My 2 Cents

Who Represents Nurses and the Nursing Profession?

See this post about Texas nurses debating the pros and cons of unionization. http://www.dallasnews.com/sharedcontent/dws/bus/stories/042308dnbusnurses.3b2e75d.html.

This is an excerpt from the article:

There hadn't been a nurses' union in Texas since the 1970s – until last month's vote brought one to a Houston hospital. Now it looks like Dallas will be the next battleground.

It was Dallas-based Tenet Healthcare Corp., the nation's third-largest publicly traded hospital system, that opened the door to nurses' unionization in this business-friendly, right-to-work state.

A March 27 vote at Tenet's Cypress Fairbanks Medical Center in Houston was the first successful union vote in Texas history, although an existing nurses' group here once operated as a union.

What will these mean for the Texas Nurses Association, which is the ANA affiliated professional association for Texas nurses? Will nurses migrate more so to unionization and union organizations now in Texas? Will the union efforts prompt nurses to join the Texas Nurses Association, which exists exclusively as a professional association?

I am not an alarmist however I will say this:

1. The majority of nurses don't support professional associations and the majority of nurses don't belong to a union. Why don't professional associations and nursing unions have the support of the 3 million RNs and LPNs in the country?    

2. Some ANA affiliated state nurses associations are running of risk of "not being considered the professional voice for nurses in a particular state." Why? If a nursing union like the CNA/NNOC or SEIU has more state-based members than a ANA-affiliated state nurses association, what happens? Does the organization with the most members in a particular state represent "nurses and the profession of nursing" in the state? Does it turn into a mines is bigger and larger than yours type thing?   

3. How does the current turmoil within the ANA Enterprise assist state nurses association which exist purely as a professional association, like the Texas Nurses Association or state nurses associations, like the Ohio Nurses Association, which exists as a union and a professional association? See my post the ANA saga and megadrama here. http://advocatefornurses.typepad.com/my2cents/2008/04/turmoil-once-ag.html

4. Survival. There's a song and verse, "only the strong can survive", "Its Called Survival." Can the ANA/State Nursing Associations, CNA/NNOC, UAN, and the SEUI all survive or thrive in today's nursing workplace? Or this is like Highlander, "There Can Be Only ONE." http://en.wikipedia.org/wiki/Highlander_(film)

What's your opinion?

See http://www.texasnurses.org/. This is the website for the Texas Nurses Association.

Testimony of a MSN Prepared Nurse Midwife Admissible

See Tabitha N.S. vs. Zimmerman, 2008-Ohio 1639. This was a wrongful death and survival action alleging medical malpractice and negligence against the hospital, physician, and OB nurses in the hospital.

In this case the appellate court found the trial court did not abuse its discretion by allowing a Nurse Midwife and former obstetrical nurse to testify on the standard of care for OB nurses as to alleged negligence of the hospital nurses in support of the claim against the hospital on the theory of respondeat superior in a medical malpractice action.

The nurse expert witness of the plaintiff was called as a medical expert. The nurse expert testified that she graduated from nursing school in 1976, and went on to specialize in obstetrical nursing. She also holds a master's degree in nursing. She worked as a registered nurse in labor and delivery until 1983, when she went to midwifery school; she then took and passed the exam required for certification as a nurse midwife. Since that time, she has worked as a registered nurse and certified nurse midwife. At the time of trial, she was working as a nurse midwife at a medical practice in Grand Rapids, Michigan. She further testified that she is also certified as a family nurse practitioner and works part-time at a medical office.

She is certified in fetal monitoring and is a member of the faculty at the College of Nursing at Grand Valley State University, where she teaches obstetrical nursing. She testified that as a midwife she monitors women prenatally, attends labor and delivery and provides care after childbirth. She further testified that she has cared for and evaluated women in pre-term labor and has performed vaginal examinations on pregnant women in order to assess pre-term labor. She also has experience in assessing whether a woman is having contractions, as well as in determining the position of a baby prior to delivery.

The defense objected to the testimony. The jury returned a verdict against defendants. A judgment entry awarding on the survival claim economic damages of $390,000 and non-economic damages of $500,000 and, on the wrongful death claim, the jury awarded compensatory damages of $2,000,000.

