STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0567
)
MONTE RAY BEANE, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Order of the undersigned dated May 29, 1985, granting a continuance of the hearing previously scheduled and setting a new date for hearing, a hearing in this case was held on July 12 and 23, 1985 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida. The issue for consideration in this case was whether the Respondent's license as a registered nurse in the State of Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein by Petitioner on September 25, 1984.
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 3201
For Respondent: L. Haldane Taylor, Esquire
331 East Union Street Jacksonville, Florida 32202
BACKGROUND INFORMATION
By Administrative Complaint dated September 21, 1984, Petitioner, Board of Nursing, seeks to discipline the Respondent's license as a registered nurse in the State of Florida on the basis that he violated Florida Statutes and the
Rules of the Board of Nursing which prohibit negligence, incompetence, and unprofessional conduct in the practice of nursing in this state. Respondent initially indicated his intention to proceed informally before the Board of Nursing and appeared before that agency at its February 6-8, 1985 meeting. However, at the meeting, he indicated his intent to dispute the allegations of fact and request a formal hearing. Thereafter, the case was forwarded to the Director, Division of Administrative Hearings, for appointment of a Hearing Officer.
On March 20, 1985, the undersigned set the case for hearing in Jacksonville on May 9, 1985. However, on May 6, 1985, Respondent moved for a continuance because of Petitioner's failure to provide information requested in discovery.
Petitioner contested the motion and while admitting it was untimely in filing its response to Respondent's discovery request, Petitioner also indicated it was willing to expedite any further discovery and work with Respondent to go to hearing. Nonetheless, on May 14, 1985, based on argument of counsel, the undersigned granted a continuance until June 17, 1985. However, this date conflicted with a previously scheduled trial for counsel for Respondent who requested the hearing be set on July
Consistent with that request, the hearing was rescheduled for July 12, 1985 and commenced on that date. Due to insufficient time to complete the hearing in one day and based on the Hearing Officer's schedule, the case was adjourned to July 23, 1985 when it was, in fact, completed.
At the hearing, Petitioner presented the testimony of Dr. Mark Mendez-Vigo, a physician at University Hospital emergency room at the time in question: Alice Cohane O'Brien, a registered nurse at University at the time; Tressa Domingo, a licensed practical nurse at that facility; Rose Odessa Bowers, also a licensed practical nurse at University Hospital; Frank B. Bellamy, a registered nurse manager at University; Kay kamienski, Director of Nursing at University; Carole Anne Cayer, Professor of Nursing at Jacksonville University; Dr. Eileen K. Austin, a registered nurse and educator in Florida, and Zena Mae Lee, 3:00 p.m. - 11:00 p.m. House Supervisor at University Hospital. Petitioner also introduced Petitioner's Exhibits 1 and 2 and 4 through 7.
Respondent testified in his own behalf and presented the testimony of JoAnn Hahn, a registered nurse at Methodist Hospital; and Kathy Jean Carver, a registered nurse who worked with Respondent at University Hospital and introduced Respondent's Exhibits A and B.
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.
FINDINGS OF FACT
At all times relevant to the issues, Respondent was licensed as a registered nurse in the State of Florida under license number 1262382 and was employed as a registered nurse at University Hospital of Jacksonville, Jacksonville, Florida.
On the late afternoon or early evening of March 14, 1984, a female patient was brought into the emergency room at University Hospital suffering from an overdose of asthma medicine for which the prescribed treatment was dialysis to cleanse the blood of the drug. When the hospital personnel had determined that adequate dialysis had been accomplished the patient was removed from the dialysis machine. A patient is affixed to a dialysis machine through the insertion of tubes into a vein and artery which facilitates the removal and replacement of the blood being cleansed. When the catheters are removed, it is necessary that pressure be applied to the place of insertion for a period of time to allow clotting sufficient to stop bleeding from the vein or artery. Generally, the pressure is administered by a nurse physically applying pressure to the immediate area.
