STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

)

v. ) CASE NO. 92-4573

)

GERALDINE M. WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 4, 1993, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Charles Faircloth

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street, No. 60

Tallahassee, Florida 32399-0792

For Respondent: Geraldine McNeal Wright, Pro Se

7925 Merrill Road, Apt. #216

Jacksonville, Florida 32211 STATEMENT OF THE ISSUES

The ultimate issue is whether the nursing license issued to Respondent, Geraldine McNeal Wright (Wright), should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner, Department of Professional Regulation (DPR), presented the testimony of Lucy Elliot, Bonifacio Floro, M.D., Margaret Patti, and Gerry Hurd. DPR's Exhibits 1 and 2 were admitted in evidence.

Wright presented her own testimony and offered no exhibits.

The transcript of the proceedings was filed on January 12, 1993. Both parties filed proposed findings of fact and conclusions of law on January 22, 1993. The proposed recommended order filed by Wright had attached numerous documents which are not part of the evidence of record in this case and which were not offered into evidence at the formal hearing. The proposed findings of fact and conclusions of law rely heavily on and refer extensively to those

documents. Because those documents were not made part of the evidentiary record in this case, they cannot be considered. Accordingly, those documents are stricken from consideration herein and all proposed findings of fact which refer thereto or rely thereon are rejected. Additionally, despite direct instructions to the contrary, Wright has failed to number the paragraphs in her proposed recommended order and has intermixed proposals of fact and law. For these reasons, it is not possible to make specific rulings on each proposed finding of fact offered by Wright. All proposed findings of fact and conclusions of law have been considered. To the extent possible, a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Wright is a licensed practical nurse in Florida, holding license number PN 185281.

   
   

2. In accordance with her licensure, Wright worked as a practical nurse at Manor Care Nursing Center in Jacksonville, Florida.

   
   

3. On January 15, 1991, patient R.B. was admitted to Manor Care for recovery from multiple factures and organic brain damage.

   
   

4. R.B. was receiving nourishment, Jevity, through a nasogastric tube (NGT). On January 18, 1991, at approximately 5:00 p.m., R.B. removed the NGT. R.B.'s mental confusion was such that she would attempt to remove the NGT regularly and mittens were used to prevent this behavior.

   
   

5. Wright was the nurse responsible for R.B.'s care from approximately 4:00 p.m. to midnight on January 18, 1991. She recorded R.B.'s removal of the NGT. At some point thereafter, registered nurse Rosalina Harrell came and reinserted the NGT.

   
   

6. At 9:30 p.m., Wright's notes indicate that R.B. was coughing and that she checked the placement of the NGT. Placement is checked to insure that the tube is inserted into the stomach and not into the trachea and lungs. According to Wright's notes and testimony, she discontinued feeding to give R.B. a rest, even though the placement checks were negative, meaning that the checks did not show that the tube was in the trachea or lungs.

   
   

7. Wright restarted the feeding of Jevity (a white liquid food supplement). At 10:30 p.m., Wright's notes showed that R.B. was coughing up "large" amounts of white frothy phlegm. Wright again held the tube feeding for a short time.

   
   

8. Another practical nurse, Margaret Patti, came on duty to replace Wright as the nurse in charge of R.B.'s care. In discussing R.B.'s condition with Wright, Wright informed Patti that R.B. had been coughing since the tube was inserted by Harrell. Wright said she did not remove the tube because she was not sure it was indeed in the wrong place.

   
   

9. Wright and Patti then both did one test for placement and it was negative to show that the tube was incorrectly placed . Wright then did two other tests while Patti was out of the room, but she reported to Patti that those tests were also negative. Because of the concerns expressed by Wright, Patti monitored R.B. closely after Wright left around midnight.

10. Patti observed some coughing and white sputum between 11:30 p.m. and 2:00 a.m., January 19, 1991. Again at 2:00 a.m. Patti recorded the R.B. was coughing and there was a moderate amount of white sputum present. Then the coughing became continuous and Patti removed the NGT. At 4:00 a.m., Patti recorded that R.B.'s respirations were even and unlabored and that tube feeding remained discontinued. At 5:00 a.m., Patti was advised by the nursing assistant that R.B. had no respiration or heartbeat. Patti called the doctor at 5:40 and

    R.B. was dead.

    
    

11. An autopsy revealed that R.B. had died from asphyxia due to aspiration of Jevity. The lungs were full of Jevity and the bronchioles were plugged by the soft white material. There was nothing in R.B.'s stomach.

    
    

12. As it relates to Wright's actions that night, at no time did Wright call a supervisor, registered nurse or doctor to express concern about the placement of the NGT or to indicate the presence of coughing or a white frothy substance around R.B.'s mouth.

    
    

13. The presence of coughing and white frothy sputum or phlegm around the mouth is a danger sign that the NGT is in the trachea instead of the stomach.

    
    

14. The minimum standard of acceptable and prevailing nursing practice requires that a licensed practical nurse report coughing or frothiness to her supervisor or to an R.N. If the practical nurse did not place the tube, she should contact the person who did insert the tube. If no one is available, then the practical nurse should remove the tube and contact the supervisor, an R.N., or the doctor, by telephone. There is no other acceptable level of care except to stop the food immediately and then report the coughing and presence of white frothy sputum to the appropriate person.

    
    

15. At Manor Care that night, no supervisor or R.N. was on the premises, but Wright made no attempt to reach anyone by telephone regarding the situation.

