An 18-month-old boy with high fever is diagnosed with acute otitis media. The EP orders 800 mg of azithromycin IV. The pharmacist, realizing the error, sends the correct dose of 80 mg. The ED nurse, assuming the 80 mg order is a mistake, administers the original higher dose to the child, who codes and dies. “The resulting board of nursing investigation found the nurse guilty of unprofessional conduct and negligence,” says Melanie L. Balestra, a nurse attorney based in Newport Beach, CA.

A Facebook post describing “drunks and vagrants” in the ED became the focus of another recent investigation. “A hospital colleague reported it to the board of nursing, which found the nurse guilty of unprofessional conduct and issued a public reprimand,” Balestra says.

Balestra has seen other situations trigger investigations of ED nurses, including errors in patient care during transitions of care and handoffs; inadequate histories, sometimes due to inaccurate information given by caregivers; physician orders for medication that is never administered, or incorrect dosages or medication given; leaving disoriented or agitated geriatric patients at risk for falls unattended; and violating patient privacy regulations on social media. “Many will also end up as malpractice cases,” Balestra says. “Most patients file a lawsuit first.”

This ensures statutes of limitation do not run out in the time it takes the investigation to resolve. Even if the ED nurse prevails in a malpractice lawsuit, the nurse still can be found guilty in the disciplinary action, which does not require damages to be proven. For instance, poor documentation can result in disciplinary action even if it did not harm an ED patient. “Most states have an automatic limit from a malpractice lawsuit for mandatory reporting to the board of nursing,” Balestra adds. “This can be as low as $3,000.”

Kathleen McCormac, BSN, JD, a nurse attorney based in San Francisco, has seen a surge in investigations involving missing narcotics. Usually, these investigations are triggered when a routine audit of the ED’s automated medication dispensing system reveals a discrepancy. “In the course of the investigation, sometimes it becomes clear that the nurse is not as careful as other nurses,” McCormac observes.

Busy ED nurses sometimes take shortcuts with the required process of “wasting” medication that is removed from the dispenser but not administered. This must occur in the presence of another nurse and must be documented in the ED chart. “It just doesn’t routinely happen,” McCormac notes. Investigators sometimes confront surprised nurses with evidence that appears the nurse may be diverting the medication to herself or someone else. “[Investigators] may say, ‘We looked at 30 nurses in your department, and you had double the amount of undocumented wasting of narcotics,’” McCormac says. “Nurses are shocked when the data are put in front of them.”

Often, there is an innocent explanation. For example, admitted patients sometimes leave the ED before ordered narcotics are administered. Regardless of the exact circumstances, McCormac advises ED nurses to undergo a blood test right away to prove they were not taking narcotics at the time.

“This often isn’t done until the investigation phase, which can be a year after the event,” she explains.

Most ED nurses would immediately contact an attorney if they received a notice of intent to sue. However, they react much differently if contacted by an investigator. “ED nurses tend to view the board as their advocate,” McCormac explains. “They’re a bit naïve about how the system works.”

ED nurses also assume hospital administrators will have their backs, but that can change quickly. “[Nurses] can’t imagine the hospital separating so widely from them, especially if they’ve worked in the institution for a long time. They often don’t see that coming,” McCormac says.

Statements made to investigators without legal representation can complicate the nurse’s defense. Offhand remarks offered in explanation can make it impossible to avoid disciplinary action. “We certainly don’t want the nurse saying something on the record that is different from what they will say at a hearing,” McCormac says. “Testimony under oath in the malpractice case [also] can be used against the nurse in the licensing matter.”

The best way for an ED nurse to protect his or her license against both disciplinary action and malpractice allegations? Practice according to the standard of care with every patient encounter, says American Association of Nurse Attorneys President Carolyn Dolan, JD, MSN, FNP-BC, PNP-BC. Although compliance cannot guarantee nurses will not be investigated or sued, Dolan says “it goes a long way in demonstrating professional endeavor to meet a standard of care.”