States are rooting out alleged "fake" nurses and penalizing them for buying fraudulent nursing school transcripts and diplomas from three now-shuttered Florida schools.
The bogus documents — which cost between $10,000 and $15,000 — allowed wannabe nurses to sit for the National Council Licensure Examination without completing the required educational or training requirements, and many managed to pass and get hired by healthcare organizations across the country.
Additionally, 25 individuals, tied to what is being called Operation Nightingale, were charged with criminal wire fraud and wire fraud conspiracy charges in January when the scheme was unveiled. If convicted, the defendants face up to 20 years in jail.
Looking ahead, what about hospitals and healthcare systems? Should hospitals fear retribution for hiring the nurses with fake degrees and allowing them to care for patients?
Five healthcare attorneys spoke with Becker's about Operation Nightingale. Three discussed the potential liability hospitals could face as fallout from Operation Nightingale continues to mount. Looking ahead, two attorneys offered some free legal advice to hospitals and healthcare systems.
Editor's note: The following responses have been lightly edited.
Khaled Klele. Riker Danzig (Morristown, N.J.): There are liability issues in a couple of respects. First, from a regulatory perspective, the hospitals who hired these individuals as RNs or LPNs technically employed unlicensed providers. From the perspective of the hospitals, they will likely argue that they were duped as well — that they were unaware of the fraud and that they had a due diligence process before hiring these individuals as nurses. Whether these defenses are successful will likely depend on the unique facts of each case.
Second, hospitals could possibly face medical malpractice actions from patients who were treated by these individuals.
Victor Moldovan. Holland & Knight (Atlanta): The employers of the (fake) nurses have some risk because they provided medical services through employees who did not have the proper credentials.
The fact that a person who should not have been providing medical services was working in a facility, regardless of the employer's intent, does raise some issues, not only with compliance with state law but whether payment received for services to patients that were cared for by the nurses was proper. The federal programs require compliance with state law to participate and bill for those services. If the provision of those services by the (fake) nurses violated state law, that could be an issue on payment.
Further, a patient could have a claim against a hospital for some kind of professional negligence. It's possible that those patients who were cared for by one of these nurses could claim the care was negligent because a nurse was not properly licensed. It could amount to both negligent care and also negligent hiring — depending on state law.
Harry Nelson. Nelson Hardiman (Los Angeles): Even though hospitals might be entitled to assume that a diploma was legitimate, they still have an obligation to verify a nurse's competence in performing essential functions — and are vicariously liable for anything that goes wrong. To the extent that any patient harm results from errors or incompetence by these fake nurses, hospitals face substantial risk of liability for failing to manage them.
Paul Schmeltzer. Clark Hill (Los Angeles): Hospitals should be proactive right now. They must identify and terminate the employment of unqualified nurses. Under the tort of negligent hiring, a healthcare facility has a legal duty to hire, supervise, train or retain competent employees. The failure to exercise those duties would constitute a direct cause of harm to patients if it was foreseeable.
Antonio Pozos. Faegre Drinker (Philadelphia): Operation Nightingale emphasizes the importance of conducting careful background evaluations.
While the alleged misconduct in this case would have been extremely difficult, if not impossible, for hospitals or other providers to detect independently, the apparent lengths to which several thousand aspiring nurses were willing to go in order to pursue careers in nursing for which they lacked the requisite qualifications is a reminder not to overlook careful evaluations of prospective hires — even amidst the current nursing shortages.