Transcript Joe Flores - Risk Management for the APRN

NURSES AND APRN’S:
AN APRN ON TRIAL: CIVIL,
CRIMINAL AND LICENSURE
ISSUES
JOE A. FLORES RN,MSN,JD
LAW OFFICES OF JOE FLORES
361-887-8670
[email protected]
Joe A. Flores RN,MSN,JD
• Joe Flores is a nurse practitioner and a trial attorney. Mr. Flores
has practiced in both state and federal court on civil and criminal
matters. His practice also includes representing nurses and other
health care professionals in peer review and state board hearings
for 15 years. Mr. Flores is a nationwide lecturer and author of
articles including topics such as health care fraud, the field of legal
nurse consulting and other areas where nursing and the law
overlap. Mr. Flores has tried dozens of cases on administrative,
civil and criminal matters and has defended nurses accused of
crimes, including but not limited to, assault, drunken driving, drug
possession and theft. He also defends nurse whistleblowers and
has assisted governmental entities in health care fraud
investigations. Mr. Flores has also consulted on cases in many
jurisdictions when nurses or other health care providers and their
attorneys require assistance. Mr. Flores also represents several
home health and hospice companies. Joe can be reached any time
by e-mail at [email protected] or at 361.887.8670. Look out
for his upcoming book and video series in 2017 by getting on his
e-mail list.
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NOTICE
• The following educational opportunity does not constitute legal
advice nor does it constitute solicitation for legal business. For
specific legal questions the learner should refer to lawyers in their
jurisdiction or by contacting their state bar association.
-Joe Flores
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GOALS AND OBJECTIVES
In This Teaching Session The Learner Will:
Gain Knowledge on the NPA and Board Rules And
Regulations Including the Disciplinary Process
• Gain Increased Knowledge Regarding the Criminal
Justice System and the Roles of Key Individuals in the
Justice System
• Review Due Process and Constitutional Rights
• Learn Strategies That Accused Nurses Use To Protect
Themselves During Licensure Disciplinary Investigations
• Increase Knowledge Regarding Due Process and
Constitutional Rights During a Criminal Investigation
• Determine how trouble with the law can affect a nurse’s
professional license, subject them to civil and criminal
prosecution separately and simultaneously
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Learn About the “Anatomy of a CivilJOIN
Lawsuit”
US ATand a case involving Nursing
Negligence
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BASED ON A REAL LIFE
SCENARIO
• Pat is an NP. For the last 12 years Pat has been
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working in pain management and hospice. Pat
is a respected part of the healthcare team.
After October 2014 Lortab/Norco became a
Schedule II drug. Before then Pat could call in
scripts by phone.
Additionally, programs to monitor scripts have
been implemented by DEA
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PAT IS NOT WHO WE THINK
SHE IS
• One afternoon DEA agents along with BON
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investigators raid the pain management clinic
where PAT is employed and is part owner.
They seize cell phones, laptops, and begin
packing up all hard copies of records and
present a subpoena duces tecum for all
documents and a warrant to seize all devices
signed by a federal magistrate
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Dr. Smith her collaborating
physician
• Dr. Smith has been her collaborating M.D. for
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years
Unbeknownst to Pat, the pain clinic has been
under investigation for two years for allegedly
providing over 7,000 “Houston Cocktails” of
Lortab, Soma and Xanax
The medical records reflect a pattern of
providing the same script to many patients
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Facts
• Pat had reported her DPS number being used or
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misappropriated 3 years before at least twice
Local police had made a report but no one was
ever apprehended
Unfortunately, she did not perform continued
verification of her DPS/DEA number fraud or
request another DEA number
She did not inform Dr. Smith of the incident
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MEANWHILE BACK AT THE
CLINIC…
• SPECIAL AGENT STARLING IS
QUESTIONING DR. SMITH IN ONE ROOM
• ROCKY THE MEDICAL ASSISTANT IS IN
ANOTHER
• PATIENT’S HAVE BEEN ASKED TO COME
ANOTHER DAY
• PAT IS IN THE FINAL EXAM ROOM
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THE INTERROGATION BEGINS
• PAT ASKS IF SHE NEEDS A LAWYER
• DEA AGENTS SAY THIS WILL HAVE TO “GO
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ANOTHER WAY” IF PAT CHOOSES THAT ROUTE
She is told she is free to leave if she desires at
any time
NO MIRANDA WARNINGS ARE READ
PAT VOLUNTARILY INFORMS THEM OF THE
PRESCRIPTION THEFT YEARS AGO
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THE DOCUMENTS
• PAT IS SHOWN A LAPTOP FULL OF SCRIPTS OVER 3
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YEARS, MANY OF THEM WITH MATCHING PATIENT
NAMES FROM THE “FEELING GOOD PAIN MANAGEMENT
CLINIC” WHERE SHE IS EMPLOYED
Prescriptions are from an 90 mile radius
SHE DENIES GIVING 90 PERCENT OF THE SCRIPTS,
AND EMPHATICALLY TELLS THEM SHE GAVE NO
REFILLS, AND NO NORCO AFTER OCTOBER 6, 2014.
DEA AND BON INVESTIGATORS TELL PAT THAT THIS
DOES NOT ADD UP
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DR. SMITH’S INTERROGATION
• DR. SMITH IS 78
• HE IS A SEMI RETIRED ANESTHESIOLOGIST WHO RARELY DOES
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ANYTHING BUT CHART REVIEW AND PRESCRIBES MEDICATION
HE HAS BEEN DISCIPLINED IN 2010 FOR FAILURE TO MAINTAIN PROPER
DOCUMENTATION AND FAILURE TO MONITOR PATIENTS RECEIVING PAIN
MEDICATION WITH A WARNING. HE RECEIVED THE SANCTIONS OF
REMEDIAL DOCUMENTATION, JURISPRUDENCE AND CHART MONITORING
HE TELLS AGENTS HE DOESN’T FEEL WELL AND WANTS NO TROUBLE. HE
INDICATES THAT PAT SAW THE PATIENTS, SUGGESTED THE SCRIPTS,
PRE-WROTE THE MEDICATIONS AND DR. SMITH WOULD SIGN THE
NORCO SCRIPTS
HE BECOMES EMOTIONAL AND TELLS AGENTS “PLEASE, I DON’T WANT
TO DIE IN PRISON, I HAVE CANCER. PLEASE, GOD.” AGENTS TELL HIM TO
REVEAL ALL HE KNOWS ABOUTJOIN
PATUS
AND
AT HE WILL NOT BE CHARGED.
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ROCKY THE MEDICAL
ASSISTANT
• ROCKY HAS A HISTORY OF A DEFERRED COCAINE POSSESSION AND A
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MARIJUANA CHARGE WITH TWO DRIVING WHILE INTOXICATED ARRESTS
BECAUSE HIS ATTORNEY OBTAINED DEFERRED ADJUDICATION ON THE
DRUGS, ROCKY HAD EXPUNGEMENTS ON THE DRUG CHARGES THAT DID
NOT SHOW UP ON A BACKGROUND CHECK. HE ALSO HAD ONE OF THE
TWO DWI’S DISMISSED AND THE OTHER HE PLED RECKLESS DRIVING.
THIS MADE HIM HIREABLE AND LOOK LIKE HE ONLY HAD MOVING
VIOLATIONS.
HOWEVER, ROCKY HAS HAD A TASTE OF COUNTY JAIL AND IS TERRIFIED
OF GOING TO PRISON
AGENTS TELL HIM HE HAS HIT “THE BIG TIME” NOW BEING A PART OF
CONSPIRACY TO RUN A PILL MILL AND COULD DO FEDERAL TIME.
WITH TEARS STREAMING DOWN HIS EYES HE TELLS THEM “I DON’T
WANT TO GO TO THE PEN. PLEASE.”
