STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

) CASE NO. 89-1349

)

BARBARA JIMENEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in the above-styled case in Jacksonville, Florida, before the Honorable Diane Cleavinger, Hearing Officer of the Division of Administrative Hearings on July 19, 1989.

APPEARANCES

The parties were represented as follows:

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Barbara Jimenez, pro se

Route 1, Box 700

Canton, North Carolina 28716 STATEMENT OF THE ISSUES

Whether Respondent's license is subject to discipline for alleged violations of Chapter 464, Florida Statutes.

PRELIMINARY STATEMENT

On May 19, 1988, the Petitioner filed an Administrative Complaint against the Respondent, alleging violations of Chapter 464, Florida Statutes, the Nurse Practice Act. The Respondent requested a formal hearing on the allegations.

Respondent's request was forwarded to the Division of Administrative Hearings and a formal hearing was scheduled in this matter.

At the hearing, Petitioner presented the testimony of five witnesses and submitted five exhibits which were admitted into evidence. Respondent testified in her own behalf and submitted two exhibits which were admitted into evidence.

Petitioner submitted its Proposed Recommended Order on August 4, 1989.

Respondent did not submit a Proposed Recommended Order. Petitioner's proposed Findings of Fact have been considered and utilized in the preparation of this

Recommended Order except where the proposals were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Barbara Jiminez, is a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0812181. At the time of the incident involved in this case, Respondent was a LPN.

   
   

2. In 1987, Respondent was employed as a licensed practical nurse by Holly Point Manor, a nursing home located in Orange Park, Florida. Respondent was also employed as a LPN by another nursing home in the area. She was scheduled to work the 3:00 p.m. to 11:00 p.m. shift at Holly Point Manor.

   
   

3. Holly Point Manor was a new facility and had opened in November, 1987. Only one wing of the facility was open and in December, 1987, Holly Point Manor serviced approximately 50 patients.

   
   

4. On December 21, 1987, Respondent presented a letter of resignation to Tom Burrell, Director of Nursing at Holly Point Manor. The resignation was effective December 20, 1987. The resignation was precipitated by a verbal altercation with Liz McClain, a certified nursing assistant (CNA) at Holly Point Manor. The verbal exchange occurred on December 20, 1987. However, difficulties between Respondent and Ms. McClain had been brewing for a period of time prior to the verbal exchange of the 20th.

   
   

5. After discussing the letter with Burrell, Respondent agreed to work on an as-needed basis at the facility. Burrell indicated that he needed Respondent to work until the beginning of the year, and therefore scheduled the Respondent for the remainder of December.

   
   

6. Respondent was scheduled to work her usual shift on December 23, 24, and 25, 1987. She was scheduled to work with Virginia Anderson. Ms. Anderson is also a LPN.

   
   

7. On December 23, 1987, Respondent clocked in for work at approximately 2:40 p.m. EST and clocked out the same day at 3:40 p.m. EST.

   
   

8. On December 23, 1987, the Respondent and Virginia Anderson began work before the 3:00 p.m. change-of-shift. At shift change, both nurses went into the medication room to "take report" from Nurse Jan Sturgeon, the LPN who had worked the previous shift. A "report" at the change of shift consists of the previous shift's nurse going down the list of each resident/patient and reporting each patient's respective condition to the on-coming nurse. Part of the report includes counting the medications on the medication cart to ensure a correct count in the narcotic drawer of each cart. In this case, there were two medication carts, one for each of the on-coming nurses. These carts are locked and the nurse responsible for the cart maintains possession of the keys to that cart.

   
   

9. Ms. Sturgeon "reported off" first to Ms. Anderson, and then to Respondent. Ms. Anderson began her rounds after receiving a report and keys to her cart from Ms. Sturgeon. Subsequently, Respondent received a report and keys to her cart from Ms. Sturgeon.