On appeal, the appellate court noted that an expert witness need only aid the trier of fact in the search for the truth and need not be the best witness on the subject.

The court noted the nurse midwife's testimony clearly set forth her many years of experience in the area of obstetrical nursing, including labor and delivery. Although the expert witness no longer working in a hospital setting, her experience in the field of obstetrical nursing was ongoing at the time of trial.

The appellate court found the nurse expert witness demonstrated that she had some degree of "specialized knowledge, skill, experience, training and education" in the field in which she sought to render an expert opinion.

Webinar for Future Nursing Leaders

Are you a nurse leader? Are you aspiring to be a nurse leader? Do you want to polish your skills to be a leader of nurses? What does it take to be a nurse leader in today's nursing workplace?

Consider attending this webinar.

See http://centerforamericannurses.org/tools/mayjune08webinar.pdf for additional information.

Nursing Students filing Complaints with the Office of Civil Rights

This post is overdue. This is a long post but its interesting because it touches on nursing education and the legal risks involved with being a nursing educator in today's litigious and complaint-happy world.

I have been contacted by more than one nurse educator or instructor who is involved in an Office of Civil Rights (OCR) investigation. See http://www.ed.gov/about/offices/list/ocr/complaintprocess.html.

OCR enforces several Federal civil rights laws that prohibit discrimination in programs or activities that receive Federal financial assistance from the Department of Education. These laws prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age. These laws extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, and museums that receive U.S. Department of Education funds. OCR also has responsibilities under Title II of the Americans with Disabilities Act of 1990 (prohibiting disability discrimination by public entities, whether or not they receive federal financial assistance). See http://www.ed.gov/about/offices/list/ocr/know.html.

What does this mean?

1. Nursing students can file complaints against nursing instructors and faculty for allegations of discrimination with the OCR. Nursing students can and some do file complaints with the State Board of Nursing against nursing faculty and instructors for alleged violations of the Nurse Practice Act and Board of Nursing regulations, and against the Nursing College/School. For example in Ohio, nursing students can file complaints against a nursing college/school. See the Nursing Education Dissatification Form available at the bottom of the page. http://www.nursing.ohio.gov/education.htm

2. Nursing instructors and faculty may find themselves needing personal counsel in this matters whether its before the OCR , civil suit, or the State Board of Nursing.

A nursing school or college attorney represents the nursing school or college. The "client" is the organization and you as a faculty member or instructor are included as a employee or independent contractor of the organization.

Nursing instructors and faculty need to make an independent decision at some point in these investigations whether or not to hire, at their own expense, personal counsel for legal representation, counseling, and advising.

I have been involved peripherally and know of several cases where a Nursing School/College attorney represents a nursing instructor/faculty before a Board of Nursing.....Nursing Instructors/faculty are licensed nurses and as such need to consider retaining independent legal counsel familiar with the State Nurse Practice, Board of Nursing regulations, and nursing practice standards for full scale and comprehensive legal representation, counseling, and advising in any matter involving nursing licensure and professional nursing practice. 

I have also been contacted in cases where a nursing educator, instructor, or faculty are involved in civil litigation and question the nursing school/college attorney's ability to represent the nurse educator, instructor, or faculty as an individual.

I simply remind the nurse of the role of the attorney defending the civil suit, Is NOT providing legal representation, counseling, and advising to the individual nurse on how the civil suit may impact his/her licensure, professional nursing practice, career, etc.

Guess what? You have to retain your own personal counsel in the civil litigation if that's your expectation and its not an unreasonable or unrealistic expectation. Retaining personal counsel, who is your private attorney involves paying money, which is the reason why I suspect most nurse educators, faculty, and instructors, like nurses in general, don't hire their own legal counsel.

I am an attorney and I don't want to pay legal fees. I don't have a slush fund for "legal defense." However I recognize the risks of being a licensed professional. That's why I have professional liability insurance for my nursing practice, legal malpractice insurance for my law firm, another policy for my consulting firm, an umbrella policy, and an insurance coverage for a little bit of everything else (pets, cars, house, medical, dental, disability to name a few). That's the benefit of insurance; your insurer will pay legal fees and costs associated with defending you and pay a judgment entered against you.    

