STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-2924

)

DIANA KINSLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference on August 4, 1997, in Tallahassee, Florida. The parties, attorneys, representatives, witnesses, and court reporter attended the hearing in Fort Myers, Florida.

APPEARANCES

For Petitioner: Ethan Andrew Way, Certified Legal Intern Attorney Alexandria Walters

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Harry Blair

Blair and Prather, P.A. 2138-40 Hoople Street

Fort Myers, Florida 33901 STATEMENT OF THE ISSUES

The issues are is whether Respondent is guilty of inaccurately recording, falsifying, or altering a patient's

records or nursing progress records, in violation of Rule 65B9- 8.005(1)(e)1, Florida Administrative Code, and

Section 464.018(1)(h), Florida Statutes, or knowingly making or filing a false report or record, in violation of Section 464.018(1)(f). If Respondent is guilty of either violation, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 5, 1996, Petitioner alleged that:

Respondent was relieved of her duty [as a registered nurse] because of unprofessional conduct. Upon the Respondent being relieved it was discovered by Donna Dinardi, RN, that the Respondent had prepoured the medications for 1300 hours, and that Darvocet and Xanax had been signed out as given but were not with the prepared medications.

At the hearing, the Administrative Law Judge ruled that the only factual allegations sufficiently pleaded in the Administrative Complaint were Nurse Dinardi's discoveries that Respondent prepoured the 1300 medications and signed out Darvocet and Xanax as given, although they were not among the prepoured medications.

Respondent demanded a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence no exhibits. All exhibits were admitted except Petitioner Exhibit 2.

The court reporter filed the transcript August 18, 1997.

FINDINGS OF FACT

1. Respondent is a licensed registered nurse, holding license number RN 2729382. She has been licensed since April 1993.

2. Prior to attending Edison Community College for nursing school, Respondent worked as a surgical assistant and technician.

3. While in nursing school, Respondent worked as a dialysis technician at the Naples Artificial Kidney and Dialysis Center. She worked at the center for five years before taking a job at Naples Community Hospital, where she has worked for two years and remains employed.

4. Evidently in addition to her employment at the dialysis center and hospital, Respondent began employment in January 1995 at an adult congregate living facility in Naples, known as NHC Health Care (NHC). She was employed as a charge nurse in the assisted-living unit of NHC.

5. In September 1995, Respondent gave her supervisor at NHC two weeks' written notice of her intent to terminate her employment. Although not stated in the notice, Respondent quit in order to take a job as director of nursing at a nearby competitor of NHC.

6. The first week after giving notice, Respondent worked at NHC without incident. However, NHC terminated Respondent at about 11:00 a.m. on September 11, 1996, which was the first day of the following week. Louise Sorrell, the assistant director of nursing and Respondent's supervisor, called Respondent into the

   administrator's office, ordered her to take the remainder of the week as vacation, took her keys to the locked medications room, and escorted Respondent back to her nursing station to get her purse and then out of the facility.

7. While picking up her purse, Respondent told Ms. Sorrell that the 1:00 p.m. medications were in the locked medications room ready to be administered. Ms. Sorrell declined Respondent's offer to finish her shift. Ms. Sorrell assured Respondent that she would take care of everything.

8. The assisted-living unit housed 30 residents.

   
   

   Respondent was in charge of all of them. On the day in question, she prepoured the medications into soufflé cups marked with the room numbers of the patients. For the Darvocet and Xanax, Respondent completed the controlled-drug receipts that prevent undocumented administration of these medications. She did not waste any medications on the morning of September 11.

9. At 10:55 a.m., Respondent finished her tasks in the medications room, locked the door, and resumed other duties. Five minutes later, Ms. Sorrell summoned Respondent to the administrator's office.

10. Although making the complaint that led to this case, Ms. Sorrell did not testify at the hearing. Grace Desiderio, a registered nurse at NHC, testified that Ms. Sorrell called her to Respondent's nursing station after Respondent had left the

    building. By this time, Ms. Sorrell had visited the medications room and examined the medical records.

11. The evidence is clear and convincing that, when Respondent left the medications room, everything was in order. The evidence is unclear as to the condition of the room after Ms. Sorrell's visit. No clear and convincing evidence links Nurse Desiderio to the discovery of anything or Respondent to the alleged violations of prepouring the medications and signing out Darvocet and Xanax as given when they were not among the prepoured medications.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter under Section 120.57(1), Florida Statutes..

