STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4560

)

PATRICIA BANNISTER, R. N., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on October 1, 1990, at 9:30 a.m., in the Union County Courthouse, Room 101, 55 West Main Street, Lake Butler, Florida, a formal hearing was held in this case. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Lois P. Lepp, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Patricia Bannister, pro se

3320 Tribble Street

Lake City, Florida 32055 STATEMENT OF ISSUES

The issues in this case pertain to an administrative complaint brought by Petitioner against Respondent. Through that Complaint, Respondent is accused of preparing and subsequently receiving an injection of Decadron from hospital stock without obtaining consultation, examination, or authorization from a licensed physician. This is said to have occurred on October 11, 1989. The administrative complaint goes on to describe that the injection was allegedly administered by the house physician, a medical school graduate, who is not licensed as a physician in Florida or elsewhere in the United States. The Respondent is said not to have had a prescription for Decadron and was not a patient of the facility at that time. Based upon these factual allegations, Respondent is said to be guilty of a violation of Section 464.018(1)(h), Florida Statutes, in that she is guilty of unprofessional conduct, which includes, but is not limited to, departure from or failure to conform to the minimal standards of acceptable and prevailing nursing practices.

PRELIMINARY STATEMENT

Respondent had sought a formal hearing to defend against the accusations set forth in the administrative complaint. As a consequence the case was referred to the Division of Administrative Hearings for provision of a hearing officer to conduct a formal hearing. That hearing took place on the date and at the time and place previously described.

In its prosecution Petitioner presented the testimony of Oscar Armengol, Charlotte Bowlan, Charles Keir, Margaret Hunt and Vivian Horton. Four exhibits were offered by Petitioner and admitted. Respondent testified in her own defense. She offered no exhibits.

This recommended order is being entered following review of the transcript as filed with the Division of Administrative Hearings on October 12, 1990, and upon consideration of the exhibits.

Respondent provided written argument as filed on October 10, 1990. That written argument has been considered in the preparation of the recommended order and its terms are accepted to the extent that it is consistent with the recommended order. Otherwise, the argument is rejected. Petitioner's proposed recommended order filed October 22, 1990, has been considered and its facts commented on in the attached appendix.

FINDINGS OF FACT

1. Petitioner is charged with the responsibility to regulate the practice of nursing in Florida. At all times relevant to this inquiry Respondent has been licensed to practice nursing in the State of Florida under the terms of license no. 1123592. She is a registered nurse.

   
   

2. On October 11, 1989, Respondent was employed at the Ramadan Hand Institute, Lake Butler Hospital, Lake Butler, Florida. On that date she reported for duty at 11:00 p.m.

   
   

3. Respondent was not feeling well. Nonetheless, she reported for work. The problems that she was experiencing had to do with a chronic back condition which caused her considerable discomfort.

   
   

4. Respondent had not attempted to get a substitute to fill in for her duty shift on the night in question based upon the failure to realize the dimensions of her discomfort until it was too late to arrange for a substitute nurse.

   
   

5. When she arrived at the hospital her plight was made known to Oscar Armengol. Oscar Armengol was a house physician at the hospital and was on duty on the night in question. At that time he was not licensed to practice medicine in Florida. His duties were similar to those of a physician's assistant.

   During the incident which transpired, he was unsure of his exact role as was the Respondent. The actions that were taken by the house physician were not questioned by the Respondent in that she felt that he was acting appropriately in responding to her condition. Subsequently it was determined that his actions were inappropriate.

6. During the shift of October 11, 1989, which would continue over until the morning of October 12, 1989, the house physician discussed Respondent's back problem and told her that in order for her to overcome the problem she needed to have rest and take medication. He told her that he understood that an oral pain medication might be employed, Ansaid, a non-steroidal anti-inflammatory medication. He also mentioned to Respondent that some doctors in order to overcome acute discomfort would sometimes administer a single shot of Decadron, intramuscular. This is a steroid which is a very potent anti-inflammatory short action substance for the relief of pain. Specifically, the house physician told Respondent that in order for her to get well she probably needed to rest the next day at home otherwise she would not get well. From his conversation the house physician understood that the Respondent was going to see a physician on the next day who had treated her for this problem in the past.

