Just Sign Off on This...
"Hey, Charlene, I wasted this Valium and forgot to have someone witness it. Sign here will you?"
Sound familiar? Something you've done? You know Charlene and she's just the kind of person to forget to get a witness. So you sign it. And then you forget about it. Until the man with the badge asks you to step into the office and answer a few questions.
Most state disciplinary statutes make it unlawful for a nurse or LPN to engage in fraud or dishonesty. For example, one statute says discipline can be imposed for:
(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by sections 335.011 to 335.096; and
(12) Violation of any professional trust or confidence
It is interesting to look generally at what all these words really mean, and how the affect nursing duties and responsibilities. As a general rule, when a legislature uses a word in a statute, they mean for each word to have a specific meaning. Thus incompentency must mean something different that gross negligence or misconduct. "Incompetency" refers to a state of being.[1] Incompetency means something different than "gross negligence." Otherwise, there would be no reason to list "incompetency" in the statute as a separate ground for discipline and "incompetency" would be redundant. A nurse who is generally competent could commit gross negligence; thus, "incompetency" must mean something different from these other terms. Some courts have defined it as "a general lack of present ability or lack of disposition to use a present ability to perform a given duty."
Proving that a nurse made a mistake on a given day at a given time doesn't prove incompetence. Rather, it proves error or negligence, but in most states this is not sufficient for discipline. Incompetence goes to the inability of the practitioner to do the job properly. It is shown by proving that the nurse doesn't know important information related to their job, or, in the alternative, doesn't know what she doesn't know.
Misconduct is also a basis for discipline, but usually it must be misconduct that occurs "in the performance of the functions or duties," of the nurse. So, if a nurse issues a bad check and is convicted of a misdemeanor offense of passing a bad check, it should not result in license discipline because the misconduct did not occur on or related to the job.
Similarly a nurse who makes false statements to the Unemployment Office in order to obtain benefits may be dishonest, or may be making a false, fraudulent or misrepresenting statement. But since she isn't doing it on the job, and since it relates only peripherally to her job, it doesn't count for purposes of licensure discipline.
Where state boards often go with discipline, however, is the catch-all relating to violation of a professional trust or confidence. In one recent case the Board of Nursing said that the violation of a hospital policy regarding the Pyxis system was, in effect, a violation of a professional trust or confidence. While in some cases the violation of a hospital policy might be the violation of that facility's trust in the nurse, it is not automatic. For example, almost all facilities have a policy that requires employees to be on time for work. Failing to be on time is a violation of a facility policy, but it isn't a violation of the facility's professional trust. Similarly, most facilities have a policy that requires their nursing staff to bring in renewed nursing licenses when received from the Board of Nursing. A failure to bring in a copy of the license might be a violation of a policy, but wouldn't be a violation of a facility's trust (absent some other fact like an invalid or suspended license).
A review of reported cases involving nursing licensure is instructive in this regard. In Board of Nursing v. Roberts,[2] the issue was whether writing an order for Ativan before actually receiving the order for Ativan over the telephone was grounds for discipline. In that case a patient's out-of-control behavior resulted in a narcotic being administered without a physician's order. The hospital suspended Roberts, and she did not return to work there. The Board of Nursing filed a complaint against Roberts and took the matter to hearing. The administrative hearing agency, however, gave Roberts the benefit of the doubt holding that confusion and reasonable assumptions led to the error. It stated:
Professional trust is the reliance on the special knowledge, training and authority of one who holds a professional license. Trieseler v. Helmbacher, 168 S.W.2d 1030, 1036 (Mo. 1943). Roberts' patients and coworkers had a right to expect that she would comport herself according to the accepted standards of the nursing profession. Certainly this includes the expectation that she and the staff she supervised would administer medication only in accordance with a physician's orders.
However, patients and coworkers also have a right to expect that a registered professional nurse will use his or her judgment in alerting an absent treating physician that treatment for which an order does not exist may be indicated. Roberts did nothing wrong in (1) assessing ND's state; (2) forming the opinion that she needed an injection of Ativan such as one recently administered to her; (3) calling Dr. Khan twice to obtain the order; or (4) assisting Long in restraining ND. She erred by writing the order before talking to the physician, but this was not the cause of the injection being given.
