STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3639

)

DAVID MILLS, )

)

Respondent. )

)

RECOMMENDED ORDER

After notice duly given, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida, on February 7, 1984. The issue for consideration here was whether the Respondent's license as a licensed practical nurse should be disciplined because of the misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Julia P. Forrester, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David Mills, pro se

6750 Ramona Boulevard

Apartment Number 305

Jacksonville, Florida 32205 BACKGROUND INFORMATION

In an Administrative Complaint dated September 30, 1983, Petitioner Board of Nursing (BON) charged Respondent, David Mills, with unprofessional conduct which failed to conform to the minimal standards of acceptable and prevailing nursing practice, in violation of Section 464.018(1)(f), Florida Statutes (1981) (Counts I and II), and sexual misconduct in violation of Section 464.017, Florida Statutes (1981) (Count II). The Administrative Complaint alleges that on April 12, 1983, at University Hospital in Jacksonville, Florida, Respondent entered a patient's room five or six times without recording these visits on the Patient's chart and that, on the same date, he lowered this female patient's bed covers to below the waist and kissed her. It was also alleged that on June 11, 1983, Respondent failed to administer daily doses of medicine to several patients; and on June 19 and 20, 1983, he failed to change dressings on several patients as he was required to do while working at the Jacksonville Convalescent Center (JCC).

Respondent, on November 9, 1983, submitted an Election of Rights form on which he disputed the allegations of fact in the Administrative Complaint and requested a hearing on the matter.

At the hearing, Petitioner abandoned that allegation in Count II which related to Respondent's failure to administer the medication on June 11, 1983; and no evidence was presented on that matter. Petitioner presented the testimony of Cynthia J. Pagonis; James J. Pagonis, her husband; Ellen Davis, Respondent's supervisor at University Hospital; Fay Bennett, a nurse at Jacksonville Convalescent Center; and Carol Hadnot, Respondent's supervisor at Jacksonville Convalescent Center; as well as Petitioner's Exhibit 1.

Respondent did not testify or call any witnesses, but introduced Respondent's Exhibits A-C.

RECOMMENDATION

That Respondent's license as a licensed practical nurse be revoked.

RATIONALE FINDINGS OF FACT

1. At all times pertinent to the matters under consideration here, Respondent was licensed by the State of Florida as a practical nurse, under license #0692631.

   
   

2. Cynthia J. Pagonis entered University Hospital in Jacksonville, Florida, on April 11, 1983, for a routine laparoscopy to be performed the following morning. Early on the morning of the day of her surgery, April 12, 1983, Respondent, who was one of her nurses, came into her room with two other nurses, one of whom gave her a shot. While this was done, Respondent stood back and observed. Somewhat later, he again came back into her room with a rolling table onto which he told her to climb so he could take her down to the operating room. By this time she was somewhat drowsy from the shot. She asked Respondent what was in it and he told her, whereupon he wheeled her to surgery.

   
   

3. After the procedure, that afternoon, Ms. Pagonis recalls him entering her room several times. One time, he checked her I.V. bottle--other times, he did nothing for her and, sleepy as she was, this concerned her because she wanted to sleep and Respondent's visits disturbed her. During this period, other nurses also came in to check her blood pressure or do something else, but Respondent never did anything--just looked.

   
   

4. On the final visit, he came in and said he wanted to check her bandage. With this, he lowered her blanket to below her waist to the extent that her pelvic area was exposed. She was wearing a short hospital gown and nothing else. By this time, several hours after surgery, the anesthetic had worn off so that she knew exactly what was happening. After looking at her bandage, in this case no more than a Band-Aid, he pulled the cover back up and, without warning, bent over and kissed her on the cheek. She was upset when he pulled the blanket down because she felt it was inappropriate for him to do it when her dressing had been checked by another nurse shortly before. She also did not think it was appropriate for a male to be in her room without a chaperone. When Respondent kissed Mrs. Pagonis, he told her he would be off for a few days and for her to take care of herself. Then he left.

5. When Respondent kissed Mrs. Pagonis, she got angry. She had said nothing to him to lead him on. She had asked him what cologne he was wearing and when he told her, she said it smelled nice, but nothing more.

   
   

6. Mr. Pagonis entered his wife's room on the morning of her surgery, both before and after the operation. When he was there before she was taken to the operating room, he saw Respondent in the room and Respondent asked him to leave so they could get his wife ready for the operation. When he came back later, after this incident, he found her nervous and upset. She looked to him as if she had been frightened. When she told him what had happened, that this "black male nurse had repeatedly come into her room and was doing nothing" for her, and that he had pulled down her covers and "got his eyes full," Mr. Pagonis became angry and went out to look for Respondent. He could not find Mills, however, and went through the nursing chain of command until he got to Mrs. Davis, the Director of Medical Nursing, to whom he told the story. Mrs. Davis found Mr. Pagonis to be upset, but rational and controlled. He was, in her words, restrained, gentlemanly, and "quite heroic" about the whole situation.

