STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT )
OF PROFESSIONAL REGULATION, )
BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 90-5330
) DPR NO. 90-2664
RALPH O. MCCAWLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on February 11, 1991, a formal hearing was conducted in this case under authority set forth in Section 120.57(1), Florida Statutes. The location of the hearing was Ocala, Florida. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Tracey S. Hartman, Esquire
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
For Respondent: No appearance
STATEMENT OF ISSUES
The issues concern allegations set forth in an administrative complaint brought by the Petitioner against the Respondent alleging violations associated with the Nurse Practice Act. See Chapter 464, Florida Statutes.
PRELIMINARY STATEMENT
On July 26, 1990, through the administrative complaint in DPR Case No. 90- 002664, Respondent was charged with a violation of Section 464.016(1)(g), Florida Statutes, for false, misleading or deceptive advertising; a violation of Section 464.018(1)(h), Florida Statutes, for unprofessional conduct, more specifically described as a violation of Rule 21O-10.005(e)(15), Florida Administrative Code, for practicing beyond the scope of his license, educational preparation or nursing experience; and, with a violation of Section 464.018(1)(l), Florida Statutes, for knowingly violating a provision of the Chapter, that provision within the chapter being Section 464.016(1)(a), Florida Statutes, which makes it a felony of the third degree to practice advanced or specialized, professional or practical nursing, as defined within the subject chapter absent the holding of an active license or certificate to do so.
Respondent was afforded the opportunity to reply to the administrative complaint and elected the remedy of defending against the accusations in that he disputed the allegations of fact that were set out in the administrative complaint. That election contemplates a resolution of the dispute through resort to a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings and the hearing of February 11, 1991 took place.
The case had been originally scheduled for hearing on November 30, 1990.
It was reset until February 11, 1991 upon motion by the Respondent which requested additional time to consult with his attorney, contact witnesses and prepare for the hearing. The case having been received by the Division of Administrative Hearings on August 28, 1990, Respondent had until February 11, 1991 to prepare to defend himself against the allegations.
Respondent did not appear at the formal hearing on February 11, 1991. No indication was given at that time concerning his whereabouts.
On February 12, 1991, he spoke with the secretarial staff with the Division of Administrative Hearings through a telephone call. He stated that he had been called out of town by a death in the family and upon his return at 4:00 a.m., February 12, 1991, he began to be concerned about his feeling that he had a hearing coming up. The secretary told him that the hearing had been held yesterday in accordance with the notice of hearing which had been sent out in November, 1990. The date of the dispatch of the notice of hearing was November 29, 1990, following receipt of the request for continuance of the hearing scheduled for November 30, 1990. That request for continuance was filed on November 28, 1990. In the conversation with the secretary on February 12, 1991, Respondent recounted that he thought that the case had been scheduled for somewhere around February 15, 1991. This information and the telephone call was provided to the hearing officer and counsel for the Petitioner.
Contact with Petitioner's counsel to make him aware of the details of the previously referenced conversation with the Division of Administrative Hearings's secretary took place on February 13, 1991.
The hearing officer was made aware of the telephone call from Respondent to the Division of Administrative Hearings' secretary on the date upon which that call was made. On February 12, 1991, the hearing officer instructed the secretary with the Division of Administrative Hearings to attempt to reach Mr.
McCawley again to make him aware that the hearing officer had been informed concerning his explanations of his absence from the hearing on February 11, 1991. Respondent was unavailable and a machine telephone answering device received the call from the secretary. No further contact has been made by the Respondent to the Division of Administrative Hearings. Under the circumstances the Recommended Order is being entered following the duly noticed hearing of February 11, 1991.
Petitioner had filed a proposed recommended order. That proposed recommended order has been reviewed and the facts set forth in the proposal are addressed in an Appendix to this Recommended Order. The transcript and exhibits have also been considered in preparing the Recommended Order.