This patient did not respond properly, however. As a result, Dr. Mendez-Vigo was called to examine her. He determined that because of her blood loss, a transfusion was appropriate, which he ordered, and then left the treatment area. Approximately ten minutes later, he was called again and advised that the patient's blood pressure was dropping and that the dialysis nurse, the nurse that was attending the patient at the time, needed him. Dr. Mendez-Vigo advised the nurse to start a saline solution and indicated he would come to the dialysis unit, where the patient was being treated, as soon as possible.
The dialysis of this patient was accomplished in the dialysis room which is located contiguous to and immediately off the cardiac intensive care unit (ICU) in the hospital. Ordinarily, the dialysis room, which opens onto the ICU is not manned. It is however, generally fully equipped with its own
supplies and equipment and when this patient was placed on the dialysis machine, she was moved to this dialysis unit and tended by a nurse, Ms. Domingo, whose sole job was in the dialysis unit.
Ms. Domingo was called to come in from off-duty to attend to the patient in question and arrived at the dialysis unit at approximately 5:15 p.m. When she arrived, she found the patient stable, and the only treatment required at the time was pressure to the groin area as described above to promote clotting until the bleeding stopped. After Dr. Mendez-Vigo started the transfusion and left, as described above, the patient became restless and started sweating, which prompted Ms. Domingo to stop the flow of blood. This took place at approximately 6:00 p.m. Once she stopped the inflow of blood, she wanted to remove the needle through which the blood was being inserted, but because she was unable to remove the pressure from the patient's groin area and because she was alone in the dialysis unit, she called for help from those nurses assigned to the ICU. At first, no one responded, but shortly thereafter, after a second call for assistance, Nurse O'Brien did come in.
Ms. O'Brien was, at the time, one of several nurses assigned to duty on the ICU and had worked there just a few days. She and Respondent, the nurse in charge of the unit, were the only two registered nurses on duty, along with several licensed practical nurses (LPN's). However, at the time in question, Respondent was off the unit at dinner and Ms. O'Brien is not sure where the LPN's were.
When she heard the dialysis nurse call for help, she went into that room and saw the situation. Ms. Domingo told her that the patient looked to be in shock - sweating, with a high pulse rate, very low blood pressure, and in a semi-conscious state. At this point, Ms. O'Brien immediately opened up the IV point to put in a saline solution, then went outside the dialysis room to get equipment to start another intravenous line (IV), and to page Dr. Mendez-Vigo.
When she brought back the equipment she needed and tried to start the second IV, she experienced difficulty because of the patient's low blood pressure. At this point, she asked another nurse from the ICU to speed the doctor up. At this time, in her opinion, the patient was extremely unstable and near critical.
It was then that Ms. O'Brien first saw the Respondent. She told him she was going into the dialysis unit to help out. Respondent did not follow, but instead went to the nurse's station on the ICU from which he could see the door to the dialysis room and called to Ms. O'Brien telling her she was not to go into the dialysis unit since it was a separately staffed unit. Ms. O'Brien responded to the effect that while this might be the case, the patient was sick and needed help and she was going to give it. In response, Respondent told her several times that she was not to be in the dialysis room. Ms. O'Brien finally told Respondent that she was going to do what she had to do regardless of what he- said. She further contends that when Dr. Mendez-Vigo finally returned her call, Respondent took the call and spoke with the doctor but refused to tell Ms. O'Brien what the doctor said until she came out of the dialysis room to talk to him. To do so, she had to leave the patient with whom she was working to go to the nurse's station and get the message from the doctor which had been given to Respondent.
When Dr. Mendez-Vigo arrived at the dialysis unit, he saw the Respondent and two other nurses in the ICU area. He went into the dialysis unit and observed the dialysis nurse still applying pressure to the artery and one other nurse, subsequently identified as O'Brien. At this point, Respondent and the other nurses in the ICU were standing around in that unit not assisting in the dialysis area.
When he arrived, Dr. Mendez-Vigo found the patient to be nearly unconscious with a high pulse rate and low blood pressure. He suspected a transfusion reaction and because of that, started action to counteract that situation. Because both nurses in the dialysis room were totally occupied by the patient, he needed help to get other things ready for treating the patient. For example, he needed to get additional equipment, additional IV lines had to be prepared; and solutions had to be mixed. Both Ms. Domingo and Ms. O'Brien seemed to him to be upset because it appeared Respondent had attempted to keep the other ICU nurses from helping in the dialysis room when they were needed because the patient was not an ICU patient.
