Avoiding Liability Bulletin – July 2017

Nurse Aide and Certified Nursing Assistant (CNA) practice has been the subject of a few of these bulletins. If you are a nurse aid or assistant, you know how important your practice is the patients to whom you provide care as well as to the health care team with which you work.

As you also know, your authority to practice as a nurse aid or nurse assistant is a privilege and not a right. Adherence to your state laws and regulations, and the governmental agency that administers and enforces your practice, is essential.

In some instances, the agency is a department of public health, for example. In other instances, it is the state board of nursing that has the authority to regulate Nurse Aides and Nurse Assistants.

In the following case1, involving the Wyoming State Board of Nursing, a CNA’s conduct that was far beyond the scope of her CNA practice cost her her certification.

An advanced practice registered nurse (APRN) who was a Family Nurse Practitioner reported to the Drug Enforcement Agency (DEA) that Tina Rotert, a CNA used the Nurse Practitioner’s DEA registration number without her consent and “unlawfully prescribed various controlled substances”.

The prescriptions written by the CNA were for herself and her husband. In addition, Rotert falsified medical records to show that the Nurse Practitioner had documented the prescriptions.

Rotert had written these prescriptions and falsified the Nurse Practitioner’s medical records from 10/1/2010 to 9/27/2011.
Further investigation found that the CNA also prescribed controlled substances from a Physician’s Assistant (PA) “on an average of three times a week”, again using the PA’s DEA registration number without the PA’s consent.

Criminal charges were brought against Rotert and she plead guilty to three (3) counts of Obtaining Controlled Substances by Fraud. Rotert was sentenced to sixty (60) days jail time for each count, which were to be served concurrently. If she obtained an evaluation and completed recommended treatment in the State of Maryland (and returned there) as ordered by the Board of Nursing of Wyoming, a suspension of six (6) months of her sentence would occur.

The Wyoming Board of Nursing duly sent Rotert a Notice of Intent and Stipulation and Order for Summary Suspension of her certificate in lieu of proceeding to a formal contested case hearing for summary suspension.

Rotert responded that she wished to voluntarily surrender her certificate. After receiving this written notification and a call from Rotert’s attorney, the Wyoming Board of Nursing cited the alleged violations of the Wyoming Nurse Practice Act and its Rules, including the disciplinary grounds for CNAs that, if proven by clear and convincing evidence, could result in a disciplinary action against Rotert. They comprised:

  • unauthorized use of [a] controlled substance
  • conviction of a misdemeanor or felony adverse to [the] practice of nursing
  • fraud and deceit
  • unprofessional conduct
  • misappropriation of property, and
  • failure to conform to prevailing nursing assistant standards, even when no injury to a patient occurs

The Board of Nursing accepted the voluntary surrender of the CNA’s certificate.

Although Ms. Rotert’s deeds are ones that you would never entertain in your practice as a CNA, Nurse Aide or Nurse Assistant, her case and its result have important implications for you. They encompass:

  1. Never use another person’s license number, DEA registration number, computer code access number or any other legal identifier as your own;
  2. Never falsify any documentation that you do in connection with your practice as a Nurse Aide or Nurse Assistant;
  3. Know the “prevailing” Nurse Aide and Certified Nursing Assistant (CNA), standards of practice and
    adhere to them without fail;
  4. Seek treatment for a drug or alcohol problem, or any
    other health problem, that affects your practice;
  5. Don’t exceed the scope of your Nurse Aide and Certified Nursing Assistant (CNA) practice in any way;
  6. Don’t do “favors” for friends or family members that may result in a professional disciplinary action against you;
  7. Remember that you can be disciplined by the agency or board that administers and enforces your Nurse Aide and Certified Nursing Assistant (CNA) practice even if no injury to a patient or another occurs; and
  8. Be certain to obtain legal representation from a nurse attorney or attorney if you receive notice that you may be disciplined by your state board of nursing.


1. In The Disciplinary Matter of Tina Rotert, Certified Nursing Assistant, Certificate Number 20240, Docket Number 11-050—MTX, Settlement Agreement, Stipulation And Order For Voluntary Surrender, November 1, 2011.


Please note: As of March 2019, CPH & Associates is no longer insuring Nurse Practitioners (NPs)

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Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – July / August 2017

Therapists and counselors are expected to be keenly aware of their duty of confidentiality, but it is often the case that confidential information will be shared with a third party – sometimes lawfully and sometimes unlawfully. There are some breaches of confidentiality that are the result of negligence and some that are the result of intentional or willful conduct. I use the word “breach” to describe professional misconduct or an unlawful act – which could result in civil liability (the patient sues the practitioner for money damages) or an administrative action by a licensing board affecting the practitioner’s right to practice. In addition to “breaches,” therapists and counselors often lawfully break confidentiality by disclosing a patient’s confidential information to a third party with and without a signed authorization.

