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It's time for the Texas Legislature to establish oversight of the Board of Nursing (BON) so that a complaint process exists to file confidential complaints against the BON when unjust treatment and lack of due process is experienced by patients or nurses.  Licensees should be afforded the same constitutional rights under administrative law as offered in state civil investigations. 

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The following information is intended to identify problems regarding lack of oversight of the Texas Medical Board (TMB) and the Board of Nursing (BON) to determine policy and procedure issues needed to provide due process to uphold the presumption of innocence while protecting public outcomes through licensee discipline and/or dismissals as justified.

Since 2016, Right To Know (TRTK) CEO, Sheila Hemphill, has been investigating several physician's and now nurse's court cases. Sheila has  conducted interviews, reviewed transcripts and depositions, orders, etc. as cases make their way through the Texas Medical Board (TMB) and BON investigative and administrative law process at the State Office of Administrative Hearings (SOAH) and through appeals to district court for Federal Constitutional violations to the 5th Circuit Court of Appeals.  It has been identified that several complaints accredited against the TMB and BON actually reside in the laws established by the Texas Legislature while many others may be rightly accredited to egregious behavior by staff and board reported by physicians, nurses and defense attorneys.  From 2007 through 2016, of the 843 physician cases that went to SOAH, only 9 ruled in favor of the physicians which represents less than 1%.

 

Since the legislative body has never established an office for oversight of the TMB or Board of Nursing (BON), TRTK has been recently contacted by several patients who complaints against physicians were dismissed with no detailed explanation. 

ABC affiliate WFAA televised these cases in the following investigative reports.
  

North Texas Spinal Surgeons:

Christopher Dunstch

From court testimony,
“She nearly died, her esophagus was pinned under a plate." 
Dr. Martin Lazar, "Patient treated like cannon fodder,” 
Dr. Kirby, "Christopher Duntsch nearly decapitated Mr. Glidewell”.   

 

TMB received first complain on August 9, 2012 and they did nothing until June 2013.  He sentenced to life in prison for maiming patients, leaving several paralyzed and two others dead.

Stephen P. Courtney

Had multiple patient complaints file with the TMB, a patient die on the table utilizing his own spinal apparatus. According to WFAA, several of his patients have been unable to find anyone to fix Dr. Courtney’s surgical errors. 
 

From the TMB licensing look up section:

"Section 164.201 of the Act requires that: the board review information relating to a physician against whom three or more malpractice claims have been reported within a five year period. Based on these reviews, the following investigations were conducted with the listed resolutions."

 

Action Taken: DISMISSED 

Date: 06/15/2018 

 

On February 6, 2019, during the lobby day for the American Association of Physicians and Surgeons (AAPS), Mrs. Hemphill visited with numerous nurses who stories of unjust treatment and lack of due process by the Board of Nursing (BON).  These BON reports mirrored the information she had witness and had been reported in regard to the TMB. Like the TMB with the BON there is an  assumption of guilt of licensees, confirmed reports of cause of complaints regarding board and staff conduct as listed below.

The number of nurses reported to the Texas Board of Nursing has increased to over 1,600 a year. Of those more than 1,400  are subjected to the long investigations that bring about destruction to the nurse’s career, and reputation. Nurses report losing their homes, cars, medical insurance and so much more over the lengthy time of a board investigation. Even if the nurse is innocent or the violation a first-time violation or non egregious error, the collateral damage to an investigation is extensive.

A review of disciplinary actions posted on the board’s web site reveals the majority of complaints are made by the employer.  Nurses report being reported to their licensing board as an act of retaliation from facilities because the nurse spoke out about patient safety concerns or because the nurse was caught in the fall out of unsafe, chaotic conditions on their unit.  Hospitals benefit from reporting nurses to the board. Scapegoating a nurse allows the hospital to avoid accountability for a bad patient outcome that may have been related more to system failures.  Hospitals and facilities, therefore, protect their reputation and avoid addressing unsafe conditions that threaten patient’s lives.