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ROCKY TELLS ALL
• ROCKY, FILLED WITH TERROR, TELLS OF DRUG PRESCRIPTIONS
FLOWING LIKE “MILK AND HONEY” AND THAT PATIENTS ALL
SEEMED TO HAVE CHRONIC PAIN AND WANTED “THE GOOD
STUFF”. THEY WOULD DRIVE IN MILES TO SEE “DR. PAT” AND
GRANDFATHERLY “DR. SMITH” HE HELPED THEM.
• He swears he just did their bidding, prepared the scripts by writing
in Soma, Lortab and Xanax at the same doses for everyone
• Agents tell Rocky to close down the clinic, bring Dr. Smith in the
room and tell THEM BOTH THEY ARE TO GO HOME AND NOT
SPEAK OF THIS RAID.
• Both are wet with relief and leave with dire warnings for them to
not leave the county
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All Agents Enter the Room Pat is
In
• OUT OF NOWHERE Pat is read her rights
• Pat is handcuffed and taken to a federal detention center
• Pat has just had a nasty divorce and has a 10 year old
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special needs child
Pat begs officers to alert the ex-spouse
She allows police to use her pass code to view her iphone numbers and text so they can contact the exhusband
PAT IS SHOCKED. THIS IS A BAD DREAM.
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On the Drive to the Federal
Detention Center
• Pat has never been arrested
• Pat is terrified and is afraid of losing a long
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earned career and reputation and Pat’s primary
custody of her child
Agents allow Pat to talk freely about the case
and without her knowledge, the unmarked black
suburban she is in is recording every word
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At the Detention Center
• Pat is processed, and shocked at the conditions (14 people in a
holding cell, no sink, and one seatless toilet)
• Most of the detainees are undocumented aliens or have many
tattoos she does not recognize- including symbols of gang affiliation
• They began asking what Pat was arrested for. Pat, not wanting to
offend or anger them tells them what the charges are: Conspiracy
to distribute narcotics in and outside of state lines
• One detainee is facing 30 years and hangs on every word and
memorizes Pat’s face and hears Pat say, “Yes, many were my
patients but I am innocent. I just wanted the patients to be pain
free and have a better life.”
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Jail Phone Calls
• Having no one else to turn to Pat calls the ex-spouse
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that evening to ask about their son.
The ex reports the son is fine and asks what in the heck
is going on.
Pat tells the ex-spouse , “They think I distributed over
7000 unnecessary scripts and they think I allowed
people to use my DEA number to resell the drugs.”
“Did you?” asks the ex-spouse
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Pat is being recorded by jailers
• Pat replies, “I don’t know, I got sloppy, I didn’t follow up on my police
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reports. They could have used my number for all I know. This EMR system
I told you about before we got divorced monitors everything. You can’t go
back and cover your mistakes any more. It’s like a tattoo, it’s there forever
on the record. I don’t know. What is the big deal? No one O.D.’d. The
patients went to a pain management clinic. What were we going to give?
Tylenol? Just get me out of here. Please. Whatever, you do, do not tell
them I have had Dr. Smith calling in Lortab, Xanax and Soma for me once
in a while. These guys have it in for me. Plus, I swear I did not give out
7000 scripts in 3 years. No way. Some ring of prescription thieves did it.”
The Ex replies, “Should you be telling me this stuff on the phone? I got our
child to think about. Do not get me involved in your drama! I will see about
how to get you out but I’m not made of money. You took me to the
cleaners on the divorce. Karma, baby. “ He hangs up.
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A day later Pat is taken in front of the judge for a pre-trial
hearing and bond hearing. She’s in scrubs. She has not
bathed, brushed her teeth or combed her hair. She feels
awful and sleep deprived.
• 30 minutes before the hearing a young attorney enters the holding
cell full of 20 other prisoners with 10 lawyers at the 12x12 cell
screens. Guards and U.S. Marshals look on watching hand and eye
movements. They are muscular, well-armed and have a flat affect.
She is intimidated. Orders are given without question. A female
guard is on duty and twice as harsh and short.
• The scene is chaos. She can barely hear her lawyer because the 10
lawyers and the clients are all talking at once. She has never
experienced such confusion. It makes an ER on a Saturday night
seem calm.
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Public Defender
• The federal public defender, unlike the stereotypes on “Law and
Order” , is very smart, prepared and professional.
• The young lawyer, having to shout over the din around him, says, “I
think we waive the preliminary hearing because this case is all over
the news. Secondly, they have you recorded on video and on the
phone with your husband mentioning possible prescription fraud
and other issues. I recommend waiving the hearing and asking for
reasonable bond since you have no prior record and have never
missed even a traffic court ticket hearing, plus you have close ties
with the community. What assets do you have?”
• Pat responds, “Not much… an old 2 bedroom house and a 7 year
old car and 3000 in an IRA. I am not much of a saver.”
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Pre-Trial Services
• 5 minutes later a young lady walks into the holding cell area and introduces
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herself as the federal pre-trial officer who will recommend a bond or not.
Pat has no idea what all this means but tries to keep calm.
Pat indicates she has a house, car and a lot. Total value if liquidated about
212,000.00 minus 190,000 owed plus she has a second mortgage and has
3,000.00 left in the 401k down from $122,000.00 the last year due to
overwhelming credit card debt and her uncontrollable passion for shopping
on line.
A Pre-trial services officer takes all the information down and all about her
background and informs Pat that there are not bail bond companies in
federal court- the pre-trial services handles all of that and prepares a
report.
Pat is still very confused. She is told bail will probably be afforded to her.
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FINALLY IN FRONT OF ANOTHER JUDGE 36
HOURS LATER
• AFTER ALL THE INTERVIEWS AND ATTORNEY VISITS PAT SPENDS A
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SLEEPLESS NIGHT IN A HOLDING AREA BACK AT THE DETENTION CENTER
12 MILES AWAY
FELLOW FEMALE PRISONERS ARE SCREAMING, CRYING AND OTHERS ARE
PREYING ON THE WEAK FOR COMMISSARY, FAVORS OF ALL TYPES
INCLUDING BEDMAKING AND LAUNDRY. THIS IS A NIGHTMARE.
SHE HAS HAD TWO MEALS WHICH WERE HORRIBLE OVER TWO DAYS.
SHE CANNOT STOMACH THE REST.
SHE IS TAKEN IN SHACKLES ON HER HANDS AND ANKLES WITH A CHAIN
IN BETWEEN HER HANDS AND FEET. SHE IS DRESSED IN ORANGE AND
PLACED IN A VAN WITH 12 OTHER PRISONERS WHO RANGE FROM
ACCUSED VIOLENT OFFENDERS TO ACCUSED ALIEN AND DRUG
SMUGGLERS. TWO ARE PREGNANT IN THEIR THIRD TRIMESTER.
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THE COURTROOM
• She is met by her attorney for a few
minutes with papers reiterating the waiver
of the pre-trial hearing which she barely
understands. She signs them in a fog.
• The attorney reminds her to be respectful,
listen carefully and remember she is “not
guilty”. She also told, “If the judge starts
talking that meansJOINyou
stop talking.”
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The Judge
• The judge is relatively young and polite but is obviously very busy.
• Young muscular men surround the judge referred to as US Marshals. They
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wear cargo pants and blue t-shirts and jackets with US Marshals on them. It
is obvious they are there to maintain order and protect the judge with their
lives.
A courtroom reporter is nearby typing.
Another lady announces the cases and asks for “appearances please”
Yet another young man is interpreting for those who cannot understand by
whispering in a microphone while those who say they only understand
Spanish are given headphones.
Pat’s mouth drops open. She never knew the speed, the lack of empathy
and the grave seriousness involved in these proceedings. Her fright is now
near panic. She knows she is going to be sick to her stomach and her
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Pat’s First Hearing Lasts 5
minutes or less!
