AVOIDING LIABILITY BLOG

Was This Advanced Practice Nurse Fairly Charged with “Unprofessional Conduct” by the State Board of Nursing?

Jody Morrison was an advanced practice nurse licensed initially in Kentucky and several other states before obtaining a license through endorsement in Arkansas. She never had any disciplinary actions against her in any of these states.

As an APN, she had prescriptive authority in all the states in which she was licensed. In Arkansas, it was required that an APN must have a collaborative practice agreement (CPA) that spells out the procedures for consultation with the physician in the joint management of the needs of the APN’s patients.1 It was also required that the CPA be filed with the Board of Nursing, a requirement Morrison was not initially aware of.

Morrison took her first position as an APN with a neurological practice and prescribed medications pursuant to a CPA submitted to the Board but the employment relationship did not work out. The practice informed the Board that the CPA was “null and void”. The Board contacted Morrison and informed her she did not have authority to prescribe medications since no CPA was on file with the Board.

Morrison took another position as an APN. After being contacted by the Board, Morrison talked with the Board and admitted to prescribing medications and that her Drug Enforcement Agency (DEA) registration was up to date. She also asserted that she understood a CPA had been submitted to the Board by the new employer. She also communicated that she never practiced independently at her new job.

After a series of additional phone calls to and from the Board, Morrison realized that the CPA at her second job had not been filed with the Board as the employer said it would do.

Physicians and human resource personnel testified in Morrison’s behalf during the hearing before the Board. Again, due to miscommunication and lack of follow-up, the employer stated that although it thought the CPA had been filed with the Board, in reality, it had not.

The Board found that Morrison wrote prescriptions for 7 months without the proper authority to do so and was therefore guilty of “unprofessional conduct”. Unprofessional conduct is defined in the Arkansas nurse practice act as:

“conduct which, in the opinion of the Board is likely to deceive, defraud or injure patients or the public, means any act, practice or omission that fails to conform to the accepted standards of the nursing profession and which results from conscious disregard for the health and welfare of the public and of the patient under the nurse’s care”.2

In addition, a civil penalty of $1000.00 was ordered, Morrison’s APN license was placed on 6 months’ probation (with conditions), and she was ordered to take a Legal and Ethical Issues course.

Morrison filed a judicial review of the Board’s decision. The court reversed the Board’s decision, holding that the Board’s decision was not supported by substantial evidence because neither accepted nursing standards or Morrison’s failure to obtain prescriptive authority was the result of her “conscious disregard” for the public and patients’ health and welfare.3

The Board appealed the court’s decision, alleging there was substantial evidence to support its decision, that the decision was within its scope of authority, and that the decision was not arbitrary, capricious, or an abuse of its discretion.4

The appellate court, after a lengthy evaluation of the facts in this case and prior Arkansas case law, upheld the decision of the court in favor of Morrison. In so doing, the appellate court held that because there was no substantial evidence regarding the standard of care or Morrison’s intent, disciplining Morrison was in excess of the Board’s authority5.

This case has implications not only for advanced practice nurses but for all nurse licensees. When beginning initial employment or employment in a new state, it is essential that you know, and that you carry out, what needs to be done in order to be properly licensed in that state. Practicing without the required license, required CPA, or other required credentials is the unauthorized nursing practice and may result in allegations of “unprofessional conduct” based on the specific facts of your particular case. Harsh discipline can be imposed if supported by those specific facts.

In Morrison’s case, the end result was in her favor, but the time, expense, and anguish in getting to that favorable result most probably could have been avoided had she been more proactive in knowing what was required for her to be licensed as an APN in Arkansas and in following up to ensure the CPA was indeed filed with the Board.

 

FOOTNOTES

1. Arkansas Board of Nursing v. Morrison , 88 Ark. App. 202 (2004), 205.

2. Id., at 205-206.

3. Id. , at 210.

4. Id.

5. Id. , at 214.

 

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.

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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