During the initial telephone conversation between Dr. Mendez-Vigo and Respondent, the doctor requested Respondent to secure certain supplies. When the doctor got to the dialysis unit and saw the condition of the patient, he took a blood sample, which he asked Respondent to take to the lab for identification for transfusions. Respondent failed to respond to any of the doctor's requests.
Another resident, Dr. Curran, was called into the dialysis from by Dr. Mendez-Vigo when she came to the ICU that same evening. On at least one occasion, after she started to work on this particular patient, she walked out to the nursing station of the ICU and asked Respondent for help. At that point he refused, stating that he was busy and responsible for all the other patients and could not leave. As a result, Dr. Curran took the blood to the lab for what lab work was necessary. When she got back from the lab, she asked Respondent where she could get MAST trousers for the patient and if he would call the emergency room to inquire. Respondent refused to do this, requiring Dr. Curran to do it herself. When she was advised that the operating room might have them and started to place that call, at that point, Respondent did make the call to try to secure what she needed.
During the course of his treatment of the patient, Dr. Mendez-Vigo had occasion to attempt to use the cardiac monitor that was a part of the equipment in the dialysis room. It is unclear whether the doctor did not know how to operate the equipment or whether it did not work. In any event, the doctor requested the Respondent to get a portable monitor that was a part of the ICU's equipment. Respondent refused this request initially on the basis that the patient was a dialysis patient rather than an ICU patient, and that his instructions were that ICU equipment could not be used for dialysis patients. Notwithstanding his initial refusal, Respondent ultimately did provide the requested monitor, however.
Dr. Mendez-Vigo's recollection of the incident was that the Respondent's total response was that since the patient was not an ICU patient, he could not help out and do what was necessary since he was assigned to ICU, not dialysis. He reportedly stated that he could get into trouble if he did. According to the doctor, however, none of the other patients in the ICU needed immediate attention so that, in his opinion, Respondent or some other member of his staff could have assisted in the treatment of this critically ill patient. What was unknown to Respondent at the time was that the patient had been identified for admission to the ICU, and orders to that effect had been written by Dr. Mendez-Vigo though the formal process of admission had not taken place. As was stated, this information regarding proposed admission had not been communicated to Respondent or the other ICU nurses even though the information was contained on the patient's chart which was with her in the dialysis room during this period of time. If Respondent had
gone in to help as requested and looked at the chart, he would have seen this.
According to Ms. O'Brien, through all the period of requests for help prior to the arrival of the doctor, and even through the period of requests for assistance and equipment after the arrival of the doctors, Respondent did not come into the dialysis room to see the patient's condition for himself. It was only after Dr. Mendez-Vigo started the neck IV line that the Respondent came into the dialysis room, and when he saw the patient he said something to the effect of, "Oh, I didn't know she was so sick." This was 20 to 25 minutes after the original call for help.
Sometime after the incident, Respondent went to Ms. O'Brien and apologized to her for not responding more quickly and for trying to get her out of the dialysis room when he returned from dinner. At that time, he said his resistance was based on the fact that he did not want her to get into trouble. He also told her that if she intended to report the incident, he would just go ahead and submit his resignation because he had been in trouble previously and this would hurt him.
Respondent's demands to Ms. O'Brien to come out of the room when she was in assisting Ms. Domingo, prior to the arrival of the doctor, were heard clearly by Ms. Domingo. Ms. Domingo also overheard the doctor ask Respondent to help hook the patient up to the monitor and overheard Respondent's initial refusal. What was most puzzling to Ms. Domingo was that though she had never dealt with Respondent prior to this time, whenever she had asked for help from the ICU nurses previously, she had always gotten it.
