Behind Closed Doors Case #13 The Dangers of Nurse Defamation

Information: Alterra Healthcare Corp. v. Campbell, 2D10-4444 (11/9/2011)-FL

Summary: Nurse awarded over $500,000 in defamation suit

 

Disclaimer: Due to the overly sensitive and backward nature of the state I reside in, my nurse attorney Teressa Sanzio has asked me to clarify that I am not practicing law on my blog, rather, targeting these articles toward educational activities that empower good, safe, ethically sound nursing practice. Thank You.

 

     The brand new hospital you are starting at tomorrow morning is stunning. In fact, you’ve dubbed it the “Titanic” of hospitals. Valley Vista Medical Center: from the freeway one can see it standing proudly;  like a posh, modern, Las Vegas  hotel on the strip complete with windows that sparkle in the Arizona sun during the day–while masquerading as a turquoise and copper architectural piece of art when lit up at night.  The tour of the hospital’s interior revealed stunning contemporary  décor from floor to ceiling and advanced technologies well established to enhance patient care delivery.  You feel more than lucky to have been hired on here.  Unbeknownst to you,  this is where the short love affair with Valley Vista will end.

     Lack of teamwork, betrayal, backbiting, bullying among the nursing staff, tampering with staff Pyxis credentials and narcotics, chronic staff shortages, high nurse to patient ratios, abusive physician behaviors, and a constant struggle to get your hands on the supplies and equipment to do your job are just the start of the nightmare. You’ve also got a charge nurse (more like charge monster) who has made it abundantly clear to you (as well as to the nurses you work with) that your “brown skinned self will not make it past orientation if she has anything to do with it.”  To top things off, the charge monster reminds you regularly that “you are on your own.”

     The Queen Bee has some “favorites” surrounding her at all times throughout the shifts and you’ve overheard plenty of the scheming to “get rid of this Bitch.” (the “Bitch” being yours truly) The “Plan” includes telling the nurses not to help you with any patient care or tasks should you ask for any assistance from them. The most dangerous of her ploys: she ignores your pleas for help to get your Pyxis credentials fixed. Because they work only maybe one time out of ten, you aren’t able to give medications on time to any patients and they ring the call lights constantly—angry, in pain, and demanding to complain to management. Her solution is advising you to ask the other nurses to sign you in and out of the pyxis because she “has other things to do.” Horrified and frustrated, you send several emails to the Nursing Director of the unit and to the House Supervisor about the problem but for some reason your requests for intervention have fallen on deaf ears. Your conversations with the pharmacy staff (who are located on the other side of town) yield bewildered responses— they’ve never seen anything like this problem occur with any nurse previous to you. Of course they haven’t.

     New on staff and afraid to make waves you do your best to keep your head down, avoid The Bee and try to find ways to get the scheduled medications passed when the other nurses are able to sign you into the Pyxis with their credentials. It’s bad enough you are always the last nurse making rounds, and the last one to sit down and chart but you carry an additional burden – worrying about the odds against you. Any day now there could be a medication discrepancy involving one of the nurses yet you try you continue to remain hopeful the Pyxis debacle will be resolved.  Unfortunately, this will never happen.

     Two weeks into your employment the Queen Bee and the Nursing Director call you in for a meeting on a day off. The Bee is prepared with numerous accusations (delivered in a cooler and crispier than usual British accent) that target your “rude behavior, lack of professionalism, failure to work within a team, patient complaints, and lastly—her suspicion that you are pocketing narcotics. It’s of no surprise to you that when you inquire about the names of people complaining or dates and incidents she is unable to provide you with this information.  The Bee has also taken the liberty of creating a word document (she’s sweet enough to provide you a copy) of all the narcotics discrepancies you have been involved with and is more than thrilled to offer her accounting of your supposed drug heists.

     Seated in a chair across a conference table from the two of them you maintain a stunned silence. These absurdities aren’t true. Your coworkers know these things aren’t true. Glancing back and forth between the Director and The Bee it’s easy to see who is running the show here. The contrast between the two is quite remarkable. The Director appears tired, frumpy, wearing mismatched and wrinkled scrubs, looking like she’d rather be doing a hundred other things than attending this little soirée. The Bee, on the other hand, is nothing less than demure in a stylish, all black bohemian type ensemble. Her dirty blonde hair is neatly smoothed back into a bun that accents her piercing blue eyes, and she has one leg crossed revealing high healed stiletto boots.  “Lethal” you think to yourself… “She came prepared.”

