Legal Speak

Series: Nurse on Trial, Part 2

2008-06-26T17:22:00Z

Most nurses believe that when the Board of Nursing investigates, that nurses conduct the investigation. They believe the people who will judge them have full access to all the facts, act honestly and fairly, and make their decisions on the basis of evidence, not bias. If that were only true.

When the Vice President of the hospital made the report to the Missouri Board of Nursing, she was talking to old friends. The Vice President had been a sitting member of the Board for many years prior to the Neely event. The message communicated to the Board was simple and clear: Mark Neely was fired for "drug diversion."

Drug Diversion has a set meaning. It means taking drugs from the hospital for personal use (or sometimes, sales). When she made that allegation about Mr. Neely, the Vice President had no proof that drug diversion had actually occurred. But the complaint made its way to the central investigations unit and an investigator, a former police officer, was appointed to conduct an investigation. The investigator did not know anything about drugs, pharmacology, medical records, or intensive care nursing when he started the investigation. It is arguable that at the end of the investigation, the investigator was equally clueless.

The hospital made the report to the Board of Nursing in March after the termination. Shortly after making the report, the hospital called the Board and told them that they had physical evidence, including the Sharps containers, syringes, and Diprivan bottles, and wanted to know if the Board wanted to take possession of the evidence. The Board said to photograph it and retain the photographs. This decision, likely made by an administrative person rather than an attorney or investigator, in the end proved fatal to the Board's case.

The investigation began, eight months after the events at issue, by talking to the unit manager and the Vice President of Nursing. During that interview the Vice President told the investigator that the hospital "cannot absolutely prove that Mark Neely gave Diprivan to his patients." One nurse told the investigator that Patient 1 was very obtunded on the day after Neely cared for him. She also told the investigator that Patient 2 was very obtunded on the day after Neely was his nurse. She then told him she was curious about these changes, looked in the Sharps containers, and found to her surprise Diprivan bottles and syringes.

Neely, by this time over his anger at the hospital for the way he had been treated, was fully aware that his license was at stake, and hired counsel to go with him to the interview. He denied giving any Diprivan to patients. He did not recall getting out the Diprivan. The Board investigator, apparently believing that only guilty people hire attorneys, was not convinced. In his report he noted that the Hospital could show the following:

The Pyxis records showed Diprivan was taken out under Mark Neely's name and password.
The other nurses claimed they didn't get any Diprivan from Neely.
When they looked in the Sharps containers, they found used bottles of Diprivan in the containers.
The nurses said the patients were badly obtunded at 0800 after Neely left the hospital at 0630; and
The change of consciousness was likely due to Diprivan administration.

This was apparently all the Board investigator needed to see. Importantly, the Board never got a copy of the patients' medical records. It never sought independent review of the file by another nurse to determine if there was cause for discipline. In fact, as the case would progress, only witnesses associated from the hospital would be proferred as expert witnesses in the case.

The investigator sent the file to the Board with the recommendation that the Board file a complaint against Neely's license. While the investigator had the authority to say he believed their was misconduct, only the Board could actually vote to file a complaint.

Several months later the Board acted and voted to file a complaint. The file was passed to the Attorney General. The Attorney General tried to coax Neely into a settlement. Neely steadfastly maintained he had done nothing wrong. The negotiations drug on. After nearly three years had passed since the incident, the Board finally offered Neely a "public censure."

In my next blog post, we'll examine what happened when Neely agreed to censure but tried to obtain his legal right to judicial review.

Series: Nurse on Trial, Part 1

2008-06-23T20:25:00Z

On January 22 and 23, 2008, Nurse Mark Neely, RN, a competent, capable, and hardworking critical care nurse in Missouri went on trial for his nursing license. In the next few blog posts I am going to tell you his story, and how the Missouri Board of Nursing engaged in one of the greatest miscarriages of justice in the Board's long history.

The story is long, and will be told in installments. At the end of the tale you will likely understand how few safeguards Boards of Nursing employ in how they discipline licensees, and how innocent people often get caught up in the machinery of government.

The night shift beginning at 7 pm on March 12, 2004, was like any other for Mark Neely. He had two patients in the Cardio-Thoracic Unit or CTU. They did not experience any problems, and he spent his time caring for them and helping other nurses with their assignments. "There was nothing unique about that night from my memory," he said.

The next evening, March 13, 2004, when he came in a few minutes early for his 7pm shift, he was met by the manager of the unit and the Vice President of Nursing. They showed him a Pyxis record that indicated he had gotten out two bottles of Diprivan. He did not recall doing so, but told them it must have been to have helped out a colleague. They then told him "no, we checked with everyone, and none of them asked for your help." Diprivan was not a controlled substance, and it was not even inventoried. He told them honestly that he didn't know what had happened to the Diprivan. They asked him if he had given it to his patients.

"Neither one of my patients was on a ventilator, so they knew the answer to that was no. That's what I told them," Neely said. At that point the manager told Neely that the two patients he had been caring for had been found obtunded after his shift, and one had been so badly obtunded that it was necessary for that patient to remain in the CTU rather than be transferred to a floor bed. They told him they believed he had given the two bottles of Diprivan to his patients.

"I felt like I was in a Twilight Zone episode," he said. But it kept getting worse.

"We found a used bottle of Diprivan," the unit manager told him, "in both of your sharps containers in your room. There were syringes with what looked like Diprivan in them."

Neely protested his innocence, explained he didn't put them there, and wanted to know what was really going on. The hospital, he was told, was suspending him pending a review with an eye to termination. They sent him home, and fired him a day or so later.

"I was stunned," he said. "I had been a loyal employee. Both the manager and the Vice President of Nursing had written me letters of recommendation for CRNA school only weeks earlier. I could absolutely not figure out what had happened."

