thus there can be accounting malpractice, engineering malpractice, architectural malpractice and, yes, even legal malpractice. Under this definition, a licensed practical nurse would be considered a professional who could commit nursing malpractice.

However, if the wording of law limits coverage to only certain listed professions, and other professions are left out, then only the ones specifically listed will be covered by its application.

Is the Decision Limited or Possibly Widespread?

The decision appears to be a correct one based on the wording of the New Jersey statute. If “licensed practical nurses” was not a category of licensed professionals included by the Legislature in the New Jersey statute, then the courts should not “read them into” coverage by the statute. Unfortunately, this was probably merely an oversight on the part of whatever bill drafter and committee proposed the legislation in the first place. Licensed practical nurses and their professional associations should immediately lobby the Legislature of New Jersey to have the “loophole” filled.

Whether similar results are possible in other states will depend on the wording of the similar laws in those states. For example, Florida has a somewhat similar statute, but it does not actually name the specific category of medical provider covered by the act (e.g., “medical doctor,” “chiropractor”). Instead, the Florida Law, Section 766.202, Florida Statutes, refers to those covered by the medical malpractice statute as “any person licensed under part I of chapter 464, Florida Statutes. . . .[etc.]” Registered nurses, licensed practical nurses and advanced nurse practitioners are all licensed under that part and chapter of the Florida law. So a problem similar to the one in New Jersey never arises.

Contact Health Law Attorneys With Experience Representing Nurses and Handling Licensing Issues.

If you are applying for a nursing or healthcare license, have had a license suspended or revoked, or are facing imminent action against your license, you must contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood; it is not recommended that you pursue these matters without the assistance of an attorney. The Health Law Firm routinely represents nurses, physicians, dentists, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

To contact The Health Law Firm, call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Karpan, Andrew. “No Affidavit Needed To Sue ‘Practical’ Nurses, NJ Court Says.” Law360. (November 9, 2022). Web.

Murphy, Colleen. “NJ Appeals Court: No Affidavit of Merit Needed for Negligence Claim Against Licensed Practical Nurse.” Law.com. (November 10, 2022). Web.

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., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.

The Collateral Effects of a Criminal Case on a Health Care Licensee

Criminal charges against a health care professional can have serious consequences. Learn more about the impact of a criminal charge on Florida licensed health professionals. For further information, visit our website.

What is the Effect of a Plea of Nolo Contendere for a Florida Licensed Health Professional?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), a plea of nolo contendere is treated the same as a plea of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

What Is the Effect of an Adjudication or Finding of Adjudication Withheld?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), an adjudication or finding of adjudication withheld (or “adjudication deferred” in some jurisdictions) is treated the same as a finding of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

When must a Licensed Health Professional Report Guilty Pleas (Nolo Plea or Guilty Plea) and Convictions (Adjudication Withheld or Finding of Guilty) to the Florida Department of Health?

Any guilty plea (as defined above as a nolo plea or guilty plea) or any adjudication of guilt (as defined above as adjudication withheld or finding of guilty) of any crime must be reported by the health professional to his or her professional licensing board (or the Department of Health when there is no board) within thirty (30) days of the conviction or finding. Section 456.072(1)(x), Florida Statutes.

In Florida, all health professionals licensed or regulated under Chapter 456 of Florida Statutes, are required to report to their professional board (or the Florida Department of Health if there is no professional board in their profession) any convictions or findings of guilty of criminal offenses, in any jurisdiction. Unfortunately, pursuant to Florida Statutes, a plea of nolo contendere must be reported just as a plea of guilty to an offense (a plea of not guilty does not need to be reported). A finding of guilty or a finding of adjudication withheld (also called a “withhold” or “deferred adjudication” in some jurisdictions) must also be reported (a finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

Licensed practitioners who also are required to have a profile with the Department of Health (e.g., physicians licensed under Chapters 458, 459, 460 or 461), must submit an update to their profile, including criminal convictions, within fifteen (15) days of the “final activity that renders such information a fact.” Section 456.042, Florida Statutes.

For example, a doctor of medicine (M.D.), licensed pursuant to chapter 458, Florida Statutes, must submit an update to the physician’s profile within fifteen (15) days. A registered respiratory therapist, on the other hand, doesn’t have a profile. The registered respiratory therapist would have to report a matter qualifying with the above within thirty (30) days to his or her board, the Board of Respiratory Care. (A finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

As with any such important legal matter, we recommend reporting in a typed, professional letter, via a reliable method of delivery which provides tracking and delivers you a receipt. We do not consider e-mail to be reliable or susceptible of verification or tracking. We usually recommend reporting such matters via U.S. Express Mail, with a return receipt requested. Be sure to keep copies of the correspondence, the receipt of mailing and the return receipt, to document reporting and delivery dates, and to prove receipt.

Always consult the latest versions of the Florida Statutes and the Rules of the Department of Health and your professional board to make sure you have the correct information. We recommend retaining a health attorney familiar with the Department of Health and its regulatory processes, as such a report will usually require the Department of Health to commence an investigation of the health professional, even if the health professional is located in another state.

