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Protect Yourself!

Defending Your License to Practice

Sharon LaDuke, BS, RN

Occupational therapy courses are accredited by AOTA and are accepted by the NBCOT Certification Renewal program. For information specific to this course, click here. Physical therapists—please click here for accreditation information.

PROFESSIONAL MISCONDUCT

Professional misconduct is defined as any violation of the rules and regulations that govern the practice of nursing from state to state. Examples of misconduct include diversion of narcotics, substance abuse, conviction on criminal charges, breaches of confidentiality, and crossing professional boundaries with a patient. Another example is the falsifying of documentation, which can come about through negligence (eg, failure to assess or communicate changes in condition) or through incompetence (eg, cumulative errors or a single error of serious consequence).

Thousands of nurses will be disciplined this year for professional misconduct. Add to these other healthcare licensees, and the numbers demand our attention. Most licensed professionals will not lose their license, but their discipline (conviction) and penalty will become a matter of public record, permanently. Complete strangers—or acquaintances who want to use the information against them—will be able to read about the discipline on the Internet. If they are interested in more details, they may be able to write to the state and obtain them.

The impact of a discipline can be severe. According to a study of thirty-three New York nurses who were disciplined in 1998, having a discipline on their record made it difficult, if not impossible, to find another job as a nurse. These nurses reported that the discipline, and the events leading up to it, negatively affected their health, their financial status, and their personal relationships (LaDuke, 2000).

Although generally “mad at the world” for what they had suffered, the New York nurses were also full of self-reproach and reported that, in retrospect, they realized they had not done everything possible to contribute to their own defense and were now reaping the consequences of their own failure. They questioned why this happened to them. They had trusted “the system” to be fair, and counted on others to “do the right thing”—which didn't happen the way they anticipated. In the end, they realized that a combination of fear, shame, and lack of knowledge about the law delayed their recognition of the need to mount an early and aggressive self-defense.

You may think you could never be accused, much less convicted, of professional misconduct because you are a “good” nurse or respiratory therapist or whatever. This thinking is flawed. For a new view, it may be useful to ponder the difference between the relatively small percentage of the population who have been convicted for driving under the influence of alcohol, and the relatively large percentage of the population who have nonetheless driven under the influence but somehow escaped the hand of fate. In fact, no clinician's practice is error-free, no one can follow policy and procedures 100 percent of the time, and no one can be assured of never making an error in judgment. To add to the challenge, you often have to take risks due to the nature of your work.

This course is about protecting yourself from risk and the license-related consequences of error and accusation. Don't get me wrong: The expectation that you will own up to, and be accountable for, your role in any legal violation or even simple human error has not changed. Nonetheless, you can be accountable and still carefully define the limits of your responsibility for an error.

You can be also accountable and still aggressively defend yourself so as to minimize the impact of a legal proceeding on yourself and your loved ones. Perhaps even more important, you can develop a personal risk-management strategy to reduce the likelihood that you will become involved in any legal problem associated with the practice of your profession.

RISK MANAGEMENT

Risk management is a bundle of actions taken to reduce legal liability. Think of it as a fortress you build around yourself, your loved ones, your paycheck, and your quality of life. In our increasingly complex world of healthcare and litigation, nurses and other caregivers are at an ever-higher risk of being involved in a legal action, be it a professional misconduct, a criminal charge, or a civil (lawsuit) proceeding. You can benefit from a risk-management framework just as facilities and physicians do.

Basic risk reduction requires some effort, and consists of such strategies as staying abreast of the standards of care, also called standards of practice. Individual facilities may refer to “our standards of care,” but this may be nothing more substantial than a set of documentation standards or some prewritten care plans for high-volume diagnoses. It’s important for you to understand that this is not what writers and speakers mean when they refer to standards of care.

In the more global world of healthcare and legal issues related to healthcare, standards of care are continually evolving and are impacted by multiple sources. These include the results of research, the findings of court cases, and the opinions of professional societies. The way for you to keep on top of the current standards of practice is through regular reading of professional journals, taking continuing education courses, and participating in organizations of professionals such as the state nurses association or the American Association of Physical Therapists (LaDuke, 2003).

Here's an example of an evolving standard of care. This one happens to apply to physicians. Just a few years ago, physicians could manage patients hospitalized with heart failure in whatever manner they saw fit, based on their personal training and experience; management of these patients thus varied widely. Costs associated with the care of these patients mounted. Today, research, federal regulations, and pressure from quality oversight associations have transformed the landscape. Physicians are expected to follow specific guidelines for heart failure patients that include such things as assessing left ventricular function with diagnostic imaging and prescribing a specific category of medication. And the changes don't stop there.

Hospitals are required to gather data regarding physician compliance with these guidelines and submit them to national databases. The data is posted on websites where consumers can readily see how well a hospital conforms to national standards of practice. In the next few years, it's predicted that the data will be displayed not just by hospital but by physician, allowing anyone with Internet access to find out whether Dr. John Doe from Dubuque practices according to current standards. This trend is having a profound impact on the medical community. Continuing data-collection efforts will demonstrate whether such prescribed care is achieving the desired results, such as reducing hospital visits and increasing the years patients survive following a diagnosis of heart failure.

For you, translating standards of practice into action includes maintaining awareness of key employer policies related to high-risk areas. These policies, if up to date, probably reflect efforts to comply with research findings, federal regulations, and pressure from quality associations. For example, hot topics for hospital nurses and others right now include patient identification to prevent mistakes, pressure ulcer prevention, fall prevention, DVT prevention, hand-acquired infections, urinary tract infections, central line infections, and surgical site infections, among others.

Note that this is primarily a list of complications that occur during hospitalization. Why are regulators and researchers focusing on them? Because they harm patients, increase healthcare costs, and are preventable. Do you know your employer's policies on these topics? Are they up to date? Do they reflect current thinking in your field? Are they prescriptive, like the heart failure indicators that physicians are expected to implement—meaning there are very specific things that you are expected to do? The answers to these questions could have significant impact on you if a patient in your care has a bad outcome, either because you didn't follow a policy that should have been followed, or you did follow a policy you should not have. Bottom line: it's your responsibility, not just your employer's, to manage your personal risk.

This leads to the issue of personal liability insurance. While there is debate in clinical and legal circles about the need for licensees to carry such insurance if they work for insured organizations, a growing number of experts agree that licensees cannot assume that their actions, or a large award against them, will be covered by the employer's insurance. Furthermore, it is a myth that having insurance increases the likelihood you will be sued, because unless you tell a plaintiff or his attorney that you have coverage, there's no way for them to find out (LaDuke, 2003).

What most nurses refer to as malpractice insurance covers awards to plaintiffs in civil suits, but it may also cover legal fees incurred in misconduct or other proceedings; some policies offer this feature, others do not. Some provide it only under certain circumstances. For example, you might not be covered if you weren't acting within the scope of your license at the time of the alleged misconduct.

