AVOIDING LIABILITY BLOG

AVOIDING PROFESSIONAL LIABILITY BULLETIN-JANUARY 2016

Any certifications, credentials, and your license as a registered nurse and/or an advanced practice nurse that you possess must be kept current. In one unfortunate situation, a nurse practitioner failed to maintain the license she had been provisionally issued which was discovered after a patient she treated died.1

A female patient felt ill and her husband took her to a clinic for treatment. She was seen by a nurse who was an employee of the clinic. After assessing the patient, the nurse determined that the patient had an ear infection. The nurse prescribed antibiotics and sent the patient home.

The next morning, the patient suffered a heart attack and died. Her husband filed a wrongful death case against the nurse, claiming she was negligent in treating his late wife. He also named the clinic in the case, alleging that it was also responsible for his wife’s death and that the clinic was negligent because it failed to ensure the nurse was properly credentialed.2

The husband prevailed on several motions at the trial court level and the clinic appealed those decisions. Specifically, the clinic appealed the grant of a partial summary judgment to the husband on his negligent credentialing claim and appealed the court’s denial of its motion for summary judgment on a battery claim alleged by the husband.

The appellate court affirmed the grant of partial summary judgment to the husband and reversed the denial of the battery claim. In doing so, the appellate court spelled out its reasoning based on the facts of the case.

The nurse obtained an A.D. in nursing, passed the NCLEX-RN in 1986, obtained a B.S.N. in 1995 and an M.S.N. in 1997. The Georgia Board of Nursing granted her a provisional license as a certified nurse practitioner and verified her eligibility to sit for the American Nurse Credentialing Center’s (ACCN) certification exam. The nurse was told that the provisional license would expire if she failed the certification exam, which she took on October 4, 1997. She failed the exam and the provisional license expired.3

The nurse subsequently took and passed the family nurse practitioner certification exam of the American Academy of Nurse Practitioners. This certification was effective from December 1, 1997 to November 30, 2002. In addition, she was also certified as a family nurse practitioner, effective December 1, 1998 until November 30, 2003.

However, when she treated the late patient on November 29, 1999, she did not have a license to practice as a nurse practitioner. The board never issued her such a license, either provisionally or otherwise. The nurse incorrectly thought that once she passed the required examinations, those results would be sent to the nursing board and she would become licensed as a nurse practitioner.

The court opined that the clinic’s argument that the partial summary judgment decision of the trial court should be overturned since it could not be found liable on the negligent credentialing claim by the husband was not correct. The appellate court upheld the trial court’s decision and clearly spelled out the law governing this claim.

In support of its decision, the appellate court also enumerated the clinic’s admissions entered against it in the lower court. They included: (1) that on November 29, 1999, the nurse was not authorized by the Georgia Board of Nursing to practice as a nurse practitioner; (2) the nurse never informed the deceased that she was not authorized to practice as a nurse practitioner; (3) the clinic had a clear duty to the public to provide health care providers who are properly licensed and credentialed; and (4) the clinic did not provide the deceased patient with a cardiac evaluation performed by a nurse practitioner, physician’s assistant or medical doctor duly licensed before being discharged home.

As to the clinic’s battery allegations, the appellate court again carefully analyzed the facts of the case and it applicable law. Informed consent, it opined, is necessary before medical treatment can occur. If informed consent is given it is presumed to be valid consent unless fraudulent misrepresentation occurred in obtaining the consent. If no informed consent was obtained, a claim for battery is possible.

The nurse in this case was not aware that she was not properly licensed as a nurse practitioner nor did she represent to the late patient that she was. There was no evidence that the patient asked the nurse what her credentials were. Therefore, the denial of the clinic’s motion that no battery took place when the nurse treated the patient was an error and therefore reversed the trial court’s decision as to that motion.

It is important to note that the appellate court ruled that there was no issue as to the nurse’s competency. She had several degrees and was certified by appropriate certification organizations. The only issue was whether or not she was licensed as a nurse practitioner.

In 2001, the nurse was granted, pursuant to a Consent Order with the Georgia Board of Nursing, a license as an advanced practice nurse. For her unauthorized practice as a nurse practitioner, she received a reprimand and was fined $1000.00 by the Board. That license is currently active according to Board records.

This case strongly underscores the importance of ensuring that your license and any credentials are current. The responsibility for current licensure and credentialing rests solely with you as the nurse licensee.

FOOTNOTES

1. Wellstar Health Systems, Inc. v. Green, 572 S.E. 2d 731 (Ga Ct. App. 2002).

2. Id.

3. Id., at 732.

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

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).

Have Questions? click here, We’re happy to help!