Which Crimes May Result in an Automatic Bar to Licensure?

Senate Bill 1984, effective July 1, 2009, amended various section of Florida Statutes, including sections of Chapter 456. These amendments prohibit the Department of Health from granting a new license to or granting the renewal of a license to a health professional because of a guilty plea or conviction of certain offenses. This is also grounds for revocation of the health professional’s license.

Generally, as set forth in Section 456.0635(2)(a), Florida Statutes these are:

Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a felony under:

Chapter 409 (the Medicaid Program)
Chapter 817 (Fraud)
Chapter 893 (Drugs)
21 U.S.C. Sects. 801-970 (Food and Drugs); or
42 U.S.C. Sects. 1395-1396 (Medicare, Medicaid, and Social Security)

unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application. (Sect. 456.0635(2)(a), Fla. Stat.)

Additionally, grounds for discipline against the existing license of health professional includes:

Any misdemeanor or felony relating to Medicaid fraud: “Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. Sect. 669, Sects. 285-287, Sect. 371, Sect. 1001, Sect. 1035, Sect. 1341, Sect. 1343, Sect. 1347, Sect. 1349, or Sect. 1518, or 42 U.S.C. Sects. 1320a-7b, relating to the Medicaid program.” (Sect. 456.072(1)(ii), Fla. Stat.
Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud. (Sect. 456.072(1)(ll), Fla. Stat.

Defense Strategies and Avoidances

Plead to some offense or offenses other than the ones listed above.
Avoid a felony conviction; misdemeanors do not prohibit licensure or renewal, but may result in disciplinary action.
Avoid any offenses that sound like “health fraud,” “Medicaid fraud” or “Medicare fraud.”
Violations of other states’ laws don’t count; just Florida’s and federal listed above (caveat).
Attempt to obtain pre-trial diversion, pre-trial intervention or drug court.
Attempt to avoid having to enter a guilty plea or nolo plea.
Attempt to include in settlement agreement/plea bargain agreement/stipulation that client may apply to have record sealed immediately upon completion of requirements and State will not object.
Advise client to immediately apply for sealing of record when all requirements of probation are met.
Obtain input from a board certified health lawyer or other “expert” as to the disproportionate effect (all of the collateral consequences) that a “conviction” may have on the licensed health professional.

What Are the Collateral Effects of “Conviction” of above Offenses?

A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until entire licensure case is complete.
Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.
Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic. This will usually be physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), podiatrists, clinical psychologists and clinical pharmacists.
Mandatory report to the National Practitioner Data Base (NPDB) (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.
Must be reported to and included in the DOH profile that is available to the public online (for those having one), and remains for at least ten years.
Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).
The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.
The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.
The certified health professional’s certify organization will act to revoke his or her certification.
Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.
Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.
Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

By The Health Law Firm|2024-03-14T10:00:25-04:00June 1, 2018|Categories: Health Care Industry, The Health Law Firm Blog|Tags: attorney, criminal charges, florida, health care, medical license, nursing license|1 Comment

Terrible Things That Can Happen after Discipline on Your Nursing License or Resignation of a Nursing License after Notice of Investigation

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

Do you have nursing licenses in several different states? Do you have a license in more than one health profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning your nursing license or voluntarily relinquishing such a license? Then you must be aware of the following.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you. Such a resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported out to other states, agencies, to the National Practitioner Data Bank (NPDB), to any certifying bodies for certifications you have and to other reporting agencies (such as the National Council of State Boards of Nursing for its NURSYS data bank). Other states and other professional boards will most likely initiate disciplinary action based upon the first one.

Protect Your Nursing License from These Adverse Actions.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your nursing license after receiving notice of investigation:

1. A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank or HIPDB recently merged into the NPDB.

2. Must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one), and remains for at least ten years.

3. Any other states or jurisdictions in which the nurse has a license will also initiate investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, initiated action).

4. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a. If this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid. This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b. If this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list. This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding. This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c. If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program. In many states, this is also grounds for revocation of your nursing license.

5. Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing) will include the adverse action in it, generally available to the public.

6. If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff membership if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic. This will usually be for advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives or certified nurse anesthetists (CNAs).

7. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

8. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.

9. Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

What Should You Do?

– Don’t take the easy way out by immediately relinquishing your license if you are notified you are under investigation.

– Don’t hide your head in the sand by thinking the case will just go away on its own.

– Don’t take the easy way out. If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

– Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true. If you do this, you are “pleading guilty.”

– Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings. They are out there, but you may have to search for one. Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

– Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not. This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney. Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

A Health Lawyer’s Opinion on Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage. Make sure it covers professional license defense under all circumstances. Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase; $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation. For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.

Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past who provide an inexpensive top quality insurance product for professional license defense costs include: CPH & Associates Insurance, Nurses Service Organization (NSO) Insurance, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.

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.

