Judges: ARNOLD H. POLLOCK
Agency: Department of Health
Latest Update: Mar. 16, 1987
Summary: Nurse who hit supervisor guilty o fmisconduct and unprofessional conduct.
86-3981.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3981
)
THELMA L. M. JONES, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing furnished to the parties by the undersigned on November 20, 1986, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in West Palm Beach, Florida on January 29, 1987. The issue for consideration was whether Respondent's license as a licensed practical nurse in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
APPEARANCES
Petitioner: Michael J. Cohen, Esquire
Cohen, Mee & Kennedy, P.A.
517 Southwest First Avenue Fort Lauderdale, Florida 33301
Respondent: Thelma L. M. Jones, pro se
729 Commercial Street
Clewiston, Florida 33440 BACKGROUND INFORMATION
On September 5, 1986, Fred Roche, Secretary of the Department of Professional Regulation, filed an Administrative Complaint in this case alleging that Respondent was guilty of having been convicted of a crime related to the practice of nursing in violation of Section 464.018(1)(c), Florida Statutes, and of unprofessional conduct in violation of Section 464.018(1)(f). These charges arose out of Respondent's alleged physical attack on the director of nursing at her place of employment, the Clewiston Health Care Center, (CHCC), on September 25, 1985.
On September 25, 1986, Respondent executed an Election of Rights form on which she disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. Thereafter, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and on November 20, 1986, the undersigned issued a Notice of Hearing setting the hearing as stated above.
At the hearing, Petitioner presented the testimony of Mary Beth Drawbaugh, the assistant direct of nursing at CHCC and the victim of the alleged assault; the Respondent; and Sandra Spiegel Bauman, an expert in nursing practice.
Petitioner also introduced Petitioner's Exhibits 1 through 4. Respondent testified in her own behalf but presented no documentary evidence.
Neither party submitted Proposed Findings of Fact.
FINDINGS OF FACT
At all times pertinent to the allegations involved herein, Respondent was licensed as a licensed practical nurse in the State of Florida.
On September 25, 1985, Respondent came to the CHCC where she was employed as a nurse to pick up her paycheck. It was her day off and she was not there for duty. After she was given her check, she was advised by the Director of Nursing that because of an alleged argument the day before with Assistant Director, Respondent was being given the opportunity to resign her employment at the Center or be discharged.
Miss Jones, believing that she had done nothing improper, refused to resign and was immediately told she was terminated. She immediately left the Director's office and went down the hall to one of the nursing stations where she saw Ms. Drawbaugh, the Assistant Director.
Ms. Drawbaugh had been attending an in-service training session that day and had come to the home to check and make sure all was going well. She was making her rounds in the south wing and reviewing a chart a little after 2:00
p.m. on this day, when Respondent came to the nursing station and started talking with another nurse in what Ms. Drawbaugh described as a loud tone.
There is some inconsistency in the evidence as to what transpired next
- whether there was a conversation between Respondent and Ms. Drawbaugh or not is really of little consequence. The fact remains, and it is admitted by Respondent that Respondent lost control of herself and assaulted Ms. Drawbaugh, hitting her about the head several times.
Thereafter, Ms. Jones pleaded guilty in County Court on January 23, 1986 to a charge of battery, was adjudicated guilty, and placed on six months reporting probation.
Ms. Jones contends that she had been badgered by Ms. Drawbaugh on several occasions prior to the incident in question and that on the day of the assault, when she arrived at the nursing station, having just been fired, Ms. Drawbaugh said to her, "I told you what would happen." In response to this, Respondent alleges that she warned Ms. Drawbaugh to leave her alone, whereupon Ms. Drawbaugh laughed at her and walked off. It was at this point that Ms. Jones lost control of herself and struck Ms. Drawbaugh.
Ms. Drawbaugh indicates that a day or two prior to the incident, she had given Respondent an oral warning to report to her supervisor before leaving duty because Respondent had left her duty station prior to the end of the shift. She further alleges that in June, 1985, Respondent had objected to an assignment Ms. Drawbaugh had given her and in the discussion which followed, Respondent was loud and had to be warned to mind her conduct.
Ms. Drawbaugh further alleged that a complaint had been received from a family of a resident as to the inappropriate way Respondent had talked to that resident. This, however, is uncorroborated hearsay and is not considered to be credible evidence.
Ms. Drawbaugh further relates an incident when, she contends, it was necessary for her to correct the Respondent on an occasion when Respondent refused to give a patient with Multiple Sclerosis a cigarette. Ms. Drawbaugh concluded at the time that Respondent's conduct indicated a lack of sensitivity to the needs of a special patient. However, Respondent presented evidence tending to indicate there was justification for failing to comply with the patient's request. She contends that there was no other person available to watch the patient to see that she did not set the bed or herself on fire. Further, with regard to the alleged failure to report to the supervisor prior to leaving, evidence presented by Respondent indicates there may have been some matters brought into the conversation by Ms. Drawbaugh that were not appropriate. For example, there is some evidence that Ms. Drawbaugh cast aspersions on the way Respondent had been brought up and was, herself, not totally sensitive to the feelings of others. Taken as a whole, the more credible evidence seems to be on the side of Respondent in these two incidents.
