Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Feb. 23, 1979
Summary: Respondent worked as Licensed Practical Nurse (LPN) after license teminated thinking that it was legal to do so if she didn't wear pin. Recommend revocation of license.
78-1266.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1266
)
LAURA DRINKWATER, LPN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 24 August, 1978 at Winter Haven, Florida.
APPEARANCES
For Petitioner: Julius Finegold, Esquire
1107 Blackstone Building
Jacksonville, Florida 32202
For Respondent: Christy F. Harris, Esquire
2012 South Florida Avenue Lakeland, Florida 33803
By Amended Administrative Complaint filed 2( June 1978 the Florida State Board of Nursing (Board or Petitioner) seeks to deny reregistration of the license of Laura Drinkwater, Respondent, as a Licensed Practical Nurse (LPN). As grounds therefor it is alleged that after Respondent's license expired on 31 March 1977 she continued to practice as a nurse without being properly licensed to do so. Five witnesses were called by Petitioner, five witnesses, including Respondent, were called by Respondent and eight exhibits were admitted into evidence. Exhibit 5 was admitted for the limited purpose of showing the position of the Florida Board of Medical Examiners and not as evidence of Florida law, and Exhibit 7 was admitted only insofar as it corroborated the testimony of sworn witnesses.
No operative facts were disputed. Respondent stipulated that she was employed by the Bond Clinic as a LPN, that she failed to renew her license when it expired on 31 March 1977, that she continued to perform the same duties after
31 March 1977 as before except during the period October 18, 1977 until May 1, 1978 when she did not give injections to patients.
FINDINGS OF FACT
Laura Drinkwater, Respondent, was employed as a LPN by the Bond Clinic in Winter Haven, Florida in 1973 and has worked continuously at the Clinic since that time. At all times here relevant she assisted Dr. Erde, who specializes in obstetrics and gynecology.
Respondent renewed her license annually from 1973 through 1976 but neglected to forward her renewal application to Petitioner in time for renewal prior to April 1, 1977. Respondent continued to be carried on the records of the Clinic as a LPN after 1 April 1977 and to perform the same duties she performed prior to 1 April 1977.
On 18 October 1977 the Board of Nursing contacted the executive Director of Bond Clinic, learned that Respondent was still employed there, and advised the Executive Director (by phone) that Respondent could not continue to work as a LPN without a current license.
Respondent submitted the application for renewal of her license bearing date of 6-2-77 which was received by the Board of Nursing on 31 October 1977 (Exhibit 2).
By letter dated November 21, 1977 (Exhibit 1) to Respondent at an Alabama address, which had not been Respondent's address registered with the Board for several years, the Board advised Respondent that her reregistration was being denied because she had been working without a license and she could request a hearing on this denial of reregistration.
This letter was never received by Respondent, nor was it returned to the Board.
The Board instituted criminal proceedings, through the State's Attorney's office, against Respondent on charges stemming from her continuing to work as a LPN subsequent to the expiration of her license. This resulted in a trial at which Respondent was acquitted on 1 May 1978.
On 11 May 1978 Respondent again requested reregistration as a LPN with the Board which was denied by Board's letter dated May 19, 1978 (Exhibit 3). Thereafter by letter dated May 26, 1978 Respondent requested an administrative hearing, the Administrative Complaint was filed and these proceedings followed.
Upon receipt of information from the Board that Respondent was no longer licensed, the Executive Director of Bond Clinic contacted the Executive Director, Florida Board of Medical Examiners, who advised him that so long as Respondent was working under the supervision of a doctor at the Clinic she could, in his opinion, legally perform any medical task assigned by this doctor. Upon advice of counsel the Executive Director advised Respondent to remove indicia of LPN (cap, pin, etc.) and to cease giving injections to patients. Respondent gave no injections from 18 October 1977 until her acquittal in the criminal proceedings on 1 May 1978. Since Respondent had not worn the indicia of LPN before her license expired, no change in this regard was required. After
18 October 1977 Respondent's title was changed from LPN to Medical Assistant.
Respondent was advised by her employer that she could continue her duties as an unlicensed assistant to the doctor, perform all duties previously performed except give injections, and after her acquittal on 1 May 1978 Respondent was authorized to resume giving injections.