13. Section 464.018(1), Florida Statutes, authorizes the Board of Nursing to impose discipline for, among other things:

(f) Making or filing a false report or record, 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 . . . .

(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.

14. Rule 65B9-8.005(1)(e)(1) (formerly 59S-8.005(1)(e)(1)),

Florida Administrative Code, provides that it is unprofessional

conduct to inaccurately record, falsify, or alter patient records, among other things.

1. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, (Fla. 1987).

2. A fundamental element of due process is that the charging party inform the charged party of the facts that constitute the basis of the offense. In Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844, (Fla. 2d DCA 1984), the court stated that the allegations "must be specific enough to inform the accused with reasonable certainty of the nature of the charges."

3. This Administrative Complaint is poorly pleaded. The material factual allegations are solely in paragraph 3, which is quoted nearly in its entirety in the Preliminary Statement. Each clause of allegations requires consideration.

4. First, Petitioner alleges that Respondent's employer relieved her of her duties due to "unprofessional conduct." This allegation is vague and informs Respondent of nothing. This allegation appears to be surplusage, as Petitioner does not allege the violation of any statutes or rules prohibiting "unprofessional conduct," as such. Interestingly, this allegation appears to be an uncritical repetition of a charge by Ms. Sorrell, who claimed that Respondent was guilty of

   "unprofessional conduct" because, while at work at NHC, she was recruiting health-care workers for her new employer.

5. Second, Petitioner alleges that Nurse Donna Dinardi "discovered" that: 1) Respondent had prepoured the 1300 medications and 2) had signed out Darvocet and Xanax as given even though they were not among the prepoured medications.

1. These allegations raise a myriad of problems. First, Petitioner elected to frame the charges in terms of what Nurse Dinardi discovered. The threshold problem here is that Petitioner's investigator reported that Nurse Dinardi had left Florida and never responded to attempts to contact her. While it is dubious practice to state allegations in terms of the discovery of a witness, it is poor practice to state allegations in terms of the discovery of a witness who will likely not be available to testify.

2. Second, the first of the two discoveries of Nurse Dinardi is not a basis for discipline. Respondent allegedly prepoured the medications. Administration of medications requires prepouring the medications.

3. Third, the second of the two discoveries of Nurse Dinardi likewise is not a basis for discipline. Respondent allegedly signed out the Darvocet and Xanax as given, but they were not among the prepoured medications. Typically, medications documented as administered are no longer in the class of

   prepoured medications; they are in the class of consumed medications.

4. In any event, the record demonstrates that the Darvocet and Xanax were among the prepoured medications when Respondent last left the medications room.

5. Perhaps Petitioner intended to charge Respondent with documenting medications as administered before they had been. The factual allegations fail to raise this issue. Nor do the legal allegations of the final paragraph of the Administrative Complaint raise such factual issues. This paragraph is devoted to informing Respondent what laws are violated by the factual allegations of the preceding paragraph. It would be confusing and misleading to allow Petitioner to introduce new factual

   allegations in this paragraph, but the paragraph does not attempt to do so in any event.

6. Petitioner has failed to prove the material allegations of the Administrative Complaint. Even if Petitioner had alleged that Respondent was inaccurately documenting the administration of medications two hours before their actual administration-- which concededly would be a suspect practice--Petitioner only proved by clear and convincing evidence that such a practice would have violated the policies of NHC; Petitioner failed to prove by clear and convincing evidence that such a practice, under the facts of this case, would have violated the cited provisions of law.

RECOMMENDEDATION

It is

RECOMMENDED that the Board of Nursing enter a Final Order dismissing the Administrative Complaint.

DONE AND ORDERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.

COPIES FURNISHED:

Ethan Andrew Way, Certified Legal Intern Alexandria Walters, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Harry Blair, Esquire Blair and Prather, P.A. 2138-40 Hoople Street

Fort Myers, Florida 33901

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 3239-0700

Marilyn Bloss, Executive Director Board of Nursing

Department of Health

4080 Woodstock Drive, Suite 202

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-002924

Orders for Case No: 97-002924