professional issues in rehabilitation nurse practice issues in nurse...professional license if you...

PROFESSIONAL ISSUES IN

REHABILITATION NURSE PRACTICE

"Rehab Nurses...The Force is Strong With You"

Presented by:

Main Office:

1101 Douglas Avenue

Altamonte Springs, Florida 32714

2

Phone: (407) 331-6620

Fax: (407) 331-3030

Email: lleider@thehealthlawfirm.com

Website: www.TheHealthLawFirm.com

Lance O. Leider, J.D., LL.M.

lleider@thehealthlawfirm.com

Today’s Lecturer:

OBJECTIVES

• License defense and protection

• BON, DOH & the initial complaint

• Selection of counsel

• Malpractice insurance

OBJECTIVES cont.

• The anatomy of a lawsuit

• Components & consequences of medical negligence

• Litigation

• Depositions

• Trial

• Professional liability insurance

• Social Media Do’s & Don'ts

Protecting Your Nursing

License

Do you need to worry about

your nursing license?

AND

What can you do to protect it?

Your Nursing License

• A Privilege vs. a Right

• The Florida Department of Health, Board of

Nursing, Regulates and Disciplines Florida

Nurses

The Florida Board of Nursing

• The Regulatory Body Charged with Ensuring the

Minimum Requirements for Safe Nursing

Practice

• Organized Under the Department of Health

• Members Appointed by the Governor

• Duty is to Protect the Public -

Not to Advocate for the Nurse

The Nursing Disciplinary

Process• Complaint

• Investigation

• Probable Cause Panel

• Administrative Complaint

• Hearing

• Discipline

The Initial Complaint: Sources

• Disgruntled Employee/Employer,

Colleague/coworker, Patient/family member

• Code 15 Or Adverse Incident Report

• AHCA Surveys

• Law Enforcement

The Initial Complaint: Sources

cont.

• Self report of adjudication

• Malpractice allegation

• National practitioner data bank (NPDB)

• Other

The Initial Complaint:

Common Allegations

• Unprofessional conduct

• Failure to practice with reasonable skill and

safety

• Criminal conduct

The Initial Complaint:

Common Allegations cont.

• Engaging or Attempting to Engage in the

Possession, Sale or Distribution of Controlled

Substances

• Exceeding the Scope of Nursing Practice

• Filing a False Report

Visit: www.TheHealthLawFirm.com

Our Video Q&A:

Speaker: President & Managing Partner,

George Indest III, Esq.

The Investigation:

Notice Letter & Case Summary

• What it really means

• What it can tell you

• What you should and should not do upon receipt

Typical Questions from Nurses

• What is going to happen to me?

• Am I going to lose my license?

• Am I going to be reprimanded by the facility?

• Am I going to lose my house?

• Am I going to go to jail?

• Do I need to carry my own malpractice insurance?

The Investigation:

The Investigator

• The investigator’s role

• The investigator: your best friend or worst

enemy?

The Prosecution Stage

• The Role of the Department of Health (DOH)

Attorney

• The Role of the Emergency Action Unit

• Review and Rebuttal of the DOH Investigative

Findings

• Presenting Mitigating Factors

Probable Cause

• The Probable Cause Panel

• The Panel’s Review of the Case File and Determination

of Whether Probable Cause Exists

• The Panel’s Determination Options:

- Dismissal

- Dismissal with a Letter of Guidance

- Finding of Probable Cause

Prosecution

• The Administrative Complaint

• The Election of Rights

- Informal Hearing

- Formal Hearing

----------

- Relinquishment of License

- Stipulation

Discipline

Potential Penalties:

• Revocation or Suspension of License

• Restriction of Practice

• Probation – direct or indirect

• Imposition of a Fine

• Mandatory Continuing Education

• Issuance of a Reprimand

• Issuance of a Citation

Discipline:

Collateral Consequences

• Discipline remains on the nursing license forever

• Will generate a NPDB Report

• Will usually precipitate an investigation and/or

discipline by other states where the nurse holds

a license

Discipline:

Collateral Consequences cont.

• When discipline is imposed, the nurse generally

has an affirmative duty to report to other states

where a license is held

• Could serve as a basis for exclusion from

Medicare/Medicaid programs

Sure-fire Ways To Put Your

License At Risk

• Lie on your application for license or license renewal

• Fail to report a guilty or nolo contendere plea,

regardless of adjudication

Sure-fire Ways To Put Your

License At Risk

Drink and drive,

Or commit any another crime

Sure-fire Ways To Put Your

License At Risk

Take A Controlled Substance That Has Not

Been Legitimately Prescribed For You

Sure-fire Ways To Put Your

License At Risk

Chart something as done

that was not done

Sure-fire Ways To Put Your

License At Risk

Fail to chart things that were done,

especially the administration of controlled

substances or the wastage of unused

controlled substances

Sure-fire Ways To Put Your

License At Risk

Improperly Alter Or Attempt To

Correct A Record

Sure-fire Ways To Put Your

License At Risk

Act without a physician order

Sure-fire Ways To Put Your

License At Risk

Fail to report a plea or adjudication

Some Ways To Protect Your

Nursing License

• When In Doubt, Look It Up Or Consult

• Work Only In Places That Do Not Put You At

Risk

Some Ways To Protect Your

Nursing License cont.

• Be Familiar With Facility Policies and

Procedures

• Document Accurately And Timely

Some Ways To Protect Your

Nursing License cont.

Be familiar with Florida’s Nurse Practice Act and

the act of any other state where you hold a license

Some Ways To Protect Your

Nursing License cont.