3. Nursing Schools and Colleges should consider educating faculty and instructors on the legal risks associated with nursing education. Documentation is very important in nursing education and alot of things that should be documented are not documented. Nursing students of today are different than nursing students of yesteryear. Ask any nursing instructor, professor, or faculty.

Nursing students are more likely to file administrative complaints, file civil suits, pursue criminal charges, etc.  I posted this case last month. This is case where a nursing student pursued criminal charges against an instuctor for assault and filed a civil suit against a proprietary nursing school here in Ohio. See http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-993.pdf

 

Clinical Nurse Specialist Competencies

Urgent - Your feedback is requested on Core Competencies for Clinical Nurse Specialists

In May 2006 representatives from Clinical Nurse Specialist stakeholder groups were convened to participate in a National Consensus Initiative for Core CNS Competencies with the goal of identifying and reaching consensus on core CNS competencies relevant to the entry-level CNS, regardless of specialty, population, or setting.

Draft competencies and related specific behaviors have been identified. This is your opportunity to provide feedback about these core competencies, which reflect CNS practice and will guide future educational preparation. Let us know how these competency statements reflect your current practice and you academic preparation for the CNS role. We ask you to use the survey link below to provide your feedback.

Survey participants will be asked to rate competency statements and the related specific behavior statements for relevance and specificity.

You have until May 24, 2008 to complete. 

The survey can be accessed at the following link:

http://www.surveymonkey.com/s.aspx?sm=nsURtU6cmiMgQKNp0WyFXQ_3d_3d

Thank you in advance for your feedback on this important initiative.

Licensed Professionals and Sexual Relations with Clients, Customers, and Patients: Oh My!

This case was reported in the Ohio State Bar Association Report, its a member publication of the Ohio State Bar Association.

Its depicted as "sexy" in the movies of yesteryear and today however, its unethical for licensed attorneys to engage in intimate or sexual relationships with clients.

Any licensed healthcare professional is "gambling" with his or her license when engaging in an intimate or sexual relationship with a client or even a former client depending on the "cooling off" period imposed by the state practice act, board regulations, and/or professional literature. Check your State Nurse Practice Act and/or Board of Nursing regulations.

Yes, we all know of nurses, dentists, physicians, attorneys, etc. who have married patients, dated patients, etc. and nothing happened with his or her license. That doesn't make the actions of the licensed individual appropriate, legal, or ethical.

In this case involving an Ohio licensed attorney, see Butler County Bar Association vs. Williamson, 117 Ohio St.3d 399, 2008-Ohio-1196, an attorney had his law licensed indefinitely suspended for professional misconduct. The attorney became involved in a intimate relationship with a female client after she hired the attorney to represent her in a divorce proceeding and domestic violence action against her husband.

The attorney allowed the client and her two children to move in with the attorney during the course of representation. Later the client and her husband reconciled.

Can you guess who filed the grievances against the attorney? You guessed correctly, the husband and his wife. Can you say messy?

What is the morale of the story? I don't know you tell me.

1. Know what your State Nurse Practice Act and Board of Nursing regulations state regarding professional boundaries and professional sexual misconduct.

2. There is excellent information about professional boundaries on the National Council of State Boards of Nursing website at www.ncsbn.org. See also the ANA Code of Ethics with Interpretive Statements at www.nursingworld.org.

3. In your state are you responsible for establishing and maintaining boundaries with patients or clients? Clients can include the patient and others involved in the patient's plan of care. Clients can be an individual, group, or community.

4. Think about former patients and clients and a cooling off period. Termination of the professional relationship and "safe practice" is a slippery slope in professional boundaries cases.

Is it wise to think a patient can be terminated from your facility on a Monday and you can start legally and ethically dating the patient on a Wednesday. I've seen it happen and its perceived as okay because the patient has been "discharged." However tell me more about what happened during the course of the professional nurse-client or nurse-patient relationship and you will usually see a multitude of boundary violations and boundary crossings.

