STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2715

)

RITA FLINT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in Fort Lauderdale, Florida, on October 4, 1994, before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laura Gaffney, Esquire

Natalie Duguid, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Rita Flint, pro se

3313 South East Second Street Pompano, Florida 33063

STATEMENT OF THE ISSUE

The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

On August 8, 1992, the Petitioner, Department of Business and Professional Regulation, Board of Nursing, filed an Administrative Complaint charging Respondent, Rita Flint, with two (2) counts of unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, as defined in Rule 210- 10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and one

(1) count of being unable to practice nursing with reasonable skill and safety in violation of Section 464.018(1)(j), Florida Statutes.

Respondent filed a timely request for formal hearing on September 10, 1993. The Petitioner referred the case to the Division of Administrative Hearings for assignment of a Hearing Officer who set the matter for formal hearing on October 22, 1993. On January 6, 1994, the Hearing Officer entered an order granting abeyance and cancelling the hearing. The case was subsequently rescheduled for

formal hearing on October 4, 1994. The Agency for Health Care Administration, Division of Health Quality Assurance, was substituted for the Department of Business and Professional Regulation as Petitioner.

At the hearing, Petitioner presented the testimony of Kathleen LaFrance, Danielle Orr, and Barbara Parks and offered Exhibits P1-P7 into evidence, all of which were received without objection. The Respondent testified on her own behalf. She also presented the testimony of Lina Mack and offered Exhibits R1- R3 into evidence, all of which were received without objection.

A transcript was filed on October 31, 1994. The Petitioner timely filed proposed findings of fact and conclusions of law on November 10, 1994. A ruling on each proposed finding of fact has been made as reflected in an Appendix to this Recommended Order. The Respondent did not file a post hearing written submission.

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 Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068.

   
   

2. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse.

   
   

3. On August 3, 1990, Flint was assigned to care for patients J. C. and J.

   K. including administering their medications and charting same on their Medication Administration Record (MAR).

   
   

4. On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date.

   
   

5. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C.

   
   

6. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR.

   
   

7. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR.

   
   

8. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy.

   
   

9. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient.

   
   

10. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00

    a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses).

    
    

11. On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct.

    
    

12. There is no evidence that any patient suffered any actual harm as a result of Flint's errors.

    
    

13. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses.

    
    

14. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage.

    
    

15. Flint had no problems involving substance abuse.

    
    

16. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems.

    
    

17. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment.

    
    

18. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem.

    
    

19. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession.

    
    

20. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described.

    
    

21. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

23. The Petitioner has the burden of proving by clear and convincing evidence that disciplinary action should be taken against Flint's license to practice nursing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

24. Section 464.018(1)(h), Florida Statutes (1990), authorizes Petitioner to discipline licensed practical nurses on grounds of

    
    

    [u]nprofessional 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 actual injury need not be established.

    
    

25. Flint does not dispute any allegation involving unprofessional conduct in the charting of patient medication records or the actual administration of medications on August 3, 1990, and August 29, 1990.

    
    

26. On August 3, 1990, and August 29, 1990, Flint violated Section 464.018(1)(h), Florida Statutes (1990), as defined in Rule 210-10.005(1)(e)1, Florida Administrative Code, and charged in Count I, by failing to accurately chart the administration of medications on patient records.

    
    

27. On August 3, 1990, and August 29, 1990, Flint violated Section 464.018(1)(h), Florida Statutes (1990), as defined in Rule 210-10.005(1)(e)2, Florida Administrative Code, and charged in Count II, by administering medications or treatment in an negligent manner.

    
    

28. Flint does not admit that she was responsible for leaving an intravenous bag with an exposed needle hanging at a patient's bedside on August 15, 1990. However, Danielle Orr testified that she found the exposed needle when she made rounds after Flint's shift. Ms. Orr determined at that time that Flint failed to dispose of the intravenous bag and needle. Ms. Orr's testimony, corroborated by a Corrective Action Report (Exhibit P-5) that she prepared on August 17, 1990, is clear and convincing evidence of Flint's unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes (1990).