FINDINGS OF FACT
According to the official records held by the State of Florida, Department of Professional Regulation, Respondent holds license no. RN38437-2, which lapsed on March 31, 1989. On that date the license became inactive as envisioned by Section 464.013, Florida Statutes.
Karen Gushlaw, a resident of Ocala, Florida, went to a business in that same community known as Cardio-Check, Inc. Ms. Gushlaw and her mother had decided to go there to have physical examinations made. This was based upon an advertisement which the mother had seen in the phone book or the newspaper which advertisement had a coupon associated with it.
Once at the Cardio-Check, Inc. premises, Ms. Gushlaw met Ralph McCawley. He introduced himself as Ralph McCawley. He did not indicate his professional position by describing what that position was.
The only other person in the building at that time was a secretary.
Ms. Gushlaw was taken into an examining room. Respondent conducted a medical history asking questions about Ms. Gushlaw's family. Respondent then left the room and he gave a paper robe to Ms. Gushlaw and told her to take off her shirt and bra and that he would be back.
Respondent returned and in the presence of the secretary did a breast examination. He had Ms. Gushlaw sit up on a table and he did a circulation test. He tested her fingers and toes. He took Ms. Gushlaw's blood pressure.
He conducted an E.K.G. Respondent told Ms. Gushlaw that the E.K.G. was fine and that she looked fine and healthy but that she needed to lose weight. While at this business premises Ms. Gushlaw gave a urine sample. Respondent sent Ms.
Gushlaw to another premises known as the Physicians Lab to have a blood test done.
Given that the urine sample that was presented at the office showed blood in it, Ms. Gushlaw went back a week and a half later to give another urine sample. That sample did not show the presence of blood.
During the first visit to Respondent's office he never told Ms. Gushlaw what credentials or professional licenses he held. On that date no one in the premises identified themselves as either a registered nurse or a licensed physician.
Margaret Hunt is an Investigator for the State of Florida, Department of Professional Regulation. Acting on a complaint Ms. Hunt was assigned to make contact with the Respondent at Cardio-Check, Inc. to ascertain his activities as they pertain to that organization.
Ms. Hunt's initial contact with Cardio-Check, Inc. was by telephone in response to a yellow page advertisement in the Ocala, Florida telephone directory. A copy of the advertisement that she saw in arranging for the telephone call may be seen as Petitioner's Exhibit No. 2 admitted into evidence. She used the telephone number provided and would eventually go to the address indicated in that advertisement.
When Ms. Hunt made her call a male voice answered the phone. She stated that she was making the call in response to a yellow page advertisement and wanted to know what services were offered and how much money it would cost to have the examination. The voice on the other end said that the cost was
$55.00 and that she could get a physical examination, blood testing, urinalysis and also an E.K.G. exam. An arrangement was made for an examination on May 21, 1990, following the telephone conversation which take place on May 17, 1990.
Ms. Hunt carried out the appointment. When she arrived at Cardio- Check, Inc. there was a white male sitting in the reception area and a white female there as well. Ms. Hunt identified the fact that she was there for purposes of her appointment. The white female who was a secretary identified herself as Melody Williams. She took certain information from Ms. Hunt and gave Ms. Hunt forms to fill out. One of those forms was a medical history type form requesting general patient information. The other item was related to information about Cardio-Check, Inc. or a release that had to be signed. The white male did not identify himself at that time and left the office. The white male left the office in the presence of a black male.
This left Ms. Hunt in the company of Ms. Williams. Ms. Williams referred to the white male who had left as "Ralph." Ms. Williams stated that "when Ralph returns, we can do your exam."
Ms. Williams took the information which Ms. Hunt had filled out on the forms. Ms. Williams then stated "you may as well go ahead and get a urine sample." Ms. Hunt went into a bathroom located off the waiting area and gave the urine sample and left it in a cup on the counter upon the instructions by Ms. Williams.
Ms. Williams took Ms. Hunt into an examination room and told Ms. Hunt to completely undress except for her panties. Ms. Williams told Ms. Hunt that there was a paper towel that she was told to cover herself with.
