Nurses hold a precious trust in their professional practice. They invest huge amounts of time, treasure, and effort to gain the knowledge and skills to execute that trust, and they reasonably expect and enjoy substantial rewards for their nursing practice. Yet license disciplinary charges over conflicts of interest, undermining that very trust, can cripple and even ruin a nurse's practice, destroying its rewards and the nurse's enormous investment. If you face a conflict of interest, disciplinary charges, and related issues, you can do no better than to retain the Lento Law Firm's premier Professional License Defense Team for your defense representation. Our highly qualified attorneys are available nationwide for your nursing license defense. Call 888.535.3686 or complete this contact form now for our attorneys' essential, strategic, and effective representation.
The Nature of a Nursing Conflict of Interest
Even savvy professionals can find it hard to understand what a conflict of interest is and why it's a disciplinary problem. A conflict of interest arises when a nurse's personal interests tend to work against the nurse's proper fulfillment of professional duties. A conflict of interest means that you have two interests or obligations pulling you in opposite or different directions. You know the saying that you cannot serve two masters, that you will inevitably favor one to the disadvantage of the other. Masters don't like disfavor. A conflict of interest puts you at odds with and under the condemnation of one of your two competing interests. In a sense, a conflict of interest is like shooting yourself in the foot, slapping yourself in the face, or otherwise undermining your own professional stance, relationships, and reputation. As hard as you may try to do everything right and everything perfect, you will inevitably fail simply because you have placed yourself in the middle of two streams pulling you in different directions. Understand conflicts, or you won't be able to participate fully and wisely in your own defense. Our attorneys understand conflicts of interest. We can help you defend conflict of interest disciplinary charges.
How Nursing Conflicts of Interest Arise
Nursing conflicts arise in patterns around common issues. A first conflict of interest situation is when the nurse has an unusual personal interest that competes with the patient's interest, such as when the nurse earns extra compensation from a provider for using the provider's medication, medical supply, or services. The nurse might then provide unnecessary or even harmful care to a patient simply to earn more compensation. A second conflict of interest situation arises when a nurse cares for a family member with whom the nurse has special family interests. The nurse might then distort the patient's care to preserve the family relationship and favor the family's interest.
Another conflict of interest situation arises when the nurse's personal, political, religious, or other commitments conflict with the patient's commitments, character, or interests, in which case the nurse might once again refuse or distort patient care. Financial transactions, gifts, bequests, or similar relationships with a patient are another conflict of interest situation that may distort the nurse's patient care. These are the common situations in which conflicts of interest arise, even if not the only ways that conflicts arise.
The Kinds of Nursing Conflicts of Interest
Conflicts of interest also fall into different categories or kinds, including actual conflicts, potential conflicts, and perceived conflicts. An actual conflict of interest is one in which the nurse's current situation presents real and substantial competing interests. A potential conflict of interest is one in which the nurse has no present competing interests, but those competing interests are likely to arise from the nurse's relationships or situation. A perceived conflict of interest is one in which the nurse does not have a conflict and is not in a situation in which a conflict might arise but has given the appearance to a patient or patient's family members that a conflict of interest does exist. State nursing boards will generally pursue disciplinary charges over actual conflicts of interest but may also express concern and condemnation for potential and perceived conflicts of interest.
Examples of Nursing Conflicts of Interest
Conflicts of interest can take on as many different colors and shapes as the multiple complexities and differing contexts for nursing practice present. No two conflicts of interest are exactly alike, even if they tend to follow the above patterns. Here are a few examples of specific conflicts of interest that illustrate the disciplinary issue:
- a nurse accepts a pharmaceutical company representative's under-the-table offer to pay the nurse a percentage of the profits from new medications supplied to the nursing facility;
- a nurse accepts a medical equipment supplier's offer of gift cards to restaurants and shops in exchange for the nurse's recommendation of the supplier's equipment;
- a nurse accepts the assignment to care for the nurse's beloved aunt in a hospital's intensive care unit, while the nurse is a beneficiary in the aunt's trust and devisee in the aunt's will;
- a nurse accepts the assignment to care for her beloved minor niece in a difficult hospital admission requiring painful wound care and physical movement and therapy;
- a nurse with a commitment to a specific religious community accepts the hospital care of an activist injured in protests and vandalism against that religious community's facility;
- a nurse accepts a patient's offer to give the nurse the patient's expensive jewelry if the nurse will continue to care for the patient to the patient's comfort and preferences;
- a nurse solicits a patient to buy the nurse's own artwork that the nurse makes at home and usually sells at art fairs;
- a hospital nurse moonlights as a manager of a home-care service that both competes with the hospital for patients and coordinates with the hospital for post-hospital home care.