According to another nurse on the ICU that evening, Ms. Bowers, who was on her break at the time of O'Brien's first confrontation with Respondent, emergency situations requiring help from the ICU personnel were not frequent and this was the first emergency situation she knew of involving Respondent. In this case, she was not aware of any "code" being announced, nor overheard the argument between Respondent and Ms. O'Brien. She had been in the ICU for an hour prior to this time and during that entire period, had received no request from Ms. Domingo for help. She had not previously been asked for assistance and until she became aware of the problem by overhearing the dispute referenced above, she had no idea there was an emergency situation in the dialysis room.
Frank B. Bellamy works as a nurse manager at University Hospital for the ICU. As a part of his job, he oversees and evaluates nursing services in the ICU and was doing so at the time of the incident in question. To his knowledge, at that time, there was no written policy on support of the dialysis unit by the ICU. However, the oral instructions given to ICU personnel were that ICU equipment and supplies were not be used in routine cases in the dialysis unit - only in emergency cases. In an emergency case, anything could be used.
The job description drafted for registered nurses in University Hospital does not delineate any separation for jobs between ICU and the dialysis unit, but it was generally followed at the time in question that ICU nurses did not help out in the dialysis room in routine situations. However, in an emergency situation, ICU nurses could and should help--out.
In Mr. Bellamy's opinion, in the instant case, as the fact situation existed, extra help was needed and the ICU nurses, including Respondent, could have and should have helped out if this assistance could be provided without jeopardizing the patients in the ICU. In such a case, the ICU nurse would have called the nursing supervisor, reported the situation, and requested help.
In his opinion, Respondent's conduct in this case was unprofessional misconduct. It was not negligence but willful misconduct in that the Respondent refused to render assistance in an emergency situation and attempted to prevent Ms. O'Brien from doing so as well. Both of these are evidence of willful misconduct. In addition, in an emergency situation, the Respondent's failure to provide the portable monitor in a timely fashion was both unprofessional and unsafe in that the ability of the physician to determine cardiac rhythm is crucial.
Nurses are obliged to acknowledge physician's orders and, if considered safe, to follow them. In emergency situations, according to Mr. Bellamy, it is negligence and unprofessional conduct not to provide assistance and equipment to a doctor upon request. Here, in the professional opinion of Mr. Bellamy, the Respondent's failure to provide the requested assistance to the doctor was critical and constituted negligence and unprofessional misconduct. The mere fact that the Respondent delayed responding is negligence because in an emergency situation, as here, time can be and was of the essence.
Respondent made much of the need for the charge nurse to oversee the patients on the ICU. In fact, these checks by the charge nurse, the job which Respondent was filling at the time, were done only every 10 or 15 minutes, and assuming that this was necessary and critical on a routine schedule, there was still ample time between the checks for the Respondent to respond to the dialysis unit. Here it is clear that Respondent was asked for help and either refused to give it all, or failed to respond in a timely fashion. It is also clear that Respondent refused to provide equipment and other supplies, even though under the guidelines in place at the time, and which, though oral, had been briefed to the ICU nurses, this situation was one where he could have properly done so.
With regard to Respondent's contention that he had been told that he was not to go into the dialysis unit to help, Ms. Kamienski, the Director of Nursing who helped to interview Respondent when he was hired, advised him that the dialysis section was responsible for routine care but that it was placed where it was, contiguous to the ICU, so that ICU nurses could help out in an emergency. She categorically denies ever telling Respondent that dialysis was to get no help, nor that he was never to go in there.
As Director of Nursing, Ms. Kamienski received the complaint about the Respondent in the incident in question, and on the basis of the complaint did some investigation. She determined from her interview of the physicians and nurses involved, that the allegations were true and Respondent's conduct was inappropriate.
In her opinion, any registered nurse who has the knowledge and skills (and, as here, the resources) to render aid and assistance in a need situation, who does do so and who, as here, attempts to hinder aid, is guilty of negligence and should not practice nursing in the State of Florida.
Ms. Kamienski is satisfied that Respondent used poor judgment in this assistance. He should have either helped out himself or assigned someone on the unit to assist and he did neither. Also, he could have contacted the house supervisor to get help either for his unit or for the dialysis unit and failed to do that. In her opinion, his conduct was unprofessional and insubordinate. He had the responsibility to help out in a life threatening situation and failed to do so.
