Your state nurse practice act can dictate wound care liability

state nurse practice act

I received a question about an RN who was practicing in a “wound center.” 

She received notice from her state board of nursing that a complaint had been filed concerning her treatment of a patient’s wound. 

According to the RN, a substitute physician saw her patient one week. He told the patient and a family member that Tegaderm should not have been used on the wound.

In addition, the substitute physician said there were two wounds — not one — and the second had not been treated.

The RN stressed the following:

  • There was only one wound
  • The substitute doctor was incorrect
  • The patient’s regular physician had been seeing the patient for some time and knew there was only one wound
  • She was upset about the complaint
  • Had to hire an attorney to represent her before the board
  • She believes the physician defamed her and should pay her attorney fees

Professional disciplinary actions

Professional disciplinary actions by a state regulatory agency, such as the board of nursing, are a real legal concern for all wound care clinicians.

A professional disciplinary action can be initiated after a complaint is received by an agency and is investigated.

If the agency determines a possible violation of your state nurse practice act exists, the board proceeds to determine if a violation has occurred.

It is important to note no patient injury needs to exist before a board initiates an action. This differs from when a professional negligence suit is filed naming you as a defendant.

The basis of the professional disciplinary proceeding is based on a possible violation of your nurse state practice act.

Disciplinary action vs. negligence suit

A professional disciplinary action is also different from a professional negligence suit in other ways.

For example, it is an administrative proceeding, which means it takes place before the board (and not in a court of law) and has its own set of rules and rights of the licensee and the agency. 

Examples of these rules and rights include:

  • Right to be represented by an attorney
  • Right to present witness testimony
  • Requirement of notice to the licensee that a complaint has been filed against him or her
  • Right to a hearing on the complaint if it is not otherwise resolved

Another difference is that the decision of the board is not based on an award of money to an injured plaintiff.

Rather, the ruling takes the best course of action to protect the public and seeks to avoid further violations of the state nurse practice act.

The board may determine that no violation of the applicable state nurse practice act exists and close the case. Or it may order a discipline against you.

Examples of disciplinary actions a board may take include:

  • Probationary period of your practice
  • Suspension of your license (if a serious violation occurred)
  • Payment of a fine

What boards of nursing will consider

Despite the following being only speculative, there are many issues the board may want to explore.

Initially, it would want to hear from the RN directly. The attorney can assist the RN’s testimony to be truthful, while protecting the RN from further potential liability.

Although some nurses may represent themselves in a board proceeding, it is not a wise decision. Retaining an attorney for representation was a good move by the RN.

Administrative law and practice acts are complicated. In this instance, representation by a competent attorney or nurse attorney is essential.

A second concern of the board might be the RN’s scope of practice under the state nurse practice act. They will decide if her treatment of the patient’s wound was consistent with that scope.

If the complaint was based on the RN not meeting or exceeding her scope of practice, it becomes a liability problem.

The board also would evaluate the RN’s documentation of care provided to the patient and the patient’s entire record of care.

The board would ask:

  • Was the RN’s documentation consistent with standards of good documentation?
  • Were notifications to the treating physician documented?
  • Were wound photographs a part of the record?

The RN’s educational background also would be explored, including whether or not she was currently certified in wound care.

Certification would not be an absolute barrier to a professional disciplinary action. However, it supports her clinical ability and continuing competency, which would be evaluated in this case.

Number of previous complaints

Another matter the board would be interested in is if this case is the first complaint filed against her by an individual. 

A complaint can be filed by anyone, including a physician, family member or patient (and is confidential).

If the RN has no prior complaints, this speaks to her history of providing safe and proper care to patients.

In the case, the RN stated the physician had defamed her and should pay her attorney fees for the board proceedings.

It is important to note that unless someone files a complaint to a board in “bad faith,” the complainant cannot incur liability.

The determination of what is or is not “bad faith” is decided by a court after a lawsuit is filed alleging defamation in the complaint filed with the board.

Unfortunately, unless it was determined by a court that whomever filed the complaint did so in “bad faith,” the RN must pay her own attorney fees.

As a result, this is why it is important to obtain a professional liability insurance policy that:

  • Covers your practice in wound care
  • Provides you with an attorney
  • Pays attorney fees in professional disciplinary proceedings

Take our online course on Skin and Wound Management today.

wound care

Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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