   
   

7. Later, during the shift, Respondent came to the house physician while he was at the nursing station and had a 1 cc vile of Decadron and a sterile syringe, 3 cc. From the facts presented it is concluded that these items were obtained from the hospital stock not under prescription. Respondent had access to the pharmacy and Decadron was missing from that area. Respondent told the house physician that she wanted him to administer the medication. That refers to the Decadron. He responded that "Well, if you want, I can give it to you." He then administered the Decadron, I.M. while in the emergency room. This was done without the benefit of any examination of the Respondent. No records were made concerning her treatment, to include a reference to the administration of the medication. In this circumstance the house physician felt that he was exercising judgment in a medical capacity. Nonetheless, he understood that he was not a licensed physician and was not allowed to treat anyone as a physician. He had intended to advise her of what steps she would have to follow to improve her condition. He understood that she was going to follow up with her physician the next day. That was the reason he did not examine her. When she appeared at the nursing station with the medication he did not think twice about the propriety of his action. In his testimony the house physician continued to insist that he did not examine her, because he did not intend to treat her. At the time he gave her the medication, the house physician stated that there was some confusion in his mind, if not within the hospital administration concerning the extent of his hospital practice. He said that his understanding was that he had some opportunity to make decisions, to give non-regulated medication or non- narcotic medication. That impression was not correct as he discovered later in that he determined that he was not allowed to prescribe anything without direct supervision of a physician. In his activities in giving the shot he placed the Decadron into the syringe in preparing to give the shot.

   
   

8. On the next day the house physician was told by the hospital administration that he should not have given the shot to the Respondent, that he had made a mistake. He found that the right procedure would have been to take the Respondent to the emergency room, open an emergency room document, as with other patients coming to the emergency room, examine her, make an assessment of her condition and then call the attending physician who was on call that night in order to have that person come and see the Respondent and evaluate her. Again, Respondent was not aware of the practice limitations placed on the house physician and the appropriate conduct for him in terms of his choice to accept the syringe and vile of Decadron and administer the shot.

   
   

9. There is no specific policy in the hospital concerning the treatment of employees. The assumption on the part of the administration is that anyone who receives treatment must have that treatment documented for medical reasons and for insurance and billing purposes.

10. To the extent that any documentation was necessary for the treatment that was administered, Respondent was of the impression that the house physician would be responsible for documentation.

    
    

11. The Director of Nursing at the hospital during the time in question, Vivian Horton, explained that treatment in the hospital was through the emergency room in which a written record is made and the patient is seen by a physician before obtaining medication or treatment.

    
    

12. As a licensed practicing nurse in Florida, Ms. Horton is familiar with Chapter 464, Florida Statutes, regulatory statute for nurses who practice in Florida. When asked her opinion of the quality of performance by Respondent on the night in question she did not believe that use of the Decadron was inhibiting Respondent's performance. However, she did feel that the receipt of the medication without going through the proper hospital channels of being written up, seeing a physician and then receiving whatever medication or treatment that needed to be undertaken was below acceptable standards for a nurse practitioner. This perception is not accepted given the case management by the house physician in dealing with the Respondent as a patient and in the absence of any clear statement of policy in the situation where the employee is ill while on duty. As a patient, it would not be unreasonable for the Respondent to think that the house physician would be responsible for conferring with the on-call licensed physician, if deemed appropriate, making necessary examinations, and establishing the documentation following treatment. Under these circumstances it is to be expected that the Respondent, as a patient, would rely upon the house physician and would not feel herself responsible for making choices as to the protocol. The aspect of Respondent's conduct which is not acceptable is her use of hospital stock medication and the syringe, her part in obtaining and presenting this material to the house physician for his administration. To that extent, Respondent was not acting as a patient and the house physician's decision to treat her and the expectation that he is held accountable for that treatment does not relieve her in her conduct.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

14. Petitioner has the burden to prove the allegations in its administrative complaint by clear and convincing evidence. Ferris v. Turlington, 501 So.2d 292 (Fla. 1987).