Why Conflicts of Interest Are a Licensing Issue
You should understand clearly why state nursing board disciplinary officials condemn and discipline conflicts of interest. Recall that a conflict of interest arises when a nurse's personal interests pull against the nurse's proper fulfillment of professional duties. That tension is why nursing standards and state nursing board rules condemn conflicts of interest. A conflict of interest puts a nurse in an unfair and even untenable position. A nurse shouldn't have to choose between the nurse's best personal interest and the nurse's fulfillment of professional obligations. The two interests should align. Doing what's best for oneself should be roughly the same as doing what's right in one's nursing profession, best for the patient for whom the nurse cares and the employer whom the nurse serves. Conflict of interest rules, standards, and prohibitions place the onus on the nurse to identify and reject conflict situations. Those edicts say, Don't put yourself in this position! Because doing so may tempt you to favor yourself unduly over your patient's interests, resulting in harm to the patient.
Must a Conflict of Interest Result in Harm?
No. State nursing boards don't have to wait for patient harm before charging a nurse with discipline for a conflict of interest. That's exactly the point. State nursing boards want you to avoid conflicts of interest so that you don't even face the temptation. Conflicts of interest don't always hurt a patient. The sound nurse will avoid acting out the conflict of interest. But you shouldn't have to make the choice. You shouldn't have to face the temptation. You could suffer discipline for a conflict of interest that you handled without favoring yourself unduly over your patient's interest and without harming the patient.
A Conflict of Interest's Appearance of Impropriety
The problem that remains with a conflict of interest, even when it doesn't harm a patient or undermine the nurse's obligations to the nurse's employer, is that conflicts of interest leave an appearance of impropriety. They give the appearance of corruption. They leave an unfortunate inference that the patient and the patient's family members cannot trust the nurse to ignore the nurse's other undue interests. The nursing profession needs patient trust and confidence to carry out its proper function. Sound nursing care administered in an environment of distrust and suspicion will not serve its full function. You cannot work fruitfully toward your care ends in such an environment. You will leave patients wondering whether your sound and earnest efforts were, in fact, as purposeful as they should have been. If you practice your nursing perfectly but within an apparent conflict of interest, you will leave a stain on your good work that ruins its effect, damages your reputation, and casts your profession in public disrepute. Understand the conflict-of-interest problem. Get our help defending conflict of interest disciplinary charges.
Nursing Board Authority to Discipline Conflicts
Your state nursing board will have the state legislature's authority to discipline you for conflicts of interest. State legislatures adopt nursing practice acts and other nursing laws that create state nursing boards and empower those boards to adopt nursing standards. The Oklahoma Nurse Practice Act is an example. Section 567.8 of the Act lists the disciplinary grounds for a nursing license, including the failure to adequately care for patients and the failure to conform to the minimum standards of acceptable nursing. Those disciplinary grounds reach conflicts of interest. Unprofessional conduct and failure to maintain appropriate patient boundaries are other disciplinary grounds that the Oklahoma Nurse Practice Act lists, reaching conflicts of interest. Your state nursing practice act will very likely have similar provisions under which your state nursing board may lawfully charge you with violating conflict of interest prohibitions.
Nursing Ethics and Conflicts of Interest
State nursing practice acts may also expressly incorporate nursing ethics standards that prohibit conflicts of interest. Conflicts of interest are ethical issues, not just practice standard issues. Ethics provisions address good character for nursing, not just sound nursing knowledge and skills. North Carolina's Nurse Practice Act is another example of state nursing board authority to discipline for conflicts of interest, this time under an ethics provision. The Act's Section 90-171.37 authorizes discipline when a nurse “[e]ngages in unprofessional conduct that is nonconforming to the standards of acceptable and prevailing nursing practice or the ethics of the nursing profession, even if a patient is not injured.” (Emphasis added.)
National Ethics Code and Conflicts of Interest
Provision 2 of the American Nurses Association Code of Ethics addresses conflicts of interest. Provision 2 warns that “the patient's primary commitment is to the patient,” not to other interests. Provision 2.2, titled Conflict of Interest for Nurses, then specifies the conflicts of interest that may arise “from competing loyalties in the workplace....” Provision 2.2 lists conflicts involving patients, families, physicians, colleagues, healthcare organizations, and health plans. Provision 2.2 further warns that conflicts may arise in any nursing domain, including direct patient care or nursing administration, education, consultation, policy development, or research. Your state nursing board will have no difficulty pointing to the American Nurses Association Code of Ethics to establish the prohibition on conflicts of interest. Let us help you defend your specific conflict of interest charge rather than challenge your state nursing board's broad authority to discipline.