   
   

7. Mrs. Davis was first contacted about the incident, while in her office, by a call from the floor nurse on Mrs. Pagonis' floor. The nurse alerted her that Respondent had made advances to a patient. She immediately went up to that floor and met with Mr. Pagonis, whom she then took downstairs to her office where he told her what his wife had related. She then went back up to Mrs. Pagonis' room, in an effort to be fair to everyone, to see how alert Mrs. Pagonis was and how accurate her observations were. Mrs. Davis found her alert, and a clearheaded woman who, in her opinion, had been free of the effects of anesthesia for quite awhile. Mrs. Pagonis told her what had happened, that Respondent had made an unnecessary check of her I.V., since another nurse had just checked her, and then checked her dressing, as described. Mrs. Davis verified that another nurse had recently checked on Mrs. Pagonis and, after checking the incision, concluded that because it was so minor, there was no legitimate need for Respondent to have done so also.

   
   

8. In her professional opinion, based on service as a licensed practical nurse since 1971 and as a registered nurse since 1974, the way in which Respondent checked Mrs. Pagonis was inappropriate. The incision and dressing here were so small, it was not necessary to expose the patient all the way to the mons pubis, as Respondent did. In addition, a male nurse should always have a witness present in a situation such as this. As for the kiss, it is a rare situation when it is appropriate for a nurse to kiss a patient. This may be done only in the care of a very old, very young, very sick, long-term patient, where the parties had a long-standing relationship, and the action would be therapeutic. Under the circumstances here, Respondent's kiss of Mrs. Pagonis was inappropriate and unprofessional, notwithstanding Respondent's claim he did it, "but only as a friendly gesture."

   
   

9. Mrs. Davis requested Mr. Pagonis to make a written statement. When this was done and signed, Mrs. Davis called for Respondent, who, she found, had signed off his regular shift, but was working overtime. She located him and took him back to her office, where she questioned him about the incident. At first he denied it, but subsequently admitted he had kissed Mrs. Pagonis and pulled down her covers, although he claimed he did this in an appropriate manner.

   
   

10. She then sent him back to work and thought about the situation for a while. Having made her decision to discharge the Respondent, she prepared the appropriate paperwork, called him back to her office, and did so. The next day,

    Mills called her and told her he understood why she had done what she did, told her he loved her, and thanked her. During the period he worked at that hospital, she never had any other difficulty with Respondent. He was cooperative and would come in for extra duty when called. She bad received no direct complaints about his relationship with other patients; and though she was not his immediate supervisor, she understood that his performance of his nursing duties was satisfactory.

    
    

11. Somewhat later in the year, in June 1983, Respondent was employed as a Float Nurse at the Jacksonville Convalescent Center, specifically on June 19 and 20, 1983. On those days it was, according to Carol R. Hadnot, Director of Nursing at the Center, his responsibility to change the dressings on certain patients. Respondent was present for duty on those dates. During this period, Fay K.F. Bennett, also a nurse at the Center, as a part of her duties, checked the dressing on several of the patients whose dressings were due to be changed. She found that the dressings had not been changed and that the Patients' charts bore initials and date for the last change, a day or two before. The initials on the charts were D.M., which could have been Respondent or Doris Minard. That initial is not significant, however. What is significant is that there was no note on the chart showing that Respondent had changed the dressings during his duty period as he was required to do.

    
    

12. This information was reported to Mrs. Hadnot. It is the general policy at Jacksonville Convalescent Center to counsel an employee before taking discharge action here. This was not done here because before Respondent could be counseled, allegations that Respondent had made sexual advances to three nurses' aids were reported to her. She then discussed the situation with the faculty administrator. They decided that because he was still a probationary employee, the allegations described were sufficient to discharge Respondent without counseling, and this was done.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

14. In both Count I and Count II, Respondent is alleged to have violated Section 464.018(1)(f), Florida Statutes (1981), which lists as a ground 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 nursing practice, in which case actual injury need not be established.

    
    

15. The evidence submitted with regard to the allegation in Count I that Respondent improperly exposed Mrs. Pagonis and improperly kissed her, when coupled with Mrs. Davis' testimony regarding the impropriety of that conduct, is sufficient to support a finding that Respondent's conduct was sanctionable unprofessional conduct. As to Count II, the unexcused failure of Respondent to accomplish ordered changes of patients' dressings constitutes a departure from the minimal standards of the profession and is also grounds for discipline.

16. In Count I, Respondent is additionally alleged to have been guilty of sexual misconduct in the practice of nursing, in violation of Section 464.017, Florida Statutes (1981), which states:

    
    

    The nurse-patient relationship is founded on mutual trust. Sexual misconduct in the practice of nursing means violation of the nurse-patient relationship through which the nurse uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.

    Sexual misconduct in the practice of nursing is prohibited.

    
    

17. Here, the issue is not as clear as if an unquestionable sexual attack had taken place. However, Mrs. Pagonis had the right to reasonably expect to be free from the embarrassment of an unsupervised, excessive examination and an unsolicited, unnecessary and unwarranted touching by Respondent in the form of the kiss he gave her. Respondent's actions had a clear sexual overtone which, under the circumstances, constitute sexual misconduct and a violation of this statutory provision.

    
    

18. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDED ACTION

Based on the foregoing, it is, therefore,

RECOMMENDED THAT Respondent's license as a licensed practical nurse be revoked.

RECOMMENDED this 16th day of March, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 16th day of March, 1984.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32031

David Mills, L.P.N. 6750 Ramona Boulevard

Apartment 305

Jacksonville, Florida 32205

Mr. Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Helen P. Keefe Executive Director Board of Nursing

Department of Professional Regulation

111 E. Coastline Drive, Room 504 Jacksonville, Florida 32202

Docket for Case No: 83-003639

Orders for Case No: 83-003639