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6 Ways to Avoid the Internal Investigation Minefield

Thursday, May 27th, 2010

Although the following was written for our RN Guardian clients, the  advice will come in handy for anyone facing an administrative disciplinary matter or anyone who  is faced with losing a professional license:

SIX WAYS TO AVOID THE BRN

MINEFIELD

Many types of incidents at work and even outside of work, can lead to both employer disciplinary investigations and investigations by the Board of Registered Nursing (”BRN”). The difference is your employer conducts an investigation to determine if you committed some form of misconduct and, accordingly, whether they need to take some type of remedial action. The BRN conducts an investigation to determine whether they should take some type of action against your license. The most critical time to avoid the BRN/disciplinary minefield is shortly following the incident that gives rise to the investigation. Unfortunately, many RNs make critical mistakes during this time which causes them huge problems. If you follow the simple guidelines below, you will greatly reduce your chances of wandering into the BRN/disciplinary minefield.

1. Do Not Give a Voluntary Statement Without Counsel.

If an incident occurs that might give rise to an investigation your natural inclination may be to talk about it. This is the last thing you want to do at this point. First, voluntary statements are admissible in all types of legal proceedings. That means voluntary statements are admissible in criminal proceedings, civil proceedings, and administrative investigations and hearings such as BRN hearings. Voluntary statements are also readily available to the media and members of the public. On the other hand, a compelled, coerced or ordered statement cannot be used against you in any type of criminal proceeding. Also, a compelled statement enjoys a much higher level of confidentiality and cannot be readily released to the media or members of the public. 

Many investigations involve some element of criminal allegations. For example, if the incident giving rise to the investigation has to do with missing property or property that was used for personal reasons, you may be facing a theft or embezzlement investigation. If the investigation involves improper touching of any other person you might be facing an assault and battery investigation. Personal use of the employer’s cell phones and computer systems have been prosecuted as embezzlement cases. Therefore, it is very important that at least initially, you do not give a voluntary statement.

2. Slow The Process Down

Avoid giving any kind of statement, whether voluntary or compelled, without having sufficient information and being thoroughly prepared. Gathering information and preparing simply takes time. Many RNs have gotten into trouble by giving rushed, off-the-cuff statements that contain inaccurate information. Remember, when you are under investigation and in a stressful environment, your ability to recollect, observe, and perceive is significantly diminished. It is very common for people to give inaccurate and differing descriptions of events that are observed in quickly evolving, stressful, or uncertain circumstances. The best way to ensure you give accurate information is to take the time to adequately prepare. And remember, if you give an inaccurate statement, your employer or the BRN usually will not conclude that it was a simple, honest mistake. Rather, they will conclude you are intentionally misleading them to cover up some form of misconduct. 

3. Get A Representative One of the easiest ways to protect yourself is to get a representative to help you in the investigation and to assist you during the investigatory interview. You should have a number of options available to you including your RN Guardian lawyer, union representative, or shop steward. The primary role of the representative is to help you prepare to give an accurate statement. The representative can gather information on your behalf and conduct an investigation (which you should not be doing). The representative can act as a buffer between you and the investigator and between you and your employer. Your representative can give you valuable advice on your actions to minimize the impact of any investigation.

4. Be Honest When You Do Give A Statement When you finally do give a statement be sure to be accurate and honest. A statement may be in the form of a written statement such as a report or a chart entry or it may be a verbal statement such as a formal investigatory interrogation. Either way, be careful to give only accurate information. Also be concise. The less said the better—usually. Answer questions completely, accurately and honestly but efficiently. Remember, you are not there to tell your life’s story. You are not there to get a promotion or to convince people what a great registered nurse you are. You are there to convey accurate and basic facts to refute the allegations of the investigation.

Many RNs turn an inconsequential or minor investigation into a career-ender by giving inaccurate or dishonest information during the investigation. By following steps 1 through 3, above, and giving an accurate statement you will greatly minimize your chances of wandering into the minefield.

5. Do Not Do Your Own Investigation

Do not talk to other witnesses or do your own investigation. This is a job for your lawyer or representative. If you do talk to witnesses about the event giving rise to the investigation inevitably, there will be an allegation that you attempted to dissuade the witness’s statement, or you collaborated with a witness to come up with a story. This is especially true if there is a disagreement between the witnesses as to what occurred and who is the party at fault. If you come under investigation you should not discuss the matter with anyone except your appropriate representative. This is especially true with any person who might be a witness in the investigation. 