10. At some time during Respondent's clocking in and taking report, a problem arose over the staffing assignments of the C.N.A.'s. Respondent was the nurse responsible for making the CNA assignments. However, Nurse Anderson had already created patient-care assignments for the CNAs after one C.N.A. had failed to report for work.1/ The Respondent was not satisfied with the assignments created by Anderson and either requested that they be changed or changed them herself. The request or change immediately caused a bad atmosphere between the employees on the wing.

    
    

11. Around 3:30 p.m., Respondent telephoned Tom Burrell. Respondent told Burre11 that she couldn't take it anymore and that she was leaving. Burrell told Respondent that she was scheduled to work and if she left she would be reported for what was, in his opinion, a violation of the Nurse Practice Act. Burrell did not give Respondent permission to leave.

    
    

12. Either before or after the call to Burrell, Nurse Eppert, the Assistant Director of Nursing, told the Respondent that in her opinion there was nothing wrong with the C.N.A. assignments. Respondent stated, "Here's my keys -

    - I'm leaving." Eppert informed Respondent that she had no replacement nurse and did not want her to leave. Respondent pointed out that Ms. Sturgeon was still present. Eppert reminded Respondent that Sturgeon was off duty. Eppert then told Respondent to give a report to Nurse Anderson. She refused and told Ms.

    Anderson to get the report from Ms. Sturgeon who had just given the report to Respondent. Since Respondent had not begun her rounds, Ms. Sturgeon's report was still valid and the narcotic count had not changed. Respondent left Holly Point Manor.

    
    

13. The Respondent did not positively know at the time she left whether Nurse Sturgeon would remain to assist. The Respondent did not stay to determine whether Sturgeon would, in fact, cover the shift. However, the evidence did show that Ms. Sturgeon tacitly agreed to stay before Respondent left the facility. Nurse Sturgeon was not the type of person to decline to help when the need arose.

    
    

14. After the Respondent left, Jan Sturgeon formally agreed to stay to assist with the 5 p.m. medication pass. She agreed because Ms. Eppert could not find anyone to work due to the closeness of the holidays. After the medication pass, Ms. Sturgeon left for the evening and Ms. Anderson handled the shift by herself. One nurse working the night shift alone was not an unusual event at Holly Point and occurred frequently. In fact, Ms. Anderson had worked the previous evening's shift by herself. One nurse to 50 patients meets HRS staffing requirements for nursing home facilities. However, the hardest part of the evening shift for a solo nurse was the 5:00 p.m. medication pass.

    
    

15. Later, the facility was able to retain a replacement nurse for the 24th and 25th.

    
    

16. It is not an acceptable nursing practice for a nurse to leave his or her employment until that nurse is sure that somebody else is going to take care of the patients the nurse is responsible for. In this case, Respondent failed to positively ensure someone would replace her. Reliance on tacit agreement by either of the other two nurses is not enough. Likewise, past practice of the facility is not enough. Reliance on tacit agreement or past practice is too amorphous to insure protection and the safety of the patients the nurse is responsible for. However, tacit agreement and past practice do go towards mitigation of any disciplinary penalty in this case.

17. Respondent's actions by not ensuring her replacement or at least the need for such a replacement constitutes unprofessional conduct in the practice of nursing

    
    

18. Likewise, it is not an acceptable nursing practice for an LPN to leave without giving another nurse a report on patients that that nurse would be assuming and before counting the medications on the medication cart. However, in this case, the evidence demonstrated that a replacement was there whose earlier report was still accurate and valid. Therefore, formal patient reporting and narcotics counting was not necessary or required. 2/ Respondent is not subject to discipline under this standard.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Petitioner has the burden of proving by clear and convincing evidence the charges set forth in the Administrative Complaint. Ferris v. Turlington, Case No. 69, 561, Opinion filed July 16, 1987 (Fla. 1987).