    
    

15. Referring to the statement of the issues which sets out the allegations, Respondent had a part to play in the preparation of the injection of the Decadron. She helped in the preparation by presenting the vile of Decadron and syringe leading to the administration of the substance. This was material from the hospital stock not under prescription. In this way Respondent is guilty of violating Section 464.018(1)(h), Florida Statutes, for unprofessional conduct in departing from or failing to conform to minimal standards of acceptable and prevailable nursing practice. She is subject to the penalties of Section 464.018(2), Florida Statutes and attendant rules as to disciplinary guidelines set forth in the Florida Administrative Code.

16. Respondent is not responsible for the receipt of the injection of Decadron without consultation, examination or authorization from a licensed physician. She believed herself to be undergoing appropriate treatment from a person who was allowed to make decisions concerning her care. That was not an unreasonable belief on her part. The house physician's lack of authority and course of conduct are matters about which Respondent had no knowledge and was not responsible for. The house physician was the appropriate person to decide the issues of consultation, examination and to gain the necessary authorization from the licensed physician as needed. Respondent was not expected to be aware of the limitations on the practice of this house physician. Finally, contrary to the allegations, Respondent must be seen as a patient in the facility at the time that the choice was made by the house physician to administer the Decadron. In any event the perception of whether she is or is not a patient from the point of view of the hospital is not an item for which Respondent is accountable in the absence of a clear statement concerning treatment of employees, that is to say the steps which an employee would be expected to follow in receiving treatment whether or not that employee was a nurse.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which suspends Respondent for five days. DONE and ENTERED this 31st day of October, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 31st day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

The following is a discussion of the proposed facts by Petitioner. As stated, Respondent presented her position through argument as contrasted with specific fact finding.

Petitioner's Facts

Paragraphs 1-8 are subordinate to facts found.

Paragraph 9 is subordinate to facts found with the exception of the comment that Mr. Armengol did not treat the Respondent. This is contrary to facts to found. Paragraphs 10-13 are subordinate to facts found.

Paragraph 14 is subordinate to facts found with the exception that Mr. Armengol had more to do than administer the Decadron, he had first to decide to administer the substance.

Paragraph 15 is subordinate to facts found. Paragraphs 16-18 are contrary to facts found. Paragraphs 19 and 20 are subordinate to facts found.

Paragraph 21 is not necessary to the resolution of the dispute. Paragraphs 22-24 are subordinate to facts found.

Paragraph 25 is not necessary to the resolution of the dispute.

The first sentence of Paragraph 26 was not established in the record as to the exact participation if any on the part of Betty Carroll, L.P.N. The second sentence is subordinate to facts found.

Paragraph 27 is contrary to facts found. Paragraph 28 is subordinate to facts found.

COPIES FURNISHED:

Lois P. Lepp, Esq. Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Bannister, pro se 3320 Tribble Street

Lake City, FL 32055

Judie Ritter, Executive Director DPR-Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL

Petitioner,

vs. DPR CASE NO.: 89-012628

DOAH CASE NO.: 90-4560

PATRICIA J. BANNISTER,

Respondent.

/

FINAL ORDER

This matter came before the Board of Nursing pursuant to Section 120.57(1)(b)(9) and (10), Florida Statutes, on December 6, 1990, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A) and Respondent's exceptions.

Respondent was not in attendance and was not represented Petitioner was represented by Lisa M. Bassett, Senior Attorney.

Upon review of the Recommended Order, Respondent's Exceptions, and the complete record in this case, the Board makes the following findings and conclusions:

RULING ON EXCEPTIONS

Respondent's Exceptions to the factual findings in paragraphs 7 and 21 of the Recommended Order are denied. The credibility of witnesses and evaluation of witness demeanor are matters solely within the discretion of the hearing officer. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Respondent's Exceptions merely reflect than Respondent disagrees with the manner in which the Hearing Officer resolved the disputed issues of material fact. There is competent, substantial evidence in the record to support the finding of fact in the Recommended Order. The Hearing Officer under such circumstances may reject in part or in whole the contrary evidence adduced in Respondent's Statements.

FINDINGS OF FACT

The Board adopts the findings of fact in the Recommended Order.