6. Be Confident

If you remember only one piece of advice remember this: Be Confident. Be calm, focused, and act like you committed no form of misconduct whatsoever. Your statements, demeanor and body language should convey one message: “I did nothing wrong and I will easily be cleared.” Remember, we live in a world of perceptions where perceptions become reality. If your supervisors and coworkers perceive you to be guilty, regardless of the facts of your case, they will conclude you are in fact guilty. On the other hand, if you’re confident and your coworkers and supervisors perceive you to be innocent, they will inevitably conclude you are innocent. It is extraordinarily important to maintain your confidence.

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Automatic Worker’s Comp Benefits for RN’s too?

Wednesday, May 5th, 2010

For years, our police and firefighters  have had Presumptive Eligibility for worker’s compensation benefits for  certain ailments including heart trouble, TB, pnumonia and other illnesses or injurys that were a result of thier jobs.

It looks like a similar bill for nurses is piggybacking on the same concept.

AB 1994 (Skinner) Presumptive Eligibility for RNs and Healthcare Workers
This bill would mandate that RNs and other healthcare workers that provide direct patient care receive presumed eligibility for workers comp benefits if they acquire H1N1 influenza, MRSA, blood borne illness or suffer a neck and/or back injury.

Take a look at the portion of the SacBee Article on AB 1994, that pertains to Kathryn Donohue. You’ll see that this nurse is proponent of the bill because she eventually had to abandon her own worker’s comp claim due to the complexity of the system and her inability to navigate it on her own. “You almost have to hire a lawyer,” she said. What if she had one through a career protection plan?  While RN Guardian is not a worker’s compensation firm, our attorneys would certainly be able to help RN’s such as Kathryn get their questions answered and offer our members a advice and consultations on how to best proceed.

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G&A: A Contributing Editor to the RN Guardian Forum

Tuesday, April 27th, 2010

Goyette & Associates attorneys are taking in a minimum of 2 new cases per week from nurses who have had an accusation filed against them with the Department of Consumer Affairs, BRN. These nurses are in various stages of the BRN’s process. Some are lucky enough to already be RN Guardian members, which means they just have to pick up the phone, call Jennifer and she takes it from there, assigning an attorney and acting as a liaison. Other nurses call us because they’ve received the dreaded notification from the BRN and they are being asked to speak with a BRN investigator. It’s always best for us to get involved at this point. We can walk the RN through it and give them guidance as they go through the investigation process, to mitigate mistakes on their part that could cause problems for them later if they go to hearing.

Often that is not the case. Sometimes a nurse will call after he or she has already met with the investigator and the BRN has decided that they are going to impose a discipline, up to and including revocation of the RN’s license for ever. There is still time for G&A attorneys to step in at this point and attend the BRN hearing as the nurse’s counsel. To date, we are very proud of our 98% success, rate.

In order to help nurses before the investigation becomes this severe and before an entire way of life is in jeopardy, we’ve worked with RN Guardian to develop a Forum where nurses can share their stories and we can respond with some of our own: http://rnguardian.wordpress.com/ . We want nurses to find us before it is too late. We want them to know that if a complaint is made to the BRN, there is a chance that it will turn into an investigation. And if the investigation doesn’t go well, there is a little less than 50/50 odds that that nurse is going to keep her license. Those are not good odds. Everyone makes mistakes, even the best nurses and that doesn’t necessarily mean they should lose their entire career and way of life as a result. We’ll offer tips on how to avoid a complaint in the first place, the steps to take to take if the BRN gets wind of it and if needed, we can make a recommendation for a few good attorneys if it goes that far!

If you know any nurses, send them to the RNG Forum. Let them know that your favorite Law Firm is going to be contributing to it on a regular basis. We would love to hear what the nursing community has to say.

Posted in Administrative/Disciplinary Appeal Victories, Firm News, RN Guardian News | No Comments »

RN Testimonial: A BRN Investigation and G&A Success

Tuesday, March 30th, 2010

In January of 2010, I was forced to defend my California RN license in a revocation hearing and was defended by the Goyette & Associates attorney Lauro Paredes. Our victory is just sinking in. It’s been almost 2 years of fear and anxiety about my license. What a relief!

Being accused of gross negligence and requiring a hearing to defend your RN license is a frightening and intimidating experience. The California BRN uses the full power of the Attorney General’s office against even the most unjust and petty of accusations. My 25 years of experience as an RN did nothing to prepare me for the uncompromising and merciless nature of this process.

Just as in Nursing and Medicine, what is required to address a serious problem is an experienced professional. Lord knows, I don’t know what I could have done without the help of the Goyette team.

