LPN’s License Revoked for Pocketing Expired Medications

In past blogs, I have reviewed cases that demonstrate the powers and authority of nursing boards. Oftentimes, such a discipline is based on the nurse licensee’s unprofessional conduct. When a nurse licensee challenges a board of nursing discipline, the licensee often bases the case on a violation of his or her due process rights.

In the following case, an LPN fought a board of nursing order revoking her license.

Expired Medications Discovered by ED Nurse

Jenny, an LPN, worked for a nursing home. After suffering a “medical incident” at her home, she was taken to an ED by paramedics along with her medications that they collected. An ED nurse inventoried the medications and found several expired packs of non-narcotic prescriptions in other individuals’ names. The ED nurse notified the state department of health which began an investigation.

Jenny admitted that she had taken expired medication from work rather than disposing of them, as required, because she didn’t always have enough money to purchase them.

The department filed a complaint against Jenny with the board of nursing alleging that she had engaged in unprofessional conduct by “misappropriating drugs” by removing them from the workplace (Count I) and that she failed to meet the “minimal standards of acceptable and prevailing nursing practices” by returning the expired medications to the nursing home pharmacy (Count II).

Jenny did not respond to the complaint, nor did she attend the hearing before the board. The department’s investigation report and exhibits were admitted into evidence, as well as the complaint itself.

The board found Jenny’s conduct was unprofessional and that she failed to meet minimal standards of nursing practice. Such conduct, the board held, required a revocation of her LPN license. Jenny appealed the board’s findings.

Appellate Court Opinion

The basis of Jenny’s appeal was that the board of nursing’s finding, that she failed to meet the minimal standards of nursing practice under the nurse practice act and its rule, was not supported by the evidence.

She also alleged that the board imposed a higher penalty — a revocation — than was permitted under the act and its rule. As a result, her due process rights were violated.

First, the court noted that although Jenny did not appear for the hearing or make any arguments, a due process violation can be raised on appeal, as it is a fundamental error. It also stated that the nurse practice act and its rules were passed by the legislature to ensure that every RN and LPN meet minimum standards of practice and it delegated to the board the power to interpret and enforce the act and its rules.

However, the court cautioned, the board’s authority is not without limits. Because disciplinary statutes like the nurse practice act are penal in nature, “They must be strictly construed with any ambiguities resolved in favor of the licensee.”

As to Count II, the noted that the practice act did not include a definition of minimal standards of practice. Rather, it included conduct related to patient care.

The definition did not include any act that was …read more

Read full article here: nurse.com