STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5834

)

TERRENCE SEUNATH, R. N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above styled matter was held on April 19, 1989, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Michael A. Mone

Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729 For Respondent: No Appearance

BACKGROUND AND PROCEDURAL MATTERS

The Department of Professional Regulation (Department) issued an administrative complaint against the Respondent, Terrence Seunath (Respondent), on October 18, 1988. On November 21, 1988, Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint and which requested a formal hearing pursuant to Section 120.57 (1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for further proceedings on November 30, 1988. In accordance with a request filed by the Department, the case was scheduled for hearing on April 19, 1989. A notice of hearing was furnished to the parties on January 18, 1989.

At the hearing, the Department presented the testimony of Dr. Manuel Torres, chairman of the department of anesthesia, Hialeah Hospital; Terry Frock, nursing education consultant for the Board of Nursing; and Nancy Cox, critical care educator at Miami Children's Hospital, who was accepted as an expert in nursing and specialty nursing practice. The Department's exhibits numbered 1 through 4 were admitted into evidence. No evidence was presented on behalf of the Respondent.

A transcript of the proceedings was filed on May 1, 1989. The Department timely filed a proposed recommended order which has been considered in the

preparation of this order. Specific rulings on the Department's proposed findings of facts are included in the attached appendix.

ISSUE

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. The Department is the state agency charged with the responsibility of regulating the profession of nursing pursuant to Chapters 455 and 464, Florida Statutes.

   
   

2. At all times material to this case, Respondent has been licensed by the Department, license nos. RN 1672492 and 167249A.

   
   

3. Respondent holds dual licensure since he is listed as a registered nurse (RN) and an advanced practice RN with specialty (ARNP). In Respondent's case, the advanced specialty practice is in the area of anesthesia.

   
   

4. To become licensed as an ARNP, Respondent submitted an application, a fee, and copies of a certification from the Council on Recertification of Nurse Anesthetists (CRNA) which included an identification card specifying Respondent's CRNA number to be 24936. Respondent represented, under oath, that the copies were true and correct duplicates of the originals. Based upon this documentation, the Department issued the ARNP license.

   
   

5. On or about March 25, 1986, Respondent was employed by the Hialeah Anesthesia Group (HAG). Respondent's supervisor was Manuel B. Torres, M. D., president of HAG.

   
   

6. On or about November 30, 1987, Dr. Torres notified Respondent that his employment and privileges at Hialeah Hospital were being suspended. According to Dr. Torres, this suspension was to continue until confirmation was given by the Impaired Nurse Program at South Miami Hospital that Respondent's problem had been corrected.

   
   

7. At the same time, Dr. Torres notified the CRNA that Respondent had voluntarily entered an impaired nurse program.

   
   

8. Subsequently, Dr. Torres received a letter from Susan Caulk, staff secretary for CRNA, which notified him that, according to CRNA files,

   Respondent had not passed the certification examination, was not a member of the American Association of Nurse Anesthetists, and that Respondent's CRNA recertification number was not valid.

   
   

9. Dr. Torres then notified the Department regarding the certification issue.

   
   

10. Later, after Respondent had completed a controlled substance addiction program at Mount Sinai Medical Center, Dr. Torres advised him that, if he

    could prove his CRNA certification, he could be rehired at Hialeah Hospital. Respondent never returned to demonstrate his certification.

    
    

11. An individual who represents himself to be certified as an ARNP when he has not qualified to be so certified has exhibited conduct which falls below the standard of care of the nursing practice. Further, such an individual, by practicing as an advanced practitioner without the educational background, compromises the safety of patient care.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

2. Section 464.018(1), Florida Statutes, provides, in part:

   
   

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

      1. Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or the board.

         * * *

         (f) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or

         `obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

         * * *

         (h) 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.

         
         

3. Section 90.802, Florida Statutes, provides: "Hearsay rule. - Except as provided by statute, hearsay evidence is inadmissible."

   
   

4. Section 90. 801(1), Florida Statutes, defines hearsay and provides:

   
   

   1. The following definitions apply under this chapter:

      1. A "statement" is:

         1. An oral or written assertion; or

         2. Nonverbal conduct of a person if it is intended by him as an assertion.

      2. A "declarant" is a person who makes a statement.

      3. "Hearsay" is a statement, other than one made by the declarant while testifying

         at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

         
         

5. Section 120.58(1)(a), Florida Statutes, provides, in pertinent part:

   
   

   Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under section 120.57. [e.s.]

   
   

6. In the instant case, the Department alleges that Respondent submitted false information regarding his CRNA qualification to become a licensed ARNP. The underlying fact which the Department must establish to prevail is that Respondent is not CRNA certified. The Department offered hearsay evidence, a sworn statement executed by Susan Caulk and Dr. Torres' testimony of his conversation with Ms. Caulk, but produced no direct evidence of the underlying fact (that Respondent is not certified). Hearsay is admissible in administrative proceedings only to corroborate nonhearsay, admissible evidence. Juste v. Department of Health and Rehabilitative Services, 520 So.2d 69 (Fla. 1st DCA 1988), Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986).

   
   

7. Assuming the Department relies on the business records exception found in Section 90.803 (6), Florida Statutes, the letter written by Ms. Caulk to Dr. Torres would still be hearsay and inadequate to prove the truth of the matters asserted. Harris, supra.

   
   

8. The correct standard for the revocation of a license is that the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). This elevated standard is necessary to protect the rights and interests of the accused where the proceedings implicate the loss of livelihood, Ferris at 295. In this case, by relying solely on hearsay evidence, the Department cannot meet that burden of proof. Consequently, the Respondent cannot be found guilty of the violations.

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Nursing, enter a final order dismissing the administrative complaint.

DONE and ENTERED this 26 day of May, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26 day of May, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5834

Rulings on the Department's proposed findings of fact:

1. Paragraphs 1-4 are accepted.

2. With regard to paragraph 5, with the clarification

   that the "notarized copies" was Respondent's sworn statement (as opposed the CRNA's sworn statement), the paragraph is accepted.

3. Paragraph 6 is accepted.

4. Paragraph 7 is rejected as unsupported by the record of admissible, competent evidence.

5. With the exception of the phrase "When the Respondent was not so certified," which is rejected as unsupported by the record, paragraph 8 is accepted.

6. With regard to paragraph 9, it is accepted that Dr.

   Torres was president of HAG, and it is accepted he dismissed Respondent because he believed Respondent was not a CRNA. However, that Respondent was not, in fact, a CRNA has not been established.

7. Paragraphs 10-12 are rejected as unsupported by the record.

COPIES FURNISHED:

Michael A. Mone Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Terrence Seunath

100 Lincoln Road, Apt. 1414B Miami Beach, Florida 33139

Docket for Case No: 88-005834

Orders for Case No: 88-005834