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The Judge asks her to state her name
Tells her what the charges are
Reminds her she has a right to a pre-trial and detention hearing
The attorney interjects that they a going to waive the preliminary
hearing and go straight to the bond issue
The Judge asks her, “Is that what you want to do?”
She mumbles, “Yes.” The Judge barks for her to speak up. “Yes” she
answers clearly.
After that bond is discussed and set at $50,000.00 unsecured.
The “Government” or the U.S. Attorney offers no objection but asks
for a night time curfew and standard conditions of release.
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Pat is totally confused. 50,000?
Unsecured Bond?
• She asks what that means. The attorney with a smile tells her she will be processed
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and out within hours and will not have to pay- NOT EVEN 10 PERCENT OF THE
50,000- because her pre-trial report looks decent but that she cannot practice as a
nurse practitioner, write scripts or leave the county. She is rocked by this news. She
is also told she has to be home by 10pm at night as a curfew and cannot take any
drugs or drink alcohol along with a lot of other conditions and she must wear an
ankle monitor. She is in an utter state of disbelief of how a person’s life can change
in a matter of minutes.
The attorney gives her his card and says, “Don’t talk to anybody but me about your
case. It’s too late now but they are saying they have a jailhouse confession on the
phone with you and your ex, a video confession on the way to jail in the agent’s
Suburban and a jail house snitch is ready to come forward that you confessed a third
time. Half of that is bluffing I am sure. It’s not good but I will see what I can do.”
• It takes her half a day to be processed and fitted with an ankle monitor
while her ex-husband waits impatiently at the courthouse steps.
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THINGS JUST GOT WORSE
• A HAND DELIVERED LETTER AT THE
NEIGHBORS HOUSE AWAITS HER WITH THE
STATE BOARD OF NURSING LETTERHEAD
WHICH SAYS THAT SHE IS IMMEDIATELY
SUSPENDED FROM THE PRACTICE OF
NURSING BECAUSE OF HER BEING A
“PRACTITIONER THAT CAN CAUSE IMMINENT
HARM TO THE PUBLIC” AND FACES OTHER
GRAVE ALLEGATIONS
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THE PLOT THICKENS
• SHE IS TO SURRENDER HER LICENSE AND MAY HAVE A
HEARING ON THE SURRENDER. SHE IS STUNNED. NOT
ONLY IS SHE FACING FEDERAL DRUG TRAFFICKING
CHARGES BUT THE BON HAS JUST TAKEN AWAY HER
LIVING. ALL IN LESS THAN 48 HOURS. THE DEA AND
ASSISTANT U.S. ATTORNEY UNDER A COURT ORDER
HAVE ALSO SEIZED HER PHONE, LAPTOPS AND HAVE
ALREADY SEARCHED HER HOME AND EVEN TAKEN HER
CHILD’S LAPTOP FOR SCHOOL WITHOUT HER
KNOWLEDGE. HER HOME HAS BEEN RANSACKED.
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THE SHARKS CIRCLE
• WHILE SHE WAS DOING ALL OF THIS AND WALKING NEXT DOOR TO HER
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HOME, ACTION 13 NEWS HAD CAMERAS AND A REPORTER WAITING. THE
REPORT IS ASKING IF IT IS TRUE THAT SHE GAVE OUT PRESCRIPTIONS
LIKE CANDY AND THAT AT LEAST 2 OVERDOSES OCCURRED, NOT TO
MENTION 2 DOZEN CASES OF ADDICTION BECAUSE OF HER
PRESCRIPTIONS.
SHE IS IN SHOCK. THE REPORTER ASKS, “ARE YOU PREPARED FOR THE
LAWSUITS?” -WITH THE CAMERA RUNNING SHE ASKS THE REPORTER
WHILE LOOKING STRAIGHT AT THE CAMERA, “WHICH LAWSUITS?”
SHE MAKES THE CUT FOR THE 5PM NEWS. 2 MILLION PEOPLE SEE HER
ON TELEVISION BEING DUBBED “THE HOUSTON COCKTAIL QUEEN”. THE
INTERNET IS ON FIRE. BY MORNING HER CHILD IS BEING BULLIED AND
TEASED THAT HER MOM IS A DRUG DEALER.
THE COMMENTS ON THE REPORT
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AT INTERNET ARE NOT KIND.
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PULLING OUT OF THE DRIVEWAY
THE NEXT MORNING
• SHE RETRIEVES HER CAR AND PULLS OUT OF HER TOWNHOME
• MORE REPORTERS ARE WAITING AND SO IS A RATHER LARGE SHERIFF
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WHO IDENTIFIES HER BY NAME AND ASKS IF THAT IS HER NAME. SHE
REPLIES , “YES”.
The Sheriff Deputy only replies, “You are served. You have to respond in
twenty DAYS following the first Monday”. She has no idea what that means.
She is holding a thick document that names her as a defendant in a civil
lawsuit demanding $5,000,000 dollars plus punitive damages.
She barely gets to the car and slams shut the vehicle as reporters film this
too. She locks her doors, drives away to where she has no idea and is texted
by her ex . His text reads: “I am keeping Little Matt for the week, at least
so that things can, “cool down” . You are all over the internet, radio and
Television. Reporters have even called me!. “ You are under the
microscope. She is too weak andJOIN
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terrified
to put up a fight.
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The Civil Lawsuit
• The Civil Suit is from Smingleberry and Smingleberry who are well-known to
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her from commercials every 10 minutes on television.
The lawsuit alleges negligent medical and nursing practice by she and Dr.
Smith. Both are being sued and alleges among other things that she
purposely gave narcotic and sedative medication without individualizing
treatment which led to the brain death of an innocent “end user”.
Further that the firm represents dozens of people who are addicted,
overdosed and one who is in critical condition due to an overdose on drugs
prescribed by she and Dr. Smith.
The Firm finishes by stating that all of the patients will also be filing
complaints with the BON, DEA, among others.
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In Full Panic Mode She Recalls of A Nurse Attorney
Who Handles, Civil, Criminal and Board Cases
• A call is placed while parked at a nearby mall and tearfully she asks for an
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appointment
The attorney agrees to meet with her that morning
The attorney indicates he can take the case on but that it will be extremely
complicated involving a three pronged problem: Criminal charges, a civil lawsuit and
her license to be an NP, RN, and LVN being taken away
Luckily she had malpractice insurance that will cover the professional license and the
civil case.
She has no money to hire the attorney on as the criminal lawyer so he recommends
sticking with the federal public defender who the attorney surprisingly says helped
train him 20 years ago. He indicates that she is in good hands with the public
defender on that issue. For the first time she at least feels like there is some hope
and there is some meaning to all of this confusion and chaos known as the legal
system.
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OUR MISSION TODAY AT THIS
PRESENTATION
• YOU WILL LEARN ABOUT THE ENTIRE JUSTICE
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SYSTEM INCLUDING:
CRIMINAL JUSTICE
CIVIL PROCEEDINGS ON A MEDICAL
MALPRACTICE AND PERSONAL INJURY CASE
THE BOARD AND HOW A HARD-WON LICENSE
AND NP CERTIFICATION CAN BE QUICKLY LOST
OR RETAINED
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APRN MORNING SESSION:
CRIMINAL AND CIVIL LAW
• CRIMINAL AND CIVIL ACTIONS:
FUNDAMENTALS FOR THE APRN
• LAW AND ORDER
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THE NURSE BEING CHARGED
WITH A CRIMINAL OFFENSE
 The Consequences of a criminal conviction for a
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licensed healthcare professional can often be
devastating.
It is imperative that legal counsel is obtained as
soon as there any indication that criminal
charges may be filed against a nurse.
Without representation the nurse may be at a
distinct disadvantage and surrender rights which
otherwise the nurse might not have known
existed.
