STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

) CASE NO. 90-5333

vs. )

)

MICHAEL FEDAK, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 7, 1990, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracey Hartman, Esquire

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Richard E. Lober, Esquire

10680 N.W. 25th Street Suite 202

Miami, Florida 33172 STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the license of Michael Fedak (Respondent) based upon violations of Section 464.018(1)(h), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.

PRELIMINARY STATEMENT

At the hearing, the Department of Professional Regulation (Department) called three witnesses to testify, and introduced seven exhibits. Two exhibits offered by the Department were rejected. The Respondent testified on his own behalf, and called two additional witnesses. Three joint exhibits were received.

The transcript of the final hearing was filed on December 10, 1990, and the parties were allowed ten days thereafter within which to file their proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a registered nurse in Florida, having been issued license number RN-1611972, and was employed in the emergency room at Mt. Sinai Medical Center, Miami Beach, Florida, as a registered nurse. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 464, Florida Statutes, and rules adopted thereunder.

   
   

2. On or about March 14, 1989, the Respondent began his shift at midnight and met a patient in the emergency room named J.S., who had been in the trauma section of the emergency room for a couple of hours. The patient was becoming loud and beligerent, demanding that he be moved from the emergency room and admitted to a hospital bed.

   
   

3. Initially, the Respondent tried to calm J.S. by assuring him that a hospital room was being prepared for him, and that he would be moved from the emergency room very soon. J.S.'s aggressive behavior escalated, however, to a point where he was yelling profanity at Respondent, and threatening to get a gun and kill Respondent, as well as everyone else in the emergency room.

   
   

4. J.S. remained in the emergency room for approximately two hours after Respondent came on duty. During this time, others who observed the patient and Respondent's interaction with the patient included Preston Dean Ross, emergency medical assistant, off-duty police officer Mark Michael Hockstadt, and Richard Whitehurst, registered nurse, all of whom testified at hearing. J.S. did not testify at hearing, nor is there any statement in the record from J.S. as to how the Respondent treated him during this two hour period.

   
   

5. Respondent admits that while J.S. was under his care in the emergency room he referred to the patient as a "scum bag", "mother f---er", and a "piece of shit". Respondent denied that he used these terms directly at J.S., or in the emergency room where he was located, but he admits he vented his frustration about this patient by referring to him in this manner in the emergency room hallway with comments to Preston Dean Ross, officer Mark Michael Hockstadt, and Richard Whitehurst.

   
   

6. Officer Hockstadt and Richard Whitehurst supported Respondent's testimony that these comments were not made by the Respondent directly at J.S. However, Whitehurst testified that it is not unusual for nurses to use vulgarity about patients outside of patient areas. Ross testified that Respondent did call J.S. a "scum bag" and "mother f---er" to his face, and referred to J.S. as a "piece of shit" in the hallway. Based upon the demeanor of the witnesses and the fact that there is no supporting evidence for Ross' testimony, it is found that Respondent did not use vulgarity or profanity about J.S. while in the same emergency room with J.S., or while in the presence of the patient, but that he did refer in this manner to J.S. in the hallway outside of the patient's room.

   
   

7. J.S. immediately complained to other hospital personnel about Respondent, and specifically stated to other hospital personnel that Respondent had called him a "scum bag". It is found that Respondent's profane and vulgar comments about J.S., which Respondent had made in the emergency room hallway, were overheard by the patient.

   
   

8. Respondent admitted he spoke with J.S. in a very firm manner. The evidence establishes that there were loud and repeated verbal encounters between

   J.S. and the Respondent in the emergency room. Respondent admitted he was

   frustrated by J.S.'s behavior in the emergency room. Due to this frustration, Respondent's comments about the patient to Ross, officer Hockstadt and Whitehurst were made in a manner which was loud enough to be overheard by J.S., and in fact, these comments were heard by the patient.

   
   

9. While being transported from the emergency room to his hospital room,

   J.S. asked Respondent for his name and address. Respondent refused to tell J.S. his name due to the fact that J.S. had previously threatened to get a gun and kill him, and Respondent, therefore, did not want him to know where he lived.

