NurseWeek: Nurse, Interrupted: A portrait of how disciplinary action can tie you up in knots

Nurse, interrupted
A disciplinary action can put a wrinkle in your career – and tie you up in knots
By Megan Malugani
August 21, 2000

The number of disciplinary actions against RNs has jumped dramatically over the past five years. Some people point out that nursing standards are unusually high in many health care settings.

Photo: Artville


	You've read the article. Now tell us what you think. Related sites State Boards of Nursing National Council of State Boards of Nursing American Journal of Nursing Five-step process Disciplinary processes vary from state to state, but they share the same basic structure. Sharon LaDuke, RN, outlined the basic design in the June issue of the American Journal of Nursing: Complaint. Cases begin with a complaint of possible professional misconduct made to a state nursing board or another state agency. Investigation. An investigator for the state performs an investigation and the case is either closed or the nurse is charged. Settlement offers. Most nurses accept settlement offers made by the prosecutors assigned to their cases. A settlement offer specifies penalties that will be imposed in exchange for an admission of guilt. Formal hearing. When misconduct charges cannot be resolved through a settlement, a formal hearing is convened, often before a panel appointed by the state board of nursing. Guilt is determined by a panel vote. Penalties. Penalties range from a fine to license revocation, and are determined by the state nursing board. Other penalties may include censure and reprimand, probation, suspension or any combination of these. Education or public service may be mandated. ~ Megan Malugani Discipline discrepancies Nurses may bear more than their fair share of professional discipline, according to a study published in the June issue of the American Journal of Nursing. In some states, a nurse is far more likely than a physician to be disciplined when a complaint has been filed, author Sharon LaDuke, RN, said. From 1992 to 1998, for example, annual complaints against New York State physicians averaged nearly four times those made against the state’s nurses, yet the average number of disciplinary actions taken was nearly the same. "Nurses are disciplined more often and more harshly than physicians," said Deborah Phillips, JD, RN, a lawyer at Anthony & Carlson, LLP, in Oakland, Calif. "Because physicians are at the top of the chain, they’re not criticized as heavily." One of the reasons for the disciplinary differences may be that physicians are afforded broad latitude in making judgment calls, Phillips said, while nursing is a more "derivative practice." RNs are required to follow orders without as much room for using their professional judgment and discretion, she said. "They’re totally different practices. It’s like comparing apples and oranges." Another reason for the discrepancy in disciplinary rates may be that physicians are more savvy about obtaining legal representation than nurses, LaDuke said. Regardless of what accounts for the disparity, some may interpret it as a sign that the nursing profession holds its licensees to safer standards than the medical profession. "One perspective is that nurses are doing a better job of policing their own," said Vickie Sheets, JD, RN, director of practice, regulation and credentialing at the National Council of State Boards of Nursing. ~ Megan Malugani

Anne Adams’ life was turned upside down the instant she was summoned to her nursing director’s office and was told she had made a life-threatening medication error. Adams (not her real name), a registered nurse with 20 years’ experience in critical care and emergency nursing, had misread a label and administered the wrong medication to a patient. The patient recovered, but Adams’ nightmare was just beginning.

After she was informed of the mistake, Adams hired a lawyer and went through her state’s disciplinary process. The state nursing board, which heard her case in 1998, put her on probation for a year rather than suspending or revoking her license, and she considers herself lucky to be working as a nurse. However, she’s struggled with bitterness toward the profession, which she says "cut her adrift" during her time of need, and she’s visited a counselor to help her regain her self-esteem.

"I think all the time: Why did I ever become a nurse?" said Adams, who recalls that colleagues were "stand-offish" and insensitive after the incident. "I feel I wouldn’t have had to go through so much heartache, pain and self-recrimination if I had more support from my peers. Other nurses take the attitude that ‘it happened to you, but it would never happen to me.’

"I wish there was a hotline you could call to talk to someone who has been through it before."

Not alone
Adams may have felt alone, but she wasn’t. According to the National Council of State Boards of Nursing, the number of disciplinary actions issued annually to RNs has risen 21 percent in the last five years – from 4,029 in 1995 to 4,865 in 1999.

Between one-quarter and one-half of all complaints against nurses that are brought to the attention of state nursing boards result in some kind of disciplinary action, said Vickie Sheets, JD, RN, director of practice, regulation and credentialing at the council. Some of the reasons nurses are disciplined include criminal convictions, chemical dependency or substance abuse, and practice issues such as medication errors, documentation errors and failure to assess or intervene, Sheets said.

The notion that only "bad" nurses are disciplined is inaccurate, experts said.

"The vast majority of RNs I’ve represented for professional misconduct are good to excellent nurses," said Donna Moniz, JD, MN, RN, a lawyer at Johnson, Graffe, Keay & Moniz in Seattle. "In my opinion, very few are really poor practitioners."