We find that Roberts did not violate any professional trust or confidence.[3]
The administrative tribunal held that the obligation of trust and confidence ran to the coworkers and patients.
In State Board of Nursing v. Burkett,[4] the licensee intercepted pharmacy stores of Dilaudid and appropriated them to her own use, presented a telephone order on hospital orders to the ICU in order to obtain Dilaudid, and gave her Pyxis codes to unlicensed and unauthorized personnel. Burkett was fired and reported to the Board for drug diversion. The Missouri Administrative Hearing Commission found grounds to discipline under § 335.066(12) stating:
Professional trust is the reliance on the special knowledge and skills that professional licensure evidences. Trieseler v. Helmbacher, 168 S.W.2d 1030, 1036 (Mo. 1943). The Board's witness testified that Burkett's employer and colleagues trusted her to follow hospital policies, which the conduct at Findings 3, 4, and 5, violated. We infer that such trust was based on her licensure as an RN. Therefore, we conclude that Burkett is subject to discipline under section 335.066.2(12) for her violation of professional trust.
In State Board of Nursing v. Banks,[5] the administrative tribunal found a violation of professional trust and confidence. The LPN in that matter worked at a skilled nursing facility and verbally abused two patients by threatening to kill one, and calling the other an "old ***." The tribunal said:
Professional trust is reliance on a professional license as evidence of special knowledge and skills. Such special knowledge and skills constitute a power imbalance between the professional and client, and abusing that power violates professional trust. Such trust is evident in O.P.'s request for Banks' assistance in returning to her room for bed. Banks' refusal of assistance and cruel retort to O.P. violated that trust.
Where violations of the relationship of professional trust are found, it is normally in a situation like that found in State Board of Nursing v. Hallowell[6]. In that case the nurse was fired from multiple hospitals and nursing homes in nearly every instance for diverting narcotics. How the nurse continued to be hired when her work record was clearly pock-marked with all the indicators of drug abuse is rather astonishing. Nevertheless, when the Board caught up to her, the state disciplinary tribunal found, not surprisingly, that the serial diversion of narcotics was a violation of professional trust.
Sometimes a colleague or co-worker will ask a fellow employee to "cover" for them, either by signing out a medication, indicating that they saw a drug wasted, or by making annotations in the record that they did not personally witness. In the cases where these problems have arisen, in most cases the clinicians said "I just didn't think it was any big deal." Time later proved them wrong because the other co-worker, despite being a trusted employee, turned out to be diverting drugs, abusing patients, or stealing from the residents. The supervisory nurse was on the hook for signing documents when she did not actually witness the events that the documents recounted.
Take note of this: the Board of Nursing will come after your license if it can be demonstrated that you (1) falsified an entry in the medical record; (2) engaged in dishonest conduct on the job; (3) made a fraudulent entry in a medical record; or (4) violated the trust of the facility where you work by engaging in conduct that adversely affected the interests of the facility.
Never cover for another co-worker, even if you are sure they're telling the truth. Never assume another co-employee is telling the truth. Never put your license at risk. The cost is simply too high.
[1] Tendai v. Mo. St. Bd. of Registration for Healing Arts, 171 S.W.3d 358 (Mo. banc 2005).
[2] Missouri Administrative Hearing Commission report # 00-1197-BN, (Ad. Hrg. Comm'n, Feb. 28, 2001)
[3] Id., slip op. at 6-7
[4] Missouri Administrative Hearing Commission # 02-0457, Ad. Hrg. Comm'n. (Dec. 23, 2002)
[5] Missouri Administrative Hearing Commisison # 05-1153, (Ad. Hrg. Comm'n. Nov. 13, 2007)
[6] Missouri Administrative Hearing Commission # 00-2118 (Ad. Hrg. Comm'n , Jan. 26, 2001).