The hearing process was unfamiliar territory and without Lauro guiding me through I think that I would now be without my RN license and at a complete loss as to how to support my family and pursue my future goals. Lauro was my guide and ally through an intimidating process that seemed designed to overwhelm and intimidate. Lauro in court was awesome! Like watching a good surgeon at his craft.

In Nursing there is always the potential to make mistakes or to be accused by uncaring self serving interests. The California Board of Registered Nursing ( BRN’s) mission is to protect the public. In theory this is both necessary and noble. But in practice and for an agency understaffed and with limited resources what results is harsh, uncompromising prosecution of good nurses. I can only say that were I not lucky enough to have a colleague find Goyette & Associates for me I would not have stood a chance against the Attorney General’s lawyer and the Board of Registered Nursing (BRNs) prosecution.

Thanks again Goyette team! And a special thank you from my family and I to Jennifer the Goyette Chief of Staff. Jennifer your professionalism and optimism made this ordeal bearable and brought humanity to a cold and harsh experience! 

Roger Parness RN

Posted in Lauro Paredes, RN Guardian News | 1 Comment »

A RN Guardian Member’s Testimonial About BRN Investigation Tactics

Wednesday, February 3rd, 2010

I don’t remember looking for anything exactly, but was surfing the web and came across a slide show regarding RN license protection. One of the main points it made was that the state regulatory boards for Nursing often prefer nurses to not have professional legal representation when dealing with them. The slide show went on to say that when a nurse has been reported to their states Nursing Regulatory Board (California Board of Registered Nursing or BRN), it is usually because some sort of error or perceived error was made by the nurse under investigation and that nurses, by their nature, are honest and will admit they committed an error and feel that since they are being honest they do not need to have any legal representation. According to the author, that is the first mistake they make, because they then are at the mercy of the regulatory board and have to abide by whatever conditions or punishments are meted out in order to retain their license and livelihood. Nurses are nurses, not lawyers  and not trained or experienced in the laws pertaining to them to the degree an attorney is and just as attorneys do not provide bedside nursing care, a nurse is handicapping themselves if they have the ability to have legal representation when appearing before the Regulatory Board (California Board of Registered Nursing or BRN), and do not do so.

Shortly after reading this I came across another website for RN Guardian and spent some time there reading it. It was addressing the exact point that the slide show had made. That for license protection legal professionals should be used. I found the idea of it and low cost of it a “No Brainer”, and signed up immediately.

If you have malpractice insurance, there is sometimes a license defense part of it, but it is usually only reimbursable with a financial limit that could run out very quickly. To me the idea of having legal representation for a low cost is one less thing to have in the back of my mind when at work.

In late 2008, I was contacted by an investigator , on behalf of the Board of Registered Nursing (BRN), who informed me that I was being investigated for an incident that had occurred at work almost a year prior and wanted me to sign a release of my personnel file for my employer  so she could review it.  When I asked what the incident was, I was told that she could not tell me any other information but want to set up a meeting to interview me regarding it.  I responded by asking her to send me something in writing regarding this and that until I talked to my legal representation I would not be able to meet with her. She then set a time to call me back after I had spoken with RN Guardian. Thank goodness I did, because I was feeling like one of the nurses mentioned in the slideshow I had found on the web. I was an honest person and had nothing to hide, so what could be the harm in meeting with her and responding to any questions she had.

Nursing is my profession and livelihood, and I knew that anything that could jeopardize that could be a major problem since so much of my life, mortgage, car payment, bills, gas, etc. depended on that income. I immediately called RN Guardian and spoke with one of the staff attorneys who advised me to decline the invitation to meet with the investigator and to not sign the release of my personnel file. He went on to mention that often, the decision of what the California Board of Registered Nursing or BRN, is going to do is going to happen anyway and that Nurses are often in a better position to appeal any decision rather than to meet with an experienced investigator who might get the nurse to offer to much information and use it against them later. He then told me to let the investigator know that if she had any further questions they could be directed to RN Guardian. What a stress relief!

When I spoke late with the investigator and told her of my decision to decline the interview, she told me that it was simply an interview to get my side of the story, I declined anyway.

It is now 2010. To date, I have not heard whether or not the investigation is still pending or if the matter was resolved. I was never formally informed by the Board of Registered Nursing (BRN) and have been working in the Nursing field ever since the “incident”, whatever it was, and continue to work as a Registered Nurse. I will admit it is stressful to not know what is happening, but it would have been much,  much more stressful to have gone through this alone, without the legal representation that RN Guardian has provided for me and continues to provide for me.

Greg, R.N.

Posted in Lauro Paredes, RN Guardian News | No Comments »

G&A Looking Back at 2009 and Forward to 2010!