• Never Plead To A Crime Without Knowing The

Implications To Your Nursing License

• Cooperate With Internal Investigations, But

Always Maintain Caution

Our Health Law Blogs:

SEARCH - Nurses: Insuring Your Legal Protection

SEARCH - If You Are a Health Professional

Facing Legal Challenges, Choose a Specialized

Law Firm

Visit: www.TheHealthLawFirm.com

Malpractice Insurance

• Most employers cover

nurses for ordinary

negligence

• Usually only when

classified as an

“employee” and not an

“independent

contractor” (i.e. 1099)

Malpractice Insurance

• Do you need your own policy?

– As an employee, probably

– As an independent contractor, absolutely

• Covers many things your employer will not such

as:

– Depositions

– License defense

– Subpoenas for testimony

Professional Liability Insurance

Check your professional liability insurance to

make sure you are covered for professional

license defense expenses

Professional Liability Insurance

Many professional liability insurance policies

provide no coverage for license defense expenses.

Others provide only an insufficiently low amount of

coverage such as $5,000. This is not enough

coverage and you should obtain more.

Coverage for Legal Defense of a

Professional License

If you do not have at least $25,000 in professional

licensure defense coverage, obtain more. Some

insurance companies have this much coverage as

part of their basic policies (Healthcare Providers

Service Organization Insurance [HPSO] and CPH

& Associates, for example).

Coverage for Legal Defense of a

Professional License

If you do not have at least $25,000 in coverage

(and preferably $50,000) contact your insurer to

see if you can pay for increased coverage limits for

this one type of coverage. If not, contact your

insurance agent.

Coverage for Legal Defense of a

Professional License

You must have enough coverage available to be

able to afford to hire expert witnesses in your

defense, if needed, and to go all the way through a

full formal administrative hearing (trial) on your

case if needed.

Visit: www.TheHealthLawFirm.com

SEARCH - Nursing Malpractice Insurance

or

Malpractice Insurance for Nurses

Our Health Law Blogs:

Subpoenas

• Help, I just got a subpoena and I don’t know what to do!

– If employed, bring it to your manager

– Contact an attorney to review it

- The employer’s attorney is not always looking out

for your best interests

– Don’t ever just show up for testimony or produce the

requested documents without checking with someone

Depositions

• What is a deposition?

– Deposition (Under Oath)

Questioning by other parties as to knowledge of

incident, policies of facility, background, prior

incidents

Depositions

• What to do if you get a Deposition Notice?– Contact your attorney

– Contact your employer

– Review the applicable records (if you can get them)

– Prepare your testimony- Do not go in cold

Deposition Tips and Best

Practices

There are three types of Plaintiff

Lawyers to look out for...

Deposition Tips and Best

Practices cont.

The Ignorant Lawyer - I don’t know nothin’

bout medicine but I think I do...

Deposition Tips and Best

Practices cont.

The Pompous Lawyer - I am going to try to

intimidate you by throwing out complex

medical terms...

Deposition Tips and Best

Practices cont.

The Intimidator - I am going to be mean

and nasty to intimidate you

THIS IS AN OPEN BOOK TEST – USE THE

MEDICAL RECORDS!!!

Justin Bieber 2014 Deposition

Full deposition: https://www.youtube.com/watch?v=uaS8YXgb8YU

Trial

• Jury selection

• Opening Statements

• Presentation of Witnesses

• Closing Statements

• Jury Deliberation - Verdict

Social Media’s Role in HIPAA

Social media is a growing area of concern for

violations of patient privacy. Breaches by individual

employees harm patients and place the facility at

risk. HIPAA breaches by employees can occur in

many ways, however, social media seems like the

easiest way to get caught.

Example of Social Media

HIPAA Violations

• A few nurses who work together in a hospital

emergency department were fired for discussing

patients on a social media site. Even though

they did not post any identifying information,

they still violated the hospital's HIPAA policy.

Source: https://www.verywell.com/social-

medias-role-in-privacy-breaches-2317518

SHOULD YOU…

Have combined personal and professional

social media accounts?

SHOULD YOU…

Friend patients or accept friend requests

from patients?

Interacting With Patients

• Nurses should refrain from interacting with

past or current patients on personal social

media sites

• Never discuss information pertaining to the

provider-patient relationship

SHOULD YOU…

Give specific medical advice online?

Discussion of Medicine Online

• Nurses must ensure that information

exchanged on these sites remains

confidential

• Nurses must ensure that others do not rely

on the online discussion as medical advice

SHOULD YOU…

Share health care articles or videos for

informational purposes?

DISCLOSURE

Nurses may write online about their

experience as healthcare professionals, but

they should reveal existing conflicts of

interest and be honest about their

credentials

SHOULD YOU…

Talk about patients’ conditions, treatments

or research online, even in general terms?

– e.g. “We had a fifty-year-old male in the ER

last night with alcohol-induced liver disease.”

Privacy/Confidentiality

• Patient privacy and confidentiality must be

protected at all times

• Providers can discuss their clinical

experience but should refrain from

including details that may identify a patient

SHOULD YOU…

Post photos like this on social media?1

Note: These are hypothetical photos from Dr.

Ryan Greysen, assistant professor at the

University of California, San Francisco

SHOULD YOU…

Report unprofessional behavior of others to

authorities?

SHOULD YOU…

Share vacation photos, some of which show

you drinking?

Posting Content

• Providers need to know that any

information posted online can be

disseminated without consent to a huge

audience

• Content can be taken out of context and

will remain online forever

Using Social Media & Social

Networking in Medical Practice

Federation of State Medical Boards released

“Model Policy Guidelines for the Appropriate

Use of Social Media and Social Networking”

Main Office:

1101 Douglas Avenue

Altamonte Springs, Florida 32714

70

Phone: (407) 331-6620

Fax: (407) 331-3030

Email: lleider@thehealthlawfirm.com

Website: www.TheHealthLawFirm.com