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HOW CRIMINAL CHARGES CAN
AFFECT A NURSE’S LICENSE
• Criminal law charges and the process of being accused, going to trial, or
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reaching a plea agreement, and possibly being convicted, carry great
weight in a state board determining whether to discipline a nurse.
In many cases the decision is directed by statute and the misconduct,
suspension or revocation proceedings following a criminal conviction are
required as a matter of law
Often actions reported to the board are civil and criminal (drug conversion,
elder abuse..etc.,)
Most Lawyers do not understand the ramifications of “cutting a good deal”
and what effect it can have on the ability of an NP to ever practice again or
obtain insurance or participate in the Medicare or Medicaid or VA system.
Most attorneys are not accustomed to representing licensed medical
professionals and do not speak “our language”.
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THE IMPORTANCE OF LEGAL COUNSEL AND
THE EFFECTS OF CRIMINAL CHARGES ON
YOUR LICENSE
• A nurse must hire an attorney who is familiar with criminal practice and
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procedure as well as the repercussions that a given plea agreement or even
trial could have on their license.
Certain convictions, whether for deferred adjudication or straight
community supervision, will require a mandatory suspension or revocation
of the licensee’s license.
Some agencies require, upon a conviction for specific offenses, that the
license be revoked unless the licensee can make a showing that it is in the
best interest of society, as well as the licensee, that they maintain the
license
Felony convictions or even “good deals” of deferred probation often lead to
automatic revocation or long term suspension of a license but do not
necessarily occur automatically
It is imperative that a licensee charged with a state or federal offense seek
professional counsel to assist in decision making and explain the
ramifications a charge or plea agreement may have upon licensure renewal,
application or the filing of misconduct charges.
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If Arrested Can I be Detained or
Held Without Bail?
• If you are arrested bail is often expected but it is
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not an absolute right
Bail depends on the severity of the crime and
the risk of flight along with several other factors
State and federal jurisdictions differ on bail but
certain factors are common: the avoidance of
high bail, the risk of flight, the person’s
reputation in the community, etc.
A qualified attorney should be retained to
counsel the nurse on their rights and the right to
bail
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Most Common Types of Charges
Nurses Face
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Healthcare Fraud
Medicare/Medicaid/ Federal Health Care Reimbursement
Insurance Fraud
Theft & Embezzlement
Drug Diversion
Drug Possession, Manufacturing & Delivery
Obtaining a Controlled Substance by Fraud and Deceit
Driving While Intoxicated
Intoxication Assault
Intoxication Manslaughter
Assault to a Patient
Homicide (serial killer nurses)
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What Happens If AN APRN IS
ARRESTED?
• TV shows and the media are not always accurate
• Even after you are read your rights officers can interrogate you without a
•
•
•
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•
lawyer if you waive your rights
Often it is not easy to ask for a lawyer and remain silent
Being arrested is intimidating and you can be detained for hours
For professionals who invariably have never been arrested in the past, even
the booking process is extremely intimidating
Even after you express your wish to remain silent and speak with an
attorney, police can come back and reinitiate conversation and statements
you make while awaiting for an attorney can be used against you
It’s an accepted practice for police to play “mind games”: For example:”
Just tell us everything, other nurses have already told us you sold drugs” or
“Just cooperate it will go easier…, if you get a lawyer you’re going to be in
for a long wait and it is going to go harder on you. Why do you need one?”
These tactics are acceptable to elicit confessions.
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TYPES OF CRIMES: FELONIES AND
MISDEMEANORS
• Felonies are far more serious than misdemeanor crimes.
• A felony conviction can result in sentencing to prison, fines, or both.
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•
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Incarceration will be in a state penitentiary (a state prison), or some other
facility such as a mental health facility as determined necessary by the court
if the person is determined not mentally competent (non compos mentis) to
stand trial.
Often a first time felon can be given a second chance by deferred
adjudication or holding back a conviction or suspending such a conviction if
the person shows they can be rehabilitated and can follow strict rules and
regulations. However, even this plea can lead to suspension and
revocation.
The person can also be placed on probation rather than given automatic
prison time. In certain serious offenses probation is not available and
mandatory jail time may be given depending on the severity of the crime.
Note: Federal and state prison are mentioned in this lecture: each venue concerning
sentencing and sentence reduction may vary.
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ROAD TO TRIAL:LET’S SAY OUR APRN GETS
A CRIMINAL ATTORNEY AND GOT
INDICTED
• Your Attorney will investigate and interview witnesses if applicable
• The Attorney will advise you of the risks of proceeding to trial as
•
•
•
•
well as risks of pleading guilty
The day of trial both sides (you and the state or federal prosecutor)
announce ready
Any pre-trial motions such as motions to suppress statements or
evidence or motions from the state will be heard before trial
BE PERFECTLY CANDID WITH YOUR LAWYER ABOUT ALL DETAILS
OF YOUR CASE. DO NOT MINIMIZE OR ATTEMPT TO HIDE FACTS.
THIS COULD JEOPARDIZE YOUR CASE
SURPRISINGLY, MANY NURSES ARE NOT WILLING TO COME
“CLEAN” WITH THEIR LAWYER OR THEMSELVES AND THE
PROSECUTION IS OFTEN VERY GOOD AT DISCOVERING KEY
FACTS THAT IF NOT RELATED TO YOUR ATTORNEY CAN COST THE
CASE
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BREAK TIME
• START THINKING ABOUT ARGUING FOR AND AGAINST
•
•
•
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SANCTIONS FROM THE BOARD FOR OUR APRN
START THINKING OF HOW TO PROSECUTE AND
DEFEND OUR APRN ON CRIMINAL AND CIVIL CHARGES
GET’S SOME COFFEE
WE WILL NEED IT
IT IS TIME TO FIND OUT WHAT IT MEANS TO BE
LAWYER AND PART OF A LEGAL TRIAL TEAM
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EXERCISE IN THE LAW
• LET’S DO AN EXERCISE IN THE REAL
PRACTICE OF LAW USING OUR CIVIL AND
CRIMINAL EXAMPLES
• WE NEED SOME OF THE AUDIENCE TO
HELP US OUT.
• WE NEED A JUDGE, JURY AND
ATTORNEYS
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Trial (cont’d)
• Once Pre-trial matters have been settled you are ready to pick a
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•
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•
jury
Jury selection, commonly known as voir dire, is used to pick a jury
in state and federal court
State courts vary widely on the manner to pick the jury
Federal court is different. The judge selects the jury and the
attorneys are frequently given the opportunity to ask questions of
potential jurors
Either way, strikes for certain reasons (for cause) can be made and
for no reason at all (peremptory) to remove certain potential jurors
can be made provided they are not done for unconstitutional or
unacceptable reasons (striking all blacks, hispanics, whites, or all
women or men, etc.,)
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Trial (cont’d)
• Once a jury is selected an opening statement is usually
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presented by your lawyer and the state or federal
prosecutor
Then evidence is put on generally through witnesses and
exhibits
Closing arguments are made
Jury deliberation proceeds
A verdict is reached
If a plea of guilty is reached a nurse would have certain
appellate rights
Overcoming a judgment through an appeal can be done
but is not easy
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Trial Risks
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The vast majority of cases are pled out
Trial is fraught with uncertainty
Our jury system is great but not perfect
No one mind thinks alike on a jury panel
One jury could decide to convict while another would
decide to acquit
• Anything can and does happen at trial that can effect a
defendants future and their livelihood
• Delays in the court system and mistrials for various
reasons can occur. Often a backlogged court docket can
and does occur despite the judge’s best efforts
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SUMMARY
• JURIES ACT UNPREDICTABLY AND CAN BE
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SWAYED BY MANY FACTORS
VENUE AND YOUR JUDGE ARE ALSO FACTORS
MEDIA AND COMMUNITY OUTCRY ARE OTHERS
POLITICS, POLITICS, POLITICS: PLAYS A BIG
ROLE
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WHAT ABOUT CIVIL LITIGATION?