Defenses to Conflict of Interest Discipline Charges
Just because you face state nursing board charges over an alleged conflict of interest does not mean that you will necessarily suffer license discipline. State nursing board investigators and other officials may expect you to come forward with a convincing excuse or explanation. You may, in fact, have valid defenses. Our attorneys know the information to gather, the witnesses to identify and interview, and the documentation to acquire as exonerating and mitigating evidence. Here are some of the defenses that the evidence in your case may support:
- you were not responsible for the complaining patient's care, to which your facility assigned other nurses, so you did not have a responsibility to avoid the alleged conflicts of interest;
- you did not have the competing interest that the disciplinary charges allege, the complaining witness having misidentified you or misconstrued the circumstances;
- the interest that the disciplinary charges allege did not conflict with any patient interest but instead aligned with and promoted all patient interests so that you had no conflict of interest;
- you disclosed the conflict of interest to the patient and your employer, obtaining their waiver of the conflict of interest under circumstances where the interest was not so great and was thus a waivable interest;
- although you had a conflict of interest, the conflict of interest was unavoidable under the circumstances, and your refusal to provide nursing care under the conflict of interest would have wrought more harm than any harm from serving under the conflict of interest.
How Officials Discover Conflicts of Interest
You may wonder how state nursing board officials discover conflicts of interest and when the means and timing of discovery may affect your disciplinary outcome. State nursing board procedures generally permit anyone to complain that a nurse has violated board standards. Patients and their family members are common complainants. Board disciplinary officials may take patient complaints seriously, although they may also assess whether the complaining patient was competent, deluded, or adequately informed as to nursing standards. Disciplinary officials also accept complaints from hospitals, care facilities, staffing services, and other nurse employers. Officials may take employer complaints most seriously because of their probable credibility. Disciplinary officials may also investigate and pursue charges based on media reports, vendor reports, law enforcement allegations, and other public and private sources. Your nursing practice touches a lot of people and generates a lot of information. Don't expect to conceal facts, evidence, and suspicions of conflicts of interest or other violations. Instead, get our help assessing and answering the disciplinary concerns and charges.
Nursing Board Sanctions for Conflicts of Interest
Your state's Nursing Practice Act will list the disciplinary sanctions available to your state nursing board if it finds that you have a conflict of interest. Sanctions may include not only license suspension and revocation but also lesser penalties that may allow you to retain your license and employment. Those lesser penalties can include warning, private or public reprimand or censure, probation with terms and conditions, probation with a license limitation or restriction, and additional remedial education and training. Because conflicts of interest can be difficult to identify and understand, additional education and training in conflicts of interest may be a remedial measure that your state nursing board officials will accept in lieu of disciplinary sanctions. You should have the goal of avoiding any discipline, lest it affect your reputation and employment. Our attorneys know the options and what outcomes state nursing board officials may be willing to accept. We also have the skill to show that remedial measures may address the board's concerns while also serving patient and public interests in your nursing services. Let us make your case for remedial relief rather than punitive measures.
Mitigating Conflict of Interest Sanctions
We may also be able to make a strong case in mitigation of sanctions, even if you did engage in a conflict of interest. Just because you are responsible for what the state nursing board alleges does not mean that you must suffer a disciplinary sanction. We may be able to identify, acquire, and present mitigating information and evidence that you did not harm any patient nor expose any patient to significant risk of harm. We may be able to show that you had extenuating circumstances for undertaking the conflict of interest, whether because of an emergency, lack of other available nurses, or other causes, conditions, and circumstances. We may also be able to show that your undertaking the conflict of interest, while an ethical and standards violation, nevertheless benefited your patient, employer, and others. These and other facts and circumstances may convince your state nursing board to forgo punitive sanctions in favor of remedial relief or a simple dismissal of the disciplinary charges.
Board Procedures Over Conflicts of Interest
We will have the opportunity to invoke protective procedures to present your exonerating and mitigating evidence once you retain us. You have the constitutional right to due process in any proceeding in which the state nursing board threatens to suspend or revoke your license. You also will have the statutory support of your state nursing practice act and state board regulations, recognizing your constitutional right to procedural protections. The North Carolina Nurse Practice Act is an example, providing in its Sections 90-171.37A and B for your right to notice of the charges, a hearing before an independent panel of officials, and an appeal to the state's superior courts of any adverse decision reached in error. Your state nursing practice act and board regulations will offer similar protective procedures.
The Attorney's Role in Nursing Board Procedures
The above procedural protections require that you step forward to invoke them affirmatively. Your state nursing board will not do the work for you. Indeed, if you do not answer and respond to the board's notice of disciplinary charges in a timely manner, you may suffer a default in which the board automatically imposes a license suspension or other penalty. We can invoke your protective procedures strategically, efficiently, and effectively once you retain us. We can answer the charges, negotiate for early dismissal at informal conferences, and invoke the formal hearing, if necessary, at which to present your evidence and cross-examine adverse witnesses. If you have already lost your hearing, retain us to evaluate and pursue your appeal. Your nursing license, employment, and career are worth protecting when you consider all that you have invested and all that you expect and currently enjoy in return.
Premier Attorneys for Nursing License Defense
The Lento Law Firm's premier Professional License Defense Team is available to defend you against your state nursing board's conflict of interest disciplinary charges. Our attorneys are available to represent you nationwide. We have defended hundreds of nurses and other professionals in conflict of interest and other license disciplinary proceedings. Call 888.535.3686 or complete this contact form now for our premier license defense representation.
