Legal Brief Week 1: Inappropriate Licensure, Opioid Administration, Sexual Harassment and Self-documentation

Common Legal Scenarios to Help Guide Healthcare Professionals

With this weekly column, Elite Healthcare provides readers with insight related to the legal implications of healthcare – offering practical guidance on scenarios that should be avoidable and providing suggested courses of action when appropriate. The examples provided here are those that all providers should be aware of, but many aren’t or are negligent despite their awareness. Don’t let your practice be compromised.  

Scenario 1: Inappropriate Licensure in Home Health

Those providers who are employed by a referral service company may find themselves among staff members who hold various types of medical licensure. But that does not mean that all personnel are licensed to conduct certain at-home care services to patients, depending on a particular licensure’s scope of practice. It is not unheard of for a clinician to become aware that the company is staffing personnel to conduct certain tasks without the appropriate license to perform that medical treatment on patients. Those individuals who are aware of such activity and do not take appropriate action to help prevent further inappropriate practice may find themselves facing discipline by their respective state nursing board. Most state board will in fact penalize the informed individual who does not ‘Blow the whistle.” Those professionals who find themselves in this predicament should first notify the applicable officials within the company about the problem. This communication should be done in writing and a copy of the documentation should be saved for potential future reference. If this type of action does not result in a change to the unlawful practice, the informed professional should then notify the respective state nursing board — again in writing with a second copy saved.

Scenario 2: The Healthcare Provider & Opioid Administration

Regardless of the healthcare licensure that a professional holds, if it comes to your attention that a patient is on a high dosage of morphine equivalent units of an opioid, this information should be made known to the prescribing entity. Reminders can and should be set into any facility’s electronic medical record. This is not to suggest that any patient on high dosages of opioids can be given the “cold turkey” approach. In fact, the Centers for Disease Control and Prevention recommends a slow taper, whenever possible. An important point to note is to be aware of those patients who are on high dosages and those who are also taking benzodiazepine. Exercising awareness is often the most important step to any problem solving.

Scenario 3: Healthcare Professionals & Alleged Sexual Harassment

One healthcare professional has been accused by another healthcare professional of numerous unwanted attempts at kissing for more than one year while working together. Unwanted physical contact by another human being should never be justified. However, in some cases, there may be no evidence of the unwanted and alleged inappropriate behavior, aside from the accuser’s report. In some cases, there may be no other witness who can corroborate either party’s claims and there may be no physical evidence. The complaint and discussion about it may also have not occurred for more than over the year of the alleged incidences. No contact outside the work place was said to be made and there is no exchange of phone calls, text messages, or emails. These situations invoke not just legal implications but potentially complicated workplace situations regardless of the legal outcome. Should any providers find themselves involved in any similar experience, they should limit any professional contact with the accuser to the most realistic possible extent and consider requesting a third party be available to observe whenever someone is available. All professional contact that occurs inside the workplace should be kept to the bare minimum that is consistent with the patients’ needs and welfare. Nobody should be put in the position of having to explain any future accusations.

Scenario 4: The Importance of Self-Documentation

Whenever any workplace conversation related to job performance occurs, the healthcare provider must have his or her own proof of documented evidence. Many people have found themselves in situations where they assumed that the employer’s record keeping of a potentially job-compromising event or conversation was enough of a record to provide any type of proof that they would need. However, when documentation is needed for any reason, any employee of any organization should possess a scanned and/or electronic copy of any communication that they would expect the employer to make available to them in the event of a conflict of opinion or interpretation of events. It should never be assumed that the appropriate authority with the employer will possess the needed documents expected of the employee in question, even if there is a legal obligation to do so. Being in possession of one’s own documentation is of the utmost importance, even when the reported job performance is of a positive nature. Additionally, all documentation that any professional believes could be needed for future reference should be saved in a format that is easily found and easily retained by the professional. Save all files with a unique name that is dated and provides all pertinent information. Save all similar files in an appropriate folder, and be sure that a backup of any documentation exists in case any hardware is compromised.

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