STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2232

)

STACEY ABO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing on September 9, 1987, in Ormond Beach, Florida. The issue for determination is whether Respondent is guilty of the charges alleged in Petitioner's Administrative Complaint and thereby subject to the penalties imposed pursuant to Section 464.018, Florida Statutes.

APPEARANCE

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance at hearing.

BACKGROUND

By Administrative Complaint dated April 8, 1987 and filed with the Division of Administrative Hearings on May 22, 1987, the Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's license to practice nursing.

As grounds therefor, it is alleged that: (a) during Respondent's tenure of employment at Halifax Medical Center, Daytona Beach, Florida, Respondent failed to properly administer and monitor "I.V.'s" to patients, left her nursing assignment without permission or without notifying the proper authority of her departure or giving a report as to the status of the patients and, was observed to have the odor of alcohol on her breath while on duty, all in violation of Section 464.018(f), Florida Statutes in that such conduct departs from, or fails to conform to, minimal standards of acceptable and prevailing nursing practice;

1. during Respondent's tenure of employment at Memorial Hospital, Ormond Beach, Florida, Respondent was observed to have the odor of alcohol on her breath on several occasions while on duty in violation of Section 464.018(1)(f), Florida Statutes, in that such conduct departs from, or fails to conform to, minimal standards of acceptable and prevailing nursing practice and; (c) during Respondent's tenure of employment at Halifax Medical Center, Daytona Beach, Florida, Respondent attempted suicide by using drugs or alcohol in violation of Section 464.018(1)(b), Florida Statutes.

   In support of its charges the Petitioner presented the testimony of Johnette Lucille McIntosh Vodenicker, Jackie Frances Mirsky, Sandra Peeples, Judith Ann Clayton, Jean Roberta Snodgrass and Sharon Lynn Brooks. Petitioner's Exhibits 1, 2, 3, 4 and 5A-5E were received into evidence. Respondent made no appearance at the hearing and, therefore, presented no testimony or exhibits.

   An attempt was made to reach the Respondent at the telephone number listed in her election of rights but to no avail.

   
   

   The Petitioner submitted posthearing Proposed Findings of Fact but no Conclusions of Law. The Respondent did not submit posthearing Proposed Findings of Fact or Conclusions of Law. A ruling on each proposed finding of fact submitted by the Petitioner has been made as reflected in the Appendix to their Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. At all times material to this proceeding, the Respondent, Stacey Abo, was licensed in the State of Florida as a Registered Nurse (RN) holding license number 1457012. Presently, Respondent's license is in an inactive or lapsed status, having expired on March 31, 1987 without being renewed.

      
      

   2. Respondent was employed as a licensed RN at Memorial Hospital Memorial (Memorial) in Ormond Beach, Florida from May 1983 until her termination on July 5, 1985.

      
      

   3. During Respondent's tenure of employment at Memorial the Respondent:

      (a) was counseled on September 16, 1983 by Jackie Mirsky, Nursing Supervisor after it was reported to Mirsky by other nurses who did not testify at the hearing that they had smelled the odor of alcohol on Respondent's breath while she was on duty on September 6, 1983 and September 14, 1983; (b) was confronted by Sandra Peeples, charge nurse, on July 11, 1982 because Peeples suspected the odor of alcohol on Respondent's breath while she was on duty on June 11, 1984;

      (c) was terminated from her employment at Memorial on July 5, 1985, after it was reported to Johnette Vodenicker, Assistant Administrator, by another nurse, who did not testify at the hearing, that she had smelled the odor of alcohol on Respondent's breath on July 4, 1985 and, for having been counseled on September 16, 1983 and June 11, 1984 in the same regard.

      
      

   4. Peeples "thought" she smelled alcohol on Respondent's breath on June 11, 1984. Respondent admitted having "a beer" with lunch but there is insufficient evidence to show that Respondent had the odor of alcohol on her breath while on duty on September 6, 1983, September 14, 1983, July 4, 1985 or at any other time while she was on duty, other than June 11, 1984.

      
      

   5. The Respondent was employed as a licensed RN at Halifax Medical Center (Halifax) in Daytona Beach, Florida, from November, 1985 until her termination on October 8, 1986.

      
      

   6. Sometime in December, 1985, shortly after being employed at Halifax, the Respondent attempted suicide by ingesting several different drugs and, was hospitalized at Halifax for approximately two (2) weeks.

   7. Because of the suicide attempt, Respondent was referred to counseling. Respondent attended counselling session with Dr. Abed. It was understood that she could return to work on Dr. Abed's recommendation. Sometime around January 1, 1986 Respondent was allowed to return to work as a concentrated care unit nurse on the condition that Respondent continue counseling until released by Dr. Abed. There is insufficient evidence to establish how Halifax was to be notified of Respondent's continued counseling or the frequency of such notification. Halifax was never notified by Dr. Abed that Respondent had been released from treatment.

      
      

   8. Respondent's notification of her counseling with Dr. Abed was sporadic, however there was insufficient evidence to establish that such notice was not in accordance with the understanding between Halifax and the Respondent.

      
      

   9. There was insufficient evidence to establish the reason for Respondent's suicide attempt or that such suicide attempt resulted in Respondent being unable to practice nursing with reasonable skill and safety to patients except for the two (2) week period she underwent counseling with Dr. Abed.

