STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION )
(BOARD OF NURSING) )
)
Petitioner, )
)
vs. ) CASE NO. 81-1887
)
REBECCA LAEL CALHOUN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings This hearing was conducted on September 9, 1981, in the Richard P Daniel Building, 111 Coast Line Drive East, Jacksonville, Florida. This Recommended Order is being entered after receipt of the transcript of the proceedings on November 17 1981.
APPEARANCES
For Petitioner: W. Douglas Moody, Jr., Esquire
Department of Professional Regulation
119 North Monroe Street Tallahassee, Florida 32301
For Respondent: Lacy Mahon, Jr., Esquire
305 East Adams Street Jacksonville, Florida 32202
ISSUES
The matters presented for consideration in this instance concern an Administrative Complaint brought by the Petitioner against the Respondent seeking to suspend, revoke or take other disciplinary action against the Respondent's license, in particular, against her license as a Registered Nurse. The substance of the Administrative Complaint is contained in five (5) counts.
Count I to the Administrative Complaint alleges that on or about March 10, 1981, Respondent signed out a controlled substance, to wit: two (2) ampules of Demerol, between the approximate hours of 7:00 P.M. to 7:15 P.M. for a patient, DeFrisco [sic]. DeFrisco [sic], reputedly states that she did not receive the Demerol. Based upon the foregoing alleged facts, Respondent has purportedly violated Subsection 464.018 (1)(d), Florida Statutes (1979), by making a false report of record which she knew was false and in addition has violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with the minimal standards of acceptable and prevailing nursing practice. 1/
Count II to the Administrative Complaint alleges that on or about March 5, 1981, the Respondent administered a controlled substance, to wit: Demerol, in excess of that ordered by the attending physician and for that reason violated Subsection 464.018(1)(f), Florida Statutes (1979), in that she failed to conform with the minimal standards of acceptable and prevailing nursing practice. 2/
Count III alleges that the Respondent wasted, without a witness, certain controlled substances, in violation of hospital policy, as follows:
On 2/28/81 Dilaudid, 1 mg
On 2/23/81 Demerol, 100 mg.
On 2/22/81 Demerol, 50 mg.
On 2/16/81 Demerol, 100 mg.
On 2/22/81 Morphene Sulphate 3 mg.
On 1/28/81 Demerol, 25 mg.
On 1/22/81 Demerol, 100 mg.
Based upon these alleged facts, the Respondent purportedly violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with minimal standards of acceptable and prevailing nursing practice.
Count IV to the Administrative Complaint alleges that on or about March 5, 1981, Respondent signed out a controlled substance, to wit: Demerol, at approximately 9: 02 A.M., and at 12:15 P.M., for the use of patient Theodora Durham. It is further alleged that patient Durham states that she did not receive the above mentioned Demerol. Based upon those alleged facts Respondent purportedly violated Subsection 464.018(1)(d), Florida Statutes (1979), in that she made a false report of record which she knew was false. Further, Respondent, based upon those facts, has allegedly violated Subsection 464018(1)(f), Florida Statutes (1919), by failing to conform with minimal standards of acceptable and prevailing nursing practice
Count V alleges that on or about April 12, 1981, the Respondent reported to her place of employment, Beaches Hospital, under the influence of alcohol to the extent that it affected her body coordination Further, it is contended that Respondent's supervisor; Joyce Strarnes, did not allow her to complete her work shift because she, Respondent was unable to function safely and to conform with minimal standards of acceptable nursing practice Based upon these allegations, the Respondent has purportedly violated Subsection 464018(1)(f), Florida Statutes (1979), for failure to conform to the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established. 3/
FINDINGS OF FACT
This case is presented for consideration based upon the aforementioned Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Nursing, against the Respondent, Rebecca Lael Calhoun.
The Petitioner, agency, is a regulatory body which has been granted the authority by the State of Florida to license, regulate and discipline those persons who practice nursing in the State of Florida.
The Respondent Rebecca Lael Calhoun has been issued a license to practice as a Registered Nurse in the State of' Florida and at all times pertinent to this Administrative Complaint, has held that license issued by the Petitioner.
Calhoun was employed at St. Luke's Hospital, in Jacksonville, Florida, between the months of December, 1980, and March 10, 1981. Her position with that institution was that of Registered Nurse.
On March 10, 1981, the Respondent worked at the St. Luke's Hospital on Ward 1-C. In that capacity, she had responsibility for the medication cart where controlled substances and other medications were kept for patient use.