By The Health Law Firm|2024-03-14T10:01:16-04:00May 15, 2018|Categories: Board of Nursing, Defense, Discipline, Nurse License|Tags: Administrative Hearing, advance registered nurse practitioners (ARNPs), and Lloyd's of London Insurance, certified nurse anesthetists (CRNAs), certified registered nurse anesthetists (CRNAs), CPH & Associates Insurance, defense attorney, defense lawyer, Department of Health and Human Services (HHS), Department of Health investigation of a nurse, disciplinary relinquishment, discipline on your nursing license, exclusion from the Medicare Program, Healthcare Providers Organization (HPSO) Insurance, investigation of a nurse, List of Excluded Individuals and Entities, National of Sate Board of Nursing (NURSYS), National Practitioner Data Bank (NPDB), nurse, nurse attorney, nurse excluded from the Medicare Program, Nurse lawyer, nurse midwives, nurses, Nurses Service Organization (NSO) Insurance, nursing license, Office of the Inspector General (OIG), professional licensing matter, resignation of a nursing license, the health law firm, voluntary relinquishment, voluntary relinquishment of a nursing license|Comments Off

Think You Have Professional Liability Insurance Through Your Employer? Think Again, Nurse!

By Joanne Kenna, R.N., J.D., The Health Law Firm

Not a week goes by without a call coming into the firm from a nurse whose license is under investigation for some reason or another. The nurse is generally dumbfounded that this has happened. “But I’m a good nurse. I never thought this could happen to me,” is the sad refrain.

Very often the nurse is correct. He/she is a clinically good nurse. Often there has never been any prior problem or any question of this. But all it takes is one instance, just one violation that gets reported to the Department of Health (DOH), and the nurse is suddenly in the position of having his/her license investigated. The nurse then has to defend his/her actions to protect the integrity of his/her license, and possibly even his/her ability to continue practicing, against the allegations of the violation.

Employer’s Insurance Coverage Protects the Employer, Not You.

Normally when a licensure investigation is initiated, the nurse is upset and angry, and is determined to do whatever is necessary to protect his/her license. At this point the intelligent nurse will usually start making telephone call(s) to seek legal advice and counsel. Then comes the harsh reality. Obtaining good legal services is expensive. It can be very expensive. Inevitably the question is put to the nurse as to whether he/she has insurance. All too often the nurse responds that his/her insurance is (or more often at this point, was) through his/her employer.

Then more reality hits. Often the nurse has already been terminated from employment by this point. So, no insurance. Even if the nurse is still employed, the nurse quickly finds out that the coverage he/she believed existed, and often was led by the employer to believe existed, is not really a policy for the nurse at all. The nurse is “covered” under the hospital’s (you can substitute nursing home, clinic, etc., as applicable here) policy really only to protect the hospital’s interests. Therefore, this “coverage” extends only to those situations and occurrences where the hospital might have liability. (And even in that case the nurse should be wary because it is really the hospital’s interests that are being protected by the policy. Where the nurse’s interests happen to be aligned with the hospital’s, all is good. But where they are not, well, the hospital has coverage and its interests will be protected; as for the nurse, he/she is on his/her own).

What you should know is that the hospital’s insurance coverage is there to protect the hospital – – period.

Protect Your Nursing License with a Personal Professional Liability Insurance Policy.

You should also recognize that no nurse is immune from a professional liability claim. No matter how conscientious and clinically competent the nurse may be, the potential for a professional licensure action always exists. Day after day nurses forego legal representation when they are under licensure investigation because legal representation is unaffordable for them. While some nurses get lucky and will have a good outcome in spite of this, many others will not. The very idea of gambling with your nursing license that took so much effort to earn and is the key to your future earning capacity, is not only risky, it is downright foolish.

The truth of the matter is that all nurses should protect themselves by obtaining a personal professional liability insurance policy. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 – $15 a month.

Licensure protection coverage provides the nurse with the ability to obtain competent legal representation from an attorney or a law firm that is familiar with handling licensure investigations and the disciplinary actions that can ensue from them. Good policies will provide $10,000 – $25,000, and even more for legal expense. Having this money available at the time it is needed allows the nurse to focus on his/her defense and provides the nurse the opportunity to pursue this defense all the way through the administrative process. All too often the alternative is having the limited available funds dictate the nurse’s acceptance of an undesired resolution to the matter.

Be Smart, Get Professional Insurance Before it is Too Late.

So, if your independently wealthy, you can continue practicing without much concern about how you will be able to afford legal services for licensure defense if and when that becomes necessary. If though you are not, and your answer to the question of whether you have insurance would be that you do through your employer, now is the time to start thinking about changing that. Tomorrow just might be too late.

Contact Health Law Attorneys Experienced in Representing Nurses.

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

Comments?

Do you have personal professional liability coverage? Are you thinking about getting it now? Please leave any thoughtful comments below.