Neely filed for unemployment and was turned down. His wife was pregnant with their second child. She was not working, and now he was not working. He filed an appeal of the unemployment determination and fought it as hard as he could. He had seen the Pyxis records, but he'd never seen the medical records or medication administration reports. The only thing he could figure was that he had checked out Diprivan for one of the other nurses, and that the nurse had simply forgotten about it. In his appeal he stated "while it is true I checked out the Diprivan for another nurse..." It was a statement that would come to haunt him later. Worse, it didn't help him before the coldhearted judge at the Unemployment Commission who ruled that no matter what his defense, he was discharged for cause and was not eligible for unemployment.

He finally found a job at another facility, and later moved to a large metropolitan hospital so that he could continue critical care nursing. As his financial condition began to improve with a new job in a new town, the second body blow came: the hospital had reported him to the State Board of Nursing.

In my next blog post, we'll detail the results of the Board's investigation.

Stop Digging!

2008-06-09T17:24:00Z

It is truly unfortunate that the selfless work of thousands of nursing home executives around the country every day goes unnoticed. The administrators who run to the bank for their residents, who arrange special services, and who go the extra mile to make sure that their residents receive proper care must cringe every time they read about nursing home horror stories.

It's an old saying, but one that bears repeating. When you find yourself in a hole, the first step to getting out is to quit digging. Sometimes the bad apples in the nursing home administration business just never seem to get that message. One recent and notable example is Billie Faye Anderson, a Tennessee nursing home owner convicted of Medicaid Fraud.

Billie Faye went on trial in Tennessee last year. It seems that the nursing home she owned and operated, Anderson Healthcare Inc., did not have a physician on staff as a medical director, Anderson knew it, but concealed the fact from the government in order to continue receiving payments under the Medicaid program. There is some question about how long the home went without a medical director. But Anderson was indicted and had the option to plead guilty or go to trial. She chose to go to trial.

Very few federal fraud cases actually go to trial. The government will usually make a deal that will lessen the sentence for the accused, and it is rarely smart to take a matter to trial and miss out on the substantial reductions in sentencing that apply when the court accepts a plea. Despite what you will read from defense attorneys employed to paint a rosy picture for their clients, most of the fraud cases brought by the government in the area of healthcare fraud are meticulously put together and meritorious. But, as noted, some people just can't put down the shovel, and it appears that Anderson just kept digging.

In order to avoid a conviction, Anderson took the stand in her own defense at trial. Like shaking a bottle of nitroglycerin to see what's in it, juggling with hand grenades, or playing Russian Roullette with a semi-automatic pistol, the risk to the defendant in taking the stand is usually simply too great. In most cases lawyers do everything but throw themselves in front of the client to prevent them from taking the stand. But the law says they have a right to take the stand and defend themselves, and lawyers cannot prevent them from testifying. Lawyers have an obligation, however, not to put on evidence they know to be false.

Anderson apparently took the stand in her own trial and told the jury that she had two doctors who agreed to be the medical director, but that one of them died before trial and wasn't available to testify. The doctor's son, however, said he knew of no such agreement. The second physician, whose document apparently appeared on a piece of paper purporting to name him medical director testified he didn't have an agreement with Anderson.

These kinds of contradictions in testimony do not go unnoticed by federal judges. In Anderson's case District Judge Ronnie Greer was not amused by the testimony of Mrs. Anderson, and was quoted in media reports as saying he found it unreliable. Those same reports stated that Greer believed Anderson had offered the testimony with the intent to willfully provide false testimony. That's not good for Ms. Anderson.

Under the federal sentencing guidelines an offense, like Medicaid fraud, has a certain number of months that a defendant can be made to serve if convicted. In the situations where the defendant pleads, or cooperates, and provides testimony, a downward departure, sometimes including probation, is available to the judge to reward honesty. On the other hand, when a defendant fails to cooperate, fails to show remorse, fails to make restitution, or willfully obstructs the judicial process, the judge can enhance the sentence with additional months. This is what the judge will do with Anderson.

In most cases there is only one proper response in a criminal matter. Get good legal help and take the advice given. Tell the truth when asked. In this case, had the defendant told the truth, there is a good chance that the jury might have acquitted the nursing home owner on the basis of intent, since the judge found that the nursing home owner didn't have criminal intent during the entire period at issue. But by getting up and lying in order to have a complete defense, the defendant managed to create a bigger mess than she would have otherwise faced.

The story is on the web at: http://www.timesnews.net/article.php?id=9006645

What Were They Thinking?

2008-05-15T14:30:00Z

Have you ever looked at a product and thought, "What on earth were they thinking?" While some gadgets like the Pocket Fisherman are just a little nutty, there are others that make me wonder what the inventor's world view is.

There is a device that can be ordered off the internet that is, in effect, a booby trap designed to protect personal property from theft. The device unleashes a fog of aerosolized pepper spray when it is tripped. See http://defensedevices.com/terminator.html The manufacturer recommends it to force intruders out of an area quickly and suggests that it is ideal to defend rural and unoccupied premises.

Any health care worker must understand the danger inherent in such a device. Persons with lung disease or asthma who encountered such a device might well be killed. Because the manufacturer suggests that it could be used to protect cars, boats, and other items of personal property, it is possible that small children might very well be exposed to it. And while police officers are trained to use pepper spray to neutralize violence, they would never use such a device on a small child or an elderly person. Yet, a confused nursing home patient might well wander into a situation where they would be exposed to pepper spray device.

Where a person uses lethal force to protect property, it can never be simply to deter a trespasser or burglar. The law requires that the only time lethal force may be used to stop a trespasser is when the trespasser is threatening lethal force against the property owner.

In this regard a case from Iowa is interesting. In 1957 the defendant, Bertha L. Briney, inherited her parents' 80-acre farm in southwest Iowa. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, from 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and ‘messing up of the property in general'. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved. On June 11, 1967 defendants set ‘a shotgun trap' in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney's suggestion it was lowered to hit the legs. He admitted he did so ‘because I was mad and tired of being tormented' but ‘he did not intend to injure anyone'. The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant. While hunting in the area he found the uninhabited house covered with high weeds. Prior to July 16, 1967 plaintiff had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the day in question they entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

The defendant believed it should not be liable since the plaintiff was a trespasser. The court held otherwise saying:

"The value of human life and limb, not only to the individual concerned but also to society, so outweights the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in [Section 79], no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present."

