What should you do if you find yourself the target of a formal board complaint? Based on my experience handling these types of cases, I’ve addressed a number of common issues, taking you through the beginning stages of the process.*
First things first
You learn that a licensing board has received a complaint against you. The first thing you should do is review your insurance coverage for board complaints, provided you have such coverage. In my experience, most nurses rarely if ever carry this type of insurance. If you fall into the uninsured or underinsured group, I suggest you re-examine this issue and consider carrying such coverage. Most nurses go their entire careers without any type of professional malpractice insurance or insurance to specifically protect against board complaints.
There are a number of reasons nurses forgo malpractice insurance, including costs (too prohibitive) and thinking that they will simply never need it. However, I would highly suggest nurses consider purchasing insurance to protect them in the event of a potential malpractice claim or board complaint affecting their licensure. Insurance rates for this type of coverage are relatively inexpensive, compared to the costs of facing a malpractice claim on your own.
If you do have malpractice coverage, do not assume that it also covers licensing board complaints; this coverage is typically purchased separately. Be sure that you check carefully and contact your carrier if you have any doubts or questions.
Contact legal counsel
Regardless of whether or not you have insurance, you should contact a lawyer immediately—one knowledgeable in administrative law and/or professional license defense. Your attorney should be familiar with licensing boards and the disciplinary process. Just as there are different types of nurses, from perianesthesia to L&D nursing, there are attorneys who specialize in different areas of the law. You will be best served by an attorney familiar with this particular area.
In my experience, your initial response to a complaint is crucial. Address the issue with care. It is completely understandable to be shaken upon learning of a complaint. That highly emotional early period makes consulting with a highly trained and experienced attorney particularly critical. I believe that consulting a lawyer to review the facts almost immediately affords nurses the best chance of having the complaint dismissed without a hearing or resolved on the most positive terms.
The biggest hurdle I see is nurses delaying or altogether failing to contact someone who can help them because they do not want to broadcast that they have received a complaint. This is often complicated by the fact that the charges may include serious or embarrassing allegations. These things should not stop you from reaching out to people who may be able to help you through this difficult time.
Take it seriously
You should always treat a formal complaint as a serious matter, warranting immediate and thoughtful action. Yet, invariably, some nurses will dismiss licensing board complaints or other allegations as frivolous, without basis, or the fabrications of an ill-advised complainant. They may become outraged at being accused of unprofessional and/or inappropriate conduct. Worse, some nurses inexplicably go into denial mode, pretending nothing happened.
Some nurses may assume that once they explain what happened, the licensing board will see the complaint as not worth the paper it is printed on. But even in situations where this is true, nurses must take the complaint seriously.
Regardless of fault, the single biggest mistake a nurse can make is ignoring the complaint or to take the complaint too lightly. Based on the discipline a licensing board may impose, a shower of negative effects may flow from a single complaint. Depending on the alleged offense and the board’s conclusion, a nurse’s reputation and livelihood may be irreparably damaged. Truly, the importance of properly and adequately responding to a licensing board complaint cannot be overstated. In light of the serious nature of board disciplinary matters, many nurses, nonetheless, continue to make crucial mistakes after a board complaint has been filed, which needlessly expose them to additional professional risk.
Beat the deadlines
Nurses must pay close attention to response deadlines. Do not ignore or miss the deadline to reply to the complaint. As a nurse, you know the importance of following orders and the far-reaching consequences of failing to do so. In the disciplinary context, this is no different. When a complaint is filed, the board generally sends a notice of the complaint to the nurse. In that notice, there is almost always a deadline for the nurse to file a written, narrative response to the allegations and a deadline to produce relevant and germane records and/or documentation.
Let’s face it: nurses are busy people. Gathering the relevant information, obtaining the necessary advice, and preparing an appropriate response are time-consuming activities, most of which cannot be delegated to someone else. Compounding these problems is human nature, as we put off dealing with unpleasant activities. As a consequence, the deadline for producing records and filing a response often creeps up on the nurse before he or she has prepared a proper defense. Missing that important deadline can at best harm the nurse’s credibility and at worst result in additional sanctions or disciplinary action. Nurses should never ignore, fail to respond, or miss the response deadline. Usually, additional time is granted if necessary, but you must file a request with the board, usually in writing, prior to the deadline.
Keep it to yourself
Should you speak with the board, investigators, complainant, or witnesses on your own? Short answer, no. Again, the first—and only—person you should contact upon receiving a board complaint is an attorney experienced in handling these types of matters. You need proper advice and an outline of your options. You also should never assume that you can simply explain the complaint away, even if you’re working with a seemingly friendly investigator. If asked, politely decline discussing the matter with anyone without your attorney present.
Although some complaints can be resolved quickly without adverse action, don’t allow yourself to be lulled into a false sense of security. I often encounter nurses who believe licensing boards exist to serve their interests, to protect them and their licenses. This isn’t the case. Licensing boards exist to protect the public. Statements you make at the beginning of an investigation, without adequate reflection or thought, can come back to haunt you.
Furthermore, you should also avoid having conversations with third parties, including potential witnesses. These interactions could damage your defense, and they are not protected from disclosure by the attorney-client privilege. Put another way, saying the wrong thing in the wrong way to anyone (except your attorney) can significantly inhibit your defense and lead to unfavorable consequences.
Finally, do not discuss the issue with the complainant unless your attorney agrees you should. The complainant represents great risk to you, and you generally should not discuss the case with him or her. You may think that if you could just talk to the complainant, you would have a productive, levelheaded discussion that would help the complainant understand your point of view and convince the complainant to dismiss the charge. In my experience, this almost never works; in fact, it can lead to damaging evidence against you. Worse, it may be portrayed as your having tried to intimidate the complaining party. It bears repeating that under no circumstance should you attempt to discuss the complaint with the person who filed it without first consulting the proper legal advice.
Overcoming a bad situation
The complaint and disciplinary processes can be daunting, especially for those unfamiliar with them. Defending and protecting your reputation and livelihood can generate anxiety and angst, and dealing with a complaint can exact a high emotional as well as economic toll. Familiarity with the process itself with timely and proper handling is crucial to obtain the best possible outcome.
With any luck, you will never have a complaint filed against you or go through a disciplinary hearing, but should that come to pass, I hope this article equips you with information that will enable you to make thoughtful and informed decisions.
*Please note that this article is not intended as formal legal advice and should not be used as such. Every case is different, and should you have questions specific to your own situation, I urge that you contact an attorney for further discussion.
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