Tuesday, January 5th, 2010

Goyette & Associates is thrilled to have achieved unprecedented growth in 2009 and look forward with excitement to the prospect of what we will achieve in 2010!

Our Labor and Employment Divisions were successful in dozens of internal investigations, Skellys, arbitration hearings and disciplinary matters. We can boast successes at the bargaining table even in this volatile economic climate due to the expertise of our Labor Representatives. To review some of our Labor and Employment successes click here.

Gary Goyette saw huge wins and progress in our Wage and Hour division. You can review some our recent victories here.

G&A’s Lead Civil Litigation attorney Joy Rosenquist, received press coverage on the Neri matter , one of her many cases. To read the Modesto Bee article pertaining to this Brady issue click here.

Gary Goyette is once again recognized as one of California’s preeminent lawyers regarding Fair Labor Standards Act (FLSA) matters and complex class actions. The attorneys of this division have been highly successful in 2009 and look forward to upcoming decisions pending in 2010. For a review of G&A’s Complex Legal or Class Action successes, click here.

With 2 highly publicized trials, Paul Q. Goyette added yet another win to his 15 year winning streak in State and Federal Courts and established himself further as one of California’s preeminent high profile criminal trial attorneys. For articles related to the Deleon and Newlin trials, click here.

Rafael Ruano, managing associate for G&A’s Estate and Business Planning division, saw exponential growth this year and is planning to participate in a 30 minute television spot in late January for a National organization. For more information on G&A’s Estate Planning Division or to see if you or your organization qualifies for reduced fees for wills, trusts or estate plans, click here.

As the exclusive panel attorney’s for RN Guardian, G&A’s lawyers successfully represented, and are currently representing, California Registered Nurses in disciplinary actions against their licenses with the BRN. RN Guardian Attorneys have also dispensed proactive legal advice which has mitigated adverse action in both job and licensing matters for RNs. For more information on the successes of RN Guardian or how your association can partner with RN Guardian, click here.

As featured speakers for the highly sought Advantage Training and Education Series, Paul and Gary Goyette offered their unique brand of advice and decades of institutional knowledge and expertise to over 100 attendees at the training seminar in Sacramento in November. The Advantage Training and Education Series is currently planning a Southern California Seminar for March in conjunction with the law firm of Silver, Hadden Silver, Wexler and Levine. For more information on how to obtain DVDs of the November training, or to sign up for the upcoming Southern California event, please contact Jennifer Coalson-Perez or click here for a sample agenda.

We would like to take this opportunity to express our gratitude to our clients, colleagues and especially to our driven team for making Goyette & Associates the diversified and successful Firm it is. Here is to continued successes for 2010! Happy New Year!

Posted in Administrative/Disciplinary Appeal Victories, Civil Litigation, Class Action, Estate and Business Planning, Firm News, RN Guardian News, Training and Education Series, Trial Outcomes, Trusts, Wage and Hour Victories | No Comments »

RN Guardian Sponsors the CSAOHN Conference 10/16/09

Tuesday, October 13th, 2009

RN Guradian will be a featured sponsor at the the California Association of Occupational Health Nurses Conference at the Embassy Suites in Sacramento this Friday, October 16 2009.

RN Guardian is a membership based legal service plan for the defense of California Registered Nurse licenses when faced with adverse action or investigation by the California Board of Registered Nursing. Using a panel of Goyette & Associate Attorneys, RN Guardian boasts a 100% success rate.  RN Guardian Members who have been represented by their panel of expert attorneys, have never had to forfiet a RN License or have their RN license revoked. 
                                                                                                                                                         To find out more regarding how RN Guardian can offer your nursing organization the peace of mind associated with a having a viable RN membership, visit us at www.rnguardian.com or contact Jennifer Coalson-Perez, RN Guardian Director of Member Services at info@rnguardian.com

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Continued shake-up for the California Board of Registered Nursing

Wednesday, July 22nd, 2009

It seems that Gov. Schwarzenegger is getting a bigger problem with the California Board of Registered Nursing, as Ruth Ann Terry – the Board’s 16 year executive officer is stepping down.

From the LA Times:

The longtime executive officer of the embattled California Board of Registered Nursing resigned Tuesday, ensuring almost entirely new leadership for the agency as it strives to revamp its oversight of hundreds of thousands of caregivers.

But the sweeping reforms promised by Gov. Arnold Schwarzenegger this week face significant obstacles — not the least of which are the governor’s own budgetary gambits and his failure to fill key vacancies in his administration.

On Monday, the governor abruptly replaced four board members and filled two vacancies, saying in a statement that his new panel would move “quickly and decisively” (there is still one vacancy on the board). He will swear in the new members today.

