STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4148

)

ANTHONY MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came to be heard on April 9, 1985 in Fort Lauderdale, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. Notice of the final hearing was sent to the last known address of Anthony Martini Respondent, but he failed to appear. Whereupon the Department of Professional Regulation, Petitioner, was allowed to present evidence in support of the allegations contained in its Administrative Complaint issued against Respondent on June 28, 1984. Petitioner was represented at the hearing by:

Petitioner: Edward C. Hill, Jr., Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Petitioner called five witnesses, including Nancy Cox who was accepted as an expert in nursing education, and introduced four exhibits, two of which are composite exhibits. A transcript of the final hearing was filed on June 3, 1985.

The Administrative Complaint charges Respondent with unprofessional conduct and the inability to practice nursing with reasonable skill and safety by reason of illness or the use of alcohol in violation of Section 464.018(1)(f)(h), F.S. (1983). Specifically it is alleged that Respondent reported to work on one occasion after having consumed alcoholic beverages and admitted to his supervisor that he had a drinking problem, and also it is alleged that Respondent failed to respond appropriately to reports that a tracheostomy patient in his care was having difficulty breathing.

FINDINGS OF FACT

1. At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear.

2. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984.

   During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty.

   Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program.

   
   

3. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty.

   
   

4. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care.

   
   

5. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion.

   
   

6. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention.

7. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), F.S.

   
   

9. Respondent is charged with violating Section 464.018(1)(f) and (h),

   F.S. which provide:

   
   

   464.018 Disciplinary actions.--

   (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. . . .

   
   

10. Petitioner has the burden of proof in this license disciplinary case. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Since this action is essentially penal in nature, Petitioner must prove the alleged violations by clear and convincing evidence. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). This is a higher burden than a simple preponderance of the evidence due to the nature of the action and possible penalty that could be imposed.

    
    

11. The uncontroverted evidence presented at the hearing proves, clearly and convincingly, that Respondent exhibited unprofessional conduct which failed to meet minimum standards of the profession three times while employed at St. John's Nursing and Rehabilitation Center during a three month period. It has also been established that Respondent was unable to practice nursing with reasonable skill and safety to patients while employed at St. John's due to his use of alcohol. The expert testimony presented by Petitioner clearly described the adverse effects of alcohol on patient care and the danger to tracheostomy patients of airway blockages. The Director of Nursing at St. John's also testified about her efforts to refer Respondent to an impaired nurse program after he admitted having a drinking problem. However, Respondent would not avail himself of the assistance being offered.

    
    

12. Section 464.018(1)(h), F.S., provides in part that:

. . . the department shall have, upon probable cause, authority to compel a nurse to submit to a mental or physical examination by physicians

or health care practitioners who posses 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.

Pursuant to Sections 464.018(2) and (3), F.S. the Nursing Board may impose disciplinary action against licensees, including revocation, suspension, probation and/or an administrative fine of up to $1000. The Board may reinstate a license if the person demonstrates his qualifications and satisfies the Board that he can practice safely.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense.

DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida.

DONALD D. CONN, 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 24th day of June, 1985.

COPIES FURNISHED:

Edward C. Hill, Jr., Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Anthony Martin

4041C NW 16th Street Apartment 109

Fort Lauderdale, Florida 33313

Judie Ritter, Executive Director Board of Nursing

111 East Coastline Drive, Room 504 Jacksonville Florida 32202

Fred Roche Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee Florida 32301

Docket for Case No: 84-004148

Orders for Case No: 84-004148