STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 85-0754

)

NANCY E. REDFERN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 30, 1985, in Sarasota, Florida.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

200 South Monroe Street, Suite B Tallahassee, FL 32301

For Respondent: James J. Boczar, Esquire

3100 South Tamiami Trail Sarasota FL 33579

BACKGROUND

By administrative complaint filed on November 26, 1984, petitioner, Department of Professional Regulation, Board of Nursing, has charged that respondent, Nancy E. Redfern, a licensed registered nurse and advanced registered nurse practitioner, had violated Subsection 464.018(1)(f), Florida Statutes. The underlying allegations supporting the complaint are that (1)while treating a patient during pregnancy at a birth center in 1982, respondent failed to refer that person for medical treatment and allowed her to deliver at the birth center despite numerous indications that hospital medical treatment was required, and (2) while treating a second patient during pregnancy in 1984, respondent failed to refer that patient for medical treatment and tests and accepted her for delivery despite numerous indications that the patient required such medical

treatment. According to the complaint, such conduct violated Subsection 464.018(1)(f) which prohibits unprofessional conduct which departs from or fails to conform to the minimal standards of acceptable and prevailing nursing practice.

Respondent disputed the above allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was referred by petitioner to the Division of Administrative Hearings on March 11, 1985, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated April 19, 1985, the final hearing was scheduled on May 18, 1985 in Gainesville, Florida. At the request of respondent, and without objection by petitioner, the matter was rescheduled to July 24, 1985 in Sarasota, Florida.

Upon agreement of the parties, the matter was rescheduled to October 30, 1985 at the same location.

At final hearing, petitioner presented the testimony of Anne Scupholme. It also presented the deposition testimony of Judith

M. Levy and Phylis C. Brinkman which were received in evidence as petitioner's exhibits 1 and 2. In addition, it late filed petitioner's exhibit 3 which was received in evidence.

Respondent presented the testimony of Dr. Linda Boczar and offered respondent's exhibits 1 and 2. Both were received in evidence.

The transcript of hearing was filed on December 2, 1985. Proposed findings of fact and conclusions of law were filed by petitioner on December 11, 1985. None were filed by respondent. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

At the outset of the hearing, petitioner voluntarily dismissed paragraphs 7-10 of Count I. At issue herein is whether respondent's licenses as a registered nurse and advanced registered nurse practitioner should be disciplined for the remaining alleged violations set forth in the administrative complaint.

Based on all of the evidence, the following facts are determined:

FINDINGS OF FACT

1. INTRODUCTION

   
   

   1. At all times relevant hereto, respondent, Nancy E. Redfern, held registered nurse and advanced registered nurse practitioner license numbers 58137-2 and 581 7-B, respectively, issued by petitioner, Department of Professional Regulation,

      Board of Nursing. She presently resides at 155 Magnolia Street, Atlantic Beach, Florida.

      
      

   2. In 1982, Redfern was a part owner of Birthplace, Inc. (BI), in Gainesville, Florida. Birthplace, Inc. was a freestanding birth center established to provide births for women who were sustaining normal pregnancies in an out of hospital setting. Redfern served as head nurse and midwife, and was in charge of the clinical aspects of the program. In addition to Redfern, two other nurse midwives were employed at BI. The three rotated responsibilities on a week-to-week basis. For example, one midwife would perform prenatal care, post-partum checks and office administrative responsibilities during the week, the second would become the on-call nurse for evaluating patients in labor and performing deliveries, and the third would act as a backup for the other two. These duties were rotated among the three.

      
      

   3. Freestanding birth centers, including BI, normally adopt what is called a "protocol" which sets forth established procedures, policies and guidelines to be followed by nurses and other medically related employees. A protocol establishes the framework for the performance of all medical procedures which nurse midwives are authorized to provide. In the case at bar, BI's initial protocol was first adopted in 1980. This was placed by a new protocol adopted in August, 1982, which was to be followed by all nurse midwife employees, including Redfern. The new protocol was in effect when the relevant events herein occurred. It is noteworthy that Redfern played a significant role in writing the protocol.

2. RUMPH BABY (COUNT I)

   
   

   1. Maralee Rumfh was a thirty year old white female patient at BI. Although she first visited BI in January, 1982, she was not examined by Redfern until April 21, 1982, when she was determined to be between 17 and 21 weeks pregnant. Rumfh was periodically examined by one of the three midwives during the next few months. On September 13, 1982, Redfern administered a 39-week examination. According to protocol, a number of tests were required at this date including blood pressure, urine, weight, fetal heartbeat and fundal of height measurement. The latter measurement is designed to determine if the baby is growing appropriately for the gestation period.

      
      

   2. On October 2, 1982, Rumfh was examined by another midwife at BI. As a result of that examination, it was noted in Rumfh's chart that the baby was not moving as much as he had moved in the past. Accordingly, respondent should have been

      aware of these reduced fetal movements by simply reading the patient chart.

