August 2018

As a mental or allied health professional, you’re often times focused on providing the best care to your patients / clients. When getting professional liability insurance as a mental health or an allied health professional, you’re usually just checking a box for credentialing, am I right? To be honest, we don’t blame you. That being said, it’s our job to make sure you confidently check that box, knowing what your professional liability coverage offers. We understand, professional liability insurance isn’t the most exciting thing to learn about, but it’s important. It’s important to you and your career so we thought we’d break the details down so you can feel ensured when checking that box. See below for the first few topics we wanted to address:

Are we missing something? Is there an area of your professional liability insurance you’d like us to help you better understand? Send an email to info@cphins.com with your question(s) and we’ll do our best to get that cleared up for you.

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CPH Insurance

Over the last decade, more than 500,000 people chose CPH Insurance for liability insurance. Because our business is specialized, we are able to focus on your liability needs in a way that bigger companies are not. Our team of associates represent over 50 years of collective experience in this field, and we are able to serve a large client base while maintaining a small-office approach.

Avoiding Liability Bulletin – July 18, 2018

It is important to keep in mind that when a patient injury or death occurs due to a nurse’s professional negligence, it is not uncommon for the cause of injury or death to be easily preventable had nursing staff provided basic care.  Such was the situation in the following case.1

Ms. H, 73 years old, was admitted to a medical rehabilitation center in California in December of 2013 after her neck surgery required rehabilitative care.  When admitted, she needed help with feeding and was determined to be at risk for aspiration.  Her physician ordered nursing staff to supervise Ms. H during all meals and not to feed her orally if she was “coughing or was lethargic”.

On January 3, 2014, Ms. H’s PICC line became dislodged and was reinserted. The next day, she developed swallowing problems, had “crackles” in her lung sounds, and had thick brown, yellow secretions that required suctioning.

The speech therapist at the center evaluated Ms. H and recommended a change in diet to “Dysphagia finally chopped”.  A videoesophagram was also ordered for the following Monday.

Lab work done on the weekend indicated a white blood count (WBC) of 34.4, a value critically high.  However, the nursing staff did not notify Ms. H’s physician of this level nor did the physician notice the high level.  As a result, no antibiotic was given to the patient.

Ms. H continued to have difficulty swallowing and lost her voice.  It was presumed that she had possible vocal cord paralysis.  Her physician changed Ms. H’s diet on January 5th from the “Dysphagia” diet to a pureed one and again ordered the staff to observe her frequently while feeding.

On January 6th, the speech therapist performed a bedside swallow evaluation with scrambled eggs and oatmeal from Ms. H’s breakfast tray.  Within an hour, the patient was in pulmonary arrest and respiratory failure.  A Code Blue was called.

During intubation during the Code, the pulmonologist noted “copious amounts of secretions that looked like tube feeding were suctioned from her trachea”.  Ms. H was not on any tube feedings.

Ms. H was transferred to another facility where she remained on the ventilator until her death on April 4, 2014.  She was treated for aspiration pneumonia with antibiotics for a long period of time.  The prolonged antibiotic therapy resulted in the development of Clostridium Difficile (C. Diff).  Ms. H died on April 4, 2014 from “sepsis secondary to C. Diff”.

The family filed a lawsuit against the medical center alleging wrongful death, medical malpractice and elder abuse.  The family (the plaintiffs) specifically alleged that the medical center failed to take “all aspiration precautions” with Ms. H, despite its knowledge of her aspiration risk.  They charged that from the time of Ms. H’s admission until the aspiration event, nursing staff did not supervise or assist her with her meals.

The family’s experts testified that the center, through its nursing staff, breached the standard of care when failing to assist and supervise Ms. H with all meals and that the cause of Ms. H’s death was due to a pulmonary arrest due to the aspiration of breakfast food the morning she arrested.

The medical center’s position was that she was in a rehabilitation center and “assistance did not mean feeding her or staying with her when she ate.”  It also contended that her death resulted from septic shock from an infection from her PICC line and not the aspiration she experienced. It also purported that the aspiration was the result of the Code Blue was not the result of swallowing food at breakfast.

Testimony during the trial revealed interesting evidence.  For example, the family testified that Ms. H always received a regular diet up until she aspirated the food on January 6th.  Her medical record revealed no documentation that the correct diet(s) were given Ms. H after the doctor changed the diets.