About the Author: Joanne Kenna is a nurse-attorney with 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 Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

By The Health Law Firm|2024-03-14T10:01:17-04:00May 15, 2018|Categories: Nursing Law Blog|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|1 Comment

Nurses, No More Excuses: Get a Personal Professional Liability Insurance Policy Now-Part 1

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

To protect yourself from automobile accidents, you carry auto liability insurance. To protect your home from fire, storms and other accidents, you carry homeowners’ insurance. However, I have noticed many nurses fail to carry any insurance to protect one of their most precious assets, their nursing licenses. Yet such insurance is cheap and easy to obtain. I cannot stress enough how important it is for a nurse to carry a personal professional liability insurance policy that covers any investigation, complaint or administrative hearing that might be filed or opened against a nurse’s license.

In my experience, I’ve heard every excuse as to why a nurse does not have a personal professional liability insurance policy. In this blog series, I am exploring those excuses. I want every nurse to understand the importance of buying personal professional liability insurance now, before it is too late.

Keep in mind that a great deal more nursing license complaints are filed against nurses than there are liability lawsuits.

Excuse: I Am a Good Nurse, I Don’t Need Professional Liability Insurance.

You may be a good nurse, but good nurses are the subject of lawsuits and complaints. All it takes is just one violation that gets reported to the DOH or BON, and the nurse is suddenly in a position of having his or her license investigated. The nurse then has to defend his or her actions to protect the integrity of his or her license, and possibly the ability to continue practicing.

The harsh reality is that legal representation is very expensive. Without insurance, even if the nurse is found to be not negligent, the nurse is still responsible for the attorney’s fees and expenses incurred during trial. However, professional liability insurance will protect the nurse in the event of a lawsuit, and it may also pay legal defenses in the event of a complaint against the nurse’s license to practice or for other legal problems.

Excuse: I am Covered By My Employer’s Insurance.

We hear this on a weekly basis. Many nurses mistakenly believe that their employer insures them for legal fees and costs associated with defending against licensure complaints, Emergency Suspension Orders (ESOs), Notices of Investigation, and Administrative Complaints. In the overwhelming majority of cases, this is false. Often it is the employer that files the complaint against the nurse that causes the investigation. If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any DOH or BON investigation or subsequent administrative proceedings that arise out of your employment. It is unlikely that you will get it.

When a nurse is “covered” under a hospital’s (you can substitute nursing home, clinic, etc., as applicable here) policy, that policy primarily protects the hospital’s interests. Therefore, this “coverage” extends only to those situations and occurrences where the hospital might have liability.

Check This Blog for More.

I will continue to explore excuses I hear from nurses as to why they do not have a personal professional liability insurance policy in later blogs.

It is my hope that after reading this you will look into purchasing your own professional liability insurance policy.

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 (BON) 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.

Comments?

Do you have personal professional liability coverage? Are you thinking about getting a personal policy now? Please leave any thoughtful comments below.

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.

By The Health Law Firm|2024-03-14T10:01:17-04:00May 15, 2018|Categories: Board of Nursing, Defense, Department of Health, Insurance, Nurses Service Organization|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, defense attorney, defense lawyer, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|1 Comment

Nurses, No More Excuses: Get Personal Professional Liability Insurance Policy Now-Part 2

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

Nurses, I am writing this to strongly encourage you to purchase your own professional liability insurance policy. I have noticed many nurses fail to carry any insurance to protect one of their most precious assets, their nursing licenses. Yet such insurance is cheap and easy to obtain. Professional liability insurance will protect a nurse in the event of a lawsuit, and it may also pay legal defenses in the event of a complaint against a nurse’s license to practice or for other legal problems. If you already have nursing liability insurance, make sure it also pays all legal expenses incurred in defending a complaint against your license.

I’ve heard every excuse as to why a nurse does not have professional liability insurance. In this blog series, I am exploring many of those excuses. I want every nurse to understand the importance of buying personal professional liability insurance now, before it is too late.

This is part two of the series, click here to read part one.

Excuse: Professional Liability Insurance is Expensive.

All nurses should protect themselves by obtaining professional liability insurance. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The costs on these policies vary, but it is generally quite reasonable. It is common to find professional liability insurance that provides excellent coverage and excellent benefits for less than a dollar a day. We’ve seen policies cost as low as $10 to $15 a month. That is a small price to pay to protect your livelihood.

Excuse: Licensure Defense Coverage Is Not Necessary.

When you buy professional liability insurance, again, it is very important you make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000. If it does not, I recommend you purchase a “rider” or additional coverage from that insurer for a small additional premium. Also, attempt to obtain “broad form coverage.” This will pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one). There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late.

Contact Health Law Attorneys Experienced in Representing Nurses.

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

Comments?

Do you have personal professional liability coverage? Are you thinking about getting a personal policy now? Please leave any thoughtful comments below.

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.

By The Health Law Firm|2024-03-14T10:01:18-04:00May 15, 2018|Categories: Defense, Insurance, Malpractice, Nurse License|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, defense attorney, defense lawyer, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|Comments Off

Advice for Nurses Regarding Department of Health Investigations

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

We see and hear about a lot of incorrect legal advice being given to nurses regarding what they should do if they are being investigated.

