vs. ) CASE NO. 90-4558
MARGARET B. CORRY, )
Respondent. )
Upon due notice, this cause came on for formal hearing on October 10, 1990 in Port Orange, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
Tracey S. Hartman, Esquire Department of Professional
For Respondent: Margaret B. Corry, pro se
Respondent is charged in the Administrative Complaint with violation(s) of Subsection 464.018(1)(h) F.S., for unprofessional conduct which shall include, but not be limited to, any departure from, or failure to conform to, the minimal standards of acceptable and prevailing nursing practices; Subsection 464.018(1)(i) F.S., for engaging or attempting to engage in the possession, sale, or distribution of controlled substances for any other than legitimate purposes; and/or Subsection 464.018(1)(j) F.S., for being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals.
The Administrative Complaint generally alleges that Respondent's employment was terminated due to her inability to function in the capacity of a nurse with reasonable skill and safety and that during an arrest, Respondent was found to be in the possession of a fraudulently procured prescription bottle and a blank, previously-signed prescription obtained from her place of employment. Upon the
foregoing, the administrative complaint further alleges that Respondent has therefore engaged in the possession, sale, or distribution of contraband substances for other than a legitimate purpose and that these acts or circumstances constitute unprofessional conduct and failure to conform to the minimal standards of acceptable and prevailing nursing practice.
At formal hearing, Petitioner presented the oral testimony of Captain Francis G. Monaco, Sylvester Lucas, Indravaden P. Shah, M.D., William Whatley, William Burrows, and Kathleen McMullen Deaton and had seven exhibits admitted in evidence. However, due to the departure of Captain Monaco with Exhibits P- 1 and 2, Petitioner elected to withdraw those exhibits from consideration.
Respondent testified on her own behalf and presented the oral testimony of Robbye Martin. She had seven exhibits admitted in evidence. Exhibit R-6 (a notarized letter from Hampton Corry) was tentatively admitted, subject to consideration of all the evidence in the context of Section 120.58(1) F.S. and is here rejected as inadmissible hearsay.
A transcript was duly filed. Petitioner timely filed post-hearing proposals; Respondent filed none. Petitioner's submittal was missing a page, which page Petitioner late-filed with notice to Respondent. No objection to such procedure having been timely-filed by Respondent, all of Petitioner's proposed findings of fact have been considered and ruled upon in the appendix to this Recommended Order pursuant to Section 120.59(2) F.S.
At all times material, Respondent was a Florida-licensed practical nurse (LPN), license No. 30177-1.
On February 9, 1988, Respondent married Hampton Alonzo Corry. Shortly after their marriage, Mr. Corry began using crack cocaine and later sold crack cocaine. As Mr. Corry's addiction to crack cocaine grew, Respondent's life with him became fraught with physical and mental abuse. Respondent's employers and coworkers knew of this abuse.
Respondent was employed as an LPN and as office nurse for Indravaden P. Shah, M.D., by Florida Health Care Center, from June 26, 1986 to November 8, 1988. After their marriage, Mr. Corry usually dropped his wife off in her employer's parking lot, but nothing prohibited his visiting her in Dr. Shah's office suite.
Respondent's most recent evaluation by William Burrows, R. N., Director of Nursing, dated June 8, 1988 (R-2) before Respondent's termination on November 8, 1988, contained only "excellent" and "good" ratings and a complimentary commentary. At that time, Mr. Burrows also recommended Respondent for a salary increase.
In August or September 1988, both Respondent and her husband were arrested on criminal concealed weapon charges arising out of his abuse of her. Respondent entered into a pretrial intervention contract and the prosecution contracted to "nolle prosequi" the charges against her, provided she successfully completed her contract and probation, which she did (R
Although the record is unclear whether it was due to the concealed weapon charge against him or for some other reason, Respondent's testimony that her husband remained in jail until November 2, 1988 is unrefuted, as is her testimony that on November 7, 1988, after a weekend of abuse, he locked her out of her house
and she had to await a locksmith to let her back into the house before she could go to work that day. Her testimony as to the services of a locksmith on that day is supported by Exhibit R-3, the locksmith's November 7, 1988 bill.
Kathleen McMullen Deaton was a licensed LPN at all times material and had received her R.N. license prior to formal hearing. When Respondent did not report for work on time on November 7, 1988, Mrs. Deaton filled in for her as Dr. Shah's office nurse. Respondent reported for work at approximately 11:00
a.m. Mrs. Deaton described Respondent upon Respondent's late arrival at work on November 7, 1988 as, "[she] didn't have anything to say . . . just started with the clinic . . . her appearance was unkempt. . . ." (TR-80) Thereafter, Mrs. Deaton observed the Respondent from an adjoining office suite for approximately three hours and testified that during that period, Respondent exhibited a staggered gait, eyes half-open, slurred speech, and uncoordinated movements.