Admittedly, the dialysis unit had been requested to use its own equipment and supplies, but in a life threatening situation, they were to get anything they needed. This is now, and was the policy at University Hospital, and to the knowledge of Ms. Kamienski, a similar policy is found in almost any hospital. It is a general standard of practice in nursing to use whatever is needed from wherever located in an emergency situation. Here, Respondent's delaying tactics in making the telephone calls at the request of physicians, was unprofessional conduct because of the life threatening situation. Death to the patient could be imminent in a situation such as this, and Respondent had a duty to respond in a timely fashion.
Respondent also makes much of the fact that none of the other nurses in the ICU offered assistance and that nothing was done to them. The fact is that none of the other nurses were asked for help, nor were they asked for supplies and equipment by physicians, nor did they interfere to tell Ms. O'Brien to come out. As to the monitor, Ms. Kamienski feels that while admittedly it is not Respondent's responsibility to ensure that the dialysis monitor was working, under the circumstances of this incident, when he was asked for a portable monitor in an emergency situation, he should have provided it and not argued about whether the dialysis monitor was working or not.
In the opinion of Ms. Cayer, a professor of nursing at Jacksonville University, a registered nurse should respond to an emergency and provide whatever assistance is necessary in the situation in the geographical area of the nurse, even if the patient is not the nurse's patient. Having had an opportunity to review the extensive documentation which outlines the situation here and what Respondent did and failed to do, and which fairly reflects the facts in evidence, she concluded that the patient here was unstable and rapidly declining; this was very near or actually was a severe emergency, and there was a need for help.
Ms. Cayer was made aware of a hypothetical situation which very closely parallels the factual situation in this case. Based on this hypothetical situation, she concludes that the Respondent in that case was negligent because: (1) when the nurse in question arrived on the scene, he should have gone into the dialysis unit, assessed the situation, and made staffing changes to help out and meet the situation, all of which he failed to do (he needed to gain the knowledge of what the needs were and to take action to meet those needs); (2) he improperly
attempted to get the nurse (Ms. O'Brien) to come out of the dialysis room without assessing the situation and its needs (by the time he knew that the blood pressure was low and communicated this information to Dr. Mendez-Vigo, he surely must have known there was a problem); (3) while it would not have been proper for him to leave the floor to go to the blood bank himself, it was unprofessional of him not to arrange for someone else to go in light of the fact that he could have done so; (4) as to the monitor situation, he should have followed up on the request for an additional monitor to see why the request was made (If he had done so, it would have shown that the monitor was not working and he would have provided a replacement sooner. His failure to follow up on the request and his rejection of it without further inquiry was unprofessional); (5) his failure to communicate effectively in all these respects hindered the staff in their treatment of the patient and was unprofessional conduct.
Much the same approach is taken by Dr. Eileen K. Austin, also an expert in the field of nursing, who indicated that nursing education generally teaches that first and foremost the interest of the patient takes precedence over policies and regulations which may be ignored if necessary. Also, the nurse must assess the situation and either provide the needed service or get someone else who can provide it. Emergency procedures care is taught as a part of several courses in nursing education.
Nurses are also taught generally that if the need is there, the nurse acts regardless of where the patient is assigned and once in the picture, retains treatment status until relieved.
As to the response to physicians, nurses are taught they are to respond promptly unless they suspect it is an improper order which would endanger the patient. Nursing assessment includes observing the patient for signs and condition, to take vital signs, to ensure there is an airway for breathing, and once having made an assessment, either provide or secure help.
These basic concepts are universal to nursing training. The course title may vary among nursing schools and among nursing programs, but the subject matter is basically the same and these subjects are, in substance, on the nursing licensing examination.
The primary difference between the two-year associate of arts program in nursing and the four-year bachelor program is in the other primarily non-nursing, non-scientific curriculum. Basic nursing material is the same in both. The requirements for the registered nursing license requires certain basic information be taught, and it does not matter through which program these requirements are met.