Because nursing standards are set unreasonably high for many health care settings and the staffing available, technical breaches in standards are common, Moniz said, but only a fraction of apparent breaches are reported.

"If you did a chart audit of a whole group of patients, you would find many examples of nurses not meeting standards," Moniz said. "However, nursing boards do not perform such audits. Particular nurses are reported, sometimes for questionable motives."

According to Moniz, national studies show that medication may be administered improperly between 3 percent and 10 percent of the time. "That’s appallingly high from a patient’s point of view, and yet only a handful of nurses in a given state in a given year are going to be disciplined for that," Moniz said. "The real problem is usually not individual nurses, but the system. As an industry, we need to find ways to reduce medication errors. Being punitive won’t solve the problem."

'Culture of blame’
Although every state nursing board’s primary responsibility is to protect the public, each state approaches this task differently. Many boards revoke a nurse’s license only for the most serious offenses, and put nurses on probation or prescribe education for lesser offenses, Sheets said.

In California, "the board believes that discipline is not intended to be punitive, but a public protection tool. If a nurse could practice safely while being monitored on probation, that would be the course of action the board would take," said Susan Brank, assistant executive officer at the California Board of Registered Nursing. "As a board that represents the public’s interest, we have to walk a fine line and consider both the effects [of disciplinary decisions] on the nurse and the effects on the public," Brank said.

Texas’ nursing practice act includes a "minor incident rule" that provides nursing employers with criteria for determining whether an incident should be reported to the state’s Board of Nurse Examiners. "The board rarely receives complaints on minor incidents," said Anthony Diggs, director of enforcement for the Texas board.

The Texas rule is just one of many "alternative, innovative" approaches that states are taking to nurse discipline, Sheets said. Many states have diversion programs for nurses with chemical dependency or substance abuse problems, she said. "It would be wonderful if we could move from thinking of disciplinary action as punishment to thinking of it as remediation," Sheets said.

The power of counsel
Regardless of their state’s approach to professional discipline, nurses should hire a lawyer if they find themselves facing a professional misconduct investigation, said Sharon LaDuke, RN, management information systems nursing coordinator at Hepburn Medical Center in Ogdensburg, N.Y.

"The professional disciplinary system is very much like the criminal justice system. Those with good legal representation have better outcomes than those who don’t have such representation," said LaDuke, who published a study of the professional disciplinary system in the June issue of the American Journal of Nursing.

An accusation of professional misconduct "is a very serious threat to a nurse’s livelihood and mental health," LaDuke said, "so it’s critical that he or she initiates an effective defense by getting immediate, competent advice from an attorney with experience in professional discipline cases. Whether you think you’re guilty or not, you’re entitled to defend yourself."

LaDuke, whose study included survey results from 33 New York nurses who had been professionally disciplined in 1998, said that nurses often misunderstand the adversarial nature of the disciplinary process and speak too freely with state investigators. A lawyer can prepare them for and protect them against such situations, she said.

"Nurses tend to take care of other people and their problems, so they believe they can solve their own problems," said Deborah Phillips, JD, RN, a lawyer at Anthony & Carlson, LLP, in Oakland, Calif. Such naivete works against nurses who are facing the professional discipline gauntlet, Phillips said.

"Just having a nurse tell his or her story is seldom enough to rebut charges. Nurses may not realize how much evidence is stacked against them," Phillips said, adding that lawyers can help nurses prepare evidence in their favor and line up witnesses on their behalf.

In Texas, about 40 percent to 50 percent of nurses whose cases reach the point of a hearing obtain legal representation, Diggs said.

In California, the majority of nurses do not obtain legal counsel in disciplinary proceedings, Brank said, although California RNs are afforded a fair hearing and due process with or without a lawyer. "The burden of proof is legally with the board. We have to have an airtight case to be able to go forward with discipline," she said.

Bouncing back
As Adams’ case shows, being professionally disciplined doesn’t have to mean the end of a nursing career. RNs who have been disciplined may find employers more willing to hire them during nursing shortages, Sheets said. Some RNs learn from their experiences and emerge from the disciplinary process as better nurses, she said.

"I think the way a nurse can best move forward is to face it head on and be up front with employers. They should look at the situation objectively and recognize that they may not be the total cause of whatever went wrong, but recognize their piece in it and look at it as an opportunity to improve their practice," Sheets said.

Although Adams’ mistake will be on her record forever, she was pleasantly surprised at how accepting her present employer, a major health insurance company, was when she revealed the disciplinary action during the interview process.

"After I told them, I thought, ‘Gee, that wasn’t so bad,’ " Adams said. "I don’t feel as ashamed anymore, but it took some time."