Your defense against state nursing board disciplinary charges can be critically important to your future in the nursing profession. Lose your license to discipline, and you’ll lose your nursing practice and employment. Your defense to disciplinary charges, though, can depend on the number, quality, and credibility of your defense witnesses. You may need to call the defense witnesses of your choosing if you are to prevail in your defense of disciplinary charges. Fortunately, due process of law should afford you the full right to present your witnesses at your state nursing board hearing, one way or another. Retain the LLF National Law Firm’s premier Professional License Defense Team to assist you in preparing and presenting a convincing defense case, one in which your best defense witnesses are available and prepared to testify. Call 888.535.3686 or complete this contact form now for our highly qualified hearing representation.
State Board Hearing Authority
As you must suspect, your state nursing board has the statutory authority to hold a hearing to determine whether to impose discipline against your license. Your state nurse practice act establishes your state nursing board to license and discipline the licenses of nurses, to protect patients, the public, and the reputation of the nursing profession. See, for example, the Oklahoma Nursing Practice Act, creating the Oklahoma Board of Nursing and empowering the Board to both license and discipline the licenses of the state’s nurses. The Oklahoma Nursing Practice Act authorizes and requires the Board of Nursing to follow the Oklahoma Administrative Procedure Act and its rules for contested case hearings. Don’t doubt your state nursing board’s similar power to hold a hearing over whether to discipline your license. Retain our attorneys for your best hearing defense, including calling your defense witnesses on your behalf.
Due Process Hearing Rights
The right of your state nursing board to discipline licensees includes the right to govern hearing procedures, but only within the confines of constitutional and statutory protections. Your state nursing board may, in other words, initiate a disciplinary case against you and schedule your case for a hearing. But your state nursing board must provide you with constitutional due process in that hearing, while also complying with your state nurse practice act or administrative procedure act and their rules for hearings. Those rules must meet constitutional due process guarantees, which include not only fair notice of your disciplinary charges but also a fair hearing. A fair hearing means one in which you get to present your evidence before an impartial decision maker. And presenting evidence generally means getting to call witnesses to testify and being able to present documentary exhibits. See, for example, the Oklahoma Administrative Procedures Act just referenced above, promising an individual respondent the right to present evidence in a contested case hearing, including the right to call witnesses. So yes, you generally have a right to call witnesses in your own defense in a state nursing board disciplinary hearing.
The Role of Witnesses
Your right to call defense witnesses at your state nursing board hearing is essential to your effective defense because of the central role of witness testimony. Evidence in a contested administrative case is generally of two types: witness testimony and documentary evidence. And while documents can make or break a disciplinary defense, the witness testimony generally carries the day. Witnesses give live accounts from memory of first-hand observations. Your defense witnesses would connect the dots that the documentary evidence, like patient medical records and work assignments, leaves. Without your defense witnesses, you wouldn’t have a fair opportunity to lay your defense before the hearing’s impartial decision maker. Let us help you identify your best witnesses, confirm their observations, and prepare and present them to testify at your board hearing. Those steps may be essential to the core of your defense.
Types of Witnesses
The witnesses whom you may call at your board hearing may be of several types. The type of witness can determine or guide the reason for calling them and the terms or conditions on which they testify. Consider the following types of witnesses whom we may call in your defense at your board hearing.
Exonerating Witnesses
Exonerating witnesses are witnesses whose testimony tends to turn back and defeat the disciplinary charges, directly contradicting the disciplinary allegations. For instance, if a patient claimed that you were the nurse who carelessly dropped the patient, resulting in a serious injury, an exonerating witness may confirm that you were away from work at another location at the alleged time of the patient’s injury. An exonerating witness may also testify to the work schedule and the assignment of a different nurse at that time. Our ability to identify and present credible exonerating witnesses may relieve you entirely of the charge, even if the state nursing board has incriminating witnesses whose testimony carries less weight.
The Accused Nurse as a Witness
We may also call you as an exonerating witness on your own behalf. The accused nurse in a state nursing board hearing has no privilege against self-incrimination. Ordinarily, a criminal defendant would not testify in the defendant’s own defense. A criminal defendant has a constitutional right not to testify, such that the jury cannot hold the defendant’s refusal to testify against the defendant. But an accused nurse, having no constitutional privilege, must testify or may find the hearing officer presuming that the nurse’s testimony would have implicated rather than exonerated the nurse. A state nursing board also only needs to prove a disciplinary charge by a preponderance of the evidence in the usual case, not beyond a reasonable doubt as in a criminal case. An accused nurse would ordinarily thus testify. We can call you as a witness on your own behalf, using our direct examination to help you lay out your account in your own defense.