The incorrect advice being given even includes mailings they may have received containing a brochure “What Every Nurse Needs to Know” published by the National Council of State Boards of Nursing. It gives advice in response to the question: “What should you do if you are the subject of a complaint?” It advises the nurse to contact the Board of Nursing (BON) immediately in such an event and states that the complaint will be handled in a “fair and appropriate matter.” It advises that a BON representative will describe the investigation process and answer any questions that you may have about an investigation if a complaint is filed against you.

This does not appear to be sound advice and we would warn nurses against following it. Such advice may cause great damage to any defenses you may have, even if you are totally innocent. If you don’t believe me, then contact a nurse who has been investigated and has received discipline and ask him or her what he or she thinks about this. Alternatively, attend a Board of Nursing meeting and observe first hand the disciplinary cases that come before it (you can even get free continuing education credits for doing this) and talk to some of the nurses there.

You Have a Constitutional Right in Florida to Refuse to Make a Statement

Most states, Florida included, do not require you to make any statement to an investigator (or attorney) working on a Board of Nursing complaint. We recommend that you not do so.

Under Florida law, your constitutional right to not make any statement that might help to incriminate you applies to such proceedings. Nurses are often falsely accused of misconduct or wrongdoing by patients, families of patients, employers and rivals. Most states do have adequate procedural safeguards in place that, if used by the nurse, will help to ensure the correct outcome of the matter. However, you must first know what these rights and safeguards are, and then know how to use them to your advantage in such proceedings. Very few attorneys are experienced in such matters and even fewer nurses are.

Investigations That May Affect Your Professional License Are Considered to Be “Penal” or “Quasi-criminal” Investigations

You should think of the investigation in the same light as a criminal investigation against you if you were wrongfully accused of a crime. In the case of a BON complaint, you can lose your license, lose your career, and be assessed monetary fines in the thousands of dollars. Why would you want to contact the investigator in such a matter and make statements that can later be used against you, if you don’t have to?

In most states, Florida included, the burden of proof is on the state to prove every element of the case against you. However, if you make any statements to the investigator (or the attorney for the Board), oral or written, this can be used against you. Even the simplest, most innocuous statements can cause you tremendous difficulty, because anything you say is something the state is no longer required to prove in an investigation or a hearing.

Even the Simplest Statement You Make Can Be Used Against You

For example, the state may not have an admissible document or a witness who is available at the time who can state that you actually saw or treated the patient. Without being able to prove this, the state may not be able to prove any charge against you.

Yet if you make a simple statement that you did treat the patient, the state no longer has to introduce any other proof of this. You have helped the state to prove its case against you without even meaning to do so. You have now made the case against you quicker, easier and less expensive for the state to prove; you may have made the case against you possible to prove when otherwise the state would not have been able to prove it at all.

Board of Nursing Does Not Usually Give Legal Advice to Nurses

It has also been our experience that BON representatives and staff do not have the time or resources to answer every question you may have. Furthermore, BON representatives are not able to give you legal advice on what to do. Even if you do speak with an attorney representing the BON, that attorney is not allowed by law to give you legal advice. Remember, the attorney representing the BON works for the state and is similar to a prosecutor. If you were charged with a criminal offense, would you call up the attorney prosecuting you and ask for her or his legal advice on what to do?

Nursing Liability Insurance May Cover Your Legal Defense of a Complaint Against Your License; Call Your Insurer Right Away

If you have nursing malpractice insurance, your professional liability insurance will most probably pay for your legal defense of a complaint filed against you, for a subpoena sent to you or for any deposition you must give. The need for defense of a complaint filed against you with the state licensing agency occurs many times more frequently than the need to defend a nursing malpractice claim or suit. This is the main reason we recommend that every nurse purchase nursing malpractice insurance. It is very inexpensive and usually provides excellent coverage.

However, always check to make sure that it will cover your legal expenses in a nursing complaint whether or not it results in a potential malpractice claim. If possible, purchase a rider to raise the limits of such legal defense payments for licensure defense to at least $50,000. If this is not available from this insurer, purchase a second policy.

Most nursing professional liability insurance allows the nurse to select the attorney of his or her choice to defend her or him. This is a very desirable feature to have in a professional liability insurance policy. Otherwise, the insurance company will reserve the right to pick your attorney, whether or not you agree with the choice.

Your Employer Ain’t Gonna Cover You

Many nurses make a terrible mistake thinking “I work for a hospital; the hospital insures me.” Or “I work for a nursing home, the nursing home insures me.” This is not correct when it comes to complaints filed with the Board of Nursing or Department of Health. A hospital will have insurance (or will self-insure) to cover itself, not you. A nursing home will have insurance to cover itself, not you. If you have a complaint filed against you with the Board of Nursing, it is very rare that your employer will pay for your legal defense; additionally this will almost never occur if you no longer work for that employer.

In many cases, and in most cases we have seen in the past, it has been the employer hospital or the employer nursing home that has filed the complaint with the against the nurse. You don’t think the employer is going to pay for your legal defense if it has filed the complaint against you, do you? In addition, the employer who has filed the complaint, in the vast majority of cases, also fires the nurse. So you may be out of a job as well as not be able to pay for a legal defense of your license.

