STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT )

OF PROFESSIONAL REGULATION, )

BOARD OF NURSING, )

)

Petitioner, )

)

v. ) CASE NO. 91-4824

)

OLEAN S. MCCALL JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 23, 1992, a formal hearing was held in this case at the Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida. 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: Roberta Fenner, Esquire

State of Florida Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Respondent: No appearance STATEMENT OF ISSUES

The issues here are those established through an administrative complaint, DPR Case No. 0098360, charging the Respondent with violations under the Nurse Practices Act, Chapter 464, Florida Statutes.

PRELIMINARY STATEMENT

Respondent had requested a formal hearing to contest the allegations set forth in the administrative complaint. Notwithstanding her failure to attend the hearing Petitioner made a prima facie presentation.

In pursuit of its case the Petitioner presented the testimony of Jacqueline

L. Cumbie, Debra Ellen Bearup, Ellen Lederman and Sylvester Lucas, Jr. Eight exhibits by the Petitioner were admitted as evidence.

The transcript of the hearing was filed with the Division of Administrative Hearings on February 6, 1992. The Petitioner's proposed recommended order is addressed in an appendix to the recommended order.

FINDINGS OF FACT

1 At all times relevant to the inquiry Respondent has held license no. PN 12946-1 issued by the Board of Nursing in Florida. Petitioner is empowered to discipline that license if Respondent is shown to have violated her responsibilities as a nurse practitioner. Disciplinary action is taken in accordance with Chapter 464, Florida Statutes.

1. Respondent had been referred to Memorial Medical Center a Jacksonville, Florida, hospital to work as a nurse on the 3:00 p.m. to 11:00 p.m. shift of April 9, 1988. This referral was from Consolidated Staffing and Home Health Services, a division of St. Vincent's Health Care System. Jacqueline L. Cumbie who is a registered nurse in Florida and a certified nursing administrator and the administrator and director of the nurses for the referring group was responsible for coordinating the assignment of this nurse. The referral here was consistent with that process.

   
   

2. When Respondent reported for work at the hospital she was given a brief orientation by Debra Ellen Bearup, the staff R.N. on the floor where Respondent was assigned. That floor was Two Central, a surgical floor. The orientation included the location on the floor where materials could be found that the Respondent would need to carry out her duties to include an explanation about the medication room, supply room, an explanation of patient charts and the nursing flow sheets where the Respondent would have to do her charting and an indication of where the medications were being held that would have to be administered by the Respondent. In fulfilling this role Ms. Bearup was acting as the charge nurse. The assignment that Respondent had was to care for five patients in rooms 205, 209, 210, 214 and 215. The duties Respondent had with those patients was to assess the patients and to provide them with a level of care that they were supposed to be afforded to include monitoring vital signs, doing cepho-caudal assessment, administering medications, recording anything unusual that transpired and in general caring for the patients.

   
   

3. Ms. Bearup's shift began at 7:00 a.m. on that date and ended at 7:00

   p.m. Ms. Bearup was not at the hospital when the Respondent left the hospital. Ms. Bearup was not aware of any problems that the Respondent was experiencing in carrying out her duties while Ms. Bearup was in attendance with Respondent at the hospital. At times Ms. Bearup would approach the Respondent and state "are you doing o.k., are there any questions, are you running into anything that you do not understand." Respondent would reply that she was "doing fine." The contact between Ms. Bearup and the Respondent did not include any attempt on the part of Ms. Bearup to verify the treatment provided by Respondent for the benefit of the patients assigned to the Respondent such as looking at the patient charts. Ms. Bearup took the Respondent's word for the fact that things were proceeding as they should.

   
   

4. Subsequently, Ms. Bearup did examine the charts of the patients that Respondent was responsible for and discovered that the patient in Room 205 had not had vital signs taken as called for and that Respondent had failed to administer antibiotics at 5:00 p.m. Ms. Bearup also discovered that the patient in Room 209 had not had vital signs taken at 4:00 p.m. and 8:00 p.m. and that medication was not given at 5:00 p.m. for that patient. Related to the patient in Room 209, Ms. Bearup found that the Respondent had not completed charting for the patient. Concerning the patient in Room 210, Ms. Bearup found that the Respondent had failed to take the patient's vital signs at 4:00 p.m. and 8:00

   p.m. and had failed to complete the charting on the patient. Concerning the patient in Room 214, Ms. Bearup found that the Respondent had failed to take the

   patient's vital signs at 4:00 p.m. and 8:00 p.m. and had failed to complete the patient's charting. Concerning the patient in Room 215, Ms. Bearup discovered that the Respondent had failed to complete the charting on this patient. In all instances referred to Respondent was aware of her obligations.