The landscape of healthcare has changed with the widespread cooperate takeover of hospitals and health care systems. Healthcare is no longer patient focused but instead the focus is profit. A common cry from nurses is that they can no longer take care of their patients in a safe and thorough way. Nurses report such factors affecting their ability to provide safe care as critically low staffing, lack of experienced nurses, and cooperate pressures to meet metrics. Metrics include such as incentive to decrease patient length of stays, which results in rushing patient care to expedite discharge. This limits the number of patients receiving hospital care after their insurance coverage for the days allowed has been met. The goal for the hospital is to increase the number of patients seen and treated. Increased numbers equals increased profit. This change in healthcare has resulted in preventable medical error now being the third leading cause of death.

Preventable medical error is most often the result of administrative decisions, lack of resources and system failures. It is the bedside nurse however, that is made to pay the price of such conditions that place the nurse in no win situations and they find themselves reported to the board when things go wrong. One can only imagine how the needle could be moved to increase patient safety if the board addressed mitigating circumstances instead of solely focusing on the bedside nurse.

Nurses find themselves chronically being asked to assume care of patients in facility conditions that are unsafe and impossible to manage. Patients are living longer and therefore present to hospitals with severe disease and increased acuity. Patients have an increase in complexity of their nursing needs. Patients that at one time would be admitted to a higher level of care, such as the intensive care unit. are routinely admitted to medical surgical or intermediate areas. These units cannot provide the level of care needed by sicker, complex patients and staffing is not adjusted to meet the increased demand. In the intensive care unit a patient would be cared for by a nurse who has no other patients assigned to her/him. On a medical surgical unit the nurse find themselves assigned a complex severely ill patients as well as four to six other patients thereby, being unable  to provide the level of care needed by any of their patients.

A 2014 study in Policy, Politics & Nursing Practice revealed that an estimated 17.5 percent of newly-licensed RNs leave their first nursing job within the first year, and one in three (33.5%) leave within two years. Recent studies show that an increasing number of new graduate nurses intend to leave the bedside within two years. Streamline Verify published statistics in March 2016 that 43 percent of new graduate nurses leave their hospital positions within the first three years. An article in Minority Nurse reports the reason is unbearable working conditions:

-       In fact, many nurses run from the bedside as soon as possible because conditions are so deplorable. They look for jobs in advanced practice, teaching, and other non-bedside related areas of nursing, while the number of nurses taking care of the most critical patients continues to dwindle.

Further, worsening the national shortage of nurse is that older nurses are retiring and fleeing from the patient bedside. A reason experienced nurses give for leaving the bedside is the disproportionate numbers of continuously cycling new graduates which overburdens experienced nurses and threatens patient safety. In such unsafe conditions error and bad patient outcomes are predictable. And it will be the bedside nurse who finds themselves held responsible when bad things happen. Even though the system failed the nurse and hospital nurse administrators knowingly permitted unsafe conditions it will be the bedside nurse who is reported and investigated by the Texas Board of Nursing. Though the Board historically fails to hold the nurse leaders accountable who contributed to an environment where patients were at risk, Texas Administrative Code (TAC) states that Chief Nursing Officers are to be held accountable in RULE §217.12:

-           (2) Failure of a chief administrative nurse to follow standards and guidelines required by federal or state law or regulation or by facility policy in providing oversight of the nursing organization and nursing services for which the nurse is administratively responsible.

It bears mentioning that the improving patient safety could be greatly improved if the Board of Nursing did recognize the root causes of errors and hold nurse leaders also accountable to the nurse practice act as in the board’s own RULE §217.12 . In only going after the bedside nurse and ignoring the root causes of bad outcomes the board of nursing is not meeting its mission to protect the public.

 The Texas Board of Nursing Sunset final report was published in 2017 and is available at  The Sunset Commission found that the board uses subjective standards to evaluate nurses conduct and assign harsh discipline to nurses who are investigated for mistakes, or even lawful, off the clock behavior. The Sunset Commission report states:

 

      ….the board’s use of subjective standards to link most any mistake, even off-the-clock conduct, to nursing can result in harsh sanctions for nurses. House Bill 2950 limits these subjective standards and requires the board to demonstrate a connection between a nurse’s conduct and the practice of nursing. The bill also continues an exception to licensure requirements for graduates of Excelsior College’s nursing program and creates a process similar to instate programs to improve the program or expire the exception if certain standards are not met.​

Texas Right To Know (TRTK) is actively lobbying the Texas Legislature regarding the reported abuses of the Texas Board of Nursing and the need for oversight of this agency. We are proposing the creation of an office of the Ombudsmen and other needed changes such as ensuring nurses are offered due process when subjected to an action against their license. The Unites States Ombudsman Association provides the history of Ombudsman on their web site at http://www.usombudsman.org/public-sector-ombudsman/. The Unites States Ombudsman Association defines an Ombudsman as: a public official to be appointed by the legislature to receive and investigate citizen complaints against administrative acts of Texas Board of Nursing.