In addition, it was the plaintiffs’ experts’ opinion that the tube feeding that was suctioned during the Code Blue was not tube feeding but oatmeal that the patient had been fed on the day she aspirated her breakfast.

The jury returned a verdict in favor of the family for $1,743,894.60.

Like many others I have shared with you in these Bulletins, the cause of death was clearly avoidable had the nursing staff provided basic nursing care to Ms. H. If you care for a patient who has difficulty swallowing, the following standards are essential:

  1. When an order for assistance with feeding is written by any health care provider, it means helping the patient eat food and drink liquids;
  2. When an order for assistance with feeding is written, it requires your presence with the patient at the time of eating food and drinking liquids;
  3. While assisting with feeding and drinking, constant observation and assessment of the patient is essential;
  4. Document what is observed and assessed, and how the patient did with eating and drinking;
  5. Notify the physician or other health care provider of the patient’s progress or lack of progress during meal times;
  6. Immediately notify the physician or other health care provider of abnormal lab values;
  7. Orders for changes in a patient diet must be communicated immediately to the dietary department and ensure compliance with those orders; and
  8. Keep current with standards of practice when caring for patients with a swallowing disorder.

FOOTNOTES

  1. Higgins v. Providence Health System (2017), Neubauer & Associates (2018). “Aspiration warnings for 73-year-old hospital patient ignored by staff. $1.7M.  Los Angeles County”, @ juryverdictalert.com.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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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).

Lawyer Limelight Featuring Denis K. Lane, Jr., Attorney at Law

Denis Lane, one of CPH Insurance’s help line attorneys, has been practicing mental health law and civil litigation since 1978. Although Denis is now based in Colorado, having attended law school at The University of Oklahoma and spending some time working in Washington DC, he is licensed to serve and has assisted many of our insureds from all over the US! He’s an established author and has spent a lot of time publishing and lecturing on law and ethics for mental health professionals as well as serving on the Ethics Committee for the American Mental Health Counselors Association (AMHCA). CPH Insurance is proud to work with Denis and share his expertise with their insureds. Read on to learn more about Denis in our Lawyer Limelight blog series Q&A:

Q: Can you tell us about your family?

google doodle

A: I have 2 daughters, their husbands (my sons-in-law) and two granddaughters, who are 4 and 7 years old.  My 7 year old granddaughter was just named the National Winner of the Google Doodle contest with her “Dino Doodle” which illustrated dinosaurs spelling out “Google”.  It was so exciting considering there were 180,000 entries and the other national finalists were older, included high school students! I try to see my grandchildren as often as possible and enjoy staying in touch through social media.

Q: Where is your favorite place in the world and why?

A: I love travels to Ireland, especially County Mayo and the town of Ballylinan, where the Dempsey clan live.  It’s fun to visit relatives (cousins) who live there and are incredibly welcoming!  My other favorite place is wherever my family members are, whether Baltimore, MD, Washington, D.C., Montenegro, etc.

Q: If you didn’t pursue mental health or law, where do you think life would have taken you? What would have been/was your “Plan B”?

A: I might have been an actor.  My ambition was to play center field for the N.Y. Yankees but unfortunately, my greatest skill was in arguing cases in court.  There is no market for poetry these days, so it would’ve been difficult to make a living as a Poet….

Q: Do you have any special / unique talents?

A: I do like to write poetry.  I love to sing—it frees the soul.  These abilities developed late in life!

mello and blue

Q: Do you have any pets? What kind? What is his/her name(s)?

A: I have 2 dogs and 2 cats:  the dogs are Mello and Blue, a Great Pyrenees and a great big mutt!  Mello is famous among family and friends as a dog who helps guide Santa’s sleigh (because Rudolph’s nose wouldn’t glow) and protects him on his trip around the world, taking presents to good girls and boys, in an annual poem during the holidays.  The dogs get to come to the office every day and clients love them.  The cats are also loved and sometimes catch mice!

Q: It’s Friday night and you must choose between going to a sporting event, a musical theater performance, an exercise class or staying home on your couch. Which do you choose and why?

A: A musical theater performance. Phantom of the Opera is my all time favorite musical!  It spoiled me for other shows.  I wish I could sing, “Music of the Night.”  It is a sad story, but what music!

