STATE OF FLORIDA DIVISION OF ADMISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0100

)

DIAHANN L. JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 1, 1991, in Miami, Florida.

APPEARANCES

For Petitioners: Tracey S. Hartman, Esquire

Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Diahann L. James, pro se

676 Northwest 48th Street, No. 4

Miami, Florida 33127 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is a registered nurse who has been charged by Petitioner's Second Amended Administrative Complaint with having committed certain act. that constitute multiple violations of

Chapter 464, Florida Statutes, the Nurse Practice Act Based on extensive factual allegations, Petitioner's Second Amended Administrative Complaint alleges in Paragraph 58 that Respondent has violated the following statutory provisions:

1. Section 464.018(1)(f), Florida Statutes, by making or filing a false report or record, which the licensee knows to be false;

   
   

2. Section 464.018(1)(a), Florida Statutes, by procuring, attempting to procure, or renewing a license to practice nursing by bribery, knowing misrepresentations or through an error of the department or board;

   
   

3. Section 464.018(1)(l), Florida Statutes, by knowingly violating any provision of this chapter (Chapter 464, Florida Statutes), a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding;

   
   

4. Section 464.018(1)(i), Florida Statutes, by engaging or attempting to engage in the possession, sale or distribution of controlled substances as set forth in Chapter 893, Florida Statutes, for any other than legitimate purposes;

   
   

5. Section 464.018(1)(h), Florida Statutes, by 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;

   
   

6. Section 464.018(1)(j), Florida Statutes, by 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 result of any mental or physical condition; and

   
   

7. Section 464.018(1)(l) to wit: 464.016(1)(a), Florida Statutes, by practicing advanced or specialized, professional or practical nursing, as defined in the chapter, unless holding an active license or certificate to do so.

At the formal hearing, Petitioner called 23 witnesses and introduced 35 exhibits, each of which wee accepted into evidence. Respondent testified on her own behalf, but offered no other evidence. At Petitioner's request, official recognition wee taken of Chapters 465 and 893, Florida Statutes.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 221-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Diahann James, held license numbered 1266532 as a registered nurse (RN) and held license numbered 36309-1 as a practical nurse (PN). Both of these licenses had been issued to Respondent by Petitioner and entitled Respondent to engage in the practice of nursing within the scope of her licensure in the State of Florida. Respondent's RN license was, at the time of the formal hearing, suspended following Petitioner's order of suspension entered December 13, 1990. This suspension was based on Respondent's alleged failure to comply with the terms of her previously established probation. Respondent's PN license has been on an inactive status since April 1, 1983. Respondent has until April 1, 1993, to seek reactivation of her PN license pursuant to Rule 210-14.005(1), Florida Administrative Code. Unless reactivated, her PN license will permanently expire after April 1, 1993.

   
   

2. On February 15, 1985, Respondent's RN license was suspended pursuant to an order entered by the Board of Nursing (Board) as the disposition of the Department of Professional Regulation's (DPR) Administrative Complaint Number 0051651.

3. On June 23, 1986, Respondent's RN license was conditionally reinstated pursuant to an order of the board, contingent upon Respondent's submission of a favorable psychological evaluation. On August 11, 1986, Respondent submitted a satisfactory psychological evaluation and her license was reinstated effective August 27, 1986.

   
   

4. Upon reinstatement, Respondent's RN license was placed on probation for a period of two years subject to specific terms and conditions. Respondent did not submit the quarterly reports required by the terms of her probation and the Board filed a complaint with DPR against Respondent on April 22, 1988, based on her failure to comply with the terms of her probation.

   
   

5. On October 18, 1988, DPR filed Administrative Complaint 0098524 against Respondent based on the complaint the Board had filed on April 22, 1988.

   
   

6. On April 1, 1989, Respondent's RN license 1266532 became inactive due to Respondent's failure to apply for renewal. In May 1989, Respondent applied for reactivation of her RN license. Accompanying this application was an affidavit that Respondent had executed on April 3, 1989. This affidavit affirmed that she had earned the continuing education hours during 1987-89 to meet the requirements set by DPR for renewal of her license. At the Board's request, Respondent submitted copies of continuing education certificates from Psycho- Awareness Continuing Education Provider as documentation that she had met the continuing education requirements as represented by her affidavit dated April 3, 1989. The continuing education certificates submitted by Respondent had been altered to reflect her participation and attendance at these continuing education programs in 1988. Respondent attended these programs not in 1988 (which would have met the continuing education requirements), but in 1986 (which would not meet the continuing education requirements). The affidavit Respondent signed on April 3, 1988, was false, and the certificates she submitted in support of that affidavit were altered.