For the cost of a good pair of jeans or dinner for two at a nice restaurant, you can have peace of mind, knowing that your policy could cover the difference if an award against you exceeded the limit of your employer's policy; that if you are sued for advice you gave or care you rendered outside your place of employment, you've got the resources to hire an attorney and, if necessary, pay damages to the plaintiff; that if your employer blames you for a patient's complication, reports you to the state and fires you, you'll be able to retain expert legal representation to protect your license while you deal with the challenge of finding another job and coping with the emotional fallout that will hit not just you but your loved ones.

FACTORS INFLUENCING WHETHER YOU ARE REPORTED

What if, despite your best efforts, something really bad happens? Even though you did make an error of commission (did something bad) or omission (failed to do something necessary), certain factors make it more likely that you will be reported while someone else will not. These factors arise from interpersonal and organizational politics that we all recognize. They include:

• Being the person with the lowest rank/income/social standing involved in a dispute or investigation
• Creating difficulty for someone with higher rank/income/social standing
• Being different than, or disliked by, peers and supervisors
• Being the person who repeatedly gets in trouble

On some level, we all know this. But few of us realize this list represents a tool kit that we can use to our own advantage.

The dynamics mentioned are by no means unique to the healthcare professions, to this country, or even to this century. They are related to the behavior of law, a worldwide phenomenon documented in a book of the same title by sociologist Donald Black (1976) that is still highly regarded by the legal community.

The Behavior of Law sets forth a number of precepts (such as the influence of rank) that can be used to predict the outcome of any legal case. Furthermore, defendants anywhere, anytime, can use Black's laws to optimize their legal outcomes—for example, by correctly predicting the course of the case and developing strategies to redirect it.

In the structure of healthcare organizations, nurses and other staff-level clinicians generally rank lower than the supervisors, managers, and administrators whose job it is to monitor for negligence, incompetence, and other forms of misconduct, and to decide when to report it to the state. And, while laws in many states require all licensees to report misconduct when they see it, higher-ranked personnel have a special responsibility to the employing facility to recognize and respond to violations of the state laws such as the nurse practice act—and the medical practice act, for that matter.

Nonetheless, supervisors enjoy a great deal of latitude when it comes to deciding who to report. According to interviews with state officials, some hospitals report staff-level clinicians (particularly nurses) on a regular basis for a variety of alleged infractions, and others never contact the state about a nurse or any other licensee.

So, if nurses and other caregivers cannot always practice perfectly, and cannot change their organizational rank or standing, and the rules governing decisions about reporting to the state are inconsistently applied, what can you do to lower the risk of being reported for deviations from good practice?

One strategy is to minimize differences with co-workers, since Black's precepts suggest that “being one of us” is important. Second, it is important to avoid conflicts with colleagues of higher rank, since offending a superior tends to backfire.

About half of the nurses in the 1998 New York study reported that they had experienced conflict within their work setting. Reasons given included:

• Not being a member of the majority/mainstream culture (despite America's supposed celebration of diversity)
• Being disliked or envied by a coworker or supervisor
• Reporting a physician's drug abuse (despite the legal obligation to do so)
• Failing to support a manager's favored project
• Trying to address poor care or violations of patient rights (despite what would appear to be an ethical obligation to act)
• Reporting an employer for legal violations

Many of the New York nurses believed that accusations of misconduct against them were related to being disliked by a superior. They believed this dislike motivated their supervisors to monitor their practice until a flaw or an opportunity to point the finger of blame could be found, and that the accusations of misconduct served as a rationale for termination of their employment. In several cases, the nurses indicated that there was a need for an agency scapegoat.

Some nurses in the study believed they had been pinpointed as the focus of an investigation because they were an easy target, and more expendable, than the higher-placed individuals, such as a physicians, who were at least partly responsible.

PATIENT ADVOCACY vs. ROCKING THE BOAT

Some of the nurses in the New York study, and others interviewed since, were completely convinced that the actions they had taken that ultimately led to their legal problems were purely motivated by defense of their patients. Though that may be true, these nurses needed to report their concerns through the appropriate chain of command.

My advice to would-be whistleblowers is to identify a supporter at a higher level of the facility and carefully utilize established channels to communicate concerns. Many facilities have an ethics or corporate compliance hotline that may provide a conduit. While this is no guarantee of personal safety, it's still the right way to do things, and that will always speak in your favor.

It is important to know your legal rights if you do decide to bring pressure for change on a healthcare facility by reporting issues to outside agencies. Generally, you have the right to report issues “in good faith” (issues you truly believe to exist) to the facility's accrediting agency (eg, JCAHO) or the state department that oversees the facility (eg, a department of health). Any citizen may do this, and it can often be done online or by phone.

Like all other citizens, you also have the right to file a complaint against any licensee for professional misconduct. Bear in mind that many factors will affect the credibility of a complaint, including your willingness to identity yourself, to provide evidence, and to speak or write persuasively.

When you decide to take an adversarial action, The Behavior of Law predicts that an accusation you make against someone of higher status is less likely to be taken seriously and acted upon; in contrast, accusations made by you against someone lower in status are more likely to be taken seriously and acted upon. The manner in which you pursue any legal or regulatory action against higher-ranked individuals therefore merits careful consideration.

IMAGINE THIS SCENARIO

Now step into the shoes of a nurse who is embarking on a journey toward a professional misconduct discipline. This nurse could be any licensee. Members of other professions will easily relate to this story. Although many licensees don't have a clue that they have been reported for misconduct until more than a year after the event (eg, being fired, or making an obvious mistake that resulted in injury to a patient), I'll use a scenario that is a composite of real nurses' experiences.

Last week, you carried out an order for an IV medication with which you were not very familiar. The dose seemed high, and you tried to look it up, but it wasn't in your reference book. You thought of calling the pharmacy, but you convinced yourself there was no time to look it up. When the drug arrived, it was not in a unit-dose package.

After your patient, Mr. G, received the medication, his blood pressure dropped precipitously and resuscitative measures were required. When he had been stabilized and transferred to the ICU, you searched the trash for the drug package, or even the vial, but it was not there. You were mystified. After your shift you went home with a nagging feeling that something was not right.

Yesterday, your manager told you to go to a meeting in the risk manager's office but she couldn't, or wouldn't, tell the reason for the meeting. You felt anxious, afraid that the meeting concerned events surrounding Mr. G's care.

When you arrived at the meeting, half a dozen strangers in suits introduced themselves. You heard words like “insurance carrier” and “corporate counsel” but you really didn't absorb it all. These people asked you a lot of questions—some of them repeatedly. They took notes but didn't offer you the opportunity to do the same. No one told you anything—what you did wrong, what was going to happen, what you should do. You hardly slept last night, and you are too ashamed to tell your closest friends what happened.