What is a reasonable cooling off period? Is a cooling off period imposed by your State Nurse Practice Act or Board of Nursing regulations? What is a reasonable cooling off period? 6 hours, 6 days, 6 months, 1 year, 2 years, or more time from the termination of the professional relationship to initiation of a personal, business, or sexual relationship. 

Professional boundaries are serious and I am seeing more boundaries cases in my law practice either through full scale legal representation or legal consultations. The Ohio Board of Nursing several years ago had professional boundaries as the focus of an emerging issues conference.

What are your thoughts about professional boundaries in nursing? Did you learn about professional boundaries in nursing school? Is it covered in general orientation in your facility? 

Turmoil Once Again in the ANA Enterprise

This is a long post.

Are you a member of a nursing professional association? If not, I am not surprised. If you follow this blog, you know I am a member of the American Nurses Association and Ohio Nurses Association however this may change after the ANA House of Delegates in June 2008.

The ANA House of Delegates provides direction to the ANA Board of Directors (or is it the other way around?) on the priorities and issues of the Association and the profession.

For the first time in my nursing career, I am considering whether or not to keep my membership in the American Nurses Association, Ohio Nurses Association, and the Southwestern Ohio Nurses Association. Its not about the dues for me, its the current and underlying turmoil with the American Nurses Association, Center for American Nurses, the United American Nurses, and State Nursing Associations.

I support the American Bar Association, not because I personally agree with all of its positions and statement. I support the ABA because it advocates for lawyers, the provision of legal services, and the rule of law. I also really like the ABA section membership publications for law practice management and solo practitioners.

I don't know if I can continue to support the American Nurses Association and the Ohio Nurses Association because of the infighting between the ANA, State Nurses Associations, the United American Nurses, and the Center for American Nurses.

I am a former Board member of the Center for American Nurses. I support and stand by the work of the Center because its relevant and needed for not only non-union nurses but it can also help union nurses. As a nurse attorney who represents individual nurses, I receive phone calls and emails from nurses, the majority of which are non-union, who need workplace support and assistance. Even with union nurses, the union assists with issues relative only to the collective bargaining agreement and these nurses need assistance.

Also my disgust with the ANA Enterprise issues involves the lack of workplace advocacy support in the Ohio Nurses Association for 2,000+ non-union nurses who support ONA but are not being serviced with state-based workplace advocacy services and products. I am one of those 2,000+ nurses non-union nurses who continue to belong and support the Ohio Nurses Association, although the majority of ONA's membership is collective bargaining and its the collective bargaining arm that uses the majority, if not nearly all of ONA's resources. There has to be a balance and as of today, in my opinion there isn't a balance.

Workplace Advocacy (non-union), Collective Bargaining (union), employment contracts, etc. are all tools for surviving and thriving in today's highly regulated workplace. Why are we still fighting? One tool isn't better than the other tool; multiple tools are needed, not just one tool.

The majority of nurses in the United States work in non-union and workplace advocacy settings. There are more than 3 million nurses (RNs, LPN, LVNs) in the United States and the majority of these nurses work in non-union environments; this is a fact.

In my opinion, I don't see these number shifting dramatically. It cost lots of money to organize a facility and most state nurses associations including the Ohio Nurses Association are not flush with cash to organize the masses and persuade nurses to join a union. A nursing strike in a state nurses association literally pushes the association to point of bankruptcy and financial ruin.  http://www.kentucky-nurses.org/. Review the article that discusses how the Kentucky Nurses Association and its union are parting ways.

Also union membership for nurses is typically tied to an organization. Gone are the days when the majority of nurses would start and finish their nursing career in one facility. You can be employed as a nurse in a union facility today and change positions next week and work in a non-union facility. Portability of licensure is the key.

Workplace advocacy support is needed and so is collective bargaining support. Non-union and workplace advocacy and collective bargaining can co-exist however I am not sure if it should be in the same association.

What do you think? Should State Nursing Associations exist purely as professional associations? Should State Nursing Associations exists as "blended" organizations, i.e. a professional association and a union? Should state nursing associations with the heavy or the majority of union membership convert to a union only status and focus only on the union activities?