If your employer obtains an attorney to represent you in a matter, ask the attorney: “Do you work for me or the employer?” Also ask: “If there is a conflict between my defense and the employer’s defense, will you continue to represent me or will you represent the employer?” Ask these questions in writing and get the answer in writing.

Failing to purchase professional liability insurance to protect your license is not very smart given how inexpensive it is. You have worked many years to obtain your professional license. You and your family have spent a great deal of money for your education to achieve it. If you can’t afford a legal defense, you may be forced into accepting a settlement agreement (also referred to sometimes as a “stipulation” or a “plea bargain”) for some type of disciplinary action. Even if you only receive some small disciplinary action, this will be shown on your license forever. It will be reported to national reporting agencies and will prevent many employers, especially the good employers from hiring you. It may even bar you from working in some circumstances. If you have a professional license in another state, it will be reported to the other states and similar disciplinary investigations will be started against you in these other states.

Consult with an Experienced Attorney, Regardless

Even if you don’t have insurance that covers your legal defense in an investigation that has been opened against you, please locate and consult with an experienced health lawyer who routinely defends nurses in nursing board cases. Additionally, don’t believe or rely on all of the rumors, gossip and “legal advice” that your colleagues who are not lawyers (or even your lawyers friends who are not experienced health lawyers) will give you. The fee for the legal consultation is worth the price. Make your decisions from a position of experienced knowledge, not one of ignorance or false assumptions.

We recommend that if you receive any notice or indication that anyone has filed a complaint against you with the BON or any other licensing agency that you do not contact the BON, its investigators, or any of its representatives. We recommend that you immediately contact an attorney who specializes in defending nurses before the BON.

Locating an Experienced Attorney

If you are unable to locate an attorney experienced in handling nursing cases, contact The Health Law Firm, The American Association of Nurse Attorneys (TAANA), the American Health Lawyers Association (AHLA), or your state bar association, by telephone or by visiting their website. Ask for a referral to such an attorney. Be sure to ask the attorney how many similar cases has she or he actually handled before the Board of Nursing.

This Advice Applies to Other Health Professionals as Well

The foregoing information applies to doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, and all other licensed health professionals; not just to nurses.

The attorneys of The Health Law Firm represent nurses, doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, physical therapists, respiratory therapists, medical students, residents, interns and all other licensed health professionals, in Florida and also in states other than Florida. In many states we are permitted to represent the health professional in investigations and administrative proceedings.

The Bottom Line: Don’t Talk to Investigators

The bottom line is: Don’t talk to an investigator until your attorney has checked him or her out and advises you it is okay to do so. This will rarely happen.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

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.

By The Health Law Firm|2024-03-14T10:01:54-04:00May 15, 2018|Categories: Administrative Complaints, Administrative Hearing, Board of Nursing, CRNA, Defense, Department of Health, Discipline, Insurance, Malpractice|Tags: administrative charges, administrative complaint, attorney, certified registered nurse anesthetists (CRNA), Department of Health (DOH) Investigation, disciplinary action, Florida Board of Nursing, investigator, legal defense, malpractice insurance, nurse practitioners, nurses, nursing insurance, nursing license|Comments Off

Nursing Professionals Cannot Afford to Not Carry Nursing Malpractice Insurance

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

Nurses: Please Protect Yourself With Professional Liability Insurance.

I am writing to strongly encourage you to purchase nursing professional liability insurance that covers you for complaints and investigations initiated against you and your nursing license.

I am not affiliated with any insurance company. I am not receiving any commission, fee or reimbursement for writing this article. My concern lies in the many, many nurses who contact our firm with Emergency Suspension Orders, Notices of Investigation, Administrative Complaints and Final Orders from the Department of Health, Board of Nursing, who do not have the funds to hire an attorney to defend themselves.

Employers Generally Do NOT Provide Legal Defense.

Many nurses mistakenly believe that their employer insures them for these types of events or that their employer will provide a legal defense. In the vast majority of cases, this is false. Often it is the employer that files the complaint against the nurse that causes the investigation. If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any Department of Health investigation or subsequent administrative proceedings that arise out of your employment. It is unlikely that you will get it.

You Will Need an Experienced Health Law Attorney to Help Navigate Department of Health Proceedings.

You need an experienced attorney to represent you in any sort of Department of Health complaint investigation from the very beginning. The administrative law process is complex, especially when there is an Emergency Suspension Order or Administrative Complaint. It is easy for a nonlawyer to be confused and to waive important legal rights that result in discipline on your license, requirements that cannot be met or the revocation of the nursing license.

For example, many nurses believe that if they elect an informal hearing, they will be allowed to go before the Board of Nursing and argue the facts of their case to their peers. This is not true. If you elect an informal hearing, you are admitting that all material facts stated against you in the Administrative Complaint are true (in effect you are pleading guilty). You will only be allowed to argue about what discipline should be taken against you since you have admitted to the offense(s). You have waived your right to a “formal hearing” where you are allowed to testify and introduce evidence to show you did not commit the offenses.

