Jim McGovern's Nursing Board Update: OBN Continues Trend Towards Greater Enforcement And Harsher Sanctions

The Ohio Board of Nursing met on July 30-31, 2015.  Jim McGovern of Graff & McGovern, LPA, attended and otherwise participated as legal counsel for numerous nurses.  His report is as follows.

Fortunately, the Board voted to approve Consent Agreements to resolve the charges pending against numerous nursing clients of Graff & McGovern.  Most of those Consent Agreements were hard fought and took 4-6 months to negotiate the reasonable outcomes.

The Board also deliberated upon 2 Reports and Recommendations to address charges against nursing clients of Graff & McGovern whose cases went to hearing instead of having the charges resolved through a Consent Agreement. As of this posting, we are still waiting for word upon whether the Board adopted the favorable sanctions recommended by the Hearing Examiners.

Given that the Board has now completed 4 of its 6 Board Meetings for 2015, I believe it is fair to comment that the Board has continued its trend over recent years of engaging in larger scale enforcement of the Nurse Practice Act and imposing harsher sanctions for violations of the Act.  That has been the case both when charges are resolved through Consent Agreements and when charges are resolved through Adjudication Orders.  Furthermore, during the past 18 months, just about 50 percent of my nursing clients who elected to take their cases to hearing  received a more lenient sanction compared to what they were being offered through proposed Consent Agreement.

I am now thoroughly convinced that this version of the Board is stricter than any version of the Board that I have seen since I started representing nurses in 1999.  That by no means suggests that they are bad Board Members.  It simply means that nurses who violate the Act are at high risk of being harshly sanctioned.  The proof is in the relatively harsh Consent Agreements and Adjudication Orders adopted by the Board during 2013-2015, along with the increased reluctance of the Board to settle cases using terms and conditions that were common prior to 2013.

Therefore, nurses who are being investigated by the Ohio Board of Nursing and/or who are facing pending disciplinary charges brought by the Board must be prepared to fight for fair and reasonable settlement terms.  Regardless of their efforts, some of those nurses may eventually find themselves in a position where they are forced to either accept the harsher settlement terms being insisted upon by the Board’s Secretary or take their case to hearing so that the full Board can consider the defense and/or mitigation evidence being presented.

James M. McGovern, Esq.   

Phone:  614-228-5800 Ext. 2

Fax:  (614) 228-8811 

E-mail: jmcgovern@grafflaw.com

Jim McGovern's Supplemental Nursing Board Update: 154 Notices of Opportunity for Hearing Issued By the OBN

The Ohio Board of Nursing met on July 30-31, 2015.  Jim McGovern of Graff & McGovern, LPA, attended and otherwise participated as legal counsel for numerous nurses.  His supplemental report is as follows.

At the July 2015 Board Meeting, the Board voted to issue 154 Notices of Opportunity for Hearing charging nurses with violations of the Nurse Practice Act.  This is the most Notices I have seen the Nursing Board issue at a single Board Meeting since I started representing nurses back in 1999.  Of the 154 Notices, 20 were Notices of Automatic Suspension and 20 were Notices of Immediate Suspension.  All of the Notices were mailed to the respective nurses via certified mail this week. 

All 20 of the Notices  of Immediate Suspension and Opportunity for Hearing involved drug related felonies / Intervention in Lieu of Conviction.

The 20 Notices of Automatic Suspension and Opportunity for Hearing break down as follows:

Failure to Submit to CD Evaluation	10
Failed Drug Screen	3
Self Administering Drugs	3
Gross Sexual Imposition	1
Operating a Vehicle Under the Influence	1
Failure to Follow License Restriction	2

The remaining Notices of Opportunity for Hearing break down as follows:

Misdemeanor Drug Offense	5
Felony Offense (Non - Drug Related))	7
Medication Administration	14
Theft of Medications	2
Substance Abuse	7
Felony Offense (Drug Related)	15
Fraud in The Application	3
Reciprocal / Sister State Discipline	31
Profanity / Disorderly Conduct	2
Failure to Practice Within Safe Standards	6
Witness of Sexual Abuse Not Reported	1
Fraud in The Application	2
Positive Drug and/or Alcohol Screen	6
Fraudulent Billing	2
Failure to Maintain Professional Boundaries	4
Fitness to Practice / Mental Health	1
Medication Discrepancies	1
Misdemeanor Offense (Non - Drug Related)	2
Assault	1
Identity Fraud	1

Any nurses receiving a Notice of Opportunity for Hearing  from the Board should strongly consider consulting with experienced legal counsel to protect their interests and they should be mindful of the need to submit a written hearing request to the Board no later than 30 days from the date the Board mailed the Notice.  The failure to comply with the 30-day deadline will leave a nurse with none of the rights afforded by Ohio Revised Code Chapter 119, and it will enable the Board to sanction the nurse’s license without obtaining any input and/or agreement from the nurse.

For nurses who now face pending disciplinary charges by the Board, this means you will be engaged in a struggle with the Board to obtain the most lenient sanction possible through a Consent Agreement and you may be forced to take your case to hearing to try to obtain a better outcome than is being offered through Consent Agreement.  To make it through that struggle and obtain a positive outcome for your nursing license, you will need to know who to communicate with, who to avoid communicating, what information to share and how to leverage positive facts in presenting your defense to the Board.   You will also need to be patient in negotiating the terms of a Consent Agreement with the Board, since the Board’s first offer is usually not its best offer.  Finally, you need to be willing, if necessary, to take your case to hearing if the Board is being unreasonable in negotiating a Consent Agreement. 

