The “Dos and Don’ts” of Appearing Before the Texas Board of Nursing
October 8, 2009 By Bertolino LLP
Will you be prepared if the Texas Board of Nursing mails you a written notice of investigation into a complaint?
As you may already know from the unwanted experiences of your nursing colleagues, the number of complaints filed with the Texas Board of Nursing has greatly increased over the past several years. This influx of cases that must now be reviewed by overworked state board investigators is due largely to a constitutional amendment called Proposition 12, which was passed by Texas voters on September 13, 2003 authorizing the Texas legislature to determine limitations on non-economic damages. Under this legislation, the maximum amount that patients could recover in a medical malpractice lawsuit against doctors, nurses and other health care providers was lowered and capped to $250,000.00. While Texas became a more welcoming place for nurses who appreciated the lessened threat of a medical malpractice lawsuit, more patients now feel that their grievances are better addressed through the medical and nursing boards instead of the courtroom. Will you be prepared if the nursing board’s written notice of investigation into a complaint lands on your desk?
One of the most important steps that you can take when preparing for an appearance before the Texas Board of Nursing is retaining experienced counsel. I know this piece of advice is exactly what you would expect from a member of the legal profession. However, please know that there are several critical reasons you should hire an attorney as soon as you receive a letter of complaint from the nursing boards.
First, investing in legal counsel demonstrates to the nursing investigator, panel or board members that you are taking the complaint seriously. Just walking into the hearing room with a professional litigant by your side will show that you are determined. Unfortunately, there may be instances in which members of the panel and their board prosecutor will be more aggressive if you do not counter with your own attorney.
Second, by retaining counsel, you will be sending the message that you believe in your case and you are prepared to fight the charges all the way to state district court. The members of the nursing boards do not want to face the money and time that accompanies an actual trial. The efforts to reach a mutually acceptable resolution during the investigatory or informal settlement hearing may increase noticeably with an attorney present.
Next, you can trust that your personal counsel will treat your hearing in the same way that he or she would approach any other civil litigation matter. You can expect that claims against you will be investigated, legal authority will be researched, colleagues will be interviewed, supporting evidence will be gathered, and experts will be asked to offer testimony. In addition, there will likely be many volumes of medical records that need to be reviewed. A set of expert eyes will quickly be able to locate any mitigating evidence that can be used on your behalf. This extensive amount of information alone may convince the nursing board that your offense was simply a one-time occurrence, a “minor incident” or that there is no reason to assume that you are involved in a pattern of problematic behavior that poses a danger or harm to patients.
Remember, the cost that comes with retaining a lawyer to guide you through the nursing board review process is minimal when compared to the fines and other punishments you may face if the board finds the complaint against you to be justified.
While your attorney should prepare you for what to expect when you appear before the nursing board to answer the complaint filed against you, I would like to share my recommendations on what your chosen approach should be from the moment you find out that your day in front of the panel is coming.
The “Dos”
1. Do dress professionally
This first point may seem like an obvious one, but there is never a chance to replace a first impression. You may believe you are demonstrating a dedication to your profession by arriving at your hearing in scrubs or wearing a stethoscope, but there will be other opportunities to prove that you are a serious member of the medical community. Instead, the business attire that you would wear in any courtroom setting should be your clothing of choice for this important day. For men, I recommend wearing a clean, well-pressed suit and tie and well-polished shoes. For women, I recommend a neat business suit, hose and clean, well-polished shoes.
2. Do be willing to admit to an error
In many situations, humility is the answer. The nursing board will be more lenient in the penalty rendered if you acknowledge that perhaps your best efforts were not demonstrated during the instance in question. As with Americans and their elected leaders, an honest apology goes a long, long way in mending a wrongdoing. If you are insistent that there were no poor decisions for substandard care for which an apology is needed, at least make the concession that you will think about other ways that you could have approached the same situation. Of course, your legal counsel should be very careful in advising that you not testify or otherwise present matters that may be self-incriminating or self-indicting.
3. Do reinforce your position with documentation
The best way to approach your day in front of a Texas nursing board panel is to be meticulous in your words, actions, and decisions. Nurses need to know everything possible about their responsibilities regarding record keeping, how to provide optimal patient safety, the correct administration of medication, and the procedures to follow when leaving an assignment. If a patient, one of your peers or the board itself still finds reason to file a complaint against you, having made a regular practice of professionalism will be of great value. Review all related documentation with your attorney and make sure you know every detail of its contents. A solid paper trail that supports your side of the story is one of the strongest weapons that you have at your disposal.
4. Consider accepting the decision of the panel
Once both sides have presented the facts, witnesses have spoken, and you have had a chance to share your recollection of the incident, the board panel is going to issue its decision. If the panel finds that the complaint has merit, the panel will share its recommendation for your penalty in the form of a Proposed Agreed Order. The penalty could include fines, warnings, reprimands, probation, completion of remedial education, further review of your records, or other actions as determined by the panel.