     During these fatal moments it becomes crystal clear that you never stood a chance and should have done something earlier to protect yourself, your professional reputation, and your license. With disgust you note the sickening, satisfied gaze of The Bee as she gingerly…and with one graceful well-manicured finger, slides some forms in front of you to sign. You meet her icy gaze head on…. and realize it may be too little too late.

The Real Thing

     Michelle Campbell began her short tenure as a Registered Nurse at the “Alterra’s Care Bridge Assisted Living Facility” in March of 2002. Fancie Cales was both her nursing supervisor and the facility’s health care coordinator. It didn’t take long for Michelle to realize that any chance of establishing a professional or civil working relationship with her supervisor would never come to pass. She quickly resigned and sought employment elsewhere, signing on with a nurse staffing agency by the name of Maxim Healthcare who dispatched Michelle to a nursing shift at “Sterling House,” which was within the Alterra’s family of facilities. It was in May of 2004 when the Sterling House Residence Director, Erick Flock, called Maxim for an agency nurse to cover a 3-11PM shift. He was unaware of Michelle’s previous history with Miss Fancie.

     Whether it was “Fate” or “Karma” that had a hand in what was to come–Michelle and Miss Fancie would soon find themselves reacquainted. Fancie Cales was now a nursing supervisor at the facility Maxim had sent Michelle to. When she arrived for the appointed shift, Miss Fancie immediately approached Mr. Flock and insisted that Michelle be cancelled off of the shift. According to court documents “Fancie told him that she had worked with Michelle at another facility and that she was bad news. She also told Flock that Michelle had been suspected of stealing narcotics from that facility.” (The Free Library, 2011)  Mr. Flock would not send Michelle home that day, stating that if he were to do so Fancie would have to cover the shift herself.

     The established procedure at Sterling House was for the oncoming nurse to conduct a medication count with the off going nurse. Per Michelle’s recollection, everything was routine and the shift proceeded as normal. Medications were sorted, stored, and secured as follows: “Most of the medications were prepackaged in blister packs for ease of dispensation and control. The blister packs were stored in a locked, removable box that itself was stored inside a locked medication cart. The door to the nursing station would automatically lock whenever a nurse or medical tech left the room.”(The Free Library, 2011)  In order to access the nursing station, the med box, or the med cart one must use a specific set of keys made for each one. Normally, three people are assigned the keys on each shift: the nursing supervisor, a pharmacist, and a Registered Nurse (or if licensed to give medications—a medical tech). During the shift in question Miss Fancie approached Michelle and asked to use the keys in order to access the nursing station for patient charts. She quickly returned them to Michelle without incident. Another unnamed employee was also given the keys, by Michelle, on various occasions throughout the same shift in question so that they could obtain supplies from the nursing station.

     As part of the “end of shift duties” Michelle engaged in another medication count with an oncoming medical tech who noticed that some of the blister packages may have been tampered with. Michelle signed off on the count in the log book, assumed the medical tech had as well, and turned over her set of keys to the tech before leaving the facility. Her recollection of events is as follows: “Michelle stated that they discovered a medication error resulting from one of the patients receiving the wrong dosage of medication. Michelle asked the tech to call a supervisor to discuss the incident reporting procedures. Michelle left a message for Fancie on her voicemail.” (The Free Library, 2011) She later recounts that after working through and resolving the discrepancy with the tech the medication count concluded as it normally would.

     Two days later Michelle would learn that the situation was much more serious than she could ever imagine: “Maxim notified her that hydrocodone and oxycodone pills and oxycodone pills had been switched out for other pills in some of the blister packs. She was arrested and charged with repackaging an adulterated or misbranded drug, trafficking in oxycodone, causing a drug to be counterfeit, obtaining a controlled substance by subterfuge, and furnishing a false controlled substance form.”(The Free Library, 2011) To add insult to injury, Maxim fired Michelle without question or further investigation (another great place to work huh?) —Sadly, according to case documents, there were no attempts by the agency to advocate on her behalf.

     Karma…Justice…whatever you want to label it, prevailed in this case. Michelle sued Alterra for “malicious prosecution.” The trial jury determined she was innocent and ordered that she be awarded a total of $539,657.00 in both compensatory and punitive damages. During the course of the investigation it was discovered that before Michelle ever stepped foot into the doors of Sterling House there had been an average of “five drug thefts a month.” I wonder what Miss Fancie has to say about omitting that little detail when both she and Flock made statements to investigators that no previous incidents had occurred before Michelle’s shift at the facility?

