v. ) CASE NO: 83-1948
LOIS E. ANDERSON BAILEY, )
Respondent. )
Consistent with the Notice of Hearing furnished to the parties by the undersigned, hearings were held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida on November 28, 1983, March 26, 1984, and March 15, 1985. The issue for consideration was whether the Respondent's license as a practical nurse should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein on May 11, 1983.
For Petitioner: Julia P. Forrester, Esquire
For Respondent: William D. Roland, Esquire
In an Administrative Complaint filed on May 11, 1983, Petitioner has alleged that Respondent demonstrated unprofessional conduct in violation of Section 464.018(1)(f), Florida Statutes, 1981 by, on various occasions between July, 1982 and January, 1983, instructing and allowing hospital personnel under her supervision to substitute one drug for another contrary to doctors orders and, during the same period, herself doing the same without so advising the doctor. Thereafter, in an undated election of rights filed with the Division of Administrative Hearings on June 20, 1983, Respondent, through her counsel, disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. The file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer.
At the hearings, Petitioner presented the testimony of Dr. Allan R. Varraux, the physician whose orders were allegedly disregarded; Lynn W. Capraun, an instructor in respiratory therapy: Jack M. Holton, Jr., Administrative
Director of Pharmacy Services at Orlando Regional Medical Center, (ORMC); Mary Ann Hinds, a licensed practical nurse employed at ORMC at the time in issue here; Helen Williams, endoscopy technician at ORMC at the time in issue; Ted F. Hooper, also an endoscopy technician at ORMC at the time; James E. Hardy, currently a dentist but, at the time in issue, an endoscopy technician at ORMC; Sheila McGrath, custodian of medical records at ORMC; Robert Lindsey Rogers, Jr., Administrative Director of the Department of Respiratory Therapy at ORMC and Respondent's supervisor at the time in issue; and introduced Petitioner's Exhibits 1 through 7. Respondent testified in her own behalf and presented the testimony of Dr. Frank C. Bone, 11, a physician on staff at ORMC; Christine I. Stevens, section head for neonatal respiratory therapy in the ICU at ORMC; Kenneth R. Rosenau, currently the supervisor of the endoscopy section at ORMC, but formerly a technician in the bronchoscopy section of ORMC; and Mr. Rogers, who had previously testified for Petitioner. Respondent also introduced Respondent's Exhibits A through I.
The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
At all times pertinent to the issues contained herein, Respondent, Lois
E. Anderson Bailey, was a licensed practical nurse in the State of Florida under license number 12519-1.
During the period between July, 1982 and January, 1983, and for an unknown period both before and after that time, Dr. Allan R. Varraux was a pulmonary specialist who, as a part of his practice, performed bronchoscopies at ORMC. As a routine part of this practice, Dr. Varraux utilized a cocaine solution to spray the back of the throat of his patients as an anesthetic prior to inserting the bronchoscope. Cocaine is also used as an anesthetic after the bronchoscope is inserted because it lasts between one-half an hour to forty-five minutes as opposed to xylocaine which lasts only fifteen minutes or so. Dr. Varraux also prefers to use cocaine over xylocaine because the latter often causes spasms in the patient.
During this period, Dr. Varraux knew the Respondent, who was nursing supervisor of the Endoscopy section at the time, and discussed with her the controls for the use of cocaine for this purpose because cocaine is a controlled substance. At no time did Dr. Varraux ever discuss with Respondent the potential for the substitution of xylocaine for cocaine in this procedure nor did he ever approve its substitution.
On or about January 18, 1983, Dr. Varraux wrote a letter to Mr. Holton, Director of the hospital pharmacy, asking for a survey of cocaine use at ORMC. He did this because of a survey done at another hospital at which he also practiced with which he was familiar to be sure that the amount of cocaine he was using was reasonable. The audit revealed that at the time in issue here, no cocaine was dispensed by the pharmacy for the Endoscopy section. Dr. Varraux considered this odd because he was ordering cocaine solution for the bronchoscopies he was performing and as a result, some cocaine should have been issued. He subsequently found out that xylocaine was being substituted for cocaine. He had not authorized the substitution and was greatly concerned because of the potentially serious impact the substitution might have on a
patient if the patient were allergic to xylocaine and the physician did not know that the substitution had been made.