One of the patients who was on Ward 1-C on March 10,1981, and for whom controlled substances and other medications were made available by physician's orders was one Barbara L. DiFrancesco. On that date, DiFrancesco had an operative procedure known as dilatation and curettage performed and after the procedure, was brought to room 161, which was a room on the ward where the Respondent was on duty. It was 4:30 P.M. when the patient was placed in that room.
After DiFrancesco returned to her room, between the hours of 4:30 P.M. and 8:00 P.M. on March 10, 1981, she did not receive any form of controlled substance, in particular, Demerol. The Demerol was in fact removed from the hospital inventory in DiFrancesco's name and Respondent knew that the patient did not receive the Demerol. Nonetheless, the Respondent documented that the patient DiFrancesco had the substance withdrawn for the patient's benefit and had received such a controlled substance.
The false documentation was discovered by Kathleen Lawson, Assistant Director of Nursing at St. Luke's Hospital who was investigating possible "discrepancies" on the part of the Respondent in the recordation of entries on the controlled substance forms kept by the hospital.
On the evening of March 10, 1981, Lawson checked the controlled substance form at approximately 7:00 P.M., which pertained to Ward 1-C where the Respondent was working. This controlled substance form may be found as a part of the Petitioner's Composite Exhibit No. 1, admitted into evidence. (The entries on that form pertain to the time of the sign-out, name of patient, room number, nurse's signature, dosage amount, amount of wastage, if any, and signature of a witness to wastage, and the description of the medication or controlled substance signed out by the practitioner)
Lawson's review of the controlled substance form on March 10, 1981, at around `1:00 P.M. did not indicate that Demerol had been signed out for the benefit of DiFrancesco; however, when Lawson returned to Ward 1-C at approximately 7:15 P.M. on that same evening, she observed an entry on the controlled substance form which had been made by the Respondent. This entry indicated that Demerol in the amount of 50 mg. had been signed out for the benefit of DiFrancesco at approximately 5:30 P.M.
When confronted with the discrepancy of having failed to make a timely entry of the sign-out of the controlled substance, Demerol, for the benefit of the patient DiFrancesco, that is to say the fact that the 7:00 P.M. check revealed no sign-out and a 7:15 P.M. check revealed a sign-out post-timed to 5:30 P.M.; the Respondent was than asked to perfect all necessary documentation to conform all records on the question of the administration of a controlled
substance for the benefit of the patient DiFrancesco. In response to this request, the Respondent made an entry on the nurse's notes portion of the patient DiFrancesco's medical chart, to the effect that at 5:00 P.M. Demerol in the amount of 50 mg., IM, intramuscular, was administered to the patient DiFrancesco for "cramping." A copy of those nurse's notes may be found in Petitioner's Composite Exhibit No. 3, admitted into evidence.
Some of the aforementioned "discrepancies' that officials at St. Luke's Hospital had been concerned about in terms of the Respondent's reporting procedures pertained to the controlled substance form, related to wastage of Schedule II controlled substances. St. Luke's Hospital had a written policy dealing with this subject as may be found in Petitioner's Exhibit No. 6, which is a copy of that policy related to unit doe drug distribution. That written policy was to the effect that when Schedule II controlled substances are wasted, or partially administered to the patient, the wastage or partial administration is recorded on the controlled substance form through the name of the patient; room number; the nurse who wasted material; the material; the amount injected and/or the amount wasted. The substance is shown to a witness in the process of recording the incident description as set forth herein. Pursuant to the written policy, there is also a line on the controlled substance form for the placement of . Off initials of that person who witnessed the accountability of the wasted Schedule II controlled substance, when the substance is only partially administered.
In addition, the Respondent and other nurse practitioners in the hospital underwent an orientation which apprised the Respondent and others of the matters pertaining to wastage of Schedule II controlled substances as set forth in the written procedures and the utilization of the controlled substance form. Also, a customary practice within the hospital was established in which totally wasted narcotics were witnessed by initials placed by the witness on the controlled substance form, in the same fashion as partially wasted substances. Having been made aware of the requirements of that drug distribution handout, the utilization of the controlled substance form and custom, the Respondent did, in fact, on occasion have wastage which was recorded on the controlled substance form and initialed by another nurse practitioner as may be seen in a review of Petitioner's Composite Exhibit No. 1, which is a series of controlled substance forms for various dates.