Most states have enacted laws or regulations (rules) that specify the various circumstances when disclosures of otherwise confidential patient information are mandated and the circumstances where disclosures are allowed – in both cases, without the signed authorization of the patient. In California, for example, the law specifies over two dozen such exceptions to the duty of confidentiality. Each state mandates the disclosures that must be made prior to the commencement of treatment, including disclosures regarding exceptions to confidentiality. Some state laws (like in California) require very few disclosures, allowing the practitioner to largely decide the nature and extent of the disclosures to be made. Nevertheless, patients are typically informed, prior to commencement of treatment, either in writing or orally, or both, of the major relevant exceptions to confidentiality.

One common exception to the duty of confidentiality (where a signed authorization is generally not required) occurs when the practitioner is communicating with insurance companies, HMOs, and other payers in order to obtain payment for covered mental health services or to determine whether continued payment is warranted. It is important in such situations to reveal only the minimum amount of information necessary in order to accomplish the intended purpose. If a signed authorization is obtained, the disclosures are determined by the terms of the authorization. Disclosure of too much information can lead to a patient’s claim of breach of confidentiality. For example, mental health practitioners should not reflexively comply with every request by an insurer for a patient’s treatment records. It is not uncommon for compromises to be reached in terms of the amount of information ultimately provided. Practitioners should be ready and able to advocate for patient privacy in appropriate circumstances.

An allegation sometimes leveled against therapists involves situations where therapists made contact or communicated with physicians or other licensed health care practitioners who may be treating or may have treated the patient, or situations where another health practitioner made contact with the treating therapist. The contact might be made by telephone or other means and might involve the sharing of information, including treatment records. In some situations, the therapist may have contacted the other practitioner (or responded to another practitioner) without the prior knowledge or permission of the patient – perhaps when an unexpected circumstance occurs. When the patient finds out about such contact, a claim or complaint may be asserted.

The primary defense to such claims or complaints is that the law (for example, in California) allows licensed health care providers to disclose patient information to other licensed health care providers or health facilities without the patient’s signed authorization if done for the purpose of diagnosis or treatment of the patient. Practitioners must know the nuances of the law in their state to determine the breadth of such an exception. Of course, practitioners will often disclose to the patient, prior to the commencement of treatment, that this exception to confidentiality exists. Practitioners must be careful if the patient is uncomfortable with this exception to confidentiality and desires that no contact be made. It is generally unwise for mental health practitioners to treat a client who insists upon a significant limitation to this public policy exception to confidentiality.

Another allegation sometimes made against mental health practitioners occurs when the practitioner makes disclosures to others in circumstances where the practitioner believes or determines that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim(s). In such cases, the disclosure is typically made to a person(s) reasonably able to prevent or lessen the threat, including the target of the threat. When a patient finds out that such a disclosure has been made, the patient may reflexively claim that an unlawful breach of confidentiality occurred. Depending upon the specifics of the statutory and case law in the state in which the disclosure occurs, the practitioner will often have an effective and well-accepted defense. This right or duty to protect is typically disclosed or explained to patients before treatment begins, and it includes situations where the patient presents a danger to self or to others.

Patients who participate in couples counseling or family therapy should expect to receive information from the practitioner that lays out the confidentiality parameters of the treatment. This is sometimes done in a written “no secrets” policy. Failure to provide such information at the outset can result in a claim alleging breach of confidentiality – for example, when the therapist reveals some information to the family unit being treated that was learned from one of the participants when others were not present in the session. Practitioners may also face claims for revealing patient information at a workshop or class/seminar, or for revealing patient related information in an article or book. The accusation may be that the practitioner did not sufficiently mask the identity of the patient or that the practitioner used or exploited patient information, without authorization, for professional or financial gain. With respect to articles or books, and where there was an anticipated financial gain for the practitioner/author, my view has been that a written agreement (or signed authorization) should have first been obtained (not a risk free or easy endeavor) before writing about (exploiting?) a patient’s treatment.

Obtaining a proper authorization or written agreement in such situations, or deciding to forego doing so, must be carefully done or considered in order to avoid ethical or legal problems. Legal advice is usually both necessary and wise.* Some believe that if the masking (both of identity and treatment rendered) is properly done, the necessity of seeking agreement or authorization from the patient is obviated. While that might sometimes prove to be the case, more may be required in certain situations. With respect to workshops and seminars, where the presentation is made for academic purposes and not for commercial or financial gain, masking of the patient’s identity is usually sufficient and not likely to generate problems.