    
    

29. Count III charges Flint with violation of Section 464.018(1)(j), Florida Statutes (1990), which authorizes Petitioner to discipline licensed practical nurses for:

    
    

    [b]eing 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. . . .

    
    

30. Petitioner presented no evidence at the hearing indicating that Flint was unable to practice nursing with reasonable skill and safety to patients for any reason set forth in Section 464.018(1)(j), Florida Statutes (1990).

    
    

31. Flint presented a letter (Exhibit R-3) from a clinical psychologist, Dr. Marotta, dated September 19, 1990. In the letter, Dr. Marotta diagnosed Flint as having a generalized anxiety disorder. The letter corroborates Flint's testimony concerning the financial and domestic stressors in her life. However, the diagnosis of a generalized anxiety disorder in a letter, written over four years ago, standing alone is not clear and convincing evidence that Flint was and/or continues to be unable to practice nursing with reasonable skill and safety to patients due to a mental condition. Section 120.58 (1)(a), Florida Statutes; State, Dept. of Admin. v. Porter, 591 So.2d 1108 (Fla. 2nd DCA 1992).

32. In determining the appropriate penalty, the following factors have been considered in mitigation: (a) There has been no prior or subsequent disciplinary action against Flint; (b) Flint has been licensed to practice nursing for over twelve (12) years; (c) Flint's unprofessional conduct caused no actual damage, physical or otherwise; (d) Flint made an effort to rehabilitate herself by participating in therapy as long as she could afford to do so, and then continued her efforts towards self improvement; (e) Flint was successful in stopping the violations; and, (f) Imposition of the maximum fine would cause undue financial hardship.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250).

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994.

SUZANNE F. HOOD, Hearing Officer 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 21st day of November 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. Incorporated into Findings of Fact 1.

2. Incorporated into Findings of Fact 2 and 11.

3. Incorporated into Findings of Fact 4.

4. Incorporated into Findings of Fact 5.

5. Incorporated into Findings of Fact 6.

6. Incorporated into Findings of Fact 7.

7. Incorporated into Findings of Fact 8.

8. Incorporated into Findings of Fact 9.

9. Incorporated into Findings of Fact 10.

10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding.

11. Unsupported by competent substantial evidence.

12. Unsupported by competent substantial evidence. See number 10 above.

FOR THE RESPONDENT:

1. Respondent did file proposed findings of fact or conclusions of law.

COPIES FURNISHED:

Laura Gaffney, Esquire Natalie Duguid, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rita Flint

3313 South East Second Street Pompano, Florida 33063

Judie Ritter Executive Director Board of Nursing AHCA

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Harold D. Lewis General Counsel

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA BOARD OF NURSING

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. CASE NO. 92-00116

DOAH CASE NO. 93-2715

RITA FLINT, LPN 655201,

Respondent.

/

ORDER

This matter came before the Board of Nursing on February 9, 1995, in Tallahassee, Florida, for consideration of the Recommended Order of the hearing officer from a formal hearing conducted pursuant to Section 120.57(1), Florida Statutes. No exceptions were filed by the parties.

FINDINGS OF FACT

The Board accepts the findings of fact in paragraphs 1-21 of the Recommended Order as its Findings of Fact.

CONCLUSIONS OF LAW

The Board accepts the conclusions of law in paragraphs 22-32 of the Recommended Order as its Conclusions of Law.

DISPOSITION

The Board accepts the recommendation that Ms. Flint is guilty of violating Section 464.018(h), Florida Statutes, and Rules 210-10.005(1)(e)1. and (1)(e)2., Florida Administrative Code.

Pursuant to Section 464.018(2), Florida Statutes, and the hearing officer's recommendation, the following disciplinary action is imposed:

The license of Rita Flint is placed on probation for one year, subject to the following conditions:

The licensee shall not violate chapters 455 or 464, Florida Statutes, the rules promulgated pursuant thereto, any other state or federal law, rule, or regulation relating to the practice or the ability to practice nursing.

The licensee must report any change in her address, telephone number, employment, employer's address or telephone number, or any arrests, in writing by certified mail within 5 working days to the Probation Supervisor at the Board of Nursing Office, 904/359-6331, 111 Coastline Drive, East, Suite 516, Jacksonville, Florida 32202. The probationer's failure to supply such information on a timely basis shall constitute grounds for the licensee to attend the next Board meeting to show cause why the probation should not be modified or the license suspended.