   
   

7. Respondent's submitted continuing education certificates were deemed to be forgeries by the Board. On June 23, 1989, Respondent was advised that her continuing education certificates were unacceptable, that her license remained on an inactive status, and that she was not entitled to work as a nurse.

8. In July 1989, Respondent worked as a registered nurse at Cedars Medical Center, Miami, Florida. Respondent did not inform the Board's probation supervisor of her employment at Cedars Medical Center, even though the terms of her probation required her to do so.

   
   

9. Respondent answered "no" on the Cedars Medical Center employment application to the question of whether her license had ever been revoked, suspended, or placed on probation. At no time during the term of her employment at Cedars Medical Center did she reveal that her licensure was on an inactive status and on probation.

   
   

10. During the course of her employment at Cedars Medical Center on July 11-12, 1989, and on July 25-26, 1989, (these events occurred during the night shift) Respondent wrote telephone orders, allegedly from physicians, for various medications for several different patients. Respondent signed at least two of said telephone orders with the name of "L. Hemingway", a coworker. Respondent submitted these telephone orders to the pharmacy and obtained various medications, including controlled substances. The physicians named by Respondent on the telephone orders denied giving Respondent authorization to order those medications on the dates specified, and none of said orders were an existing part of the patients' records. On July 28, 1989, Respondent was confronted by her superiors regarding the numerous discrepancies that had been discovered through the pharmacy regarding her deviation from the normal procedure for obtaining and administering medications. Respondent denied any diversion of drugs and further denied writing the fraudulent telephone orders. Respondent was then asked to submit to a urine test, and she submitted a urine sample under controlled conditions. The urine sample was thereafter tested using appropriate methodology and equipment. Her urine tested positive for cocaine, meperidine (Demerol, a schedule II controlled substance, and pentazocine (Talwin, a schedule IV controlled substance). Respondent did not produce any valid prescriptions to account for the positive results of her urinalysis. On August 1, 1989, Respondent's employment at Cedars Medical Center was terminated.

    
    

11. On July 28, 1989, the Board filed a Final Order in DPR case 0098524, the case DPR had filed against Respondent's RN license on October 18, 1988. This Final Order extended Respondent's existing probation for a period of two years and imposed conditions of probation similar to those initially imposed on August 27, 1986.

    
    

12. On August 27, 1989, Respondent's RN license, which had been on an inactive status since April 1, 1989, was reactivated, but remained on probationary status.

    
    

13. In December 1989, Respondent was employed at Doctors Hospital, Coral Gables, Florida, as a registered nurse. Respondent failed to inform her probation supervisor of her employment as a nurse, though she was required to do so by the terms of her probation.

    
    

14. On December 4-5, 1989, Respondent worked the 11 p.m. to 7 a.m. shift at Doctors Hospital. The narcotic records on which Respondent signed out for narcotics for patients under her care and the medication record on which she charted the medication for these patients were falsified to reflect that these patients had received more narcotics than had actually been administered to them. These false records, for which Respondent was responsible, permitted Respondent to obtain excess narcotics from the hospital's pharmacy.

    
    

15. On January 18, 1990, Respondent rendered a urine specimen for drug analysis pursuant to the terms of her probation. The subsequent analysis tested positive for propoxyphene (Darvone, a schedule IV controlled substance). Respondent provided no valid prescription to account for the positive result of her urinalysis.

    
    

16. On March 1-2, 1990, Respondent was employed at Coral Gables Hospital, Coral Gables, Florida. Respondent failed to inform her probation supervisor of her employment, although she was required to do so by the terms of her probation.

    
    

17. While working the 11 p.m. to 7 a.m. shift at Coral Gables Hospital, on March 1, 1990, Respondent admitted to her nursing supervisor that she had self-administered 150 mg. of Demerol. Respondent was accompanied to the Emergency Room where she received medical assistance. The nursing supervisor immediately began a review of Respondent's patients' charts. From this review, it was established that Respondent had obtained 250 mg. of Demerol, and that the patients for whom Respondent had signed out the narcotics did not possess physicians' orders for same. Respondent falsely charted on the medical records of two patients the administration of Demerol. On March 8, 1990, Respondent rendered a serum sample for drug analysis at the request of Coral Gables Hospital. Said specimen subsequently tested positive for the presence of Demerol.

