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Jun 08, 2012

The Ends Do Not Justify the Means: A Closer Look at the Texas Board of Nursing’s Recent Disciplinary Pursuits Against Nurses Couched Under the Auspices of Protecting and Promoting the Welfare of the People of Texas.

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Although the firm handles disciplinary cases dealing with a wide range of professional licensees, we tend to do a significant number of cases involving vocational and professional nurses with the Texas Board of Nursing (BON).  We believe this is largely attributable to clients seeking us out because of our experience having served as an Assistant General Counsel with the BON and, while there, having been entrusted to advise the staff on enforcement issues and prosecuting enforcement cases.

Increase in Docketed SOAH Cases

If you’ve been reading about or following the BON, you know that there has been a recent surge in cases docketed for a contested case hearing before a judge (administrative law judge or ALJ) at the State Office of Administrative Hearings (SOAH).  This is directly related to the increase in the enforcement and legal staff at the Board.  Given the flush in resources, the BON has pursued more cases at SOAH.  Of particular interest, however, has been its posture in pursuing more aggressive positions regarding the interpretation of its statutes and rules.  This, in part, is designed to push nurses into settlement knowing that the BON has the luxury of resources that they do not.  However, such strategy, as reflected in some of the decisions written by SOAH ALJs, has not resulted in success for the BON relatively speaking.  Irrespective of the fact as to whether the BON has or has not prevailed in these SOAH cases, the concern arises in the hard line approach utilized by the BON.  This continues to raise alarms for practicing lawyers in this area and, more importantly, for all nurses practicing in the state whether or not they themselves are the subject of a complaint.

SOAH Cases Generally

Generally, going to a contested case hearing at SOAH is not a course of action that is the immediate goal of each case the firm handles although we recognize that a contested case hearing is necessary at times to protect our clients’ interests.  This usually occurs when efforts at settlement have failed or the clients do not want to accept a permanent disciplinary order being proposed by the BON.   

The BON's Broad Reading and Interpretation of its Statutes and Rules in Order to Justify Disciplinary Action.

The goal of the BON is to protect the the public safety.  A review of recent SOAH cases involving the BON shows that the BON, in its efforts to protect the public safety, continues to push the envelope in its interpretation and application of its statutes and rules.  The firm has seen how the BON staff can take unreasonable positions based on undeveloped cases or their insistence on application of the statutes and rules against nurses that are improper, misapplied, or inappropriate relative to the facts of the case.  In light of its unyielding and oftentimes, tunnel vision pursuit, the BON's interpretations and positions are beginning to be received with more guardedness by the SOAH ALJs.  In some instances, the BON’s interpretations and positions are being rejected by the ALJs altogether. 

Illustrative Case Demonstrating That the BON Blurs The Line Between Professional and Personal Conduct.

In a case that illustrates the unrestrained approach taken by the BON, the BON attempted to impose disciplinary action on a nurse who was approached by a stranger in the hospital parking lot as the nurse was leaving her vehicle on the way to begin a shift.  Unbeknownst to the nurse, the man was a process server.  The nurse, feeling frightened and believing that the man was going to harm her, took out her legally permitted firearm to protect herself.  Not a single shot was fired and no criminal charges were filed against the nurse.  Nevertheless, this did not dissuade the BON in bringing disciplinary action.  Essentially, the BON argued that this conduct was unprofessional since the nurse’s action “caused or permitted physical, emotional or verbal abuse or injury to the client or the public.”  Pulling a firearm, per the BON, was "permitting abuse." 

In essence, the BON argued that this nurse was acting "in the role as a nurse” and that the “workplace” extended beyond "the place where work is done.”  Here, a hospital parking lot.  Per the BON, "the act of driving into the parking lot with the intent of going to work constitutes the practice of nursing."

This position should send chills down the spine of each licensed nurse in Texas because if this position had been advanced successfully, a nurse would essentially always have to be concerned with whether they were acting in conformance to the BON’s rules even when they were not on shift or at the workplace.  Although the SOAH ALJ exercised a common sense approach in recommending that the matter be dismissed, this case underscores how the BON continues to take bold liberties and aggressive positions under the guise of protecting the public safety.

Although the above-referenced case occurred in a hospital parking lot and the nurse had not yet started her shift, the firm has represented clients where the time and place of the alleged misconduct was even more tenuous.  This is illustrated in a case we handled involving a nurse on the way to work wearing scrubs and being pulled over for alleged speeding by law enforcement.  In this situation the nurse disputed the officer’s account of speeding and let the officer know that fact.  The officer took exception that his authority had been questioned and proceeded to file a complaint with the BON.  In turn, the BON then began to pursue disciplinary action against the nurse upon similar grounds in the case above arguing that this was unprofessional conduct and that the nurse, because she was wearing scrubs, was acting "in the role of a nurse.” 

Conclusion.

These types of cases tells us that the BON will not flinch in pursuing action based upon the belief that a nurse is always acting "in the role of a nurse” even if he or she is involved in conduct away from the workplace setting that would not normally be under the jurisdiction of the BON to oversee or discipline.  If you are a nurse, think about this premise that the BON is trying to advance the next time you are with someone at a restaurant, at the store buying groceries, in a social setting, or at your home, and a casual disagreement ensues.  We think you might agree with us that although protecting the public safety is just,  the ends do not always justify the means.

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