Today your manager is not her usual friendly self. In fact, she acts uncomfortable around you. You notice some of your colleagues are avoiding you. One co-worker even blurts out “You're in a lot of trouble.” Everyone seems to know more than you do about what is happening to you. You feel as if you are in a waking nightmare.

Finally, the manager calls you to her office. She is red-faced and avoids making eye contact. She tells you your employment is terminated. You belong to the union, and she is required to give you a reason, which she says is “a near-fatal medication error.”

Your head is spinning. You ask her if you are being reported to the Board of Nursing. She says “I'm sorry but I can't talk to you about that.” You leave her office, gather your things, and manage to drive home without having an accident.

Composing yourself at home, you call the union representative. You feel there must be some grievance or hearing process that applies to this situation. Your personnel file is clean as a whistle. You have been a model employee.

The rep is already aware of your case. He advises you that he does not believe your rights have been violated. You ask about the Board of Nursing, but he doesn't know anything about that. He suggests you talk to a lawyer. Later in the evening, you call him back to ask more questions, but he is evasive and abrupt.

In the morning, you call the human resources director, who has always been friendly. Falteringly, you explain what has happened. He is sympathetic, but when you ask for information, he says he can't help you.

As you hang up, you realize you've been cut adrift. Now what? The following questions and answers suggest ways for you to deal with some of the issues related to misconduct accusations, the professional disciplinary system, and attorney-client relations.

QUESTIONS SUGGESTED BY THE SCENARIO

Do I Need an Attorney?

To find out what's going on, and to learn what actions to take to protect yourself, you are going to need a lawyer's advice. Some people may say you don't need an attorney, and it is true that you are not required by law to have one. A misconduct case can be prosecuted against you without your having any legal representation. In fact, it is to the state's benefit if you don't have an attorney, because that means you're representing yourself, and that makes it pretty easy for the state to find you guilty and move on to the next case. The state's concern is protecting consumers, not informing you about your rights as the accused, and certainly not protecting your rights. That's your job, and for that, you need an attorney's assistance.

The legal system can be counted on to be fair only when all things are equal. And they will only be equal when you are represented by an attorney as skilled as the one who is representing the state, someone who can “play ball” with the prosecutors. Your own legal representation is what levels the playing field and prevents the state's team from running over you.

Many cases of professional misconduct are less serious than the one presented in the above scenario. Others are far more serious. It's possible that your misconduct case is so minor, your state's disciplinary system so supportive of nurses, and your own unique circumstances such that all you really need is an initial legal consultation.

A cursory consultation can be accomplished by phone, usually at no cost to you. You run an overview of the situation by the attorney, including your own analysis of the key issues. You answer the attorney's questions, and the attorney assesses the need for further legal services. A more detailed and focused consultation occurs in the attorney's office, and may cost several hundred dollars. But that small investment provides you with the facts you need to determine the potential threat to your practice and whether you will benefit from continued representation.

Will Hiring an Attorney Make Me Look Guilty?

A common mistake is to think that hiring a lawyer implies guilt, or that a lawyer is not needed because you haven't done anything wrong. Will officials of the disciplinary system or other adversaries think you are innocent because you don't hire a lawyer? No, they will just think you are an easy target. Put another way, you are expected to retain legal representation to protect yourself.

Let's consider the criminal justice system. Most caregivers have some understanding of the legal system from reading newspapers and watching television. You know that in the criminal justice system it is common for people who are poor to be convicted, even though they may not be guilty. Wealthy people may have charges against them reduced or even dismissed, even though the suspicion of guilt is high. Finally, you know it is commonplace for two people convicted of the same crime to receive entirely different sentences. In all of these situations, a big factor is the quality of legal representation.

What If I Am Guilty?

I don't know about other clinicians, but nurses often think they are responsible when anything goes wrong. Disciplinary lawyers say nurses are notorious for having an exaggerated sense of accountability. Without help, it may be months or years before a nurse puts events into perspective and clearly sees the degree to which she or he contributed to a situation that went bad.

This predictable self-blame on the part of nurses is very convenient for healthcare employers who want a scapegoat so they can lay a case to rest, but it doesn't necessarily help the facility assess the underlying systems and procedures that may have contributed to the problem. And it is not at all helpful to the nurse!

Adding to any clinician's guilt and confusion about the right to legal representation, attorneys who are not competent in the ways of the disciplinary system may tell you they cannot help because you made an error and must be accountable for it. Blaming yourself, you may believe you are not morally entitled to legal representation, and choose simply to plead guilty to the charges, with no attorney to mediate a better outcome.

Yet you know that, in the criminal justice system, even the person who has committed the most outrageous crime is entitled to legal representation. Just like someone accused of a crime, you have a right to legal representation, regardless of your culpability, the seriousness of the accusation against you, or the gravity of the mistake you made.

Furthermore, you have a moral obligation to yourself and your dependents to obtain representation and get the best possible outcome from the disciplinary system, because that outcome is going to affect not only your future but also that of your loved ones. You should arrange for representation immediately—even if you believe yourself to be guilty of misconduct.

POTENTIAL ACTIONS ARISING FROM THE SCENARIO

Taking a Wait-and-See Approach

Nurses in the New York study who waited to hire an attorney were very critical of themselves for waiting. Many recognized they had waited too long. It was only after developments took an irreversible downturn that they realized they should have acted more quickly. In the long run, delaying legal representation can be costly. A skilled attorney intervenes early and effectively, just as a clinician with specialty training recognizes and responds to subtle symptoms long before the patient crashes.

Picking the Right Attorney

Attorney selection is all about matching the lawyer's skills to your needs. Just as a supervisor doesn't assign a psychiatric nurse to care for patients in intensive care, it's important for you to identify the area of expertise that's required in your case and find a professional who has it.

Perhaps the most important thing to do when fighting a professional disciplinary action is to retain the services of an attorney who “practices before the board.” This attorney defends clients against license-related charges. He or she is experienced in the handling of professional misconduct cases, knows the law, and understands the consequences of a discipline for the licensee. This is a legal professional who is competent in a very specialized area of practice.

Three-quarters of the thirty-three nurses disciplined in the New York study reported either not hiring an attorney or hiring one who was not a specialist in defending professional misconduct cases. Some of them had hired a particular attorney because the she was conveniently located or charged less than competitors—not based on competence to handle their case. In some of the cases, an attorney who had never before handled a disciplinary matter agreed to represent the nurse. This means the nurse became the lawyer's “test case.”

Asking a lawyer who does not specialize in misconduct to take on a case that can affect the rest of your life is like asking an orthopedic surgeon to try brain surgery on you. You shouldn't ask, and the attorney shouldn't accept. Lawyers who agree to represent you in disciplinary proceedings despite the fact that they know nothing about the disciplinary system or the consequences of a discipline for you are violating their own profession's code of responsibility (New York State Bar Association, 2002).

