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AJN, American Journal of Nursing:
doi: 10.1097/01.NAJ.0000451689.04566.86
Legal Clinic

Lessons Learned from Litigation: Maintaining Professional Boundaries

Brous, Edie JD, MS, MPH, RN

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Author Information

Edie Brous is a nurse and attorney in New York City and the coordinator of Legal Clinic: ediebrous@aol.com. The author has disclosed no potential conflicts of interest, financial or otherwise.

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Abstract

Did the nurse act ‘beyond the authorized scope of nursing’?

Jonea Krystal Lynn Thigpen had been an RN licensed in Louisiana since 2001. She was also a principal in a company called Care Coordination Center in Lafayette. During her tenure as a home health nurse, she was assigned to care for a woman until the woman died and then provided home nursing services to the woman's husband, known in court papers as WK. In November 2010, the Louisiana State Board of Nursing received a written complaint from WK's daughter, known as KKS, stating that Thigpen was taking advantage of her father by convincing him to give her large amounts of money. Additionally, according to the complaint, Thigpen was “consistently and continuously… acting in a capacity beyond the authorized scope of nursing.” KKS provided several examples of Thigpen's behavior to the nursing board. (Throughout this article, bulleted items reflect language used in appellate-court documents.1)

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* She has a glass of wine in the evenings with patient.

* She brings her personal and business paperwork to patient's home to work on while she is caring for the patient.

* She writes and signs checks from patient's personal checking account, including payroll for workers that she has contracted, although she is not listed as a signer on the account.

* She has convinced patient to lend/gift her with money, office supplies, uniforms, refrigerator for medications, fax machine, laptop computer, file cabinets, as well as paying for rent for her office.

* She has obtained a key to patient's home as well as to his cabinet containing his checkbook.

As part of its investigation into the complaint, the nursing board sent Thigpen a letter informing her that in using the patient's credit card for personal use and drinking wine with him, she may have exceeded professional boundaries, in violation of the state's nurse practice act (NPA). The letter stated that on July 10, 2010, August 4, 2010, September 1, 2010, and October 1, 2010, she had billed for services rendered and accepted payments of $920, $910, $743.83, and $2,275, respectively, in the absence of documentation to support all the charges. Indeed, many of the charges were for services rendered while WK had been a hospital inpatient.

The nursing board also informed Thigpen that her ability to safely practice nursing may have been compromised by “chronic use of controlled medications.” As a result of its investigation, the board filed a formal complaint against Thigpen, charging her as follows:

* Respondent is unfit or incompetent by reason of negligence, habit, or other cause.

* Respondent is guilty of moral turpitude.

* Respondent failed to practice nursing in accordance with the legal standards of nursing practice.

* Respondent failed to utilize appropriate judgment.

* Respondent misappropriated items of an individual, agency, or entity.

* Respondent falsified records.

* Respondent failed to act, or negligently or willfully committed an act that adversely affects the physical or psychosocial welfare of the patient.

* Respondent exceeded professional boundaries.

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The Response

Thigpen was given the opportunity to respond, which she did in writing. In a lengthy letter to the board, Thigpen admitted to having received money from WK, in addition to the sums already noted:

* On or about 2/23/10, she accepted $5,000.

* On or about 4/26/10, she accepted $5,000.

* On or about 5/4/10, she accepted $5,577.50.

* On or about 6/3/10, she accepted $5,525.

* On or about 7/20/10, she accepted $600.

* On or about 8/20/10, she accepted a donation in the amount of $1,200.

* On or about 10/1/10, she accepted $700.

She admitted that the payments were not for services performed, claiming that they had been donations to her company, Care Coordination Center. She also claimed that WK was a silent partner and chairman of the board of the company. She further admitted to using WK's credit card to cover some of the company's expenses. Thigpen explained that she knew WK prior to becoming his nurse and that he had provided business advice to her, offering to invest in her company. Thigpen argued that she hadn't experienced personal financial gain from the company. To support that claim, she submitted evidence that her income had declined after she started the company.