Shortly thereafter Respondent entered the examining room and sat on a stool at a counter in the room and proceeded to take basic background information in the way of medical history from Ms. Hunt such as her illnesses and her family history. Respondent had not identified himself as being a nurse or a physician nor indicated in any way what his profession was. When Ms. Hunt had called on May 17, 1990 for an appointment, she had asked whom she would be seeing, specifically what physician she would be seeing at her scheduled appointment. The person answering the phone was vague and said "you will be seeing me." In that phone conversation he did not identify himself as Ralph McCawley. He did say that he was a certified practitioner.
While in the examining room Respondent took Ms. Hunt to the examination table and proceeded to do a physical exam. He looked at her eyes, ears, nose and throat and used a tongue suppressor. He used a small light to look in her eyes, ears, nose and throat. He took blood pressure using a blood pressure cuff. He checked both Ms. Hunt's arms. He checked her reflexes by tapping her with a small rubber hammer on her knees. He then laid her down flat on her back on the examining table and checked the circulation in her fingers on each hand and checked the toes and ankles. He pressed on her abdomen with his hands doing a manual examination. He asked her to remove her bra and he moved the paper towel down to her waist while he used a stethoscope and checked her heart and chest area. He checked Ms. Hunt's back and sides. In those checks he used a stethoscope. He mentioned that Ms. Hunt had a slight heart murmur. He made further explanation to Ms. Hunt because of her concerns. When she
questioned him about the nature of the murmur he said, "you have what is called a slight mitral valve prolapse." When questioned further Respondent stated, "let me listen to your heart some more and then I will explain it." He listened further with the stethoscope and made the comment that she did have a slight heart murmur. Respondent also indicated on this visit that Ms. Hunt's blood pressure was high and needed to be rechecked.
Concerning the licenses which Respondent held, no licenses were displayed in the reception area or in the examination room of Cardio-Check, Inc. when Ms. Hunt made her visit of May 21, 1990.
When Respondent concluded his physical examination of Ms. Hunt he placed leads on her chest area and arms connected to an E.K.G. monitor. He then turned the E.K.G. machine on and ran a printout. This took a few minutes. Ms. Hunt asked Respondent what the results were and he looked at the tape briefly. He responded "it looks normal."
After the examination was concluded and Ms. Hunt was getting dressed, she asked Respondent more about the E.K.G. results given the fact that he had said that she had a heart murmur. At that point Respondent pulled the E.K.G. tape out and put it on the examination table and said, "see it's just normal." He pointed to some of the lines on the E.K.G. tape and said, "it's normal." After that point he took tissue paper on the examination table and drew a picture of a heart and tried to explain to Ms. Hunt what a mitral value prolapse is in lay terms. He told her that the problem could be congenital. She mentioned that as a child she had had tonsillitis. Respondent said, "your heart murmur could be congenital or could be from staph infections relating to tonsillitis that has affected your heart, that may have caused the murmur."
In the course of these conversations, on the date of the examination, Ms. Hunt was asking the Respondent what type of educational training he had to have to be doing the work that he was doing. He told her that basically he had fourteen years of post-secondary education and he had mentioned that he had three different degrees, referring to college degrees. He also stated that he had four certifications and that he had taken up to 25 continuing educational credits per year. She asked him, "well, are you a nurse or a physician?" His response was he was a cardio pulmonary practitioner. He mentioned that he had worked in various areas in cardio pulmonary matters to include director of a cardio pulmonary unit at a hospital. He said that his goal was to be a cardio pulmonary surgeon.
Ms. Hunt paid $55.00 for the examination. She refused to take the blood test. Respondent stressed that, "this really needs to be done because it checks so many different parameters." He told her that there was a laboratory down the street and they would do the blood testing at that site.
As Ms. Hunt was leaving Respondent identified himself as Ralph McCawley.