Legal experts have said that an attorney with no experience in professional disciplinary proceedings would not dream of accepting the case of a physician who is having disciplinary problems. That's because they fear the potential consequences of doing a bad job for a physician. Unfortunately, the legal profession is generally less worried about failing a client who is not a physician.

When facing a complex legal situation, it can be important to remember that one attorney may not be enough. You may need lawyers who specialize in employment law to handle the job-related aspects of your case and a criminal lawyer to protect you from criminal charges—in addition to a misconduct expert. Just as a physician might say “I'd like you to see the neurologist and the endocrinologist,” attorneys should refer you to other specialists, or at least discuss with you the advantages of additional specialty legal consultations. Your attorney isn't knowledgeable about every area of legal practice any more than you are about every area of healthcare practice.

Locating a Competent Attorney

Call your state nurses association to see if they have a list of attorneys who handle misconduct cases. Contact the state bar association and ask to be referred to this type of lawyer. Talk to friends or acquaintances who are attorneys to see if they know someone who does this type of work, or if they have a manual that lists all attorneys in the state along with their education, firm, and specialty. You can find competent specialists, but don't expect to find them in your own backyard. You may have to travel. It is well worth the trouble.

Is the attorney experienced? Ask the attorney yourself. Do not assume that he has experience with the professional disciplinary system because he's handled medical malpractice cases (civil lawsuits). These are two overlapping but separate areas of law. Ask pointed questions, such as:

• How many professional disciplinary cases have you handled?
• Have you represented nurses/respiratory therapists/pharmacists in those cases?
• Have you been able to close cases without your client being found guilty?
• Tell me about some of the cases you have handled.

Affording an Attorney

There is an old saying that “Good legal advice is expensive, but bad legal advice is more expensive.” How much money will you lose if you cannot practice nursing for the rest of your life? How much money will you lose if you are convicted of misconduct, and your conviction is subsequently used against you as evidence of malpractice in a lawsuit, and there is an award against you? Think about that before you judge the attorney's fee to be too high.

If you don't have personal liability insurance to cover legal fees, and you don't have a nest egg to draw on, paying legal fees will not be easy. Accept the fact that you may have to give up something desired—a vacation, or buying your teenager a car—in order to protect future earnings.

You may have to sell something or tap into a retirement fund and accept an early withdrawal penalty. You may have to go to a bank, or even a relative, for a loan. Be realistic—any of these would probably be a small sacrifice to protect the income you and your loved ones depend on.

If the foregoing are not options, consider asking the attorney to accept payment on a sliding scale or to accept monthly payments. Ask if the attorney will handle your case on an hourly fee basis, billing you quarterly for services provided, instead of requiring a large retainer fee up front on the assumption that you will run up a bill. Why should you pay a $10,000 retainer when many—if not most—misconduct cases require far fewer attorney hours than would justify such a fee.

There is nothing wrong with comparing the fee structures of several attorneys. Ultimately, however, fees should not be the primary consideration in the selection of your legal counsel. To get the best possible results, you must select an attorney who is both experienced and competent in the management of professional misconduct cases.

I Found the Right Attorney, Now Can I Relax?

No, you cannot. A quarter of the nurses in the New York study hired specialists but were convicted of misconduct anyway. They naturally voiced dissatisfaction with services rendered by their attorneys, and for legitimate reasons. These attorneys did not always keep them informed of the status of their cases, provide them with copies of important papers, or give them sufficient information so they could participate meaningfully in their own defense.

Their attorneys didn't always collaborate with them on legal strategy or respect their goals. They did not conduct themselves, it would seem, according to the New York State Bar Association 2006 Statement of Client's Rights. The statement sets forth the following rights, among others:

• You are entitled to be treated with courtesy and consideration at all times by your lawyer.
• You are entitled to an attorney capable of handling your legal matter competently and diligently.
• You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.
• You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing.
• You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.
• You are entitled to be kept informed as to the status of your case and to request and receive copies of papers.
• You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.
• You are entitled to have your legitimate objectives respected by your attorney. (NY State Bar Association, 2006)

If you become a legal client, no matter what the reason, knowing these rights can help you establish the proper relationship with your attorney and achieve the best possible outcome. With all rights, however, come responsibilities. Among these are treating your attorney and staff with courtesy, being completely honest with your attorney, honoring the fee arrangement, responding promptly to requests for information and cooperation (NY State Bar Association, 2006).

When you have retained an appropriate lawyer, your self-defense work has just begun. You must monitor the case vigilantly and assess the quality of legal services being provided. It is imperative to collaborate actively with your attorney. Some nurses have spent hundreds, even thousands, of hours on their own cases. Yet some nurses under fire haven't exerted themselves enough even to examine their state's professional misconduct laws.

Of course, the nature and extent of client/attorney collaboration must be determined case by case. Take care, for example, that any legwork you do is legally to your benefit and cannot backfire on you. Ongoing communication with your attorney should lead to a meeting of the minds on this issue, providing the attorney with the opportunity to direct your energies appropriately and to guide your efforts on your own behalf.

Active participation in your legal case is your right and responsibility as a client. It may increase your satisfaction with the legal system, improve the outcome of the case, and possibly even save the attorney time, thus reducing fees. But not all attorneys are accustomed to clients who want to be involved.

Like physicians, attorneys have many different expectations, opinions, and styles when it comes to collaboration. If open communication does not lead to an agreement that satisfies you, decide whether the attorney's inability to collaborate is outweighed by other professional skills. If not, consider moving on. A second opinion never hurts, and it is sometimes critically important.

NURSING PROCESS APPLIED TO AN UNFAMILIAR SITUATION

You may think you have no knowledge that would qualify you to participate in you own legal case. However, you are capable of learning much of what you need to know about it from your attorneys, books, articles, nursing associations, and other sources. You also have healthcare knowledge and connections, familiarity with language, and critical thinking skills that can be put to work. In fact, participating in the management of your own legal case can be approached using the nursing process. Recall that the steps of the nursing process include assessment, diagnosis, planning, implementation, and evaluation.

Assessment

The assessment phase is one of fact finding. As with good patient care, good assessment is an ongoing process. It requires purposeful and dedicated self-education, with a conscious commitment to obtain and study all available or applicable information. The earlier in the case such information is obtained, the greater the potential strategic advantage. Do not expect the attorney to make a stronger commitment to gathering and reviewing information than you yourself are willing to make. Every clinician knows that the patient who asks the most questions gets more information and attention than the patient who is passive and uninvolved. Lawyers respond to their clients in much the same way as clinicians respond to their patients.