***Interested in the Court’s official opinion?***

     “The court held, inter alia, that there was no evidence upon which a jury could rely in finding for the defendants. The court noted that even if the defendants could not have known the information given to authorities was false at the time it instigated proceedings, surely it should have known that the information might have been false once the drug thefts continued after Michelle was fired. Further the court noted that although Flock attempted to report one subsequent drug tampering/theft incident to the detective assigned to Michelle’s case, he never reported the incident involving another employee whose drug screen was positive, despite the fact that the same employee worked shifts just prior to Michelle’s  on the day in question. The court noted that Flock also failed to report either incident to Michelle, her attorney, or the State’s Attorney’s Office. Such information might have resulted in dropping the charges at an earlier point in time.” (The Free Library, 2011)   

Questions for Consideration:

1. Is there anything Michelle could have done better at the time the drug discrepancy was discovered? If so, what?
2. There is an inherent danger with keys being assigned to staff members during a shift. What would you do to assure that your license is protected when assigned keys at a facility such as this?
3. In your opinion should Michelle have been fired right away from the nursing agency and should they have advocated for one of their staffers?
4. Two agencies are mentioned within the case study, what have you as a nurse learned about being selective with regard to where you accept employment?
5. What provisions of the Code of ethics for Nurses did Miss Fancie violate?
6. What does defamation of character mean to you? Does it happen just in the workplace, if not where else have you seen it occur?

Discussion

     Make no mistake, we practice during a volatile time in our profession’s history. The stakes are high as corporate entities continue to push nurses beyond their capacities to perform—not in the name of patient care, but in the never-ending quest to achieve the ever elusive highest levels of customer satisfaction in this profit driven industry. So, just how bad is it out there? A recent article in the American Journal of Nursing cites a study that states “Of more than 95,000 nurses(the study)finds that direct care nurses in hospitals and nursing homes, who are often considered the first line of defense in patient care, are significantly more likely to be dissatisfied with their jobs (24%and 27% in hospitals and nursing homes, respectively) and to describe themselves as burned out(34% and 37%, respectively) than nurses in non- nursing jobs or jobs not involving direct care (of whom13% are dissatisfied and 22%burned out). (McHugh MD, 2011) The reality is we are asked to achieve the impossible in work places that are toxic and unhealthy. These work environments take the form of fast paced, high acuity nursing units or skilled nursing facilities with dangerous nurse to patient ratios…The icing on the cake is practicing within a right to work state, where a nurse can get fired simply for the color of his/her hair.

     So what is a nurse to do these days?  The questions that we as nursing professionals should be asking ourselves and each other is: “Where do our interests, safety, and satisfaction come in to play? Who is looking out for us?” The answer to that is easy: When it comes to Corporate Nursing you are your own best advocate and no one will look out for you, your interests, or your career better than you.  This case illustrates the importance of not settling for negative work environments, remembering that we have the prerogative as professionals to pursue positive and supportive workplaces, exercising greater discretion when voicing our opinions about colleagues, paying attention to detail, never making assumptions, and arming ourselves with a good nursing liability insurance policy.  Familiarizing oneself with an experienced nurse attorney who knows the ropes when it comes to the unique complexities of defending nurses in cases like the one above, or before any State Board of Nursing should also be on that list of things we can all learn from Michelle’s case: “Nurses should thoroughly question any attorney they are thinking of hiring to ensure that the attorney has the proper experience and knowledge to practice before the Board. The area of law that involves regulatory agencies such as the Board of Nurses is called Administrative Law. Nurses should look for an attorney that is Board certified in administrative law and one that frequently represents nurses before the Board. Nurses should not assume that every attorney has the knowledge or the experience to adequately represent them before the Board.” (Mackay, 2011)

I should know…

      Since I’m headed *there*…we might as well talk about it. How does a nurse go about finding the right attorney to defend him/her? Calling the first attorney you settle on via an internet or phone book search can make or break a case outcome and the status of your nursing license. (So put down the iPhone or phone book, have a good cry, hit a wall, then take a deep breath) I acted hastily and it cost me dearly. One attorney I met with and chose to assist me misrepresented themselves by telling me they had defended 60 or 70 nurses before the State Board of Nursing in Arizona. When I did some investigating it turned out that they had only been before the Board less than five times in over  year and were actually new to defending nurses before the Board. In addition to this, they failed to take some very crucial steps necessary to protect me and my interests during one of the most important parts of my case.