    
    

21. Section 464.018, Florida Statutes provides in pertinent part:

    
    

    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 failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

       
       

22. Rule 210-10.005(1)(e)(4), Florida Administrative Code implements Chapters 464, Florida Statutes. The Rule in pertinent part defines unprofessional conduct as follows:

    210-10.005 - Disciplinary Proceedings

    
    

    1. The Board of Nursing may impose disciplinary proceedings upon a determination that a licensee:

       * * *

       (e) Is guilty of unprofessional conduct, which shall include, but not be limited to:

       * * *

       (4) Leaving a nursing assignment before properly advising appropriate personnel .

       
       

23. Part of properly advising the appropriate personnel would include giving the supervisor enough time to ensure a replacement or the need for a replacement, unless the nurse has made such a determination. Additionally, the statute and rule must be balanced against the prohibition against forced labor even though an assignment has been undertaken. Therefore, the balance which is struck is that Respondent has the right to quit her employment. However, because she is a professional with patients dependent on her she has the duty to ensure protection of those charges through appropriate conduct. Her right to quit immediately is therefore limited by the requirement that the patients she

    is responsible for be protected by positively ensuring that a replacement is available or necessary.

    
    

24. The evidence is clear that Respondent knew she was to work on the 23rd of December, 1987. By clocking in and taking report she had accepted that assignment. Respondent's actions caused the facility, due to scheduling problems, to request that a nurse who had just completed an eight hour shift work overtime -- a potentially dangerous situation. Respondent left prior to Respondent herself simply asking this nurse if she could and would handle Respondent's job or prior to formal acceptance by this nurse of the overtime assignment. Since Respondent failed to ascertain those facts, she left without positively ensuring that a replacement had been found or was needed to assume her patient-care duties. The Petitioner has therefore shown by clear and convincing evidence that the Respondent's actions constitute unprofessional conduct. However, because of the tacit agreement of Ms. Sturgeon and the past practice of Holly Point, the appropriate penalty for Respondent's breach of her professional duties should be slight with emphasis on helping Respondent handle similar situations better. Therefore, a formal reprimand with no fine would be appropriate. Additionally any discipline should include some educational requirements to aid Respondent in developing better professional conduct.

RECOMMENDATION

Based upon the foregoing Proposed Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that Petitioner enter a Final Order reprimanding the Respondent's license, and requiring her to take courses in the Legal Aspects of Nursing and in Stress Management within a 6 month time period.

DONE and ENTERED this 19 day of October, 1989, at Tallahassee, Florida.

DIANE CLEAVINGER

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 19 day of October, 1989.

ENDNOTES

1/ Nurse Anderson's C.N.A. assignments were reasonable and were in compliance with a new C.N.A. assignment policy adopted by the Director. The new policy had not been communicated to Respondent.

2/ To the extent the Board may wish to require, regardless of the facts, a very formalistic exchange between nurses reporting for work and those going off-duty, then a rule clearly setting forth the required ritual would be necessary.

Without such a rule no reasonable person could guess at the Board's desire for such rutualism regardless of the circmstances or the need for such action, and that discipline might be imposed for the nurses failure to perform the required rights.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1349

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7,

8, 9, 10, 11, 12, 13, 16, 17, 18, 20, 21, 22, and 29 of

Petitioner's Proposed Findings of Fact are adopted, in substance in so far as material.

The facts contained in paragraphs 14, 19, 23, 24, 25

and 28 of Petitioner's Proposed Findings of Fact are subordinate.

The facts contained in paragraphs 26 and 27 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

The facts contained in the 1st sentence of paragraph 15 are subordinates. The remainder of the paragraph was not shown by the evidence.

COPIES FURNISHED:

Lisa M. Bassett, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0760

(940) 488-0062

Kenneth Easley, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32390-0729

Barbara Jimenez, pro se Route 1, Box 700

Canton, North Carolina 38716

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 3220210

Docket for Case No: 89-001349

Orders for Case No: 89-001349