STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3401

)

RUTH THERESA HEALEY, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on August 17, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation 1940 North Monroe Street,

Suite 60

Tallahassee, Florida 32399-0750

For Respondent: Ruth Theresa Healey, R.N., pro se

1075 N.E. 39th Street, #110 Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated March 13, 1989, Petitioner charged that Respondent violated the provisions of Section 464.018(1)(f), (h), (j) and (l), Florida Statutes and the implementing rules of the Board of Nursing, Rule 210- 10.005(1) (d), (e) (2) and (g), Florida Administrative Code. In the administrative complaint, the following is alleged:

1. Respondent is guilty of unprofessional conduct since she inserted a naso-gastric tube into her

   patient when the patient had an existing gastrostomy tube.

2. Respondent is guilty of

   unprofessional conduct by administering

   an incorrect amount of medication to her patient.

3. Respondent is guilty of falsifying

   the medication administration report of her patient.

4. Respondent is unable to practice

   nursing with reasonable skill and safety to her patient by reason of illness or drug abuse or as a result of a mental or physical condition as demonstrated by her unresponsive answers to questions about the alleged incidents and that she is undergoing drug therapy under the direction of a psychiatrist.

5. Respondent knowingly violated

Chapter 464, the rules of the Board of Nursing and an Order of the Board of Nursing.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on June 28, 1989, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated July 25, 1989, the final hearing was scheduled on August 17, 1989 in Fort Lauderdale, Florida. The case was transferred from Hearing Officer Claude Arrington to the undersigned on August 14, 1989.

At the hearing, Petitioner presented the testimony of four witnesses and offered two exhibits which were received into

evidence. Respondent testified on her own behalf, and offered no exhibits.

A transcript of the hearing was filed on September 12, 1989, and the parties, by rule, had until September 22, 1989 to file proposed findings of fact. Petitioner elected to file proposed findings, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Ruth Theresa Healey, was, at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number 0983072 by the Board of Nursing.

   
   

2. On May 20, 1988, Respondent was employed as a registered nurse at Broward Convalescent Home for the 11:00 p.m. to 7:00 a.m. shift. Included in Respondent's responsibilities were the assessment of each patient under her care; the administration of medication to her patients according to the physician's orders; and the correct documentation of each medication administration on each patient's medical chart.

   
   

3. Under Respondent's care on May 20, 1988 was the patient, E.M. The physician's orders for E.M. during Respondent's shift indicated that she was to be fed with one-half strength Entrition at 60 cc's per hour with water flushes through the gastrostomy tube (G Tube) which had been inserted into her abdomen. One-half strength Entrition is a nutrition substitute which is supplied in a self-contained package. On May 20, 1988, the supply of one-half strength was on special order and would not be available for use at Broward Convalescent Home until the next morning during the 7:00 a.m. to 3:00 p.m. shift.

4. E.M.'s G Tube was clearly marked on E.M.'s chart and easily observed upon patient assessment since it was protruding from her abdomen. Sometime during Respondent's shift, a naso-gastric tube, NG Tube, was also inserted into

   E.M. Without a physician's order, the insertion of a NG Tube into a patient with an existing G Tube could prove harmful to the patient and is contrary to the minimal standard of acceptable and prevailing nursing practice.

   
   

5. It was Petitioner's contention that Respondent inserted the NG Tube into her patient. Petitioner's position was supported by the testimony of Geraldine Hamilton, a nurse who came on duty the morning of May 21, 1988. Ms. Hamilton recalled that Respondent admitted to Ms. Hamilton that Respondent was in trouble because she, "put an NG Tube in one of the patients who has already got a G Tube." However, Respondent, at the hearing, consistently denied having made the statement. She asserted, instead, that a co-worker, Bunster Martinez, inserted the NG Tube. During Respondent's shift, she had sought Mr. Martinez's advice concerning the procedure she should use to feed E.M. since the one-half strength Entrition was not available. Mr. Martinez was not present at the hearing.

   
   

6. Respondent's speech pattern, as observed at the hearing and as noted through the testimony of others is not clear. Rather, it is cryptic and disjointed. Given Respondent's poor diction and syntax, Respondent's consistent denial that she inserted the NG Tube and the lack of corroborating evidence that Respondent did, in fact, insert the NG Tube, the literal meaning of Respondent's statement to Ms. Hamilton is unclear.

   
   

7. Respondent did not perform an assessment of E.M. which would have revealed the G Tube. Instead, contrary to the physician's order, Respondent began the administration of full strength Entrition through the NG Tube. In an attempt to create one-half strength Entrition, Respondent knowingly administered full strength Entrition for one hour at 85 cc. per hour followed by water flushes. However, the quality of one-half strength Entrition can not be obtained by diluting full strength Entrition in this manner, and the administration of full strength Entrition could have harmed F.M. Respondent's failure to perform an assessment of her patient and her action with regard to this feeding were contrary to the minimal standards of acceptable and prevailing nursing practice and constituted unprofessional conduct on her part.

   
   

8. Also, although Respondent administered to E.M. full strength Entrition through the NG Tube, she entered the feeding on E.M.'s chart as Entrition one- half strength at 60cc/hour via G tube. Accordingly, Respondent knowingly falsified the medication administration report.

   
   

9. The following morning, May 21, 1988, when the presence of the NG Tube was questioned, Respondent abruptly and forcibly removed the NG Tube from E.M. The procedure Respondent used to remove the NG Tube was also contrary to the minimal standards of acceptable and prevailing nursing practice, constituting unprofessional conduct on her part and placing her patient in more jeopardy.