Using a device like a pepper fog generator not only creates liability for the person that buys it and uses it on their property, but likely for the manufacturer too since it is designed to inflict injury on trespassers.

So what does all this have to do with nursing and nursing homes? It is a normal tendency to take the path of the least resistance when dealing with problems that tend to repeat themselves. The best products aimed at making residents safer (like anti-elopement devices and bed alarms) do not do any good if they are bypassed or not properly used. In an article called Crying Wolf, Dr. Stephen Lawless wrote that alarms in an ICU that continually sounded defeated the purpose they were intended for because they trained nurses to disregard alarms.

At a recent inspection a nursing home was found to have padlocked the emergency exit (protected by an anti-elopement alarm) because residents were continually setting off the alarm. The idea behind the staff's quick and simple solution of a padlock was that they wouldn't have to go answer the alarm if the residents couldn't open the doors.

Like the spring gun and the pepper spray fogger, however, this simple fix carried with it a risk that anyone should have foreseen: in the event of fire the padlocked exit would be worthless for evacuation purposes.

Fortunately for the home, they were only cited and paid a fine. No one died in a fire, and no lawsuits were filed. The problem was remedied with a more sophisticated anti-elopement alarm. Nursing homes must always be on the lookout for problems that are created by essentially solving one problem by creating another.

* Katko v. Briney 183 N.W.2d 657, 47 A.L.R.3d 624 (Iowa 1971).

The Unsung Heroes

2008-04-29T17:16:00Z

This week I would like to take a moment to say hello to some people who do not know me or the local legal professionals where they work. These are the thousands of facility operators, managers, administrators, nurses and clinicians who operate nursing facilities that not only comply with the law, but go beyond the minimum standards imposed by the local state and federal regulations. They are the unsung heroes you don't see on the local news.

"Man bites dog" - that makes news. "Facility reduces falls by 90%" - that usually doesn't make news. And that's an oversight that should be corrected.

Readers of this blog find numerous citations to the hundreds of bad things that go on in nursing homes. Residents are sexually assaulted, have their belongings stolen, and their bank accounts emptied. These stories make the news. These stories draw the attention of the media because they are so bad. So when someone talks to me about why I write about these terrible events I usually say it is because those are the stories that provide the best lessons in the law. Sure, it may rub some salt into a wound, but the illustrations are helpful to those who want to do the right thing. It is the truth of what I do.

But recently the shoe, so to speak, has been placed back on the other foot. I have recently been forced to watch a group of trial attorneys in Mississippi plead guilty to bribing a judge. It is a sad affair, a noteworthy trial attorney who forced big tobacco to the settlement table brought down by the stupid actions of the lawyer he hired. The media makes it sound as though judicial bribery is a common occurrence, and also that it only occurs with plaintiff's lawyers. I can assure you it is both rare and an equal opportunity offender when it occurs.

No one spends three years getting a law degree only to throw it out the window by trying to bribe a judge. But with the media, perception is often reality, and so the reality for lawyers in the recent days has been that we are assumed to be driven by financial gain, motivated by greed, assume that ethics is an optional course in law school, and are generally bent on bringing down civilization as we know it.

Yet, for every lawyer that is accused of wrongdoing, there are hundreds more in the bar who are working to achieve social justice. Like the nurses and administrators who do their best for facility residents, these lawyers spend their own time and often their own money trying to help people with legal problems.

On a regular basis, lawyers donate their time to people who cannot pay. Recently, a gentlemen had trouble with a collection agency who had sued him on a debt that was eight years old. The debt was barred by the statute of limitations, but the lawyers on the other side had left these dates off the petition so as to get a default judgment by the Court. The young man was a state employee making barely more than minimum wage. He did not have the $2000 retainer our firm requires on routine matters. So I undertook his cause without charge. I did that because it was the right thing to do, and I am far from alone in doing that.

In Cole County, Missouri alone, every year lawyers for the Legal Care project donate thousands of hours to help the indigent. Every day members of the legal profession do charitable work by representing civic associations (ballet companies, theatre groups, alumni associations, etc.) for free.

But, how would the general public know that? Unless they were members of the associations, or were married to members of the bar, they'd be uninformed because most of the time lawyers do not talk about what they do for free.

So, it occurred to me that I was guilty, with respect to nursing facilities, of always talking about the bad facilities that give bad care, and not the fine facilities that provide better patient care than anyone else in the region. And there may be some terrific lessons to be learned from those stories too.

You see, I know you're out there. I would love to hear about the facilities that exceed the standards from the people doing that exceptional work. And I will reflect their stories here. Contact me off line at aldewitt@aldewitt.com and I will pass along those who are out there leading the pack.

Code of Ethics

2008-04-15T14:29:00Z

One recent trend among trial lawyers is to cross-examine witnesses on the stand with their association's code of ethics. The ANA has a very complete code of ethics, and it is doubtful that many nurses know it as well as they should. The problem with not knowing the code of ethics is that at some point every nurse has to make tough choices, and without a good basis in the ethics of the profession, that's hard to do.

Provision one of the ANA code says:

"The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems."

As a trial attorney, that lofty sounding position gives me a lot to work with where there has been a suggestion that a nurse has been less than compassionate, less than respectfull, or was restricted by considerations of a person's economic status or personal hygiene. The following excerpt is from a deposition of a nurse in a nursing home case. The nursing home was eventually sold and the company that owned it put out of business. The CEO and the Chairman of the Board were both sent to federal prison. So what follows is awful. But it illustrates how the code of ethics can be used to illustrate just how bad a nurse's failure was.

The nurse being deposed is the director of nurses. We will not use her name because she was honest, because she was in a horrible situation, and because she should not be held up to ridicule. For the same reason, I won't identify the facility. The violations occurred ten years ago, and the facility has changed hands. Hopefully the nurse has found other employment.

