Kansas Professional Licensing Attorney Reviews Recent Court Opinion Issued In Jernigan v. State of Kansas

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On September 9, 2016, the Court of Appeals for Kansas issued its ruling in the case of Jernigan v. State of Kansas. The decision is important to healthcare practitioners in Kansas because this case afforded the Court of Appeals an opportunity to review the 2015 amendments to K.S.A. 65-2839a(b)(1) and (3). These sections govern licensees’ rights to an administrative and judicial review of the Kansas Board of Healing Arts’ (the “Board”) subpoena power. The Jernigan court discussed whether the amendment was constitutional and whether the amendment had retroactive effect. The Court of Appeals then turned to the merits of the case. The panel also discussed the authority of the Board and its power to issue subpoenas for records.

David Jernigan, D.C. is the primary owner and healthcare provider at a chiropractic care center in Kansas. Dr. Jernigan fashioned his practice to include traditional methods of chiropractic care complimented with holistic methods as well. The Board received complaints from an individual claiming that Dr. Jernigan fraudulently provided therapeutic services from which his patients derived no clinical benefit.  Accordingly, the Board issued a subpoena to Dr. Jernigan compelling the production of five (5) patients’ records in furtherance of an investigation in Dr. Jernigan’s practice. Dr. Jernigan filed a motion to quash in the district court without first filing an objection with the Board or otherwise exhausting his administrative remedies.

The Court of Appeals reviewed the amendment to K.S.A 65-2839a(b)(3). The amended statute requires a person aggrieved by a subpoena to petition the district court for relief only after exhausting all administrative remedies. The amendment took effect while the case was pending in the courts. The Court of Appeals, noting that the amendment was procedural in nature and therefore would apply retroactively under Kansas law, stated that the new law required Dr. Jernigan to appeal to the Board first. Jernigan did not do that. However, because the person to whom the Board issued the subpoena has only five (5) days to file an objection or motion to quash with the Board, applying that time to Dr. Jernigan would deprive him of a valuable right.

The Court of Appeals took the opportunity to analyze whether the amendment survived constitutional scrutiny. The panel found that it did. The Court of Appeals held that the amendment provides an opportunity to seek redress for a wrongfully issued subpoena. The Court did, however, note that the five (5) day window of opportunity to file an appeal was very narrow, leaving open the possibility that a court may revisit the issue at another time.

The Court of Appeals undertook a determination of the case upon its merits. The Court of Appeals ultimately ruled that the case must be remanded to the district court for further findings. Before doing so, the Court of Appeals reviewed the Board’s authority.  The panel reiterated that the practice of medicine in Kansas (and elsewhere) is a privilege and not a right and the Board exists to protect the public from incompetent, unscrupulous, or unethical healthcare providers.  Accordingly, the Board enjoys the authority to take disciplinary action upon a medical license after an investigation if warranted by the inquiry. Consequently, the Board possesses the power to issue subpoenas it believes will advance their statutorily imposed obligation to investigate the unethical practice of medicine.  The Court of Appeals cautioned that the Board’s authority is not unfettered.  Subpoenas may lawfully issue when Board is making an inquiry it is authorized to make when the demand for production is not indefinite, and the information sought is relevant to the investigation at hand. The Court of Appeals sent the case back to the district court to make factual findings consistent with its opinion.

Do Not Delay Seeking Legal Assistance When Served With A Subpoena In Kansas

As discussed above, time is of the essence. If you were served with a subpoena to produce records, call Kansas and Missouri Professional Licensing Attorney Danielle Sanger. Rely on her vast experience and sterling reputation to protect your livelihood. Call 785-979-4353 to schedule a consultation with Attorney Sanger today.

Kansas and Missouri Professional Licensing Attorney Discusses How Medical Professionals Can Protect Themselves Against Allegations Of Misconduct

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Allegations of misconduct in the medical profession are never easy to refute. Even if you rebut the allegations thoroughly, the stigma of the claims remain, at least for a little while. Unless one completely disproves the allegations of misconduct, then there will always be a question. As a medical professional, you do not want your employers doubting you, your patients doubting you, or your co-workers questioning you. Take affirmative steps to reduce or even eliminate the chance that someone will accuse you of wrongdoing.

A medical professional has an obligation to act competently at all times. In other words, a nurse, for instance, is competent when the nurse’s conduct meets the standard of care for nurses. Failing to satisfy that level of care is malpractice. Protect yourself against claims of negligence. Obtain physicians’ signatures for every order they make, if feasible. That reduces the chance of miscommunication leading to administering incorrect dosages or subjecting patients to unintended procedures.  Also, be sure to explain the informed consent forms to your patients thoroughly. Failure to explain the informed consent form correctly, accurately and promptly, is malpractice. Getting the patient’s signature, if the patient is competent, ensures that the patient understands the procedure in question and knows the risks of the procedure.