      
      

   3. On October 5, 1982, Rumfh received a routine prenatal examination and physical assessment from Redfern. At that time a notation was made by Redfern in Rumfh's chart that she was 42 1/2 weeks. The average gestational age is 40 weeks, and any patient beyond 42 weeks is considered to be at risk and should not be managed by a nurse midwife alone. Standard protocol and the BI protocol both require that the patient be referred to an STH high risk clinic or a private physician for a nonstress test at 42 weeks. This involves the placing of a doppler on the patient's abdomen to record the baby's fetal heart rate and to measure the reaction of the baby to its movement. A nonstress test was also indicated by the prior annotation on October 2 reflecting reduced fetal movement. Despite both warnings, Redfern failed to refer Rumfh for a non-stress test. By failing to do so she deviated from the minimal standard of acceptable and prevailing nursing practice.

      
      

   4. Redfern accepted Rumfh at BI for delivery even though protocol and good nursing practice dictated that the patient be referred to a safer setting. During the second stage of labor, there was the presence of meconium staining. This was not surprising since the risk of meconium complications is substantially increased after 42 weeks. The baby was ultimately transferred after birth to Shands Teaching Hospital where it subsequently died with a diagnosis of post-maturity and several other causes. Post-maturity means that the baby had gone over 42 weeks and the placenta had not functioned properly.

      
      

   5. The determination of gestational age is a somewhat complex and imprecise calculation. In general terms, pregnancy lasts for nine calendar months plus one week from the date of the last menstrual cycle, or approximately forty weeks. As established by Redfern's expert witness, it is not always possible to determine with precision the gestational age of a patient. In this regard, several tests may be used to determine the gestational age. In the case at bar, the patient's chart noted that Rumfh was 42 1/2 weeks on October 5, and there is no indication that Redfern believed this to be inaccurate, or that the she attempted to recalculate the age. Therefore, her conduct cannot be condoned or excused on the ground she was unsure of the gestational age.

3. SLEAN BABY (COUNT II)

   
   

   1. Donnis Slean was a seventeen year old white female patient at BI in 1982. She was treated by Redfern from around May 13 to September 2. Although a part of her patient records

      are incomplete, the remainder have been reconstructed so as to give a satisfactory picture of the treatment Slean received at BI.

      
      

   2. As general rule, uterine growth in centimeters should approximate gestational age at 35 weeks and beyond. If it does not, this is a significant indication of intrauterine growth retardation (IGR) which is caused by the baby not growing or the amount of fluid decreasing in the uterus. Uterine growth is ascertained by measuring the fundal height of the uterus. In the case of Slean, as documented in her patient chart, she had a fundal height of 29 centimeters at 35 weeks, 32 centimeters at 36 weeks, and 29 centimeters at 37 weeks. All such measurements should have alerted Redfern to the fact that the uterus was not growing appropriately. According to BI protocol, a number of medical tests should be performed where IGR occurs. These tests or procedures are set forth in detail in Item 4 on page 6 of the BI protocol. There is no evidence that Redfern complied with this item in any respect. She also failed to comply with protocol which dictated that Slean be referred to a physician for further medical treatment given these conditions. By failing to perform any such tests or refer the patient for more sophisticated care, she deviated from the minimal standard of acceptable and prevailing nursing practice.

   3. Despite the above warnings, Redfern accepted Slean as a patient for delivery. Redfern was in charge of managing Slean during her labor and delivery. Her second stage of delivery was one hour, which is an average time. Although there were variable decelerations of the fetal heart tone during the second stage, according to Redfern's expert who as accepted as being the more persuasive on the issue, they are common and rarely indicate distress to the baby. During this stage, Redfern placed Slean on her left side, and administered oxygen. Both are a proper response to decelerations during the second stage.

      
      

   4. The patient chart does not reflect whether meconium was present in the amniotic fluid of Slean during delivery. The documentation of meconium staining is essential in order to determine whether the patient should be transferred to a physician's care or a hospital setting. Redfern made no such notation on the patient chart, and by this omission, failed to conform with the minimal standard of acceptable and prevailing nursing standard. When the baby was delivered, it had Apgar scores of 3, 4, and 4, which indicate a markedly depressed baby. Indeed, it was born with respiratory distress which required emergency measures by Redfern. There are five methods of resusitating an infant that is born depressed. None is considered the superior method. However, suction airway and bag- to-mouth are the two most preferred methods. Mouth-to-mouth

      resusitation is not generally given unless an emergency exists and no other method is available. According to the patient notes, Redfern administered mouth-to-mouth resusitation for some eight minutes, even though other methods were available. An ambulance was also called, but, by this time the infant had died of asphyxiation. By failing to use other available oxygen paraphernalia, Redfern deviated from both protocol and the minimal standard of acceptable and prevailing nursing practice.