THE ANATOMY OF A LAWSUIT
• BEING NAMED IN A LAWSUIT AND BEING SUED
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IN CIVIL COURT CAN BE DEVASTATING TO A
NURSE’S PSYCHE AND CAREER
APN’s and CNS’s ARE INCREASINGLY BEING
GIVEN MORE RESPONSIBILITY AND
THEREFORE FACING MORE EXPOSURE OF
BEING SUED AND HELD INDIVIDUALLY
RESPONSIBLE FOR NEGATIVE PATIENT
OUTCOMES
THE DAYS OF NOT CARRYING YOUR OWN
MALPRACTICE INSURANCE ARE OVER
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THE ANATOMY OF A
CIVIL LAWSUIT
• PRE-SUIT NOTICE
• THE LAWSUIT
• THE TRIAL
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PRE-SUIT NOTICE
REMEMBER OUR APRN?
• IF SUED SHE WOULD RECEIVE NOTICE BY SERVICE.
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•
UNDOUBTEDLY SHE IS FIRED OR OUT OF BUSINESS
AND HER LICENSE IS SUSPENDED
SHE SHOULD NOTIFY HER INSURANCE CARRIER
THE APRN SHOULD AT LEAST GO SEE AN EXPERIENCED
MED MAL DEFENSE ATTORNEY FOR A CONSULT
SHE ALSO NEEDS INSURANCE FOR THE REPORT TO
THE BON AND NEEDS TO NOTIFY THE INSURANCE
IMMEDIATELY
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ROLE OF THE NURSING
MALPRACTICE INSURANCE CARRIER
• The duty to defend requires the insurance
•
company to retain a lawyer to defend legal
claims that are brought against the nurse and/or
institution. This duty also requires the insurance
company to pay expenses relating to the
defense.
The duty to indemnify requires the insurance
company to pay an amount up to the policy
limits for a settlement or judgment on any
covered claim against the nurse
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SHOULD OUR APRN HAVE
INSURANCE?
•
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YES
YES
AND YES
WHY? YOU HAVE YOUR OWN ATTORNEY. MOST
POLICIES COVER COST OF DEPOSITIONS AND PAY FOR
YOUR ATTORNEY ON CASES OF ALLEGED NEGLIGENCE
• INCREASINGLY THE INSTITUTION LIKE A HOSPITAL
AND A NURSE MAY END UP ON OPPOSITE POINTS OF
VIEW AND THE NURSE IS SEEN AS AN AGENT OF THE
INSTITUTION BY THE HOSPITAL LAWYER
• THE INSTITUTION’S INSURANCE POLICY PAYS THE
LAWYER, NOT THE NURSE
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THE PATIENT’S CHART
• It is imperative that no changes, alterations, or deletions
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•
•
are made in the chart.
If a lawsuit is initiated, even the appearance that an
alteration has been made can have a devastating
impact.
The chart must remain in exactly the same condition it
was in before the nurse had notice of the claim.
The alteration of data in the permanent medical record
can jeopardize the nurses chances of being dropped
from the lawsuit and significantly diminish any credibility
the nurse or institution would have with a judge and
jury.
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DISCUSSIONS ABOUT THE
LAWSUIT
• THE APRN WOULD BE ADVISED BY A LAWYER NOT TO
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DISCUSS THE CASE WITH ANYONE.
THE APRN IS A PERCEIVED THREAT TO THE PRACTICE
AND THE COLLABORATING AND AGING M.D. IS IN
DAMAGE CONTROL MODE AND LISTENING TO HIS
ATTORNEY AND HAS HIS OWN PROBLEMS.
AND THE EX EMPLOYEE MEDICAL ASSISTANT IS SEEN
AS A LOOSE CANNON
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THE BATTLE OF PAPERSHUFFLING
Discovery
• Once the lawsuit has been filed, the discovery phase begins. During
discovery, each party has the opportunity to obtain relevant
information and documents from the other parties to the lawsuit.
• The standard for discovery is broad. Information and documents are
properly discoverable if they are likely to lead to the discovery of
admissible evidence, regardless of whether they will be ultimately
admissible at trial.
• Parties and witnesses must respond to requests for material that is
properly discoverable.
• THE APRN may cut a deal with the Plaintiff attorney but remember
that any such deal would be confidential in order to keep it separate
and distinct from a probable Board case
• IN some instances the D.A. may be able to get information on such
a settlement
JOIN US AT
• THE APRN still is surrounded
by woe because
of the State Board
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361and especially if the D.A.887-8670.
is circling
the shark tank and
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contemplating going full court
press on criminal charges
TYPES OF DISCOVERY
• REQUESTS FOR DISCLOSURE
• REQUESTS FOR PRODUCTION
• INTERROGATORIES
• REQUESTS FOR ADMISSIONS
• DEPOSITIONS (THE APRN should sit down
with her attorney, answer discovery and
prepare very carefully for deposition)
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BATTLE OF THE EXPERTS
• IN MEDICAL MALPRACTICE AND NURSING NEGLIGENCE CASES
AMONG OTHER CLAIMS LIKE THESE, AN EXPERT IS NEEDED (here
in the civil suit, THE APRN’s attorney would have their own expert
mitigating the damages and refuting all the allegations.
• REMEMBER, THE MEDIA AND POLITICS HAVE A MAJOR ROLE IN
THIS PROCESS
• BY VIRTUE OF THE EXPERT’S TRAINING, EXPERIENCE AND
KNOWLEDGE THEY CAN STATE THE STANDARD OF PRACTICE,
HOW IT WAS DEVIATED FROM AND WHAT DAMAGES RESULTED
• THE DEFENSE CAN CHALLENGE THE EXPERT IN A NUMBER OF
WAYS AS CAN THE OPPOSITION REGARDING THE DEFENDANT’S
EXPERTS IF APPLICABLE
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PRE-TRIAL MODES OF
DISPOSITION
• Typically, if a lawsuit is resolved before trial, the
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resolution is accomplished by one of the following
methods:
Motion for summary judgment.
Motion to dismiss
Nonsuit by the Plaintiff with Possible Refiling if done
“without prejudice or if not barred by statute of
limitations
I DON’T SEE THE APRN OR THE PAIN CLINIC SLIDING
OUT OF THIS ONE
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MEDIATION AND ALTERNATIVE
DISPUTE RESOLUTION
• Typically, at some point during the discovery process and before a trial
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takes place, the court may order the case to mediation in an effort to settle
the case.
Mediation is a nonbinding process in which an independent third party, the
mediator, acts to facilitate settlement of the lawsuit.
Typically, mediation may take a half to a full day and requires the
attendance of all parties and lawyers, the mediator, and any insurance
representative having authority to settle.
ARBITRATION is a binding process that can be in the form of a mini-trial or
a type of binding resolution. Frequently health care institutions are
enforcing binding arbitration in many jurisdictions
HERE MEDIATION IS HIGHLY LIKELY BUT THE APRN’S LAWYER AND THE
CLINIC AND DR. SMITH WILL HAVE TO “TALK TURKEY” AND IT MAY OR
MAY NOT BE AN AMICABLE AGREEMENT AND FINGERPOINTING BETWEEN
DEFENDANT’S IS COMMON AND SOMETIMES CAN WEAKEN OR
SOMETIMES STRENGTHEN THE PLAINTIFF CASE
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REMEMBER: GOING TO TRIAL IS
RISKY
• THE TRIAL
• Trial of a lawsuit is an extremely demanding undertaking, not only
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on the part of the lawyer, but also on the part of the nurse.
It can be emotionally, physically, and psychologically exhausting,
often requiring the nurse's complete and undivided attention to the
exclusion of all else.