There will be some room to negotiate here, however. If all parties agree upon a resolution, the Proposed Agreed Order is signed and presented to the entire nursing board for approval. If you do not agree with the panel’s finding of wrongdoing on your part, do not get into a defensive argument. You will have the opportunity to appeal the decision to the State Office of Administrative Hearings (SOAH), at which time an administrative law judge (ALJ) will be assigned to the case and a more formal trial system takes over.
The “Don’ts”
1. Don’t ignore notices from the nursing board
Like the electricity bill and those weekly phone calls from your mother, notices that you receive from the nursing board must receive a response. Pretending an allegation against you does not exist is not a wise way to assert your innocence. No one on the board is going to think, “She will not even dignify us with a response. I guess we were way off base to think that these complaints against her could be true! I guess we will just have to close the case.” To think such a thing is simply wishful thinking.
When you receive a written notice that an investigation is beginning into a complaint against you, you have a limited time to respond. Make sure you do so.
2. Do not circumvent the chain of command
Perhaps your favorite cousin is a staffer for your state representative and you think that a good word from the legislator would make this problem disappear. Or, you are considering a phone call to the local newspaper to share the unfair accusations that are being made against you. Think twice about going around the standard procedure that the law has established. Do not contact politicians, lobbyists or other outsiders to influence the outcome of your hearing. This approach will usually backfire, particularly when discovered by the board members who will then believe you are minimizing their importance. Be a strong advocate for yourself, but do so within the legal system.
3. Do not expect your attorney to do most of the talking
The members of the nursing board want most of the discussion to be directly with you. You must be thoroughly prepared on the facts of the complaint. You should be prepared to present the details and your version of the events that prompted the hearing in the first place. As I mentioned, you should have an attorney in the room to provide legal guidance, assistance and refute challenges made by the board panel. Nevertheless, unlike in a courtroom, you need to provide the voice for your own defense. If you defer to your legal counsel, your competence and confidence in your own actions will be questioned and remain under serious scrutiny.
To be certain, no medical professional wants to be brought before a review board to defend his or her practices against the complaints of an unhappy patient, medical professional colleague or employer. However, if you find yourself in that situation, you want to know that you are taking every step possible to insure the best outcome. Your license, livelihood and reputation as a nurse may be at stake. By knowing what to expect before that board notice ever arrives in the mail, you are creating the circumstances for a pleasant resolution to the complaint process.
If you have received a notice to appear before the Texas nursing board panel, or even have been asked to provide documentation regarding a possible inquiry, do not wait another day to become your own best advocate. Hire an administrative law attorney, immerse yourself in the details of the complaint, and you will be ready.
ABOUT THE AUTHOR: Tony R. Bertolino
Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio. Mr. Bertolino’s represents clients before all medical boards and peer reviews. He has helped many medical professionals protect their license and limit negative consequences that can occur when professional boards are investigating a complaint.
Copyright Bertolino LLP
More information about Bertolino LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
One of the most important steps that you can take when preparing for an appearance before the Texas Board of Nursing is retaining experienced counsel. I know this piece of advice is exactly what you would expect from a member of the legal profession. However, please know that there are several critical reasons you should hire an attorney as soon as you receive a letter of complaint from the nursing boards.
First, investing in legal counsel demonstrates to the nursing investigator, panel or board members that you are taking the complaint seriously. Just walking into the hearing room with a professional litigant by your side will show that you are determined. Unfortunately, there may be instances in which members of the panel and their board prosecutor will be more aggressive if you do not counter with your own attorney.
Second, by retaining counsel, you will be sending the message that you believe in your case and you are prepared to fight the charges all the way to state district court. The members of the nursing boards do not want to face the money and time that accompanies an actual trial. The efforts to reach a mutually acceptable resolution during the investigatory or informal settlement hearing may increase noticeably with an attorney present.
Next, you can trust that your personal counsel will treat your hearing in the same way that he or she would approach any other civil litigation matter. You can expect that claims against you will be investigated, legal authority will be researched, colleagues will be interviewed, supporting evidence will be gathered, and experts will be asked to offer testimony. In addition, there will likely be many volumes of medical records that need to be reviewed. A set of expert eyes will quickly be able to locate any mitigating evidence that can be used on your behalf. This extensive amount of information alone may convince the nursing board that your offense was simply a one-time occurrence, a “minor incident” or that there is no reason to assume that you are involved in a pattern of problematic behavior that poses a danger or harm to patients.
Remember, the cost that comes with retaining a lawyer to guide you through the nursing board review process is minimal when compared to the fines and other punishments you may face if the board finds the complaint against you to be justified.
While your attorney should prepare you for what to expect when you appear before the nursing board to answer the complaint filed against you, I would like to share my recommendations on what your chosen approach should be from the moment you find out that your day in front of the panel is coming.