In his opinion, it is not good medical practice to substitute xylocaine for cocaine without the doctor's orders and without informing the physician of the change.
In practice, the cocaine is injected with a syringe into the apparatus being utilized during the bronchoscopy. At that point, the order for the use of cocaine is a verbal order which is, thereafter recorded in the nurse's notes and in the doctor's dictated report concerning the procedure. Since there is no standard procedure for this operation, Dr. Varraux established, in discussions with the Respondent, his general procedures which in all cases included the use of cocaine as an anesthetic. Respondent actually assisted in very few of Dr. Varraux procedures. Eighty-five percent of his procedures were done with Ken Rosenau assisting and Mary Ann Hinds assisted in others. However, Respondent was the supervisor of the endoscopy section and if there was a problem, Dr. Varraux would go to her first.
Lynn W. Capraun, an instructor of respiratory therapy at Valencia Community College, and an advisor in that area to ORMC, was asked by Mr. Rogers to audit the endoscopy section records for bronchoscopies performed from July, 1982 through January, 1983. His audit was limited to only those on a list of procedures given him by Mr. Rogers and he is not aware of what percentage of the total bronchoscopy load this list consisted of. However, as a part of this audit, he reviewed for each specific case the doctor's clinical resume' and the nurse's notes to see what the doctor called for and what was in fact done.
Based on his audit, it appeared that during the period in question, more than
203 ml of cocaine had been ordered by physicians but there was no supporting documentation in the nurse's notes to indicate that the cocaine had been administered even though there was documentation for the use of other drugs. Here, it should be noted that Mr. Capraun is also the partner of Mr. Rogers in a private respiratory therapy business.
The records of the pharmacy at ORMC revealed that the last issue of cocaine too the endoscopy section prior to the audit was made in July, 1982. Prior to that time, as far back as 1981, records indicated that the pharmacy had issued 60 ml of cocaine solution every three or four weeks. All issues are reflected as such issues are logged and the name of the individual to whom the drug is issued, who must be licensed, is retained. In addition, pharmacy records reflected no issue of any controlled drug, not only cocaine, to the endoscopy section between late October, 1982 and January 3, 1983.
After Respondent was suspended on January 19, 1983, Mr. Holton examined the drug sheets kept in the endoscopy section and the drugs kept on the floor. He found three bottles of cocaine solution, one of which contained 60 ml and the other two contained 40 ml. Analysis of the contents of one bottle reflected the solution at 3.9 percent cocaine which is acceptable. The other two bottles, however, were at a lower strength - one at .5 percent and the other at 1.4 percent cocaine. Though there were three bottles of solution, only two records to support these bottles were found. One was dated May 21, 1982 and the other, June 23, 1982.
Cocaine is issued by the pharmacy only upon the presentment of a proof of use sheet which reflects the fact that the previous issue has been used up and it is the practice of the pharmacy, according to Mr. Holton, not to issue new supplies of a controlled substance without a proof of use sheet to show the
use of the previous issue. The records of the hospital reflect that the Endoscopy section is a small user of any controlled drug.
From the above, an inference can be drawn that cocaine was improperly removed from the Endoscopy section. However, from review of the evidence as a whole, not only that already discussed but that to be discussed as well, it is impossible to determine for certain that there was a loss and if so, who was responsible for it. It certainly cannot be said with any degree of certainty that the Respondent either took it or knew who did.
When Mr. Rogers received the letter from Dr. Varraux regarding the use of cocaine in the Endoscopy section of his department, he went to look for the Respondent to discuss the problem with her. He found that she had gone for the day and so he discussed the situation with Mrs. Williams, one of Respondent's assistants, who advised that Respondent had, at times, asked her to substitute xylocaine for cocaine. The following day, he looked into the situation further and after talking with his supervisor, called in Respondent and showed her Dr. Varraux's letter. He says Respondent first indicated she was aware of the situation - then changed her position. She again changed her position, indicating that she was aware of only one incident and that she had discussed with the employees of the section the illegality of the practice advising them not to do it.
Mr. Rogers was told by his employers that he could suspend the Respondent if he felt it to be necessary. As a part of his inquiry, he discussed the matter with Mr. Holton and other employees of the department whom he asked to make statements regarding the alleged substitution. His requests were for specifics of the incidents - if they knew of the practice, who had asked them to do it, and things of that nature. When he got the employees' statements back, he reviewed them and took them to the personnel office for advice. Thereafter, he notified Respondent by mail of her termination.