Respondent's reputation is good among the people with whom he currently works. For example, Respondent has worked for JoAnn Hahn at Methodist Hospital as a staff nurse for one year and she has observed his work in both routine and emergency situations in the accomplishment of his duties which are equivalent to being the charge nurse on a particular shift. She finds Respondent to have a very good knowledge of critical care situations and to her knowledge, he has never mis-diagnosed a case. He anticipates medications correctly and has them ready, and he also knows what lines are needed and has them ready.
In critical care his performance is above the standards she has observed in other hospitals. In responding to requests from supervisors or doctors, if he agrees with the request, he speaks out, somewhat abruptly sometimes, but this is what she wants her nurses to do. Above all, however, Respondent never lets the patient down, and Ms. Hahn has no reservations whatsoever about his training, ability or performance. When he is on duty, she feels quite safe.
Ms. Hahn is aware of the incident in question here, having reviewed the statements regarding it and her knowledge is consistent with the facts in evidence. She has also reviewed the hypothetical situation and based on this, she feels that Respondent's actions in question were not a violation of the Nursing Practices Act.
In Ms. Hahn's opinion, Respondent was not incorrect in calling Ms. O'Brien out of the dialysis room because the ICU was, in her opinion, under-manned in light of the serious condition of the patients on the floor, and Respondent did not have a report on the condition of the patient in the dialysis room.
As to the monitor situation, she feels the patient should not have been put on the dialysis machine in this case without being put on a monitor as well from the very beginning. Also, the needed IV lines should have already been started prior to the dialysis in case of need.
As to Dr. Mendez-Vigo's telephone request to the Respondent to start an IV line, since Ms. O'Brien was already trying to get it started and Respondent could see this, it was not necessary for him to go in and attempt the same thing. The fact that Ms. O'Brien could not accomplish the start and it was necessary for the doctor to start a sub-clavian line is immaterial since a registered nurse would not do that procedure anyway.
In short, in light of the condition of the patients on the ICU, Ms. Hahn feels Respondent could not have properly left the unit. He also could not have gotten the blood because he did not have the patient's proper plates or bands as required by the lab. As for the portable monitor, he could have asked why they did not use the monitor they had, but, Ms. Hahn feels the delay based on his understanding of the monitor being in there was "just common sense."
Cathy Carvery has known Respondent from the time she hired him at University Hospital. She observed him in his work there in the handling of patients and feels that his competence, training, and other skills are very good. He handled crisis situations very well and knew what he was doing.
She, too, has reviewed all the background information on the situation and is familiar with the dialysis room and equipment at University Hospital. In light of the staffing in the ICU at the time, in her opinion, it was not at all improper for the Respondent to have refused to send any more of his staff to the dialysis room. Also, in her opinion, though he could have tried to get the blood as requested, he would not have been able to do so without more information on the patient, which was not available to him. In addition, even if he had tried to insert the IV line as requested by the doctor, the likelihood is great he would not have been able to get it started.
What is overlooked by both Ms. Hahn and Ms. Carvery in their exulpatory comments regarding Respondent's failure to assist, failure to go for blood, and failure to attempt to start the IV line as requested, is that though what they say may well be true and that Respondent could not have accomplished anything, the fact is he did not even try. With regard to assisting or providing more help, a telephone call to the supervisor of nursing would have resolved that situation without either he or any more of his people being required. Though he called Ms. Lee, he did so to report what he considered to be Ms.
O'Brien's improprieties and at no time requested any help. Though he most likely could not have accomplished getting the blood as requested because of the lack of plates, the fact is that though asked to do so, he did not even try and the same is true with regard to the IV line. It does not matter that the sub-clavian insertion was done by the doctor. Respondent was not asked to insert a sub-clavian catheter. He was asked to attempt an intravenous line and did not even try. It is impossible to say what he would have done if he had attempted to assess the situation and find out what the condition of the patient was as he should have done. He did not, and it this particular especially, he was deficient.
With regard to the incident in question, when Respondent came back from dinner he was told by one of the LPN's on staff that Ms. O'Brien was in the dialysis room because a patient was bleeding from an arterial line. In his experience, this was not too serious and in light of the fact that Ms. O'Brien was off the ward, one nurse was out to dinner, another was on duty, and he did not know here the fourth was, he was miffed.
