STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5033

)

RUTHIE MAE OWENS BROOKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by it duly designated Hearing Officer, Donald R. Alexander, on November 13, 1991, in Gainesville, Florida.

APPEARANCES

For Petitioner: Roberta L. Fenner, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Ruthie Mae Owens Brooks, pro se

1604 S.W. 40th Terrace, #A Gainesville, Florida 32607

STATEMENT OF THE ISSUES

The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on May 24, 1991, when petitioner, Department of Professional Regulation, Board of Nursing (Board), issued an administrative complaint charging respondent, Ruthie Mae Owens Brooks, a licensed practical nurse, with having violated Subsections 464.018(1)(f),(h), and (j), Florida Statutes (1989) by failing to file a report or record, engaging in unprofessional conduct, and being unable to practice nursing with reasonable skill and safety to patients by reason of the use of alcohol. Respondent disputed the above allegations and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on August 7, 1991, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing issued on August 27, 1991, the matter was scheduled for final hearing on November 13, 1991, in Gainesville, Florida. On November

12, 1991, the case was transferred from Hearing Officer Ella Jane P. Davis to the undersigned.

At final hearing, petitioner presented the testimony of Lynn Cobb Ivie, Cynthia Joyce Biddix, and Virginia K. Beatty. Also, petitioner offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent testified on her own behalf. Petitioner's post-hearing motion to submit a late- filed exhibit was denied by order dated November 27, 1991.

A transcript of hearing was filed on December 3, 1991. Proposed findings of fact and conclusions of law were filed by petitioner on December 9, 1991. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Ruthie Mae Owens Brooks (Brooks or respondent), was licensed as a practical nurse having been issued license number PN 0877941 by petitioner, Department of Professional Regulation, Board of Nursing (Board). She has been licensed as a practical nurse since 1987. There is no evidence that respondent has been the subject of disciplinary action prior to this occasion.

   
   

2. When the events herein occurred, respondent was an agency nurse for Underhill Personnel Services, Inc., an agency that furnished nurses to various health care facilities, including Methodist Medical Center in Jacksonville, Florida. She was employed at all times as a licensed practical nurse.

   
   

3. On November 17, 1990, respondent was scheduled to work the 11 p.m. - 7

   a.m. shift at Methodist Medical Center. Although her duty shift began at 11:00 p.m., respondent arrived a few minutes late and reported directly to the

   medical-surgical- orthopedic wing instead of signing in at the nursing office as required by hospital rules.

   
   

4. After reporting to her work area, respondent went to the assignment board to review her assignment for that evening. Her specific duties that evening were to care for five patients in the medical-surgical-orthopedic wing. While respondent was at the assignment board, a registered nurse, Lynn Ivie, came to the board to ascertain her assignment. At that time, Ivie reported that she smelled a "strong odor of alcohol" on respondent's breath. However, Ivie said nothing at that time since she wanted to give respondent the benefit of the doubt.

   
   

5. Around midnight, one of respondent's patients awoke in his room with severe chest pains. Both Ivie and respondent immediately went to the room. Although Ivie instructed Brooks to get a vital signs machine (also known as the Dynamap), Brooks ignored the instruction and "wiped the patient's face with a wet cloth". Ivie then brought the machine into the room and respondent was instructed by Ivie to take the patient's vital signs (blood pressure, temperature and pulse). This merely required her to place an attachment around the patient's arm and push a button to start the machine. The operation of the machine is considered a basic nursing skill. According to Ivie, respondent could not focus on the machine and did not seem to remember how to operate it. After waiting a few moments with no response from Brooks, Ivie finally took the

   patient's vital signs herself. During this encounter, Ivie again smelled alcohol on respondent's breath and concluded that her inability to assist in the care of the patient and to operate the machine was due to alcohol.

   
   

6. Within a few moments, the patient was transferred to the intensive care unit (ICU) on another floor. Before accompanying the patient to the ICU, Ivie instructed respondent to chart the incident and action taken in the nurse's notes and then meet her in the ICU with the completed notes. These notes should be completed in an expedited manner so that the nurses in the ICU wing can utilize them in providing follow-up care to the patient. However, respondent did not chart the incident nor bring the notes to the ICU. Indeed, she failed to chart the notes on any of the patients assigned to her that night. By failing to chart any notes that evening, respondent contravened the requirement that a nurse file a report or record (nursing notes).

   
   

7. Around 1:30 a.m. on November 18, Ivie and Joyce Biddix, the nursing supervisor, went to the room of one of the patients assigned to respondent and found the patient, a confused elderly male, sitting nude in a chair with the bed stripped of all linens. He had previously been tied to the bed to prevent him from falling. The linens were soiled with urine and were lying in a heap on the floor. Although respondent had taken the patient out of the bed, disrobed him, and removed the linens, she had left him unattended in the room and had not returned. Biddix called down the hall for someone to bring fresh linens and observed respondent "floating" down the hall saying "I can't find the linens" in a "singsong" voice. When she got closer to respondent, Biddix smelled alcohol on respondent's breath. It may reasonably be inferred from the evidence that respondent's conduct with this patient was unprofessional and constituted a departure from acceptable and prevailing nursing practice.

   
   

8. After being confronted by Biddix regarding the alcohol, respondent told her she had drunk one beer with her meal around 10:30 p.m., or just before reporting to duty that evening. However, she denied she was intoxicated or unable to perform her duties. Respondent was then told to leave work immediately. The incident was later reported to Underhill Personnel Services, Inc. and that agency contacted the Board. After an investigation was conducted by the Board, an administrative complaint was filed.