The trial phase of the litigation process may take several years after
a lawsuit is filed before it is begun.
Preparing for trial can be a time consuming process because a trial
date often cannot be firmly established.
Nonetheless, when trial on a given date is possible but uncertain,
both the nurse and the lawyer must adequately prepare
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APPELLATE REMEDIES
• EVEN IF ONE SIDE WINS AT TRIAL THE
OTHER SIDE MAY APPEAL
• POST-JUDGMENT SETTLEMENTS CAN BE
REACHED
• YEARS MAY GO BY…THEREFORE, MOST
CASES SETTLE BEFORE TRIAL BECAUSE
OF THE UNCERTAINTY OF WHAT TWELVE
PEOPLE IN A BOX WILL DO
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SUMMARY OF CIVIL LITIGATION
• NO ONE KNOWS WHAT 12 PEOPLE IN A
JURY BOX ARE GOING TO DO
• TWISTS AND TURNS OF CIVIL
LITIGATION ARE MANY
• NO MATTER HOW IRONCLAD A CASE YOU
THINK YOU HAVE, A SMART LAWYER CAN
WATER YOUR CASE DOWN
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BREAK TIME
• BE THINKING ABOUT HOW ALL OF THIS
IS GOING TO BE EVALUATED BY THE BON
• IF YOU WERE ON THE BON HOW WOULD
YOU MAKE SURE TO PROTECT THE
PUBLIC
• IF YOU WERE THE LAWYER FOR OUR
APRN PAT HOW WOULD YOU DEFEND
HER?
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AFTERNOON SESSION: WHAT IF AN
APRN IS REPORTED TO THE BOARD
• LET’S USE OUR APRN EXAMPLE AND EXPAND IT
• LET’S USE A REAL LIFE SCENARIO SIMILAR TO OUR FACT
PATTERN THAT IS NOW A MATTER OF PUBLIC RECORD
• ALTHOUGH THIS EXAMPLE MAY SOUND EXTREME YOU MAY BE
SURPRISED TO KNOW THAT PAIN MANAGEMENT IS ONLY ONE OF
MANY OF THE PRIME AREAS FOR THE BON
• HEALTH FRAUD IS ANOTHER AREA FAST APPROACHING EPIDEMIC
PROPORTIONS AS WELL AS CYBERATTACKS WITH NONCOMPLIANT
HIPAA MEDICAL RECORDS THAT CAUSE MAJOR IDENTITY THEFT
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FIRST THINGS FIRST:
SAFEGUARD YOUR PRACTICE
BON MISSION:
To Protect and Promote the
welfare of the people of Texas by
ensuring that each nurse licensed
in Texas practices safely
WHO IS THE BON?
• 13 members
• Representing LVN’s and RN’s
• 300,000 plus nurses in Texas
• BON meets quarterly and Meetings are
open to the public
• Hobby Building in Austin
• 95 staff members
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Statutes and Rules
• LVN’s, RN’s and APRN’s are required to
know and comply with the rules
• Get a copy of your Nurse Practice Act
• Statutes are promulgated by the
legislatures
• The NPA is developed and shaped by laws
and very detailed
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IMPORTANT AUTHORITY
• NPA is the law that regulates nursing and it
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defines the duties of LVN’s and RN’s
Gives the BON Authority
Texas Occupations Code Chapter 301(NPA), 303
(Nurse Peer Review), 304 Nurse Licensure
Compact, 305 APN Compact
Texas Administrative Code (TAC) Title 22
Chapter 211 Licensing/Practice/Admin Law
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EXAMPLES OF IMPORTANT
RULES
• 301.351b/Board Rule 217.10: Wear Your
Badge (Identify yourself to the public)
• 301.251: Disciplinary Action/How to
Report a Nurse
• Change of Address: Board Rule 217.7
• Failure to Renew License: Board Rule
217.6
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STANDARD OF NURSING
PRACTICE
RULE 217.11 Consists of :
1) Applicable to all nurses
2) Specific to LVN’s
3) Specific to RN’s
4) Specific to RN’s with APN status
CRITICAL RULES
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•
LVN SCOPE OF PRACTICE 217.11(A)
RN SCOPE OF PRACTICE 217.11(3)
APRN SCOPE OF PRACTICE 217.11(4)
Supervision and Delegation 217.11(1)(U) and (S)
“Owning Your Practice” 217.11(1)(T) Safe Harbor and Accepting
Assignments
Clarify Orders 217.11(1)(N)
Mandatory Reporting 271.11(1)(K)
The Most Trusted Profession 217.11(1)(J)
Document: Remember to Write it Down 217.11(1)(D)
Know and Follow the Laws that apply to your practice 217.11(A)(1)
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ETHICS FOR NURSES: TRUST
• Nurses 81%
• Pharmacists 71%
• Physicians 66%
• Police Officers 57%
• Bankers 23%
• Lawyers 17%
• Congress 9%
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NURSES (APRN’S) HAVE POWER
• Access to Personal Info
• People at their Most Vulnerable put their trust in
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Nurses AND APRN’S
APRN’S Diagnose, Prescribe and Treat
Good Professional Character Rule 213.27
Professional Boundaries: Finances, Sexual
Misconduct, Social Media, Physical, Emotional or
Verbal Abuse, Prescriptions to Friends and
Family
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CRIMES AND CONVICTIONS
• Criminal Convictions Rule 213.28
• Lists of Crimes
• Consequences of Criminal Convictions
• Convictions, Deferred
Adjudications/Probated Sentences
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Possible Barriers to Licensure
and Fitness to Practice
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NPA section 301.4535
Sexual Assault
Registered Sex Offender
Murder
Manslaughter
Indecency with a Child
Robbery
Domestic Violence (Felony)
Fitness to Practice: Drugs and Alcohol and Mental Capacity Rule
213.29
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Violations of Nursing Ethics including
Lying/Cheating and Stealing
• Rule 217.2
• Unprofessional Conduct and Sanctions
• Unsafe Practice
• Misconduct
• Unlawful Practice
• Drug related actions or conduct
• The Lie Can Be Worse Than the Offense
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BON NURSE DECISION MAKING MODEL (source
Texas Board of Nursing: Protecting Your Patients
and Your Practice
• Question 1: Is the activity consistent with NPA, Rules and Regs and
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•
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•
Board Position Statements?
Question 2: Is the activity appropriately authorized by valid order
and in accordance with established policies and procedures?
Question 3: Is the act supported by either research reported in
nursing and health-related literature or in scope of practice
statements?
Question 4: Do YOU personally possess current clinical competence
to perform the task safely
Question 5: Would a reasonable and prudent nurse perform this
activity in this setting?
Question 6: Are you prepared to assume accountability for the
provision of safe care and the outcome of the care rendered?
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RELEVANT REGULATIONS OF
NURSING TO REMEMBER
• License Requirements: Subchapter F Sec 301.251-262
• License Renewal: Subchapter G, Sec. 301.301-306
• Practice by License Holder: Subchapter H, Sec. 301.351•
•
•
•
356
Reporting Violations: Subchapter I, Sec 301.401-419
Prohibited Practices and Disciplinary Actions: Subchapter
J, Sec. 301.451-471
Corrective Action Proceeding: Subchapter N, Sec.
301.651-657
Nursing Peer Review: Chapter 303.001-011
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BRIEF BREAK TO DIGEST THE
INFO
• WE KNOW THE BASICS
• WHAT TO DO ABOUT PAT
• DEFENSE TEAM: THINK HOW TO GET HER OUT OF
•
•
THIS
BON TEAM: THINK HOW TO PROTECT THE PUBLIC AND
PROVE SHE IS AN IMMINENT DANGER
THINK OF THE CIVIL, CRIMINAL AND ADMINISTRATIVE
TROUBLE SHE IS IN AND HER EXPOSURE
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BON LICENSE HEARING: APRN RISK
MANAGEMENT EDUCATION
• AFTERNOON SESSION FOR NURSE
PRACTITIONERS:
• WHAT IF YOU ARE REPORTED TO THE
BON?