The “Dos”
1. Do dress professionally
This first point may seem like an obvious one, but there is never a chance to replace a first impression. You may believe you are demonstrating a dedication to your profession by arriving at your hearing in scrubs or wearing a stethoscope, but there will be other opportunities to prove that you are a serious member of the medical community. Instead, the business attire that you would wear in any courtroom setting should be your clothing of choice for this important day. For men, I recommend wearing a clean, well-pressed suit and tie and well-polished shoes. For women, I recommend a neat business suit, hose and clean, well-polished shoes.
2. Do be willing to admit to an error
In many situations, humility is the answer. The nursing board will be more lenient in the penalty rendered if you acknowledge that perhaps your best efforts were not demonstrated during the instance in question. As with Americans and their elected leaders, an honest apology goes a long, long way in mending a wrongdoing. If you are insistent that there were no poor decisions for substandard care for which an apology is needed, at least make the concession that you will think about other ways that you could have approached the same situation. Of course, your legal counsel should be very careful in advising that you not testify or otherwise present matters that may be self-incriminating or self-indicting.
3. Do reinforce your position with documentation
The best way to approach your day in front of a Texas nursing board panel is to be meticulous in your words, actions, and decisions. Nurses need to know everything possible about their responsibilities regarding record keeping, how to provide optimal patient safety, the correct administration of medication, and the procedures to follow when leaving an assignment. If a patient, one of your peers or the board itself still finds reason to file a complaint against you, having made a regular practice of professionalism will be of great value. Review all related documentation with your attorney and make sure you know every detail of its contents. A solid paper trail that supports your side of the story is one of the strongest weapons that you have at your disposal.
4. Consider accepting the decision of the panel
Once both sides have presented the facts, witnesses have spoken, and you have had a chance to share your recollection of the incident, the board panel is going to issue its decision. If the panel finds that the complaint has merit, the panel will share its recommendation for your penalty in the form of a Proposed Agreed Order. The penalty could include fines, warnings, reprimands, probation, completion of remedial education, further review of your records, or other actions as determined by the panel.
There will be some room to negotiate here, however. If all parties agree upon a resolution, the Proposed Agreed Order is signed and presented to the entire nursing board for approval. If you do not agree with the panel’s finding of wrongdoing on your part, do not get into a defensive argument. You will have the opportunity to appeal the decision to the State Office of Administrative Hearings (SOAH), at which time an administrative law judge (ALJ) will be assigned to the case and a more formal trial system takes over.
The “Don’ts”
1. Don’t ignore notices from the nursing board
Like the electricity bill and those weekly phone calls from your mother, notices that you receive from the nursing board must receive a response. Pretending an allegation against you does not exist is not a wise way to assert your innocence. No one on the board is going to think, “She will not even dignify us with a response. I guess we were way off base to think that these complaints against her could be true! I guess we will just have to close the case.” To think such a thing is simply wishful thinking.
When you receive a written notice that an investigation is beginning into a complaint against you, you have a limited time to respond. Make sure you do so.
2. Do not circumvent the chain of command
Perhaps your favorite cousin is a staffer for your state representative and you think that a good word from the legislator would make this problem disappear. Or, you are considering a phone call to the local newspaper to share the unfair accusations that are being made against you. Think twice about going around the standard procedure that the law has established. Do not contact politicians, lobbyists or other outsiders to influence the outcome of your hearing. This approach will usually backfire, particularly when discovered by the board members who will then believe you are minimizing their importance. Be a strong advocate for yourself, but do so within the legal system.
3. Do not expect your attorney to do most of the talking
The members of the nursing board want most of the discussion to be directly with you. You must be thoroughly prepared on the facts of the complaint. You should be prepared to present the details and your version of the events that prompted the hearing in the first place. As I mentioned, you should have an attorney in the room to provide legal guidance, assistance and refute challenges made by the board panel. Nevertheless, unlike in a courtroom, you need to provide the voice for your own defense. If you defer to your legal counsel, your competence and confidence in your own actions will be questioned and remain under serious scrutiny.
To be certain, no medical professional wants to be brought before a review board to defend his or her practices against the complaints of an unhappy patient, medical professional colleague or employer. However, if you find yourself in that situation, you want to know that you are taking every step possible to insure the best outcome. Your license, livelihood and reputation as a nurse may be at stake. By knowing what to expect before that board notice ever arrives in the mail, you are creating the circumstances for a pleasant resolution to the complaint process.
If you have received a notice to appear before the Texas nursing board panel, or even have been asked to provide documentation regarding a possible inquiry, do not wait another day to become your own best advocate. Hire an administrative law attorney, immerse yourself in the details of the complaint, and you will be ready.
ABOUT THE AUTHOR: Tony R. Bertolino
Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio. Mr. Bertolino’s represents clients before all medical boards and peer reviews. He has helped many medical professionals protect their license and limit negative consequences that can occur when professional boards are investigating a complaint.
Copyright Bertolino LLP
More information about Bertolino LLP
View all articles published by Bertolino LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
