STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0320

)

NAN LYNN BAUMGARTNER, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 27, 1990.

APPEARANCES

For Petitioner: Michael Mone', Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: William Whitlock, Esquire

Post Office Box 1501 Tallahassee, Florida 32302-1501

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.

PRELIMINARY STATEMENT

On October 18, 1988, the Department filed an Administrative Complaint against Respondent, Nan Lynn Baumgartner. Later, on May 10, 1990, an Amended Administrative Complaint was filed against Respondent. The Administrative Complaints alleged that Respondent's license to practice nursing in the State of Florida should be disciplined for violating Sections 464.018(1)(h), Florida Statutes in that she failed to meet the minimum standards to practice nursing in the State of Florida and demonstrated poor judgment due to alcohol or drug abuse, and violating Section 464.018(1)(f), Florida Statutes, for filing false reports) in that she either failed to chart late medications or charted patient medications incorrectly. Respondent disputed the allegations of the complaint

and requested a formal administrative hearing. Respondent's request along with the administrative complaints were forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called four witnesses and offered four exhibits into evidence. Additionally, Petitioner offered the deposition testimony of Patricia Yates into evidence. Respondent testified in her own behalf and called nine witnesses to testify. Respondent offered five exhibits into evidence.

Petitioner and Respondent submitted their Proposed Recommended Orders on September 10, 1990 and September 12, 1990, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where the parties' proposals were not shown by the evidence, or were immaterial, cummulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972.

   
   

2. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs.

   
   

3. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time.

   
   

4. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs.

   
   

5. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the

   Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained.

   
   

6. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part.

   
   

7. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes.

   
   

8. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence.

   
   

9. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift.

   
   

10. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an

    hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear.

    
    

11. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

13. Chapter 464, Florida Statutes, is the Chapter which regulates the practice of nursing in the State of Florida. Chapter 464, Florida Statutes, states in part:

    
    

    "by 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"

    "by unprofessional conduct, which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptance and prevailing nursing practice, in which case actual injury need not be established"

    
    

14. Petitioner has the burden to establish by clear and convincing evidence that Respondent violated the above listed section of Chapter 464, Florida Statutes under the allegations of the Administrative Complaint. In this case, Petitioner has not made such a showing.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That the Division enter a Final Order dismissing the Administrative Complaint against Respondent.

DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.

ENDNOTES

1/ Specifically Ms. Yates and a co-worker were known as the "torture twins." Additionally it was rumored that Ms. Yates had been involved in another mysterious burn incident at another facility.

2/ The only evidence of the types of medication and the patients involved consisted of a list attached to a reprimand. This list was given to the supervisor by another nurse who may or may not have prepared the two person list. Clearly, the list is heresay to which no heresay exception applies since it is not one that is regularly kept in the course of business.

3/ A simple example illustrates this point. Assuming it takes 1 to 2 minutes to give each patient his or her medicine, ensure that the medicine is taken and chart the action, then for 72 patients the period of time it takes to hand out all the medications would be in excess of 2 hours. The evidence showed that some patients require 4 and 5 attempts on the nurses part to get that patient to take his or her medicine. Difficult patients would further extend the time frame.

APPENDIX TO RECOMMENDED ORDER

1. The facts contained in paragraphs 1, 2, and 3 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

   
   

2. The facts contained in paragraphs 4 and 6 of Petitioner's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in paragraphs 5 and 7 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 19 and 20 of Respondent's Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Michael Mone', Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

William Whitlock, Esquire Post Office Box 1501

Tallahassee, Florida 32302-1501

Kenneth E. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Docket for Case No: 90-000320

Orders for Case No: 90-000320