 

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For Our RN Guardian Nurses:

Monday, July 20th, 2009

GOVERNOR REPLACES BRN AND
FORCES RESIGNATION OF DIRECTOR 7/14/09
Following another expose by the LA Times and nonprofit news organization ProPublica, Schwarzenegger has fired 3 members of the Board of Registered Nursing, including the President and basically forced the resignation of the Executive Officer as well as another Board member. The remaining seated 2 members are appointees of the Governor from 2006 and the empty slots have already been filled by gubernatorial appointments. Schwarzenegger’s statement said his “administration is dedicated to protecting public health and safety, and the new board will act quickly and decisively to achieve that goal.”

This comes just days after the LA Times and ProPublica found that the Board of Registered Nursing was taking an average of three and half years to investigate allegations of misconduct. Perhaps this was because during the scope of its thousands of investigations, the BRN found that many of the investigations were superfluous. RN Guardian Attorneys are continually reminded that many of these “allegations” are often arbitrary at best, sometimes made as a retaliatory measure by a disgruntled colleague, sometimes made by a supervisor to cover up their own mistake, or more often than not, made by a family member of a patient who was dissatisfied with patient care.

The upheaval with the BRN’s administration and governing boards means a few things to California Registered Nurses:

The new BRN will undoubtedly be far more aggressive in investigating even the slightest incidence and will move swiftly to administer penalties, fines, suspensions and license revocations.
This is a tentative time for RN License security in California.
The need for a service that provides preventative counseling for license related matters as well as the peace of mind that if needed, your license would be defended by attorneys that specialize in the nuances of the BRN has never been more relevant.

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ER Patient Death+Insufficient Ratios= BRN Investigation

Tuesday, May 26th, 2009
RN GUARDIAN CASE STUDY 5/26/09

Allegations of insufficient patient care, often lead to BRN investigations. Such was the case for a San Bernardino County RN who worked at a local hospital emergency room. The RN was working a weekend swing shift which required her to work during the busiest ER hours Thursday, Friday, and Saturday nights. One particularly busy night, a male in his mid 20’s was admitted with moderate cuts and abrasions from an apparent motorcycle crash. Unfortunately, due to the crowded conditions of the ER, the patient was required to wait for an extended period of time. This did not appear to be a problem to the intake RN as the patient was stable, did not appear to have significant injuries, and was able to wait in a relatively comfortable state. After between 60-90 minutes of waiting in the ER waiting room, the patient went into cardiac arrest. Emergency personnel that were on scene immediately responded and attended to the patient. Unfortunately, the patient could not be revived.

The patient’s cause of death and the reason for his cardiac arrest were not immediately apparent. Both the hospital and the patient’s family conducted their own highly comprehensive investigations. Legal claims and ultimately lawsuits were filed by the patient’s family. Portions of that case are still pending. However, as a result of the hospital’s investigation, the BRN was somehow notified of the incident. BRN launched its own investigation into the conduct of three RN’s, including the supervising RN. The BRN alleged that the RN somehow breached standards of patient care. By the time BRN/Department of Consumer Affairs Investigators became involved, both the hospital and the patient’s family completed thorough investigations. The BRN investigators obtained significant portions of those investigations. The most significant portion of those investigations were the detailed statements given by the RN’s. Each RN gave statements to hospital investigators without the advice of legal counsel. The BRN moved to take disciplinary action against two RN”s based, in a large, on inconsistencies in the RN’s statements and conflicts in the evidence with the RN’s statements.

RN Guardian lawyers handled the administrative appeal for one of the affected RN’s. RN Guardian lawyers were able to obtain a dismissal of the charges prior to hearing. Unfortunately for the RN, that dismissal came almost 24 months after the death of the patient in the Emergency Room. It is important to note that the entire BRN investigation might have been avoided had the RN been given the opportunity to consult with legal counsel prior to giving a statement. Had the RN, given a more informed and, accordingly, more accurate statement it is unlikely the BRN would have initiated an investigation in the first place.

The San Bernardino ER case demonstrates real value of RN Guardian which is to provide critical advice and consultation to RN’s to avoid BRN and legal proceedings. Fortunately, for the RN Guardian protected member, the entire matter ended favorably. The most difficult part for the RN was enduring the lengthy investigation process and the possibility that her license may have been interfered with by the BRN. RN Guardian urges its members to communicate with an RN Guardian lawyer at any time an event or incident occurs which may lead to some type of investigation or adverse consequence to the RN.

Posted in RN Guardian News | 2 Comments »

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