MASSACHUSETTS NURSES - DEFENDING YOUR LICENSE

THE IMPLICATIONS OF A BOARD COMPLAINT

Have you ever received a letter from the Board of Registration in Nursing- and it wasn't time to renew your license? You open it and you find that the Board is informing you that it is initiating an investigation about you, your work, your professional conduct, or all of the above. The investigation may be the result of a patient’s complaint about your nursing care, or because the Board is responding to a report from the Department of Public Health (DPH) about an incident occurring at your place of work. Either way, you were somehow involved.

If you ever receive such a notice or complaint, it is understandable that you could feel shocked initially, then angry, and eventually worried. You might have difficulty concentrating or you may have trouble sleeping. Because it involves your professional license to practice, your professional reputation is at stake. Even if you were certain that you had acted completely within the standards of acceptable nursing practice, it would be natural to be concerned about what this complaint may mean to your future. After all, the Board holds your livelihood in its grasp. It allows you to practice your profession, and it has the power to take it all away.

It may seem unfair, but be assured, the Board does not engage in witch-hunts. The role of the Board is to take responsibility in the regulation of the practice of nursing to protect the public. The Board’s sole responsibility is to make certain that you are practicing within the standards of your profession. Therefore, members of the Board are duty bound to investigate any issue that may call a nurse’s practice into question.

It is important to note that your professional license comprises a protected interest, affording you procedural and substantive fairness. It includes an opportunity for a full and fair hearing under the due process standards of both the United States and Massachusetts Constitutions. Therefore, your license cannot be taken away easily or arbitrarily. However, this does not mean that you should treat such Board complaints and their ensuing investigations in a casual manner. Because your license is this important, any investigation about your professional conduct should be taken very seriously, no matter how unwarranted you may think it is.

This article will provide you with valuable information so that you can know how to proceed, should you receive a complaint letter. It will provide you with tools to protect yourself and your practice from unwarranted disciplinary action in the future.

PREVENTIVE STRATEGIES

If we are to put ourselves in the patient’s shoes, it affords us a view into what makes a person file a complaint. Almost universally, a patient who doesn’t know you very well is more likely to file a complaint rather than one who has an ongoing relationship with you. Therefore, it is likely that if you work in an area where you come in contact with the same patients on a regular basis, you have the opportunity to get to know the patients at a level that is different from a nurse working in the Emergency Room or in the Operating Room. A patient who knows you and has developed a trusting relationship with you most likely will choose not to take action against you, even when others find it reasonable to do so. However, the decision not to complain about your conduct, even if it may be warranted, is based on the level of trust you have established and whether the patient likes you, not how long you have known her. Consequently, if your patient perceives that you are a caring and trustworthy individual, who treated her with respect, you have minimized your risk.

While it is more challenging to develop a trusting relationship with patients in the high risk areas of Emergency Room, Operating Rooms, and ICUs, it is not impossible. The challenge is to develop a trusting rapport with patients in these areas in a shortened period of time. Knowing that they will naturally be under heightened stress, it is never enough to demonstrate your competence. It cannot be overstated how significant a warm, gentle touch and a kind word can be. Sitting down with a patient, establishing eye contact and showing that you are genuinely concerned about each patient makes it easier for a patient to trust you. In providing this level of care for your patient, you will have created a bond that will lessen the possibility that the patient will file a complaint about you, should something go wrong. Conversely, if a patient feels slighted in any way, she may find reason to complain about your practice to the Board, even when you did nothing wrong. For example, if she feels that you were rushed when you cared for her, or if she felt misunderstood, she may take action against you.

In some areas where you may practice, you may also come in contact with family members. Don’t forget about them. Although their primary responsibility is to support their ailing family member, your patient, they are also anxious and concerned. Your support for each of these visitors can be instrumental to the development of a relationship not only with each of them, but with the patient. A welcoming attitude will help to show them that they are included and that you realize their importance to the well-being of the patient. If you can show your concern for the patient while including a genuine concern for visitors, you will be well on your way to forming a respectful rapport with those under your care. While you may think that you don’t have the time that this method of care may require, it is not about the quantity of time spent with each patient and family member. Instead it is about the quality of time you spend with them. Using each moment to its fullest, your patients will like you better and they will be less likely to make complaints about you to your superiors or to the Board.

Unfortunately it is virtually impossible to predict what a patient is thinking or feeling about you and your nursing care. So it is not feasible to direct any of your time attempting to identify potential patients who might take action against you. Instead, you can make it your personal policy to ask your patients what they need before you leave them, to ask if they understand your directions or your explanations and to answer their questions in a way that they can understand. They will welcome your thoughtfulness.

While you may not be able to know what a patient thinks about you and your practice, you can be sure that every patient wants to feel respected. One of the simplest ways to show your respect is to make the patient feel welcome at every visit, give the patient eye contact when talking to her, and give her a small amount of extra time. You would be surprised how little actual time this can take. It can be as little as 30 seconds. If you establish an unhurried approach, and if you ask if the patient has any questions or concerns, you will be showing your respect for her. To recap:

RESPONDING TO A COMPLAINT

Despite your best efforts, you may receive a notice from the Board, requiring you to respond to the allegations within a patient’s complaint. Often the grounds for the complaint will be based on the patient’s idea that your nursing treatment was inappropriate, or that you performed treatment that was not expected, and therefore without consent. Other, more serious allegations such as misconduct, fraud, practice beyond the scope of your profession, practicing while impaired, have also been filed.

