Perhaps the only experience more daunting for a healthcare provider than a malpractice lawsuit is your state’s nursing or physician assistant board investigating you, potentially putting your professional license at risk. Such an investigation may arise for a variety of reasons — from a practitioner committing a crime to a patient’s accusation of negligence.
A large percentage of licensing board investigations involve patient complaints or concerns about their care, Michael Paul Ringwood, Esq., equity partner at Smith Sovik law firm of Syracuse, New York, who’s defended healthcare providers for the past 35 years, tells Florence Health. These are recommended steps to take should this happen to you.
1. Know what types of misconduct fall under your state board’s jurisdiction.
Before any investigation may arise, familiarize yourself with what offenses your local nursing or physician assistant board can discipline you for. The National Council of State Boards of Nursing identifies seven categories of misconduct: practice related, drug related, boundary violations, sexual misconduct, abuse, fraud, and positive criminal background checks.
Ringwood adds that bad behavior unrelated to workplace conduct, such as receiving a DUI, usually falls under their scope. The first step to protecting yourself is knowing what’s allowed and what isn’t.
2. Notify your employer.
Not only does honesty help you maintain a positive relationship with your employer, but your employment contract may also require it. That is to say, many contracts include an obligation to notify your employer if you’re under investigation. What’s more, if the state board reaches out to your employer before you to request medical records, your employer may already know about the investigation.
3. Locate, preserve and protect all records relevant to the patient’s claim.
Without a doubt, the investigating body will want to review the complaining patient’s medical charts. When compiling them, it will behoove you to include all patient records, not just dictated office visit notes. Think triage phone call records, patient questionnaires, appointment logs, billing and payment documents, labs, x-ray reports, and records received from other healthcare providers, even hospitals. Once you’ve gathered them all, you’ll want to review them, perhaps with your employer, to assure you remember the details of the specific patient.
4. Assess whether your malpractice insurance covers licensure investigation.
Next, Ringwood says you should find out whether your malpractice insurance covers legal expenses (and how much) for a licensure investigation, so call your professional liability insurance company. If your insurance does cover licensing investigations, the coverage is usually as least $25,000, which you can put toward legal fees only. For example, if the state board imposes a fine, your insurance likely won’t pay it. You can, however, use it to pay an expert, perhaps a fellow nurse or mid-level provider to review your records and provide a confidential, second opinion.
If you do have insurance for licensing investigations, you should involve a lawyer with the necessary expertise as soon as possible. If you don’t, then you’ll have to decide whether to pay a lawyer out of your own pocket or defend yourself.
5. Find an attorney who’s available to defend you, should you need one.
Even if you don’t have insurance, Ringwood recommends hiring a lawyer because doing so might be more affordable than you anticipate. Why? “The lawyer’s not going to bill you until he or she’s spent any meaningful time with you,” he explains. “And very often, administrative investigations open and then close after the licensing authorities see and read the chart.”
Ringwood adds that he often will wait to work with clients until they send the relevant charts to the licensing authority and it responds. “If you get a letter saying they’ve closed the case, then you send me a copy and we’re done; I haven’t done anything for you, and I didn’t need to,” he explains. “If they want to interview you, then we have to sit down and talk.”
6. Consider all ramifications of admitting to any wrongdoing, even if it seems simpler than fighting it.
Occasionally, licensing authorities will tell you they will close the case if you pay a modest fine. In that moment, doing so may seem easier than hiring a lawyer and fighting the claim, but Ringwood cautions against this route. One reason why is you’ll essentially be admitting guilt, which can jeopardize your job. To name another potential consequence, conceding to wrongdoing may remove you from the list of approved providers that can bill Medicare, Medicaid and major, private insurers — and many medical facilities won’t employ NPs and PAs who don’t qualify, Ringwood says.
7. Keep all documents across licensure investigations, malpractice claims and employer hearings consistent.
Many times, a licensing body’s investigation comes as a result of or at the same time as a malpractice lawsuit. On top of that, you might even find yourself attending a conduct review hearing held by your employer. If you hire multiple lawyers, be sure they communicate so the documentation across all legal avenues is consistent. If you’re defending yourself, maintain the same standard.