Q: Anything else you’d like to share with us?

A: I have great respect for Mental Health Professionals with whom I consult and whom I represent.  Their work is so important these days!  Preserving families. Helping children. Saving lives. They are in the trenches doing difficult work, and I try to support them in any way I can.



CPH Insurance offers an Avoiding Liability Helpline as a policy holder benefit. For concerns or incidents that may lead to a claim, your policy includes 2 hours per policy year to consult with an attorney. Examples of such consults include:

  • Release of record requests
  • Custody issues related to a minor clients
  • Client suicide risk situations
  • Criminal client matters and navigating law enforcement requests with respect to confidential client information

Denis Lane is one of our helpline attorneys based out of Colorado, but he services all states. If you’d like to work with him, feel free to request Denis upon calling CPH Insurance for an attorney consult. We cannot guarantee that we’ll be able to match availability on short notice, but we can certainly try!

Professional liability for mental health professionals is a valuable asset considering the complex matters that are faced daily. We encourage our insureds to become a member of a professional association such as AAMFT, CAMFT or AMHCA to leverage association benefits, such as attorneys on staff, as a reference point for legal and ethical guidance. Such associations also have a strong network of mental health professionals that share practical experience gathered over years of practice to assist in navigating similar dilemmas you may experience. Do not underestimate the value of your professional association as a practical resource and advocate on your behalf!

April 2023 Update: Denis Lane has retired and is no longer a CPH helpline attorney.

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CPH Insurance

Over the last decade, more than 500,000 people chose CPH Insurance for liability insurance. Because our business is specialized, we are able to focus on your liability needs in a way that bigger companies are not. Our team of associates represent over 50 years of collective experience in this field, and we are able to serve a large client base while maintaining a small-office approach.

Avoiding Liability Bulletin – July / August 2018

Administrative Due Process – The term “administrative due process” refers to the due process rights of licensed mental health practitioners who are the subjects of enforcement actions taken by state licensing boards. At a minimum, administrative due process refers to the right to be notified of alleged unprofessional conduct and the right to be heard (e.g., at an administrative hearing). Exactly how that is implemented in a particular state depends in large measure upon the state laws that relate to administrative proceedings brought by state agencies against licensees of the state.

On occasion, a licensed mental health practitioner may be contacted by an investigator for the licensing board and may be requested to meet with the investigator about an intentionally unspecified matter. Such a circumstance usually prompts licensees to consult with a lawyer before meeting with the investigator. In California, and I suspect (or hope) in other states, there is a law that generally gives licensees the right to inspect and to obtain copies of their complete file maintained by the licensing board. Under limited circumstances, the board is allowed to delete references to an information source or to provide a comprehensive summary of the substance of the material. Access to the licensee’s file will usually provide the licensee and the licensee’s attorney with relevant information about the nature of the complaint or investigation.

While the board investigator (often a “peace officer”) may seek to catch the licensee unaware and unprepared, this due process protection allows the licensee to respond to the inquiry with the benefit of some degree of preparation. Additionally, the law in California makes clear that the board must ensure that full disclosure is made to the licensee of “any personal information that could reasonably in any way reflect or convey anything detrimental, disparaging, or threatening to a licensee’s reputation, rights, benefits, privileges, or qualifications, or be used by a board to make a determination that would affect a licensee’s rights, benefits, privileges, or qualifications.”

Coaching – Some licensed mental health practitioners ask whether they can conduct their practices as one or another kind of “coach” in order to avoid, among other things (e.g., dealing with health insurers etc.), many of the requirements, strictures, and duties related to the regulated practice of mental health care.  Can this be done with some assurance that the licensing board will no longer be able to successfully pursue disciplinary action (assuming that the license has not expired or been properly surrendered) in the event of a complaint being filed? Such a transition must be executed in good faith and with much thought and care – there are a lot of considerations and issues.

There is no magic or quick answer to the above question – but it is important to understand that the manner in which the “practitioner” holds himself or herself out to the public (e.g., advertising, letterhead, social media) and the nature and extent of the disclosures made to the potential client are critical (but not the only) factors. Of course, the actual services rendered and the facts and circumstances involved will always be scrutinized. For example, has the mental health license been revoked and now the person is practicing as a coach – but arguably doing essentially the same work? If the board believes that the “coach” is practicing mental health care without a license, a criminal referral could be made and an injunction or cease and desist order could be sought. If the license status remains in good standing, the board may assert that the practitioner is subject to enforcement because the transition to “coach” was in name only.