12 Q. (By Mr. ___) I want to recite for you a

13 portion of the American Nurses Association code of

14 ethics and ask you whether you agree with it, okay?

15 A. Certainly.

16 Q. "The nurse's primary commitment is to the

17 patient, whether an individual, family, group or

18 community." Would you agree with that statement?

19 A. Repeat it for me.

20 Q. "The nurse's primary commitment is to the

21 patient, whether an individual, family, group or

22 community." Would you agree with that statement?

23 A. I agree that the nurse's primary

24 responsibility is to the patient. I don't know how the

25 second part of the sentence applies, but --

1 Q. Fair enough. You would agree then that the

2 nurse's primary commitment is to the patient, fair?

3 A. Yes.

4 Q. Let me ask you about this ethical statement.

5 "A fundamental principle that underlies all nursing

6 practice is respect for the inherent worth, dignity and

7 human rights of every individual. Nurses take into

8 account the individual needs and values of all persons

9 in all professional relationships." Do you agree with

10 that ethical statement?

11 A. Yeah.

***

18 Q. And do you agree with it?

19 A. I think so, yeah.

20 Q. Okay. You said you think so. I just want to

21 give you an opportunity --

22 A. Read it again. Let me listen.

23 Q. Let me just read the first portion of it, and

24 see if you agree with that statement. "A fundamental

25 principle that underlies all nursing practice is respect

1 or the inherent worth, dignity and human rights of every

2 individual." Do you agree with that statement?

3 A. Yes.

***

18 Q. And that there is a recognition in the code

19 of state regulations and in the code of federal

20 regulations that governs your contact, that each person

21 is entitled to that dignity and respect and the highest

22 degree of care practicable. Do you agree with that?

23 A. Yes.

24 Q. And that's the obligation that you have as a

25 nurse with charge over those residents to make sure that

1 that is carried out; isn't that true?

2 A. Yes.

3 Q. Let me ask you this question. Does

4 permitting a patient to lie in their own urine for up to

5 eight hours in any way show respect for the inherent

6 worth, dignity and human rights of an individual?

7 A. No.

8 Q. Does permitting a patient to lie in their own

9 *** and letting them get the *** on their hands and

10 in their hair in any way show respect for the inherent

11 worth, dignity and human rights of that individual?

12 A. Repeat that for me.

13 Q. Does permitting a patient to lie in their own

14 *** and permitting them get the *** on their hands

15 and in their hair in any way show respect for the

16 inherent worth, dignity and human rights of an

17 individual?

18 A. Within the confines of a nursing home, it

19 can't always be prevented.

20 Q. Does permitting a patient to lie in their

21 *** for hours at a time in any way show respect for

22 that person's dignity?

23 A. No. I think we discussed that already.

24 Q. Well, we discussed it in the context of

25 someone laying in their own urine for hours, and now I'm

1 asking you if you permit a patient to lie in their own

2 *** for hours at a time, that would not show respect

3 for their dignity or worth; would it?

4 A. No, it is not.

5 Q. And that is something that is preventable; is

6 it not?

7 A. Yes, to lay there for hours is preventable.

There were numerous other awful examples of patient neglect that were recited. The nurse testified honestly that the facility and its nurses did not live up to the ethical codes of nursing.

The impact of such testimony on a jury is difficult to understate. The nurse admits that she agrees that human dignity is important, but that it can't always be maintained. Her attempt to separate out skilled nursing facilities by saying "it can't always be prevented" merely opened the door for the lawyer who pointed out the things that could be prevented.

Most nursing home cases are not as serious and the conditions are not as hellish. But imagine how these questions could be used in a deposition where the allegation is a failure to monitor the patient for falls? "Would failing to answer a call light for thirty minutes for a patient with a history of falls in any way show respect for the inherent human dignity...."

If it's been a while since you've looked at your professional code of ethics and responsibilities imposed by your state's statutes, it is a good idea to take a look at that today and do so. If it has been a while since there was an inservice on ethics, there is no time like the present to hold that inservice. Ethical questions are interesting, stimulate discussion, and often lead to quality improvement in well-run organizations. Those pay dividends in the long term.

The Best Hospital in America

2008-04-03T15:26:00Z

In a few weeks Advance for Respiratory Care Practitioners, the magazine that I started off with in 1988, will be celebrating its 20^th year. This made me think back to the times in my life when I was a caregiver and the many different places I worked, including:

Mary Lanning Memorial Hospital, Hastings, NE
Kirksville Osteopathic Hospital, Kirskville, MO
St. Mary's Hospital, West Palm Beach, FL
Blessing Hospital, Quincy, IL
Mt. Sinai Hospital, Hartford, CT
St. Charles Hospital, Oregon, OH; and
Vencor Hospital, St. Louis, MO

While I learned many things (both good and bad) at many of these places, two of them are special because they were the places that formed the core of my beliefs about what is both good and bad in the health care professions.

St. Mary's Hospital in West Palm Beach, Florida, was located minutes away from Riviera Beach, a popular spot for tourists and a place where thousands of "snow birds" sought respite from the cold climate up north. The hospital was a 350 bed facility and it was run by a religious order that cared a great deal about meeting its calling to provide care for the suffering and disenfranchised.

It was there, as a therapist, that I practiced my very best respiratory care as a clinician. I worked with neonates, attended deliveries, went on transports, worked in the emergency room, and hung out for long stretches in the ICU and CCU. At one time a fellow therapist, a lovely young lady named Victoria Parks, taught me that it was easy to make iced tea in a graduated cylinder, and we frequently walked through the ICU drinking our tea from the same type of receptacles that nurses emptied their Foley bags into.

We made sure never to leave one in a patient's room, however. We were probably too cute for our own good, but even today that memory makes me smile. But it wasn't all fun and games: Vickie and I worked a lot of 18 hour days in that ICU, and did a lot of good with a lot of people. St. Marys' was the place that made me proud to be a therapist, and I wept like a child when the day came to move on.