If you receive an Emergency Suspension Order and you believe you can successfully appeal it, you might be surprised. Any such appeal is a formal legal appeal to a Florida District Court of Appeal (DCA). This is a very formal procedure that only examines legal errors made by the Department of Health, Board of Nursing, in taking the action it took. Furthermore, everything stated in the ESO is assumed to be true for the purpose of the appeal. You are not allowed to dispute the facts stated in the ESO.

An appeal requires formal legal research and analysis, the preparation of legal briefs that comply with strict appellate rules of procedure. Most nurses do not have a clue how to do this. Even among attorneys, the practice of filing and arguing appeals is considered to be a legal specialty because of its complexity.

Additionally, there are other actions that an experienced health attorney may take, if you have an ESO or Final Order, that may be far more effective and expeditious to obtain relief for you than appealing it.

Regardless, if you do not have the money (usually $10,000 or more) or insurance coverage to retain the services of an experienced attorney to represent you, you may have little hope of successfully defending yourself from untrue or unjust complaints, from preventing an undesirable result, or from obtaining relief from an ESO or Final Order.

Make Sure that Your Professional Liability Insurance Covers Professional Licensing Defense.

If you have professional liability insurance, make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000.00. If it does not, you should be able to purchase a “rider” or additional coverage from that insurer for a small additional premium. Also, attempt to obtain “broad form coverage” that will also pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one). There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

At the very least, however, you should have the basic coverage to defend you in a complaint against your nursing license.

Research Your Insurer’s Policy on Attorney Selection.

You should also check with the insurance company before you purchase a policy to determine if the insurer will allow you to choose your own attorney in a licensure defense action. Some insurers may require you to use the attorneys with whom they contract, removing your ability to make this decision.

Insurance Companies That Provide Professional License Defense Coverage for Nurses.

Insurance companies that we are aware provide professional license defense coverage for nurses, include the following:

Nurses Service Organization (NSO) Insurance

Proliability Insurance Co. (endorsed by the ANA)

NurseGuard Insurance from Granite State Insurance Company

Healthcare Providers Service Organization (HPSO) Insurance

CPH & Associates Insurance

MAG Mutual

The Chicago Insurance Company

Nursing Malpractice Insurance is a MUST for all Nurses.

Nursing malpractice insurance that contains professional licensure defense coverage is inexpensive and can be easily and quickly obtained online. The premium payments for this type of insurance for an R.N. or L.P.N. is usually less than $250 per year. Monthly payment plans are usually available.

We highly recommend that every nursing professional purchase it, even if you work for a hospital, the state or federal government, or in an administrative position.

Other Resources

Butler, T.: “Nurse’s Professional Liability Insurance,” LoveToKnow.com, at:
http://insurance.lovetoknow.com/Nurse%27s_Professional_Liability_Insurance

Chapman, D.: “Professional Liability Insurance For Nurses – Important Facts,” (GoArticles.com, Jan. 30, 2012) at:
http://goarticles.com/article/Professional-Liability-Insurance-For-Nurses-Important-Facts/6021710/

“Frequently Asked Questions about NP Liability Insurance” at:
http://www.acnpweb.org/i4a/pages/Index.cfm?pageID=3468

MacKay, T.: “Worried About a Malpractice Lawsuit? The Board of Nurses Should Worry You More,” at: http://www.healthlicensedefense.com/WorriedAboutaMalpracticeLawsuit.html

Wood, D.: “Do Nurses Need Their Own Professional Liability Insurance?” (AMN Healthcare, Inc., 2011), at:
http://www.travelnursing.com/news-and-features/print-article/do-nurses-need-their-own-professional-liability-insurance/32984

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.

By The Health Law Firm|2024-03-14T10:01:54-04:00May 15, 2018|Categories: Insurance, Malpractice|Tags: administrative charges, administrative complaint, attorney, certified registered nurse anesthetists (CRNA), Department of Health (DOH) Investigation, disciplinary action, Florida Board of Nursing, investigator, legal defense, malpractice insurance, nurse practitioners, nurses, nursing insurance, nursing license|Comments Off

How Disciplinary Actions are Initiated Against a Florida Nurse

There are many possible grounds for which disciplinary action may be initiated against a nurse in Florida. It is important to be familiar with these so that you can avoid them.

You should review and be very familiar with all of the Florida laws and the Florida Board of Nursing’s Rules that appear in the Florida Administrative Code (F.A.C.). These may all be accesses through the Florida Board of Nursing’s website: www.doh.state.fl.us/mqa/nursing/. Look for the menu item “Laws and Rules” and click on this.

The laws which set forth various grounds for discipline include:

Chapter 456, Florida Statutes (which applies to all licensed health professionals).

Chapter 464, Florida Statutes (the Nurse Practice Act).

Chapter 64B9, Florida Administrative Code (Rules adopted by the Board of Nursing).