Dual Relationships – Not all dual relationships are unethical or unlawful. Licensing boards sometimes get overzealous about this issue and forget that dual relationships that, for example, do not impair the judgment of the practitioner or that are not likely to lead to exploitation of the client may be clinically and ethically acceptable. The various mental health professional associations each have their respective definitions of the term and provide insight into which dual relationships should be avoided and which may be clinically appropriate or acceptable.

Various extra-therapeutic contacts with a patient that are incidental (but entered into knowingly) or accidental will not necessarily constitute a dual relationship. Most ethical standards also recognize that practitioners can sometimes find themselves in an unexpected dual relationship despite their careful and prudent actions prior to the realization. Thereafter, the practitioner may be required to terminate or to be careful that his or her judgment is not impaired and that there is no exploitation of the patient. Clinical consultation may be necessary and helpful – from both a clinical and legal standpoint.

Termination – Can a practitioner ethically terminate therapy with a patient if the patient is unable to pay for one or more sessions? If the answer is “yes,” might the practitioner have to see the patient one or more times in order to terminate therapy properly? If yes, would the relationship then become a dual relationship because a new relationship has been established – that is, a debtor –creditor relationship (since the patient cannot presently pay)? Must or should the practitioner in such a circumstance waive the fee in order to be safe from such an allegation?

Greed/Exploitation – When engaged in long-term therapy, is the practitioner vulnerable to a claim by the patient that the practitioner unethically continued treatment solely because of the desire for continued financial gain? Is it necessary for the treatment records to reflect that the patient is making progress or that the treatment is having a beneficial effect? If no or minimal progress is being made, would it be wise for the treatment records to reflect that a referral to another practitioner was discussed with the patient and that the patient nevertheless wished to continue with the professional relationship?

Immunity – Do you have statutory immunity from liability when you act in a manner specified in the law related to patients who present a serious danger of physical violence to others? Can you act in a manner not specified in the law and nevertheless act in a reasonable manner resulting in no liability? Do you have immunity from liability for making a required child abuse or elder abuse report? What if the child or elder abuse report is not required, but only permitted – is there immunity from liability? Will the immunity protect you if the patient merely alleges that the report was not required or permitted and that you therefore breached the patient’s confidentiality?

Clinical Judgment – Health care practitioners are not necessarily liable for honest errors in judgment. Reasonable minds may differ with respect to clinical decisions or actions taken in a particular case. However, if negligence is found, the health care practitioner may be found to be liable in a civil action. The exercise of clinical judgment is necessary in every case, and licensees should not be expected to be right or perfect all of the time.  Documentation of key decision points and the rationale for decisions are important aspects of recordkeeping. Of course, documentation of clinical consultations (whether formal or informal) may be helpful in defending or explaining the actions taken or the conclusions reached. The failure to document key decision points allows the patient to argue that key issues were not recognized and that the practitioner was therefore negligent.

Kickbacks – It is typically unlawful under federal and state laws for licensed health care practitioners to refer patients to others in return for some form of compensation – whether monetary or otherwise. Would an agreement between a mental health practitioner and a massage therapist (or a psychiatrist) to make referrals to one another constitute a violation of such a law? What about mutual referrals between spouses in related health professions or otherwise?

License numbers – Are physicians practicing in your state required to include their license numbers on their letterheads or in advertisements – such as in a business card, sign, TV, radio, or Internet ad – or otherwise? Is the answer the same for LCSWs, LMFTs, or LPCCs in the state in which you practice? If not, why are these licensed health care professionals treated differently from physicians? I assume that licensed plumbers and electricians must use their license number in advertising. I would hope that mental health practitioners are treated the same as physicians – not general contractors or other tradespersons.