Blessing Hospital, in Quincy Illinois, was the hospital I went to after St. Marys, and it was where I learned to be a manager. I had expert tutelage from Harry Wolin, my vice president, and eager assistance from my second-in-command, Rebecca Bean. What made Blessing such a great place to work (other than the two people just mentioned) was its focus on what was good for the patient - not just in terms of medicine. If you wanted to raise the cost for a procedure, you had to justify it, and it had to be approved by a board committee before being implemented.

The board at the hospital constantly sought to keep health care costs down - a far cry from what many boards do today. Blessing was the best hospital I ever worked for, and probably at that time the best hospital in America. It owed that to a man named Larry Swearingen, who was the CEO and who ran the organization like it was personal to him. It was never just a job to Larry. He cared, and everyone who worked for him knew it.

So here's the legal angle to all of this. Great organizations, that are well managed and encourage the best in performance from their clinicians and staff, these are the facilities that are rarely sued, and even more rarely, will a jury render a verdict against them. This is because juries like people who try to do their best for the patient, even if they might accidentally make an error now and then. I always say the best insurance policy is a good patient relationship, and Blessing proved that over and over again.

On the plaintiff side of the aisle we say that unless the jury likes your client, they won't help your client. The same is true on the other side. If the jury doesn't dislike the defendant, they are less apt to make a finding against them. When an organization cultivates a culture of excellence like St. Mary's, or a culture of community trust, like Blessing, the payoff is never visible in the balance sheet as a separate line item. But it is very much visible in the bottom line.

Just Sign Off on This...

2008-03-27T17:21:00Z

"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).

The Technicality

2008-03-20T17:17:00Z

"I just don't understand how someone can be a murderer, and a court can just let them out of jail on a technicality."

My friend who made that statement had seen media reports about a young woman whose murder conviction was overturned "on a technicality."

Like medical shows that demonstrate patients converting from asystole to sinus rhythm after defibrillation, the television media is often more interested in telling a story than understanding the legal basis for appellate action. Because it is important to understand the process, I thought I might devote this post to explaining "technicalities." Frequently when a state or federal appellate court overturns a conviction on appeal, the media says that the conviction was "overturned on a technicality."

The inference is that some hyper-technical application of law resulted in an injustice and allowed a guilty person to walk free. In most cases, when an appellate court overturns a conviction, it normally means only that the government will have to try its case a second time. It usually does not result in the release from confinement of the person who appealed. In many instances, in order to avoid the expense of a new trial, and in recognition of the exceptionally long times it takes to get an appellate opinion, state's attorneys will simply enter into an agreement with the offender to allow them to plead guilty to a lesser offense and get out of jail with "time served." Often when the media report these events they characterize them as a miscarriage of justice. But a study of appellate opinions would suggest that in most cases they are anything but.

Take the case of Christy Weatherford Cole, a young woman from southern Missouri who was convicted of second degree murder under what lawyers call the "felony murder rule." Under the rule, a conviction for a felony that leads to the death of another is all it takes to lock the offender up for life, even if the offender had nothing to do with the death other than being involved with some other crime. The rule was meant to encompass the situation where two burglars enter a residence to steal, are surprised by the owner, and the owner is shot by one of the offenders. The offender who shot the owner will face charges for murder in the first degree. The other offender is charged with the owner's murder (second degree) under the felony murder rule. In this situation but for the criminal act of the two conspirators, there would be no death. It seems fair to charge murder under these circumstances.

Unfortunately the application of the rule is often extended well beyond its original intent, and often with palpable injustice. Certainly this is the case in Ms. Cole's case where the felony was child endangerment, and the murder was committed by the woman's abusive boyfriend. The Court described the events on the day at issue as follows:

In March 2003, [boyfriend] was living with defendant and her three young sons. Defendant's three-year-old son, William, argued with his mother about having a drink of soda pop before eating his meal. Defendant did not want William to consume liquids before eating. She was concerned that he would not eat if he consumed liquid before his meal. [Boyfriend] was angry about William arguing with defendant. William was stomping his feet. This aggravated [Boyfriend] more. He told defendant to send William to him. [Boyfriend] undertook to discipline William by picking him up and laying him across his lap on his back. [Boyfriend] had his hands around William's neck. The back of William's head was pushed against a table next to the chair where [Boyfriend] was sitting. [Boyfriend] threw William across the room. William went limp. Defendant put clothes on William and she and [Boyfriend] took William to the ambulance shed in Gainesville, Missouri. William was then taken to the Gainesville Clinic where he was examined by medical personnel. Following examination, William was transported by helicopter to a Springfield, Missouri, hospital where he was diagnosed as severely neurologically depressed. A CT scan revealed retinal bleeding and subdural and subarachoid bleeding consistent with blunt force trauma. On April 1, 2003, William's injuries were determined to be irreparable. Care was terminated that day. William was pronounced dead late that afternoon.

State of Missouri v. Christy Weatherford Cole (the boyfriends name has been redacted)

Ms. Cole was a single mother with a boyfriend. Like many such relationships in families with altered family dynamics, the boyfriend was easily irritated by children, and frequently violent in disciplining the children. Cole appears to have been easily manipulated by the boyfriend. Although there was no evidence that the boyfriend ever previously caused serious injury to children, in this case he threw a small child across the room resulting in the child's death. He then prevailed on Cole to help him cover up his wrongful acts.

Cole was charged with the felony of endangering a child by placing him in contact with the boyfriend. The state charged a felony charge which required them to prove that Cole placed the child in danger "knowingly." The second count of the indictment charged felony murder based on the charge of child endangerment. In other words, by convicting the woman of child endangerment, the jury was also convicting her of murder.

The big issue at trial was whether Cole placed the child in danger knowingly, or whether she was merely criminally negligent. If she was acting with knowledge that exposing the child to the boyfriend would result in the child's injury or death, she could be convicted of the felony. If she was merely criminally negligent, she could only be convicted of a misdemeanor which would not invoke the felony murder rule. The evidence at trial was equivocal on a variety of issues, but certainly on the issue of whether the young woman acted with knowing intent reasonable jurors could have disagreed.