Thorough and complete documentation will also protect against allegations of malpractice. Nurses and other medical personnel must closely and accurately document all of the medical procedures taken, vital signs, medications administered, and other modalities applied. Otherwise, questions could arise as to the treatments given to the patient. Nurses’ notes exist so that you create a history of your patient’s treatment. Also, your notes help you recall what action you took, at what time, and under what circumstances. Good nurses’ notes not only help you remember what you did but why.

Nurses are mandatory reporters of abuse and neglect. Failure or refusal to report physical abuse, mental abuse, or sexual assault of a patient is not only an ethical violation, but it might also be a crime. Do not take unnecessary chances. If you believe your patient is suffering the abuse of any kind, you have an obligation to report it. There are dire consequences if you fail to report the abuse. While you may not desire to cast aspersions on others with whom you work or family members of your patient, you do not have the luxury of turning a blind eye. Make your report promptly and comprehensively.

Medical professional universally have the duty to maintain a patient’s medical information private. There are few exceptions. HIPAA prohibits the unauthorized disclosure of confidential information. Any questions you have related to HIPAA must be referred to your medical director or some other medical professional charged with enforcing HIPAA rules and regulations at your healthcare facility. Nurses usually have direct control over patient charts and records. Therefore, the nurses attending to patients must guard against disclosure of private and confidential information. Unlawful or unauthorized disclosure can lead to civil liability as well as professional discipline.

Nurses and other medical practitioners should use caution when administering medication.  The nurse should question doses if the order does not appear correct. You, as the nurse, are responsible for overdoses.  You must also make sure that you are giving the right medication to the intended patient with the proper timing as well.  Many mistakes and consequently patient injuries could be avoided if nurses took greater care when administering medications.

Be Diligent With Your Obligations

Kansas and Missouri professional licensing attorney Danielle Sanger understands the perils nurses and other medical professionals face every day. If you are the subject of an investigation into wrongdoing which could lead to professional discipline, call Kansas Professional Licensing Defense Attorney Sanger immediately. She has many years of experience vigorously defending the rights and livelihoods of her clients. Call Attorney Sanger today at 785-979-4353 to schedule a consultation.

Kansas Professional Licensing Attorney Advises Nurses How To Avoid Ethical Problems That Could Lead To Licensing Discipline

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Nurses play a critical role in delivering necessary medical care to all patients. We, as consumers of healthcare services, come to expect that our nurse will treat us with empathy, respect, and care. We also expect that our nurses maintain the highest degree of ethical behavior. We do not give it a second thought. However, nurses are human and can make mistakes. Nurses need to take a step back every once and a while and take inventory of who they are and how their nursing practice affects their patients, other healthcare providers, and themselves. Doing so may help you avoid licensing discipline in Kansas and Missouri.

The Kansas Nurses Association recommends that nurses should have a good foundation of nursing ethics to enjoy a long and fruitful career.  The Kansas Nurses Association enumerated five (5) points of emphasis nurses should employ to avoid ethics violations when behavior or possible decisions skirt the boundaries of ethical conduct.  Medical professionals in Kansas and Missouri can benefit from using these tips for maintaining ethical conduct.

One of the suggestions espoused by the Kansas Nurses Association is related to self-knowledge and awareness. They counsel the nurse to know who they are from a personal and professional sense. Reflecting upon their beliefs, standards, and ethics will guide the nurse when making professional ethical decisions.  Self-awareness builds confidence and empowers a nurse to speak out against unethical or questionable medical practices and have the courage to stand up for what the nurse believes.

The second suggestion made by the Nurses Association is related to the first. They recommend not only knowing your ethical beliefs but encourage nurses to live them.  The Kansas Nurses Association suggests that living your beliefs and speaking out for what is right complies with the nurse’s obligation to take care of themselves before they care for others.  Taking care of oneself allows the nurse to meet head-on the daily ethical quandaries they face. But if you do not put yourself in a position to have the skill and courage to know the difference between ethical and unethical behavior then you may not be able to correct unethical medical practices.

