What Evidence Can I Present in My Defense to the Board of Nursing? How Can an Attorney Help Me with the Defense?
By Barbara Forshier on October 25th, 2024 in
Board of Nursing defense allows both sides to present evidence. Nurses have a right to defend their license and the career that they spent years building. The Board of Nursing must investigate all complaints that are jurisdictional.
Your license is a property right giving you the constitutional right to Due Process. Part of Due Process is the requirement that you receive Notice of allegations against you and the opportunity to respond to those allegations. Your attorney will advise you on actions to take to mitigate the outcome of the complaint which may include:
- Complaint dismissal
- Stayed suspension
- Shorter suspension
We know nursing is a passion. Barbara Forshier of Forshier Law was an RN for 40 years before retiring in 2020. She knows how one small mistake can lead to a complaint and the risk of a license discipline.
An attorney can help you present evidence in your defense to the Board and explain which evidence may be best for your unique case.
Contact us to speak to an experienced nursing license defense attorney.
When You Meet with the Board, It’s an Investigation
An investigation does not include discovery. The Board receives and reviews all of the investigation materials that the investigator (a Board staff person or attorney general investigator) collects. The Board takes the complaint against you seriously and you must too.
Following the investigation, if the Board finds evidence that the complaint is valid, they may ask you to attend a meeting or respond in writing to the allegations. This is still considered a part of the investigation, even though after a conference with the board, you will be offered a proposed settlement which may be disciplinary.
This all happens without any discovery, which is when the board would have to provide its file. Therefore, the information you have will always be limited. The only time you have the right to the board file is if you appeal to a contested case hearing.
Why?
The Board has gathered evidence, but they have not heard your side of the story yet. An in-person meeting allows you the opportunity to provide evidence to the Board in your defense. Your meeting is an opportunity to state your case, and it’s one that you want to work with an attorney who will review your case and walk you through the steps ahead.
You Can Present Evidence in the Investigation Phase
Prior to a contested hearing – in the investigation phase – there are a few pieces of evidence that you can present in your Board of Registered Nursing defense, including:
- Employee evaluations
- Letters from colleagues
- A probation letter
- Demonstration of critical thinking in front of the Board
This evidence can demonstrate to the Board that you are competent and that you have sufficiently remediated your practice.
An attorney can help with your defense in this stage and beyond if it proceeds to a hearing. It is crucial to hire an attorney as early in the process as possible.
You Can Appeal the Disciplinary Outcome to a Contested Case Hearing
Your Board of Nursing proposed outcome may be unacceptable. If you disagree with the Board’s proposed discipline, you can appeal the findings to a contested case hearing.
What is a Contested Case Hearing?
A contested case hearing is commenced when:
- You (the nurse) and the Board cannot come to an agreement about proposed discipline.
- A trial-like process begins with an Administrative Law Judge.
The Board must show that you violated the Nurse Practice Act by a preponderance of the evidence which means it is more likely than not that the allegation is true. If you believe that the evidence against you is inaccurate or the outcome is unreasonable you have a right to reject the proposed disciplinary action and request to go to a contested case hearing.
An Administrative Law Judge will then be assigned to your case.
At this point after a confidentiality agreement is signed by the judge and agreed to by the parties, you will be able to request the board’s investigative file.
There will likely be formal discovery as in civil proceedings where you may ask the board to admit to certain facts and they can do the same with the licensee.
Both sides be required to disclose any experts they expect to call as well as what the testimony will be.
Dispositive motions, which are motions to dismiss the entire case based on lack of factual disputes will likely be brought by the board.
The judge will rule on the motions and most often the motion to dismiss is granted because all that is necessary is to show that discipline is warranted. Not whether the proposed discipline is justified.
If the case is dismissed by the judge, it circles back to the board where for the first and only time, the licensee can actually argue to the full board. The board consists of 16 members selected by the governor.
Prior to this point, a review panel usually with just one board member has heard your case and decided your outcome.
At the closed board meeting you and the board, represented by the assistant attorney general, will each have 20 minutes to argue your case and what the outcome should be.
The Board will decide to:
- Dismiss
- Order for discipline
Nurses are notified of the new decision by the Board. If you still do not agree with the decision, you can appeal to the Minnesota Court of Appeals and to the Supreme Court, if necessary.
Appeals should only be sought when the findings are inaccurate or unjust. If you appeal just to appeal, you will likely find yourself in a worse position because the board will charge you for their attorney fees and costs. Your attorney will provide guidance along the way to let you know if an appeal is in your best interest.
How an Attorney Can Help with Your Defense
The Minnesota Board of Nursing’s job is to protect the public. A nurse must provide safe, competent care.
If you have a complaint filed against you an attorney can help with your defense in a number of ways:
- Respond to inquiries: Early on in the investigation phase and prior to disciplinary hearings, an attorney can help draft responses to inquiries. An RN attorney will know how to respond to the Board and ensure that correspondence is sent in a timely manner.
- License defense: If you find yourself in a position where you must defend your license, a skilled and experienced attorney can help you protect your career.
- Be sure the attorney has represented professional licensees. Having an attorney who does not specialize in this area of practice is like having an orthopedic surgeon deliver a baby!
If you’re called to attend a hearing, it is critical to have legal counsel. Without representation, you will be at the unfortunate disadvantage of having to present your case on your own, while the board is represented by the assistant attorney general.
If you’re offered a Stipulation and Consent Order (SCO) in lieu of a Hearing, it is also critical to obtain legal advice before you sign anything. An attorney can negotiate on your behalf and ensure that the agreement is in your best interest.
It is crucial to hire an attorney with experience in nursing license defense, and preferably, someone who has experience working as a nurse.
Attorney Barbara Forshier worked as an RN 40 years. She understands the challenges that nurses face every day on the job.
If you receive a letter from the Board of Nursing requiring a response and/or conference, do not wait to get representation. An attorney will help you understand what to expect, how to respond and the best course of action.
Contact Forshier Law today to schedule a free consultation and discuss your case.