Mary Ann Hinds worked at the Endoscopy section as an LPN during the period July, 1982 through September, 1983 assisting physicians, including Dr. Varraux, in bronchoscopy procedures. She contends that at some time during October or November, 1982, Respondent called her into the office and advised that cocaine would no longer be used in bronchoscopy procedures and xylocaine would be substituted. She says she was told to chart the initial 4 percent xylocaine solution but not the 10 percent xylocaine solution she would give to the doctor without telling him of the substitution even though the doctor might ask for cocaine. She says that Ms. Bailey told her this would be done because during a prior procedure when the assistant used xylocaine instead of cocaine, Dr. Varraux did not know the difference and Bailey concluded that they would use the xylocaine instead of cocaine thereafter. Ms. Hinds did not question this because Respondent was the head of the department. Ms. Bailey was, in her opinion, difficult to talk to and as a result of these instructions, she followed this new procedure from the time of the instruction on through January, 1983. During this period, she saw Mr. Rosenau and Mr. Hooper also do the same thing.
Although Ms. Hinds was quite definite in her testimony regarding the conversation with Ms. Bailey, she is significantly less sure of her testimony regarding control of drugs on the ward. For example, she cannot recall ever signing any proof of use forms. She contends that the LPNs and technicians did not sign off on the drug book. They would tell the Respondent what was used and she made the entries. When cocaine was to be used, she got it from a bottle in the Respondent's office.
Helen Williams also worked under Respondent in the endoscopy section until January, 1983 assisting doctors with bronchoscopy procedures. When she first came to work in this section, she did not know that cocaine was being used. She recalls that in a conversation shortly after she came to work, Respondent told her they were using 4 percent xylocaine solution in place of a cocaine solution because they had done it one time with Dr. Varraux and he did not notice and as a result, they continued to follow this procedure. However, Ms. Williams, though she subsequently heard from Rosenau that substitutions were being made, never saw it done nor did she ever substitute. Though she says she advised Respondent she didn't think this substitution was a good idea, Respondent is supposed to have replied that this is the way it was done.
Ms. Williams accepted Ms. Bailey's word when told that there was no cocaine on the unit and that cocaine was not being used even though the drug book at the time showed 27 cc of cocaine solution unused and on the unit. She discussed this with Ms. Bailey and concluded that if her supervisor knew about it, that was sufficient, and she did not report this to anyone else. She also did not report her knowledge of the substitutions being made to anyone else because she did not feel it was her place to do so since Respondent was the section head and knew about it.
Ted Hooper, also an endoscopy technician, did bronchoscopies with Dr. Varraux for several years and toward the end, substituted xylocaine for cocaine in these procedures without telling the doctor what he was doing. He had seen Rosenau substitute xylocaine while he was watching procedures to learn how to do them before becoming a technician.
When he asked Bailey about this, he says, she responded that it was done, for one reason, because it was cheaper for the patient. She also told him it was all right to do this as it had already been taken care of. She did not tell him, outright, to make the substitution but because she had said it was taken care of, he thought it was permissible. However, he also contends that he observed cocaine being used by Hinds and others in Dr. Varraux' cases after he became a technician in July, 1982.
James E. Hardy, in October, 1982, employed as a transporter in the Endoscopy section of ORMC, also assisted in bronchoscopies, working at times with Dr. Varraux and he was aware of the practice of substituting xylocaine for cocaine in these procedures. When he first went to work in the section, he says, he was asked to substitute by Respondent who told him it was being done because it was cheaper for the patient but refused to do so. To his knowledge, however, he does not recall seeing the substitution actually performed. On one bronchoscopy he recalls, which he set up, cocaine was used which he got from Respondent.
Mr. Rosenau testified at the March, 1985 hearing. He clearly indicated that xylocaine was substituted for cocaine in the procedures performed by Dr. Varraux and the cocaine they had on hand was rarely taken from the drug locker. He absolutely denies that during all the period of time he was working with Respondent, he ever discussed with her or admitted to her that he had substituted xylocaine for cocaine nor did Respondent ever tell him to do this. In fact, he cannot recall how this practice got started.
