) CASE NO. 89-1563
JUDITH V. BATTAGLIA, )
Respondent. )
This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings on July 12, 1989, in West Palm Beach, Florida.
The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
At the Final Hearing, four exhibits were admitted for the Department of Professional Regulation, Board of Nursing, and one exhibit was admitted for Ms. Battaglia. At the close of the hearing, a syringe which had been discovered in Ms. Battaglia's purse during the investigation of the incident was returned to the Department of Professional Regulation with instructions that it be forwarded to Florida Department of Law Enforcement for testing to determine, if possible, the drug which had been contained in the syringe. A transcript of the proceedings was filed on August 17, 1989. The parties were given the opportunity to file proposed findings of fact and conclusions of law. The Department filed proposed findings on September 18, 1989. Rulings on proposed findings are made in the appendix to this Recommended Order.
Ms. Battaglia is a licensed practical nurse in the State of Florida and has been so licensed since December 1, 1975.
During July 1988, Ms. Battaglia worked for the PRN Nursing Agency, a service which provides nurses on a temporary basis to institutions needing nurses, such as nursing homes. The administrator of PRN is Robert Murphy and Joyce Williams was its Director of Nursing.
On July 26, 1988, the Haverhill Care Center, 5065 Walnut Road, West Palm Beach, Florida needed temporary nurses. Haverhill is owned by Beverly Enterprises, the largest nursing home chain in the United States. PRN sent Ms. Battaglia to work at Haverhill for the 3:00 p.m. to 11:00 p.m. shift. The Charge Nurse on that shift at Haverhill was Selma Ocasio. The acting director of nursing at Haverhill was Paula Bain.
Haverhill has four patient wings which emanate from a central nurses' station. Wing 100 houses patients who generally are able to care for themselves. Wing 200 is the Medicare skilled nursing care wing. Wing 300 is the wing for Alzheimer's patients, who are disoriented, and Wing 400 houses patients who have a variety of needs.
Sara Smith had worked the 7:00 a.m. to 3:00 p.m. shift at Haverhill on Wing 300 on July 26, 1988. About 3:00 p.m. she was relieved by Judith Battaglia. Ms. Smith and Ms. Battaglia had worked together a number of years before at the Medicana Nursing Center in Lake Worth. Ms. Smith noticed that Ms. Battaglia was acting in an unusual manner. She was hyperactive. She was not able to stand in one place but was constantly shuffling back and forth. When she walked she swayed in an unsteady manner; her speech, while clear, was inappropriately loud.
Each wing at the nursing home has a separate medication cart. The entire cart can be locked, and in addition, there is a second locked box used to store controlled substances, which requires a separate key. As is general practice at the change of shifts, Ms. Battaglia and Ms. Smith counted the drugs in the cart for Wing 300. Ms. Battaglia accepted the keys and signed for the cart, indicating her agreement with the inventory of all drugs on the cart when Ms. Smith left. No other nurse had the keys to that cart. At that time, no drugs were missing from the cart and the lock box for controlled substances operated properly. Just before departing, Ms. Smith told Selma Ocasio that Ms. Battaglia seemed to be acting peculiarly and to keep an eye on her. Others working the 3:00 p.m. to 11:00 p.m. shift made similar observations about Ms. Battaglia's behavior. Her peculiar behavior from the time she arrived at Haverhill (described above), coupled with her inability to operate the lock on the drug cart and her propensity to use drugs while on duty (see below), leads the Hearing Officer to find that Ms. Battaglia was under the influence of a controlled substance when she reported to work.
There were problems with Ms. Battaglia's nursing performance during her shift. She asked the Charge Nurse, Ms. Ocasio, for instructions about the administration of Haldol to a patient when the directions for administration were clearly on the vial. Ms. Battaglia then went down the hall, returned and asked the same question as if she had never asked it before. She also acted disoriented, walking around in circles and down the wrong corridors of the nursing home. Although some disorientation could be attributed to being new at the facility, it happened several times over the shift; toward the evening, her
disorientation worsened. When speaking with other nurses, Ms. Battaglia's thinking also was disoriented. She would stop in mid-sentence to think about what she wanted to say, and then lose her train of thought or shift to another topic in an inappropriate manner. The other LPNs on that shift became quite concerned when, at around dinner time, Ms. Battaglia went into the break room and complained that a T.V. dinner she was about to eat was too hot when it actually had been taken from the freezer and was still frozen. During her shift, Ms. Battaglia was unable to engage safely in the practice of nursing.
