When a nurse faces a state nursing board disciplinary charge, the nurse immediately turns to the question of what the board alleges the nurse did wrong. Can the nursing board prove the charge, and if so, then with what evidence? And what evidence does a nurse have to fight the charge? The outcome of your disciplinary case is indeed likely to turn on the evidence. Even if your case settles before the hearing, the board will settle it based on the evidence that it expects to see at the hearing. If you need to gather your defense evidence and prepare to contest the board’s evidence, you can do no better than to retain the LLF National Law Firm’s premier Professional License Defense Team. Call 888.535.3686 or complete this contact form now for the skilled and experienced representation you need to prove that you have the stronger evidence against the charge.
Significance of State Nursing Board Evidence
Nothing is more significant to the outcome of a state nursing board disciplinary proceeding than the evidence. Evidence is the reliable information admissible in a state nursing board hearing on which the hearing officer will determine the underlying facts supporting the disciplinary charge or defense. Evidence makes or breaks the disciplinary case. The more evidence of wrongdoing that the state board investigator uncovers, the more likely the state board will impose discipline. The more evidence the accused nurse gathers and presents in defense of the disciplinary charge, the less likely the state board will impose discipline. Outcomes depend on evidence. Nothing is more significant not only to the outcome of the hearing but to the board’s decision and your decision whether to settle. Let our attorneys help you gather and present your defense evidence while challenging the board’s incriminating evidence.
Types of State Nursing Board Evidence
Evidence comes in several types. The type of evidence has a lot to do with how you identify it, how you acquire it, how you present it, and the weight that the state nursing board will give it in a hearing or settlement conference. Consider the following several types of evidence that our attorneys can help you gather, present, or challenge in your state board disciplinary matter.
Witness Testimony in State Nursing Board Hearings
The main and most influential form of evidence can be the testimony of witnesses. Testimonial evidence has such a great impact because it involves an in-person account of what happened. Testimonial evidence can appear to be the most reliable and powerful evidence because of the presence and personality of the individuals who relate it. What’s a document, such as a medical record or incident report, worth when a living, breathing person gives an eyewitness account of what actually happened? Yet studies of memory and witness testimony, and the experience of our attorneys, show that witness recollection can be highly unreliable. Witnesses forget and misremember. They also testify falsely out of bias and self-interest, and in retaliation. It is thus important that you retain our attorneys to carefully identify, choose, and prepare your most credible defense witnesses and to cross-examine the board’s adverse witnesses who testify against you.
Documentary Evidence
Documentary evidence is a second form of evidence common to state nursing board proceedings. Documentary evidence in a state nursing board hearing can include patient medical records, your personnel file and the personnel files of other facility workers, work schedules and assignments, pharmacy inventory records, equipment sterilization and maintenance records, and any other document or record that bears on the charges. Documentary evidence can, like testimonial evidence, make or break a disciplinary case. Some say that if it isn’t in the records, it didn’t happen, highlighting the reliability of records and the unreliability of witness testimony. Let us help you identify, gather, organize, and present your best documentary defense evidence and challenge the board’s adverse documentary evidence.
Electronically Stored Information
Electronically stored information, like digital medical records, emails, text messages, and other computer files, can also be evidence. Electronically stored information is a form of documentary evidence. Indeed, our attorneys will often arrange for reliable printouts of electronically stored information to present as documentary exhibits. The metadata hidden behind the visible information on the computer screen is also evidence. Our forensic computer consultants use metadata in state board disciplinary cases to prove the source, authenticity, alteration, date, and other details of electronically stored information, which can be important to a hearing outcome.
Physical Evidence
Physical evidence is another form of evidence in a state board disciplinary proceeding. Physical evidence can be items like a medical brace, crutch, walker, wrap, or cuff that a nurse used, offered, supplied, or failed to supply, medical equipment that a nurse used or failed to use or that a facility failed to offer or maintain, and other items relevant to the charges. Photographs or video recordings of physical items and conditions are often substitute evidence for the actual item. A patient’s wounded, scarred, deformed, weak, strong, large, small, or disfigured condition can be another form of physical evidence, in which the patient either shows the hearing board the condition at the hearing or the parties use photographs or video recordings of the condition. A nurse’s own height, weight, size, strength, disability, appearance, or other condition can also be evidence in a disciplinary case involving the nurse’s physical appearance or condition.
Demonstrative Evidence
Demonstrative evidence is another form of evidence in a state board disciplinary proceeding. Demonstrative evidence is typically something that our attorneys or forensic consultants prepare specifically for the hearing, to demonstrate to the hearing officer a fact or condition otherwise too complex to understand. A summary of extensive medical records, tabulation or calculation of extensive medical expenses, illustration of an anatomical or medical condition, or model of a piece of equipment or aspect of anatomy can all be examples of demonstrative evidence. Demonstrative evidence has no weight beyond its explanatory power but can be very helpful in guiding a hearing officer to accept your defense. Let our attorneys help choose, design, and present your best demonstrative evidence.