CONCLUSIONS OF LAW

The Board has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 464, Florida Statutes. The Board adopts the conclusions of law in the Recommended Order on page 8. The Board rejects the conclusions of law on page nine as unnecessary dicta with no legal precedent.

DISPOSITION

Upon a review of the complete record, the Board rejects the recommendation for suspension as too severe a penalty. Nursing practice is a continuous learning process. Section 464.003(3), Florida Statutes, does hold the nurse "responsible and accountable for making decisions that are based upon the individual's educational preparation and experience in nursing." A review of the transcript reveals that Respondent does not have a clear understanding of the legal aspects of nursing with respect to the administration of medications as prescribed by a duly licensed practitioner.

The protocol of the facility in which Respondent was employed called for a patient to go to the emergency room for treatment by a physician who would open up a medical record on the patient. [p. 23 1. 13-23]. Respondent asked a house physician, Dr. Armengol, to administer Decardron to her. There was no examination of the patient, no records begun; Respondent simply handed the physician a vial and syringe of a medication she prepared. [p. 24 1. 7-11; p.

25 1. 13-20; p. 27 1. 1-2; p. 29 1. 11-12]

Therefore the Board finds that the best interests of the public and the education of the nurse to perform her duties would be served if Respondent were not suspended from practice. Instead the license of Patricia J. Bannister is placed on probation for one year, subject to the following conditions: The licensee shall not violate chapters 455 or 464, Florida Statutes, the rules promulgated pursuant thereto, any other state or federal law, rule, or regulation relating to the practice or the ability to practice nursing. The licensee must report any change in her address, telephone number, employment, employer's address or telephone number, or any arrests in writing by certified mail within 5 working days to the Probation Supervisor at the Board of Nursing Office, 904/359-6331, 111 Coastline Drive, East, Suite 516, Jacksonville, FL 32202.

The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee's name, license number, current address, name, address, and phone number of each current employer, whether employed as a nurse or not, and a statement by the licensee describing her employment. This report shall be submitted to she Probation Supervisor every three (3) months in a manner as directed, by the Probation Supervisor.

Upon employment the licensee must make and furnish a copy of this Order to her nursing supervisor who shall acknowledge this probation to the Board office.

The licensee shall be responsible for assuring reports from the nursing supervisor will be furnished to the Probation Supervisor every three (3) months. That report shall describe the licensee's work assignment, work load, level of performance, and any problems. The Probation Supervisor shall inform the Board regarding any report indicating an unprofessional level of work or other problem at the next scheduled Board or probable cause panel meeting. Any unsatisfactory reports shall be grounds for modification of the terms of this probation.

The licensee shall enroll in and successfully complete courses in legal aspects of nursing. This shall be in addition to other normally required continuing education courses. Home study courses will not be accepted to satisfy this condition unless specifically authorized by the Board.

Verification of course content and course completion must be submitted to the Probation Supervisor within 6 months from the date of this Order. The licensee's failure to comply with the terms of this Probation Order without the prior written consent of the Board shall be a violation of this Probation. The probation shall not be terminated until the licensee has complied with all terms of probation.

Upon a finding of probable cause that the licensee has violated this Order, her license shall be suspended until she appears before the Board. The Board delegates the authority to the Executive Director and Chairman of the Probable Cause Panel to suspend the license. The licensee shall be given notice of her rights to a hearing and an opportunity to defend herself.

This Order takes effect upon filing with the clerk of the Board of Nursing. The parties are notified that pursuant to Section 120.68, Florida Statutes,

that they may appeal this Final order by filing, within thirty days of the effective date of this Order, a notice of appeal with the clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

Done and Ordered this 5th day of February, 1991.

BOARD OF NURSING

NATALIA CRUZ, A.R.N CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to Patricia Bannister, 3320 Tribble St., Lake City, FL 32055 and by inter-office mail to Lisa Bassett, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0773 and to Charles Adams, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399- 1550 this 5th day of February, 1991.

JUDIE K. RITTER, R.N. EXECUTIVE DIRECTOR

Docket for Case No: 90-004560

Orders for Case No: 90-004560