There are 200,000 nurses (LPNs and RNs) in Ohio and in my opinion, the majority (50% or more) of these nurses will never be organized. Yes, I said it. The majority of Ohio's nurses will never be organized in a union. Its just not going to happen; look at the statistics, information, and the literature. ONA, which is a union and a professional association represents 6,000 via a union and 2,000 non-union. Also here, Ohio is a hotbed of union activity. We have the SEIU, NNOC, and Ohio Nurses Association here among others.

Also another thing that turns my stomach is how easy it is for nurses in one group/association/union (ANA enterprise) to say "we don't like those nurses" in this group/association/union (SEIU or CNA/NNOC) and vice versa. That's silly. We are all nurses and I don't say that I dislike a nurse because she supports the CNA/NNOC or the SEIU. 

Depending on the outcome of the ANA House of Delegates in June 2008, I will drop my membership in the American Nurses Association, Ohio Nurses Association, and Southwestern Ohio Nurses Association. I will also resign from the ANA Congress for Nursing Practice & Economics also.

I will remain a member of the Center for American Nurses and join as an individual member. I will continue my membership in TAANA, The American Association of Nurse Attorneys. I may consider joining the Kentucky Nurses Association. Why?

This is my blog and this is my opinion. I think the KNA Board made a choice that most State Nursing Association Boards don't want to consider or make. I applaud the KNA Board for making a choice. The KNA is splitting the professional association and the union. Some state nursing association executive directors and board members are happy and content to ride the fence although fence riding may not be in the best interest of the professional association, the union, and nurses in the state. Are some marriages just unhealthy?

Most executive and management level nursing professional association staff and the elected Boards are baby boomers. I have nothing against baby boomers (of course; the majority of my law firm clients are baby boomers) however in 15-20 years, I think and I am hoping the antiquated business and goverance models seen in some nursing professional associations today will be a thing of the past when Generation X and Y nurses manage and sit on the Board's of nursing professional associations. I am a Gen Xer if you haven't already guessed. 

The union vs. non-union debate is "played out" just like the entry level to practice in nursing debacle and the RN vs. LPN issue. Why are we still infighting about the same issues considering the state of healthcare and the nursing workplace? 

Most professional association staff and board members when asked "why don't nurses support your organization" have a multitude of answers and convoluted rationale for explaining the extremely low numbers. HINT. The problem is the professional association itself not the nurses who don't join professional associations.

Assaulting a Nurse Should be A Felony, Misdemeanor, or No Crime?

http://www.pressconnects.com/apps/pbcs.dll/article?AID=/20080408/NEWS01/804080357.

This is cut from the article:

Each year, 430,000 nurses are victims of violent crimes in the workplace, according to a U.S. Department of Justice report released a few years ago. Many incidents go unreported.

A more recent survey by the American Nurses Association found that 17 percent of registered nurses had been physically assaulted at work during a one-year period. Twenty-five percent of the nurses listed physical assault as one of the top safety concerns on the job. Nurses are 10 times more likely to be assaulted on the job than the average worker and twice as often as other medical workers, Tina Gerardi, CEO of the New York State Nurses Association said.

Legislation to make attacks on nurses a felony passed the Senate last week and is expected to come up for a vote in the Assembly soon. Similar laws have been enacted in Alabama, Arizona, Illinois, Nevada and New Mexico and have been introduced in several other states, she said.

Should patients and residents be prosecuted for assaulting nurses? You see two and three page documents on patient and resident rights in healthcare facility and written into state law and regulations; how about affording nurses the same or equal rights in healthcare facilities and state law and regulations?

If a patient or resident says "abuse" "neglect" "unfair treatment" or uses other language involving a nurse that implies the same, the incident is investigated, more than likely the nurse is at-will employed and terminated, and complaints are filed with state regulatory agencies including the board of nursing.

What's your opinion?