James M. McGovern, Esq.   

Phone:  614-228-5800 Ext. 2

Fax:  (614) 228-8811 

E-mail: jmcgovern@grafflaw.com 

James McGovern To Present at 2 Upcoming CLE Seminars

James McGovern of Graff & McGovern, LPA, will be presenting to his legal peers and others at 2 upcoming continuing legal education seminars.  The presentations will focus upon how to defend licensees in the administrative hearing process and will expand upon the concepts he addressed when presenting at the Columbus Bar Association's Pitfall's & Pratfalls: Advanced Administrative Law Seminars Parts I and II during the Fall of 2014 and Spring of 2015.  Here are the dates, sponsors and titles of the seminars:

1) August 19, 2015 at the Ohio Attorney General's Office Advance Administrative Law Seminar; and

2)  September 10, 2015 at the Ohio State Bar Association's Fifth Annual Administrative Law Seminar

Ohio Casino Control Commission Meeting

John Izzo attended the Ohio Casino Control Commission Meeting on Wednesday, October 15, 2014.  Tracy Plouck, Director of the Ohio Department of Mental Health and Addiction Services provided a report to the Commission as well as the 2015 plan for problem gambling services.  There was discussion concerning the renewal of licenses that are coming to the Commission.  There have been over 1,800 thus far.  Internal controls were amended for all four casinos.  One case came before the commission, an individual who was not forthcoming about his past criminal convictions.  His application for a license was denied.  Tama Davis, the Director of Communications, is leaving to accept a position in the public sector.  The date of the next monthly meeting was not mentioned.

State Medical Board of Ohio Meeting - October 8, 2014

John Izzo attended the State Medical Board of Ohio meeting on October 8, 2014.  He was present for the Board’s consideration of several Reports and Recommendations.  Of note, the Board approved the license of a massage therapist who’s license lapsed three years ago but continued to practice.  Mr. Giacalone, Board Member, stated that the applicant mitigated her situation by ceasing practice upon learning she was not licensed and notifying the board.  It was agreed that she would receive a reprimand, but would be allowed a license.  In a separate massage therapist case, the Board decided to permanently deny an individual who had three DUI’s prior to her application, and one afterwards that she did not inform the Board of.  A key point in the Board’s determination appeared to be the applicant’s statement that she did not believe Alcoholics Anonymous would work for her, and that she continued to work as a bartender pending the outcome of her application.

The Equine Immunity Statute

The Ninth District Court of Appeals recently reviewed a case where it compared the Equine Immunity Statute (R.C. 2305.321) with the statutory cause of action for injuries sustained as a result of another person’s dog (R.C. 955.28).  In Graham v. Shamrock Stables (9^th Dist.), 2014-Ohio-3977, Graham was at Shamrock Stables looking at a horse to adopt.  A dog harbored on Shamrock Stables’ property allegedly barked and jumped at the horse’s back legs.  The horse in question became spooked, swung around and knocked Graham to the ground.  As a result of the fall, Graham seriously injured two of her fingers.

Graham argued that the Equine Immunity Statute did not apply because her injuries were the proximate result of the dog; therefore, the injuries are compensable under R.C. 955.28.  The Court disagreed.

To prove a statutory cause of action pursuant to R.C. 955.28, the plaintiff must prove ownership or keepership of the dog, that the dog’s actions were the proximate cause of the injury, and damages.  However, the Equine Immunity Statute provides immunity from liability for harm sustained by an equine activity participant allegedly from the inherent risk of equine activity. 

Graham was an equine activity participant.  The “inherent risks” include the unpredictability of an equine’s action to other animals.  Graham concede that immunity would exits if she were bringing suit against Shamrock Stables as a sponsor or an equine activity.  Graham stated there was no immunity because her suit arose from the injuries she received as a proximate result of the dog, not that the horse reacted to the dog. 

The Court looked at the plain language of the Equine Liability Statute.  Since the General Assembly did not exempt an equine’s reaction to dogs, the horse’s reaction to the dog would qualify as an inherent risk of equine activity.  Therefore, Shamrock Stables was entitled to immunity.

Judge Carr dissented, stating that the general immunity provision in the Equine Immunity Statute must yield to the exception created by the special provision in R.C. 955.28 for injuries occasioned by dogs.  

John Izzo, Esq.

Ohio Veterinary Medical Licensing Board Update

John Izzo attended the Veterinary Medical Licensing Board meeting on October 8, 2014.  The Board is still one veterinarian short.  There was some discussion about what to do with veterinary clinics that do not provide two weeks notice of their hours.  It was decided to remind the clinic the first time they are late.  It appears there will be a penalty if the paperwork is received late a second time.  It was determined that the Ohio Department of Health and local health departments must comply with the Veterinary Medical Practice Act and the rules promulgated thereunder.  Several complaints were reviewed by the Board.  It appears that at least two Notices of Opportunity for Hearing will be issued.  The next Board meeting is November 12, 2014.