     Since I went *there*…I might as well stay on topic. Here are some tips to consider acting on in order to ensure you and your license are protected at all times: 1.) Take a break from Facebook and devote a few minutes to browse through your local State Bar’s website. Become familiar with your rights as a client upon entering the client/attorney relationship. 2.) Look up The American Association of Nurse Attorneys website and give them a call for a listing of nurse attorneys they recommend in your area. 3.) Keep the information handy in a folder marked NURSE LIABILITY INSURANCE POLICY. Too many nurses feel they will never need this protection. If you don’t already have a policy…GET ONE…and do it NOW. “There are many reasons why nurses do not purchase this inexpensive protection. For example, some nurses believe that an employer’s insurance will take care of any problems. However, the employer’s insurance may not completely cover the damages and it usually does not cover actions before the Board. Furthermore, in a situation where the employer reports the nurse to the Board, the employer is not going to then spend money defending the nurse.” (Mackay, 2011)  Nurses Service Organization has long been recognized as a reputable company of choice by many nurses, so consider carving a few more minutes out of your Facebook/Pinterest/Tumbler/Twitter life to check them out and make the purchase. A policy costs no more than the money that many of us spend at Starbuck’s each month. 4.) When it comes to workplace disciplinary measures: DO NOT SIGN ANYTHING if you are unsure of what it is you’re signing or if you disagree with it!—Retain copies of any and all documents and always contact an attorney for advice before you say or sign anything you are hesitant about.

     In hindsight I think we can all recognize the prudence of looking two or three times to make sure a process is complete BEFORE we swipe that badge to go home—the consequences of failing to do so are tragically evident in Michelle’s case. If someone is supposed to co-sign equipment or medication counts with you, stand there and make sure they have done it.   If you start an incident report, finish it. Is there any rule floating around out there about snapping a picture of it with your iPhone as proof you did it??? (We all know how these disappear into thin air later and everyone says it was never done) Can’t reach management? Keep calling until you get the supervisor on the phone so that an incident can be resolved before you leave the workplace. Move through the chain of command until you find the right person to resolve it right there and then. Lastly, if you work for an agency like Maxim, be proactive before signing on with them or accepting assignments— ask the recruiter what the policies and procedures are in a case such as this. Will the agency advocate for you and give you a chance or will they leave you out in the cold at the word or accusation of a third party? If they cannot provide assurance that they will stand by you as an employee until they hear your side of a dispute or until/ if you are proven guilty, strongly reconsider accepting employment there. Nurses are not used Kleenex or old paper towels to be tossed out at will.

     Nothing about this case resonated with me more than the sheer audacity and will of one nurse to assume she has the power to stand in the way of another colleague making a living within the profession by destroying their public image and reputation. When revisiting the Code of Ethics for Nurses its clear to see Miss Fancie’s little routine may have violated these provisions:

• Provision #1: The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems.(Fowler, 2010)
• Provision #5: The nurse owes the same duties to self as to others, including the responsibility to preserve integrity and safety, to maintain competence and to continue personal and professional growth.(Fowler, 2010)
• Provision#6: The nurse participates in establishing, maintaining, and improving healthcare environments and conditions of employment conducive to the provision of quality healthcare and consistent with the values of the profession through individual and collective action (Fowler, 2010)

     Now, if you are one of *those nurses* that enjoys coloring outside the lines of your colleagues’ reputations at work or someone who doesn’t play nicely in the social media sandbox by throwing mud pies or Molotov cocktails over the world wide web, you’d do well to brush up on the Code of Ethics for Nurses as well as the definition of “defamation of character” and how it applies to you and your artwork: “Most jurisdictions also recognize ‘per se’ defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se: Attacks on a person’s professional character or standing, allegations that an unmarried person is unchaste; allegations that a person is infected with a sexually transmitted disease, allegations that the person has committed a crime of moral turpitude.” (Larson, 2003) As social media continues to evolve and further entrench itself into the norms of everyday life,  new laws are being created to stave off the personal and professional damages suffered by others as a result of your extra-curricular activities. If you’re not more careful, it may be your license that is placed in jeopardy someday—at your own hand no less…and we all know– Karma can be a real bitch. 

Resources

Case On Point (2011, November 1). Nurse awarded $500,000 in defamation suit. Retrieved April 24, 2013, from The Free Library: http://www.thefreelibrary.com/Nurse awarded over $500,000 in defamation suit.-a0323859095

Fowler, M. D. (2010). Guide to the Code of Ethics for Nurses: Interpretation and Application. Silver Spring, MA: Nursebooks.org.

Larson, A. (2003, August). Defamation, Libel, and Slander Law. Retrieved April 23, 2013, from ExpertLaw: http://www.expertlaw.com/library/personal_injury/defamation.html

Mackay, T. (2011, 11 22). Protecting Your License From The Nurse Police. Retrieved April 24, 2013, from Nursetogether: http://www.nursetogether.com/protecting-your-license-from-the-nurse-police

McHugh MD, e. a. (2011, May). Nurses’ Job Satisfaction Linked to Patient Satisfaction. American Journal of Nursing , 111(5). Retrieved April 15, 2013