How does the Texas Board of Nursing Determine that a Nurse's Error is a Minor Incident under Texas law

Licensed nurses in Texas can face various sanctions for violating the laws and rules that govern the nursing profession, including making errors in their work. Whether the Texas Board of Nursing (BON) imposes sanctions for a nursing error often determines whether the error is a “minor incident” under Texas law. 

An experienced nursing license defense lawyer can represent your interests in any disciplinary proceedings before the TBON. We can also explain your options and work to achieve a reasonable solution with the licensing board to resolve your pending disciplinary action.

Whar is a “Minor Incident” Under the Texas Nursing Practice Act

22 Tex. Admin. Code §217.16 governs “minor incidents” under the Texas Nursing Practice Act (NPA). A minor incident, error, or violation is “conduct by a nurse that may be a violation of the Texas NPA or a Board rule but does not indicate the nurse’s continued practice poses a risk of harm to a patient or another person.” 

In this section of the Code, the BON states that situations involving violations of the NPA or BON rules that qualify as minor incidents may not need to be directly reported to the BON. Essentially, if other mechanisms in the nurse’s practice setting are in place to “identify nursing errors, detect patterns of practice, and take corrective action to remediate deficits in a nurse’s knowledge, skill, judgment, training, professional responsibility, or patient advocacy,” then the incident may not be subject to mandatory BON reporting requirements. Likewise, employment-related issues concerning nurses, such as dress code violations and attendance issues, are not subject to mandatory reporting requirements. 

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At the same time, it is critical to understand the analysis to determine whether a nursing error is a minor incident. §217.16(d)(4) specifically provides that intentionally misclassifying an incident as minor to avoid mandatory reporting may violate this Code section.

Furthermore, even if certain situations fall squarely within the definition of a minor incident, any nurse with five minor incidents within 12 months must be reported to a nursing peer review board or the BON as applicable to the practice setting.

Evaluating a Nursing Error for Qualification as a Minor Incident 

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The NPA calls for individuals to review a combination of factors to determine whether a nursing error is a minor incident or if it is subject to mandatory reporting requirements. These factors include the nurse’s conduct, factors beyond the nurse’s control, and the relationship between these factors that led to the error. Under the NPA, the following step-by-step analysis is appropriate in considering whether a nursing error amounts to a minor incident.

Whether Deficits Exist in the Nurse’s Knowledge, Judgment, Skills, Professional Responsibility, or Patient Advocacy

The first inquiry is whether one or more deficits in the nurse’s knowledge, judgment, skills, professional responsibility, or patient advocacy exist. If no such deficits exist, then the incident may not rise to the level of a minor incident. 

Whether Remediation Will Address any Deficit(s)

However, if the nurse displays one or more deficits that contributed to the nursing error, one must determine if remediation will address the deficit(s). If remediation adequately addresses the deficit(s), then a remediation plan should be developed to address the deficit(s). If the nurse fails to complete the terms and conditions of the remediation plan, the nurse must be reported to the nursing peer review committee or, in settings with no such committee, the BON. 

Nonetheless, if remediation does not adequately address the deficit(s), a remediation plan is inadequate, and the nursing error cannot be considered a minor incident. In that case, the nursing error must be reported to the nursing peer review committee or, in settings with no such committee, the BON. 

Whether Factors Beyond the Nurse’s Control Contributed to the Nursing Error

If factors beyond the nurse’s control contributed to the nursing error, those factors should be reported to the patient safety committee. Without a patient safety committee, a report shall be made to the chief nursing officer.

Evaluating the Relationship Between the Nurse’s Deficit(s) and Factors Beyond the Nurse’s Control

One must next evaluate the relationship between the nurse’s contribution to the incident and any factors beyond the nurse’s control. In making this inquiry, one must first consider whether the incident would have occurred absent the factors beyond the nurse’s control. If the nursing error had not occurred but for the factors beyond the nurse’s control, then the incident may not be reviewable as a minor incident under this Code section. However, the presence of factors beyond the nurse’s control does not automatically exclude the potential for the nurse to have deficits that may require remediation. Regardless of the outcome of this inquiry, any deficits of the nurse should be addressed through a remediation plan. 

Documenting Minor Incidents

If the above analysis concludes that a nursing error is a minor incident and thus not subject to mandatory reporting, facilities and practices must maintain certain records concerning these incidents. More specifically, the following records must be maintained for at least 12 months:

  • A complete, detailed description of the incident(s), including patient(s) medical record number(s), nurse(s) involved, witnesses and, if applicable, a summary of witness statements, and any additional relevant information;
  • An evaluation of the incident(s);
  • The action taken to correct or remedy the situation; and
  • Evidence of completed remediation.

Conduct Excluded as Minor Incidents and Subject to Mandatory Reporting

Under §217.16(h), some conduct automatically falls outside the scope of minor incidents. Therefore, those actions must be reported to a nursing peer review committee or the BON, as applicable. These actions include:

  • Conduct that ignores a substantial risk that exposed or potentially exposed a patient or other person to significant physical, emotional, or financial harm;
  • Conduct that violates the Texas NPA or a BON rule and contributed to the death or serious injury of a patient;
  • A practice-related violation involving actual or suspected impairment because of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity;
  • A violation of BON Rule 217.12 with actions that constitute abuse, exploitation, fraud, or a violation of professional boundaries; or
  • Actions that indicate the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse’s continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.

Get Assistance Defending Your Nursing License Today 

Do not hesitate to get legal assistance if you are facing disciplinary action against your nursing license. Contact a Texas nursing license defense attorney immediately if you receive or anticipate receiving notice of disciplinary proceedings.

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