Nurses: Accused of Incompetence--What Should You Do?

Carolyn Buppert, MSN, JD

Disclosures

March 03, 2016

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Question

You receive a letter from the Board of Nursing saying that you are being investigated for incompetence. How should you proceed?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

Today I received a letter from my state's Board of Nursing, telling me that I am being investigated for incompetence. The letter refers to a patient interaction that took place 2 years ago. The Board is asking me to respond in writing to some questions about the interaction. At this point, I don't remember much about the patient or the interaction, and I don't believe that I did anything wrong. What should I do?

The short answer is to answer the Board's questions as well as you can, in writing, by the deadline given by the Board. You could ask the Board for copies of whatever records they have about the incident that might refresh your memory.

The more complete answer is this: The Board of Nursing's aim is to protect the public. If someone files a complaint, the Board must look into it to try to determine whether the nurse is a threat to the public. Sometimes, patients or family members file a complaint because they don't understand nursing or medicine. For example, the family of a man who resided in a nursing home filed a complaint against a nurse practitioner. A family member visited one day and found the patient more agitated than usual and asked his nurse about it. The nurse explained that the patient's sedative dose had been reduced, without adding that reduction of unnecessary sedation is a quality-of-care goal for nursing homes.[1] But the family didn't understand that and filed a complaint against the nurse practitioner who had lowered the dose. Once the situation was explained to the Board investigator, the case was closed.

Most cases aren't that simple. It is in the nurse's best interest to defend against a complaint so that, ideally, the nurse's license remains free of encumbrances. State boards vary, but complaints typically can be resolved in any of the following ways:

  • Closed without any finding of incompetence and without discipline;

  • A letter, sometimes called a "letter of education," can be put in the nurse's file. This letter is not made public but is there for the Board to consider in the event of a subsequent complaint. The Board may require that the nurse complete remedial education.

  • Censure or public reprimand, which may include a requirement of supervised practice;

  • Probation, which requires adherence to certain terms and conditions;

  • Suspension of license;

  • Revocation of license; or

  • Voluntary surrender of license.

Clearly, the nurse faced with defending against such a complaint wants the case dropped or resolved at a level that will allow the nurse to continue to work. In my opinion, if under investigation by the Board of Nursing, it is wise to engage an attorney who is experienced in license defense. (This is not my current area of practice, although I have defended nurses in the past.) I have heard Board investigators tell nurses that they don't need an attorney and that if the nurse brings an attorney to a meeting with the investigator, the attorney cannot participate. However, I do not believe that any state prohibits the nurse from bringing an attorney to these meetings. The attorney, even if told to stay quiet, can listen to what the investigator has to say and use what is learned to advise the nurse on the best defense. The attorney can speak up for the nurse at later meetings and hearings. And the nurse who has an attorney is conveying a message to the Board that the nurse takes the matter very seriously.

A nurse who receives a letter from a state board about a complaint against the nurse should:

  • Engage an attorney;

  • Request records or documents held by the Board, to understand the complaint;

  • Respond to all Board requests respectfully and in a timely manner;

  • Enlist any witnesses who could corroborate the nurse's side of the story;

  • Gather documents that would support the competence of the nurse, for eventual presentation to the board; and

  • Attend any meetings or hearings dressed in business attire, on time, with a cooperative attitude.

If the complaint is in a state where the nurse no longer works, defend it anyway. Boards of Nursing communicate license encumbrances, so an encumbrance on a license in one state usually is adopted by other states where the nurse is licensed or tries to become licensed.

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