What to expect and when you need a lawyer

By Genevieve M. Clavreul, RN, Ph.D.

The mere mention of an investigation by the California Board of Registered Nursing (BRN) can strike fear into the heart of any nurse, and for good reason. A BRN investigation can turn your life upside down and even end your career.

With that in mind, I thought it would be worthwhile to explain what you can expect if you become the target of such an investigation.
by the numbers. Nurses can take some comfort in knowing that only a small percentage of RNs wind up in the BRN’s investigative sights each year.

Look at the Numbers

According to the BRN, there were 392,458 actively licensed RNs in California in September 2013. During the 2013 fiscal year (July 2012 through June 2013), the BRN’s Complaint Intake office recorded a total of 8,330 new cases, of which 7,714 were assigned for investigation.

The majority of last year’s new investigations — more than two-thirds — were initiated because the BRN learned that a nurse had been arrested for or convicted of a felony or misdemeanor related to his or her nursing duties or qualifications. The most common offense was driving under the influence (DUI).

Only 2,876 BRN complaints were filed by consumers in fiscal 2013 and 508 of those complaints were closed without an investigation. That means only about 0.6 percent of California RNs — one in every 163 nurses — faced a BRN investigation last year due to a consumer complaint.

First Steps

Let’s imagine that worse comes to worse and someone files a complaint against you. The BRN’s first step is to review the complaint to determine if it falls within the board’s jurisdiction. If not, the complainant may be referred to a more appropriate agency, but the case is considered closed as far as the BRN is concerned.

If the complaint does fall within the board’s purview, the next step is to determine if there is reason to refer you to the Diversion Program. This is a voluntary, confidential program for nurses struggling with mental illness or problems with drugs or alcohol. Obviously, that isn’t relevant in many cases and even if it is, the BRN may not offer you the option. Also, you can’t practice while you’re enrolled, so while the program might let you keep your license, you will probably lose your job.

If you aren’t offered that option or you decline, the board assigns the complaint for further investigation. Depending on the nature of the allegations, a complaint might be investigated by BRN staff, the Division of Investigation of the California Department of Consumer Affairs (of which the BRN is a part) or an outside investigator.
harsh questioning

Make no mistake — a BRN investigation can become a nerve-wracking examination of your professional and private life that makes a TSA strip search look like a friendly pat on the back.

Adding to the stress is the fact that investigators aren’t obliged to tell you exactly what they’re after or even the full details of the complaint. You won’t usually know who the complainant is or what they said, which can leave you scrambling to defend yourself without really understanding what kind of trouble you’re in.

BRN investigations are considered administrative actions, not criminal investigations, so many of the legal tidbits you’ve gleaned from watching TV dramas like “Law and Order” don’t apply here. Nevertheless, there are two rules that do apply: You have the right to remain silent and anything you say is likely to be used against you!

Call Your Lawyer

You are allowed legal counsel when speaking to the BRN investigators, and if you’re facing an investigation, hiring an attorney may be a wise move. Unfortunately, it can also be expensive. Many malpractice insurance policies don’t protect you in the event of a board complaint or will impose caps on how much the insurer will pay to assist in your defense. Still, if the investigation results in a formal accusation, your entire nursing career may be on the line, so the cost might well be worth it.

If you don’t know how to find a lawyer with expertise in this area of law, the American Association of Nurse Attorneys (www.taana.org) may be able to help. This is an association comprised of RNs who are also attorneys, many of whom have experience representing nurses in cases like these and understand both the legal and professional issues involved.

The Formal Investigation

An investigation is just that: examining the evidence related to a complaint to determine if it has any substance. Not all investigations result in an accusation, much less disciplinary action. Sometimes, investigators conclude that the allegations were false or at least that there is insufficient evidence to substantiate them. In other instances, the board might decide the allegations are substantiated, but opt to let you go with a citation and a fine.

If you’re not so fortunate, the board’s next step is to issue a formal accusation that you have violated the Nursing Practice Act. This accusation is public record and anyone can look it up on BreEZe or the BRN website. In most cases, the accusation will be followed by an administrative hearing, which is like a trial.

If you haven’t already hired a lawyer by this point, you should seriously consider doing so. Administrative hearings have their own terminology, rules and procedures; a simple misunderstanding could be career-ending. If you don’t promptly file a notice of defense after receiving the accusation — in which case the board will assume you’re forfeiting your right to a hearing — or if the board rules against you, you may be kissing your license goodbye. Depending on the allegations, you might even face criminal charges.

Keeping the BRN Fair

We like to think that the BRN represents nurses’ interests, so ending up on the receiving end of the board’s suspicion can feel like a betrayal. However, we should keep in mind that the BRN is not in the business of protecting RNs — it’s in the business of protecting the public from RNs!

If the BRN has reason to believe a nurse has stepped out of line, the public and our elected officials have every right to demand that the board act swiftly and firmly to investigate and correct the situation.

That doesn’t mean that nurses have to stand by helplessly or be railroaded. By educating ourselves on the BRN’s policies and disciplinary procedures, we can exert our influence to ensure that the board acts fairly and justly. BRN meetings, including the meetings of the Diversion/Discipline Committee, are open to the public and allow for public comment on any issue relevant to the committee’s business, even if the item isn’t on the agenda.  (You can find a schedule of meetings here.)

Another option, and one I always recommend for nurses, is to get involved with the legislative process. Remember, the BRN’s function is to enforce state law and regulations. If you feel those rules are unjust, it only makes sense to address your complaints to the lawmakers with the power to change them — or consider running for office yourself.