Nurse Incompetence or Gross Negligence

An allegation of incompetence or gross negligence in carrying out licensed nursing functions can be insulting on its own accord, but when it’s used to support disciplinary action it adds real injury. If you are facing disciplinary action in the form revocation or suspension of your California nursing license call our license defense attorney at (916) 596-1018. The first action you take to defend your nursing license is critical and often requires legal representation. Many of the decisions issued by the Board of Registered Nursing in which the nurse’s license is revoked often involves the nurse representing him or herself. For an affordable flat fee paid by credit card you can set yourself apart from those cases and present a strong defense at the outset. Even if you believe the evidence against you is overwhelming make the effort to explore your options during a free phone consultation. It may be possible to settle on probation for 1 to 3 years and avoid revocation of your nursing license.

Call our license defense attorney at (916) 596-1018 for a free consultation.

Definitions

The allegation against you involves several terms which must be defined before you can present a defense.

1. The Board of Nursing will state that they are empowered under Business and Professions Code Section 2761 to take disciplinary action against you because you engaged in unprofessional conduct which includes “incompetence, or gross negligence in carrying out usual certified or licensed nursing functions.”
2. Gross negligence is defined in California Code of Regulations, Title 16, Section 1442 as an extreme departure from the standard of care, which under similar circumstances, would have ordinarily been exercised by a competence registered nurse.
3. The same section defines an extreme departure as a repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client’s health or life.
4. Incompetence is defined in California Code of Regulations, Title 16, Section 1443 as the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as defined in Section 1443.5
5. Section 1443.5 stats in pertinent part:
   1. “A registered nurse shall be considered to be competent when he/she consistently demonstrates the ability to transfer scientific knowledge from social, biological and physical sciences in applying the nursing process, as follows:
      1. Formulates a nursing diagnosis through observation of the client’s physical condition and behavior, and through interpretation of information obtained from the client and others, including the health team.
      2. Formulates a care plan, in collaboration with the client, which ensures that direct and indirect nursing care services provide for the client’s safety, comfort, hygiene, and protection, and for disease prevention and restorative measures.
      3. Performs skills essential to the kind of nursing action to be taken, explains the health treatment to the client and family and teaches the client and family how to care for the client’s health needs.
      4. Delegates tasks to subordinates based on the legal scopes of practice of the subordinates and on the preparation and capability needed in the tasks to be delegated, and effectively supervises nursing care being given by subordinates.
      5. Evaluates the effectiveness of the care plan through observation of the client’s physical condition and behavior, signs and symptoms of illness, and reactions to treatment and through communication with the client and health team members, and modifies the plan as needed.
      6. Acts as the client’s advocate, as circumstances require, by initiating action to improve health care or to change decisions or activities which are against the interests or wishes of the client, and by giving the client the opportunity to make informed decisions about health care before it is provided.”

Discipline

The recommended discipline for incompetence or gross negligence in violation of Business and Professions Code Section 2761(a)(1) is revocation of the nursing license.  However, while revocation of the license is the recommended penalty the minimum penalty is revocation stayed with 3 years probation.  The minimum conditions of probation will be the standard conditions 1 through 13 (obey all laws, comply with the probation program, report in person, tolling, submit written reports, minimum practice, employment approval and reporting, supervision, employment limitations, complete nursing courses, cost recovery, violation of probation, license surrender).  If the alleged incompetence or gross negligence resulted in patient death condition 19 may be implemented which requires the nurse’s participation in ongoing counseling and therapy.

Probation Strategy

In negotiating probation it may be to the nurse’s benefit to stress their willingness to complete condition 10, completion of courses relevant to the practice of nursing with prior Board approval before enrolling.  This condition is designed to correct deficiencies in education which may have contributed to the instance of alleged incompetence or gross negligence.