Notwithstanding her knowledge of procedures and customs within the hospital, there were a number of dates in which the Respondent failed to have a witness initial the wastage of Schedule II controlled substances Those occasions were as follows:
Date: January 28, 1981 Patient: Pinkney
Dose: 50 mg. Demerol Waste: 25 mg. Demerol Witness: No entry
Date: February 16, 1981 Patient: Gression
Dose: 100 mg Demerol Waste: 100 mg. Demerol Witness: No entry
Date: February 22, 1981 Patient: Perry
Dose: 50 mg. Demerol Waste: 50 mg. Demerol Witness: No entry
Date: February 23, 1981 Patient: Fraser
Dose: 100 mg. Demerol Waste: 100 mg. Demerol
Witness: An entry made to the effect that a witness was unavailable
Date: February 28, 1981 Patient: Bergdorf
Dose: 1 mg. Dilaudid Waste: 1 mg. Dilaudid Witness: No entry
There were no facts presented other than those related to the patient Fraser on the presence of a witness to the events of wastage and destruction of the Schedule II controlled substances.
In addition to the incident with DiFrancesco, there were two other occasions in which the Respondent had signed out a controlled substance and indicated giving that controlled substance to a patient, when in fact the patient did not receive the controlled substance. This pertained to incidents on March 5, 1981, involving a patient on Ward 1-C, where the Respondent was employed as a Registered Nurse at St. Luke's Hospital.
On the aforementioned date, i.e., March 5, 1981, the patient Theodora Durham was in the hospital for procedures related to curettage and packing of the uterus. She was assigned to Room 158 on Ward 1-C as her patient's room.
The controlled substance sign-out form for March 5, 1981, which is found as part of Petitioner's Composite Exhibit No. 1, indicates that at 9:02 A.M. and 12:15 P.M., Demerol in the amount of 50 mg. on each occasion was signed out for the benefit of the patient Durham. The sign-out and other entries were made by the Respondent. The Demerol was in fact removed from the hospital inventory.
The patient's chart, a copy of which may be found as Petitioner's Composite Exhibit No. 2, admitted into evidence, also indicates nurses notes authored by the Respondent stating that the 50 mg. amounts of Demerol were administered intramuscular to the patient Durham at 9:00 A.M. and 12:00 Noon. In fact, the patient Durham never received the Demerol on either of the occasions referred to herein. The Respondent knew the patient had not received the Demerol.
Following her employment at St. Luke's Hospital, the Respondent received employment at Beaches Hospital in Jacksonville Beach, Florida. On April 12, 1981, she reported work as a Registered Nurse at Beaches Hospital for the 11:00 P.M. to 7:00 A.M. shift. During the transition from the prior shift into the shift of the Respondent, two (2) fellow employees noticed the aroma of what they felt to be alcohol on the breath of the Respondent.
The employees having reported their observation to the nurse supervisor, the Respondent was summoned into the office of the nurse supervisor and under questioning admitted that she had been "drinking." This response was related to the issue of whether the Respondent had been consuming an alcoholic beverage. The nurse supervisor detected an unkempt appearance about the person of the Respondent and the fact that the Respondent's eyes were bloodshot Following this discussion, the Respondent was asked to leave the hospital because she could not afford patient care to those patients on her ward, due to the fact that she had been consuming an alcoholic beverage before coming on duty which was contrary to the policy of the hospital.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, pursuant to Subsection 12057(1), Florida Statutes.
During the course of the hearing, objection was made to the entry of Petitioner's Exhibit No. 3, and certain proffered testimony concerning that exhibit offered by the witness Kathleen Lawson. Ruling was reserved on these matters until the entry of the Recommended Order. Having considered those items and argument of counsel, Petitioner's Exhibit No. 3 is admitted and that testimony of the witness Kathleen Lawson under proffer is admitted.
The Respondent had moved to dismiss Count I for grounds as set forth in the transcript and in particular based upon the fact that the Administrative Complaint refers to treatment of patient DeFrisco [sic], when in fact the patient at issue was DiFrancesco. Ruling on the Motion to Dismiss was reserved pending the entry of the Recommended Order. Having considered the Motion to Dismiss Count I, the same is hereby denied.
Respondent had objected to the entry of Petitioner's Exhibit No. 4 and ruling was reserved on the admissibility pending the entry of the Recommended Order. Having considered this matter and the argument of counsel, Petitioner's Exhibit No. 4 is admitted.
Count I to the Administrative Complaint charges the Respondent with making a false report or record known to be false and failing to conform with minimal standards of acceptable and prevailing nursing practice related to the treatment of the patient DeFrisco [sic]. This reference to DeFrisco [sic] is determined to mean DiFrancesco and the proof related to DiFrancesco is allowed.