Here it should be noted that Rosenau, Hardy, and Hooper were all friends of Mr. Rogers and at least Rosenau and Hardy owed their employment at the time to him.
Respondent was recognized by Dr. Bone as partially responsible for the growth of the Endoscopy section at ORMC. He recalls her as being an exceptional nurse: reliable, dependable, and proficient - a perfectionist who did an excellent job. He had complete confidence in her ability and in her honesty and integrity. If he asked her to do something, she did it more reliably than others. Because of her perfectionist nature, however, she may have alienated people and turned them away, but he never had any doubts about her nor did he ever have any reports from other doctors that she did not do her job well. He worked with her until she left the hospital. She was a "take charge" person but never exceeded her authority or deviated from prescribed procedures or doctors' orders.
This opinion of Respondent is shared by Christina Stephens who worked under Respondent for a period of time. She found the Respondent to be stern, regimented as to order of procedures, and very organized, but she never saw any irregularities by the Respondent in carrying out doctor's orders. As to Mr. Rosenau, however, of whom she also had some knowledge, she found him to be somewhat unprofessional in his patient care and actions and brought this to the attention of the supervisor by written report on several occasions. This was, however, several years prior to the time in issue here and she has not worked with him since 1976 nor does she have any knowledge of his performance since that time.
Respondent began work at ORMC after she was a student in the respiratory therapy program there at the request of Mr. Rogers. She started as a pulmonary rehabilitation technician part time. At that time, there were only two employees in the section. When, after a few months, the supervisor left, Respondent took over.
Over a period of time, new procedures were introduced including gastroenterology and Respondent was trained in them as she went. She began doing more of the latter than pulmonary rehabilitation even though she remained head of that section. She was then asked to help set up an Endoscopy section and started doing those procedures as well.
Rosenau was working on the floor in the respiratory therapy section and was having trouble with his supervisor. As a result he wanted to come to work in the Endoscopy section and Respondent arranged a transfer for him even though he had little experience in endoscopy and none in gastroenterology.
When she first started working with gastroenterology, the patient and his medication were brought into the section. When the procedure was finished, the unused medication was sent back with the patient. As the section got bigger however, and more procedures were accomplished, this practice began to hold things up. The physicians requested that medications be kept in the section for their use. Respondent resisted this because she did not feel there were sufficient safeguards available to maintain proper control. Nonetheless, the physicians pushed for it but the change did not happen until Dr. Varraux became insistent that the medications be kept there. He worked through Rogers and Holton to get a narcotics box installed on the section. When this was done Mr. Holton gave two sets of keys to the box to Mr. Rogers who immediately turned one set over to the Respondent and gave one set to Rosenau.
When Dr. Varraux decided to use cocaine for anesthesia he discussed it with Rogers and Holton since Respondent did not have the authority to request it. As a result, the pharmacy began dispensing 60 ml bottles of cocaine
solution for use in bronchoscopies with a control sheet accompanying it to be kept in the locked portion of the bronchoscopy cart. Again, Respondent and Rosenau both had access to this cart. In fact, Rosenau had access to every key that Respondent had except the one to her desk.
According to the Respondent, she had difficulty with Rosenau regarding drugs on several occasions when he would draw narcotics into syringes, a procedure he was neither trained nor authorized to do.
In the Spring of 1982, bronchoscopies were done by nurses who would give valium but cocaine was administered by Rosenau only. However, when cocaine was used, Respondent would sign off on the sheets along with others whose names appeared on the form as administers of the drug. In mid-1982 bronchoscopies were transferred to the respiratory therapy section, by then headed by Rosenau, but this did not seem to work out and after a short period, the procedure was returned back to the endoscopy section, with Rosenau still doing them under the overall supervision of Respondent.
Respondent contends that she did not train people to do the bronchoscopy procedures. Rosenau had been doing this for months before all of this took place. Ms. Hinds came to work in late July, 1982, and Respondent had no control over bronchoscopies at that point as they were in Rosenau's section. As to Hardy, she characterized him as an errand boy who was never trained to do bronchoscopies and with whom she never discussed them.
