This week’s blog post is a cliffhanger! This is part one of a two-part series written by our guest blogger, Nurse/Attorney Kimberly Kent! Kim is a medical malpractice defense attorney who reports that one of her “greatest joys is representing nurses before regulatory boards” (see Kim’s bio at the end of this post). Kim is a colleague of my in-house attorney, my husband, Ed. Her expertise in defending nurses, including school nurses in complex litigation, is illustrated in this post. Part one of this series shares the story of a school nurse who finds herself in a circumstance that will be familiar to many of us. Part two, which will be published next week follows the school nurse through a legal nightmare where her license was at risk of being revoked. Protecting our licenses is always in the back of our minds in the world of school nursing. We often find ourselves practicing “defensive school nursing” and this two-part series illustrates why!
I want to thank Kim for her professional generosity and sharing her expertise in both nursing and law. The perspective she brings to our school nursing practice is invaluable.
This is the story of Susy, a school nurse who learned a very hard, but valuable lesson that we must all remember!
“Susy, a young, vibrant R.N., worked at a moderately sized elementary public school. [1] One fall day, unbeknownst to Susy, a teacher’s aide (TA) working in the special education classroom, contacted local police regarding suspicion of abuse concerning a student. Apparently, during a diaper change of a disabled student, the TA observed “pubic hair” and suspected possible abuse. The aid bypassed the nurse, instead, she contacted the police directly. They arrived on the scene and rushed into an investigation.
During the investigation, a police officer summoned Susy and ordered her to conduct a pelvic exam on the disabled student. Susy refused and stated that it was outside the scope of her practice. Nonetheless, the officer pressured her to “observe” and “report” as the TA changed the student’s diaper again. Torn between patient safety, the scope of practice concerns, and a very demanding police officer, Susy reluctantly agreed. Her off-hand observations were, as you could imagine, mixed. In hindsight, it was unreliable for her to render any professional opinion regarding abuse. However, she stated she did notice redness in unexpected areas which “could be” signs of abuse. Based on this statement, the child was whisked to the hospital where a physician performed a formal physical pelvic examination. The exam was deemed normal. No pubic hair of any kind was discovered.
The child was returned to the parents who were ignorant of the day’s events. Based on the nurse’s comments, the officer believed he had probable cause of a crime, relieving his obligation of a search warrant as the parents were possible suspects of abuse. The child’s family was livid and immediately threatened suit against the school. The parents understandably felt a myriad of emotions including hurt that they could be suspects of harm to their child.
In retaliation, the parents reported Susy to the State Board of Nursing for misconduct. The claim against Susy was that she “acting outside her scope of practice and guilty of sexual abuse for conducting an unauthorized physical examination of their child.” The nightmare for Susy began to unfold. The school district inexplicably denied counsel or assistance for the Board complaint. At this point, Susy sought local counsel from me. Initially, I urged the school to assume her defense. Under a longstanding legal doctrine known as “Respondent Superior,” the school was responsible for Susy and owed her a duty to defend against the Board complaint. If the school refused because of a conflict of interest, they owed her notice and an explanation. Instead, they ignored her calls and ignored all formal requests for legal support. Many months later, the school board eventually admitted a glitch in their refusal to handle the matter. By then, Susy had been through hell.
Meanwhile, back at the Board of Nursing, Susy became the subject of a full investigation. The complaint took on a life of its own. The Board did not accept her word that she did not conduct a physical examination. The initial charges ranged from sexual abuse by participating in an unauthorized examination to unprofessional conduct for acting outside the scope of practice. Should Susy have refused the police officer? Should she have summoned administration? These were all fair questions but based on her explanation was she in violation of the nurse practice act of sexual abuse? No.
The biggest mistake I have watched nurses and attorneys repeatedly make in a case like this is to take for granted that the nurse’s side of the story will end the investigation. The failure to obtain counsel aggressively defend a seemingly ridiculous claim is a mistake. For Susy, the Complaint spiraled into threats of license suspension.
To find out what happened to Susy and how this nightmare could be avoided Read Part 2. Susy Fights Back.” – Kimberly Kent, RN, BSN, JD
Susy Fights Back will be posted in a follow-up blog next week! Stay tuned to learn how this cliff-hanger ends. We can all learn important lessons through this compelling story!
[1] The names used in this story are fictitious and the facts not strictly applied for illustrative purposes. However, this is an anecdotal summary of a true case.
Kimberly Kent RN, BSN, JD is the founding and managing member of a boutique law firm specializing in health care transactions and litigation. Ms. Kent is a trial attorney representing primarily health providers for over 26 years. She has successfully tried to verdict numerous complex medical malpractice cases with substantial exposure. She is a dynamic speaker who often teaches nurses and allied professionals how to improve care through the art of documentation. One of her greatest joys is defending nurses before the regulatory agencies. Ms. Kent can be reached via email: kkent@klgaz.com or by calling: 1-602-264-5600.