Now that's Interesting! Kentucky Nurses Association and Its Union are Parting

The Kentucky Nurses Association and its union are parting ways.

http://www.kentucky-nurses.org/news2.htm

I changed the poll on this blog today. The poll now asks in your opinion, if State Nursing Associations affilated with the American Nurses Association should exist as a professional association only, as a union only, or as a blended organization.

Is the marriage of a state nurses association and a union healthy in your state? Do you think the union/professional association combination (its referred to as a blended state in the ANA Enterprise) discourages nurses from joining the professional association in your state? Do you think joining a blended state organization, like the Ohio Nurses Association, which is a professional association and a union is unprofesssional? Do you think state nursing associations are relevant and provide needed products and services for today's nurses, union and/or non-union?

I am a member of a blended organization, the Ohio Nurses Association and I will tell you, its interesting. Blended meaning the State Nurses Association has a union arm and a non-union arm/workplace advocacy arm.

I use the term interesting because this is the term used by others (nursing board staff and national and state nursing association staff) to describe this blog and I think by saying something is interesting without more, speaks for itself.

I have a long post next week on the ANA Enterprise (American Nurses Association, Ohio Nurses Association, United American Nurses, and the Center for American Nurses) which is of course just my opinion and just my two cents.

Disciplinary Investigations and the Nursing Licensure Compact

It would be sooo nice, if all Nursing Boards were part of the Nursing Licensure Compact. See https://www.ncsbn.org/158.htm. Eventually most states and US jurisdictions in my opinion will be part of the Compact. It makes sense.

In my opinion, maybe one, two, or three of the American Nurses Association's concerns with the Nursing Licensure Compact still have merit. The bullet about using the Compact for strike breaking purposes is amusing. See http://www.needlestick.org/gova/concerns.htm

My concern with the Compact and concurrent Board of Nursing investigations in general as a licensure defense attorney, is the due process provided by state law and regulations in the investigations and the "sharing" of information between Compact States and the sharing of information when nurses are being investigated concurrently by more than one Board of Nursing (non-compact and via licensure by endorsement).

In my opinion, nurses are not afforded with enough rights in licensure defense investigations (which vary of course from state to state) and nurses should be afforded more rights:

1. Statute of limitations for the investigation and prosecution of complaints similiar to civil and criminal actions;

2. Right to receive a copy of the complaint and the investigative material in the Nursing Board's possession;

3. Right to request and subpoena documents throughout the investigative process like the Nursing Board, i.e. a process similiar to civil and criminal discovery;

4. Right to appear before a panel of Board members during at the conclusion of the investigative process;

5. A formal mechanism for mediation or settlement of a complaint that involves the sharing and exchange of information and that is not "one-sided" with the Nursing Board holding all if not most of the cards; and/or

6. The creation of a regulatory agency within a State that is separate and distinct from Nursing Boards that investigates complaints and/or conducts hearings or settlement conferences regarding complaints against nurses. This agency could do the same function for all licensed healthcare professionals within a state. There should be a separation of the investigative and adjudicative functions and the power to investigative complaints and decide the outcome should not be afforded to one agency.

Why? The potential for the abuse of power in State Nursing Boards because of little oversight and the lack of checks and balances seen with other government bodies and agencies.

Where are your national and state nurses association's when you need them? Actually instead of ANA and State Nurses Association (called Constituent Members Associations now) continuing to fight about the non-union and union arms of the ANA and the union and non-union arms within a State Nurses Association, tackle the issue of procedural due process in licensure investigations and adjudications. Tackle a substantive issue for the profession and maybe, just maybe, more nurses would join and support the ANA and State Nurses Associations.

Some Nursing Boards will go "kicking and screaming" into the Compact, but will not have a choice because of the growing concern and pressure from nurses, professional associations, and legislators within the state. Joining the Compact requires the relinquishment of "some power." 

I practice law in Ohio, Kentucky, and Indiana. Kentucky is a Compact state and this information is available on the Board's website. Indiana and Ohio are not Compact states.

Here is the Ohio Board of Nursing's statement regarding the Nursing Licensure Compact. See  http://www.nursing.ohio.gov/PDFS/6.8CompactJan08.pdf. If anyone has a link to the Indiana Board of Nursing position on the Compact, send it to me and I will update this post.