AVOIDING LIABILITY BLOG

ADMINISTRATIVE/JUDCIAL REVIEW OF A BOARD OF NURSING DECISION

As was discussed in the last few Bulletins, one of the rights a nurse licensee has is to file an administrative review before a state court if the nurse believes the decision by a state board of nursing was unfair.  However, such a review is not always easily won, as is illustrated by the following case (1).

 

Laurie MacLean was an R.N. employee of a nurse agency assigned to a long term care facility. Prior to obtaining her R.N. license, she was an L.P.N. but she let that license expire once she became an R.N.

 

One of her patients at the nursing home was in a great deal of pain and had several physician orders for pain medication.  One afternoon, Ms. MacLean telephoned the nurse practitioner, who was on-call, to share with the NP a hospice nurse’s recommendation for additional pain medication.  The NP did not agree to the request but ordered two other medications, methadone q 12 hours and morphine q 3 hours p.r.n.  

 

During the discussion with MacLean, the NP learned that prior to call her for the medication she requested,  Ms. MacLean had already administered methadone to the patient.  Moreover, the NP later learned that MacLean also wrote and signed an order for the STAT administration of methadone at some point during the day in question.  Ms. Maclean did not have the authority to either administer the medication in question or to write the order for it under Massachusetts law, including the nurse practice act.

 

MacLean was reported to the Massachusetts Board of Nursing.  Before the board took action, MacLean filed a complaint with a state agency alleging that she was being targeted by the state department of health and its nursing division for her conduct because of her race.  The state department of health declined to investigate this allegation.

 

After its investigation was complete, the Board alleged numerous ethical violations and violations of the nurse practice act:  falsification of a telephone order for medication, administering a medication without a valid order, and failing to document the need for medication administration to the patient (2).

 

After a hearing, the board’s conclusion was that MacLean had engaged in questionable nursing practice and showed a propensity for deceit and unsuitable behavior.  As a result, discipline was indicated.  The board ordered that MacLean’s R.N. license be suspended for six months and that she could not renew her L.P.N. license for a period of six months.  Additional conditions for her re-licensure included undergoing a mental health examination, demonstrating to the board that she could practice in a safe and competent manner, and complete continuing education requirements (3).

 

Ms. MacLean filed an administrative review action.  The appeals court justice affirmed the board of nursing order.  She then appealed that decision to the Massachusetts Supreme Court as a pro se appellant (that is, representing herself).

 

The Massachusetts Supreme Court stated that a court in Massachusetts can modify or set aside a final decision of the board only if the petitioner (MacLean) can show that the decision was “legally erroneous, defective in terms of procedure, arbitrary or capricious, unsupported by substantial evidence, or contains other defects”( not applicable in this case). (4)  The Court continued that Ms. MacLean did not offer any evidence that the board’s decision was not based on substantial evidence.  Furthermore, the court stated, MacLean did not provide a copy of the transcript of the board hearing so there would be an objective way to evaluate the evidence presented by either the board or MacLean.

 

The Court also stated that Maclean presented no basis that race was a factor in the board’s decision to discipline her. Last, the Court stated that MacLean’s arguments were not coherent.

 

The Court affirmed the decision of the appellate court justice upholding the discipline by the board of nursing.

 

Although this case illustrates extremely questionable conduct on the part of Ms. MacLean, conduct that no nurse should be demonstrating, the case shows how difficult it is to overturn a board decision, even under better circumstances than those involved in this one. Interesting as well is the fact that MacLean never denied the allegations against her (5) but rather sought to rationalize her behavior, albeit with little clarity in her briefs before the Supreme Court. (6)

 

The case also illustrates the folly of representing one’s self, whether in a board of nursing hearing or in any judicial proceeding. As one example of this folly, not providing the transcript of the board hearing was fatal to her case. One can only speculate as to why she did not do so, but it can be assumed that the transcript was not favorable to her and supported the board’s decision.

 

Although the outcome of the case might have been the same, having legal representation during all phases of this case would have at least helped to present Ms. Maclean in a better, more coherent light before the respective tribunals.

 

FOOTNOTES

 

(1)MacLean v. Board of Registration in Nursing, 458 Mass. 1028 (2011).  Available at htpp://masscases.com/cases/sjc/458/458mass1028/html .  Accessed April 27, 2012.

 

(2) Id., at 1029.

 

(3) Id.

 

(4)  Id., at 1030.

 

(5)   A. David Tammelleo (2011), “State Supreme Court Affirms Nurse’s Suspension”, 51(11) Nursing Law’s Regan Report, 1.

 

(6) You can view Ms. MacLean’s appellant briefs by going to the website listed in footnote 1 and clicking on the links listed at the top of the Court’s opinion.

 

DISCLAIMER

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.
REFERENCES

ABOUT THE AUTHOR

Nancy Brent: Nursing

Nancy Brent: Nursing

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).

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