STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, ) CASE NO. 88-4412

)

vs. )

)

FERMAN BARRETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing in the above-styled action was held in Orlando, Florida, on December 7, 1988, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

BACKGROUND AND PROCEDURAL MATTERS

The Administrative Complaint in this proceeding was filed on July 6, 1988, alleging that the Respondent, Ferman Barrett, violated Section 464.018(1)(f), Florida Statutes, relating to the practice of nursing, by leaving his nursing assignment without notice and approval.

Although he filed an election of rights contesting the allegations and requesting a formal hearing, Respondent failed to appear at the hearing. Notice of the hearing was sent to the address on his election of rights and was not returned as undelivered. No requests for continuance have been received nor is there anything in the record to reflect that Respondent had good cause for his failure to appear.

At the hearing Petitioner presented the testimony of three witnesses and a single exhibit, the certificate of licensure. After hearing, Petitioner filed a proposed recommended order. The proposed findings of fact are substantially adopted here.

ISSUE

The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing

practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.

FINDINGS OF FACT

1. At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then.

   
   

2. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems.

   
   

3. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible].

   
   

   Barrett was scheduled to work a double shift on January 2, 1988 from 7:00

   A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M.

   
   

4. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job.

   
   

5. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing.

Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes and Section 255.225, Florida Statutes.

   
   

2. Section 464.018, Florida Statutes provides, pertinent part:

   
   

   1. Disciplinary actions. --

      1. The following acts shall be grounds for disciplinary action set forth in this section:

   * * *

   (f) Unprofessional conduct, which shall in- clude, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and pre-

   vailing nursing practice, in which case actual injury need not be established.

   * * *

   
   

3. As required in license discipline cases such as this, Petitioner proved by clear and convincing evidence that Respondent's actions on January 2, 1988, departed from the minimal standards of acceptable and prevailing nursing practice. Ferris v. Turlington 510 So2d. 292 (Fla. 1987) Respondent ignored the opportunity to appear at the hearing and present evidence in mitigation.

   
   

4. The discipline suggested by counsel for Petitioner is within the range of penalties described in the Board's guidelines at Rule 210-10.011, F.A.C.

RECOMMENDED ORDER

Based on the foregoing, it is hereby RECOMMENDED:

That the Board of Nursing enter its final order finding that Ferman Barrett violated Section 464.018(1)(f), Florida Statutes, imposing probation of one year, a fine of $500.00, and the completion of a 12-hour Continuing Education Course, to be identified by the Board, which course shall not count toward credits needed for relicensure

DONE and ORDERED this 20 day of January 1989 in Tallahassee, Florida.

MARY CLARK

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 20 day of January, 1989.

COPIES FURNISHED:

Michael A. Mone', Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Ferman Barrett

615-B Fenton Place

Altomonte Springs, FL 32701

Bruce D. Lamb, Esq.

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Judie Ritter Executive Director

Department of Professional Regulation

504 East Daniel Building Ill East Coastline Drive Jacksonville, FL 32201

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 0093163

DOAH CASE NO.: 88-4412

FERMAN BARRETT,

Respondent.

/

FINAL ORDER

Respondent, Ferman Barrett, holds Florida License No. PN 0628671 as a licensed practical nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.

Respondent requested a formal bearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Final Order.

The Board of Nursing met on August 10, 1989, in Tallahassee, 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 set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Board accepts and adopts the Conclusions of Law contained in the Recommended Order.

PENALTY

The Board determined that the licensee demonstrated such a total lack of responsibility in his capacity as a nurse that the Board is justified in increasing the penalty recommended by the Hearing Officer and imposing a more stringent probation and completion of certain educational coursework to insure future patient safety. The Board therefore Orders the licensee to pay an administrative fine of five hundred dollars within six months of the filing of this Final Order; and the licensee shall be placed on Probation for a period of one (1) year subject to the following terms and conditions:

The licensee shall not violate Chapters 455 or 464, Florida Statutes, the rules promulgated pursuant thereto, or any other state or federal law, rule, or regulation relating to the practice or the ability to practice nursing.

The licensee will report any change in his address, telephone number, employment, employer's address or telephone number, or any arrests, immediately, by telephone and in writing by certified mail within 10 working days to the Probation Supervisor at the Board of Nursing Office, 904/359-6331, 111 East Coastline Drive, Jacksonville, Florida 32202.

The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee's name, license number, current address, name, address, and phone number of each current employer, whether employed as a nurse or not, and a statement by the licensee describing his employment. This report shall be submitted to the Probation Supervisor every three (3) months in a manner as directed, by the Probation Supervisor. If the licensee is not employed as a nurse either when probation begins, or at any time during probation, the licensee shall immediately notify the board office of his return to nursing.

The licensee shall be responsible for causing reports to be furnished by his nursing supervisor to the Probation Supervisor every three (3) months. This report shall describe the licensee's work assignment, work load, level of performance and any problems. The nursing supervisor shall be made aware of the licensee's probation and shall verify such knowledge by notification to the board office.

The licensee shall enroll in and successfully complete courses in medical and legal aspects of nursing and stress management. These courses shall be in addition to other normally required continuing education courses. Home study courses will not be accepted to satisfy this condition unless specifically authorized by the Board. Verification of successful completion, and documentation of course content shall be submitted to the Probation Supervisor within one (1) year of the filing of the Board's Final Order in this cause.

Pursuant to Section 120.59, Florida Statutes, the parties are hiseby 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 Board of Nursing.

DONE and ORDERED this 30th day of November, 1989.

Jeanne Stark, R.N. Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to Ferman Barrett, 615-B Fenton Place, Altamonte Springs, Florida 32701, by Certified Mail this 30th day of November, 1989.

Judie Ritter Executive Director

Docket for Case No: 88-004412

Orders for Case No: 88-004412