   
   

5. Ellen Lederman was a staff nurse who came on duty at 7:00 p.m. April 9, 1988 and whose shift was to end at 7:00 a.m. on April 10, 1988. After Ms. Lederman came on duty she had contact with the Respondent and the Respondent became tearful with complaints of pain in her knees and that she was very tired. Ms. Lederman and Katherine Mitchell, another nurse working on the floor at that time, Ms. Mitchell being since deceased, asked the Respondent if she wanted to go home. The Respondent told them that she would like to go home and the nursing supervisor was called and permission was granted to the Respondent to leave her duties at the hospital. Respondent left shortly after 9:00 p.m.

   
   

6. Nurse Cumbie who was accepted as an expert in nursing practice gave the opinion that the performance by Respondent did not meet minimal standards for nursing practice related to the oversights in the patient care that have been previously described.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The alleged actionable conduct by the Respondent about which the Petitioner complained is found in paragraphs 4 through 6 of the Administrative Complaint which state:

   
   

   1. On or about April 9, 1988, Respondent while working at M.M.C., on the 3 pm - 11 pm shift, left her nursing assignment without advising the appropriate personnel that she was leaving. Respondent, in leaving, abandoned the five (5) patients assigned to her.

   2. As a result of Respondent having left her shift early, patient records were not completed, vital signs supposed to be taken at 4:00 pm

      were not taken until 11 pm by Respondent's replacement and at least two of Respondent's assigned patients were not medicated as required.

   3. The Respondent suffers from Lupus, Arthritis and high blood pressure for which she takes medication. The Respondent's condition affected her ability to complete her nursing care on the above stated date.

      
      

9. Based upon that alleged conduct Respondent is said to have violated Section 464.018(1)(f), Florida Statutes (1987) now Section 464.018(1)(h), Florida Statutes (1991), which allows disciplinary action to be imposed when the licensee is found guilty of:

   
   

   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.

   
   

10. Respondent is also accused of violation of Section 464.018(1)(h), Florida Statutes (1987) now Section 464.018(1)(j), Florida Statutes (1991) which allows discipline to be taken against a licensee who is in the position of "being unable to practice nursing with reasonable skill and safety to patients by reason of illness . . . or physical condition. "

    
    

11. Factually the Respondent has been accused of leaving the nursing assignment without advising the appropriate personnel that she was leaving and by such action abandoning the five patients who had been assigned to her, resulting in patient records not being completed, vital signs supposed to be taken at 4:00 p.m. not being taken until 11:00 p.m. by the replacement to the Respondent and at least two patients assigned to the Respondent not being medicated as required.

    
    

12. The proof does not show that the Respondent left her assignment without advising the appropriate personnel that she was leaving, thereby abandoning the patients. It was not because she left her shift early that the patient records were not completed, nor was it because she left her shift early that the vital signs supposed to be taken at 4:00 p.m. were not taken. Furthermore no proof has been offered that the vital signs that were to be taken at 4:00 p.m. were taken at 11:00 p.m. by the Respondent's replacement. Finally, it was not as a result of the Respondent's leaving her shift early that at least two of the Respondent's patients were not medicated as required.

    
    

13. During the time that the Respondent was in attendance and until she gained permission to leave, she pursued a course of action which was not acceptable pertaining to records keeping, checking vital signs and medicating patients; however, that is not the conduct which is complained of in the Administrative Complaint. Consequently, the Respondent is not held accountable by the terms of this Administrative Complaint for her inattention to her duties as described in the facts and discussed in these conclusions.

    
    

14. Likewise, there has been no showing in this record that the Respondent suffers Lupus, arthritis and high blood pressure for which she has taken medication and that those medical circumstances affected her ability to complete her nursing care on the date in question.

    
    

15. In summary, the Petitioner has failed to prove that the Respondent violated Section 464.018(1)(f), Florida Statutes (1987) or Section 464.018(1)(h), Florida Statutes (1987) as alleged in the Administrative Complaint.

is,

RECOMMENDATION

Based upon the findings of fact made and the conclusions of law reached, it

RECOMMENDED:

That a Final Order be entered which dismisses the Administrative Complaint.

DONE and ENTERED this 24th day of February, 1992, 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 24th day of February, 1992.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed facts of Petitioner:

The first 10 paragraphs in the proposed fact finding and paragraphs 12 through 14 are subordinate to facts found.

Paragraph 11 is not necessary to the resolution of the dispute.

COPIES FURNISHED:

Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Olean S. McCall Johnson 12929 Mandarin Point

Jacksonville, FL 32223

Jack McRay, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Judie Ritter, Executive Director DPR 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.

Docket for Case No: 91-004824

Orders for Case No: 91-004824