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WHAT IS A BON COMPLAINT
AND A SOAH HEARING
• You can ask for a hearing to fight for your
suspended license but it’s tough
• Informal Conference? There is nothing
informal about it
• What is SOAH
• What if our APRN says she’s innocent and
will not take a 5 year revocation?
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ENTER SOAH
SOAH DOCKET NO 16-55555
BON
PETITIONER
VS
IMA GOOD, APRN
THE RESPONDENT
(
STATE OFFICE
(
OF
(
ADMINISTRATIVE
(
HEARINGS
(
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SAMPLE PROPOSAL FOR DECISION IF OUR
APRN GETS HAMMERED
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PROPOSAL FOR DECISION
The staff (Staff) of the Texas Board of Nursing (Board) seeks to revoke the nursing
licenses] of (Respondent) because she allegedly violated the standards of
nursing practice by continually prescribing controlled substances in a non-therapeutic
manner.
After considering the evidence and the applicable law, the Administrative Law Judge
(ALl)
concludes that Staff met its burden of proof by a preponderance of the evidence.
Accordingly,
the ALJ recommends that the Board revoke Respondent's licenses and that Staff be
awarded
costs of the contested case proceeding, as requested.
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ALLEGATIONS
•
•
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Staffs Forma1 Charge document identifies only a single charge, asserting that between
December 16, 2013, and February 5, 2015, while practicing as a nurse practitioner and owner of
The NP Care Clinic (the Clinic) in Anywhere, Texas, Respondent's practice fell below the
minimum standards of practice because she repeatedly prescribed dangerous cocktails of drugs
to
patients without regard to therapeutic benefit, without an individual assessment of each patient,
and without developing an appropriate treatment plan for each patient.4 More specifically,
Respondent a11egedly wrote 9,309 prescriptions for the "cocktail" drugs of hydrocodone, Soma,
and/or Xanax, often in the maximum strength and quantity available (AKA THE HOLY TRINITY)
Respondent was able
to do this because she operated a pain management clinic and had prescriptive authority in her
role as a licensed nurse, specifically an advanced practice registered nurse (APRN). The
collaborating physician signed the Lortab portion of the cocktail on a separate triplicate
prescription pad.
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The BON Language that is a
challenge to fight
• Staff asserts that Respondent should be disciplined for violating numerous provisions
•
•
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•
•
•
•
•
of
the Board's rules, specifically 22 Texas Administrative Code §§ 217.11 (1 )(A), (B),
(C), and (4);
217.12(1)(A) and (B), and (4); 221.13 (a); and 222.8(a) and (b)(2)-(3).
Under the Nursing Practice Act,6 the Board is authorized to take disciplinary action
against a nurse for numerous reasons, including that the nurse:
(l) committed a violation of the applicable statutes, rules, or a
past order of the Board;
(2) has engaged in "unprofessional or dishonorable conduct that, in the
[B]oard's opinion, is likely to deceive, defraud, or injure a patient or the public, or
(3) failed to "care adequately for a patient or to conform to the minimum standards
of acceptable nursing practice in a manner that, in the [B]oard's opinion, exposes a
patient or other person
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unnecessarily to risk of harm.
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Sample Nurse Practice Act and
Occupational Code Violations
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Tex. Occupations Code § 301.001 et seq
Tex. Occupations Code § 301.452(b)(l).
Tex. Code § 301.452(b)(10).
Tex. Occupations Code § 301.4S2(b)(13).
22 Tex. Admin. Code § 217.l1(l)(A).
22 Tex. Admin. Code § 217.11(1)(8).
22 Tex. Admin. Code § 217.11(l)(C).
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What do some of these codes
mean? Here are examples
• Carelessly failing, repeatedly failing, or exhibiting an
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inability to perform vocational, registered, or advanced
practice nursing in conformity with the standards of
minimum acceptable level of nursing practice as set out
in the Board rule found at 22 Texas Administrative Code
§ 217.11 ; and
Carelessly or repeatedly failing to conform to generally
accepted nursing standards in applicable practice
settings. (Id.)
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The Battle of the Experts
• Why Insurance for the APRN is So Important
• $25,000 is the usual
• Costs include experts, attorney fees, transcripts,
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copies, travel, meals, accommodations
Defense Experts are Needed and You Will See
Why
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Dr. Jay Zee the BON’s expert
weighs in…
• Testimony of Dr. Jay Zee
• Dr. Jay Zee testified only at the hearing on the merits.
• Dr. Zee is licensed as a registered nurse (RN) and an APRN, and has earned a Ph.D.
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in public policy and administration.
He has been licensed as a nurse in Texas for 16 years. Dr. Zee testified in two parts
during the
hearing.
First, He offered testimony that identified the applicable rules defining the scope and
standards of practice for RNs and APRNs, and discussed how they limited and defined
a licensee's practice.
Second, Dr. Jay Zee testified as to the nature of Respondent's alleged violations and
the sanction that Staff determined was appropriate for Respondent's conduct. I
In particular, Dr. Zee testified to the following opinions……
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Dr. Jay Zee tears into the APRN
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Respondent violated Rule 222.8(b)(2) by failing to properly demonstrate that she consulted with
a delegating physician before writing prescriptions for controlled substances beyond 90 days;
Respondent is subject to discipline by the Board under Rule 222.10(a)(3) for
failing to properly assess patients and document the assessments prior to prescribing controlled
substances for those patients;
Respondent violated Rule 221.13 (the Core Standards for APRNs) by failing to know and conform
to the Rule 222 standards for prescriptive authority of APRNs, including a failure to be aware of
and follow the requirement for physician consultation for prescriptions beyond 90 days and a
failure to work collaboratively with her delegating physician and other pain experts;
Respondent violated Rule 217.11 (1 )(A)-(C) and
by failing to know and conform to the nursing practice standards,
by failing to promote a safe environment for clients (by putting them at risk through her
continued prescription of controlled substances without adequate assessments and efforts toward
more conservative care),
and by prescribing medications without due regard for their effects on the patients, among other
things;
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Dr. Jay Zee, the BON nursing
expert continues…
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Dr. Jay Zee also pointed out that:
Respondent violated Rule 217.12(1 )(A) and (B) by carelessly failing, repeatedly failing, or
exhibiting an inability to perform her nursing duties in conformity with the minimum acceptable
level of nursing practice set out in Rule 217.11
and by carelessly or repeatedly failing to conform to generally accepted nursing standards in
applicable practice settings (by prescribing medications without therapeutic benefit, without the
necessary evaluation, and without due regard for their effects on the patients).
Respondent violated Texas Occupations Code § 301.4S2(b), by failing to care adequately for a
patient or to conform to the minimum standards of acceptable nursing practice in a manner that,
in the board's opinion, exposes a patient or other person unnecessarily to risk of harm (by
prescribing medications without therapeutic benefit, without the necessary evaluation, without
proper documentation,
and without due regard for their effects on the patients, among other things).
Respondent violated Texas Occupations Code § 301.4S2(b) by committing unprofessional or
dishonorable conduct that, in the Board's opinion, was likely to deceive, defraud, or injure a
patient or the public (for the conduct described above);2J and, finally
Respondent violated Texas Occupations Code § 301.4S2(b) by committing the
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violations listed above.
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The Plot thickens…
• During testimony by BON expert Dr. Jay Zee it is revealed that at
least two prescriptions that were made out by the pain clinic got into
the wrong hands and at least one led to a child overdosing and
having an anoxic event leading to a vegetative state. The family has
lawyered up and the media are having a feeding frenzy.