   
   

10. Respondent acted somewhat incoherently on several occasions around the end of May, 1988. She was observed "talking to herself", was unresponsive to questions and appeared disoriented. No competent evidence was presented that such conduct resulted from a physical or mental condition or from medication.

11. Respondent was previously suspended by the Board of Nursing and required to undergo psychiatric treatment. She was subsequently reinstated. No competent and substantial evidence was presented that Respondent disobeyed the previous order or any order of the Board of Nursing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Because Respondent's professional license is subject to revocation in this proceeding, Petitioner must prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. The allegations in this case are that Respondent violated Section 464.018(1)(f), (h), (j) and (l) Florida Statutes. In pertinent part, said sections authorize the Board of Nursing to take disciplinary action against a nurse who is guilty as follows:

    
    

    464.018 Disciplinary actions.--

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

    (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.

    (j) 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 or any mental or physical condition. ...

    (l) Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

    
    

15. As to the Section 464.018(1)(l), Petitioner proved, by clear and convincing evidence, that Respondent violated the following rule of the Board of Nursing when she knowingly falsified her patients records and administered the medication to her patient incorrectly. The germane rule is Rule 210-10.005(1),

    Florida Administrative Code, which provides, in pertinent part, that the Board of Nursing may impose disciplinary penalties upon a determination that a licensee:

    
    

    1. Has falsely misrepresented the

       facts on the patient records, including, but not limited to, patient charts, narcotic records, medication administration records, or on applications for employment as a nurse or otherwise misrepresented the facts on records relating directly to the patient.

    2. Is guilty of unprofessional

    conduct which shall include, but not be limited to:

    2. Administering medications or treatments in negligent manner. ...

    
    

16. Further, Petitioner proved, by clear and convincing evidence, that when Respondent failed to assess her patient's condition, administered medication to her patient incorrectly and removed the NG Tube, she acted contrary to the minimal standards of acceptable and prevailing nursing practice. These acts constitute unprofessional conduct in violation of Section 464.018(1)(h). Although Petitioner proved, by clear and convincing evidence, that the insertion of a NG Tube into a patient with a existing G Tube without a physician's order to do so is contrary to the minimal standards of acceptable and prevailing nursing practice, Petitioner failed to prove by clear and convincing evidence that Respondent committed such an act.

    
    

17. Petitioner also proved, by clear and convincing evidence, that Respondent knowingly falsified the medical records of her patient in violation of Section 464.018(f).

    
    

18. Although Respondent's demeanor while in the care of patients, with her co-workers and at the hearing indicated that she might be suffering from a physical or mental condition which could jeopardize the safety of her patients, the proof failed to demonstrate, by clear and convincing evidence, that Respondent had such a condition or that Respondent was taking any medication which, then, would impair her ability to practice nursing. Accordingly, the allegations that Respondent violated Section 464.018(1)(j) and Section 464.081(1)(l), by violation of Rule 21O-10.005(1)(g), Florida Administrative Code must fail.

    
    

19. In her proposed order, Petitioner's counsel recommends that Respondent's license be suspended for a period of one year and, thereafter, until she can demonstrate the ability to practice nursing in a safe and proficient manner. At the hearing Petitioner established that Respondent previously had been disciplined by Petitioner. The prior disciplinary action against Respondent's license constitutes proof of an aggravating factor. Under the disciplinary guidelines set forth in Rule 210-10.011, Florida Administrative Code and, based on a balancing of such guidelines, the recommended penalty is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED the a final order be entered suspending Respondent's license for a period of one year, and thereafter, until she can demonstrate the ability to practice nursing in a safe and proficient manner.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12 day of October 1989.

JANE C. HAYMAN

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 12 day of October 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3401

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 2.

4. Subordinate to the result reached.

5. In part, addressed in paragraph 3 ;in part, subordinate to the result reached.

6. Not necessary to result reached.

7. Not necessary to result reached.

8. Not necessary to result reached.

9. In part, subordinate to result reached; in part, addressed in paragraph 3.

10. Addressed in paragraph 3.

11. Subordinate to the result reached.

12. Subordinate to the result reached.

13. Subordinate to the result reached.

14. Addressed in paragraphs 7 and 9.

15. Addressed in paragraph 9.

16. Addressed in paragraph 9.

17. In part, addressed in paragraphs 5 and 6; in part, subordinate to result reached.

18. Addressed in paragraph 8.

19. Addressed in paragraph 3.

20. Addressed in paragraph 7.

21. In part, not supported by competent and substantial evidence, in part, subordinate to the result reached.

22. Not supported by competent and substantial evidence.

23. Not supported by competent and substantial evidence.

24. Addressed in paragraphs 2 and 3.

25. Addressed in paragraph 4.

26. In part, addressed in paragraphs 10 and 11.

27. In part, subordinate to the result reached, in part, not supported by competent and substantial evidence.

28. Not supported by competent and substantial evidence.

29. Subordinate to the result reached.

30. Subordinate to the result reached.

31. Subordinate to the result reached.

32. Addressed in paragraph 7.

33. Addressed in paragraphs 7 and 8.

34. Addressed in paragraph 10.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Ruth Theresa Healey, R.N.

1075 N.E. 39th Street, Apartment 110 Fort Lauderdale, Florida 33308

Judie Ritter Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32201

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-003401

Orders for Case No: 89-003401