Several witnesses testified without objection regarding their interpretation of the Medical Practices Act, Chapter 458, Florida Statutes. Such "evidence" is disregarded as invading the province of this tribunal. All testimony of this nature purporting to show the practices of the profession is, of course, admitted.
While Exhibit 5 purported to express the opinion of the Florida Board of Medical Examiners that "a licensed M.D. may employ any person to assist him in his office and in his medical practice and he may delegate to this employee any tasks which he feels are commensurate with that employee aptitude, proficiency and demonstrated abilities," the author of that opinion retracted the broad implications of the statement under cross-examination.
Many unlicensed individuals are employed by medical doctors as their assistants and are given some training by these doctors. Some obviously receive more training than others and, regardless of the legality of the practice, many of these doctors assign tasks to these unlicensed employees that constitute the practice of nursing.
The prevailing concept in this regard is expressed in th ultimate sentence of Exhibit 5 that "Otherwise, there is nothing in the laws pertaining to the practice of medicine which prevents any licensed physician from hiring anyone whom he chooses to perform any tasks in his office which he so designates or delegates to these employees."
Unlicensed employees are normally paid lower wages than are licensed personnel and approximately one-third to one-half of the employees in doctors' offices and clinics are unlicensed.
CONCLUSIONS OF LAW
Respondent is charged with violating the provisions of Section 464.151(2) Florida Statutes which provides:
Any person practicing nursing as a registered professional nurse or licensed practical
nurse during the time the license has terminated shall be considered an illegal practitioner and shall be subject to the penalties provided herein for the violation of this chapter.
Failure of Respondent to renew her license before the expiration date automatically terminated the license. Section 464.151(1)(b) Florida Statutes.
By continuing to work as a LPN, after her license was terminated by operation of law, Petitioner contends Respondent violated the provisions of Section 464.21(1) Florida Statutes which provides in pertinent part:
The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:
(g) Willfully or repeatedly violating any of the provisions of this chapter or laws of this state.
Section 464.021(2)(b) Florida Statutes defines the practice of practical nursing to mean
. . .the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm
and the maintenance of health and prevention of illness of others, under the direction of a registered nurse, a licensed physician, or a licensed dentist.
The work performed by Respondent following the termination of her license constituted the practice of practical nursing as above defined.
Several witnesses testified relative to those functions that may be performed by an unlicensed person working under the supervision of a physician. Some of these witnesses expressed complete understanding of the Medical Practices Act while at least one physician frankly admitted a very limited knowledge of this Act. Section 458.13, Florida Statutes, defines the practice of medicine as follows:
Any person, except as hereinafter provided, shall be doomed to be practicing medicine within the purview of this chapter who holds himself out as being able to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity, or physical or mental condition or who shall offer or undertake, by any means or method, to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity or physical or mental condition.
Thereafter the statute excludes from its provisions various medical practitioners, including nurses, "when practicing their profession within the purview of the statutes applicable to their respective professions."
When informed by the Board that Respondent was no longer licensed to practice as a LPN the Bond Clinic, after consultation with the Board of Medical Examiners, continued the employment of Respondent, assuring her that she could perform all of the functions she previously performed as a LPN except give injections; but that she would now be called a medical assistant.
Section 458.135 Florida Statutes establishes the category of physician's assistant with the expressed legislative intent to "encourage the more effective utilization of the skills of physicians by allowing them to delegate health care tasks to qualified physicians' assistants when such delegation is consistent with the patient's health and welfare.
A cursory review of this section clearly establishes that the paramedic intended therein is not one personally trained by the physician to perform any medical or clerical tasks he or she may be assigned, but contemplate a well-trained specialist whose training and certification is approved by the Board of Medical Examiners. While explaining for the benefit of this Hearing Officer the wide latitude doctors have in assigning various medical tasks to their assistant, both licensed and unlicensed, none of these witnesses appeared to be talking about the physician's assistant as defined in Section 458.135 Florida Statutes.
Respondent appears to have become a pawn, albeit perhaps a willing one, in a power struggle between the medical and nursing boards regarding the employment of unlicensed personnel to perform functions meeting the definition of the Practice of Professional Nursing and the Practice of Practical Nursing as defined in Section 464.021 Florida Statutes above quoted. That issue, although a major factor affecting the testimony here presented, is not an issue in these proceedings and perforce is not met.