During the course of the evening Ms. Battaglia had told Ms. Ocasio, the Charge Nurse, that she was taking a medication for her stomach, Zantac. Ms. Battaglia said the medication might be causing an adverse reaction. Zantac is used to inhibit gastric acid secretions, so a disorienting reaction is very unlikely. Mental confusion is listed as a rare adverse reaction from the use of Zantac, but it occurs predominantly in severely ill elderly patients. See Physician's Desk Reference, 1989 at 1000. Ms. Battaglia is young and appears to be in good health. During the shift another LPN, Karla Labrosse, observed Ms. Battaglia taking some white pills at a water fountain. Ms. Battaglia told Ms. Labrosse that she had blood pressure problems and was taking blood pressure medicine. The totality of the circumstance lead the Hearing Officer to conclude that she was actually taking medication removed from the narcotics drawer of her medication cart.
Due to concerns over Ms. Battaglia's performance, the Charge Nurse, Ms. Ocasio, called the nursing service to seek a replacement for Ms. Battaglia during her shift. Ms. Ocasio did not know whether Ms. Battaglia was not feeling well, was tired, or what the problem was, but she believed that the behavior Ms. Battaglia was exhibiting was inappropriate on a nursing shift.
It is quite unusual for a nurse to be replaced during a shift. When Ms. Battaglia was told that she was being replaced during her shift, she was not at all upset.
The PRN service called another LPN, Ericka Horvath, to come in to replace Ms. Battaglia. Ms. Horvath had already worked the 7 a.m. to 3 p.m. shift at Haverhill that day.
In preparation for the changeover from Ms. Battaglia to Ms. Horvath, Ms. Ocasio counted the drugs on Ms. Battaglia's medication cart with Ms. Battaglia. After doing the count, they found that 15 Xanax tablets, and 35 Valium tablets, were missing from the narcotics drawer of the cart. Both medicines are packaged in cubes. Ms. Ocasio personally had seen Ms. Battaglia accept the delivery of the Valium cube from the pharmacy when it was placed on her cart at the beginning of the 3:00 p.m. shift.
The loss of the drugs required Ms. Ocasio to notify the administrator of the nursing home of the problem. He then notified Haverhill's Director of Nursing, Paula Bain, who came to Haverhill to investigate the loss. Ms. Ocasio also notified the supervisor for PRN of Ms. Battaglia's shortage on her drug cart. He notified PRN's owner, Mr. Murphy, and PRN's Director of Nursing, Joyce Williams, to come to the Haverhill site while the loss was investigated.
When Ms. Battaglia had been told that she would be replaced, she had called her husband to pick her up. He waited for her in the reception area of the nursing home. While waiting for the various administrators for Haverhill and PRN to arrive, Ms. Battaglia went out to speak with her husband, and was unattended while she was with him.
After the Haverhill and PRN administrators arrived, the local law enforcement office also was called, and a law enforcement officer participated in the investigation. During the investigation, Ms. Battaglia stated that she had left the drawer for controlled substances on her cart unlocked while distributing medications to patients on Wing 300 because the key to the drawer would not work. When Ms. Bain and Ms. Williams both used Ms. Battaglia's key, they had no problem with either the key or the lock; the narcotics drawer functioned properly. Ms. Ocasio also had had no difficulty with the lock when she had unlocked it to count the drugs with Ms. Battaglia. Ms. Battaglia denied that she had taken any of the medication. The Valium and Xanax tablets were never found.
While Ms. Battaglia was being interviewed about the missing drugs, her behavior was still strange; she was very upset, constantly pacing back and forth. Her sentences were rambling and incomplete, although her speech was not slurred.
During the investigation, the administrator for PRN asked Ms. Battaglia if he could look through her purse. She agreed. In one of the zippered compartments of Ms. Battaglia's purse, Mr. Murphy found a used syringe. Ms. Battaglia stated that she had no idea how it got there. Ms. Battaglia is not diabetic and had no reason to have a syringe for her own medical needs. Mr. Murphy then asked if Ms. Battaglia would submit to a blood and urine tests. She initially agreed. Mr. Murphy left the room to make arrangements for the testing, but shortly thereafter Ms. Battaglia changed her mind and declined to be tested. The syringe was delivered to the Florida Department of Law Enforcement for testing after the final hearing, but the drug in the syringe could not be identified.
At the hearing, Ms. Battaglia maintained that she had not been offered a urine test, only a blood test. Due to her weight, it is often difficult to draw blood from her, and she testified that she was unsure that a competent person would be available to draw the blood, so she declined the test. With respect to the syringe, she testified that her husband has cancer, and has injected himself with narcotics when he is in pain. She claimed she found the syringe in the car, and had put it in her purse until she could get to a needle dispensary to cut it off, but had forgotten about it. Ms. Battaglia's version of why she declined to be tested is not credible.