The Kansas Nurses Association suggests nurses “go with their gut.” In other words, your instinct will tell you when something is wrong. Intuition is strong; listen to it. Your instinct is usually right.   Acting according to your intuition is different than acting on a hunch. A hunch is a guess. Your instinct is an internal guide that can lead you to make the appropriate decision. However, you should not only rely on your gut. If you have any uncertainty as to the proper course of action, then ask someone. Talk the problem out with a respected colleague or mentor. You may easily arrive at the correct decision by simply talking the problem out.  Rely on your co-workers and superiors to make the best decision.

Keeping in mind the core practice of nursing and the primary tenant of nursing will aid you in the decision-making process. At bottom, nurses’ primary responsibility is to respect life and treat others with dignity. Nurses must respect their patients, co-workers, physicians, and other healthcare professionals. This mandate extends to the nurse and the nurse’s family as well. The Kansas Nurses Association posits that nurses must not disrespect anyone and call out others who may be disrespectful to correct the problem immediately. In the end, ethical nursing starts with respect for life.

Seek Immediate Assistance For Ethical Questions

Kansas and Missouri professional licensing attorney Danielle Sanger counsels nurses who are facing ethical questions to seek competent advice for your ethical issues. Failure to do so could lead to professional discipline. If you find yourself under investigation for unethical behavior or need advice on ethical questions, make an appointment to meet with Attorney Sanger by calling 785-979-4353 today.

Kansas and Missouri Professional Licensing Attorney Discusses Ethics Involving Life-Sustaining Treatment

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Occasionally, physicians are called upon to make a difficult decision whether to administer life-sustaining treatment to a patient.  Physicians have an obligation to preserve life, to respect life, and to do everything in their power to protect the fragility of the human condition. Equally compelling is the patient’s right to make decisions regarding their healthcare. The patient has an absolute right to autonomy in the decisions that affect their health, even if it results in death. The doctor has the duty, however, to render an accurate medical opinion so that the patient can make an informed decision. If the patient’s choice is made because of a misdiagnosis or prognosis, then the doctor makes could face claims of malpractice. Similarly, if the patient’s family and physicians disagree about life-sustaining treatment, the dispute can lead to allegations of misconduct. The doctor may face charges of incompetence before a state board of medical arts as a result of the opinion. Kansas and Missouri professional licensing attorney Danielle Sanger understands the difficulty of the situation and will fight to protect you and your livelihood from adverse licensing consequences.

In the situation wherein the physician and patient disagree about treatment, the physician must defer to the patient or the patient’s healthcare decision maker such as a health care proxy or guardian.  The physician must comply with a court order if one exists. Accordingly, if the patient wishes to receive artificial ventilation, a feeding tube, or forced hydration, then the doctor may do so with the patient’s or the patient’s proxy consent.

The patient’s decision is valid to the extent that the physician’s opinion is correct or accurate. Physicians must give proper medical advice to their patients. The doctor must base an opinion of the current standard of care in the medical community. Additionally, the physician must properly advise the patient of his or her treatment options. Failing that, the doctor has rendered incompetent medical advice and may face discipline before the board of healing arts.

Additional concerns arise when the patient is unable to make a decision regarding the patient’s health care. The family of the patient may wish to see the patient slip away without the obtrusive life-sustaining equipment. The physician, however, sits in a different posture. The physician cannot accede to the family’s wishes. The physician has an obligation to keep the patient alive by all means necessary unless and until a court intervenes and orders a contrary course of action. In that case, the physician may ethically act because the court is making a decision as though the patient was making a choice. Furthermore, the physician can face contempt of court charges for refusing to obey the court’s order and face licensing discipline because being found in contempt may indicate a lack of fitness to practice medicine.

The American Medical Association (AMA) counsels doctors to respect the dignity of the patient’s life, the patient’s right to privacy and their right to autonomy.  The AMA recommends that physicians counsel their patients to execute legally enforceable documents such as advanced directives, health care proxies, and living wills to guide the physician and the patient’s family. Knowing the patient’s preference before the decision must be made will ease the burden on a grieving family who may be too distraught to make an informed decision and the physician who can act in accordance with his or her patient’s wishes.  Treating patients in this manner can avoid needless legal battles after the loved one has passed away.

Physicians Should Seek Legal Advice If They Are Under Investigation For Misconduct

If you receive notice that you are facing discipline before the Kansas Board of Healing Arts or the Missouri Board of Healing Arts resulting from a decision relating to life-sustaining treatment, or any other allegation of unethical conduct, call Kansas and Missouri Professional Licensing Attorney Danielle Sanger immediately. Attorney Sanger has vast experience defending physicians against licensing discipline. Call Attorney Sanger today at 785-979-4353 to discuss your options.