STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 75-581

) BERNICE V. HEISE BROWN, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came up for hearing at the Hillsborough County Courthouse, Tampa, Florida, at 9:00 a.m., July 23, 1975, before Kenneth G. Oertel, Director Division of Administrative Hearings.

1. The Respondent, Bernice Brown, was charged in an Administrative Complaint filed by the State Board of Nursing, which sought to suspend her license as a Registered Nurse for a period of two years. That Complaint alleged that on or about December 29, 1974, while the licensee was on duty as a registered nurse in the Clearwater Convalescent Home, Clearwater, Florida, she did remove a critically ill patient, Doris Martin, from her room and place her in a dark room under restraints without anyone in attendance. The Complaint further alleges that the licensee knew that the patient had an iliostomy bag which was not operating properly and was in need of nursing care; that the patient was discovered by personnel of the convalescent home after 11:00 p.m., in a urine-soaked bed with the tube to her iliostomy bag plugged and in a non- operating condition. The patient was described in the Complaint as hysterical and wet, and her arms were bruised from the restraints. The Complaint states that the licensee would be guilty of violating Florida Statutes, Section 464.21(1)(b), based on the above allegations.

   
   

2. Section 464.21, Florida Statutes states:

   
   

   1. The Board shall have the authority to deny a license to any applicant or discipline the holder of a license or other authority to practice nursing in the state whose default has been entered or who has been heard and been found guilty by the board of any of the following:

      (b) immoral or unprofessional conduct.

      
      

3. The evidence as presented in this hearing showed that the patient, Doris Martin, was discovered in the therapy room of the convalescent home by nurse Pauline Martin. Ms. Martin stated that the patient was in a wild state, with her wrists restrained to the sides of the bed. She was also in a vest posy, which is a type of restraining device. Nurse Martin stated the bed was totally soaked from urine from the head to the foot. The patient's iliostomy drainage tube, which directly drains urine from the bladder to a plastic

   container attached to the bed, was plugged and not operating properly. Nurse Martin stated the patient told her she had complained to the licensee, Helen Brown, that her iliostomy tube was not functioning properly, but that nothing was done to correct the malfunction. Nurse Martin stated she changed the bedding for the patient, put her back in her wing where the patient then went to sleep. She saw no bruises on the patient's arm. Then Nurse Martin asked the Respondent why the patient was in the therapy room. She said the Respondent, Brown, did not deny putting her in the room, but told her that it was a long story as to why she was required to put the patient in that room. The therapy room is not normally used for patients, but for equipment storage. Nurse Martin stated that the patient was not hysterical when she found her, nor was she critically ill. Nurse Rose Esther Rhodes came on duty at approximately 11:00

   p.m. on December 29 and had gotten a report from the Respondent, Nurse Brown, that the patient had been difficult during her shift and had been placed in the therapy room under restraint. She stated that when she went to check on the patient in the therapy room, shortly after 11:00 p.m., she found the patient hysterical, with her wrists bruised, and complaining of pain in her arms. The bedding was soaked with urine and the iliostomy tube was plugged. She said they flushed out the tubing and after that, it worked properly. Nurse Brown, the Respondent, testified on her own behalf and stated that the patient had been particularly difficult all evening. She said since about 5:00 or 6:00 pm. of that day, the patient had been in and out of her bed, that the floor and bedding she was in were soaked with urine and that she was continually taking off and putting on her iliostomy bag and manipulating the tubing; also that there was a black pail at the side of her bed and that the floor around this pail was black and wet and that she assumed that the wetness around the pail and that area was caused by the patient in taking apart her iliostomy bag and tubing and having the urine drain upon the floor and in this pail. She stated the unruliness of this patient continued until about 10:30 p.m. and got to a point where the two other patients in the room with the patient, Doris Martin, would not go back into the room because of her behavior. The Respondent, Helen Brown, stated that she made a decision that the staff had already devoted too much time taking care of Doris Martin and that she decided to remove her to the therapy room so that things could be settled down on her wing. She directed one of the other nurses to put the patient in a bed, restrain her, and wheel her to the therapy room, which was done. She stated due to the behavior of the patient and the difficulty she was causing she believed, and still believes, this was the appropriate thing to do.

   
   

4. This matter, being a revocation of a professional license, is similar in nature to a criminal charge. See State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In that case, the Florida Supreme Court likened a license revocation matter to the charge of a criminal offense. With that in mind, it must be stated that the Administrative Complaint filed in this case is somewhat deficient in that it does not adequately advise the licensee of the nature of the charge. The Administrative Complaint in paragraph 3 states that: "Based on the above allegations, the licensee would be guilty of violating Florida Statutes, Section 464.21(1)(b)." Since that section of the above statute includes both immoral or unprofessional conduct, the charge against the Respondent is not stated with sufficient clarity that would support a charge in a criminal case. The Respondent, who was not represented by attorney, did express some dismay as to knowing what she was being charged with or what she had done that was wrong. In any event, the evidence does not justify a finding that the Respondent committed unprofessional conduct. Perhaps she did exercise poor judgment in placing this patient alone in a darkened room when she might have been able to place a hospital aide to sit with her, but there was no evidence presented which showed, as charged, that the licensee knew

the patient's iliostomy tube was not functioning properly. The nurses who later assisted the patient testified that the iliostomy tube was clogged and not functioning properly when she was discovered shortly after 11:00 p.m. However, the licensee testified that the patient's iliostomy tube was functioning properly when she was placed in the room, but that the patient's manipulating this tube had been the original source of trouble. No testimony was presented on behalf of the Board from any party who had seen the patient or was aware of her condition at the time the patient was placed in the therapy room.

Therefore, it must be concluded that the licensee was not aware of any malfunctioning in the patient's iliostomy bag or tube at the time the patient was placed in this room. Since the patient was not critically ill as charged, and was placed in the therapy room at approximately 10:30 p.m. only a half hour before the new shift arrived, it cannot be concluded Nurse Brown's judgment was unprofessional.

It is, therefore recommended the Complaint in this matter be Dismissed. Entered this 23rd day of July, 1975, in Tallahassee, Florida

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mrs. Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Bldg. B Jacksonville, Florida 32211

Julius Finegold, Esquire 1130 American Heritage Bldg. Jacksonville, Florida 32202

Ms. Bernice V. Heise Brown 1310 Parkview Lane

Largo, Florida 33540

Docket for Case No: 75-000581

Orders for Case No: 75-000581