As a result of this, he called Ms. O'Brien out of the dialysis room to talk to her and she did not respond to his request. This made him angry. He did not have any responsibility for dialysis patients and his understanding of support to be furnished to the dialysis unit was that he was not to take any equipment in there. In light of his previous chastisement for doing so, he was upset.
Though he denies refusing to convey Dr. Mendez-Vigo's message to Ms. O'Brien unless she came out of the dialysis room to get it, it is clear that in light of his admittedly poor frame of mind at the time, he did just that. He also admits to first suggesting, when requested to get another monitor, that they use the one in the dialysis room. Nonetheless, he says he went and got the portable within just a few minutes and hooked the patient up to it. Since Dr. Mendez-Vigo did not ask for any further assistance or give him any additional orders thereafter, he went back to work.
When Dr. Curran asked him for the blood from the lab, he asked for a charge plate and was told it was in the dialysis room. He found, however, that the patient had not been admitted and did not have a charge plate, and he would therefore be unable to get the blood requested. He then started the admission process because he felt that when that was
accomplished, within a 30-minute period or so, he could then get the blood as requested. As for the MAST trousers, when asked by Dr. Curran to get them, he, because of other duties, could not respond immediately, but did so several minutes later, at which time the request was refused. Dr. Curran, parenthetically, also was refused when she requested the trousers.
When, as stated before, Respondent called Ms. Lee,
the
3:00 p.m. to 11:00 p.m. supervisor, to report Ms. O'Brien, he was told to let her stay there. No request for assistance, equipment or supplies was made.
On the basis of the investigation by Ms. Kamienski and after consultation with Mr. Bellamy, a recommendation of termination was prepared and delivered to the Respondent. In accordance with the procedures that were in effect at the time, he requested a hearing and one was afforded him. Respondent contends that the hearing was a farce and he was not given the opportunity to confront any of the witnesses or evidence against him. After the hearing was over, he was offered the opportunity to resign in lieu of termination and did so.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.
In its Administrative Complaint, the Petitioner contends that the Respondent, on March 14, 1984, while employed at University Hospital as a registered nurse, by inappropriately failing to respond and failing to respond promptly to the reasonable and prudent orders of a physician in an emergency situation; by inappropriately preventing or attempting to prevent the rendering of nursing care to a critically ill patient in a nursing situation; by inappropriately refusing or attempting to refuse the use of necessary medical equipment for a patient in an emergency situation involving a critically ill patient, violated the rules of the Board of Nursing and thereby violated Section 464.018(1)(j), Florida Statutes.
Rule 210.10.05(2), Florida Administrative Code, permits the Board of Nursing to impose disciplinary penalties upon a determination that a licensee:
(e). . . is guilty of unprofessional conduct which shall include, but not be limited to:
* * *
(12) Acts of negligence, gross negligence, either by omission or commission; and
* * *
(g). . . is unfit or incompetent by reasons of gross negligence, physical or mental condition or other like causes which could result in behavior that interferes in his practice of nursing. . . .
Such conduct, if proven, is grounds for disciplinary action under Section 464.018(1)(j), Florida Statutes, which identifies as grounds for disciplinary action:
Willfully or repeatedly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.
Substandard performance as a nurse is also made the subject of disciplinary action under subsection (f) of the above statutory section if the licnesee's performance can be shown to be:
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.
The Administrative Complaint basically alleges four separate courses of conduct. In all cases, the patient who is the same throughout, was a critically ill patient and the situation was an emergency. The first allegation of impropriety deals with the alleged failure of Respondent to respond (promptly) to the reasonable and prudent orders of physicians. Respondent contends that in some cases such as in the case of
the monitor, the blood, and the MAST trousers, he either responded or was unsuccessful in his efforts. The evidence clearly indicates,
however, that with regard to the trousers, he delayed meaking the request for several minutes after being asked to do so. He should have responded immediately. With regard to the blood, he contends that his investigation, which showed a lack of admission of the patient and thereby a lack of plates, would have prevented him from procuring the blood when asked by the physician and that his attempts to procure the patient's admission would have solved the problem within thirty minutes or so. This is insufficient. He should have responded immediately or at least made an effort to do so. As to the monitor, his immediate response of asking why the monitor in place was not being used and his delay in bringing in a monitor under the circumstances was insufficient. He should have responded immediately. In light of the above, it is clear that the evidence establishes without doubt that Respondent inappropriately failed to either respond or to respond promptly to the reasonable and prudent orders or the physicians as alleged.