Ms. Hunt saw no one else on the date of her examination for purposes of the examination and no one else was in attendance other than Melody Williams and the Respondent. Ms. Williams' participation in the process was as a female attendant while Respondent conducted the examination.
Ms. Hunt was instructed to call back to see the results of the urine screen and she did this. She telephoned on May 24, 1990 and talked to the Respondent. He went over the results of the physical examination. He told her
what her pulse was, what her blood pressure was, he told her that he respiration was normal. He told her that her circulation was good and normal. He told her that the urine screen came out fine. He again mentioned that he wanted her to have blood work done. He also said that she should come back into his office as soon as possible. He was trying to get her to come back the next day to recheck blood pressure. He wanted this done because he said that it was high. He said he would recheck it for free. He also offered her a position working as a receptionist replacing Melody Williams who was only filling in temporarily.
Several days after the telephone conversation Ms. Hunt returned on June 1, 1990 in the presence of Jim Cooksey another investigator with the State of Florida, Department of Professional Regulation. On this visit Respondent was present and Melody Williams was present. Respondent rechecked Ms. Hunt's blood pressure and said it was a little bit high. At that time he said the reading was 158 over 98. Respondent made further mention about the heart murmur because Ms. Hunt kept asking him, "well, can you refer me to a physician? Is there anyone else I can see about this?" To this remark Respondent stated "it is something you really don't have to worry about. You should have it checked periodically, but it's nothing to be really concerned about." He never provided the name of a physician for referral. Ms. Hunt stated can you refer me to your own physician and Respondent said, "well, I treat myself."
Ms. Hunt on the June 1, 1990 visit asked that in view of the literature of Cardio-Check, Inc. that was available stating that there was a medical directory, could Respondent give her the name of a medical doctor or refer her to anyone else associated with Cardio-Check, Inc. Respondent never referred her or gave her any name in response to this inquiry.
Ms. Hunt asked for a copy of the EKG and physical examination. These matters were turned over to Ms. Hunt and she in turn gave them to the local state attorney's office. No copies were retained.
When Ms. Hunt left the premises on her first visit, she was provided with a brochure and a business card associated with Cardio-Check, Inc. The business card and brochure may be found as Petitioner's Exhibit No. 3 admitted into evidence.
Grace Gil is a registered nurse licensed in Florida. She has a B.S. in nursing and a masters degree in nursing. She has been a director of nursing in two hospitals in Miami. She was a faculty member at Central Florida Community College for five years, to include chairman of the nursing department at that community college. She has been director of nursing at HCA Marion Community Hospital in Ocala, Florida. At present she is director of inpatient services at HCA Grant Center Hospital which includes nursing and therapy, and is a psychiatric facility for adolescents and children. Her speciality in nursing practices is medical/surgical nursing and nurse orientation. She has taught courses on nursing ethics and courses preparing students to take the state board examination for licensure as a nurse. She was received as an expert in nursing practice and procedures.
In preparing to offer her testimony at hearing Ms. Gil received copies of the investigative reports of the Petitioner, as well as copies of the advertisement and brochures that have been referred to as exhibits, and from those observations has arrived at certain opinions concerning the propriety of Respondent's practice. This summation of her opinion is set out in Petitioner's Exhibit No. 4 admitted into evidence, a report made on December 3, 1990. Ms. Gil also spoke to the issue of the Respondent's conduct in her remarks at
hearing. Although the investigative file which Ms. Gil examined was not produced at hearing, from her remarks at hearing and her comments in Petitioner's Exhibit No. 4 it is clear that she was addressing the same incidents with patients as set forth in the findings of fact related to this recommended order. The belief is held that the investigative report coincided with the testimony at hearing of the patients Gushlaw and Hunt and that Ms. Gil was commenting on matters which are the same as reflected in the investigative report as testified to by those patients. Furthermore, Ms. Gil sat through the testimony of the patients Gushlaw and Hunt before offering her remarks about the Respondent's conduct.