      
      

   5. There is no evidence as to whether Slean was post term in her pregnancy at the time she delivered her child.

      
      

4. MITIGATION

1. Expert testimony on behalf of Redfern was given by a obstetrician-gynecologist who also operates a birthing center. This physician had employed Redfern for eighteen months after the incidents herein had occurred and had supervised Redfern's delivery of some fifty babies. She considered Redfern to be a good nurse and one who adhered to all established procedures and protocol.

   
   

2. Redfern has been the subject of one prior disciplinary proceeding. In that case she received a reprimand while at BI for calling in a prescription without a physician being physically on the premises at the same time.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

4. As clarified by counsel during the course of the hearing, respondent is charged with violating Subsection 464.018(1)(f), Florida Statutes, by (a) failing to refer patient Rumfh for medical treatment and allowing the delivery of her baby even though Rumfh was 42 1/2 to 43 weeks gestation with a history of reduced fetal movements, and by failing to initiate a non stress test when the patient exhibited reduced fetal movement (Count I), and (b) failing to refer patient Slean for medical treatment despite indications of intrauterine growth retardation and exhibited fetal distress, by failing to note whether meconium was present during delivery, by accepting Slean for delivery even though she was past term in her pregnancy, and by administering the less effective mouth-to-mouth resusitation to the infant baby (Count II).

   
   

5. Subsection 464.018(1)(f), Florida Statutes, authorizes the Board of Nursing to discipline a licensee for:

   (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 prevail- ing nursing practice, in which case actual injury need not be established.

   
   

6. The evidence reveals that Redfern failed "to conform to the minimal standards of acceptable and prevailing nursing practice" when she treated patient Rumfh by (a) failing to refer her for medical treatment even though the patient was 42 1/2 weeks gestation with a history of reduced fetal movements, and

   (b) failing to refer the patient for a non-stress test. Accordingly, the allegations in Count I have been proven.

   
   

7. As to Count II, the evidence reveals that Redfern failed "to conform to the minimal standards of acceptable and prevailing nursing practice" when she treated patient Slean by

   1. failing to refer Slean for further tests even though Slean had demonstrated indications of intrauterine growth retardation,

   2. failing to note on the patient chart whether meconium was present, and (c) failing to administer appropriate respiratory aid to the Slean infant. There is insufficient evidence that Slean was post-term in her pregnancy when delivery occurred, and insufficient evidence that the Slean baby exhibited fetal distress. Therefore, the charges surrounding those two considerations must fail.

   
   

8. Petitioner suggests revocation of Redfern's two nursing licenses. However, a one-year suspension of her licenses appears to be more appropriate given her exemplary work history under Dr. Boczar, and this being the first occasion where serious breach of statutes has occurred.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty as charged in Counts I and II of the administrative complaint except as to paragraphs 15 and 16 which should be dismissed. It is further recommended that respondent's two nursing licenses be suspended for one year.

DONE and ORDERED this 14th day of January, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1986.

COPIES FURNISHED:

Robert H. Newell, Jr., Esquire

200 South Monroe Street, Suite B Tallahassee, Florida 32301

James J. Boczar, Esquire 3100 South Tamiami Trail Sarasota, Florida 33579

Ms. Nancy E. Redfern

155 Magnolia Street

Atlantic Beach, Florida 32233

APPENDIX

PETITIONER

1. Partially covered in the background.

   
   

2. Covered in finding of fact 3.

   
   

3. Covered in finding of fact 2.

   
   

4. Partially covered in the finding of fact 14.

   
   

5. Partially covered in the background.

   
   

6. Rejected as being unnecessary.

   
   

7. Covered in findings of fact 4-6.

8. Covered in finding of fact 6.

   
   

9. Partially covered in the background.

   
   

10. Covered in finding of fact 7.

    
    

11. Covered in finding of fact 6.

    
    

12. Covered in finding of fact 6.

    
    

13. Covered in finding of fact 6.

    
    

14. Covered in finding of fact 6.

    
    

15. Covered in finding of fact 5.

    
    

16. Covered in finding of fact 6.

    
    

17. Covered in finding of fact 7.

    
    

18. Covered in finding of fact 9.

    
    

19. Covered in finding of fact 9.

    
    

20. Rejected as being unnecessary.

    
    

21. Covered in finding of fact 8.

    
    

22. Covered in finding of fact 10.

    
    

23. Covered in finding of fact 11.

    
    

24. Covered in finding of fact 11.

    
    

25. Covered in finding of fact 11.

    
    

26. Covered in finding of fact 9.

    
    

27. Covered in finding of fact 9.

    
    

28. Covered in finding of fact 9.

    
    

29. Covered in finding of fact 10.

    
    

30. Covered in finding of fact 11.

    
    

31. Covered in finding of fact 11.

    
    

32. Covered in finding of fact 11.

33. Covered in finding of fact 11.

    
    

34. Covered in finding of fact 9.

    
    

35. Rejected as being unnecessary.

    
    

36. Rejected as being unnecessary.

Docket for Case No: 85-000754

Orders for Case No: 85-000754