NEW YORK NURSE: June 2009
Q.: Can a facility terminate a nurse for any reason such as falsification of medical records, negligence or unprofessional conduct? Who determines whether the event is unprofessional conduct or professional misconduct?
A.: New York State is an at will employer, which means that a facility is capable of both hiring an employee and firing an employee for any reason, such as a violation of policy. In a collective bargaining facility versus a non-collective bargaining facility, the employee has resources available to ensure that their rights are upheld, however, the end result may still be the loss of employment, and a report to the Department of Health and to the Office of the Professions (OP).
When an employee is terminated, resigns to avoid termination, or is suspended, the facility is mandated by New York State Public Health Law, Article 28, to notify State agencies of the occurrence. Although the law has been further defined by regulations to focus on events with adverse outcomes or those that impact patient care, the facility is still required to report the licensee. In this report, each facility is able to define infractions of the facility’s policy or reason for termination. The information that is sent by the facility to the agencies may be relatively vague or highly specific regarding the basis for the termination or suspension. This means that in their report, the facility can write that the RN has been terminated, resigned to avoid termination, or has been suspended for any reason including unprofessional conduct, negligence, fraud or falsification of documents, etc. Regardless of the content of this report, the Office of Professions is the entity that ultimately determines whether charges of professional misconduct or unprofessional conduct are to be brought against a licensee.
When the State Education Department Office of the Professions receives a report regarding a licensed individual, an investigation ensues. The outcome of the investigation is based on each individual’s situation, and the impact of patient care as determined by the Office, not as determined by the facility.
If an RN is terminated or resigns from a position to avoid termination, it is advisable that the RN reports the information to the Office of Professions at re-registration. Being forthcoming with any changes in licensee status is expected as part of our professional responsibility to maintain a good moral character.
If an RN is contacted by the Office of the Professions, they are expected to respond in a timely manner defined as within 30 days upon receipt of the request by OP. Individual circumstances may indicate the need for representation by a lawyer who has experience in handling professional misconduct situations. NYSNA suggests that carrying individual malpractice insurance, which also covers professional misconduct, is essential to avoiding legal costs during an already stressful period. Remember that the facility’s insurance policy will not be in effect for the RN in question (due to the termination or resignation), and therefore the legal costs will be the RN’s own responsibility. Remember that having individual malpractice insurance does not make an RN more of a target for lawsuits, but instead places an RN in a more secure financial state.
This is a sample of the questions NYSNA’s experts answer each day. The advice given is specific for the situation described and may not be applicable generally. If you have questions about your own work setting, it is recommended that you contact your NYSNA Nursing Representative or the Education, Practice, and Research Program, 11 Cornell Road, Latham, New York 12110-1499 or call 800-724-NYRN, ext. 282.