Thigpen denied creating or falsifying any documents, stating that some pertinent documents had been inadvertently omitted during the board's investigation because her office had been conducting its own internal audit at the time. She provided a detailed medical history, along with documentation explaining her use of prescription pain medications. She asserted that the medications were taken under the direction and supervision of her treating physicians and denied any abuse. She also stated that her ability to perform her nursing duties wasn't compromised as a result of taking those medications and that there hadn't been any complaints of impairment in all of her years in practice.

Thigpen admitted to drinking wine with WK, but stated that such drinking didn't take place during professional nursing visits. She stated that both she and WK thought that because he was coowner and chairman of the board of her company, drinking wine outside of nursing visits “was [okay] and perfectly legal.”

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The Nursing Board Hearing

In December 2011, a formal hearing was conducted at which Thigpen represented herself. A five-member panel examined the evidence and heard witness testimony. Thigpen was found to have violated the NPA in the following ways:

* She was unfit or incompetent by reason of negligence, habit, or other cause.

* She failed to practice nursing in accordance with the legal standards of nursing practice.

* She failed to utilize appropriate judgment.

* She misappropriated items of an individual, agency, or entity.

* She failed to act, or negligently or willfully committed an act that adversely affects the physical or psychosocial welfare of the patient.

* She exceeded professional boundaries.

The violations were found by the board to be sufficient to warrant the following penalties:

* suspension of her license to practice as an RN for a minimum of nine months, during which time she was to refrain from working in any capacity as an RN

* an order that she submit to comprehensive inpatient psychiatric, psychological, and substance abuse evaluation

* a required payment to the board of a fine of $5,000

* a required payment of restitution to WK in the amount of $22,500

* a required payment of costs to the board in the amount of $3,600

* a required payment of expert witness fees in the amount of $6,000

* an order to refrain from “any involvement with and/or participation in any/all relationships of any kind with Patient WK from this point forward”

Following the nine-month period, she would have the opportunity to request reinstatement of her license if she had met all of the conditions.

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The Courts

The trial court. In January 2012, Thigpen filed a court challenge to the nursing board's action. The district court granted a stay of the board's order (placed it on hold) while it reviewed the matter. A hearing was held in September 2013 and a decision was rendered in January upholding the ruling of the board. The court found that Thigpen had violated the NPA, in that she had exceeded professional boundaries. The board's order for restitution and the fine were upheld, but the court found that the amounts of costs and expert-witness fees imposed by the board had been arbitrary. The court remanded (sent back) the matter to the board for a separate hearing to establish those costs and expenses.

The appellate court. Thigpen then appealed the judgment of the district court. She was again granted a stay of the board's order while the Louisiana First Circuit Court of Appeal reviewed the matter.

She argued that the board erred in finding that she had violated the NPA because the act didn't list nurse–patient business relationships as prohibited conduct. Although she admitted that she accepted money from and entered into a business relationship with WK, she asserted that there was not sufficient evidence to prove that she had exceeded professional boundaries. She also claimed that the board's order prohibiting her from having contact with WK violated her constitutional right of freedom of association.

KKS and WK both testified at the appeal, and WK corroborated Thigpen's assertions. An expert witness for the nursing board, who had also testified at the board hearing, testified regarding the therapeutic nurse–patient relationship. She stated that this relationship is the foundation of nursing practice, existing solely to meet the patient's needs, and that boundary violations occur when nurses attempt to satisfy their own needs rather than the patient's. She explained that there is a power imbalance between patients and nurses because patients, being in need of care from the nurse, are inherently vulnerable. The expert found that the exchange of money, Thigpen's excessive self-disclosure about her personal life (her business problems), and her consumption of alcohol with WK violated those boundaries. She described her own test of what constitutes crossed boundaries, her rule of thumb, as it were: any actions or behaviors that would not be documented in the medical record are likely boundary violations. She also testified that such violations could cause harm to the patient and that even if such actions were suggested by the patient, it was the nurse's responsibility to maintain proper boundaries.