Cole asked for a "lesser included offense" instruction which would have let the jury consider the lesser misdemeanor charge rather than the felony charge. The trial judge refused to instruct, and the jury convicted the young woman.

This young woman was in an abusive relationship, and had been told by the boyfriend to lie to authorities when explaining what happened to the child. There was no prior evidence of abuse. There was very little from which a jury could conclude that Cole acted with anything other than negligence. In reversing, the Missouri Court of Appeals said:

Although there was evidence that [boyfriend] had struck William on past occasions in an effort at discipline, there was other evidence that it was not defendant's practice to place William in direct contact with [boyfriend] for discipline. Whether defendant's act of placing William in a position to be in direct contact with [boyfriend] demonstrated an actual risk as opposed to a potential risk to the child is a fact question the jury should have been permitted to decide. Had the jury been instructed on endangering the welfare of a child in the second degree as a lesser included offense, it could have determined whether defendant's actions knowingly subjected William to an actual risk of serious harm or whether her actions were criminally negligent so as to present a potential risk to William. Manifest injustice or miscarriage of justice occurred by the jury not having the opportunity to analyze the evidence in that regard. Point III is granted. The conviction of endangering the welfare of a child in the first degree is reversed. Because defendant's conviction of murder in the second degree pursuant to Section 565.021.1(1) is dependent on a supporting conviction of a felony, that conviction is reversed.

State of Missouri v. Christy Weatherford Cole

While it may sound somewhat technical to distinguish between an intent of "knowing" and an intent of criminal negligence, that is exactly the purpose of appellate courts, and the Court here reached the right result. The loss of a child is a tragedy that transcends mere bereavement. This woman not only lost her child, she lost her freedom when the evidence established at most that she made a bad decision on a bad day. She may have been guilty of bad taste in boyfriends, but she surely never meant for harm to come to her child.

Appellate courts are in place to prevent the justice system from acting out of emotion and a desire for retribution. When trial courts make mistakes, the appellate courts correct them, not by setting the offender free, but rather, by making the courts give the state another chance to prove guilt beyond a reasonable doubt under terms that are fair. An appellate court requiring the state to prove its case under fair terms, and give the accused the benefit of the presumption of innocence is not a technicality. It is a safeguard built into the system to protect innocent persons.

That's one technicality we should all remember.

Suspicion

2008-03-07T20:13:00Z

Elvis believed that “we can’t go on together, with suspicious minds.” While that might be a great approach to songs and relationships, it is a bad approach to managing anything involving vulnerable senior citizens. Suspicious minds are always an asset!

It is unfortunate, but true, that as people age they become more dependent on others for their care. Often they make unwise decisions about financial matters, and as dementia sets in they can’t be counted on to attend to even their most basic needs. Fortunately there are caring people in the Long Term Care industry who merge their desire to help these vulnerable seniors with a solid business plan. The Long Term Care provider gives the seniors a margin of safety and enables independent living for those who might not be able to live independently otherwise.

Although it isn’t apparent from watching an episode of Cops on TV, criminals are not always as dumb as they look. They recognize that old people often have amassed sizeable savings and can be easily conned. Posing as housekeepers or health care workers, they steal the elderly blind. Sometimes, when the elders can’t be duped into parting with their money, a more violent side emerges. Threatening physical violence against the elders, or their families, criminals know that seniors can often be forced to part with all that which is precious. It is for these reasons that suspicion is a good thing when interviewing new employees in the long term care industry.

Once, when I worked in a hospital, I hired an employee on the advice of a supervisor who really liked the girl. The new employee set off alarm bells when I interviewed her. I couldn’t point to any one thing that the woman did, but something in my gut told me that the woman could not be trusted. Over the years, I have learned to listen to my gut because the woman turned out to be a pathological liar. She routinely charted that she gave treatments that she did not give. Firing a pathological liar is hard, particularly when they have donned camouflage and made it past their probationary period. The experience taught me a valuable lesson. As Ronald Reagan said: trust but verify.

As managers, and particularly as clinicians, those in long term care must go the extra mile to protect the elderly. Most facilities check references, but references have become almost useless as companies refuse to provide qualitative data about employees for fear of litigation. Some agencies will only verify employment, and eligibility for rehire. Many will not state the reason for an employee’s discharge. Still others refuse to report fired employees to state boards for fear of being sued. For this reason simply doing a reference check that verifies employment is not enough. A smart employer will insist on getting some information from someone that deals with the employee’s performance and quality.

Still, it is not enough to just check references, particularly where state law requires a background check. Sometimes it isn’t even enough to do a background check based on name and social security number. Criminals often give false names and social security numbers so as not to show up on the state and federal databases where they are already barred from working in Long Term Care. So they borrow a cousin’s identity, or steal someone else’s identity because being able to work in long term care provides them with a ready pool of potential victims. For this reason, when getting a reference on a new hire, get a physical description too. If a former employer tells you Sally Jones is five foot tall, and your new employee is six foot two, you need to investigate further. If anything sounds suspicious, again, investigate further. Do not place a worker in unsupervised contact with the elderly if they do not come up clean on a full background investigation and thorough reference check.

It is also a good idea to place new employees with more seasoned employees who can evaluate the care and conduct of new hires. When management walks out of the facility at the end of the day, attitudes and demeanor often change. If that happens, management should know. If residents report thefts after a new employee is hired, care should be taken to isolate the new employee and carefully investigate the thefts. Any employee caught breaking the law must be referred for prosecution, and reported to the appropriate state agencies to protect other patients and residents.