While complaints against your license may be brought by patients, the Board is entitled to raise an inquiry about your practice on its own accord if notice is given by another source. For example, a report may be submitted by the Massachusetts Department of Public Health about an incident involving care provided at your hospital.

Regardless of the source of the complaint, a compliance officer at the Board sends a letter to you, identifying the general issue or issues of concern. The compliance officer requires your response to the complaint within a short period of time, usually 15 days. In addition, the compliance officer will provide you with a list of information needed that you must supply within the same 15-day period. While the Board requires documents from you depending on the nature of the complaint, most likely you will be required to produce the following information:

  1. Current residential address and telephone number;
  2. Updated Curriculum Vitae or resume;
  3. Copies of all licenses in-state, or out-of-state;
  4. Copies of attendance records at educational seminars and conferences, indicating the number of Continuing Education Units earned in the last complete license period; and,
  5. Additional certifications.

The Board always includes a statement that you are entitled to legal representation to assist you in responding to the complaint and defending your position. At first, you may think that if you have done nothing wrong, you are capable of handling an adequate response on your own. However, nothing could be further from the truth. Because the Board has the power to revoke or suspend your license, issue a reprimand or place you on probation, it is unwise to try to go it alone. Depending on the allegations and the nature of the complaint, your professional liability insurer may cover your defense to a Board complaint. Your employer, and you as its agent, may be insured to defend against Board complaints. In these cases, it does not cost you to take advantage of what your insurance coverage provides. You may request a particular attorney or your insurer may assign an attorney to represent you. Therefore, once you receive a complaint letter from the Board, your first step is to discuss the complaint with your employer to determine whether insurance will pay for your defense. The next step is to consult with an attorney.

Your next task will be to gather the documents requested by the Board. Bring all requested documents with you when you meet with your attorney. Some attorneys will request that you write down a draft of your response to the Board. Others will interview you, write a draft response, and ask you to edit it. Whatever the method, it is essential that you understand that the letter to the Board will be signed by you, and by signing the letter, its words become your words. Therefore, even though you and your attorney will develop the letter together, your signature will indicate that you have attested to the truth of its contents once it is signed by you. Your attorney may also consult a nursing expert in your specialty before a response is completed to the Board. A fellow nurse can provide valuable insights into the appropriate standards and how you met them. To summarize, if you receive a complaint from the Board:

Once your response is submitted to the Board, the waiting begins. It may be several weeks before you receive any further correspondence from the Board. Your attorney will continue to represent you during this time and will call the Board on your behalf to determine the status of your case. The compliance officer will review all the information submitted by you. The person who made the complaint may also be interviewed by the compliance officer. The Board will obtain the patient medical records to determine your role in the patient’s care and will present this information before the full Board at an open meeting. It is here that an initial decision is made on the merits of the complaint.

The good news is that the vast majority of complaints are dismissed at this level. Normally the Board finds that the explanations in your response letter, if consistent with the documentation in the patient’s record, will be sufficient to close the case. However, occasionally, the Board will continue the case if its investigation suggests any possible misconduct. If patient care problems are identified, remedial courses may be required, a probation period may be instituted, or other possible discipline may be levied by the Board. If this occurs, you have the right to be heard, as a matter of law. The Board will notify you of the hearing. It is essential that you are represented by an attorney at the hearing.

HEARING OR NO HEARING

Often the Board will determine that an informal hearing is the appropriate next step. The informal hearing is like an interview. Both you and the patient who filed the complaint will be present to explain the circumstances of the complaint to the Board members. After hearing from both parties, the Board will notify you in writing whether it finds grounds for a formal hearing or whether any further action will be taken.

In many cases the Board may attempt to meet with you and your attorney and the person who issued the complaint against you in an effort to resolve the case without a formal hearing. If this occurs, your attorney is best suited to assist you in negotiating a reasonable settlement. If the Board offers you this option, it most likely means that the discipline required will be something less punitive than the loss of your license. If the Board determines that a formal hearing is warranted, it will issue you an “Order to Show Cause” why the Board should not revoke or suspend your license. Notify your attorney as soon as possible in this event.

The formal hearing is for your protection. You are entitled by law to a formal hearing before any discipline is levied that will impact your license, your practice, your career. The formal hearing is like a trial in many aspects. You and your attorney may call witnesses, you may testify on your own behalf and you may provide additional evidence.

DISCIPLINE

Disciplinary action will be taken only if the Board finds that the evidence presented at the formal hearing proves misconduct on your part. Discipline may be as mild as a reprimand, or an order to comply with Board regulations. If the offense is serious, a suspension or a revocation of your license is a possibility, but only after the evidence presented proves the allegations of the complaint and only if the misconduct is deemed sufficiently serious or dangerous. Disciplinary actions vary and may include one or a number of the following:

A FEW LAST WORDS

Because the Board is responsible for the safety of the consumers of health care, it is the Board’s prerogative to request all relevant documents from you. Because you are never certain who may find fault with you or your practices, it behooves you to be prepared at all times. You can be best prepared to respond to a Board complaint if you follow the principles listed below:

This article is designed to provide you with helpful information about the complaint process carried out by the Division of Health Professions Licensure. Because a complaint has the potential to place your career at risk, all complaints, no matter how frivolous they may appear to you, should be handled with the utmost care and seriousness. In order to proceed in defending yourself against any complaint, it is the wise professional who consults with an knowledgeable attorney who is experienced in representing professionals like you and who can provide you with the best defense possible.

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