MNA Comments on BORN's Complaint Process

Taken from the October 1999  issue of the Massachusetts Nurse: a monthly publication of  the MNA

The Massachusetts Board of Registration Complaint Process Raises Serious Concerns
By Karen A. Daley, MNA President
 

On September 22,1999 the Massachusetts Board of Registration in Nursing refused to hear critical testimony on major sections of a complaint filed by MNA member and nurse whistle blower Barry Adams, RN.  Adams was invited before the complaint committee of the BORN to present information for an investigation they were conducting on his complaint. The complaint was filed against his former nursing administrator who illegally fired Adams in retaliation for his efforts to remedy unsafe staffing conditions and patient neglect at the facility. At the heart of the complaint was the issue of accountability of all licensed nurses regardless of their role for decisions they make that adversely affect patient care. 

Adams was present to provide information and answer questions on complaints of "unprofessional conduct," “unethical conduct," and "patient neglect" against the facility’s director of nursing that he filed in September 1998.  Adams’ complaints were based on his belief that the nurse administrator failed to respond to the concerns he repeatedly raised about unsafe patient care conditions and that the director of nursing illegally fired him, acting unethically and in violation of two of the BORN’s commonly cited disciplinary standards. Those standards, often cited by the BORN as the basis for disciplinary action, relate to “good moral character” and behavior “that does not reflect positively on the profession of nursing.” 

In a certified letter received from the BORN’s Discipline Programs Coordinator, Adams was requested to attend an investigation conference to “provide the complaint committee with additional information and to have all parties to these complaints present to respond to any questions that  the complaint committee may have regarding this matter.”  Based on that letter, Adams assumed the September conference would provide an opportunity for him to present pertinent testimony to members of the BORN regarding the complaints.

Instead, Adams was informed at the hearing that the complaint committee of the BORN had elected not to pursue the  major sections of his complaints in April 1999. Adams had not received any notice of that action. The BORN hearing officer refused to allow the testimony related to "unprofessional conduct," "unethical conduct," and "patient neglect,” citing their decision to only hear testimony about the more technical aspects of the complaint.  Information about the nature and intent of the hearing was different for the nurse against whom the complaint had been filed.  At the hearing, her legal counsel stated that she had been told in writing that the September 22 hearing was to be in “executive session” and was a formal proceeding. Adams was not so advised. The nurse administrator had also been notified before the September hearing that the complaint committee would not pursue the major sections of the complaint. 

While it is clearly within the authority of the BORN complaint committee to recommend outcomes to the full BORN regarding such complaints, it is difficult to justify or understand the basis for such action to have been taken.  Evidence to support Adams’ complaints included two separate findings against nursing administrators within the facility: a March 1997 report by the Massachusetts Department of Public Health following an investigation of Youville Healthcare Center after an unintentional narcotic overdose of a patient that cited the facility with eight deficiencies of patient care including two counts of "patient care-neglect" and two counts of "lack of professional and technical services" in the department of nursing. The report also faulted administrators for failing to correct unsafe practices identified by the DPH and requiring further intervention by the investigators. The DPH investigated two more patient incidents at the facility and issued more deficiencies.

In November 1997, Judge Amchan of the NLRB also ruled that Adams’ firing was"illegal" and an "attempt to silence and retaliate against him."  He ruled the disciplinary actions issued against Adams and two other RN’s were discriminatory, punitive and carried out with "animus" toward the three nurses.  The director of nursing’s testimony was unreliable, according to the judge.  He faulted her for offering "pretextual" and unsubstantiated motives to silence the nurses.  The nurses were ordered reinstated with all back pay and all records of the punitive actions were ordered removed and all past and present employees were ordered to be notified of his decision.  Amchan’s ruling was challenged by Youville and upheld on appeal.

This event comes just a week after the BORN’s recent controversial decision to discipline nurses at the Dana Farber Cancer Institute for a tragic patient overdose in which every other investigative body that studied the incident concluded it was not the fault of the nurses, but the result of a system failure. In a recent article in the American Journal of Nursing, Susan Grant, chief of nursing and patient care services at the Dana Farber Cancer Institute writes “Four years after the overdoses, the Massachusetts BORN proposed sanctions against the nurses involved without ever having conducted an appropriate investigation of the case, and there has been no opportunity for the nurses involved to explain the case directly to the BORN …. 

1."While the Board admittedly has no obligation to explain its actual decisions in a public forum, it should also not demonstrate public disdain and blatant dismissal of nursing professionals attempting to use due process to advocate for what they believe to be in the best interest of the public health and safety.  As one of the state agencies mandated to protect the public, the public and the profession should expect no less of the BORN. Every nurse in Massachusetts who violates his or her professional, ethical and behavioral trust to patients should be held accountable.  And as we see more and more nurses coerced into silence in the face of unsafe patient care conditions, it is critical that nurses be willing to risk speaking out for their patients.  For that to happen, the BORN must be objective and apply the same disciplinary standard to all nurses in its determinations."

The decision by the BORN to dismiss Adams’ complaints raises heightened concern on behalf of the nursing community about the current Board’s ability to objectively, fairly and consistently investigate, evaluate and determine the outcome of complaints against individual nurses.  It also creates the appearance of a troubling double standard. The BORN appears to aggressively discipline those who have little or no control over  their practice environment while failing to discipline those nurses who have the overall responsibility for patient care and the practice environment, as in this case.

That same concern underlies some of the objections raised throughout the nursing community and by MNA about the newly proposed nursing regulations. In addition to many specific issues already raised by nurses around the state related to these proposed regulations, MNA is particularly concerned with two new areas and what the implications could be for nurses around the Commonwealth: mandatory reporting and the BORN’s assumption of summary suspension powers.

The BORN is scheduled to issue its final ruling on Adam’s complaint on November 10, 1999. 
 

1.Grant,S., “Who’s to Blame for the Error,” American Journal of Nursing, Vol.99,No.9, p.9.
 

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