Criminals are also very often skilled manipulators. They will offer all kinds of stories to explain long gaps in employment history or other “coincidences.” Every story should be checked out. When criminals have unfettered access to elderly residents, bad things are sure to happen. Recently two Chatham County North Carolina residents hired a housekeeper to do the cleaning in their Assisted Living Facility apartment. The housekeeper cleaned for them a few times and then demanded more money. When the couple refused, the housekeeper beat them to death, and very nearly killed the daughter of one of the couple who came to investigate after not being able to contact her mother. After the housekeeper’s arrest the news media reported that five years earlier a judge had barred the woman from ever working with the elderly again after she stole $5,000 from a 90 year old man in Durham. Had the Assisted Living Facility required a background check of all persons contracted by the residents it is likely that the criminal history and disposition toward violence would have been caught, and the residents protected.

Whenever a facility has a suspicion about a new hire, that new hire should not be placed in unsupervised contact with residents until their background check has been verified and their references have been checked carefully. And if anything suspicious turns up, the new hire should be removed from the facility until the issue is cleared up.

Depositions 201

2008-03-04T15:58:00Z

It is said that “assume” is the only word that makes an “ass” out of “u” and “me.” In a slightly more earthy comment, a drill sergeant of mine suggested that the word was the mother of all mistakes. Regardless of which way you remember it, remember that assume is not one of those things you want to do as a clinician.

Assumptions get clinicians in trouble in the hospital, and they also cause problems in court.

In dealing with patients, clinicians are taught to check assumptions. If you assume that an obtunded patient is unresponsive due to narcotics, you check that assumption by giving Narcan and by follow up. If you assume that a low pulse oximetry value is due to a breathing problem, you evaluate the chest. You only get into trouble with assumptions when you fail to test them.

A good example can be found in the current lawsuit brought by John Ritter’s wife (Amy Yasbeck) against the hospital where Ritter was treated when he was brought in with chest pain. In Ritter’s case, his chest pain was considered to be of cardiac origin, and a chest film was not obtained. Had a chest film been obtained it would have shown an enlarged aorta. t was an aortic dissection, and not a heart attack, that claimed Ritter’s life. But, because a heart attack is far more common, and because Ritter was not stabilizing, the doctors gave aspirin and anticoagulants – both of which would have been correct for a heart attack patient – and both of which accelerated the aortic dissection.

Another way you can get into trouble in a deposition is to assume that you know more medicine or physiology than the person deposing you. Most attorneys learn the medicine backwards and forwards before they attempt to depose a nurse, physician, or other clinician. While they may not have the same experience in the area of medicine that you as the clinician do, they will know the anatomy, the physiology and the pathophysiology of every issue or disease process in the case.

Recently, in a case, the opposing counsel sought to qualify its nurse witness as an expert on a particular drug. Counsel asked if the nurse was familiar with the drug, had used it, knew its side effects, and similar questions. When it was my time to examine the witness I walked up and placed a yellow legal pad in front of the witness and asked him to draw the molecular formula. He couldn’t. He couldn’t tell me how the drug was chemically described. He could not tell me what the “three compartment model” was with regard to the drug. All of these questions came right off the package insert, and a more seasoned witness would have simply said “we never use any of that stuff when we use the drug.” But instead, he got rattled and admitted he was no expert on the drug. So, never assume that the lawyer who examines you is going to give you softballs to hit.

Another assumption that leads to trouble is to assume that the case is about what you thing is important, instead of what the lawyer thinks is important. To you, the issue may well be the patient’s hypoxemia. But to the lawyer, the issues might be the failure to do assessments at particular times.

Before a lawyer comes to depose you, he has met with someone in your profession and he has prepared a list of questions based on what that expert wants to know. If you have access to medical records or other documents to prepare for the deposition, it is a good idea to review them and try to remember as much as you can about what happened. The lawyer who will be deposing you has put a lot of time and effort into the process, and he or she will be ready.

Depositions 102 - Leading the Witness

2008-02-28T17:23:00Z

ave you ever watched those legal shows and heard the objection "leading question" or "he's leading the witness" Have you wondered just what that means, and why it might be improper?

You're not alone. As I recently learned in an administrative hearing, many lawyers don't understand leading questions, how to use them, and when to use them.

A "leading question" is a question that suggests the answer. "You're a nurse?" Here the witness needs only say yes. Because the question suggests its answer, it is considered a leading question. Using leading questions, a lawyer can essentially testify for a witness and thereby avoid the problems that come with more open-ended questions.

Because there is some mischief that comes from letting lawyers do the testifying court, the rule is that during a person's direct examination they must be asked questions, and may not be examined using leading questions. A direct examination is where a witness is called by a party for the purpose of testifying for that party. When a witness has testified for a party, and another party examines them, that is considered cross examination.

A direct exam looks like this:

Can you please state your name?

John Doe

And where do you work?

Our Lady of Perpetual Billing Hospital

And what do you do there?

I'm a nurse

And on what nursing unit are you a nurse?

Medical-Surgical 4^th Floor....

The witness must be asked a series of open-ended questions and asked to testify from memory about what happened. If a questioner starts to lead his witness with specific questions, in most cases the other attorney will object.

What's interesting, however, is that once the witness has finished testifying by direct examination, the cross-examiner can use leading questions, and usually does so to great effect. For example:

You testified that you never saw Mr. Jones fall?

That's right

You weren't with him all night, were you?

No, I wasn't.

And in fact, you were off the floor on your meal break when he fell?

Yeah.

So you left this vulernable patient, to go off the floor, and while you were gone off the floor, that's when he fell?

I guess

When being deposed, or questioned by an attorney before trial, it is important to remember that you have a voice and can do something other than say yes or no if a leading question is asked. Although the lawyers job is to object, your job is to answer the question by listening to the question, thinking about the answer, and then giving an answer that corrects any improprieties in the question.

Suppose that you came in and found a patient on the floor. You assessed the patient, found that the leg appeared to be displaced, and concluded that there was a likely hip fracture. You took all appropriate steps to treat the patient and provide them with pain relief. In a deposition, a lawyer might try something like this:

You're a good nurse

I think so

You've taken care of lots of patients

Sure

You take pride in your nursing

Absolutely.

So, you came into the room

Yeah

You saw the patient

Yeah

And you knew right away the hip was broken, didn't you.