By keeping abreast of what information your lawyer has and what processes she is working on, you are more likely to identify missing information that is currently critical to the case, or assist the attorney to understand a clinical aspect of the case. You may have a perspective that has not occurred to the attorney. Excellent analytical and communication skills and plain old-fashioned persistence can help you persuade your legal counselor to address important points that might otherwise be overlooked.

While the attorney reviews information from a legal point of view, you review it from the viewpoint of one who is much more knowledgeable about healthcare, your institution's people, practices, and culture, and the minute details of the events in question. Your review and input can be essential to the success of the case. It can also be part of a journey of professional self-development, leading to a deeper and more balanced view of the events that led to the misconduct proceedings.

Discuss with your attorney which of the following sources should be tapped and which of you is going to do it. Once the information is obtained, you and your attorney share and analyze it for applicability to the case. Some examples are:

• Reports of state agencies. Sometimes alleged misconduct is connected to an incident which the employer is required by law to report to a state agency. The agency may then conduct an investigation, and its report of the investigation may be available under the Freedom of Information Law (FOIL). A letter making a FOIL request is sent to the agency either by you or your attorney. Enough information is provided, including the facility, patient name, date of event, and nature of the incident, for the agency to process the request. Nonlawyers are sometimes surprised and even doubtful that they are “allowed” to get a copy of such a report. But, when the document is available under FOIL, it is available to anyone.

• The standard of care. When you scour your state's practice act, clinical articles, position papers, standards of practice, and so on, related to the care you are accused of mismanaging, you become an expert on that care. You are then in a position to contribute to your defense, for example, by informing your attorney on the standard, providing your attorney with the most definitive literature, assisting in the selection of an expert witness, or being prepared to speak articulately on your own behalf at a hearing.
• Healthcare laws and regulations. Laws and regulations that must be adhered to by hospitals and healthcare professionals are overseen by such agencies as state health departments, JCAHO (Joint Commission on Accreditation of Healthcare Organizations), and boards of nursing. Information and knowledge about these can help you put a variety of issues into perspective, and can be obtained through the Internet, libraries, and other sources.
• Medical records, facility policies and procedures. This, and other types of evidence from the employer, when applicable to the case, may not be available to your attorney through the usual channels until very late in the development of the case. It may then be available only if you have refused to plead guilty and have requested a hearing. The licensee whose case hinges on this documentation, but who cannot review the record—despite the fact that the prosecuting officials have it—is at a great disadvantage. However, collaboration with the patient and others can sometimes provide a mechanism for you or your attorney to obtain such information.

Diagnosis

Diagnosis means identifying the pre-eminent issues in the case. They may be very straightforward, or complex and convoluted. Objective colleagues and significant others can contribute significantly with this analytical work. Examples of diagnostic statements for a misconduct proceeding could be: “I dispensed 10 times the recommended dose of medication. But that's what the physician ordered and the nurse administered.” Or, “I divulged confidential information about a patient. But I believed in good faith that the disclosure was authorized and I limited the information I provided.” Or, “I did give the patient 10 milligrams of morphine, but it was clinically justified. The claim by the patient's daughter is not substantiated by any proof and was probably related to the daughter's dislike of me and inability to accept her mother's impending death.”

It is likely that you may recognize implications in the case—either for yourself, your chosen discipline, or others—that are invisible to the attorney. For example, you may believe that if you are disciplined for clinically justified actions it could establish a precedent that would impede others in your profession from giving appropriate care in similar situations. It is critical that the attorney recognize these additional issues, respect them, and integrate them into the management of the case.

Planning to Achieve Your Goals

In the planning stage, only you can determine your own legal goals. As long as they are ethical and within the law, it is the attorney's duty to work toward them. If your attorney does not demonstrate respect for your legitimate objectives, communication is indicated to clarify positions and identify obstacles to agreement. It may be necessary to review the goals at intervals to make sure both you and your attorney are still going down the same pathway; if not, consider switching to a different attorney.

For example, it is a legitimate client goal—although not always an attainable one—to strive for complete dismissal of the misconduct charges that have been brought. The attorney's unstated goal, on the other hand, may be to provide you with the opportunity to plead guilty to reduced charges, and call that a victory. After all, that's probably a lot easier to accomplish. However, these two goals are not aligned. You may need to remind your attorney that research indicates that any guilty plea may interfere with your later employability.

A client's goals often evolve over time. Your fundamental plan should be that, no matter what happens, you will retain your personal dignity and professional reputation. Picturing yourself at the conclusion of the case as a respected member of the profession can help both you and your attorney to adopt strategies consistent with your professional image.

Implementation

Choosing interventions will depend, in part, on facts and options provided by legal counsel. Just as in healthcare, there is often more than one way to manage a case. Although laws, processes, and other aspects of the legal system are predetermined, strategy is not.

Many aspects of legal strategy are a matter of logic, judgment, and common sense, and require critical thinking—not a legal degree or a license to practice law. The clinician can therefore participate in strategic decision making.

Besides being capable of analyzing or even devising strategy, the clinician has a much more accurate appreciation of certain aspects of the case than the attorney, including healthcare facts and the political and interpersonal dynamics of the employing facility.

To assist in your case, you may be able to:

• Get involved in drafting important correspondence and other legal documents, especially those that are primarily clinical in content, to ensure the best possible presentation of all critical information. At a minimum, insist on reviewing papers prepared by the attorney, to assess their quality and predict their possible impact and consequences. If necessary, work with the attorney to revise them. Crafting your words is essential to sending exactly the right message. It's pretty difficult to recall words in a legal document after they've already created a problem for you.
• Keep a diary that begins with every detail of the events in question, then continues with dates, places, people, conversations, and remembrances that occur thereafter. Documentation should spare no detail, including those that are not clearly linked; their importance may become clear later on. Continue to document developments in your case, such as the date and contents of telephone conversations with your lawyer.
• Talk to witnesses to the event(s) in question and document their comments. Identify potential expert witnesses (professionals who are subject matter experts and who testify regarding such issues as standards of practice) by networking with other professionals and professional societies.
• Maintain regular contact with your own liability/malpractice insurance carrier, apprising the agent of the status of a covered case. The agent can be an excellent resource for identifying red flags that signal a variety of problems, such as failure of an attorney to follow normal procedure or make expected progress.
• Identify connections between the issues of your own case and issues currently of concern to all members of your discipline. There could be value in discussing the case with representatives of professional societies who can quickly identify any implications the case has for the profession and who may wish to offer support.
• Collaborate with others to bring the case to the attention of the media, legislators, government administrators, and other interested parties when there are global issues involved, such as challenges to clinician's rights and responsibilities, or to patients' rights, or to the established standard of care. Be aware, however, that whistle blowing is a difficult path to follow, and may have consequences for employability.