In her report of December 3, 1990, she found that Respondent's conduct was not in keeping with what is expected of a nurse under the Nurse Practices Act when he conducted physical examinations and made diagnoses based on those findings; and interpretation of E.K.G.s, which is within the realm of a licensed physician. (As evidenced by Petitioner's Exhibit No. 5 admitted into evidence, records of the State of Florida, Department of Professional Regulation, Board of Medicine, Respondent is not licensed to practice medicine in Florida.)
Diagnosis of a heart murmur and mitral valve prolapse are matters which are difficult to ascertain in that the prolapse usually requires further diagnostic testing, such as an ultrasound or echocardiogram. The detection of a heart murmur requires the training and experience of a physician. In her remarks set out in the December 3, 1990 report Ms. Gil also faults the Respondent for failing to refer the patients to a physician for conditions which would ordinarily require further evaluation and treatment that is to say, cardiac problems might have required medication and the elevated diastolic blood pressure of Ms. Hunt definitely should have been evaluated by a physician since failure to get the diastolic pressure under control could lead to a variety of cardiovascular problems. Accordingly to the December 3, 1990 report nurse practitioners could be expected to realize that readings on the systolic side of
140 or better and on the diastolic side of 90 or better are indications of hypertension which may or may not be medically significant. As reported in these facts, Ms. Hunt's reading on the second visit exceeded these levels. Ms. Gil also makes mention of the fact that Mr. McCawley was practicing without a nursing license which was in good and current standing which is contrary to acceptable standards for conduct by nurses.
In the testimony at hearing there were two areas of major concern by Ms. Gil. The first was the practice of nursing without an active license which is contrary to nurse practicing standards. The second concern was, even if his license had been valid,he exceeded the authorized level of practice by a nurse and did things that constituted the practice of medicine. These items beyond his practice level constituting the practice of medicine were items which a nurse would be aware that he or she is not permitted to do.
Ms. Gil was also concerned that some of the findings that the Respondent made in his examinations were items of great potential for harm if they were not adequately studied by way of other tests.
More specifically, the conduct of physical examinations is not in the realm of practice of a registered nurse. Further, it was inappropriate to make diagnosis based on these examinations which is not within the realm of practice of a nurse.
In her testimony Ms. Gil was especially concerned about the diagnosis of a heart murmur and mitral valve prolapse which requires treatment or nontreatment depending upon what tests would reveal and choice a physician would
make in conjunction with those tests. Ms. Gil also said that the interpretation of the EKG is strictly within the realm of a licensed physician. She went on to say that in most hospitals there is a rotating list of physicians who are qualified to interpret E.K.G.s and they are not just persons who are internal medicine specialists, there are usually board certified cardiologists. Back to the remarks about the heart murmur and mitral valve prolapse, Ms. Gil says that it takes a very trained ear to hear a heart murmur and this must be done by an experienced coronary care nurse or a cardiologist to confirm the murmur. The mitral valve prolapse requires further diagnostics testing to include ultrasound or at least an echo-cardiogram or a stress test. It may even require cardiac catheterization depending on how serious the prolapse is. It has not been shown that the Respondent has the necessary experience of a coronary nurse to detect a heart murmur, and even if he had that experience he would not be in a position to decide the significance of that finding and would be required to report to the finding to a physician who would then become responsible.
In her testimony Ms. Gil was concerned about the blood pressure reading which is a key indicator of a lot of possible health risks which should be reported to a physician. This referral of the blood pressure problems experienced by Ms. Hunt was not made by Respondent.
Ms. Gil's remarks in her December 3, 1990 report as commented on in the fact finding here and her testimony at hearing as commented on in the fact finding are accepted by way of expert opinion.
CONCLUSIONS OF LAW
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.
Petitioner bears the burden of proving its allegations in the administrative complaint through clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has failed to prove that Respondent was responsible for false, misleading or deceptive advertising as alleged in Count I under authority set forth in Section 464.018(1)(g), Florida Statutes.