• It’s election season and the D.A. is under pressure to prosecute the
first case of an overdose caused directly or indirectly by a
prescription.
• The APRN is already being accused or running a pill mill and the DEA
is contemplating criminal charges if they can improve intentional
prescriptions being written for pure profit and not therapeutic value.
• Counsel for the APRN objects and is overruled!
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Dr. Jay Zee concludes…
• For these violations, Dr. Jay Z applied the Board's disciplinary matrix
found in Rule 213.
• In summary, Dr. Jay Z concluded that Respondent's actions were
either second-tier or third-tier offenses (the most serious)
presenting a serious risk of harm or death.
• He acknowledged that there was no showing of actual harm on two
of the cases , so not all classifications were based solely on the risk
of harm but actual harm. However, whether directly or indirectly a
child was harmed. He analyzed the sanction levels and the
mitigating and aggravating factors and concluded that revocation of
Respondent's licenses was the appropriate sanction .
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The BON is just getting warmed
up! Enter Dr. Drey…
• Dr. Drey is board-certified in anesthesiology and has, in the past,
operated an interdisciplinary pain management clinic.
• He testified as an expert on the standard of care in pain
management, which is based upon what a reasonable and prudent
medical professional would do in the same or similar circumstances,
based on the evolving body of literature in the field.
• Although Respondent is a nurse, Dr. Drey testified that the standard
of care applicable to Respondent is no different than would apply to
a doctor or other professional prescribing medications for pain and
anxiety
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Dr. Drey’s Written Opinion…
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Dr. Drey reviewed ten of Respondent's patient files in preparation for testifying.
He testified that Respondent violated the standard of care in regard to all ten patients.
In essence, he had the same concerns with each patient's file:
Respondent failed to conduct adequate patient examinations and do proper drug or other
screening to ensure the patients were not simply engaged in drug-seeking behavior and did not
have drug issues;
Respondent failed to develop individualized treatment goals for each patient;
Respondent failed to properly assess the patients fully to ensure that more conservative care was
attempted before simply resorting to medication;
Respondent wrote the maximum prescriptive dosages of pain medications for the patients;
Respondent failed to obtain full prior medical records before prescribing pain medications for the
patients; and,
Respondent failed to properly monitor the patients after they were placed on pain medications, to
measure the efficacy of such treatment
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Dr. Drey, the BON’s Expert
Anesthesiologist Concludes…
• In Dr. Drey's opinion, each of the items above reflects a violation of
the standard of care. Based on his review of the prescription data
report generated and his review of the patient files,
• Dr. Drey testified that Respondent's practice at the Clinic
was consistent with features of a pill mill.
• The vast majority of the prescriptions written by Respondent were
for combinations of hydrocodone and Soma, and sometimes other
drugs, which Dr. Drey referred to as the POWERFUL “Houston
cocktail drug mixture” of Soma, Xanax and Lortab.
• The mixture of the drugs is widely known to cause a feeling of
euphoria and a “high” much like Heroin.
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Based on All of This What Would You Do to
Defend This APRN from Revocation and Jail?
Lawsuits?
• Much tougher cases are fought against the
BON
• Your Job as an attorney is under a sworn
oath to advocate zealously for your client
within ethical bounds
• The situation may seem hopeless but it is
your job to find the chink in the armor
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First things first..
• Although the licenses and certifications
are important the freedom of the APRN is
most important
• No APRN will ever be able to practice with
felony drug trafficking charges
• A good advocate reaches out to federal
agents and extends an olive branch or at
least find out where
they
are heading…
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Our Experts
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We need experts that are nurses and doctors that are published
We need experts that have testified or been through the gauntlet
We need experts that can see a case from both sides
Very hard to retain experts for fear of being “blackballed”
We need our own ammunition against the might of the government
on all fronts
• The Same experts may be needed in front of the BON, on the civil
suit and the criminal case if it comes to that
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Furthermore a good lawyer for
an APRN…
• A good lawyer fields all the media calls
and puts a no comment or minimized spin
to a case (do not add oxygen to a fire)
• Secondly, reach out to the D.A. Although
a child unfortunately got a hold of pills
that vaguely relate back to the NP there is
no proof she gave the script that led to
the child’s anoxic event
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A good lawyer for an APRN…
• A good lawyer asks for all of the records, asks for more
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time or a continuance,
Retains experts to refute the expert opinions of the
BON”s experts and hits them hard for being bought and
paid for “hired guns” who do nothing but testify for the
BON
A good lawyer investigates the RX fraud claims and
reports made by the NP to offer mitigating evidence that
there was prescription theft and that the thousands of
scripts were not given by the APRN or Dr. Smith
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An Example of Testimony in
Real Life
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Testimony of Agent Beyonce (Probable Cause Hearing Only)
Cathy Beyonce testified at the probable cause hearing.
Ms. Beyonce is a Case Support Specialist for the Texas Department of Public Safety (DPS). Ms.
Beyonce testified to the volume of prescriptions written using Respondent's unique license
number.
Ms. Beyonce admitted that she had no way of knowing if Respondent actually wrote the
prescriptions or if they were fraudulently written by others. She simply knew the number of
prescriptions reflected in the DPS database as having been written using Respondent's unique
license number.
In total, there were 9,309 prescriptions of pain medications between December 2013 and
February 2015 written using Respondent's license number.
Specialist for DPS Beyonce indicated that any nurse practitioner or medical doctor can review
their prescriptive license report at any time on line to see who is writing scripts. She also testified
that with the opioid epidemic in America that a reasonable, ordinary, prudent nurse practitioner
would ascertain if there was abuse or misappropriation of the prescriptive authority and follow up
on each criminal report.
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A good attorney for the APRN
hammers away…
• A good attorney keeps on the attack while
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looking for a reasonable offer short of revocation
What does the LVN and RN license have to do
with the alleged scripts and APRN allegations?
Nothing.
What trouble did the APRN’s license for LVN or
RN ever have? Nothing? Why should those
licenses be suspended or revoked?
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Furthermore, the lawyer for the
APRN should…
• Advocate zealously by not only destroying the
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credibility of the BON’s experts but..
Also delve into all of the prescriptions and attack
the fact that out of thousands of charts only 10
were reviewed by Dr. Drey out of 7,000 or
more!!
Dr. Drey is not qualified to judge an APRN
because he is an anesthesiologist
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Quick Break in the Action
• Let’s discuss what we’ve learned
• Let’s discuss what you think the outcome
is?
• What can the Defense do Better?
• Has the BON met its Burden through Dr.
Drey and Dr. Jay Zee?
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Realistic Resolution
• The APRN must at some point admit that the responsibility of
watching out for prescription fraud is hers as well as DPS/DEA or
CMS or other agencies
• An APRN owns their practice
• Offer Mitigating Evidence and Voluntarily surrender for one year on
the APRN if cornered but ask to work as an RN/LVN under
conditions in order to safeguard the public while not throwing out
the baby with the bath water
• Argue that “pill mills” and “opioid epidemic” terminology and media
and political frenzy is relatively new and that for 2 decades this was
a common practice. Once Lortab became schedule II, our APRN
stopped prescribing it.
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What We Can Learn From This
• How Do We Keep Our Practices Safe
• What can we do practice safely?
• How can we avoid going through Pat’s
ordeal
• What really happens to people in Pat
APRN’s situation?
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CONTACT JOE ANY TIME FOR QUESTIONS OR
COMMENTS AND VIEW OTHER LEGAL
DISCUSSIONS ON THE INTERNET
• Joe can be reached by phone or e-mail 24/7 at
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361.887.8670 or [email protected]
Other legal discussions can be seen at
www.youtube.com then typing in search term Joe Flores
OR SOUTH TEXAS CROSSFIRE
FACEBOOK/JOE FLORES (FRIENDS WITH CBAPN)
Thank you and God bless
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