      
      

   10. Respondent was reported to Judith Ann Clayton, nurse manager, intensive surgical center, Halifax Medical Center, for numerous errors which involved administering and monitoring "I.V's" to patients on May 15, 1986 (Petitioner's Exhibits No. 5- A) and May 19, 1986 (Petitioner's Exhibits 5-B through 5-E) by nurses who came on duty on the next shift immediately after Respondent`s shift.

       
       

   11. Somewhere around the time of the "I.V." incidents, Respondent was observed by Clayton as having the odor of alcohol on her breath while on duty. When confronted by Clayton, the Respondent admitted having had "a beer" with lunch. There is insufficient evidence to show if Respondent was ever counselled or disciplined by the hospital for this incident.

       
       

   12. As a result of these reported errors involving improper administration and monitoring of "I.V.`s" to patients and, having the odor of alcohol on her breath while on duty, Respondent was placed on medical leave of absence for two

       (2) months. During these two (2) months, Respondent was provided counseling by Halifax with the understanding that at the end of counseling Halifax would determine her status.

       
       

   13. During Respondent's medical leave of absence she attended counselling and was allowed to return to work with a limited work assignment on June 30, 1986 on the neurological surgical unit under the supervision of Jean R. Snodgrass. At the beginning, Respondent's duties did not include administering and monitoring "I.V.`s", administering other medication or signing off orders in the patient's chart. However, on October 8, 1986, Respondent was responsible for administering medication and administering and monitoring "I.V.`s".

       
       

   14. On October 8, 1986, Respondent, while fully responsible for fourteen

       (14) or fifteen (15) patients, left and did not return to her assigned station on the neurological surgical unit during her scheduled shift. Respondent failed to notify the proper authority or anyone else of her departure and without securing a replacement, thereby abandoning her patients. Due to Respondent's abandonment of her patients, Halifax terminated her employment on October 8, 1986.

   15. By abandoning her patients on October 8, 1986, Respondent failed to conform to minimum standards of acceptable and prevailing nursing practice and was not practicing nursing safely.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1)(f), Florida Statutes.

       
       

   17. The alleged misconduct of which Respondent is accused purportedly violates Section 464.018(1) and (h), Florida Statutes, and in pertinent part is quoted below:

       
       

       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....

          
          

   18. In disciplinary proceedings, the burden of proof is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.

       349 (1 DCA Fla. 1977). The Petitioner has met its burden of proof on the charges in Count I of the Administrative Complaint that Respondent's conduct in abandoning her patients without notification to the proper authority or without securing a replacement and being on duty with the odor of alcohol on her breath constitutes a violation of Section 464.018(1)(f), Florida Statutes. However, the Petitioner has failed to meet its burden of proof on the charges in Count I concerning Respondent's failure to properly administer and monitor "I.V.`s" to patients. Likewise, Petitioner has failed to meet its burden of proof on the charges alleged in Count Two and Three of the Administrative Complains

       
       

   19. The findings of the Respondent's supervisors which formed the basis for verbally counseling and eventually discharging Respondent from Memorial for having alcohol on her breath while on duty and the basis for the Corrective Action Counseling Memos (Respondent's Exhibits 5A through 5E) which led to Respondent's medical leave from Halifax and required counseling for failure to properly administer and monitor "I.V.`s" to patients are the result of the supervisors reviewing certain documents not in the record and testimony of other nurses who did not testify at the hearing. Although admissible, the documents prepared by the supervisors and the supervisor's testimony in regard to what they were told by other nurses are purely hearsay, uncorroborated by any substantial competent evidence and have no probative value in this proceeding, Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (1 DCA Fla. 1986).

Therefore, this documentary evidence and the testimony are insufficient to support a finding that Respondent committed the acts as alleged.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED that the Board of Nursing enter a Final Order finding the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes and that Respondent's nursing license be suspended for a period of one (1) year, stay the suspension, place the Respondent on probation for a period of three (3) years under the condition that Respondent undergo psychological counseling and any other condition the Board may deem appropriate, and assess an administrative fine of $300.00 to be paid within ninety (90) days of the date of the Final Order.

Respectfully submitted and entered this 16th day of October, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2232

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2. 3.-4. Adopted in Finding of Fact 3.

5.-6. Rejected as hearsay that is uncorroborated by any substantial competent evidence.

1. Adopted in Finding of Fact 5.

2. Adopted in Finding of Fact 11.

3. Rejected as not supported by substantial competent evidence in the record.

4. Adopted in Finding of Fact 6.

5. Adopted in Finding of Fact 9 but clarified.

6. Adopted in Finding of Fact 7 but clarified.

7. The first sentence is rejected as not supported by substantial competent evidence. The second sentence is rejected as hearsay uncorroborated by any substantial competent evidence. The third sentence is adopted in Finding of Fact 7.

14.-15. Rejected as hearsay uncorroborated by any substantial competent evidence.

1. Adopted in Finding of Fact 12 but clarified.

2. Adopted in Finding of Fact 13 but clarified.

3. Rejected as not supported by any substantial competent evidence. Additionally, it is rejected as not being relevant or material.

4. Adopted in Finding of Fact 14.

5. Adopted in Finding of Fact 15.

6. Rejected as not supported by any substantial competent evidence.

Rulings on Proposed Findings of Fact Submitted by the Respondent

The Respondent did not submit any proposed findings of fact.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Stacey Abo

12 Riverdale Avenue

R.R. No. 2

Ormond Beach, Florida 32074

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Judie Ritter, Exec. Director Board of Nursing

Department of Professional Regulation Room 504, 111 E. Coastline Dr.

Jacksonville, Florida 32201

Docket for Case No: 87-002232

Orders for Case No: 87-002232