Your attorney may welcome some of these strategies, disagree with them—or resent them. Determine the reason for the attorney's objection, if any, then assess whether the objection has merit. Potential benefits can be weighed against potential harm. Find out of there's any other legwork your attorney feels safe having you do. It could reduce your legal fees while meeting your need for participation.

Behaviors that can help you reach the goal of maintaining your self-esteem or even raising your professional image with colleagues, employers, and board members (and most important, within your own mind and heart), include:

• Take the high road. Even though it is important to be aware of all of the system failures that contributed to an error, and to be prepared to address them in a professional way, attacking or blaming others (for example, in a meeting with your professional board) is counterproductive and brings attention to your own weaknesses.
• Define and acknowledge your own role in the events leading up to the report of misconduct—but keep it to yourself, your attorney, and others you can implicitly trust. Remember: People to whom you divulge information can be called as witnesses.
• Educate yourself on the issues that led to the accusation of misconduct. Become an authority on the related subjects.
• Work in your profession, if possible, even though confidence and faith are shaken. If that's not possible, identify jobs you can “live with” temporarily. Work two jobs for now, if that's what it takes to make ends meet and pay legal fees without adding debt to your other burdens. Explore positions that would be a good match for you on a long-term basis if worst comes to worst.
• Mentor a student. Be a solution to the shortage of healthcare professionals
• Become active in a professional association. For example, when a nurse helps his state nurses association, he helps the entire profession.
• Volunteer for a nonprofit community service group. Being associated with an organization that has “status” enhances your personal status.
• Continue your higher education. It may be wise to position yourself for a different career—just in case.

These are just a few examples of personal and professional activities that might be therapeutic for you and lead to positive outcomes in the face of a disciplinary proceeding.

Evaluation

You are capable of determining whether the strategies you and your attorney have implemented are effective, but only if you remain fully informed as the case progresses. At a minimum, this means receiving regular updates from the attorney, including copies of all correspondence and other documents. In addition, it means keeping the attorney informed.

Clients who are not vigilant may never discover, or discover too late, that an investigation was incomplete, a standard of care was misinterpreted, a witness was overlooked, an important piece of evidence was lost, an affidavit was ineffective or misleading, a strategy was miscalculated, or a deadline was missed. Lost opportunities can lead to life-altering consequences that affect you, your family, and your assets. Often what's done cannot be undone, so preventive strategies are critical.

THE DISCIPLINARY PROCESS

It is not uncommon for clinicians to confuse employer disciplinary processes with professional (state, license-related) disciplinary processes. They mistakenly believe that their collective bargaining group (union) can protect them from the professional ones, because healthcare employers are required by law to report possible misconduct. In fact, I have wondered for some time whether it's possible that union representation actually increases the likelihood that a hospital would pursue a misconduct complaint against an employee, because the union contract and representation restricts termination for other reasons.

As for the relationship between employment issues and misconduct reporting, some states require employers to report a nurse who is terminated or whose privileges are curtailed because of a patient care issue. Others require employers to report any nurse who is terminated, regardless of the reason. And, lest nurses get the idea they are being singled out by states, rest assured: disciplinary regulations that apply to nurses tend to apply to other licensees. In New York, for example, the same rules apply to forty professions.

The Complaint

A misconduct proceeding is initiated most commonly when someone files a report, also referred to as a complaint, with the state board or other state agency that oversees licensees. States allow anyone to file a complaint. It can be done by picking up the phone or going online—and it can be done anonymously.

A complaint can be filed by an ex-wife who is vengeful because you have a new girlfriend and are missing support payments. Or a disgruntled ex-boyfriend. Or a neighbor who is sick of the way your yard looks. Or a patient’s son—you know, the one who hasn’t bothered visiting his dad for five years—who feels you were rude. However, initial screening of the complaint may quickly determine that the accusations, even if true, don’t constitute a violation of any law or regulation. In that case, the complaint is generally put in your file—just in case future complaints are made against you and investigators want to be able to determine if any patterns emerge.

The complaint that carries the most weight, as predicted in The Behavior of Law, is the one that comes from your employer. Your employer—usually an organization—is likely ranked higher in your community than any individual. Moreover, complaints from employers are submitted by people who are knowledgeable of the law and in a position to collect and interpret (or misinterpret) evidence against you. If misinterpretation occurs, it may simply be a matter of human error. Sometimes however, it is more sinister, as any experienced defense lawyer will tell you.

At the complaint stage of a proceeding, legal representation does not guarantee that you'll be permitted to see all the information in your case. In fact, in some states you won't even know there has been a complaint—and thus be in a position to hire legal representation—until the next stage, the investigation, is initiated.

When and what you find out about the complaint will depend on the administrative regulations of your state. But if you know about the complaint and don't have an attorney it is certain that you will get only what the state is required by law to give you.

The Investigation

In some state, nurses and other licensees are promptly notified by the state itself that a misconduct complaint has been filed against them, but in other states they won't know they have been accused until they hear from an investigator. Since this can occur months—even years—after the event(s) in question, clinicians may be unprepared. And, during this delay, evidence, memories, and witnesses can disappear, leaving the licensee at an added disadvantage.

When an investigation progresses to the point that an investigator needs to interview the licensee, nurses in particular often make a serious mistake: They talk! Many states do not require investigators to inform licensees that they have the right to an attorney and that anything they say can and will be held against them. Investigators are notorious for using friendliness, sympathy, and understanding—which can be sincere but is also manipulative—to get nurses to discuss freely everything they think they've ever done wrong in their career.

This can lead to more serious charges. Many nurses have been outraged to learn that charges were being pressed against them after an investigator told them, “Oh that happens to everybody,” or “Everyone's made that mistake,” or “I don't think there's much here for you to worry about,” or even “You seem like such a good nurse.”

Physicians are said to be well aware that they should not speak with investigators without an attorney present, or at least without consulting an attorney. They will tell the investigator “Thank you for making me aware of this issue. I'll have my attorney contact you.” This is any licensee's right—whether you are a nurse, an engineer, a social worker, or any other licensed professional. In fact, this is the response the investigator expects.

While it is unclear whether any of the disciplined nurses in the New York study retained an attorney before speaking with investigators, investigators themselves have said that nurses will almost always talk to them right away—without counsel—and should not do so. When contacted by nurses or other licensees who are expecting an investigation, I tell them to practice standing in front of a mirror, imagining they have just been confronted, either at work or at home, by an investigator wanting to talk to them about a complaint, and saying, Thank you for making me aware of this issue. I'll have my attorney contact you. Like any kind of practice, this can prepare you for the real thing.

Having an attorney during the investigative stage of a proceeding does not mean you don't have to cooperate with the state and provide information. But an attorney can help you meet your professional obligation to be accountable while still protecting sensitive information.

