STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-255

)

MICHAEL BARLOW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, commencing at 10:00 a.m. March 27, 1980, in Pensacola, Florida.

APPEARANCES

For Petitioner: Michael I. Schwartz, Esquire

Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

For Respondent: Michael C. Barlow, pro se

6111 Lebanon Lane

Pensacola, Florida 32504

ISSUE

Whether disciplinary action should be taken against the Respondent , Michael Barlow, L. P. N., who holds License No. 38497-1.

INTRODUCTION

The Respondent, Michael Barlow, is a licensed practical nurse who was, during the period pertinent to this hearing, April 1 through May 28, 1979, employed at the Magnolias Nursing and Convalescent Center in Pensacola, Florida. An administrative complaint was filed against respondent dated August 29, 1979, alleging that he failed to chart medications, engaged in the possession of a controlled substance for other than legitimate purposes, and failed to conform to the minimal standards of acceptable and prevailing nursing practices. He requested an administrative hearing.

Prior to the hearing the parties filed a stipulation, which was entered into evidence as petitioner's Exhibit 1, without objection from respondent. Subsequent to the hearing, the petitioner submitted proposed findings of fact and conclusions of law. The respondent responded to petitioner's proposed order by letter to the hearing officer after the time allocated to the parties for memoranda without sending a copy to the petitioner. The hearing officer sent a copy of said letter to the petitioner, who objected in writing to its

consideration. The response letter was not considered in the rendition of this order.

FINDINGS OF FACT

1. The aforementioned stipulation dated March 6, 1980, provides:

   
   

   1. The Respondent does not deny the authenticity of the records at the Magnolias Nursing and Convalescent Center, Pensacola, Florida, and hereby agrees that in each and every incident contained in the administrative complaint if the records show that he did not in fact chart said medications, he does not contest the fact that he did not chart the medication as contained in Counts 1, 3, 5, 7, 9, 11, and 13 thereof.

   2. Further, the licensee maintains that he will appear at the hearing and present testimony to the effect that his failure to properly chart was due to a lack of proper orientation at the time that he was employed by the Magnolias Nursing and Convalescent Center.

      
      

2. The administrative complaint contained fourteen (14) counts seven (7) of which, Counts 1, 3, 5, 7, 9, 11 and 13, were allegations of misconduct by failure to chart medications and the remainder, Counts 2, 4, 6, 8, 10 and 14, were allegations that the foregoing respectively numbered allegations were in violation of various sections of Chapter 464, Florida Statutes.

   
   

3. The following exhibits were admitted into evidence without objection:

   
   

   1. True copies of the patient records pertaining to the factual allegations of the administrative complaint, petitioner's Exhibit 2;

   2. Pertinent parts of the Policies and Procedures Manual of Magnolias Nursing and Convalescent Center, petitioner's Composite Exhibit 3;

   3. An employer/employee agreement between Magnolias Nursing and Convalescent Center and Respondent Barlow, petitioner's Exhibit 4;

   4. An orientation check sheet for new employees signed by respondent on December 13, 1979, affirming that respondent was instructed as to the policy of the employer on medication protocol Petitioner's

      Exhibit 5;

   5. A summary of patient profiles of the amounts of Valium and Tylenol No. 3 that were signed out but not charted on the Medication Administration Record (MAR) as alleged in Counts 1, 3, 5, 7, 9, 11 and 13 of the administrative complaint, petitioner's Exhibit 6(a) and (b);

   6. A document entitled "Charted on MAR" indicating medications other than Valium and Tylenol No. 3 administered by respondent to the same patients named in Counts 1, 3, 5, 7, 9, 11 and 13 of the administrative complaint, petitioner's Exhibit 7;

   7. A drug order form showing that a patient had been authorized to take Valium 5 mg. by a Dr. Augustus. The handwriting on the order form was identified by a handwriting authority as that of Respondent Barlow rather than

   Dr. Augustus, petitioner's Exhibit 8.

   
   

4. The current director of nursing at Magnolias Nursing and Convalescent Center placed or had placed the policies and procedures manual at the nursing stations on each floor of the center and gave or had given an orientation program to each nurse, including Respondent Barlow, at the time of employment at the center. The director of nursing did not know why respondent charted drugs for the patients with the exception of the Valium and Tylenol No. 3.