She did, however, have a discussion with Rosenau on one occasion about cocaine. She relates that on this particular instance, Rosenau advised her in confidence that he had substituted Xylocaine for cocaine by mistake on a bronchoscopy performed by Dr. Varraux and wanted to get it off his chest. He assured her that if she would give him another chance, he would never let it happen again. Here, even though Rosenau had a previous disciplinary record which she had discussed with Rogers, she decided to take no action because she felt it would be fruitless. Rogers had taken no corrective action against Rosenau in the past and she had no reason to believe he would do so now. Rosenau, as was seen above, denies this conversation but no doubt it did occur.
Respondent does not know why she was terminated and was shocked by the action. Rogers had mentioned something about cocaine and had given her an opportunity to resign but she refused. She claims to know nothing about the dilution of the cocaine solution. She claims to know nothing of the substitutions of xylocaine for cocaine other than that reported to her by Rosenau. She categorically denies ever telling Hinds, Williams, or anyone else to substitute xylocaine for cocaine.
Counsel for Respondent spent considerable time attempting to establish that the charges against her are the result of a plot by Rogers, Rosenau and others at the hospital to remove her from her position. At best, the evidence shows a lack of control within the respiratory therapy section. There does appear to be a decided relationship between Mr. Rogers and Mr. Rosenau but Respondent has failed to establish that this relationship manifested itself in a plan to bring about her unjustified separation.
The evidence establishes that xylocaine was substituted for cocaine and there is some substantial evidence to indicate the Respondent had some knowledge or information indicating that this was being done. There is no credible evidence, however, to establish that Respondent herself substituted
xylocaine for cocaine or instructed or directed anyone else to do so. At worst hers is a sin of omission rather than commission.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
In the Administrative Complaint Petitioner alleges that by herself substituting and by instructing and permitting her subordinates to substitute xylocaine for cocaine in contravention of doctor's orders, Respondent is guilty of unprofessional conduct in violation of Section 464.018(10)(f), Florida Statutes, (1981). This provision makes grounds for disciplinary action:
Unprofessional conduct, which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nurs- ing practice, in which case actual injury need not be established.
Based on the above evidence, it is very clear that Respondent did not herself substitute xylocaine for cocaine in any procedure and in its Proposed Recommended Order, the Petitioner so concedes.
The evidence is somewhat less clear regarding the issue of whether the Respondent, in her capacity as head of the Endoscopy section, instructed her subordinates to substitute 4 percent xylocaine for 4 percent cocaine contrary to doctor's orders. The evidence against her is in the form of testimony from prior subordinates who had much to gain from Respondent leaving her position.
As was pointed out in at least one case, the witnesses were not clear in their recollections of the situations about which they testified. In the case of Mr. Rosenau, there is some substantial evidence to establish that he is, himself, guilty of some misconduct. To support a conclusion that Respondent is in violation of the statute, Petitioner must show by clear and convincing evidence that Respondent instructed her subordinates to make the substitution. In this case, the evidence simply does not meet that test.
On the other hand, as to the issue of whether the Respondent knowingly allowed substitution by other personnel, the situation is somewhat different. The evidence establishes that Respondent's reputation within at least a segment of the hospital population was as a highly competent perfectionist who was somewhat difficult to deal with at times. Notwithstanding this, the evidence that Respondent made the entries on the nurses notes herself, knowing that there was some question about the accountability for cocaine in the section, clearly leads to the conclusion that she knew the substitutions were being made and allowed them to continue. There is no doubt, and the testimony clearly establishes, that the practice of substituting one substance for another without advising the administering physician of the substitution fails to conform to the minimum standards of acceptable and prevailing nursing practice.
Having thus established Respondent's commission of at least one violation, the question remains as to what disciplinary action would be appropriate. Section 464.018(2), Florida Statutes, permits, inter alia, revocation or suspension of a license, imposition of an administrative fine, reprimand, or probation. The evidence here does not justify revocation of the
Respondent's license. Her long period of quality performance mitigates against so harsh a punishment and justifies a somewhat less severe action.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that the Respondent be reprimanded and that her license as a practical nurse in the State of Florida be suspended for one year under such terms and conditions as prescribed by the Board of Nursing.
RECOMMENDED in Tallahassee, Florida this 2nd day of May, 1985.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985.
Mr. Fred Roche Secretary
130 N. Monroe Street Tallahassee, Florida 32301
Julia P. Forrester Attorney at Law
130 N. Monroe Street Tallahassee, Florida 32301
William D. Rowland, Esquire
P. O. Box 529
