As a child I used to watch the Rocky and Bullwinkle Show. The brilliant talking dog, Mr. Peabody, and his pet boy Sherman would travel back in time to an important historical event and interact with historical figures. They would use the WABAC machine, pronounced “wayback.” Mr. Peabody would use the trip to teach Sherman (and the audience) a little about the historical event. Remarkably, the historical figures spoke perfect English and thought nothing of a talking dog. Time travel is impossible, of course, for we are all grounded in the present. Except, possibly, for the recently criticized California Board of Registered Nursing, which seems to be increasingly backward-looking.
The California Board of Registered Nursing, coming under intense criticism recently, has beefed up the scrutiny of its licensees, including requiring thousands of nurses to answer certain background questions or submit to fingerprinting for the first time. It is also, apparently, reviewing cases that it earlier had decided not to pursue. Using its own version of the “wayback machine,” the Board appears to be revisiting some reports of unprofessional conduct or negligence of its licensees. The Board appears to be taking a second look at older cases involving alleged negligence or misconduct that it may have earlier closed or set aside without taking action. Importantly, the Board of Registered Nursing has no statute of limitations for bringing allegations. Negligence allegations from five to ten years ago can be used to seek discipline against a licensee, even if the matter was previously closed, and very old misdemeanor criminal records can be raised against nurses who have unblemished work records despite their youthful indiscretions.
The lack of a statute of limitations creates a nightmare for nurses and also, in my view, a dilemma for the Board. Licensees may be asked to defend against allegations arising from events that have faded from memory or are based upon old incomplete records. Allegations are sometimes so old that there is a legitimate question as to how relevant they may be concerning nurses in 2010 whose performance in recent years has been exemplary. Without having a door close on old discipline allegations, nurses are tormented by issues that remain unresolved and can easily resurface despite the passage of years. However, if the Board, despite not being restricted by a statute of limitations, ignores older malpractice cases or overlooked criminal records, it can open itself up to criticism in the press of being a weak and ineffective regulator.
The Board of Registered Nursing is charged with protecting the public from incompetent, impaired and dishonest nurses. The Board’s mandate is not to punish for misconduct, because perceived misconduct is only important to the extent that such conduct raises legitimate concerns about the safety of permitting a nurse to practice. A statute of limitations not only protects licensees from having to defend against unreasonably stale allegations when important evidence may have been lost, destroyed or forgotten. A statute of limitations also creates a temporal “frame” (like a window frame) stretching from present to recent past into which some current, relevant matters fall, and from which older, less relevant matters are excluded.
Unflattering press articles over the last year have raised the legitimate concern that the Board of Registered Nursing has historically taken too long to investigate and litigate nurse discipline cases. Such delays would have been legally prevented by a statute of limitations due to palpable consequences for delays. However, now that the Board has aggressively moved to cut its backlog of cases, it is no longer in danger of losing disciplinary cases due to unreasonable delay. A statute of limitations to protect licensees is needed now, more than ever.