In the second allegation, Respondent is alleged to have inappropriately prevented or attempted to prevent the rendering of nursing care. Here again, he was asked by Ms. Domingo, by Dr. Curran, and by Dr. Mendez-Vigo to render assistance on several occasions and failed to do so. To make matters worse, when he returned from dinner and saw Ms. O'Brien in the dialysis room, his demands that she come out and abandon the patient without first assessing the patient's condition and the situation constitutes a clear attempt to prevent the rendering of proper nursing care.
When asked for a monitor and for other supplies and equipment by the doctors attending the patient, the evidence clearly shows that Respondent either refused directly, delayed, or attempted to refuse or obstruct the use of this equipment, notwithstanding the patient was in a critical situation, without making any effort to determine whether such equipment was necessary.
It is further clear from evidence in the form of the testimony of Dr. Austin and Ms. Cayer, that prudent nursing practice dictates that when Respondent returned from dinner and found Ms. O'Brien in the dialysis room obviously intent on providing treatment to a patient, that appropriate action would have been to attempt to find out what was going on, to assess
the condition of the patient, assess the needs of the patient and the professional staff, and provide whatever assistance was necessary. Respondent obviously failed to do any of the above. Without going into what appeared to be an immature and petulant display of emotion, it is clear that Respondent's failure to find out what was required and to then do what was required constitutes clearly a failure to assess and respond as alleged.
Taken independently and together, Respondent's actions in this case clearly show him to be guilty or actionable misconduct and his failure to assess the situation as is taught in basic nursing classes to all registered and licensed practical nursing students is a clear demonstration of gross negligence which falls within the provisions of the rule and therefore, Section 464.018(1)(j), Florida Statutes.
In addition, his conduct clearly constitutes unprofessional conduct which fails to conform to the minimal standards of acceptable and prevailing nursing conduct in violation of Section 464.018(1)(f). There is no evidence that Respondent's misconduct or unprofessional actions in any way caused death or injury to the patient in question.
Having thus concluded that Respondent's actions constitute an actionable violation of the statute and rules of the Board of Nursing, the remaining question is what action should be taken. It is indeed fortunate that Ms. O'Brien persisted in her humanitarian efforts on behalf of the patient in question. There is no evidence, however, that Respondent's actions had any adverse effect on the patient's condition. Aside from Respondent's comments to Ms. O'Brien at the time of his apology to the effect that he was already in trouble, there is no independent evidence of this which would serve to aggravate the situation. Nonetheless, the evidence here
demonstrates a grievous lapse on the part of Respondent from the standards expected of a registered nurse in this state and this lapse cannot reasonably result in less than serious and appropriate corrective action. It is clear that Respondent must be made aware of the fact that misconduct such as displayed here will not and cannot be tolerated in the nursing profession in this State and whatever action is necessary by the Board to impress this upon him, within the limits set by statute, is appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED, that Respondent's license as a registered nurse in the State of Florida be suspended for one year and that upon completion of the period of suspension, he be reinstated and placed on probation for a period of three years under such terms and conditions as prescribed by the Board of Nursing.
RECOMMENDED in Tallahassee, Florida this 27th day of September, 1985.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985.
COPIES FURNISHED:
Stephanie A. Daniel, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
L. Haldane Taylor, Esq.
331 East Union Street Jacksonville, Florida 32202
Judie Ritter, Executive Director Board of Nursing
Room 504
111 East Coastline Drive Jacksonville, Florida 32202
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore Carpino, Esq. General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Sep. 27, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 15, 1986 | Agency Final Order | |
| Sep. 27, 1985 | Recommended Order | Nurse's failure to properly supervise a subordinate and failure to respond promptly to doctor's orders are gross negligence under the circumstances. |