    
    

18. On July 15, 1990, Respondent rendered a urine specimen for drug analysis, pursuant to the terms of her probation. The preliminary results of that testing detected the presence of certain controlled substances and were classified as presumptive positive. The specimen Respondent had given was not of sufficient quantity to permit the completion of testing, and the preliminary findings were not confirmed.

    
    

19. On December 13, 1990, Respondent's R.N. license was suspended due to her failure to comply with the terms of her probation.

    
    

20. Based on the expert testimony presented at the formal hearing, it is found that Respondent is an impaired individual suffering from chemical dependency; that Respondent's practice of nursing is below the minimum standard of safe patient care for the State of Florida; and that Respondent is unable to practice nursing with reasonable skill and safety to patients because of her chemical dependency.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

22. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be

    established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Section 464.018, Florida Statutes, provides, in pertinent part:

    
    

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

       
       

       1. Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or the board.

          
          

          * * *

          
          

          (f) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records include only those which are signed in the nurse's capacity as a licensed nurse.

          
          

          * * *

          
          

          1. 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.

             
             

          2. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

             
             

          3. 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 physical condition. . . .

          
          

          * * *

          
          

          (l) Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or the department previously entered in a disciplinary proceeding. . . .

          
          

          * * *

          
          

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       1. Refusal to certify to the department an application for licensure.

          
          

       2. Revocation or suspension of a license with reinstatement subject to the provisions of subsection (3).

          
          

       3. Permanent revocation of a license.

          
          

       4. Restriction of practice.

          
          

       5. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

          
          

       6. Issuance of a reprimand.

          
          

       7. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify, including requiring the nurse to submit to treatment, to attend continuing education courses, to take an examination, or to work under the supervision of another nurse.

          
          

    3. The board shall not reinstate the license of a nurse, or cause a license to be issued to a person it has deemed

       unqualified, until such time as it is satisfied that such person has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of nursing.

       
       

24. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(a), Florida Statutes, by submitting with her application for reactivation of her RN license an affidavit she executed on April 3, 1989, containing false statements and by submitting altered documents to support those false statements.

    
    

25. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(f), Florida Statutes, by falsifying physicians' orders and patients' records.

    
    

26. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes, by her repeated misconduct in submitting false statements and documents to the Board, in falsifying reports and records, in failing to comply with the terms of her probation, and practicing nursing while under the influence of Demerol.

    
    

27. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(i), Florida Statutes, by obtaining controlled substances by means of physicians' orders that she had falsified.

    
    

28. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(j), Florida Statutes, in that she is unable to practice nursing with reasonable skill and safety to patients by reason of her chemical dependence.

    
    

29. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(l), Florida Statutes, by her repeated failure to comply with the terms of her previously imposed probation and by engaging in the practice of nursing while her licensure was inactive.

30. Rule 210-10.011, Florida Administrative Code, provide certain disciplinary guidelines pertinent to this proceeding. The penalties for multiple, serious violations of the provisions of law established by Petitioner would normally include the revocation of licensure and the imposition of an administrative fine. The recommendation that follows does not include the imposition of an administrative fine due to Respondent's inability to work as a nurse since December 13, 1990, following the suspension of her licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered which revokes Respondent, Diahann James's license as a registered nurse (number 1266532) and which revokes her license as a practical nurse (number 36309-1).

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July, 1991.

CLAUDE B. ARRINGTON

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 18th day of July, 1991.

APPENDIX

The proposed findings of fact submitted on behalf of the Petitioner are adopted in material part by the Recommended Order.

The only post-hearing submittals by Respondent were in the form of two brief letters addressed to the undersigned, one filed May 8, 1991, and the other filed May 30, 1991. To the extent that either letter is construed to contain proposed findings of fact, those proposed findings are rejected as being either irrelevant, unsupported by the record, or contrary to the findings made.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Diahann L. James

676 N.W. 48th Street, No. 4

Miami, Florida 33127

Judie Ritter, Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 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: 91-000100

Orders for Case No: 91-000100