   
   

10. On or about March 21, 1989, the Respondent was dismissed by Mt. Sinai Medical Center for discourteous treatment of a patient, and the use of profanity in the presence of a patient, fellow employees or management personnel, based upon his treatment of J.S. on March 16, 1989. According to Linda Edin, the nursing manager of the emergency room at Mt. Sinai and Respondent's ultimate supervisor at the time of this incident, the Respondent's actions on March 16, 1989, relating to his care of the patient J.S. constitute unprofessional conduct.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to practice nursing, the Department has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co.

    v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 at n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

12. The Department has charged Respondent with violating Section 464.018(1)(h), Florida Statutes, (formerly Section 464.018(1)(f)) which provides in pertinent part, as follows:

    
    

    Section 464.018 Disciplinary actions.--

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       * * *

       (h) 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.

       
       

       The Board of Nursing has adopted Rule 21O-10.005(1)(e), Florida Administrative Code, defining "unprofessional conduct" to include the failure to conform to the minimal standards of acceptable practice, regardless of injury to a patient, and acts of negligence, either through omission or commission.

13. The Department has proven by clear and convincing evidence that Respondent violated Section 464.018(1)(h). It is axiomatic that a nurse engages in unprofessional conduct by referring to a patient under his care with the use of profanity and vulgarity, such as that used by the Respondent in referring to

    J.S. in this case. While there is no specific administrative rule or statute which proscribes the use of vulgarity or profanity by registered nurses caring for patients, the case by case determination of unprofessional conduct is permissible, especially where the application of common sense reveals that "the facts are obvious, (and) specific findings are unnecessary." Solloway v. Department of Professional Regulation, 421 So.2d 573, 575 (Fla. 3rd DCA 1982), citing McDonald v. Department of Banking and Finance, 361 So.2d 199 (Fla. 1st DCA 1978) and Little Man's Club v. Schott, 60 So.2d 624 (Fla. 1952). See also Department of Professional Regulation, Board of Nursing v. Davis, 9 FALR 4842, 4848 (Final Order entered May 6, 1987), and Department of Professional Regulation, Board of Nursing v. Bellamy, 9 FALR 5475, 5478 (Final Order entered May 6, 1987).

    
    

14. In recommending the appropriate penalty for this violation of Chapter 464, Florida Statutes, the nature of Respondent's violation must be considered, along with the disciplinary guidelines established by the Board of Nursing in Rule 21O-10.011(2)(j), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Nursing enter a Final Order imposing an administrative fine in the amount of $150 against Respondent, and further, placing Respondent's license on probation for a period of one year, provided that if the Respondent successfully completes a program of continuing education designated by the Board of Nursing, his probationary period shall be terminated after it has been in effect for at least six months.

DONE AND ENTERED this 31st day of December, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1990.

APPENDIX TO RECOMMENDED ORDER

Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1.

1. Adopted in Finding of Fact 2.

2. Rejected as irrelevant and unnecessary. 5-6. Adopted in Finding of Fact 2.

7-8. Adopted in Findings of Fact 3-5, 8.

1. Rejected in Findings of Fact 6 and 7.

2. Rejected as not supported by competent substantial evidence.

3. Rejected as irrelevant and unnecessary. 12-13. Rejected as immaterial and unnecessary.

1. Adopted in Finding of Fact 9.

2. Rejected as immaterial and unnecessary.

3. Adopted in Finding of Fact 9.

4. Rejected as not supported by competent substantial evidence.

18-19. Rejected as immaterial and irrelevant. Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Rejected as not supported by competent substantial evidence.

4. Adopted in Finding of Fact 2.

5-6. Adopted in part in Finding of Fact 3, but otherwise Rejected as not supported by competent substantial evidence.

1. Rejected in Findings of Fact 5-8.

2. Rejected as immaterial and unnecessary.

3. Adopted in Findings of Fact 5 and 7.

4. Adopted in Finding of Fact 3.

5. Rejected as immaterial and unnecessary. 12-13. Adopted in Finding of Fact 9.

14-15. Rejected as unnecessary.

1. Rejected in Findings of Fact 5, 7, 8 and 10.

2. Rejected as immaterial and unnnecessary.

3. Adopted in Finding of Fact 4.

4. Rejected in Findings of Fact 5, 7, 8 and 10.

COPIES FURNISHED:

Tracey S. Hartman, Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202

Miami, FL 33172

Kenneth E. Easley, Esquire General Counsel

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastline 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 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: 90-005333

Orders for Case No: 90-005333