Ms. Battaglia's professional conduct during the 3:00 p.m. shift on July 26, 1988, was deficient in several respects. The drawer for controlled substances on her medicine cart was not broken, but she was too impaired to operate it. There was no excuse for the cart to be left unlocked while the medication was distributed to patients. Failure to lock the cart was unprofessional conduct. Disoriented residents on Wing 300 could have gained access to any medicine on the cart.
More importantly, during her shift, Ms. Battaglia was under the influence of substances which interfered with her ability to practice nursing safely. That she was using controlled substances is inferred from her overall conduct that day. She swayed when she walked, spoke in an inappropriately loud manner, and exhibited disoriented thinking. She needed repeated instruction in the administration of Haldol, a simple nursing task. She lacked the eye-hand coordination to operate the controlled drug lock box on her medication cart, but other nurses opened it without difficulty. In conversation with Ms. Ocasio she attempted to justify her inappropriate conduct by ascribing it to an adverse reaction from having taken an antacid, which was nonsensical. She was observed
taking pills during her shift during which controlled substances under her exclusive control were missing. Other nurses on the shift had become alarmed when she tried to eat a frozen dinner, but complained it was too hot. Ms.
Battaglia does not even remember being asked to submit to a urine test.
Ms. Battaglia's explanation for the presence of the syringe found in her purse is unworthy of belief. Her possession of the syringe, which she admitted had contained narcotics, (TR. 89), and her use of controlled substances before and during her shift, show a pattern, rather than a single instance, of drug abuse. That problem actually interfered with her ability to practice nursing safely on July 26, 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. In this licensure discipline action, the Department must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). All inferences drawn in the findings of fact are based on direct evidence, or on other inferences which the evidence established with clear and convincing proof. See Benson v. State, 526 So.2d 948, 952-57 (Fla. 2d DCA); rev. den. 536 So.2d 243 (Fla. 1988); cert. den., U. S. , 109 S.Ct. 1349 (1989).
A nurse is subject to discipline under Section 464.018(1), Florida Statutes for:
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.
Engaging or attempting to engage in possession, sale, or distribution of controlled substances as set forth in Chapter 893, for any other than legitimate purposes.
Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or the use of alcohol, drugs, narcotics, or chemicals or any other type of material. .
Ms. Battaglia's admitted failure to have kept the medication cart locked was unprofessional conduct, falling below the minimum standards of acceptable and prevailing nursing practice. This violated Section 464.018(1)(f), Florida Statutes.
The removal of controlled substances from the cart for her own use (or perhaps also for the use of her husband, TR. 89) is a direct violation of Section 464.018(1)(g), Florida Statutes.
On July 26, 1988, Ms. Battaglia was unable to practice nursing with reasonable skill and safety by reason of the use of drugs, narcotics or chemicals. She was under the influence of a controlled substance when she arrived for the 3:00 p.m. shift on July 26, 1988. She used controlled substances from her cart during that shift.
The disciplinary guidelines adopted by the Board of Nursing are found in Rule 210-10.011, Florida Administrative Code. While the rule permits deviation from the penalty guidelines if evidence about aggravating and mitigating factors are submitted to the Hearing Officer at formal hearing, Rule 210- 10.011(3)(a), Florida Administrative Code, neither party presented any evidence on aggravation or mitigation with a view to affecting the penalty to be recommended.
The penalty prescribed for unprofessional conduct in delivery of nursing services is from one year probation and appropriate education courses to suspension until the licensee offers proof of safe practice, followed by a period of probation. The penalty range for possession of controlled substances is from a $250 fine and probation to a five year suspension, followed by probation. The penalty for impairment when the licensee is not participating in the impaired nurse program is suspension until the licensee offers proof of safe practice followed by a period of probation. Based upon the problem presented by Ms. Battaglia's impairment while on duty, it is recommended that her licensure be suspended until she is able to offer proof of safe practice through successful participation in the impaired nurse program, followed by an appropriate period of probation. The same penalty is appropriate for the charge of unprofessional conduct. With respect to the charge of unlawful possession of a controlled substance, she should be fined a $250, and placed on probation for a period of five years.
WILLIAM R. DORSEY, JR.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1563 RULINGS ON FINDINGS OF FACT PROPOSED BY THE BOARD OF NURSING
All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary.
Judith V. Battaglia
Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street
Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street
Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing
