1,001 ways to get into trouble with the Massachusetts BORN
From the Massachusetts Nurse Newsletter
October 2008 Edition
By Mary Crotty
Associate Director, Division of Nursing
As a nurse attorney, I hear many nurses say they don’t need to purchase liability insurance because they are covered by their employer, or they practice appropriately or having insurance will attract lawsuits, etc.
Wrong, wrong, wrong!
Your own employer could report you to the Massachusetts Board of Registration in Nursing (BORN), which has the legal responsibility for monitoring the practice of nursing in the commonwealth. I have watched the BORN debate cases of nurses who were reported as retaliation by a supervisor, a coworker or a family member. Other nurses are caught in a “net” when the Massachusetts Department of Public Health was called in to investigate a situation. In fact, a nurse herself may have reported the unsafe practice environment to DPH, leading to an investigation, which frequently results in blame being laid on an individual.
Your employer can be held legally liable for your actions, and therefore has an interest in providing your liability coverage—to an extent. But, if there is a conflict of interest between your employer’s and your best interests, the primary responsibility of your hospital’s defense attorney will be to your employer. Whether or not you practice “by the book,” you could get sued or reported to BORN even if you were on vacation when the incident occurred.
Your employer’s policy may provide assistance in the event of a lawsuit, but that protection is not the only reason for liability coverage. The greater likelihood is your being reported to the BORN, which can happen if there is an incident in which you were even tangentially involved. Your employer will not cover the cost of an attorney to represent you before the BORN. This is the type of incident that will make you wish you had your own liability coverage, which MNA strongly encourages every nurse to obtain. The cost for an RN policy is under $100 a year, and is tax deductible.
I hear from nurses who regret not getting their own policy which would have paid attorney costs. So, periodically I’ll share a real life BORN case, like the following, discussed at BORN’s June meeting:
This complaint was reported against a Massachusetts LTC nurse by her facility’s DON to the DPH. The DPH’s Division of Healthcare Quality investigated. The nurse had restrained an 89- year-old resident in her geri chair with a sheet placed or tied around her. No physical injuries to the patient occurred. The licensed nurse told the BORN investigator she was trying to avoid sending the resident to an ED for an intramuscular Haldol injection The resident—suffering from Alzheimer’s and pneumonia—was com- bative, scratching herself and unresponsive to Ativan. LTC nurses dealing with combative Alzheimer’s patients might send a patient to an ED for intervention as a Haldol injection is considered a chemical restraint. The nurse had mentioned to the BORN investigator that she had been very busy at the time of the incident. Consequently, BORN decided the nurse had unlawfully restrained the patient because she was too buy to transfer her to an ED. The nurse told the BORN investigator that she was terribly busy at the time. Not mentioned was that transfer of an Alzheimer’s patient to an ED could escalate the patient’s confusion and/or delirium, something the nurse may have been trying to avoid. The nurse had also wrapped the residents’ arms with Kerlix so she wouldn’t harm herself. One board member mocked the Kerlix as a “time waster.” Another noted the irony that this nurse got in trouble for restraining a patient when what she could have done was transfer to an ED for them to administer a chemical restraint even though that may have caused more distress for the patient.
BORN issued a reprimand to the nurse. It found that the resident may have had problems breathing resulting in her combativeness, and therefore the nurse should have done a better assessment. To her credit, BORN member Donna Lampman noted that this was a snapshot of what goes on in institutions daily and that the nurse was in the middle of an untenable situation.
The nurse will be left with the stigma of the reprimand; the embarrassment of being reported to the BORN; the time-consuming process of responding to the BORN; and with the guilt that she might have done something wrong. If that nurse had liability insurance she could place the bulk of the burden on an attorney—perhaps a nurse attorney—who could have provided her significant support.