None of these matters, however, while they may constitute provocative behavior and explain Respondent's actions, justify her attack on Ms. Drawbaugh in the facility. Uncontradicted expert testimony clearly indicates that a battery by a nurse on a supervisor in the facility, falls below acceptable and accepted standards of nursing practice and definitely relates to the practice of nursing. It makes no difference if the nurse is off duty or had just been fired or had been provoked by the victim of the assault. Basic nursing training teaches that a nurse must not react with violence to any provocation of any kind on anyone on any basis. Even assuming that Ms. Drawbaugh's relationship with Respondent was unsatisfactory and constituted badgering, this nonetheless does not justify or excuse Respondent's attack on her.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In Count One of the Administrative Complaint, Petitioner alleges that Respondent's conviction, related to the practice of nursing, constitutes a violation of Section 464.018(1)(c), Florida Statutes which permits discipline of a license for this reason.
The evidence clearly reveals that Respondent was convicted of an offense involving a battery on her supervisor and an assault on a supervisor by a nurse does constitute an offense related to the practice of nursing. Therefore, Respondent is guilty of this allegation. The other factors raised by Respondent do not serve as an excuse for her actions, but may be considered in mitigation of the disciplinary action to be taken.
In Count Two of the Administrative Complaint, Petitioner alleges that Respondent is in violation of Section 464.018(1)(f), because of her unprofessional conduct. Again here, the credible and uncontradicted expert testimony indicates that for a nurse to assault her supervisor in a facility where nursing is being carried out, whether on or off duty, constituted unprofessional conduct regardless of the amount of provocation that might have been brought into play. Under no circumstances is violence by a nurse on a
patient or her supervisor considered acceptable professional conduct. Consequently, the evidence showing that Respondent did assault her supervisor supports the conclusion that she is guilty as alleged.
Having determined that Respondent is guilty of the misconduct as alleged in the Administrative Complaint, the question remains as to what action is appropriate in discipline.
The nursing profession requires individuals to possess and demonstrate the highest professional standards by virtue of the extraordinarily sensitive nature of their relationship with sick and infirm individuals. Here, Respondent has demonstrated that she has been unable in a stress situation to control her emotions and react appropriately. The fact that she may well have been provoked by her supervisor and have been repeatedly subject to verbal criticism by this supervisor may be considered as some slight mitigation of her offense but certainly not a justification for it. Consequently, it is necessary for Respondent to have additional training in those areas directly related to her deportment and conduct as a nurse. In the interim, it is appropriate that she not practice nursing until she can demonstrate to the satisfaction of the Board that she has regained these skills.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the Respondent's license as a licensed practical nurse in Florida be suspended for one year and that she be required to establish to the satisfaction of the Board of Nursing that she has taken continuing nursing education in the area related to the offenses committed here.
RECOMMENDED this 16th day of March, 1987, at 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.
COPIES FURNISHED:
Judie Ritter, Executive Director Board of Nursing
Room 504, 111 East Coastline Drive
Jacksonville, Florida 32201
Van Poole, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Michael J. Cohen, Esquire Cohen, Mee & Kennedy, P.A.
517 S.W. First Avenue
Fort Lauderdale, Florida 33301
Thelma L. M. Jones 729 Commercial Street
Clewiston, Florida 33440
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO.: 0063560
DOAH CASE NO.: 86-3981
THELMA L. JONES,
Respondent.
/
ORDER
Respondent, Thelma J. Jones, holds Florida License No. 0704471 as a licensed practical nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.
The Board of Nursing met on April 23, 1987, in Tampa, Florida, to take final agency action. The Board has reviewed the entire record in the case.
FINDINGS OF FACT
The Board accepts and adopts the Findings of Fact contained in the Recommended Order.
CONCLUSIONS OF LAW
The Board accepts and adopts the Ccnclusions of Law contained in the Recommended Order.
PENALTY
The Board finds the recommended penalty to be too harsh in light of the mitigating circumstances of provocation as stated in the Findings of Fact and Conclusions of Law. The Board does not excuse Respondent's conduct. However, the Board finds that suspension of Respondent is not warranted and would not serve the public health, safety and we fare. Petitioner concurs in the Board's lesser penalty. It is therefore ORDERED that
The licensee is hereby placed on PROBATION for a period of one (1) year, subject to the following terms and conditions:
The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing.
The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: professional ethics.
Within 21 days of the date of this Order, the licensee shall submit to the Board's education department a written proposal for obtaining the required course(s), including the name of the course, the provider, and the dates of beginning and completion of the course. Courses must be successfully completed within one year of the date of this Order. Verification of successful completion shall be submitted to the Board probation section. Failure to complete a course as ordered may result in further disciplinary action for violation of this Order of the Board.
During the probation the licensee shall report any change in residence address, any change of name, any change in employer or place of employment, or any time she is arrested. These events will be reported immediately (and in any event within ten working days) by certified mail to the Board of Nursing, Probation Section, 111 Coastline Drive East, Suite 504, Jacksonville, Florida 32202.
While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by her employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board probation section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates.
Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation.
Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing shall be subject to immediate and automatic suspension pending the licensee's appearance before the next Board meeting (or such other meeting as mutually agreed by the licensee and the Department). The licensee will be given notice of the hearing and an opportunity to defend.
The probationary period shall automatically terminate at the end of the prescribed time, but only if all terms and conditions have been met. Otherwise, the probation shall be terminated only by Order of the Board upon proper petition of the licensee, supported by evidence of compliance with this Order.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.
This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.
DONE and ORDERED this 7th day of May, 1987.
Jessie Trice, Chairman Florida Board of Nursing
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to THELMA L. JONES, 729 Commercial Street, Clewiston, Florida 33440, by United States Mail, at or before 5:00 p.m., this 7th day of May, 1987.
Judie Ritter Executive Director
Docket for Case No: 86-003981
Orders for Case No: 86-003981