Respondent is guilty of unprofessional conduct as alleged in Count II associated with Section 464.018(1)(h), Florida Statutes, in that he departed from and failed to conform to minimal standards of acceptable and prevailing nursing practice and that further he violated Rule 21O-10.005(1)(e), Florida Administrative Code, by practicing beyond the scope of his license, educational preparation or nursing experience. These violations are associated with conduct of physical examinations on the patients, diagnosis related to those physical examinations, administering E.K.G.s, and diagnosis related to those E.K.G.s, more particularly, diagnosing a heart murmur in Ms. Hunt and failing to make referrals associated with the possible heart murmur and in the elevated blood pressure which Ms. Hunt had. These would be referrals to a physician.
Count III accuses the Respondent of violating Section 464.018(1)(l), Florida Statutes, by knowingly violating a provision of Chapter 464, Florida Statutes, in that he violated Chapter 464.016(1)(a), which describes practicing advanced or specialized, professional or practical nursing as defined in the Chapter without having a valid license, a felony in the third degree punishable under Section 775.082, 775.083 or 775.084, Florida Statutes. Respondent did not
have an active license; however, he did not violate Section 464.018(1)(l), Florida Statutes. That provision relates to criminal law prosecution as announced at Section 464.016(1)(a), Florida Statutes. The criminal law provision is a collateral proceeding in the Circuit Court and it is not one of the violations of Chapter 464 contemplated within Section 464.018(1)(l), Florida Statutes, for which administrative discipline may be imposed. Should action be taken against Respondent in Circuit Court for the crime identified at Section 464.016(1)(a), Florida Statutes and the Respondent be found guilty, regardless of the adjudication, administrative action could be imposed under Section 464.018(1)(c), Florida Statutes. That latter provision speaks of taking administrative action where a Respondent has been found guilty, regardless of the adjudication of a crime that is associated with the practice of nursing or the ability to practice nursing. Circuit Court action was not taken. An allegation was not made against the Respondent under Section 464.018(1)(c), Florida Statutes. Respondent is not in violation of Section 464.018(1)(l), Florida Statutes, as alleged in Count III.
Based upon the findings of facts and the conclusions of law, it is, recommended that a Final Order be entered which dismisses Counts I and III and finds Respondent in violation of Count II and suspends his license for a period of two years and imposes a $1,000 fine. Reinstatement following the service of the suspension should be subject to the requirements of Section 464.018(3), Florida Statutes.
RECOMMENDED this 28th day of March, 1991, 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 28th day of March, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5330
The following discussion is given concerning the proposed facts. Petitioner's Facts
Paragraphs 1-21 are subordinate to facts found.
Paragraph 22 is not accepted in that it was not shown that Respondent was responsible for the brochure, likewise it has not been shown by competent evidence that the Respondent placed the advertisement in the Ocala yellow pages. Therefore, Paragraph 23 is not accepted.
Paragraphs 25-30 are subordinate to facts found, except for Paragraph 27 in the phrase that says that the Respondent told Ms. Hunt that her blood pressure was high because of stress and that she didn't need to worry about it is contrary to the evidence presented and the facts found. No testimony was offered to this affect by Ms. Hunt.
COPIES FURNISHED:
Tracey S. Hartman, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Ralph McCawley
Post Office Box 2191 Valdosta, GA 31604-2191
Jack McRay, Esquire Department of Professional
Regulation
1940 North Monroe Street Tallahassee, FL 32399-0792
Judie Ritter, Executive Dirtector Department of Professional
Regulation, Board of Nursing
504 Daniel Building
111 East Coast Line Drive Jacksonville, FL 32202
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 top 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.
| Issue Date | Proceedings |
|---|---|
| Mar. 28, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 18, 1991 | Agency Final Order | |
| Mar. 28, 1991 | Recommended Order | Disciplinary action for practicing beyond scope of license. Recommended suspension and fine. |