Mitigation Witnesses
Witnesses in mitigation of the disciplinary charge are witnesses who establish that, although you committed the alleged violation, you had good reason or cause for doing so, such that the state nursing board should relieve you from the charge or lessen your penalty. A witness in mitigation might, for instance, testify that the facility was short-staffed at the time of your alleged neglect of one of your many assigned duties, too many for any one nurse to handle. A witness in mitigation might also testify that your character and fitness for nursing are excellent, that you notified your supervisor that the facility was inadequately staffed, and that you did the best that you could under the emergency circumstances. We can help you prepare a case in mitigation, based on the available evidence, even if you are responsible in whole or part for the alleged wrong.
Forensic Expert Witnesses
A forensic expert witness is a witness who generally has no relevant first-hand observations of material fact but instead has relevant expertise from which to opine, once informed of the material facts. A forensic nursing expert, for instance, might opine that your handling of a rebellious patient was fully within the nursing standard of care, even though the patient suffered a self-inflicted injury. A forensic nursing expert might also testify that you properly called for assistance and properly recorded the incident in the patient’s medical records, despite complaints of the patient’s family members to the contrary. We can identify and retain qualified forensic experts on nursing, recovering, and tracing electronically stored information, determining handwriting and alterations of records, and other disputed issues subject to expert review. Expert testimony can be the key to an effective defense.
Uncooperative or Adverse Witnesses
An uncooperative or adverse witness is one whose interests are generally aligned against your interests but whom we may call for helpful information nonetheless. An adverse witness might, for instance, include a colleague who alleged that you stole patient property, when we might call that witness to gain the witness’s admission that the witness did not actually see you steal anything and that the witness had greater access to the patient’s property than you did. An adverse witness might also include the state board investigator who recommended your disciplinary charges but who recovered physical evidence or took photographs or video of conditions that tend to prove that you were not responsible for the wrongs the investigator alleges. We would take great care in calling adverse witnesses, lest their testimony undermine rather than help your defense. But adverse witnesses can be helpful or even necessary in certain cases. We can also help you obtain and serve subpoenas to secure the attendance and testimony of witnesses who are not actually adverse to you but who are reluctant to testify for other reasons.
Unavailable Witnesses
An unavailable witness is one who cannot attend the hearing because of other compelling causes. A witness may, for instance, be planning to leave the country by the time of the hearing, entering the military service, pregnant and nearing delivery, or terminally ill and dying. Administrative hearing rules may permit us to take the deposition of the witness before they become unavailable, to present the deposition at the hearing as if the witness were attending in person. The state board’s attorney would also attend the deposition to cross-examine. In this way, we can secure the defense testimony of critical witnesses who, by the time of the hearing, might be unavailable.
Availability of Witnesses
As just indicated, the availability of witnesses can also affect your ability to present witnesses in your defense at your state nursing board hearing. Most often, an accused nurse hopes to call only witnesses who like, respect, and want to help the accused nurse, and will voluntarily testify with a simple request. But some witnesses aren’t so friendly or just don’t want the trouble and stress of testifying. They may flatly refuse to testify or otherwise indicate that they may not appear despite assurances that they would do so. In those instances, we would ordinarily obtain and serve a subpoena to ensure the reluctant witness’s attendance. Then, if the witness fails to show up, the hearing officer may delay or adjourn the hearing until the officer can compel the witness’s appearance. We would also attempt to secure a statement from the witness in advance so that if the witness changes the expected favorable testimony to unfavorable testimony, we can impeach your own witness with the prior statement.
Preparing Witnesses
Preparing your defense witnesses to testify is another key activity when presenting witnesses at a state nursing board hearing. By preparing, though, we don’t mean improperly coaching or otherwise encouraging a witness to say anything other than the truth and the whole truth. Preparing a witness instead means familiarizing the witness with the process of testifying while alerting the witness to the subject of the testimony so that the witness can properly refresh the witness’s recollection. Your witnesses may, for instance, need to review patient medical records, work records, or the disciplinary allegations, so that the witnesses know the subject of the hearing and can recall the details and context for their memories. Preparing a witness can also mean ensuring that the witness understands the obligation to testify truthfully, to appear at the hearing on time, and to treat everyone involved in the proceeding in a respectful manner.
Premier Hearing Representation Available
As you can see, calling witnesses on your own behalf at a state nursing board hearing can entail many sensitive issues. If you face a state nursing board hearing at which you need to present witnesses in your defense, your best move is to retain the LLF National Law Firm’s premier Professional License Defense Team. Our attorneys have helped hundreds of nurses and other healthcare professionals defend and defeat disciplinary charges at board hearings. Call 888.535.3686 or complete this contact form now for our highly qualified defense representation.