Judges: WILLIAM B. THOMAS
Agency: Department of Health
Latest Update: Mar. 15, 1985
Summary: Complaints against Respondent for alcohol use and unprofessional conduct were dismissed for lack of competent and substantial evidence.
83-3132.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATI0N, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3132
)
JO ANN MURPHY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on October 30, 1984, in Pensacola, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where these were found to be subordinate, cumulative, immaterial or unnecessary, a ruling on each has been made either directly or indirectly.
APPEARANCES
For Petitioner: Julia P. Forrester, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Thomas C. Staples, Esquire
Post Office Box 12786 Pensacola, Florida 32575
By Administrative Complaint issued on September 14, 1983, the Respondent was charged with violating the Nurse Practice Act, Chapter 464, Florida Statutes, in two counts. Specifically, the Complaint alleges that the Respondent violated Section 464.018 (1)(f), Florida Statutes, prohibiting unprofessional conduct which departs from or fails to conform to the minimal standards of acceptable and prevailing nursing practice, and that she violated Section 464.018(1)(h), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients by reason of drunkenness. The matter proceeded to hearing on the Complaint and the Respondent's denial that she committed any acts such as are alleged in the Complaint.
Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as the relevant facts:
FINDINGS OF FACT
The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2.
The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care.
Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola.
The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance.
On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse.
Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion.
The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her.
The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use.
The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement.
Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse.
On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses.
On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes.
It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose.
Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN.
The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Board of Nursing is authorized by Section 464.018, Florida Statutes, to discipline holders of nursing licenses who have been found guilty of violating this section of the Nurse Practice Act.
Section 464.018(1)(f), Florida Statutes, prohibits unprofessional conduct which departs from or fails to conform to the minimal standards of acceptable and prevailing nursing practice. Section 464.018(1)(h), Florida Statutes, proscribes being unable to practice nursing with reasonable skill and safety by reason of use of alcohol. The penalty for violation of these statutes includes revocation of the license to practice nursing, pursuant to Section 464.018(2)(b), Florida Statutes.
Statutes authorizing the revocation of a license to practice a business or profession must be strictly construed, for they are penal in nature. State v. Pattishall, 126 So. 147 (1930).
"In a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term competent substantial evidence takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Bowling v. Dept. of Insurance,
394 So.2d 165 (Fla. 1st DCA 1981). "When the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling, supra, at 172.
The evidence presented against the Respondent falls far short of the standard of Bowling, supra, in that the quantity and quality of the competent evidence lacks the substantiability of the consequences. Thus, the Respondent is not guilty of the charges in the Administrative Complaint.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo
Ann Murphy, be dismissed.
THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida.
WILLIAM B. THOMAS
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 January, 1985.
COPIES FURNISHED:
Julia P. Forrester, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Thomas C. Staples, Esquire
P. O. Box 12786 Pensacola, Florida 32575
Ms. Helen P. Keefe
Executive Director, Board of Nursing Department of Professional
Regulation
Room 504, 111 East Coastline Drive
Jacksonville, Florida 32202
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-003132
Orders for Case No: 83-003132
| Issue Date |
Document |
Summary |
|
Mar. 05, 1985 |
Agency Final Order
|
|
|
Jan. 10, 1985 |
Recommended Order
|
Complaints against Respondent for alcohol use and unprofessional conduct were dismissed for lack of competent and substantial evidence.
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