   
   

9. At hearing, respondent did not contest or deny the assertion that by reporting to work with alcohol on her breath, she was acting in an unprofessional manner and deviated from the standards of acceptable and prevailing nursing practice. In this regard, she acknowledged that she had drunk alcohol (which she claimed was only one tall beer) with her meal around 10:30 p.m., or just before reporting to duty. However, she contended that all of her previously scheduled shifts at the hospital had been cancel led and she assumed her shift that evening might also be cancelled. In response to the allegation that she could not operate the vital signs machine, respondent offered a different version of events and suggested that the machine in the patient's room was inoperative. Therefore, it was necessary for Ivie to bring a Dynamap into the room and Ivie took the vital signs without respondent's assistance. She justified leaving the elderly patient alone without clothes in his room on the grounds there was no clean gown, the patient was not combative, and she was only gone from the room for a few moments. Finally, she contended that she charted the notes for one of her patients but did not chart the others because the remaining patients were removed from her care by Ivie and Biddix when she was sent home at 1:30 a.m. However, these explanations are either deemed to be not credible or, if true, nonetheless do not justify her actions.

10. Although there was no testimony concerning the specific issue of whether respondent is unable to practice nursing with reasonable skill and safety by reason of use of alcohol, taken as a whole respondent's conduct on the evening of November 17, 1990, supports a finding that her capacity was impaired that evening by virtue of alcohol. Accordingly, it is found that respondent was unable to practice nursing with reasonable skill and safety by reason of use of alcohol.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

12. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Respondent is charged with violating Subsections 464.018(1)(f),(h), and (j), Florida Statutes (1989). Those subsections authorize the Board to take disciplinary action against a licensee whenever the licensee is found guilty of

    
    

    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 shall include only those which are signed in the nurse's capacity as a licensed nurse.

    * * * 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.

    * * *

    (j) 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. In enforcing this paragraph, the department shall have, upon a finding of the secretary of his designee that probable cause exists to believe that the licensee is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement

    in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public.

    The department shall be entitled to the summary procedure provided in S. 51.011. A nurse affected by the provisions of this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of nursing with reasonable skill and safety to patients.

    
    

14. By clear and convincing evidence, the Board has established that respondent failed to file a required report (nursing notes) in violation of subsection 464.018(1)(f) and engaged in unprofessional conduct by reporting to duty with alcohol on her breath and leaving an elderly male nude and unattended in his room in violation of subsection 464.018(1)(h). Finally, the totality of the evidence supports a conclusion that respondent cannot safely and skillfully practice nursing because of an alcohol problem in violation of subsection 464.018(1)(j).

    
    

15. Rule 210-10.011, Florida Administrative Code, provides suggested penalties to be imposed on licensees found guilty of violating relevant agency rules or statutory provisions. For failing to make or file a false report, subsection (2)(h) of the rule calls for a penalty ranging from a reprimand and fine of $250 to revocation and a $1000 fine. For unprofessional conduct subsection (2)(j) calls for a penalty ranging from probation to suspension and a fine. For impairment in conjunction with other violations, as is the case here, subsection (2)(1) calls for participation in the Intervention Program for Nurses and suspension until proof of safety can be established, to be followed by probation. Finally, section (3) of rule 210-10.011 recites circumstances which may be considered in aggravation of mitigation of penalty. As is relevant here, respondent has had no prior disciplinary action taken against her license and the violations occurred on the same day and at no other time. In addition, two patients were subjected to possible harm although no actual injury occurred. In view of this, and consistent in part with petitioner's recommended penalty, respondent's license should be suspended for six months but that such suspension be stayed upon respondent entering the Intervention Program for Nurses and successfully completing that program. In the event she declines to enter the program, or to successfully complete the same, her license should be suspended for said six month period and shall not be reinstated until she appears before the Board and demonstrates she can engage in the safe practice of nursing.

RECOMMENDATION

Based upon the foregoing findings of facts and conclusions of law, it is, RECOMMENDED that respondent be found guilty of violating Subsections

464.018(1)(f), (h), and (j), Florida Statutes (1989), and that her nursing license be suspended for six months but that such suspension be stayed upon respondent's entry into and successful completion of the Intervention Program for Nurses. Respondent's failure to remain in or successfully complete the program will result in the immediate lifting of the stay and imposition of the six-month suspension. Thereafter, said license shall not be reinstated until

such time as respondent appears before the Board and can demonstrate that she can engage in the safe practice of nursing.

DONE and ENTERED this 16th day of December, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 16th day of December, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-5033

Petitioner:

1. Partially adopted in finding of fact 1.

2. Partially adopted in finding of fact 3.

3. Partially adopted in finding of fact 8.

4. Partially adopted in finding of fact 3.

5-6. Partially adopted in finding of fact 4. 7-10. Partially adopted in finding of fact 5.

11-14. Partially adopted in finding of fact 6. 15-16. Partially adopted in finding of fact 7. 17-18. Partially adopted in finding of fact 8.

COPIES FURNISHED:

Roberta L. Fenner, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Ruthie Mae Owens Brooks 1604 S.W. 40th Terrace, #A Gainesville, Florida 32607

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Judie Ritter, Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Docket for Case No: 91-005033

Orders for Case No: 91-005033