Prosecution and Settlement

Some states' laws and cultures are more punitive than others, that is, they are concerned with prosecution and punishment (like the criminal justice system). Other states are more therapeutic, placing their emphasis on returning the nurse or other caregiver to safe practice. States with large and/or dense populations have a tendency to have more laws and to be punitive (Black, 1976).

In some states whose misconduct proceedings are described as therapeutic, the investigation and settlement of nursing cases is handled primarily by staff of the nursing board. The nursing board receives all complaints directly, screens them, promptly sends a copy of the complaint and the evidence to the nurse, promptly arranges a meeting with the nurse to obtain additional information, dismisses most cases, and settles the rest.

But even in such nurse-friendly states the role of the Board of Nursing does not include providing nurses with legal advice. Since states tend to have consistent processes for all disciplines, you might assume that this is also the case for the board of registered dietitians, or physicians, or nail technicians, but all licensees are encouraged to investigate and define the roles and processes in their states that apply to misconduct proceedings against their particular discipline.

In states with big populations, layers of bureaucracy are created to handle large volumes of cases. Once the investigation is complete, cases are transferred to a centralized agency dominated by prosecutors to decide what charges should be brought and what penalties sought. The more punitive style in big states may be the result, at least in part, of the relegation of professional boards to a consultative role on the sidelines; these boards become nearly invisible to the accused and are often minimally aware of the way cases they oversee are being handled. With so much distance between clinicians and those best equipped to judge them, it's no wonder that a punitive style would develop, based almost wholly on the beliefs and preferences of the prosecutor—generally an individual with extremely limited clinical knowledge.

During the prosecution and settlement phases, if you aren't represented by an attorney, then you're representing yourself, and will be contacted directly by the prosecutor. The prosecutor's objective is to settle the case to the advantage of the state—quickly and efficiently. For most cases, this involves getting a consent order or other type of plea bargain from you, in which you agree that you have committed an infraction and agree to the penalties proposed in exchange for not being prosecuted.

Like investigators, prosecutors may use a variety of tactics to persuade nurses and other licensees to do what they want. The term “bully” also comes to mind: Nurses have reported being threatened with more serious charges if they did not agree to the prosecutor's offer, and that they subsequently pled guilty to the proposed charges even though they believed they were innocent.

Like these nurses, you probably would not know how to interpret or respond to what the prosecutor says. You are likely to be frightened and upset, and your lack of knowledge makes for a poor self-defense. You might agree to charges and penalties far more severe than those you would have faced had you secured competent legal representation.

When you sign the paperwork for the consent order prepared and submitted to you by the prosecutor, you will have pled guilty, although you may not realize it right away. The disposition of your case may not be finalized until reviewed by a higher authority (eg, a panel including members of your professional board), but the prosecutor's decisions are rarely overturned by such panels.

In an increasing number of states, following the conclusion of this “due process,” your name, the charges you agreed to, and the penalties assessed will be posted on a website maintained for consumers by the state. You have been convicted. Unless, of course, you live in a state that prefers the euphemism “disciplined.”

How does this phase of a disciplinary proceeding differ if you have legal counsel? Having an attorney is not a guarantee that you won't be convicted of professional misconduct. But it does mean that the prosecutor will be negotiating with his equal, not with you. He can't bully your attorney. He can't cross the boundaries of what is considered ethical behavior. Experienced defense attorneys say that they are almost always able to achieve a reduction in charges for their clients.

This is often the most critical phase of the disciplinary process, and if an expert lawyer is able to negotiate the charges downward from those that constitute misconduct to charges that represent some minor offense but do not rise to the level of misconduct, both sides win: The state gets to issue an administrative warning, letter of admonition, or similar caution to you, but no mark will appear on the your license. Most states have such a mechanism for disposing of cases in which they believe you technically made an error, but for a variety of reasons consider it nonproductive to pursue more serious charges against you.

While you may believe you can be satisfied only by complete exoneration, it may be foolish to refuse a your lawyer's negotiated disposition of a misconduct case. Pertinent questions to ask your lawyer before agreeing to this kind of negotiated settlement are:

• Would my agreement to this constitute an admission of misconduct?
• Would my agreement result a mark on my license?
• Will this information be made public (for example, on the Internet)?

If the charges your lawyer is able to negotiate do constitute misconduct, you face a difficult decision. This may truly be the best outcome you can hope to achieve. You can agree to the charges and get on with your life, or insist on a hearing and take the risk that you will lose everything.

Hearings and Alternatives

A hearing, as a method of determining the disposition of a professional misconduct proceeding or seeking a reversal of previous findings, requires a long waiting period and is very expensive for both you and the state. Exhausting your legal options by insisting on a hearing will probably not generate favor with state officials. The state's view is that you are soaking up more than your fair share of limited state resources.

Some states have a process for resolving cases quickly and without a hearing at the lowest possible level. An example is the informal settlement conference for nurses in New York. It is one way to unclog a constipated legal system. You can essentially bypass the prosecutor by requesting the conference, which allows you to meet face-to-face with Nursing Board members. This is an excellent opportunity to explain facts and dynamics pertinent to the case and to connect professionally. And, according to Black's precepts, it is more difficult for officials who sit in judgment of you to be harsh when they have met you personally. You have reduced the distance between yourself and them (Black, 1976).

Although a settlement conference or arbitration may be your right, representatives of the state may not inform you or your attorney about it, so it is important that your attorney already know or inquire about such options. Sometimes, an informal settlement conference is not in your best interest—while talking directly to people who hold your fate in their hands, you could certainly represent yourself and your position poorly, or make an irretrievable error by divulging information you were not required to share. If the case against you is weak, and you’re a seasoned speaker who is articulate, logical, and comfortable addressing a room full of strangers, the settlement conference might be perfect for you. The decision is best made between you and your attorney.

Nurses undergoing professional disciplinary proceedings sometimes develop the idea that the members of the nursing board are their adversaries. In many states, these professionals are clearly the nurse's colleagues; it's just that their primary function is to protect the public. They struggle with disciplinary cases to ensure fair treatment of the nurse, but must act within the constraints of the law.

However, it is a rare individual who can escape the gravity created by the culture in which they work and, from anecdotal reports, the culture in some states among those connected with misconduct proceedings is not at all nurse-friendly. Some boards appear to take the position that the employer is always right, administrative nurses who file complaints against those who are lower on the ladder are never dishonest, and an accused nurse must be an offender in need of correction.

If, through absent or poor legal representation, you have failed to defend yourself, there may be little your board can—or will be inclined to—do.

Penalties

The penalties are the “sentence” the licensee is required to accept. Examples of penalties in the therapeutic style include mandatory education and counseling. More punitive types of penalties include fines and/or probation (a period of supervised and perhaps restricted practice), suspension (a period in which the nurse may not practice), and revocation (removal of licensure). Licensees often receive a combination of penalties.