Minimum necessary – Mental health practitioners, whether governed by HIPAA regulations or state law, should be in the habit of revealing or providing only the minimum amount of information necessary to accomplish the purposes of a request for information pertaining to the treatment of a patient. Insurance companies and others request information for a wide variety of purposes – and rather than share as much as possible, practitioners should generally abide by the minimum necessary principle. An exception to the “minimum necessary” principle or rule is where there is a written authorization, signed by the patient, to release specified information. In that case, the amount of information released is governed by the content described in the signed authorization form. Ambiguities as to content should be clarified. In dangerous patient situations (danger to self or others), practitioners may need to share more than the minimum necessary in order to assure that an imminent threat of physical violence is clearly understood and that appropriate actions are taken. Finally, the minimum necessary rule or policy generally does not apply to the sharing of information with other health care providers for purposes of the diagnosis or treatment of the patient. In such situations, more information rather than less is typically the norm.

HIPAA – remember, it’s HIPAA, not HIPPA!

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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.

Learn more about Richard Leslie

Avoiding Liability Bulletin – July 2018

As we have pointed out in various articles in this column, exercise equipment use by fitness facility clients can lead to injury and then claim and suit.   While treadmills may account for a significant segment of these kinds of incidents, any exercise device can lead to injury and then claim and suit.  Oftentimes, frequent pre-use inspections can help avoid some such injuries and sometimes then prevent claims and suits from ever arising or at least provide an effective defense to such litigation.  To be sure, inspections are useful in defending litigation.

Readers should remember that regular inspections of equipment can go a long way to assist in the defense of exercise equipment litigation.[1]  While daily inspections may not be required by most industry standards, inspections on a regular basis will certainly assist to document adherence to those standards and thus help in establishing a lack of negligence.[2]  For example, in a 2015 case from California[3] a facility’s usual pattern of daily exercise equipment inspections greatly assisted it in the defense of an exercise equipment injury litigation.  In another case,[4] which we previously reviewed in this column,[5] monthly equipment inspections were deemed to be adequate to defend against a personal injury case where the plaintiff failed to present more stringent inspection requirements via expert opinion and/or industry standards.

Evidence of regularly conducted inspections of exercise equipment can be supported by industry standards and thus meet legal requirements.  As pointed out in the relatively recent California litigation on this issue,[6] the court ruled that the defendant club “took several measures to ensure that its exercise equipment and facility were well-maintained.  For example, [the evidence showed] it hired a facility technician whose job was to conduct a daily inspection of the facility and perform preventative maintenance.  If the facility’s technician was unavailable . . . [the club] had a practice of requiring other staff members to conduct the inspection and perform any required maintenance.  In view of these measures [the club] . . . cannot reasonably be regarded as demonstrating a want of scant care or a departure from the ordinary standard of conduct.”

The point is that evidence of regularly conducted inspections can to a long way to defend against exercise equipment injury cases.  In order to properly do so, equipment records must be developed, then properly and regularly completed and preserved for later use as defensive measures when needed.  A lack of regularly conducted inspections, as well as a lack of subsequent maintenance as required and equipment repair/replacement can result in successful litigation against facilities.  Once record keeping is established for exercise equipment, regular notes of inspections, maintenance and repair must be maintained and preserved for potential later use.  No facility or fitness professional risk management plan should exclude such measures.

[1] See, Herbert, Daily Inspection of Exercise Bank Helps Win Defendant’s Verdict – Upheld on Appeal, https://www.cphins.com/daily-inspection-of-exercise-band-helps-win-defendants-verdict-upheld-on-appeal/

[2] See, Herbert, Are Monthly Fitness Equipment Inspections Sufficient to Avoid Negligence Claims? https://www.cphins.com/are-monthly-equipment-inspections-sufficient/

[3] Grebing v. 24 Hour Fitness USA, Inc., 012915CAAPP2, B28866A, California Court of Appeals, Second District, Third Division, January 29, 2015.

[4] Willard v K Smith Holdings, 111517 WICA, 2016AP2431, Court of Appeals of Wisconsin, District II, November 15, 2017.

[5] See, footnote 2 supra.

[6] See, footnote 3 supra.


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

Avoiding Liability Bulletin – July 1, 2018

I recently came across a narrative Online of a shocking case involving an LVN.1 The author changed the names of those involved to protect their privacy, but the facts are accurate. Despite my inability to review the actual case, I thought the situation was one that has implications for all nurses, including LVNs.

The LVN (I’ll call her Mary) involved in this situation was hired to provide the residents with care that included help with bathing and with meals.

Mary had a questionable work history at the nursing home.  She had been “verbally reprimanded for nurse negligence” on three separate occasions within a short time after her employment began.  These incidents involved being “non-responsive to a guest’s inquiries”.