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The Outcome

In its decision, the appellate court first discussed the scope of its power in reviewing the nursing board's decision, noting that it was permitted to reverse or modify the board's decision only if the decision was

* in violation of constitutional or statutory provisions.

* in excess of the statutory authority of the agency.

* made upon unlawful procedure.

* affected by other error of law.

* arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

* not supported and sustainable by a preponderance of evidence as determined by the reviewing court.

The court noted that the state legislature had given the nursing board the authority to discipline a nurse for “exceeding professional boundaries, including but not limited to, sexual misconduct.” (Emphasis added.) It also noted that the Louisiana Administrative Code defined professional boundaries as “the limits of the professional relationship that allow for a safe therapeutic connection between the professional and the client.” It rejected Thigpen's argument that a nurse–patient business relationship couldn't form the basis for disciplinary action because it wasn't listed in the NPA as prohibited conduct, noting that the list of prohibited conduct was “expressly nonexclusive.” The court found that her admission that she had accepted money from and entered into a business relationship with WK could be the basis for finding her unfit.

The court found ample evidence to support the board's findings and stated that “the totality of the facts and circumstances surrounding the relationship between Thigpen and WK constitute several violations of the Nurse Practice Act and the relevant Administrative Code provisions as found by the Board and affirmed by the trial court.” It upheld the entire penalty, with the exception of the order that she “refrain from any involvement with and/or participation in any/all relationships of any kind with Patient WK from this point forward.” That order was thought to exceed the board's authority and to unconstitutionally infringe on Thigpen's right of freedom of association; the court held that the board was only empowered to monitor and regulate her actions while in her role as an RN and in accordance with the NPA. The board's order for restitution and the fine were upheld, but the appellate court agreed with the trial court that the amounts of costs and expert-witness fees imposed by the board had been “arbitrarily fixed” and remanded the matter to the board for a separate hearing to establish those costs and expenses.

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Lessons to be Learned from this Case

The nurse–patient relationship is a professional one. It's not a personal friendship. The nurse's role in this relationship is that of a patient advocate. All interactions between nurse and patient exist for the purpose of advancing the interests of the patient and not the nurse. When nurses work with patients privately or in their homes, the relationship may become more intimate than in a hospital setting. Nevertheless, it is critical to maintain professional boundaries.

* Maintain professional boundaries with patients. The nurse–patient relationship is for the benefit of the patient and should never be used for personal gain.

* Proof of financial benefit may not be necessary to demonstrate personal gain.

* Even if committed with the patient's consent, a violation of professional boundaries can lead to disciplinary action for professional misconduct.

* Adhere to the rule of thumb used by the expert in this case: if actions would not be appropriate to include in the medical record, they might be a violation of professional boundaries.

* Be familiar with the NPA and nursing regulations in any state in which you are licensed and abide by their definition of professional conduct.

* Maintain professional liability insurance. Legal representation for board investigations and discipline can be costly, and individual policies may cover this expense.

* Nurses should be represented by competent counsel at all stages of nursing board investigations and proceedings. Attorneys can be found though bar associations, professional nursing organizations, collective bargaining units, TAANA (The American Association of Nurse Attorneys), or your professional liability insurance carrier. Select an attorney with experience and skill in nursing-licensure representation.

* The standard of proof required to find a nurse guilty of professional misconduct is not as stringent in an administrative proceeding as that required in a criminal case. A nursing board may discipline a nurse with evidence that is “clear and convincing” or when there is “a preponderance of the evidence.”

* A licensee investigated and disciplined by a licensing board may also be charged with the costs of the board's investigation.

* Unlike in a civil lawsuit, actual patient harm isn't necessary for a nurse to be found guilty of professional misconduct or unprofessional conduct.

* As this case demonstrates, challenges to disciplinary decisions aren't generally successful; nursing board decisions are likely to be upheld by the courts.

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Reference

1. Jonea Krystal Lynn Thigpen v. Louisiana State Board of Nursing, State of Louisiana Court of Appeal, First Circuit, No. 2013 Ca 0841.

© 2014 Lippincott Williams & Wilkins. All rights reserved.

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