Have you received a notice letter that you are being set for the Office of Administrative Hearings? What does that mean? What that means is you are being set for a trial where you will be cross-examined and asked to defend yourself against escalated and added charges. The Board of Nursing’s legislated laws, rules, and regulations, and especially the Nurse Practice Act, are all promulgated under Administrative Law. Administrative Law is a complex body of law that, unlike civil or criminal law, include most of the basic constitutional protections. There is no right to a jury trial, no right to protection from double jeopardy, no right to know and see all the evidence to include that which may be exculpatory, no right to know what your accuser alleged, no right to a speedy trial, and only limited due process. Likely, the most shocking part of the process is the endpoint. In any other branch of law, the decision by the Judge is a ruling and, unless overturned on appeal, is binding. That is not the case in an Administrative Court. The Administrative Law Judge is only permitted to offer a Proposed Decision that the Board of Nursing can override. The nurse can literally prove their innocence, and the Judge agrees, and the Board can say: “Sorry, we don’t care. We are still going to ruin their life, career, and future”. It is beyond belief that such a system exists, especially a system of justice or pseudo-justice.
In the landscape of Administrative Law, nurses often find themselves at severe disadvantage, pitted against the Goliath that is the Board of Nursing – an agency unburdened by external oversight, armed with external legal resources and legislative power. Often, nurses are blind to the fact they have an option before having to go all the way to an Office of Administrative Hearing. An Administrative Hearing is a TRIAL to defend against the Board of Nursing charges in front of an Administrative Law Judge. It is the real deal, and most nurses lose at an Administrative Trial.
No nurse wants to proceed to trial. At trial, the deck is stacked against the nurse. The Board’s case is defended by more than one attorney, led by the State Attorney General. The Attorney General is also the authority who is charged with overseeing the Board’s conduct. Being that the Attorney General is ultimately the Board’s Defense Attorney, however, presents quite a conflict of interest. In essence, there is no oversight of any Board of Nursing; they are a sovereign agency. Also, the Board will put on retained experts to testify against the nurse. The nurse is unlikely to be able to afford expensive expert testimony. The Board also has subpoena power and will subpoena multiple witnesses to testify. Overall. The Board of Nursing is able to put on a far better legal case than most defense licensing attorneys are funded to do. It is, therefore, always better to try and settle your case before trial.
There is a mechanism that is effective to negotiate a settlement of contested Board of Nursing charges before going to trial. Many nurses do not know, and many attorneys fail to tell their clients, and even fewer attorneys who work for the Most State Offices of Administrative Hearings offer Mediation or sometimes called Alternative Dispute Resolution. Nurses tend to do well at mediation as it is an informal setting with just you, your attorney, the Board attorney, a Board expert, and the Administrative Law Judge or Mediator. Mediation is held in a room in the Administrative Court House, and all parties sit around a table. The ALJ will invite one party to start and make their case; then, the other side will present their case. They both then negotiate over terms with which they disagree; the nurse and their attorney may present pre-submitted evidence exhibits and themselves testify. It may be the first time the nurse has really had a chance to be heard and present evidence proving their innocence.
I have seen many cases where, at mediation, the nurse was able to demonstrate to the Judge that in the medical record, there was clear and convincing evidence in the way of documentation that an allegation was false. One such case involved allegations of drug diversion. There were charges of diversion of 50mcg of Fentanyl in the Post Anesthesia Recovery Room. We had requested all the medical records to be reviewed. The accused nurse was able to locate within the medical records where he had clearly documented titration of the Fentanyl in gradual doses. The Board of Nursing Investigator was not a nurse or health care provider and was unfamiliar with electronic medication administration records. These particular electronic records were difficult to read and required familiarity with the electronic medical record documentation in the post-anesthesia recovery room. The Investigator had missed two doses of 25 micrograms of Fentanyl that were administered and documented as given 30 minutes apart to the same patient. In mediation, the nurse showed the Judge and the most displeased Nursing Board Attorney and expert that there was no diversion. The charges were dismissed.
Another case involved the allegation of failure to administer intravenous Vancomycin to a patient who was allegedly septic. Again, we had obtained the medical records, and the nurse had carefully reviewed them. We were able to demonstrate to the Judge that there was no violation of the Nurse Practice Act. Again, an investigator in another state with no healthcare experience had reviewed the medical records and clearly was not familiar with what they were reviewing. The records demonstrated that Vancomycin had been given in the Emergency Room one hour before the patient arrived on the floor. The Pharmacy had scheduled it to be given only 2 hours after the patient’s arrival, which would have been a violation of the standard of care. The Nurse recognized the pharmacy error and sent a message to the pharmacist, which she had documented. There was also an order in the record to “start Vancomycin STAT.” The Hospitalist apparently was unaware that Vancomycin had been ordered by the emergency room physician and given. The other charge was that the nurse failed to order a normal saline bolus. The bolus was ordered to be given “regular,” not “stat.” The Investigator was operating on the basis of the belief that the patient was septic. The truth was the patient had resulted in having a normal lactic acid and C reactive protein. His white blood cell count was only slightly elevated. He was ruled out for sepsis in the emergency room, though he was given four liters of fluid. He had never had a tachycardia above 110, was febrile at 101, was never tachypneic, was never with dyspnea, never had mental status changes, but did have a site of infection being C diff, which he was on Vancomycin at home. He was diagnosed with dehydration before he was admitted to the floor by one of the emergency room physicians. He did have a high BUN and concentrated HCT. The point being that he did not require the normal saline bolus as a part of a sepsis protocol or given STAT. It was acceptable to complete the initial assessment and, within 60 minutes of the patient’s arrival, administer the bolus, which the nurse did. This mediation ended very rewarding as the two sides broke out, and the Judge went between the two rooms mediating. It did not take long before she came to us and said: “All your charges are to be dismissed.” She then added, saying to my client: “I want you to know I have seen a lot of nurses, and if my family or I were ever sick, I would want you to take care of us.” WOW, we were stunned. Mediation often works because it is the only time the nurse gets a face to-face with the accusing Board to be BE HEARD.
While it may appear that the scales of justice are irrevocably tipped, there remains an underutilized pathway to fairness: Mediation. This alternative Dispute Resolution allows nurses a voice and a fighting chance to substantiate their actions and challenge false allegations. Mediation represents more than just a legal strategy. It is a clarion call for the reassessment and reform of a system that too often neglects those it purports to oversee. The power of mediation should not be underestimated; it offers nurses the rare opportunity to be heard, to present incontrovertible evidence, and to reinstate their tarnished reputation. By opting for mediation, nurses can navigate around the formidable barriers of a biased system and stand up for the justice they deserve.