The act by the Respondent of falsely documenting the controlled substance record in the sign-out of Demerol for the purported benefit of the patient DiFrancesco and the additional false entry in the patient's chart to the effect that the controlled substance Demerol had been administered to that patient, knowing that these entries were false in that the Respondent knew that the patient did not receive the substance even though it was removed from inventory, constituted a violation of Subsection 464.018(1)(d), Florida Statutes (1979), and in addition, establishes that the Respondent failed to conform with minimal standards of acceptable and prevailing nursing practice, in violation of Subsection 464.018(1)(f), Florida Statutes (1979). These violations subject the Respondent to the penalties set forth in Subsection 464.018(2), Florida Statutes (1979).
As in the instance of Count I, Count IV accuses the despondent of falsifying records related to her patient Theodora Durham and failing to conform
with the minimal standards of acceptable and prevailing nursing practice related to that patient.
The Respondent did in fact indicate in the controlled substance form and in the patient's chart, the sign-out of and administration of Demerol to the patient Theodora Durham, at a time when Durham did not receive this controlled substance Demerol. The Respondent knew that the patient did not receive the controlled substance and consequently knew that the entries were false. The Respondent, therefore, violated Subsection 464.018(1)(d), Florida Statutes (1979) by making a false report or record known to be false and in turn violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with the minimal standards of acceptable and prevailing nursing practice. For these violations, Respondent is subject to the penalties set forth in Subsection 464.018(2), Florida Statutes (1979).
By Count III to the Administrative Complaint, the Respondent is accused of violating Subsection 464018(1)(f), Florida Statutes (1979), for failing to conform with minimal standards of acceptable and prevailing nursing practice, in that she wasted controlled substances without a witness which is a violation of hospital policy.
The facts as related herein pertaining to patients Pinkney, Gression, Perry, Fraser and Bergdorf, indicate that the Respondent failed to comply with the written hospital policy or its unwritten custom of having initials placed on the controlled substance form when the Schedule II controlled substances related to those patients were wasted, totally or partially. The testimony does not reveal whether witnesses were in fact in attendance when those substances were wasted, other than a comment on patient Fraser that a witness was unavailable, nor is there testimony to indicate that the failure of a witness to attend when wastage occurs and is discarded or failure to conform to the written policy and unwritten custom of having those matters witnessed to the extent of initials placed on the controlled substance constitute violations of written laws or rules. Likewise, the failure of attendance of a witness at the wastage and disposal of Schedule II controlled substances or failure to initial the controlled substance form by a witness on those occasions are not matters which are so obviously at odds with the idea of responsible practice on the part of the nurse practitioner as to be considered contrary to the minimal standards of acceptable and prevailing nursing practice, without competent opinion testimony establishing these standards. No testimony was presented and, therefore, it is concluded as a matter of law that the Petitioner has failed to prove that the Respondent has violated Subsection 464.018(1)(f), Florida Statutes (1979), related to the failure to have a witness in attendance at the destruction of the wasted Schedule II controlled substances and to have a witness, by initial, verify the wastage and destruction on the controlled substance form.
Count V alleges that the Respondent reported to her place of employment under the influence of alcohol to the extent that it affected her body coordination and by so acting, failed to conform with the minimal standards of accentable and prevailing nursing practice, in which case actual injury need not be established, in violation of Subsection 464.018(1)(f), Florida Statutes (1979).
Although the proof did not establish that the Respondent was under the influence of alcohol to the extent that it affected her body coordination, the proof did demonstrate that the Respondent, in violation of policies related to health care, reported to her place of employment as nurse practitioner after having consumed an alcoholic beverage, still having the effects of the
consumption in evidence, to the extent of alcoholic breath, bloodshot eyes, and unkempt appearance, and it is, therefore, concluded as a matter of law that the Respondent failed to conform to minimal standards of acceptable and prevailing nursing practice within the moaning of Subsection 464.018(1)(f), Florida Statutes (1979), and is subject to the penalties set forth in Subsection 464.018(2), Florida Statutes (1979)
Based upon a full consideration of the Findings of Fact, argument of counsel 4/ and the Conclusions of Law reached herein, it is
That a final order be entered finding the Respondent guilty of those violations alleged in Count 1 pertaining to the patient DiFrancesco and a suspension of sixty (60) days be imposed for those violations; finding the Respondent guilty of those violations alleged in Count IV pertaining to the patient Durham and a suspension of sixty (60) days be imposed for those violations, to run consecutively with the penalties imposed in Count I; finding the Respondent guilty of the violation alleged in Count V and a suspension of fifteen (15) days be imposed for that violation, to run consecutively with the penalties imposed in Counts I and IV; and dismissing Count III.
