Why a Nurse Being Disciplined for Medication Charting Errors Should Worry
About Felony Criminal Charges
6 steps to protect your nursing job, your RN License and your freedom
By RN Guardian Executive Director, Jennifer Coalson-Perez
The most concerning calls I take at RN Guardian are from nurses who have either been terminated from their jobs, or resigned in lieu of termination, as the result of medication charting errors. I’m sure there is not a nurse in California who has not made a medication charting error at least once in their career. For nurses in fast paced settings, especially ER or OR nurses, medication charting errors can even be commonplace. But if a nurse is called out for multiple medication errors, PYXSIS discrepancies, wasting errors or unaccounted-for medication, there is a significant cause for concern, far beyond the nurses’ current job. The nurse’s registered nursing license could be in serious jeopardy, and there could be criminal implications that could easily result in felony charges being filed.
Missing medication or medications that can’t be accounted for are a huge deal. It is a massive liability for the hospital. One or two instances may not be cause for concern, but I have had nursing clients who have been “investigated” for as little as 3 or 4 errors over the course of a few months. If the hospital believes that medication charting errors have been made, they are obligated to look into what happened and where the medication has gone. If the nurse’s expatiation was “I didn’t waste the medication with a witness”, or “I gave the medication on a verbal order that I failed to document”, or “I was too busy and just forgot”, or worse: “I don’t know what happened,” the nurse may have significant problems with the employer. The nurse may be terminated on the spot if they are an at-will employee, or they may be placed on administrative leave while the employer investigates. They may be required to adhere to a performance improvement plan, or they may just get a verbal warning and sent back to work. The nurse usually assumes that the problem ends there because they don’t hear anything more about it for months.
But the problems don’t stop there. Hospitals and healthcare facilities are MANDATORY reporters. That means that no matter how much you think your supervisor likes you, or what a great nurse you are, or even if this is the first error in a 25 year career, the supervisor MUST report the unaccounted-for medications. Even if they tell you that they won’t, they must. Even if they tell you that they suspect you of diverting medication and tell you if you voluntarily enroll in Diversion they won’t report it, chances are- they will. Once the missing medications are reported to the Board of Registered Nursing (BRN) and the Department of Consumer Affairs (DCA) the nurse is almost certainly facing some career altering implications.
The BRN Board of Registered Nursing (BRN), which is under the Department of Consumer Affairs (DCA), will launch its own investigation into the missing medications. The BRN ALWAYS assumes that the nurse diverted the meds for their own use or to sell, which is why the first indication that this has been reported is usually an offer to join Diversion from the Board (read up on Diversion on the blog). This immediately places the RN in a horribly compromising position, because how does one prove a negative? If the nurse simply made some medication charting errors and did not divert the medication, how does the nurse prove that after the fact? Sure- they can say, “no I did not divert medication,” but you can probably guess how far that gets a client as a defense strategy. The other complicating factor is that the hospital that reported the RN to the BRN has the “proof” that the medication is missing. They will have documentation of meds checked out and not given, doses that were too high, doses that weren’t verified as wasted, or meds pulled on a verbal order that aren’t accounted for or that the doctor denies giving. Even nurses who give more medication than others are sometimes suspect. These are all scenarios that have resulted in full- blown Accusations filed against the nurse. The best case scenario once the BRN is made aware of the missing medications is if the RN admits to making medication charting errors, but then they have given the BRN all it needs to file a Gross Negligence or Incompetence Accusation. As if having a formal accusation filed against a RN license for diverting medication or something as awful sounding asGross Negligence wasn’t enough, there is another layer of complexity, even more detrimental that can arise.
A Board of Nursing or DCA investigation does not preclude a criminal investigation. Occasionally, if there is sufficient circumstantial evidence against the nurse, the BRN or DCA may turn the file over the District Attorney for criminal prosecution. Diversion of schedule III controlled substances is a felony and if the DA believes that the missing medications were in fact diverted for personal use or sale, they will arrest the nurse or notify the nurse that a warrant has been issued for their arrest. Finally, if the missing medication happened to result in ANY harm to a patient, the RN will likely be reported for the Federal Office of the Inspector General for inclusion of the OIG’s List of Excluded Individuals, and will never be able to work in a health care setting again.
So how in the world does a nurse who is administering medication as part of their job, in a crazy, fast paced setting protect themselves from a little errors snowballing out of control? Of course the best advice is unrealistic: don’t make medication charting errors. Ever. Chart everything and then make copies of your own charting so that you have proof if you’re ever suspected of diverting- but then of course you run the risk of a HIPPA violation, right? Drug test yourself everyday- but of course that won’t work if you are accused of diverting the same medication that you may be prescribed.
The most realistic thing you can do is to be cognizant of the consequences and know what to do if you are ever in the situation where you need to defend yourself against a diversion or missing medication inquiry.
1.Do not, under any circumstances participate in ANY employer investigation or inquiry at any level without a representative.
a.If you are union- take your rep.
b.If you are not union- hire one.
2.Do not quit your job without consulting a representative.
a.Resignations when you’re being accused of something make you look guilty- make sure to talk to an expert before you react emotionally and quit.
b.If you are union- take this as far as you can with the grievance process- it looks better.
3.Get a full panel drug screen.
a.Even if you offer at the time of inquiry and the employer says no (they usually do), get a drug screen on your own.
b.You need unequivocal proof that the missing medications are not present in your body. If the issue was a few months back- perhaps talk to a toxicologist about your options.
4.Continue drug testing on your own for a few months.
a.RNs who divert do so because they are chemically dependent. If you can show that you have 3 or 4 months of a clean drug test- that may help.
5.DO NOT CALL THE BRN’s DIVERSION BEFORE YOU CALL ME.
6.HIRE A LAWYER WHO KNOWS WHAT THEY ARE DOING!!!!
There are a lot of attorneys out there ladies and gentlemen-A LOT – and they would all love to take a case like this because it is a potential gold mine. Please be careful in selecting your legal representative. A misstep at any stage can make this so much worse for the nurse. It is imperative that you select a law firm and attorneys who can advise you at the employer stage (labor law), the BRN or DCA investigation stage (administrative law/ license defense) and the criminal stage (criminal defense). The labor lawyer on their own may give you advice that could jeopardize your criminal case and the criminal lawyer may advise you in a way that causes your RN license to be revoked. Now of course you probably saw this coming from a mile away: I work with that that law firm.
RN Guardian’s Panel Attorneys at Goyette & Associates, Inc. have lawyers who are undeniable experts in Labor Law, Administrative License Defense and Criminal Defense. In fact, it is almost as if there was an entire legal organization dedicated to helping nurses in this very situation…like a guardian, you might say.
Please call me if you are a California registered nurse who finds themselves in this horrible predicament of having medication charting errors. While retaining an attorney to help you navigate this process will not be cheap- I am available to answer every question you have, point you in the right direction and let you know exactly what to expect, and I am free with your RN Guardian membership. I can help you keep your career, your RN license and your freedom, because I have helped hundreds of nurses in your situation and I promise I can assuage some of your fears. If you are not a California registered nurse, call me anyway. I would be happy to help you find a lawyer in your state who can help you.(800) 506-9766
Here as an asset to you,
Jennifer