(TR-81) Dr. Shah observed Respondent for the same three hours, at much closer range, and testified that, ". . . she was a little drowsy and her eyes were red, so I asked her, 'Margaret do you feel all right?' and she said, 'No I feel sick.' I said, 'Well, if you feel sick, you probably should go home '"
(TR-50)
Mr. Burrows was absent on November 7, and was unable to personally observe Respondent that day, but he related that over an unspecified period of time very close to her termination, he "considered the fact that she may be impaired at work . . . slow to respond, thick speech, dilated pupils." (TR-69) On November 8, 1988, after speculative comments to him from unspecified persons concerning Respondent's appearance, behavior, and possible impairment on the preceding day, Mr. Burrows fired Respondent because he ". . . felt [she] had problems that were insurmountable and it was going to cause her problems on the job" (TR-69-70) and that "she was not capable of performing at Florida Health Care." (TR-74) Nonetheless, on November 16, 1988 he wrote her an unequivocal letter of recommendation as an LPN. (R-1)
According to Mr. Burrows, Respondent's appearance, work habits, and professionalism deteriorated after her marriage to Mr. Corry, but he was unable to give a specific example of deteriorated work performance and was unaware of when their marriage had taken place. He stated that Respondent had been tardy once or twice and he was aware of her appearing for work in a battered condition once or twice. As explanation of why his June 8, 1988 evaluation of Respondent had been so good, Mr. Burrows stated that Respondent had not gone downhill until after that date.
It is significant that neither Dr. Shah, M.D., nor Mrs. Deaton, R.N., nor Mr. Burrows, R.N., testified that it was his/her professional opinion within reasonable medical probability that Respondent ever was actually impaired on the job by drug use or for any other reason or that whatever was wrong with her made her unable to function in the capacity of a nurse any more than anyone else who goes home rather than work when she is sick. Neither did any witness render any expert opinion to the effect that Petitioner's job performance at any time constituted a departure from, or failure to conform to, the minimal standards of acceptable and prevailing nursing practice or that she was unable to practice nursing with reasonable skill and safety.
At all times material, Captain Francis G. Monaco was Assistant Chief of Police and Superintendent of the Criminal Investigation Division of the Daytona Beach Shores Police Department. In July of 1988, the Daytona Beach Shores Police Department had begun an investigation of possible narcotics activity involving Mr. Corry. Confidential informants, one of whom was Peggy
Sue Thomas, Mr. Corry's drug dealing partner, lover, and fellow-cocaine addict, provided information to Captain Monaco that Mr. Corry was acting as a dealer in crack cocaine and that Respondent was supplying him with valium tablets for sale by way of prescriptions taken from a doctor's office at Florida Health Care.
The reliability of Respondent's rival and of the other confidential informants was not demonstrated on this record because none of them testified at formal hearing.
On November 21, 1988, three weeks after her termination by Florida Health Care and while Respondent was not employed as a nurse, Respondent drove her husband, Hampton Corry, to a beachside apartment on Daytona's south side where Captain Monaco's undercover force had arranged with a confidential informant to institute a "buy" of one ounce of crack cocaine from Mr. Corry. Mr. Corry entered the apartment while Respondent remained in the car. At no time did Respondent enter the apartment. When Mr. Corry exited the apartment,
Respondent drove him away in the car. Some time later, Respondent and Mr. Corry returned in the same car, the Respondent still driving. Again, Respondent remained in the car while Mr. Corry entered the apartment and drove him away when he came out again.
At no time could Respondent see what was going on in the apartment. None of the informants or undercover law enforcement officers ever made "buys" of any contraband substance from Respondent.
Subsequent to Mr. Corry's second return from the beachside apartment to the car driven by Respondent, their vehicle was stopped at an intersection. Mr. Corry was arrested for dealing or trafficking in crack cocaine.