Probation is commonly misunderstood by nurses, who often believe that their period of probation begins immediately after the penalty is levied. That is true only if the nurse is employed—and employed as a nurse. If she isn't, the probation won't start until she resumes work as a nurse.

At this stage, an attorney's impact on your outcome may be minimal because, if you have already pled guilty to misconduct, the damage likely has been done. An attorney who thinks she's doing you a big favor by getting your fine reduced from $1000 to $250 is mistaken—or perhaps more focused on your ability to pay the bill than on your career.

On the other hand, if your lawyer is able to prevent the prosecutor from revoking your license, suspending you, or assessing a probationary period to be served, these outcomes could well impact your income and employability in a positive way, allowing you some potential for moving on with your career. You can be fairly certain that, without legal representation, a prosecutor has no motivation to minimize the penalties against you.

THE IMPACT OF CRIMINAL CONVICTION

It is important for you to understand that your state may link any criminal conviction and a discipline for professional misconduct; in New York any licensee convicted of any crime (even petty larceny) is considered to have committed misconduct. About a quarter of the nurses in the New York study were disciplined because of a criminal conviction. They did not know about the professional consequences of the conviction and, as stated earlier, some failed to retain a lawyer.

In other states, the professional disciplinary consequences of a criminal conviction may depend on the nature of the crime and the perceived connection to patient care, but a report to the Board of Nursing and subsequent conviction is nevertheless a very real threat to you if you have ever been convicted of any crime in any state.

A criminal conviction of any kind can be an obstacle to your career plans in other ways. For example, an employment application may require you to report whether you have ever been convicted of a crime. If the answer is yes and you answer truthfully, your employment opportunities may be adversely affected; if you lie, you are (at a minimum) guilty of false documentation, which—if discovered and reported—could lead to a disciplinary action. If you have already been disciplined once, you can expect a harsher response from the disciplinary system the second time around. That's important to know, because the justice system predicts that once you've had one encounter with the law you're more likely to have another.

If arrested for any alleged crime, you should immediately retain the services of an attorney who practices in criminal court. As with a professional misconduct specialist, it's important to match the attorney's skills with your specific needs. Make sure your attorney understands that there may be a link between a criminal conviction and a professional discipline. Both of you need to understand this connection so goals and strategy can be planned accordingly.

If the criminal conviction is likely to lead to a discipline, then it becomes critical to prevent the conviction. The attorney who is informed of the consequences for the licensed professional will understand why, for you, it is not a great success to provide the opportunity to plead guilty to reduced charges, if those charges still represent a crime.

For example, when representing nonlicensed individuals, attorneys may feel they have done their job by arranging for a reduction in charges from driving while intoxicated (DWI) to driving while ability impaired (DWAI). Such a reduction may have important implications for the average client, in terms of the ability to continue driving legally, obtain insurance coverage, and other issues.

Though DWAI is a lesser crime than DWI, you as a licensed professional could still receive a career-altering discipline as a result of such routine plea bargaining. So, in many states, the clinician who is intent on maintaining a blot-free professional license and avoiding any involvement with the state disciplinary system must have the charges dismissed, or reduced below the level of a crime (eg, to a traffic violation, such as failure to keep right). It is not enough to have a charge dropped from a felony to a misdemeanor, or a class Z misdemeanor to a class X misdemeanor.

Most criminal attorneys are unaccustomed to representing professional licensees and are therefore not familiar with their special needs. One lawyer told his client he could prevent her from being convicted of professional misconduct following a DWI conviction by contacting the Board of Nursing and explaining what happened. He was wrong.

COMPARISONS TO THE CRIMINAL JUSTICE SYSTEM

Like the criminal justice system, the disciplinary system has investigators, prosecutors, judges, juries, and convictions, although they may not be called by the same name or function in exactly the same way.

It is not uncommon for prosecutors in punitive states to be former district attorneys. As such, they may have carried over habits and attitudes from one system to the other, such as their view of people who have been accused of wrongdoing, or a sense of how those people deserve to be treated. It's no wonder that many nurses who have been through the system say they have come to feel like criminals. Some even feel they were treated worse than criminals.

Why? Because while licensees are guaranteed protection of their legal rights in a misconduct proceeding, their legal rights actually fall short of those of criminals. For example, there are many states in which investigators and prosecutors from the state agency that handles misconduct proceedings are not required to inform you that you have the right to remain silent and to have legal representation.

Depending on the state, you may not be entitled to know who reported you, what was alleged, and what evidence was submitted. Or, if you are entitled to that information, it may only be after refusing to plea bargain a settlement to your case and insisting on a hearing—a process that takes several years and tens of thousands of dollars in legal fees.

The reason for this disparity is that, due to the nature and consequences of criminal conviction, states protect the rights of alleged criminals more vigorously. For example, a higher level of proof was required to convict O.J. Simpson or Robert Blake of murdering their wives than was required to find them “responsible” in a civil court and award the women's surviving family members millions of dollars.

ROOM FOR IMPROVEMENT

There are many ways in which the professional disciplinary system could be improved. Greater consistency from one state system to another and better protection of licensee's rights are two major goals that states, professional societies, and individual licensees can embrace and promote. Some specific suggestions include:

• Reallocating existing state resources so that boards can play a more direct role in the interpretation of investigative data and the determination of appropriate charges and penalties
• Creating programs designed to reintegrate convicted licensees into practice
• Conducting surveys of licensees who have come into contact with the system to gauge the satisfaction of these citizens with the disciplinary system (and with public servants, such as prosecutors)
• Requiring the state to inform licensees of their rights and provide them with educational material pertaining to disciplinary system
• Setting time limits for reporting and investigating alleged offenses (LaDuke, 2005)

You may not think of yourself an activist for change, but if you or a loved one has a personal encounter with the disciplinary system, you could be the person who takes reform to a new level, or who imagines the changes that would be a win-win solution for the state and individual licensees.

CONCLUSION

Like doctors and hospitals and other healthcare entities, you need a risk-management strategy. This should include avoiding interpersonal conflict, keeping your practice current, becoming familiar with policies and procedures at the workplace, and maintaining professional liability insurance.

In the event of a professional misconduct accusation, you may not always need an attorney to protect you throughout the disciplinary proceedings. The urgency of retaining legal counsel depends on the state, the nature of the complaint, and many other factors. But since you yourself are not capable of making this assessment, you should immediately consult a competent specialty lawyer. You have nothing but a few hundred dollars to lose by soliciting competent advice, and you risk everything by failing to do so.

Once you decide to retain the services of an attorney, your ongoing participation in the case ensures that you have done everything possible to protect yourself, regardless of the outcome. Your understanding of the behavior of law, the basic processes involved in a disciplinary proceeding, and of the special considerations in a criminal case, will also help you protect yourself against career-altering results.

Posted March 13, 2006

Expires April 1, 2009

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