STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2517

)

SHERRI LYNNE HARTLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 8, 1990, at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0752

For Respondent: Sherri Lynne Hartley, pro se

5821 90th Avenue North Pinellas Park, Florida 34668

STATEMENT OF THE ISSUES

Whether Respondent is guilty of unprofessional conduct, possessed a controlled substance for other than a legitimate purpose, and/or made a false report, knowing same to be false.

PRELIMINARY STATEMENT

By Administrative Complaint filed March 9, 1990, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Sherri Lynne Hartley, Respondent, as a licensed practical nurse. As grounds therefor, it is alleged that while employed at Oak Manor Nursing Center Respondent signed out Demoral to be administered to patient

M. G., recorded the Demoral as administered, yet a urine specimen taken from M.

1. shortly after the shot was given showed no trace of Demoral.

   
   

   Proposed findings submitted by Petitioner are accepted. No operative facts are in dispute. The sole issue is whether the circumstantial evidence, viz., the absence of Demoral in the urine taken from patient M. B., is sufficient to overcome Respondent's denial of any wrong doing.

   Having considered all evidence presented and the testimony and demeanor of the witnesses, the following is submitted.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, at all times relevant here to, was a licensed practical nurse in the State of Florida, having been issued license no. PN 0702091, and she was employed at Oak Manor Nursing Center in Largo, Florida.

      
      

   2. Respondent was assigned to the care of terminally ill patient M. G., whose physician's orders called for administration of Demoral, 50 mg. every four hours as needed for pain.

      
      

   3. Upon reporting for duty at 3 p.m. on June 17, 1989, Respondent checked the narcotics for which she would be responsible on the 3-11 shift with the nurse being relieved and found all properly accounted for. Respondent had possession of the key to the narcotics locker on her wing.

      
      

   4. At approximately 4:45 p.m. on June 17, 1989, Respondent took four of five ampules of Demoral in a package that had been crushed to Ray Grondin, R.N., her supervisor. Grondin observed what appeared to be small needle holes in the crushed ampules and made arrangements to have the next shots administered by Respondent monitored and to have urine samples of Respondent and the patient taken for analysis.

      
      

   5. At 6:40 p.m. on June 17, 1989, Respondent administered what purported to be Demoral to patient M. G. This injection in the buttocks was witnessed by Rosemary Griffin, L.P.N. Griffin testified to no apparent change in M. G. immediately following the injection which would indicate relief from pain.

      
      

   6. Some four hours later, urine specimens were take from patient M. G. and Respondent, labeled and placed in a refrigerator from which these specimens were subsequently removed for laboratory testing.

      
      

   7. A lab report on the specimen marked as taken from M. G. was subsequently returned to the nursing center, and this report showed no evidence of Demoral. The specimen placed in the refrigerator labeled to be from Respondent disappeared some time between the time it was placed in the refrigerator and the return of the lab report to the nursing center.

      
      

   8. No chain of custody was established for these specimens, the refrigerator in which they were stored was apparently unlocked and available to anyone in the vicinity, and no one could testify with certainty that the lab report (Exhibit 4) was on the urine sample taken from patient M. G.

      
      

   9. Respondent denied any misuse of Demoral by her. In her answers to request for admissions (Exhibit 2), she state that R. N. Grondin was in the medication room when the hypodermic was prepared for the 6:40 p.m. injection, and that the urine specimens remained in the refrigerator several days before being picked up by the lab. At the hearing, L.P.N. Griffin, who witnessed the injection, testified that she did not observe the hypodermic syringe being filled. Grondin's testimony did not address this issue.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has

       jurisdiction over the parties to, and the subject matter of, these proceedings. In license disciplinary proceedings, the agency has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   11. Licensees who misuse controlled substances are guilty of unprofessional conduct as defined in Section 464.018(1)(h), Florida Statutes. Making false entries, reports or records constitutes a violation of Section 464.018(1)(f) and possession of a controlled substance for other than lawful purposes constitutes a violation of Section 464.018(1)(i), Florida Statutes.

       
       

   12. The evidence here presented raises only the possibility that Respondent violated the above-cited provisions of the statutes. No evidence was presented regarding the substance injected into patient M. G., no chain of custody was established to show that the lab report (Exhibit 4) was from a urine specimen taken from M. G., and no explanation for the loss of the urine specimen taken from Respondent was offered. This is not the type of evidence upon which the revocation of a professional license can be founded.

       
       

   13. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent violated provisions of Chapter 464, Florida Statutes, as alleged.

RECOMMENDATION

It is recommended that a Final Order be entered finding Respondent not guilty of all allegations in the Administrative Complaint filed March 9, 1990.

DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0752

K. N. AYERS 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 27 day of November, 1990.

Sherri Lynne Hartley 5821 90th Avenue North Pinellas Park, FL 34668

Judie Ritter Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 90-002517

Orders for Case No: 90-002517