Breach of confidentiality claims are sometimes asserted when a therapist or counselor makes a required child abuse or elder abuse report – or any other report that is mandated by state law. The aggrieved person may allege that the report that was made was not authorized under the applicable reporting law, or that it was made in bad faith, or that too much information was revealed, or that there was otherwise an improper breach of confidentiality. Mandatory reporting laws in the various states usually contain provisions related to the content of reports and immunity from liability for mandated reporters. The immunity granted should be broad enough and strong enough to defeat most breach of confidentiality claims arising from the filing of a mandated report. Some state laws may require the “good faith” of the reporter, which is usually not a difficult standard to meet.

Patients and practitioners sometimes conflate the notions of confidentiality and privilege. The concept of privilege involves the right to withhold or prevent testimony or the production of records in a legal proceeding. The privilege is held by the patient and may be waived by the patient, while the duty of confidentiality is imposed upon the practitioner by state law and is essentially a restriction on the volunteering of information outside of the courtroom/litigation setting. When the practitioner properly complies with a subpoena by producing treatment records or delivering accurate and truthful testimony at trial or deposition, there is no breach of confidentiality simply because the evidence turns out to be embarrassing or harmful to the patient, resulting in patient anger and retaliation. Before complying with a subpoena, the practitioner must make sure that the psychotherapist-patient privilege has been appropriately asserted and resolved.

I have spoken with therapists whose spouses accused them of breaching the confidentiality of patients by revealing to the accusing spouse both the identity of one or more patients and some content from the therapy. The allegations may surface during and within a therapist’s divorce proceedings and in a complaint by the spouse to the licensing board. There are defenses that can be raised, but perhaps that is for another article!

*Please note: CPH & Associates policy holders have 2 hours of legal consultation per policy year as a complimentary benefit! This legal consultation is limited to situational liability risks related to malpractice / professional liability or state licensing board concerns.

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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Avoiding Liability Bulletin – July 2017

Personal training services are sometimes offered to new health and fitness facility clients on a free or reduced fee basis at least for a limited time following membership purchase.  Once those services are secured, many new facility members approach these sessions enthusiastically but often unrealistically, as many of them look forward to immediate or very fast results.  Some personal trainers also begin these sessions with new clients on an equally enthusiastic basis but sometimes prescribe and supervise activity which can lead to some kind of untoward event or injury, usually followed by claim and suit.

For example, in an Ohio case, a health club member signed up for two free sessions with a personal trainer.  While she was utilizing a leg press machine on her first personal trainer visit, she felt a sharp pain in her neck which radiated down her arm.  The trainer allegedly told the client “that the pain was due to . . . [her] weak upper body.”  The client also claimed she was told that the pain “would get better as . . . [the client] got stronger.”  While the client thereafter enrolled in ten more personal training sessions, she was diagnosed with three herniated cervical disks.  A former employee of the facility told her that the disk injuries were probably caused by the leg press machine and that the personal trainer should never have allowed her to use that machine.  She subsequently filed suit.

In another Ohio case, a facility member joined a club and paid for ten personal training sessions.  During the fifth personal training session, the member suffered severe injuries on a leg press machine while under the personal trainer’s supervision.  Suit was subsequently filed.

In a Kentucky case, a new facility member attended an initial session to meet a personal trainer for what “he believed would be [an] evaluation of his fitness level and [receive] instruction on various pieces of fitness equipment.”  After the member told the personal trainer of his poor state of physical fitness, the member alleged in the complaint which was later filed that he was then directed to perform several strenuous exercises.  The member claimed these exercises led to external rhabdomyolysis after the personal trainer encouraged him to continue with the workout.  Suit was subsequently filed seeking damages in excess of $25,000.00.

In yet another case from New York, a personal training client suffered lower back pain and ultimately had to have surgery to correct two herniated disks after following a trainer’s written instructions to perform weight lifting moves.  Suit was subsequently filed which did not get resolved upon a summary judgment motion.

As at least these four cases demonstrate, untoward events can and do occur during personal training sessions, sometimes even during initial sessions.  Personal trainers need to be attuned to their client’s comments and especially complaints during these training sessions.  Moreover, personal trainers need to observe how clients carry on the recommended or prescribed activity.  When either client statements or observed activity indicates a need to stop an exercise session, the session needs to be stopped.  If acute pain is expressed by the client or observed in the client by the personal trainer, like the pain indicated in the first Ohio case mentioned herein, an assessment needs to be done to determine if a referral to a health care provided needs to be made.  Sometimes sharp or intense pain may indicate a need to refer.

While fitness professionals cannot diagnose injuries, they certainly can refer and recommend follow up medical care.  Absent client expressions of injury, an observed lack of normal muscle motion control or similar observed conduct may also indicate a need to refer.  When in doubt, a referral may be the most prudent course of action to follow.  Written or electronic records should be contemporaneously developed and maintained so that proper client advice may be noted while also providing a record of what transpired.  The best rules in these situations may be:  Listen and Observe – Don’t Diagnose, but Refer!!!

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented.  It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work.  If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought.  Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.
Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations
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David Herbert