Mr. Corry also allegedly received money on his first trip to the apartment and returned with a lump of crack cocaine on his second trip to the apartment, but none of the officers or informants who were inside the apartment testified at formal hearing, and these allegations of Petitioner rely on a police report spanning activitites of November 17-21, 1988 (P
admitted without objection, this police report is not credible. In the first place, it does not meet all the requirements of a business records exception to the hearsay rule. Secondly, even if it did, there is nothing to ensure the accuracy of any of the statements attributed therein to non-police, particularly those attributed to Mr. Corry and the confidential informants, about Respondent's drug involvement. Moreover, the reliability of the statements of the confidential informants was never established on the record as required by law. The reliability of Mr. Corry's lover and fellow-drug user/salesman, Peggy Sue Thomas, who was also a so-called confidential informant, is suspect in any case since she was a rival of Respondent for Mr. Corry's affections. Finally, this police report was assembled by a single police officer who did not testify, from notes made by as many as six other officers concerning their actions, conversations, and observations over the four days in question. The other officers apparently never reviewed the final draft of the report. They also did not testify at formal hearing. Not being credible, the report is not probative.
An inventory search of the Respondent's purse when her husband was arrested revealed a blank prescription signed by Indravaden P. Shah, M.D., (P-4) and a prescription bottle for valium for Hampton Corry which had been filled at the New Smyrna Beach Winn Dixie Pharmacy. (P-5) Discovery of these items in her possession resulted in her arrest.
As Dr. Shah's office nurse, Respondent had previously had access to blank Florida Health Care prescription pads and to Dr. Shah's DEA number which is necessary for prescribing narcotics. Dr. Shah's name and DEA number were also stamped on prescription forms imprinted with the Florida Health Care information. Dr. Shah's standard practice was to fill out prescription forms and sign them, as needed. In order to be filled by a pharmacist, a written prescription must carry the patient's name, all information about the drug and dosage prescribed, and the physician's name and signature. If narcotics are involved, it also must include the physician's DEA number.
Prescriptions may also be "called in" over the telephone to a pharmacist by the physician or by a nurse upon the physician's authorization. In such a situation, the pharmacist takes down the information given him orally over the phone and writes it on a pharmacy prescription form; for this, the physician need not sign that pharmacy prescription form. Respondent was also familiar with the process for "calling in" Dr. Shah's prescriptions to local pharmacies.
At night, Dr. Shah's pads of prescription forms pre-stamped with his name and DEA number were kept in a locked cabinet at Florida Health Care to which Dr. Shah, Respondent, and a number of other Florida Health Care employees had keys. However, prescription pads were never locked up during the day, and during the day prescription pads were also kept in desk drawers and left out on countertops where anyone who came into Dr. Shah's office suite would have access either to take one page or a pad of pages or where anyone could simply copy the DEA number from a prescription pad.
Registered Pharmacist William Whatley testified that the prescription bottle for Hampton Corry which was found in Respondent's possession (P-5) corresponded to a New Smyrna Beach Winn Dixie prescription form which had been filled in by his partner (P-3) and which pharmacy prescription form Captain Monaco's subordinates had obtained after-the-fact from Mr. Whatley; Exhibit P was never in Respondent's possession at any time. Mr. Whatley's partner both pencilled-in the Winn Dixie prescription form (P-3) and "filled" [placed the ordered drug, in this case, valium, in its corresponding bottle (P-5)] in response to an oral prescription telephoned to the New Smyrna Beach Winn Dixie Pharmacy for Hampton Corry allegedly on behalf of Dr. Shah on November 12, 1988, four days after Respondent had been terminated from her employment. The information taken by the pharmacist over the phone covered both the relatively benign drug predisone and the narcotic drug, valium. The empty valium bottle
(P-5) was found in Respondent's purse. The pharmacist had placed the predisone tablets in a separately-labeled bottle. No predisone bottle was found on Respondent.
Anyone who had access to Exhibit P-4 (Dr. Shah's stamped, signed blank prescription form which was found in Respondent's purse on November 21, 1988) could have provided his DEA number to the Winn Dixie pharmacist on November 12, 1988, but so could anyone who had ever copied his DEA number off one of Dr. Shah's pads, or anyone who had received a prescription form from him as a patient, or anyone who had overheard the Respondent legitimately call in Dr. Shah's DEA number over the telephone during her employment. One might also expect that after two years' employment with Dr. Shah, Respondent would not need Exhibit P-4 as reference material to call in Dr. Shah's DEA number.
Nonetheless, the pharmacist filled in no DEA number for Dr. Shah when he filled in the rest of Exhibit P-3 on November 12, 1988. Although this omission could have been inadvertent on the pharmacist's part even though the caller supplied the DEA number, the absence of Dr. Shah's DEA number from Exhibit P-3 also permits of the equally strong inference that the caller failed to provide the DEA number and the pharmacist failed to ask for it, despite the pharmacy's standard operating procedure to the contrary. However, one would reasonably expect that the Respondent, if she had been the caller, would have ensured that Dr. Shah's DEA number was given to the pharmacist, since this would enhance the impression that the call was genuine. While not persuasive by itself, the fact that Dr. Shah's DEA number does not appear on Exhibit P-3 at least suggests that Respondent did not call in the information for Exhibits P-3 and P-5.
