STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7828

) TERESA IVA SMITH LOBATO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on April 19, 1991 in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Lois B. Lepp, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: Teresa Iva Smith Lobato, pro se

6870 38th Avenue North St. Petersburg, FL 33710

STATEMENT OF THE ISSUES

Whether Respondent's license to practice nursing in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an administrative complaint dated November 5, 1990 and filed with the Division of Administrative Hearings on December 12, 1990, the Petitioner seeks to revoke, suspend or otherwise discipline Respondent's license to practice nursing in the state of Florida. As grounds therefor, it is alleged that Respondent violated Section 464.018(1)(h), Florida Statutes, by leaving her assigned work shift at Bayfront Medical Center on May 13, 1990 without charting her assigned patient's nurses notes or making the required report of her assigned patients to the nurse supervisor on duty at the time, and thereby failing to conform to the minimum standards of the prevailing nursing practice. By an Election of Rights, the Respondent disputed the allegation contained in the Administrative Complaint, requested formal hearing, and this proceeding ensued.

At the hearing, the Petitioner presented the testimony of Janice Ritchie, Natasha M. L. Freeman, Karen Sondregger and James E. Marino. Petitioner's exhibits 1-7 were received into evidence. Respondent testified in her own behalf but offered no other witnesses. Respondent's composite exhibit 1 was received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on May 17, 1991. The parties timely filed their respective proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, Respondent Teresa Iva Smith Lobato (Lobato) was licensed as a Registered Nurse in the state of Florida, holding license number RN-1655102, and was employed by the Bayfront Medical Center (Bayfront) located in St. Petersburg, Florida as a Registered Nurse.

   
   

2. On May 13, 1990 Lobato was to work the 7:00 a.m. to 3:00 p.m. shift, and upon arriving for work was told that she was being "floated" from the Coronary Care Unit (CCU) where she regularly worked to the Progressive Care Unit (PCU) where she had never worked.

   
   

3. Bayfront had a policy whereby nurses were "floated" from one unit to another, and at the time Lobato was employed by Bayfront she was made aware of this "floating" policy. Floating means that a nurse is assigned temporarily to a unit other than the nurse's regularly assigned unit.

   
   

4. On May 12, 1990 Lobato was aware that she was to be "floated" on May 13, 1990, but had informed the Acting Director of CCU that she would rather cancel her work assignment than be "floated". However, upon arriving for work on May 13, 1990, and being told that she was being "floated" to PCU she accepted the assignment on PCU although she was not pleased about the situation.

   
   

5. Bayfront has a policy that requires the outgoing nurse to audiotape a report for the oncoming nurse regarding the condition of the patients and any events occurring during the outgoing nurse's shift or if no tape is made to give report verbally to oncoming nurse. Upon arriving at PCU Lobato, along with PCU Charge Nurse (CN), listened to the audiotaped reports from the outgoing nurse on the following patients D. L. L., A. S., E. H., C. L. S., and H. K.

   
   

6. As the morning progressed, Lobato became more and more displeased with her assignment, and let her displeasure be known to the PCU Charge Nurse. However, Lobato did not ask to be relieved from her assignment, although there was testimony that she indicated to the CN that she wanted to go home.

7. Although the record is not clear as to the time the following events occurred, the sequence of those events are as follows:

   
   

   1. Around 9:00 a.m. Lobato was offered help by the CN but declined;

   2. Around 9:30 Lobato went on break, and again was offered help but declined;

   3. While on break Lobato talked to the Assis- tant Director of Nursing (ADON) about her under- standing of not being required to "float", and became upset with the ADON's response;

   4. After returning from break Lobato was

      again offered help by the CN which she accepted. The CN brought Michelle Nance, Medical Surgical Technician, and two RNs whose first names were Jessica and Melinda to the unit to assist Lobato.

   5. Around 10:30 a.m. Lobato and the CN dis- cussed Lobato's patient assignments, and Lobato advised the CN that everything was done, in- cluding all a.m. medication, other than the missing vasotec doses, and that she had some charting to do. Also, the patient's baths had been completed.

      
      

8. Shortly after Lobato and the CN discussed her patients' assignments, the ADON came to the unit to determine what was troubling Lobato. The ADON and Lobato met and there was a confrontation wherein Lobato advised the ADON that she was quitting and the ADON advised Lobato that she was fired.

   
   

9. After Lobato's confrontation with the ADON, Lobato left the unit and Bayfront without completing the balance of charting her patients' notes, and without giving the CN a report of the patients even though the CN requested her to do so.

   
   

10. Lobato's reasons for not giving the CN a report was that she had discussed the patients with the CN throughout the morning, and that the CN knew as much about the patients as did Lobato at that time, and therefore, she had made a verbal report.

    
    

11. Lobato's reasons for not completing the charting of her patients' notes was that when the ADON fired her on the spot the ADON accepted full responsibility for the patients, and Lobato's responsibility to both Bayfront and to the patients assigned to her ceased at that time, notwithstanding her understanding of the importance of charting so that appropriate care could be given to the patients on the next shift.

    
    

12. By her own admission, Lobato left Bayfront around 10:30 a.m. on May 13, 1991 before the end of her shift without completing the balance of charting her patients' notes and without giving a report to the CN, other than the ongoing report given during the morning.

