Nursing board complaints: an overlooked threat during COVID-19 pandemic

In the beginning of the COVID-19 pandemic, Denise Duncan worried about staffing ratios and patient care. As more people became infected in California, one of the first states to see community-based spread, nurses in hospitals and nursing homes were stretched thin. Workers represented by Duncan’s union became concerned.

“Nurses began to call and say they weren’t able to do the things they normally do,” said Duncan, president of the United Nurses Associations of California/Union of Health Care Professionals. They couldn’t turn patients, complete paperwork or administer medications on time, she said. And at the same time, they were figuring out new ways to care for patients, doing things like using extended tubing to keep IVs outside of COVID-19 patients’ rooms to limit exposure and working in departments where they didn’t have experience because the need was so great.

“It became very apparent that we could end up with nurses being disciplined for things beyond their control,” Duncan said. “Nurses were caring for patients, even in critical care, in a way they had never cared for patients before.”

The union talked with the state hospital association, the public health department, the governor’s office, the board of registered nursing and other labor unions to make sure hospital administrators and regulators understood the new realities in healthcare workplaces and would consider those challenges before filing complaints with the nursing board.

“We wanted to be proactive and find a way to make sure the patients and the staff were covered,” Duncan said. “To date, I’m not aware of anybody being disciplined or called out for any kind of patient care issues in what we know now is an unprecedented time.”

Even so, the conditions at healthcare facilities mean nurses aren’t irrational to worry, considering that disciplinary actions can have catastrophic professional consequences. These concerns have contributed to a spate of labor actions including strikes, during which employees demanded safer staffing ratios and better protections for nurses and patients.

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Career-ending complaints

In its most recent report on nurse claims, the malpractice insurance carrier Nurses Service Organization says 54% of nursing board claims made against nurses result in disciplinary actions that range from letters and fines to—in rare cases—license revocations. And the cost to defend a nursing license rose to $5,330 in 2019, 34% higher than during 2014, according to NSO.

For many years, the number of disciplinary actions against registered nurses and licensed practical nurses has steadily climbed, though they plateaued over the past decade, according to the National Practitioner Data Bank. The tally fell 17% to 19,196 in 2020, the last year for which complete data is available. By comparison, there were 321 malpractice lawsuits filed against registered nurses and licensed practical nurses in 2020, the database shows.

“When you think about professional liability, you tend to think about lawsuits and malpractice but that’s really only part of the puzzle here. In addition to having civil lawsuits available through the civil justice system, there’s also this second layer of accountability for nursing,” said Georgia Reiner, a senior risk specialist at NSO. “They happen much more frequently than malpractice lawsuits.”

The NSO report shows that among nurses covered by them or by insurer CNA, nursing board complaints rose 6% to 1,377 in 2019 compared with 2014. The number of complaints filed against nurses to state boards of nursing is hard to determine on a national basis because each state tracks those numbers individually, Reiner said.

“We can’t really say what effect the pandemic has had on licensing actions or malpractice claims because we’re still in the midst of it,” Reiner said.

National Council of State Boards of Nursing spokesperson Dawn Kappel wouldn’t say if the pandemic has led to a change in the rate of complaints. She did, however, say that there have been more pandemic-specific complaints during the past two years, such as nurses not wearing masks or physically distancing.

“Not all complaints result in investigations and not all investigations result in discipline. Only a small number of the nation’s more than 5 million licensed nurses are disciplined per year,” Kappel wrote in an email.

Complaints against nurses run the gamut from professional misconduct to patient abuse, Reiner said. In one instance, a nurse was reported for being on her phone at the nurses’ station when an Alzheimer’s patient walked out of the unit. In another, a nurse changed a patient’s ventilator order without first getting a doctor’s approval, then misrepresented which physician gave the order, which led to the nurse’s license being suspended for two years and cost more than $8,000 to defend.

The danger in dismissing the risks from nursing board complaints is that boards “can effectively end a nurse’s career if they see fit,” Reiner said. “That’s why it’s so important for nurses to take these things seriously.”

Complaints can be anonymously filed to state nursing boards by anyone, including patients, family members and employers, which makes them more accessible and less expensive to pursue than medical malpractice lawsuits, Reiner said.

“It means that nurses just have to be aware of this risk in their everyday practice,” Reiner said.

Preparing nurses

Board complaints aren’t “something that nurses think about day in and day out,” said Karen Cox, president of Chamberlain University, a nursing and healthcare professional school. “Even though they may be increasing, it’s still a small proportion compared to the number of nurses,” said Cox, who formerly worked as a licensed practical nurse.

Nurses are most at risk when they individually make decisions, Cox said. “If they’re in a staffing shortage, they don’t have total responsibility for that. Not that their care can’t be questioned, but I think most state boards would look at that in context of what’s been going on, particularly in the past two years,” she said.

During the pandemic, nurses have had to make a lot of decisions about how to prioritize patient safety and to meet critical care needs, Cox said. And the fact that patients haven’t been able to have visitors during stretches of the pandemic means family members can’t witness the care being delivered or the pressures nurses face, she said.

That can be especially true in post-acute settings, where comfort care—such as keeping patients company or bringing them something to drink—can dominate workers’ time and where residents, some of whom can’t advocate for themselves, often live long term, Cox said.

“There’s a lot of leftover suspicion from the year when families could not see their loved ones except through the window or through a camera and couldn’t see conditions. They were just worried,” Cox said. “The pandemic has really changed the relationship between nurses and the patients they serve. In the past, when staffing was much more plentiful, when there were more resources, nurses did a variety of things.”

That’s why it’s important for nurses to be transparent with residents and patients about what kind of care they can provide and what their limitations are and to document the care they provide, Cox said. A nurse is often the face of patient care and can be an “easier target” for dissatisfied patients and family members than physicians, she said.

For the past few years, educators have been altering their curricula to focus more on clinical judgment and decision-making in preparation for changes coming to the National Council Licensure Examination for U.S. nurses in 2023, Cox said. “One of the things we’re trying to do in education is help students understand what it means to work when you’re under crisis standards of care,” she said.

“This probably won’t be our last pandemic in most people’s lifetime,” Cox said. “There’s a need to understand how to act in those situations.”