Now, the temptation at this point is to say "yes," because that's what you've been doing. The whole purpose of asking about what a great nurse you are (a subject the questioner knows you'll agree with him on), is to get you thinking about answering the questions with yes. It's easy. You fall into the habit, and then, when you maybe should analyze the question more carefully, you simply say yes.

In the example above, you can't "know" that the hip is broken unless you have x-ray vision. The only way to make that evaluation is radiographically. And so, the answer to the question is really "I saw what appeared to be displacement, but I do not make diagnoses of fractures, that's a doctor's job."

Nevertheless, nine out of ten nurses will say "yes," to the question, or will say something like "that's pretty much what I was thinking."

The problem with agreeing with the questioner during an examination before trial is not that you'll agree on the easy stuff like whether you are a competent nurse, but rather, whether you'll just get so comfortable talking to the lawyer that you forget that you're the one testifying.

Depositions 101

2008-02-20T21:39:00Z

“Are you nurse Corgan?”

“Yes I am.

“Here, you’ve been served.”

Across the country every day this happens to nurses who are witnesses in medical or personal injury lawsuits. Sometimes the lawyers just want to know how bad a person’s injuries were. Other times, they want to hang the clinicians out to dry for negligence. Irrespective of whether you’re being sought as a fact witness or a defendant, when you get subpoenaed to testify in a deposition or “examination before trial,” it is a serious matter.

Depositions are modified courtroom experiences. In most jurisdictions, lawyers can record your testimony not only by using a court reporter, who takes down everything you say, but also by video, which shows how you look, dress, and act during a deposition. Everything you say is taken under oath, and what you say can and will be used against you, or your employer, later on. There is no judge there to rule on the objections, and sometimes the discussions between counsel get really ugly.

If your employer does not provide an attorney to defend you in the deposition, then you need to obtain one. This is vital. If you fail to have an attorney to protect your rights, you may be told – erroneously – that you have to answer certain questions. Never, under any circumstances, go to a deposition without an attorney to look out for you.

If you have an attorney, he or she will tell you what to bring (usually nothing unless told otherwise), what not to bring, and how to dress. If you don’t have an attorney, then the rule is you go dressed like you were going to church, and you bring along with you any documents you have that are responsive to the subpoena (if one has been issued). If no documents have been requested, do not bring any.

While all lawyers have different styles and different personalities, in most cases depositions start out with very open-ended, very general questions. The lawyer asks your name, your spouse’s name, your address, and whether you have any adult children. While this seems invasive, the lawyer is trying to find out who you are related to in the jurisdiction in the event that some of those people show up on the jury panel.

The lawyer will then ask about your education, training, experience and employment history. These are often asked as just folksy “getting to know you” kinds of questions. Unless they think you haven’t been trained at all, they likely don’t care where you went to school. They ask it in order to put you at ease and build rapport.

Since I represent plaintiffs, I often tell them that the lawyer on the other side is not their enemy, but that doesn’t make him their friend. I always remind them that the other lawyer is the guy who gets paid to see that they don’t get paid. So, I counsel them to remain wary.

The same applies for defendants. The lawyer for the plaintiff gets paid only if you or your insurance company pay him some money. He may not be the enemy, but he surely is not your friend, and you get lulled into a false sense of security at your own risk.

One of the things that frequently comes up in a deposition is whether the clinician has an “independent memory” of the events at issue. In some cases, nurses will have such a memory. In other words, the events at issue stand out from the medical records and you can remember the patient and what happened on that day. But in many cases, the patient, the events at issue, and everything else about the case are lost to the tunnels of time, and the only thing the clinician has is what’s written in the patient’s chart.

This is the reason why charting properly is so important. Many times, at trial, the only thing that saves the clinicians, or in some cases, the only thing that kills the clinicians, is what they have written down.

Depositions are important because they preserve evidence for trial. In my next blog entry, we’ll talk about specific types of questions used in depositions.

Courts and Administrative Tribunals

2008-01-29T21:13:00Z

Most of us familiar with the system of justice in this country believe that courts make fair decisions based on the evidence, that innocent people don't go to jail, and that evidence is more important than innuendo in reaching a verdict. That is how courts are supposed to work. Rulings are made on evidence, and evidence is admitted only according to law.

Contrast that with an Administrative Hearing involving the Board of Nursing.

In a court of law the jury finds the facts, and the judge applies the law. The judge is there to rule on evidentiary questions so that the jury doesn't hear things it should not hear. In an administrative tribunal you get one commissioner who is both the finder of fact and the person who rules on evidence. So if he sees evidence he shouldn't see, it isn't like he can "unsee" it.

In the court, the rules of evidence apply. In the administrative tribunal, the rules of evidence apply "sorta." In other words, there are some rules that apply, some that don't, and many that are "catch as catch can." This makes it hard to know what evidence is admissible and what is not. Even seasoned trial lawyers often fail to appreciate the differences in administrative procedure.

The Board or other agency has the burden of proof, but honestly takes the position that the tribunal should just trust it on most things, like, for example, guilt or innocence. The Boards are often represented by state attorneys who have little or no background in health care, little or no understanding of health care records, and almost no understanding of any of the more technical aspects of patient care.

In a recent case the nurse was fired ostensibly for "drug diversion." Not realizing he was being reported to the Board, he filed unemployment paperwork. In it, he essentially explained what he had been told about why he was fired, and what he thought might have happened. Of course, he had no medical records at the time and had no way to know what really happened.

At the hearing the Board used these prior statements against him as "admissions," trying to make him look like a bad nurse.

So, here's the take away for today.

If a nurse, clinician or administrator is terminated under circumstances where someone is alleging misconduct occurred, it is vital to get legal advice before filing any complaints, requests for unemployment benefits, or other paperwork that might wind up being used against you later. Even if no one tells you that you are being reported to the Board of Nursing or the Board for Long Term Care Administrators, you should assume that a report will be made, and that the state will conduct an investigation. You should assume, just like they say on television, that everything you say "can and will be used against you." And, I might add, in the most glaringly unfair way possible.