13. Earlier while Lobato was still on the unit working the CN had obtained two registered nurses (RN) and a medical surgical technician to assist Lobato. One of the nurses whose first name was Jessica (last name not given) was the RN assigned to Lobato's patients by the ADON when Lobato left and she received a report on the patients from Janice Ritchie, CN. (See Respondent's exhibit 1, and Petitioner's exhibit 1 and Janice Ritchies' rebuttal testimony.)

    
    

14. Although Lobato's failure to chart the balance of her patients' notes and make a report to the CN before she left may have caused some problems, there was no showing that any patient failed to receive proper care or suffered any harm as a result of Lobato leaving. While some of the patients may not have received all their medication before Lobato left, the record is not clear as to whether the medication was made available to Lobato to administer or that she was shown where the medication was located in the floor stock.

    
    

15. The patient is the nurse's primary responsibility, and the minimal standards of acceptable and prevailing nursing practice requires the nurse, even if fired (unless prevented by the employer from performing her duties), to perform those duties that will assure the patient adequate care provided for after her absence. In this case, the failure of Lobato to compete the charting of her patients' notes and the failure to make a report to the CN, notwithstanding her comments to the CN upon leaving, was unprofessional conduct in that such conduct was a departure from and a failure to conform to minimal standards of acceptable and prevailing nursing practice.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

17. Respondent is charged with violating Subsection 464.018(1)(h), Florida Statutes, formerly Section 464.018(1)(f), Florida Statutes. That subsection authorizes the Board of Nursing (Board) to take disciplinary action against a licensee whenever the licensee is found guilty of:

    
    

    (h) 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.

    
    

18. Under existing law, the burden in on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, the Petitioner has shown that Respondent departed from the minimal standards of acceptable and prevailing nursing practice and exhibited unprofessional conduct when she failed to finish charting the balance of her patients' notes and to make a report on her patients to the Charge Nurse before leaving her shift at Bayfront on May 13, 1990 notwithstanding that she had been fired. In that regard, the Petitioner has met its burden that Respondent has violated Section 464.018(1)(h), Florida Statutes.

19. In recommending an appropriate penalty for this violation of Section 464.018(1)(h), Florida Statutes, the nature of Respondent's violation and the circumstance under which it occurred must be considered, along with the disciplinary guidelines established by the Board in Rule 210-10.011(2)(j), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent be found guilty of violating Section 464.018(1)(h), Florida Statutes, and that she be given a reprimand.

RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7828

The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

11.-12. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached.

1. Adopted in Finding of Fact 8, as modified.

2. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached.

   
   

3. Rejected as not being supported by substantial competent evidence in the record.

   
   

4. Adopted in Finding of Fact 8, as modified.

   
   

5. Rejected as not being supported by substantial competent evidence in the record.

18.-20. Adopted in Finding of Fact 9 and 12, as modified.

1. Adopted in substance in Findings of Fact 9 and 12.

   
   

2. Rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 10, 11, 13 and 14.

   
   

3. Adopted in Finding of Fact 11.

   
   

4. Rejected as not being supported by substantial competent evidence in the record.

25.-27. Adopted in Findings of Fact 3, 15 and 15, respectively.

1. Paragraph 28 is ambiguous and, therefore, no response.

   
   

2. Rejected as not being Finding of Fact but what weight is to be given to that testimony.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-2. Rejected as being argument rather than a Finding of Fact, but if considered a Finding of Fact since there was other evidence presented by other witnesses.

1. The first sentence is rejected as not being supported by substantial competent evidence. The balance of paragraph 3 is neither material nor relevant.

   
   

2. Neither material nor relevant, but see Findings of Fact 6, 7, and 8.

   
   

3. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 6, 7, and 8.

   
   

4. Neither material nor relevant since the Respondent assisted in selecting those items to be included in Respondent's exhibit 1.

5. First sentence adopted in Finding of Fact 8. The balance of paragraph 7 is argument more so than a Finding of Fact, but see Findings of Fact 12 and 14.

   
   

6. More of an argument than a Finding of Fact, but see Findings of Fact 7(c), 12 and 14.

9.-11. More of an argument as to the credibility of a witness rather than a Finding of Fact.

1. More of an argument than a Finding of Fact but see Findings of Fact 7(d) and 13.

   
   

2. More of a restatement of testimony than a Finding of Fact, but see Findings of Fact 8 and 9.

   
   

3. More of an argument than a Finding of Fact, but see Finding of Fact 10.

   
   

4. More of an argument than a Finding of Fact, but see Findings of Fact 7(e) and 9.

   
   

5. Not necessary to the conclusions reached in the Recommended Order.

17.-19. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 9 and 12.

20. More of an argument as to the credibility of a witness rather than a Finding of Fact.

21.-23. More of an argument than a Finding of Fact.

COPIES FURNISHED:

Lois B. Lepp, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399

Teresa Iva Smith Lobato 6870 38th Avenue North St. Petersburg, FL 33710

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastliinne Drive Jacksonville, FL 32202

Jack McRay, 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 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: 90-007828

Orders for Case No: 90-007828