STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF NURSING, )

)

Petitioner, ) CASE NO. 84-2084

)

vs. )

)

SHIRLEY RAYE HILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida on October 30, 198, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by

For Petitioner: Julia P. Forrester, Staff Attorney

Department of Professional Regulation

130 North Monroe Street

For Respondent: William Whitacre, Esquire

Pan American Bank Building, Suite 1000 Post Office Box 1706

Orlando, Florida 32802

This matter arose on Petitioner's Administrative Complaint charging Respondent with unprofessional conduct and alcohol abuse in violation of Subsection 464.018(1)(f) and (h), Florida Statutes (1983)(F.S.). Subsequent to formal hearing on these charges, the parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b), F.S. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. At all times material, Respondent was a licensed practical nurse in the State of Florida, having been issued license number 32187-1.

   
   

2. During November, 1983, Respondent was employed by On Call Medical Service, a nursing agency which provided care for patient Dee Zenrich. Patient Zenrich resided in the home of Respondent, and Respondent was regularly assigned to provide nursing care to patient Zenrich during November, 1983.

   
   

3. Respondent normally worked one shift of approximately eight hours per day caring for Zenrich. She relieved another On Call Medical Service nurse at the beginning of her shift and was, in turn, relieved by an On Call nurse at the end of her shift.

4. Patient Zenrich suffers from Amyotrophic Lateral Sclerosis (ALS) and requires twenty-four hour skilled nursing care since she is on a respirator and requires frequent suctioning. Further, the patient is completely immobile and can only communicate by blinking her eyes and through a number board.

   
   

5. The testimony of the medical witnesses established that patient Zenrich requires constant observation. Thus, any absence from her bedside by the attending nurse poses some risk.

   
   

6. During the week of November 7 to 13, a relieving nurse observed Respondent, while she was the duty nurse, briefly leave Zenrich unattended to visit with a friend in the kitchen and, on another occasion, to take a shower. She also was observed in bed sleeping with the patient while on duty during this period.

   
   

7. On November 22, 1983, Zenrich's medical condition required her to be transported by ambulance to the Navy hospital emergency room. Since two nurses were required to transport Zenrich, Respondent was asked to go on duty to transport the patient. Respondent had not been scheduled to go on duty and had been consuming alcohol. However, she continued to drink after she was reminded by an On Call administrator that she was on duty.

   
   

8. Although Respondent's close relationship with the patient prompted her to accept the unscheduled assignment, she was nonetheless on duty and should not have continued to consume alcohol. Respondent also behaved in a belligerent manner toward hospital staff at the emergency room but this was apparently out of concern for the rough handling she believed patient Zenrich was receiving.

   
   

9. Patient Zenrich was admitted to the hospital in late November, 1983. Based upon nutritional studies and her continuing problem of ingesting sufficient food, a physician recommended insertion of a gastrostomy tube. While on duty as a nurse and in the presence of the patient, Respondent angrily questioned the physician's recommendation and was verbally abusive about the physician. Again, however, this questionable conduct was at least well motivated and arose from Respondent's sincere concern for the patient.

   
   

10. In addition to the November 22 incident discussed above, an On Call Medical Services nurse observed Respondent drinking while on duty during the week of November 7-13, 1983, and on duty while under the apparent influence of alcohol on November 17 and 23, 1983. On these two occasions, Respondent smelled of alcohol, exhibited slurred speech, bloodshot eyes and staggering.

    
    

11. Respondent admits that she does drink alcohol prior to going on duty, but contends that the quantities are limited. She denies any on-duty drinking (except as noted below) and believes that she is never under the influence of alcohol when on duty.

    
    

12. Respondent concedes that she did drink on November 22, the day patient Zenrich was taken to the hospital, but points out that she was not the primary care nurse and thought she was merely accompanying the patient as a friend. She did not recall receiving any pay for her services that day and did not believe she was officially on duty at the time.

    
    

13. The testimony of both Petitioner's and Respondent's witnesses established that Respondent is an exceptionally caring nurse with respect to patient Zenrich, and enjoys the complete trust of the patient and her family.

14. Petitioner's witnesses attested to several instances where Respondent spoke out angrily in patient Zenrich's presence and thus, in their view, upset the patient. However, these outbursts did not disturb the patient and must be attributed to Respondent's sometimes abrupt demeanor, rather than loss of emotional control.

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 464.018, F.S. provides in part:

    
    

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       * * *

       (f) 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.

       * * *

       (h) Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a nurse to submit to a mental or physical examination

       by physicians of health care practitioners who who possess expertise in the diagnosis of mental or physical impairments, designated by the department and board. The cost of such examination shall be borne by the licensee being examined. The failure of a nurse to submit to such an examination when so directed shall constitute an admission of the allegations against such nurse upon which a default and final order may be entered without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond the nurse's control. A nurse affected by the provisions of this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of nursing with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a nurse in any other proceeding.

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection

       (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify to the department an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify,

       including requiring the nurse to submit to treatment, to attend continuing education courses, to take an examination, or to work under the supervision of another nurse.

       
       

16. Respondent is charged under the unprofessional conduct and alcohol abuse provisions quoted above. The evidence adduced by Petitioner established that Respondent has abused alcohol by drinking while on duty, prior to going on duty, and being under the influence of alcohol while on duty as charged. 1/ This is unprofessional conduct and abuse of alcohol within the meaning of the above provisions.

    
    

17. Respondent called as witnesses herself, her mother, a neighbor, her coworkers and members of patient Zenrich's family. All attested to her good character, dedication as a nurse and their belief that she does not abuse alcohol. However, her inappropriate drinking was proven to have taken place as charged, by the testimony of an On Call Medical Services administrator and three nurses employed to assist in patient Zenrich's care.

    
    

18. Subsection 464.018(1)(h), F.S., quoted above, sets forth detailed procedures to be followed when it is determined that probable cause exists to believe a nurse is unable to practice safely by reason of alcohol abuse. Although Petitioner did not utilize these probable cause procedures prior to bringing the Administrative Complaint, the provisions for medical evaluation and reinstatement remain appropriate.

    
    

19. The charges that Respondent left the patient unattended and that she was abusive in the presence of the patient should be dismissed. 2/ Although these lapses technically constituted unprofessional conduct, they must be viewed in the context of the excellent care Respondent was providing to the patient and her genuine concern for the patient's well being.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order suspending Respondent from the practice of nursing until she demonstrates that she has submitted to psychiatric evaluation and/or treatment for alcohol abuse and is found capable of safely caring for medical patients by the evaluating or treating physician.

DONE and ORDERED this 2nd day of January, 1985 in Tallahassee, Florida.

R. T. CARPENTER 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 2nd day of January, 1985.

ENDNOTES

1/ Administrative Complaint Counts 2, 3 and 4. 2/ Administrative Complaint Counts 1 and 5.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William L. Whitacre, Esquire Post Office Box 1706 Orlando, Florida 32802

Helen P. Keefe, Executive Director Board of Nursing

Department of Professional Regulation

111 East Coastline Drive Room 504

Jacksonville, Florida 32202

Docket for Case No: 84-002084

Orders for Case No: 84-002084