STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4185

)

RACHEL HIBBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 24, 1990, in Clearwater, Florida.

APPEARANCES

For Petitioner: Lois B. Lepp

Qualified Representative (See order dated 8/8/90) Department of Professional

Regulation

1940 N. Monroe St., Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUES

An administrative complaint dated March 8, 1990, alleges that Respondent violated Section 464.018(1)(h), F.S. by abandoning her nursing shift without notice. The issue in this proceeding is whether that violation occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent, Rachel Hibbert, answered the Administrative complaint with a dispute of the allegations and a request for formal hearing.

Nothing in the file of the Division of Administrative Hearings indicates that Respondent failed to receive the notice of hearing dated July 30, 1990, or that she needed a continuance of the hearing. When she did not appear at the hearing, after a brief wait, Petitioner was instructed to proceed with its prima facie case.

When the hearing officer returned to her office she learned that Ms. Hibbert had called the Division of Administrative Hearings the day of the hearing and had spoken with Hearing Officer, K.N. Ayers, telling him that

because of lack of funds she could not appear at the hearing. A letter from Ms. Hibbert, received by the Division of Administrative Hearings on October 25, 1990, the day after hearing, said the same thing. This does not constitute a basis for delay, nor does it appear that Ms. Hibbert was requesting a delay.

In support of the allegations of its complaint, the agency presented the testimony of Danielle Page, R.N.; Jacqueline Tobin, R.N.; Roberta K. Bischoff; and Diane Gossett. Six exhibits were admitted as Petitioners' exhibits #1-6, including a certified copy of Respondent's license file.

No transcript was filed, and it was not necessary for Petitioner to file a proposed recommended order.

FINDINGS OF FACT

1. Respondent, Rachel Ethel Hibbert, was licensed as a registered nurse in the State of Florida, on March 28, 1988, by examination. Now, and at all relevant times, her license has been current through March 31, 1991.

   
   

2. Ms. Hibbert was employed by Largo Medical Center Hospital, Largo, Florida, on December 28, 1988, and was assigned to the Critical Care Unit (CCU). She successfully completed her critical care internship on March 24, 1989.

   
   

3. On Saturday, April 1, 1989, Ms. Hibbert was assigned to work a 12-hour shift on the CCU. The unit was overstaffed and another unit, ICVTU, with open heart critical care patients needed help.

   
   

   The practice of "floating" staff between units is common, and each nurse was expected to take his or her turn when the ICVTU needed help. It was Ms. Hibbert's turn on April 1st. However, she told her Supervisor, Danielle Page, that she didn't feel "comfortable" with the ICVTU patients, as she had just finished training.

   
   

   Another nurse was selected to "float". However, Ms. Hibbert was counselled that her turn would come up again soon, and that she was properly trained. The type of patient and care on the ICVTU was explained to her.

   
   

4. The following day, April 2, 1989, Ms. Hibbert was again working a 12- hour shift. Around 3:00 p.m., a call came from ICVTU for a "float" nurse. Ms. Hibbert was told it was her turn, and she did not argue or otherwise refuse. She completed her records for the patients on the ICU and left the unit.

   
   

   Danielle Page told the ICVTU Charge Nurse that they had a new nurse coming and she was assured that the patient load would be light, and that experienced nurses could help Ms. Hibbert.

   
   

5. About 30-45 minutes later, ICVTU called to ask what happened to the float nurse. A search was made for Ms. Hibbert, and eventually someone checked her time card and found that she had clocked out at 3:12 p.m., shortly after leaving ICU.

   
   

6. Jacqueline Tobin, the Nursing Supervisor for Largo Medical Center, attempted to reach Ms. Hibbert by telephone, but was unsuccessful.

   
   

7. Ms. Hibbert, or someone on her behalf, called in sick on April 3rd. She was scheduled to be off on the 4th and 5th, and called in sick again on April 6th. Roberta Bischoff, Director of Critical Care Nursing, attempted to

   reach Ms. Hibbert by phone, but when she identified herself, the person answering the phone hung up.

   
   

8. On April 7, 1989, Rachel Hibbert called the personnel office to discuss her check. Roberta Bischoff spoke with her and asked why she left her shift. She replied that she did not feel qualified. Ms. Bischoff explained that this was an extremely serious matter and that she was deemed to have resigned without notice.

   
   

   Ms. Hibbert's employment with Largo Medical Center Hospital was terminated effective April 2, 1989.

   
   

9. Diane Gossett, a Medical Quality Assurance Investigator for the Department of Professional Regulation, contacted Ms. Hibbert during the course of her investigation. Ms. Hibbert admitted that she was supposed to go to the ICVTU, but she reiterated that she felt she was not qualified.

   
   

10. Notwithstanding Ms. Hibbert's personal misgivings, her abandonment of her shift, leaving without notice, was inexcusable. Petitioner's witnesses, professional women with extensive nursing training and experience, established that such action violates minimal standards of acceptable and prevailing nursing practice.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1), F.S., and 455.225(5), F.S.

    
    

12. The Department has the burden of proving the allegations of its complaint by evidence that is "clear and convincing". Ferris V. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

13. When the Board of Nursing has found a person guilty of violation of Chapter 464, F.S., the "Nurse Practice Act", the Board may revoke or suspend the professional license, may impose a fine or reprimand, and may place the nurse on probation for a period of time and under specified conditions. Section 464.018(2), F.S.

    
    

14. As provided in Section 464.018(1)(h), F.S., the following act is among grounds for the discipline described above:

    
    

    * * *

    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.

    * * *

    
    

15. Board of Nursing Rule 210-10.005(1)(e), F.A.C., includes "leaving a nursing assignment before properly advising appropriate personnel" as an example of unprofessional conduct which warrants discipline.

    
    

16. The agency proved that Rachel Hibbert left her nursing assignment without notice, and thus proved the violation with which she is charged.

17. At the close of the hearing, counsel for the agency stated that she recommended discipline of a fine of $500.00 and one year probation, with the successful completion of a continuing education course in the "legal aspects of nursing".

The Board of Nursing has adopted disciplinary guidelines in Rule 210- 10.011, F.A.C.. For a single act of unprofessional conduct in the delivery of nursing services, the guideline recommends,

...From one year probation and appropriate CE courses, to suspension until proof of safety to practice, followed by probation.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That a Final Order be entered finding Rachel Hibbert guilty of violating Section 464.016(1)(h), F.S., and imposing discipline of one year probation, to commence upon her return to the State of Florida, and requiring the successful completion of an approved continuing education course in legal aspects of nursing.

DONE AND RECOMMENDED this 29th day of October, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

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 29th day of October, 1990.

COPIES FURNISHED:

Judie Ritter, Executive Director DPR-Board of Nursing

504 Daniel Building

111 East Coastline Dr. Jacksonville, FL 32202

Kenneth E. Easley, General Counsel DPR-Northwood Centre

1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Lois B. Lepp

Allied Health Legal Section DPR-Northwood Centre

1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Rachel Hibbert Route 2, Box 486

Mays Landing, NJ 08330

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004185

Orders for Case No: 90-004185