DONE and ENTERED this 10th day of December, 1981, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1981.
ENDNOTES
1/ Initially, the Petitioner sought by this prosecution to discipline the Respondent for acts related to a patient Johnson, which purportedly were related in Count I to the Administrative Complaint. In the course of the presentation by the Petitioner, no evidence was presented related to a patient Johnson and the Petitioner withdrew and dismissed accusations against the Respondent which were related to a patient Johnson. Therefore, the matters related to the patient Johnson stand dismissed, and will not be further referred to in the course of this Recommended Order.
2/ The Petitioner presented no proof related to this count and withdrew and dismissed that count at the conclusion of its case. Therefore, no further reference will be made in the course of this Recommended Order to Count II.
3/ The Petitioner, in the person of counsel, had filed an Amended Administrative Complaint with the Division of Administrative Hearings; however, at the commencement of the hearing, the Petitioner's counsel stated that the Amended Administrative Complaint would not be pursued through the process of this hearing. Therefore, no further consideration will he given to the Amended Administrative Complaint, through the entry of this Recommended Order.
4/ The Petitioner has submitted a proposed recommended order and that proposal has been reviewed prior to the entry of this Recommended Order. To the extent that the matter is consistent with the Recommended Order, it has been utilized. To the extent that it is inconsistent with the Recommended Order, it is hereby rejected.
COPIES FURNISHED:
W. Douglas Moody, Jr., Department of Professional
Regulation
119 North Monroe Street Tallahassee, Florida 32301
Lacy Mahon, Jr., Esquire
305 East Adams Street Jacksonville, Florida 32202
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING
In Re: | CASE NO. | 0013245 |
REBECCA LAEL CALHOUN, R.N. | 0014880 | |
LICENSE NO. 57651-2 | DOAH NO. | 81-1887 |
/ |
FINAL ORDER
THIS CAUSE came to be heard by the Florida Board of Nursing of the Department of Professional Regulation on February 4, 1982, in Tampa, Florida, for the purpose of terminate whether disciplinary action should be taken against the license of the licensee. The Administrative Complaint filed against the licensee alleged multiple violations of Section 464.018(1)(d) and (f), F.S. At the licensee's reguest a formal hearing was held before Charles Adams, a Hearing Officer with the Division of Administrative Hearings pursuant to 120.57(1) F.S. In due course a Recommended Order was issued by the Hearing Officer, a copy of which is attached to this Final Order and incorporated herein by reference. The licensee was present and represented by counsel, Mr. Lacy Mahon, Esquire.
Exceptions to the Hearing Officer's Recommended Order were filed by the Department. The licensee did not file any Exceptions. Having considered the entire record. the Exceptions filed, and the arguments of counsel, the Board finds as follows:
FINDINGS OF FACT
The Hearing Officer's Findings of Fact as set out in the attached Recommended Order are supported by competent, substantial evidence in the record, and the Board hereby adopts them as its own Findings of Fact as if they were set out in this Order.
CONCLUSIONS OF LAW
The Hearing Officer's Conclusions of Law set out in paragraphs 1 through 8 under Conclusions of Law in the attached Recommended Order are hereby adopted by the Board as its own Conclusions of Law as if they were set out in this Order.
After reviewing the entire record in this matter. the Board specifically rejects the Hearing Officer's recommended penalty that the licensee's license be suspended for sixty (60) days for being guilty of Count I; that the licensee's license be suspended for sixty (60) days for being guilty of a violation of Count IV; and that the licensee's license be suspended for fifteen (15) days for being guilty of Count V, such suspensions to run consecutively, and in place thereof substitutes the following:
That the license of the licensee to practice professional nursing in Florida be and is hereby REVOKED.
By order of the Florida Board of Nursing, this 4th day of February, 1982.
MARY F. HENRY, Chairman Florida Board of Nursing
Copies furnished to:
Charles Adams. Esquire William Furlow, Esquire Rebecca L. Calhoun
Lacy Mahon, Esquire
| Issue Date | Proceedings |
|---|---|
| Mar. 09, 1982 | Final Order filed. |
| Dec. 10, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1982 | Agency Final Order | |
| Dec. 10, 1981 | Recommended Order | Respondent guilty of failing to conform to minimum acceptable standards in nursing. 135-day suspension. |