Basically, a nurse may be disciplined for any violation of the Nurse Practice Act, for any violation of Chapter 456, Florida Statutes, for violation of any Rule of the Board of Nursing (Chapter 64B9, F.A.C.), for violation of any law applicable to nurses or nursing, or for violation of any final order of the Board of Nursing or Department of Health. The most ambiguous of these tends to be actions of the nurse which fail to meet “minimal standards of acceptable and prevailing nursing practice” (sometimes called “falling below the standard of nursing practice” or “substandard performance”), as stated in Section 464.018, Florida Statutes.

Acts that Result in Disciplinary Action Against a Nursing License

Disciplinary action may be taken against the nurse’s license, through administrative proceedings, under the following circumstances, as provided by Section 464.018, Florida Statutes:

1. Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or the board;

2. Having a license to practice nursing revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country;

3. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing;

4. Being found guilty, regardless of adjudication, of any of the following offenses:

A forcible felony as defined in Chapter 776, Florida Statutes;
A violation of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes;
A violation of Chapter 817, relating to fraudulent practices;
A violation of Chapter 800, relating to lewdness and indecent exposure;
A violation of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence;
A violation of Chapter 827, Florida Statutes, relating to child abuse;
A violation of Chapter 415, Florida Statutes, relating to protection from abuse, neglect, and exploitation; and
A violation of Chapter 39, Florida Statutes, relating to child abuse, abandonment, and neglect.

5. Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under Section 435.03, Florida Statutes, or under any similar statute of another jurisdiction; or having committed an act which constitutes domestic violence as defined in Section 741.28, Florida Statutes;

6. Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse’s capacity as a licensed nurse;

7. False, misleading, or deceptive advertising;

8. Unprofessional conduct, as defined by board rule;

9. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes authorized by this part;

10. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition;

11. Failing to report to the department any person who the licensee knows is in violation of this part or of the rules of the department or the board; however, if the licensee verifies that such person is actively participating in a board-approved program for the treatment of a physical or mental condition, the licensee is required to report such person only to an impaired professionals consultant;

12. Knowingly violating any provision of this part, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department;

13. Failing to report to the department any licensee under Chapter 458 or under Chapter 459, Florida Statutes, who the nurse knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under Chapter 395, Florida Statutes, or a health maintenance organization certificated under part I of Chapter 641, Florida Statutes, in which the nurse also provides services;

14. Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience; and

15. Violating any provision of this Chapter or Chapter 456, Florida Statutes, or any rules adopted pursuant thereto.

Section 456.072, Florida Statutes, which applies to nurses and all other licensed health professionals, also provides a list of grounds for disciplinary action against a nurse’s license. This information can be found here.

Contact an Experienced Health Attorney Familiar with Nursing Law Issues

The attorneys of The Health Law Firm have experience in representing nurses in both formal and informal administrative hearings and in representing nurses, nurse practitioners, and CRNAs in investigations and at Board of Nursing hearings. Call us now at (407) 331-6620 or (850) 439-1001 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.

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Nursing Law Blog|Tags: administrative charges, administrative complaint, administrative hearing, certified registered nurse anesthetists (CRNA), criminal charges nurse, Department of Health (DOH) Investigation, disciplinary action, election of rights (EOR) form, final order, Florida Board of Nursing, Informal hearing, nurse practitioners, nurses, nursing license, settlement agreement|Comments Off

Nurse: Please, Please, Please: Talk to an Attorney Before You Talk to an Investigator

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

In Florida, You DO NOT Have to Speak to an Investigator!

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. In Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Investigators are NOT on Your Side.

Let me state this as succinctly and clearly as possible. If you are being investigated, you will not be better off making a statement. You will not be better off explaining your side of the story. The investigator is not your friend. The investigator is not on your side. All you are doing is falling for a trick and helping the government to make a case against you.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

Admitting to Anything Can Ruin Your Defense.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense. It may have other witnesses (who may not be around at the time of any hearing or trial). It may have a lot of physical evidence or documents. But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this. You would be surprised at how many health professionals believe that they can just talk their way out of the situation; in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. They do not have to be. They will not be the ones making the final decision against you. Theirs is the job of putting together the case against you. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

How to Determine the Purpose of the Investigation.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

You Cannot Outsmart the Investigator.

Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting lies than a polygraph expert is. Furthermore, in most cases, you will be the very last person to be interviewed. Therefore, they will already know just about everything that can be used against you. If your statement contradicts in any way what others have told them, they will know you are the one who is lying. However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

Consult an Attorney Before You Do or Say Anything.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.” “I will have my lawyer contact you.” “I cannot say anything until I talk to my lawyer.” “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?” Please don’t fall for this trick, either. This is America. Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them. There is a good reason why they do this.

Far too often the health professional only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidance and avoid this type of mistake?

Contact Health Law Attorneys Experienced with Investigations of Health Professionals Today.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists 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.

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.

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Administrative Complaints, Board of Nursing, Department of Health, Discipline, Nurse License|Tags: criminal charges, dea, DEA investigation, DEA number, dentist, doh, FBI, investigation, license revoked, Medicaid investigation, medical license, Medicare investigation, nurse, nursing license, pharmacist, physician, psychologist, quality assurance|Comments Off