EXECUTIVE SUMMARY

Complaints against a nurse’s license can bring significant consequences, including revocation. Nurses do not always take such complaints seriously enough.

  • Risk managers should educate nurses about the risks and how to avoid license complaints.
  • The cost of defending a license allegation has sharply increased.
  • More than half of license allegations result in some action against the nurse.

A complaint filed against a nursing license can destroy a nurse’s career. It is crucial for risk managers and nurses to understand the risks and the best practices to protect against these complaints.

Every state requires a nurse to meet minimum requirements to hold a license to practice nursing. Each state’s board of nursing exists to protect the public, says Jennifer Flynn, CPHRM, risk manager with Nurses Service Organization (NSO) in Fort Washington, PA. Complaints against nurses are filed with the board, which can take action against the nurse’s license.

That is separate from any civil malpractice action, which would be resolved with a monetary payment, she explains. Even if a nurse loses a malpractice case and must pay damages, the nurse usually can continue practicing afterward.

“Comparing that to what happens when a complaint is filed with the state board of nursing, the consequences can be quite different. The state board of nursing investigates all complaints filed against a nurse and the result of that investigation can end a nurse’s career,” Flynn says. “When anyone files a complaint, it can be a harrowing experience, but they may not take it as seriously as a medical malpractice claim. The potential cost to their lives is just as serious.”

Range of Potential Actions

Anyone can file a complaint, but it most often is the patient, a relative, a co-worker, or an employer, Flynn says. In some cases, the employer or co-worker is obligated to report concerns about competence or deviations from the standard of care to the state nursing board.

“It doesn’t necessarily have to be related to the nurse’s clinical practice. It could be related to nonclinical issues like billing, substance abuse, or unprofessional behavior,” she says. “In some states, the nurses themselves are required to report to the nursing board if they get a DUI or a criminal conviction, for example. There is a whole host of reasons a complaint might be filed.”

If the complaint is found to be substantive, the nursing board’s action can range from the benign, such as requiring additional continuing education credits or a fine, up to probation or even license revocation.

“The nursing license is their livelihood, so protecting it becomes paramount,” Flynn says. “Nurses must be equipped to adequately defend themselves. We can help them by making them aware of the instances of license matters we see and how they are resolving and by providing them with risk control recommendations that will decrease the likelihood of having complaints filed against them.”

NSO’s most recent analysis of professional liability exposure for nurses revealed that one-third of the time, the primary allegation against the nurse involved professional conduct.

The second most common allegation involved scope of practice, and the third was documentation errors or omissions. With professional conduct, complaints were filed against a nurse’s license for substance abuse more than 40% of the time.

“That is a very strong allegation,” Flynn says. “We recognize that nursing has some vulnerabilities there with stress, patient load, and access to medications, so we should always provide nurses with education on how they can deal with the stress of the job and protect themselves.”

Costlier to Defend

According to the report, the past five years have seen a slight increase in the instances of license protection matters for nurses, but the cost of defending a nursing license has increased sharply.

In 2015, about 1,300 license protection matters arose against nursing professionals, costing about $3,900 each to defend the allegation. In 2020, there were 1,377 cases but the cost increased to an average of $5,330.

“Compared to a malpractice payout where the payout might be much greater, there actually is more likelihood of the nurse having a license protection matter over a malpractice claim,” Flynn says. “Data from the National Practitioner Data Bank indicate a nurse was 62% more likely to be involved in an adverse licensing action than a medical malpractice payment. That underscores that nurses need to take these matters seriously and defend themselves if they have a complaint filed against them.”

The time required to resolve a license matter can be about the same as for a malpractice claim — an average of one to two years, Flynn says. The disciplinary process by the state nursing board involves an investigation by people who might not be nurses, so they may not always appreciate some of the working conditions and limitations imposed on nurses in the workplace.

“They don’t always understand the workarounds that might be accepted in your facility but which don’t comply with national standards,” Flynn notes. “The investigators can use various methods to investigate the facts, including interviewing those who were present at the time of the alleged infraction, and reviewing pertinent records. If impairment is alleged, they can conduct drug screens. They will compile any pertinent facts and report back to the board.”

Not Always Taken Seriously

The nurse and his or her representatives will have an opportunity to present a defense, but Flynn says nurses often do not take this situation as seriously as they should and forgo the opportunity to provide a response. They might believe the allegation is so unfounded that they can rely on the board dismissing it.

Sometimes, nurses do not see it as seriously as a malpractice claim and they do not even hire an attorney to represent them, Flynn says. In about 45% of license claims, the case is closed with no action, which might seem reassuring. But that means 55% of the time there is an action taken against the nurse, Flynn says.

“We also found in our most recent 2020 data that a surrender of the license increased to 4.8% of license matters, up from 3.2% from the previous report,” she says. “With license surrenders increasing, I’m not sure nurses realize that the board has the authority to essentially cause the nurse to not be able to practice in their state.”

Flynn urges risk managers to educate nurses about the potential risks of complaints to the state licensing board and to urge a concentration on the matters most likely to generate a complaint — adhering to the nurse’s scope of practice, compliance with the employer’s policies and procedures, and meeting the standard of care.

“Documentation is a key element in defending state licensing matters the same way it is with malpractice allegations. Pay attention to documenting patient care assessments, observations, communications with any other providers on the team, and the actions you took as a nurse,” she says. “The documentation should be timely, compete, and in line with your facility standards.”

Nurses should be cautioned to never alter a record, especially after learning of a complaint. All changes in electronic medical records are time-stamped, so any alteration can appear self-serving and deceptive.

“We often hear nurses facing a state nursing board complaint say they really wish they could go to talk to the patient and explain what happened. But we advise not discussing the matter with anyone but the nurse’s defense attorney or the professionals handling your matter, because in trying to resolve the case you may say something that works to your detriment,” Flynn says. “The way you approach the person making the complaint may be misconstrued and have the opposite effect of what you’re trying to achieve.”

Flynn also urges nurses to retain letters of recommendation, performance evaluations, thank-you letters from patients, awards, continuing education certificates, and anything else that support the nurse’s character, work ethic, and professional standards.

“Nurses should never respond to a board complaint without consulting with their insurer or legal counsel. Because board matters sometimes have a fast turnaround for a response, you want to seek professional advice immediately,” Flynn says.

SOURCE

  • Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization, Fort Washington, PA. Phone: (215) 773-4513. Email: jennifer.flynn@aon.com.