Opinion Evidence
Opinion evidence can be another important form of evidence in a state board disciplinary case. Opinion evidence comes from a qualified expert witness who, though not present to observe any material fact when the incident occurred, has reviewed sufficient evidence to opine as to the standard of care or another expert matter. We commonly retain forensic nursing expert witnesses in disciplinary cases to testify that our client met the applicable standard of care under all the circumstances.
Character Evidence
Character evidence can be another helpful form of evidence in a state board disciplinary case. Character evidence involves testimony from witnesses who know your good character and character for truth-telling, and can tell the hearing officer that you are a trustworthy nurse and witness. Character evidence can also involve testimony from colleagues and facility representatives who know your good work, knowledge, skills, and performance, and can tell the hearing officer that you are a skilled, valuable, safe, and reliable nurse. Character evidence can make a good case in mitigation of sanctions if you must admit that you committed part or all of the alleged wrong.
Identifying State Nursing Board Evidence
The first step that our attorneys can take is to help you identify both your defense evidence and to acquire the state board’s incriminating evidence to evaluate it and prepare to defend against it. Identifying the evidence involves listing potential witnesses and finding out what they know by taking their statements. It also involves discerning what documents may exist and then requesting and subpoenaing their production. State nursing board rules and procedures may facilitate this discovery process, for instance, by requiring the state nursing board to produce its investigation report and evidence, and by offering subpoenas to secure witness testimony and documents.
Securing State Nursing Board Evidence
Once we identify the evidence, we can also help you secure it against loss. It is critical, for instance, that you identify, recover, save, and secure electronically stored information such as emails and text messages that may be critical to your defense. Indeed, the hearing officer may construe against you any material evidence that you discard, whether accidentally in the routine course or deliberately in obstruction of justice. Do not discard anything that may be evidence in your disciplinary case. Instead, let us help you secure and retain all material evidence.
Analyzing State Nursing Board Evidence
Once you have your defense evidence, we must still analyze it to determine its quality, reliability, weight, value, and order. Your effective defense requires more than just amassing mounds of defense evidence. We must instead help you clearly and convincingly articulate your defense theory through our skillful presentation of evidence. The evidence we choose is just as important as the evidence you have. We must also organize the evidence into a coherent pattern. Questions like the choice of witnesses, order of witnesses, number of witnesses, choice of exhibits, number of exhibits, order of exhibits, and which witness should testify are all important to our presentation of your effective defense.
Presenting Evidence at the Hearing
The manner in which we present your evidence at the state nursing board hearing is also important. Witness testimony occurs under both direct examination and cross-examination, in both the state board’s disciplinary case and your defense case. The state board may, for instance, call the complaining witness in the board’s case in chief. We may then cross-examine the complaining witness, eliciting evidence helpful to your defense. We may call you, your colleagues, and a forensic consultant as witnesses in your defense case, subject to the state board’s cross-examination. We would also carefully choose the exhibits that we would offer through each witness. We might, for instance, offer medical records that you prepared or on which you relied, and photographs of conditions that you observed firsthand, through your testimony. Our attorneys have the refined skill to make convincing evidence presentations at a hearing.
Presenting Evidence in Settlement Conferences
Our attorneys can also present evidence, though, in a settlement or conciliation conference. Conferences are not ordinarily forums in which to present evidence. But our attorneys can certainly have a key medical record, work record, or photograph ready to show state board officials at a settlement conference, for its influence on their judgment whether to accept your favorable proposal for resolution. We can also have our defense exhibits organized and witnesses listed with summaries of their testimony, and share that preparation with state board officials in the course of settlement negotiations, to show the state board how ready we are to beat their charges.
Weighing State Nursing Board Evidence
The role of the hearing officer is to weigh the evidence that both sides present. A state board hearing generally requires the hearing officer to determine whether to sustain or strike a disciplinary charge, based on the preponderance of the evidence. The preponderance standard simply asks which side has the weightier evidence, not necessarily meaning the number of documents or witnesses but instead their impact on the material issues. The preponderance standard is much lower than the criminal court case standard requiring proof beyond a reasonable doubt. The preponderance standard means that the ability of our attorneys to fully develop a strong evidentiary defense can be the greatest factor in influencing a favorable outcome. Trust us to handle the evidence.
Premier Defense Representation Available
If you face a state nursing board disciplinary charge for which you need to gather and present defense evidence, you can do no better than to retain the LLF National Law Firm’s premier Professional License Defense Team. Our attorneys help hundreds of nurses and other health professionals present evidence in license disciplinary proceedings, in successful defense of charges. Call 888.535.3686 or complete this contact form now for our highly qualified defense representation.