    
    

16. Wright's failure to meet these minimum standards of care constitutes unprofessional conduct as that term is defined in Section 464.018(1)(h), Florida Statutes (1991).

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

18. Wright is charged with violating Section 464.018(1)(h), Florida Statutes (1991), which provides for discipline for:

    
    

    (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.

    
    

19. DPR also charges Wright with violating Rule 21O-10.005(1)(e)12, Florida Administrative Code, by being guilty of unprofessional conduct through acts of negligence or gross negligence, either by omission or commission.

20. The evidence is clear that Wright noted both coughing and the presence of large amounts of white frothy phlegm around R.B.'s mouth after the NGT was inserted by Rosalina Harrell. It is also uncontroverted that Wright did not immediately stop the feeding and notify the appropriate medical personnel of those symptoms. In fact at no time did she notify the appropriate personnel. These omissions are below the minimum standards of nursing practice and constitute unprofessional conduct. Wright is guilty of violating Section 464.018(1)(h). The proof of this guilt is both clear and convincing.

    
    

21. In light of Wright's otherwise unblemished practice as a nurse, it is concluded that no useful purpose will be served by imposing a large fine or licensure suspension. Instead, the following recommendation reflects conditions which will bring Wright's nursing practice within minimum standards.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final

Order and therein:

1. Issue a reprimand to Geraldine McNeal Wright.

   
   

2. Place Wright on probation for six months subject to attendance at continuing education courses relative to the omissions in this case, to include a review of danger signs and appropriate responses in patients with nasogastric tubes and a refresher on the appropriate administration of procedures for checking the placement of such a tube.

   
   

3. Impose a fine of $100.

DONE and ENTERED this 11th day of February, 1993, in Tallahassee, Florida.

DIANE K. KIESLING

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 11th day of February, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4573

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional

Regulation, Board of Nursing

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-5); 7(7); 9(12); 10(10); 11(11); 12(11); and 15(12 & 16). [Note--There are two different sets of paragraphs numbered 7, 8, and 9. A review of the actual Finding of Fact will clarify to which paragraph these specific rulings apply.]

   
   

2. Proposed findings of fact 8, 9, 8, and 14 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 13 and 16 are unsupported by the competent and substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Geraldine McNeal Wright

1. As indicated above, Wright's proposed findings of fact are in a form which does not permit clear specific rulings. Those proposed findings of fact which are based on the documents attached to the proposed order, which were not part of the evidentiary record, are rejected. Additionally, those proposals which constitute argument are rejected.

   
   

2. The proposed findings of fact which are consistent with the facts found herein are adopted. All other proposed findings of fact are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Charles Faircloth Senior Attorney

Department of Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Geraldine McNeal Wright 7925 Merrill Road, Apt. 216

Jacksonville, FL 32211

Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0792

Judie Ritter, Executive Director Board of Nursing

Daniel Building, Room 50

111 E. Coastline Dr. 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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 91-07162

DOAH CASE NO.: 92-4573

GERALDINE M. WRIGHT,

Respondent.

/

FINAL ORDER

Respondent Geraldine M. Wright holds Florida license number LPN 18528-1 as a licensed practical nurse. Petitioner filed an Administrative Complaint seeking disciplinary action against the license.

Respondent requested and received a formal hearing before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

The Board of Nursing met on April 15, 1993, in West Palm Beach. Florida, to take final agency action. The Board has reviewed the entire record supplied in the case. Respondent was present but not represented. Petitioner was represented by Lisa Bassett.

FINDINGS OF FACT

Tide Board accepts and adopts the Findings of Fact in paragraph 1-16 of the Recommended Order.

CONCLUSIONS OF LAW

Tide Board has jurisdiction. Section 120.57, Florida Statutes.

The Board accepts the Conclusions of Law in the Recommended Order in paragraphs 17-21.

DISPOSITION

The Board finds the Respondent in violation of Section 464.018(1)(h), Florida Statutes.

The Board accepts the recommended penalty as far as it can be implemented.

There is no specific continuing education course addressed to the appropriate insertion and monitoring of nasogastic tubes and the responses to untoward reactions to NGT's. However after the incident in question, the facility at which Respondent was working implemented an on the job in-service training on such issues. Respondent has completed that training.

The license of Geraldine Wright is reprimanded. She must pay an administrative fine of $100 within sixty days.

Consistent with the spirit of the recommended penalty, the Board orders Ms.

Wright to conduct a continuing education/in-service training at a local facility, nursing home, or other similar institution which utilizes nasogastic tubes. The training shall address her difficulties and the results along with the appropriate action, assessment, and proper chain of command to follow when mistakes are discovered. Ms. Wright shall complete this within six months and shall document this continuing education with the Board's probation supervisor.

Pursuant to Section 120.68, Florida Statutes, the parties are hereby notified they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of notice of appeal with the District Court of Appeal within thirty days of tie date this order is filed.

Done and Ordered this 26th day of July, 1993.

BOARD OF NURSING

Betty A. Taylor, RN, MSN Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to GERALDINE WRIGHT, 7925 Merrill Road #216, Jacksonville, Florida 32211, and DIANE K. KIESLING, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by Interoffice mail to Lisa M. Bassett, Attorney at Law, Department of Professional Regulation, 1940 N. Monroe Street, Tallahassee, Florida 32399-0773 this 26th day of July, 1993.

Judie K. Ritter Executive Director

Docket for Case No: 92-004573

Orders for Case No: 92-004573