   
   

5. At the hearing Respondent Barlow admitted he had read the documents submitted into evidence but stated that he did not know he was supposed to chart the controlled substances. He had previously worked at a Baptist hospital and in Fort Lauderdale, Florida, where it was not required that the licensed practical nurse sign out for Valium on the Medication Administration Record inasmuch as the pharmacy dispensed the medication. He said that he administered to the patients all medications checked out for them; that he was not supervised by a registered nurse as he now feels that he should have been; and that he had not been given proper orientation at Magnolias Nursing and Convalescent Center as to what was considered a controlled drug. The respondent further stated that there was a shortage of nurses in relation to the number of patients in the center and that he was extremely busy administering to the patients during his employment. He pointed out that the medications he properly charted were noted on the front of the form and that he was supposed to chart the Valium and Tylenol No. 3 on the back, but that he had not been required to chart said drugs in his former employment and that he did not know to turn the form over and chart the Valium and Tylenol No. 3 on the back. He said he was never instructed as to how to fill out the form. After consideration of the testimony of the parties and the witnesses and examination of the evidence, the hearing officer finds that Respondent Barlow was guilty of negligence in failing to carefully read and study the policies and procedures manual provided by Magnolias Nursing and Convalescent Center and in failing to learn the policies, procedures and protocol in use at his place of employment. The hearing officer finds that respondent failed to chart the controlled substances as required, but that his failure was unintentional and due to his negligence, crowded conditions and a heavy demanding workload.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

7. Section 464.018(1)(f), Florida Statutes, provides that disciplinary action may be taken against a nurse for "unprofessional conduct" including a departure from or failure to conform to the minimal standards of acceptable and prevailing nursing practice. Respondent Barlow violated this statute by his failure to properly chart controlled substances.

8. Section 464.018(1)(g), Florida Statutes, provides that disciplinary action may be taken against a nurse for engaging or attempting to engage in the Possession, sale or distribution of controlled substances "for any other than legitimate purposes." There is no evidence to show that Respondent Barlow violated the foregoing statute as alleged in the administrative complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law the hearing officer recommends that the respondent, Michael Barlow, be placed on probation for a period of six (6) months from the date hereof.

DONE and ORDERED this 22nd day of May, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

Mr. Michael C. Barlow 6111 Lebanon Lane

Pensacola, Florida 32504

Geraldine B. Johnson, R. N. Board of Nursing

111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

In Re: Michael C. Barlow, L.P.N. NO. FSBN 79-MIS-1 License No. 38497-1 CASE NO. 80-255

/

This cause came to be heard by the Florida Board of Nursing of the Department of Professional Regulation on June 24, 1980 in Jacksonville, Florida for the purpose of determining whether disciplinary action should be taken against the licensee pursuant to Sections 464.018(1)(f) and (g), F.S. A formal hearing, conducted at the licensee's election pursuant to Section 120.57(1), F.S., resulted in the rendering of a recommended order from the Division of Administrative Hearings.

Exceptions were filed to the Recommended Order by the Attorney representing the Board of Nursing at the administrative hearing. The licensee filed no exceptions. The Board has reviewed the complete record and each Board member has certified that she has reviewed it. Based upon such review of the complete record, the Findings of Fact set forth in the Recommended Order are accepted by the Board as its own Findings with the additional Finding that the licensee was completely unaware that Valium was a controlled substance but thought that it was a legend drug. This fact is clear and undisputed from the record of the hearing at which the licensee admitted not knowing the drug's status.

The Conclusions of Law contained in the Recommended Order are adopted by the Board as its own and are incorporated herein in their entirety by reference.

Based upon its review of the complete record, the Board does not feel that the recommended penalty of six months probation is appropriate under the circumstances. Given the seriousness of the undisputed facts, the Board hereby ORDERS and ADJUDGES that the licensee be placed on probation for a period of one

(1) year, that during said probationary period, the licensee shall successfully complete a course in charting the administration of medications to patients and further that during the probationary period the licensee assure that quarterly evaluation reports are submitted to the board by his employer.

By order of the Florida Board of Nursing, this 11th day of July, 1980.

Mary F. Henry, Chairman Florida Board of Nursing

cc: Michael Barlow

308 West Gregory Street, No. 3 Pensacola, Florida 32501

Mike Schwartz, Esquire

Docket for Case No: 80-000255

Orders for Case No: 80-000255