Respondent here is charged with willfully or repeatedly violating the provisions of Chapter 464 Florida Statutes by continuing to work as a LPN after her license had been terminated. There is no question but Respondent knowingly continued to perform the same functions subsequent to her license termination that she performed while her license was effective. However, there is also no question but Respondent was advised by her employer that she could continue to work and perform the same duties after her license had been terminated but she could not wear the indicia of such a position.
Under these circumstances it becomes more difficult to find the actions of Respondent to be in willful violation of the law, particularly when her employers were encouraged and abetted in their decision by the Executive Director of the Board of Medical Examiners. Some of Respondent's witnesses contend that if a decision is rendered that licensed personnel must be employed by physicians and clinics to perform those duties described as the practice of nursing, this will further increase the already inflated cost of health care services.
In response to this position, it is sufficient to say that it is the function of the legislature and not this tribunal to resolve the conflicting interests between the economics of the situation and the quality of health care provided. We are here concerned only with the existing statutory mandates.
From the foregoing it is concluded that Laura Drinkwater engaged in the practice of practical nursing after her registration had been terminated; however, because of the information received from the Board of Medical Examiners and passed to her that she could continue to work without violating the law, although erroneous, was sufficient to preclude a finding that her violation was willful. It is therefore
RECOMMENDED that Laura Drinkwater's application for reregistration as a licensed Practical Nurse be accepted and that her license be reissued.
DONE and ENTERED this 11th day of October, 1978.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Julius Finegold, Esquire 1107 Blackstone Building
Jacksonville, Florida 32202
Christy F. Harris, Esquire 2012 South Florida Avenue Lakeland, Florida 33803
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA BOARD OF NURSING
FLORIDA STATE BOARD OF NURSING,
Petitioner,
vs. CASE NO. 78-1266
LAURA DRINKWATER, LPN,
Respondent.
/
ORDER
This matter came on for final action by the Florida State Board of Nursing on the 12th day of December, 1978, at the Langford Resort Hotel, Corner of New England & Interlachen, Winter Park, Florida 32789.
The Board, having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of hearing proceedings, the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer, adopts the Findings of Fact and Conclusions of Law of the Hearing Officer and IT IS THEREFORE:
ORDERED AND ADJUDGED that the licensed practical nurse license number 18032-1 of the Respondent, Laura Merrit Drinkwater, be reinstated. Upon reinstatement it is ordered that said license be suspended for a period of one
year. However, it is ordered that said suspension be and the same is hereby stayed and the licensee be placed on probation for the period of one (1) year with the following terms and conditions:
That the Respondent refrain from violation of any law, Federal, State, or Local.
That the Respondent read and understand the Nurse Practice Act.
That the Respondent schedule a conference with Geraldine B. Johnson,
R.N. , Investigation and Licensing Coordinator, of the Florida State Board of Nursing, for interpretation of the Nurse Practice Act.
That the Respondent inform, in writing, the Florida; State Board of Nursing immediately of any change of address or change of employment.
That the Respondent have her employer to provide the Board with a written satisfactory evaluation of her nursing performance every three (3) months during the period of this probation.
The failure to comply with the terms of said probation shall be deemed a violation.
DONE AND ORDERED this 15th day of December, 1978, at Jacksonville, Florida.
FLORIDA STATE BOARD OF NURSING
BY:
Dorothy C. Stratton, R. N. President
BOARD SEAL
ccs: Laura Merrit Drinkwater
215 Bennett Street Auburndale, Florida 33823
Christy F. Harris, Esquire 2012 South Florida Ave.
Lakeland, Florida 33803
Julius Finegold, Esquire Attorney for the Board
Docket for Case No: 78-001266
Orders for Case No: 78-001266
| Issue Date |
Document |
Summary |
|
Dec. 15, 1978 |
Agency Final Order
|
|
|
Oct. 11, 1978 |
Recommended Order
|
Respondent worked as Licensed Practical Nurse (LPN) after license teminated thinking that it was legal to do so if she didn't wear pin. Recommend revocation of license.
|