The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee's name, license number, current address, name, address, and phone number of each current employer, whether employed as a nurse or not, and a statement by the licensee describing her employment. This report shall be submitted to the Probation Supervisor every three (3) months in a manner as directed, by the Probation Supervisor. If the licensee fails to submit a quarterly report on a timely basis, she will be required to attend the next Board meeting to show cause why the probation should not be modified or the license suspended.

All current and future settings in which the probationer practices nursing shall be promptly informed of the licensee's probationary status. Within five days of the receipt of this Order, the licensee shall furnish a copy to her nursing supervisor or supervisors, if there are multiple employers. The supervisors must acknowledge this probation to the Board probation supervisor in writing on employer letterhead within ten days. Should the licensee change employers, she must supply a copy of this Order to her new nursing supervisor within five days. The new employer shall acknowledge probation in writing on employer letterhead to the Board probation supervisor within ten days. The licensee shall be responsible for assuring reports from the nursing supervisors will be furnished to the Board probation supervisor every three (3) months.

That report shall describe the licensee's work assignment, work load, level of performance, and any problems.

The probation supervisor shall inform the Board regarding any report indicating an unprofessional level of work or other problem at the next scheduled Board or probable cause panel meeting. Any unsatisfactory reports shall be grounds for modification of the terms of this probation and possible suspension of licensure. The licensee shall be notified to attend the next scheduled Board meeting to show cause why further action, including suspension, should not be taken.

Should the licensee desire to return to school to attend a nursing program, the licensee shall provide a copy of this Order to the Program Director prior to beginning class. The Program Director must inform the Board in writing on school letterhead, acknowledging receipt of a copy of the Order. If the school is willing to comply with the licensee's conditions of probation during clinical experiences, that should be specified. Otherwise the probation shall be tolled. Any requests for modification or accommodation by the school or the probationer shall be considered on an individual basis by the Board.

If the licensee leaves Florida for thirty days or more or ceases to practice nursing in the state, her probation shall be tolled until the licensee returns to active practice of nursing in Florida. Then the probationary period will resume.

The licensee must work in a setting under direct supervision and only on a regularly assigned unit. Direct supervision requires another nurse to be working on the same unit as respondent and readily available to provide assistance and intervention. She cannot be employed by a nurse registry, temporary nurse employment agency or home health agency. Multiple employers are prohibited. The licensee cannot be self-employed as a nurse.

The licensee must pay an administrative fine of $250.00 within six months.

Failure to pay the fine in a timely manner will require the licensee to show cause at the next Board meeting why the license should not be suspended. The probationer has the responsibility to document financial hardships prior to the due date of the fine payment.

The licensee's failure to comply with the terms of this Probation Order without the prior written consent of the Board shall be a violation of this Probation. The probation shall not be terminated until the licensee has complied with all terms of probation. If the licensee fails to comply with the terms he/she will be required to attend the next Board meeting to show cause why the probation should not be modified or the license suspended. Any notices for personal appearances to show cause why probation should not be modified or licensure suspended shall go to the last address supplied by the probationer in writing to the Probation Supervisor.

The licensee shall pay all costs necessary to comply with the terms of the Order. Such costs include, but are not limited to, the costs of preparation of investigative and probationary reports detailing the compliance with this probation, the costs of obtaining and analyses of any blood or urine specimens submitted pursuant to this Order, and administrative costs directly associated with the licensee's probation.

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

Done and Ordered this 28 day of March, 1995.

BOARD OF NURSING

BETTY A. TAYLOR, RN, MSN CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished by United States Mail to RITA FLINT, 3313 SE 2nd Street #6, Pompano Beach, Florida 33062, and by interoffice mail to SUZANNE HOOD, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and LAURA GAFFNEY, Agency for Health Care Administration, 1940 N. Monroe St., Tallahassee, Florida 32399-0792, this 12th day of April, 1995.

Docket for Case No: 93-002715

Orders for Case No: 93-002715