There is no evidence of who picked up the predisone and valium bottles from the New Smyrna Beach Winn Dixie Pharmacy.
Dr. Shah has never treated a patient by the name of Hampton Corry and has never authorized directly or indirectly a prescription for valium or any other drug for Hampton Corry.
Dr. Shah has never authorized the Respondent or anyone else to have in his/her possession a signed blank prescription form. Dr. Shah speculated that Exhibit P-4, the blank Florida Health Care prescription form stamped with his name and DEA number which was found in Respondent's purse on November 21, 1988, had been previously signed by him while Respondent still worked for him with the intent of issuing it to one of his regular patients and then the signed form had been accidentally left by him on the counter outside his examining room when that patient informed him she already had enough medicine. The Respondent and anyone else who entered Dr. Shah's office suite that day had had access to Exhibit P-4.
Respondent testified that she had found out in March 1988 that her husband was using drugs and had been trying to get him to stop ever since, but that only much closer to the November 21 arrest date did she find out he was also selling them. She denied ever assisting him in the sale of drugs and denied that she ever personally used drugs.
Respondent further testified credibly and without refutation that she had Exhibits P-4 (Dr. Shah's signed, blank prescription bearing his DEA number) and P-5 (the empty valium bottle resulting from Exhibit P-3) in her purse on November 21 because she had taken them away from her husband that very day (TR- 112-114), that she never went inside the beachside apartment because she suspected drugs would be used or exchanged (TR-90), and that she removed herself from the car for a period of time while her husband went to west Daytona between their two appearances at the beachside apartment, also because Respondent felt her husband was picking up drugs in west Daytona. (TR-108-110) The foregoing testimony evidences Respondent's desire to avoid drugs, not promote them.
All criminal charges against Respondent arising out of the circumstances of November 21, 1988 have been dismissed/ "nolle prosequi" due to insufficient evidence (R-4).
Respondent is in the process of divorcing Mr. Corry and now works two jobs in order to pay off the debts he ran up in her name during the course of their marriage. Respondent has lost her car and her home as a result of their marital debts. Ms. Martin confirmed Respondent's testimony as to her hard work and current distressed economic situation.
A current non-nursing employer submitted a written character reference on Respondent's behalf which was admitted without objection and which further supports a finding that Respondent is currently working two jobs, is trustworthy, and is not currently impaired in any fashion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
Subsections 464.018(1)(h) and (i) provide as follows:
The following acts shall be grounds for disciplinary action set forth in this section:
* * *
Unprofessional conduct, which shall in- clude, but not be limited to, any departure from, or the failure to conform to, the min- imal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.
Engaging or attempting to engage in the possession, sale, or distribution of control- led 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 use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or phy- sical condition. . . .
* * *
Because this is a professional license disciplinary case, the burden of proving all elements of each violation charged is by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Due to the evidentiary failure noted in Findings of Fact 6-9 above, the undersigned is presented with a situation in which the facts proved against Respondent with regard to November 7, 1988 are that she was certainly disheveled and tardy and went home after working only three hours and might have been impaired or might simply have been sick, depressed, and exhausted. For the same reasons, the facts proven against Respondent prior to that date are that she was tardy twice and disheveled (maybe beaten-up) twice and was not her best former self, professionally.
The foremost impediment to Petitioner prevailing in this cause is that there has been no expert testimony to show what constitutes the minimal standards of acceptable and prevailing nursing practice, let alone of how Respondent offended such standards or that she is unable to practice nursing with reasonable skill and safety. Specifically because of the equivocal and
speculative phraseology employed by registered nurses Burrows and Deaton, language possibly even advanced by them out of kindness toward the Respondent, the record evidence is not clear or convincing of more than Respondent's temporary physical impairment and certainly is insufficient to establish drug- induced impairment.
While Mr. Burrows' prior favorable evaluation of Respondent and his subsequent unequivocal letter recommending her as a nurse also diminish his credibility on the issue of impairment, they overall leave the impression that Respondent's performance on November 7, 1988 and on any other prior date that she drew criticism constituted no more than a temporary departure from Respondent's own excellent nursing record or a departure from the high employment standards of Florida Health Care, but not a departure from any minimal standards of the nursing profession.
