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Termination for Failure To Meet Hospital Policies and Procedures May Lead to an Administrative Complaint

By Robert A. Welch, Jr.

The Board of Nursing does not require any per se violations of the public health code to pursue disciplinary action against a licensee, likewise, the Board requires no evidence of patient harm in matters alleging nursing negligence to support a proposal for sanction in a Complaint for negligence despite the fact that negligence is a well-recognized concept in the law.  Recently, the Board of Nurses has gone so far as to supplant established Michigan law with regard to the nursing standard of care by disciplining nurses for violating their respective hospital’s internal policies and procedures.

According to the Bureau of health care services:

the Michigan Public Health Code defines the practice of nursing in Michigan and empowers the Board to establish qualifications for nurse licensure; to establish standards for education and approve nurse education programs; develop and implement criteria for assurance of continued competency; and take disciplinary action against licensees when the health, safety, and welfare of the public has been adversely affected. (http://www.michigan.gov/lara/0,4601,7-154-35299_63294_27529_27542-59003–,00.html, emphasis added.)

The Board of Nursing, however, has continually failed to state how the acts or omissions of licensees have adversely affected the health, safety, and/or welfare of the public.  It is becoming a disturbing trend that the Board of Nurses will take disciplinary action against a licensee without a stated finding that the health, safety, and welfare of the public had been adversely affected.  Instead, the Board apparently operates on the presumption that if an Administrative Complaint is issued against a licensee then the health, safety, and welfare of the public has been adversely affected by the licensee.

When adverse employment action is taken against a nurse and that nurse is terminated or resigns, the change in status is reported to the Bureau of Healthcare Services pursuant to section 333.20175 of the Public Health Code.  It is common, however, for nurses to be fired for violations of a health system’s internal policies and procedures.  Unfortunately, it is also then common for an administrative complaint to be issued against the licensee for failure of said policies and procedure, which allege negligence.  Many times, the violation is failing to properly document medical care to the standards set by the individual health care entity without evidence of patient harm or patient complaint.  The negligence standard is being applied to allegations of what could have happened but did not.

The remedy for what could happen is provided for in the situation where the employer takes adverse employment action against the licensee without the need for further action by the board.  The remedy is an internal investigation and subsequent adverse employment action by the employer.  However, the board does not seem to agree.  Even when adverse employment action is made based on alleged violations of internal policies and procedures by the hospital, not standard of care violations amounting to negligence as proscribed in the public health code, the board will likely proposed sanctions.

The issue is that hospital policies and procedures do not set the standard of care.  The policies and procedures are irrelevant to a determination of violation of the public health code pursuant to Michigan Law.  A hospital’s internal policies and procedures do not set the standard of care for nursing from which the determination of negligence/due care or incompetence can be made.  The hospital’s internal policies and procedures are intended solely for internal use only for the care provided within the hospital and to be accessible only to hospital staff.  Policies and procedures of defendant hospital are also “infirm” as they reflect on the “personal practice” of one institution and are, therefore, not relevant or admissible to establish negligence.  Last, the Michigan Supreme Court and the Court of Appeals repeatedly and consistently have held that, as a matter of policy, an institution’s internal rules and regulations do not establish the standard of care in either ordinary or professional negligence actions and thus are not relevant.  Compare Buczkowski v McKay, 441 Mich 96, 99 n 1; 490 NW2d 330 (1992), McKernan v Detroit CSR Co, 183 Mich 519 (1904), and Dixon v Grand Trunk WR Co, 155 Mich 169 (1908) (all addressing ordinary negligence), and Gallagher v Detroit Macomb Hospital Corp, 171 Mich App 761; 431 NW2d 90 (1988) (medical malpractice), Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 95; 284 NW2d 126 (1979) (same) Hartmann v Shearson Lehman Hutton, Inc, 194 Mich App 25; 486 NW2d 53 (1992) (accounting malpractice).  The board, however, places reliance on the hospital’s internal policies and procedures without regard to well-established Michigan case law.  The board ignores that the investigation and adverse action have already been handled internally at the employer level and pursue sanctions against the licensee.

Until the board’s policy changes, many more licensees will be facing investigations and Administrative Complaints following adverse employment actions for violating their employer’s internal policies and procedures.  If you are under investigation for your conduct or you have received a letter from a disciplinary subcommittee in Michigan or the Florida Licensing Board pertaining to your license, it is prudent to seek assistance from Chapman Law Group.  Out experienced professional licensing practice will assist you with determining the best course of action and, if necessary, represent you before the licensing board or the administrative hearing system.