TRTK have been working with and interviewing numerous nurses, attorneys and members of the public who have reported egregious actions of the Texas Board of Nursing.  Reports include but are not limited to subjecting the nurse to excessively long investigation times, and long delays in docketing the nurse for a State Office of Administrative Hearing (SOAH) so that they may have the opportunity to present their defense to an unbiased Judge. These delays often amount to years and leave the nurse in limbo often unable to practice due to the stigma of being under investigation. Most egregiously the board denies the nurse the right to discovery during the long delays in applying to SOAH to set a hearing. Many nurses report that they are not provided discovery, despite multiple requests, until just before their hearing. This denies the nurse the opportunity to review the evidence and prepare a thoughtful defense. Other egregious actions of the BON is: withholding or prohibiting evidence supporting the nurse’s innocence, relying on hearsay, relying upon opinions made by retained experts that the nurse is denied the opportunity to rebut, offering witnesses immunity, utilizing biased experts who are advocates for the BON,  filing formal charges before the nurse has been docketed for SOAH, denial of an informal hearing or settlement hearing pre-SOAH, violating their own board rules, and violating the constitutional rights of nurses.

Further, the Board of Nursing is permitted to disregard the proposed final decision of the SOAH Administrative Law Judge. The Board may ratify the Judge’s decision, found in the nurse’s favor, and still proceed with disciplinary actions. ​The opportunity to seek an unbiased decision at SOAH becomes a moot point and comes at a huge financial cost for the Nurse. Many innocent nurses simply concede, accepting Board sanctions because they are left unable to afford the cost of a SOAH trial. Nurses are forced into financial ruin because the disciplinary process goes on for years. This seems to be a tactic of the board, hoping the nurse will give in to the stress and concede.

Nurses often cannot find gainful employment because of the stigma of being investigated, or because the board has reported them to federal provider databases even though the nurse’s charges remain non-adjudicated. Tragically, even if the nurse’s charges are ultimately dismissed her reputation has been destroyed and her career leveled. Nurse’s and their families are suffering enormous loss and undue stress that impacts them financially, emotionally and physically. Though the board does have a duty to protect the public for from unfit nurses, they do not have to do so in a way that is cruel, over such extended periods of time.

Baylor University law professor, Ron Beal, is recognized as a state authority on administrative law and is quoted the following news piece in the series of Austin Chronicle's story regarding Dr. Robert Van Boven's case

“Every SOAH ALJ knows that from now on, when they rule against an agency, they will be provided no protection from the Chief Judge and most likely will be fired. How does that sit well for Texas citizens fighting for their job that is being threatened by a regulatory agency? The entire SOAH agency has been 'polluted,' and it will take a miracle for the ALJs to continue deciding cases on the merits."  

Professor Beal in an email to Mrs. Hemphill;
 

"I have looked over Mrs. Hemphill’s materials and positions. As to all of her proposals of more meaningful oversight and sanctions for misconduct by the TMB board and officers, I would fully support those propositions. I have personally seen conduct by the staff that I believe is unethical and that would constitute bad faith. I applaud her organization for beefing up that part of the law."

 

​ Please share this page with your nurse peers, family and contacts. If you know any nurse who has undergone a BON investigation, please have them contact us and share their story by emailing bon@texasrighttoknow.com. 

Nurse’s real-life stories are needed by Legislators to successfully pass amendments to the current Texas Nurse Practice act (NPA) and bring about a fair and just disciplinary process.  All information will be kept confidential unless permission is received otherwise.  It is critical that we have involvement from Texas nurses and the public to defend the changes needed to the NPA to ensure due process of law. 

 

A message from Representative Bill Zedler and Sheila Hemphill, TRTK