Dr. Shah, a medical physician, had greater opportunity to closely observe Respondent on November 7 than did either nurse Deaton, who was merely nearby in an adjoining office suite, or nurse Burrows, who did not observe Respondent at all that day. Dr. Shah seems to have been satisfied that on November 7, Respondent was merely sick and tired.
Due to the foregoing, it is not necessary to address Respondent's assertion that Mrs. Deaton's unfavorable testimony occurred because Deaton was unfriendly to Respondent and that Mr. Burrows and Mrs. Deaton testified as they did due to their shared "prosecution of the abused victim" mind set.
Subsection 893.13(2)(a)8. F.S. provides as follows:
893.13 Prohibited acts; penalties.--
* * *
(2)(a) It is unlawful for any person:
* * *
8. To possess a prescription form which has not been completed and signed by the practi- tioner whose name appears printed thereon, unless the person is such practitioner, is an agent or employee of such practitioner, is a pharmacist, or is a supplier of prescription forms who is authorized by such practitioner to possess such forms.
Subsection 893.13(2)(a)8. must be read, for purposes of this license discipline case, in pari materia with Subsection 464.018(1)(i), supra.
The evidence clearly establishes that on November 21, 1990, Respondent was in unauthorized physical possession of one of Dr. Shah's uncompleted, signed prescription forms (P-4) contrary to Section 893.13(2)(a)8. F.S., but thereafter the evidence falls short of linking Respondent to the act of fraudulently "telephoning in" P-3 (created by the pharmacist and never in her possession) or of fraudulently obtaining P-5 (the bottle resulting from P-3). Only the empty bottle, but not the valium which that bottle had once contained, was found in Respondent's purse.
Respondent's own testimony also renders it clear that on November 21 she knew or had reason to know that her husband was dealing in drugs between the beachside apartment and some undisclosed location in west Daytona, otherwise she would not have remained in the car at the beachside apartment or refused to drive Mr. Corry to west Daytona.
However, Respondent's explanation of why she had the uncompleted, signed prescription form (P-4) and empty bottle (P-5) is credible and this, together with all the supportive evidence of her abused marital situation at the time, militates against the conclusion that she had the prescription form for the purpose of "engaging or attempting to engage in the possession, sale, or distribution of controlled substances . . . ." See, Section 464.018(1)(i) F.S.
While an argument could be made that Respondent's driving the car assisted Mr. Corry in his alleged sale of cocaine, and that Respondent was free to leave in the car at will and was not his physical prisoner, the credible, probative evidence in this record falls short of establishing either intent or volition on Respondent's part to deal in cocaine or in valium or to assist in the "possession, sale or distributuion of controlled substances." See, Section 464.018(1)(i) F.S.
Likewise, there is no testimony to establish that merely having physical possession of Exhibit P-4 at a time when she was not on duty or even employed as a nurse impinged in any way on Respondent's nursing practice. Thirteen days after she was fired, Respondent had possession of an empty valium bottle which had been illicitly obtained by a person or persons unknown four days after she was fired. She possessed no valium, which is a drug proscribed by Chapter 893 F.S. She had no cocaine, which is a drug proscribed by Chapter 893 F.S. There is no clear link between Exhibit P-4 and Exhibits P-3/P-5, nor can a reasonable inference be drawn that Exhibits P-3/P-5 must somehow have resulted from Respondent's possession of Exhibit P-4, since neither Exhibit P-3 nor Exhibit P-5 bears a DEA number.
Respondent has reason to heed the old adage, "marry in haste; repent at leisure," but the statute does not permit disciplining her professional license for marrying what is termed in our southern idiom, "a sorry man." Vigilance in preventing illicit drug use or drug profiteering in the health care professions is a valid concern of employers such as Florida Health Care and of the Department of Professional Regulation, but Mr. Corry's guilt or innocence cannot be blamed or attributed to Respondent's license without clearer and more convincing evidence than exists in this record.
Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing all charges against Respondent.
RECOMMENDED this 14th day of January, 1991, at Tallahassee, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4558
F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:
1-4, 8-10, 12-14 Accepted.
5-7 Accepted that Respondent remained in the car. The rest is rejected for the reasons set forth in footnote 1.
11 Rejected as not supported by the evidence. Exhibit P-3 (not in Respondent's purse) and P-5 (in Respondent's purse) correspond. See FOF 16-17.
15-16 Accepted as modified to more accurately reflect the record.
None submitted.
Albert Peacock, Esquire, and Tracey S. Hartman, Esquire Department of Professional
Margaret B. Corry
Kenneth E. Easley General Counsel
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 consult with 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.