Two months into her employment, Mary had received two written reprimands.  The first involved her pushing a resident in a wheelchair into a wall (her excuse was that she slipped on a wet floor and was unable to avoid the wall).  The second was for hitting a resident when the resident openly complained about  Mary’s rudeness.  Her explanation was that she did not hit the resident but rather was trying to “settle the man down” and her hand may have “accidently hit his face”.  Neither resident was injured.

A 71-year-old patient (I’ll call him John) decided to admit himself to this nursing home after his hip replacement surgery. The nursing home cared for residents who needed only “very basic” help with their daily routines.  As such, state law required at least one RN be on staff, so most of the nursing care was done by LVNs and orderlies.

John was confined to his wheelchair.  An important role of the LVN staff was to help him get out of bed and into the wheelchair and back into bed.

On the day of the incident, John “called out” for an LVN to help him use the restroom to no avail.  After several minutes of asking for help, Mary, who was assigned to provide care to John, came into the room.

Prior to responding to John, Mary was watching her regular television show and was not happy about not being able to continue watching it when she went to John’s room.

Another LVN (I’ll call her Jane) also broke away from the television to check on another resident and followed Mary into John’s room.  The LVN heard Mary say, “I’m tired of yo’ ass”, and struck him about his head and mouth again and again with the phonebook in John’s room.

Jane overheard Mary’s comment and turned to see her hitting John.  Jane immediately attempted to stop Mary from attacking John but was not able to do so.  The tumult was heard by others down the hall and was seen on the home’s surveillance cameras.

Several administrator’s and LVNs ran into John’s room and were able to curb her behavior, but Mary continued to curse and spit at John.

One of the administrator’s called 911 and the police and paramedics arrived.  John was bleeding from his mouth and nose and was taken to the hospital.  Mary was placed under arrest and charged with a second degree felony, “Abuse of the Elderly”.  Mary was released on bond, which her family raised.

Mary then went to her boyfriend’s apartment and told him she had to “get out of town”.  The boyfriend told her he would get the money from the ATM and to stay in his apartment until he returned.

Instead of getting the money, the boyfriend called the bail bond company who in turn called the police.  Mary was rearrested and bond set at $100,000.

The family filed a lawsuit against the nursing home and Mary, alleging “nurse negligence, nursing home neglect, assault, breach of contract, and negligence”.  Depositions of each LVN who was working the day of the incident were taken. The attorney for the family also subpoenaed Mary’s personnel records and the video tape of the incident.

During the pre-trial proceedings, it was discovered that although it was “customary procedure” for the nursing home to check references and run a criminal background check before hiring an individual, this was not done when Mary was hired.

Had the nursing home done so, Mary’s three convictions for assault, including one felony conviction for assault on an elderly person, would have been discovered.

The video was substantiated as accurate by the nursing home administrator during discovery as well.

The nursing home and Mary settled the case with John shortly thereafter.

Mary’s misconduct was truly criminal.  It is surprising that she still held an active LVN license, especially when she had three prior convictions and one was for an assault on another elderly person.  Much can be gained by remembering Mary’s conduct which underscores these principles:

  1. Never, ever strike a resident or patient;
  2. Never, ever curse, spit or otherwise communicate inappropriately with a resident/patient;
  3. Treat each/resident humanly and with dignity, following the tenants of the Code of Ethics for Practical/Vocational Nurses (1991);
  4. If you work with someone like Mary, you need to share your knowledge of her misconduct with your superiors confidentially but immediately;
  5. If you work with someone like Mary, consult with a nurse attorney or attorney and file a report with the state board of nursing;
  6. Even though you were not directly involved in the unprofessional behavior that Mary displayed, you may be required to provide a deposition under oath as to what you knew, what you saw and what you did surrounding a patient event or events;
  7. Both your criminal history and employment history, including personnel records, can be used in a lawsuit; and,
  8. In most instances, a state board of nursing would render harsh discipline to an LVN or RN in this circumstance, most likely a revocation of the LVN’s or RN’s license.

FOOTNOTES

  1. Injury Claim Coach (n.d.),”Lawsuit Involving Nurse Negligence & Failure to Adequately Screen Staff”, https://www.injuryclaimcoach.com/nurse-negligence.html.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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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).