STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4751

) BARBARA LYNN GIGEEUS KAHN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing by telephonic conference call between Tallahassee, Florida, and Quincy, Florida, on March 6, 1998, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

Agency for Health Care Administration Post Office Box 1229

Tallahassee, Florida 32317-4229

For Respondent: Barbara Lynn Gigeeus Kahn, pro se

Gadsden Correctional Institution Post Office Box 1769, Dorm C131 Quincy, Florida 32353

STATEMENT OF THE ISSUE

Respondent is charged under Section 464.018(1)(c), Florida Statutes, of being convicted, regardless of adjudication, of a crime which directly relates to the practice of nursing or the ability to practice nursing, and under Section 464.018(1)(d) 5,

of being found guilty, regardless of adjudication, of a violation

of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence.

PRELIMINARY STATEMENT

Formal hearing was conducted by telephonic conference call with the parties and court reporter in the Gadsden Correctional Institution, Quincy, Florida, and the Administrative Law Judge in Tallahassee.

Petitioner presented Respondent's oral testimony and had four exhibits admitted in evidence. Respondent testified on her own behalf and offered one exhibit which was not admitted in evidence.

A transcript was filed on March 23, 1998. On April 1, 1998, Petitioner timely filed a Proposed Recommended Order, which has been considered. Respondent waived filing a Proposed Recommended Order.

FINDINGS OF FACT

1. The Respondent is, and at all times material hereto has been, a licensed registered nurse in the state of Florida, having been issued license number RN 1931082. She has been licensed in one or more states as a nurse for 25 years. She has been a critical care nurse and worked emergency rooms and ambulances. She has never before been the subject of Florida license discipline.

2. On March 15, 1995, Respondent was charged with the crime

   of vehicular homicide, a second degree felony, pursuant to Section 782.071, Florida Statutes (1993). (See Exhibit R-5 showing the statutory year.) That statute provided in pertinent part,

   782.071 Vehicular homicide. --

   1. "Vehicular homicide" is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

   2. Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree, punishable as provided in s. 774.082, s. 775.083, or s. 775.084

3. Respondent pled "not guilty" to the charge of vehicular homicide.

4. On May 30, 1996, Respondent was tried and found guilty by a jury of vehicular homicide, in the Circuit Court in and for Manatee County, Florida under Case No. 94-3739F.

5. A charge against Respondent of leaving the scene of the accident was dropped at trial.

6. On June 27, 1996, Respondent was sentenced to six-and- one-half years of imprisonment followed by eight years of probation.

7. The Second District Court of Appeal affirmed the Respondent's conviction, but her sentence was recalculated in connection with the applicable sentencing guidelines. There have been no other appellate decisions regarding Respondent's conviction.

8. Respondent was due for work release shortly after formal

   hearing.

   
   

9. The Respondent testified that she considered it her obligation as a nurse to stop and render assistance if she knew she hit someone with a motor vehicle; however, Respondent maintained that she did not know that she had hit anyone.

10. The Agency presented no testimony, expert or otherwise, to relate Respondent's second degree felony conviction of vehicular homicide to the practice of nursing or the ability to practice nursing.

    CONCLUSIONS OF LAW

    
    

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

12. Petitioner had the duty to go forward and the burden to establish the violations by clear and convincing evidence. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. The pertinent charges herein are:

    
    

    Section 464.018 - Disciplinary actions -

    (1) The following acts shall be grounds for disciplinary action set forth in this section.

    1. Being found guilty, regardless of adjudication, of a crime in any jurisdiction, which directly relates to the practice of nursing or the ability to practice nursing.

    2. Being found guilty, regardless of adjudication, of any of the following offenses:

    5. A violation of chapter 784, relating to assault, battery, and culpable negligence.

    
    

14. The facts as found in this cause do not support Count II of the Administrative Complaint charging Respondent under Section 464.018(1)(d)5, Florida Statutes. Respondent has never

    been found guilty of a violation of Chapter 784, Florida Statutes.

15. In order to prevail on Count I, brought under Section 464.018(1)(c), Florida Statutes, the Agency must show that Respondent was found guilty, regardless of adjudication, of a crime. The Agency must further show that the crime of which Respondent has been convicted directly relates to either the practice of nursing or the ability to practice nursing.

16. The Agency has met the first requirement, proving conviction of a crime, but has not met the second requirement of developing some logical nexus between the crime and professional nursing.

17. Without expert testimony on the issue of whether or not the crime relates directly to the practice of nursing or the ability to practice nursing, the Agency has relied on case law. The Agency's proposed recommended order cites, Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3d DCA 1987) rev. den. 511 So. 2d 998 (Fla. 3d DCA 1987), cert. den.

    484 U.S. 986, 108 S. Ct. 502 (1987), and Rush v. Department of Professional Regulation, 448 So. 2d 26 (Fla. 1st DCA 1984).

18. In Greenwald, the court reasoned that a medical physician's undertaking to end a bitter marriage dissolution problem by soliciting someone to murder his ex-wife evidenced warped judgment and disregard for human life--the antithesis of that which is required for a physician, and cited Rush v. Department of Professional Regulation, 448 So. 2d 26 (Fla. 1st

    DCA), wherein a conviction for conspiracy to possess and import marijuana had been found "directly related" to one's ability to practice podiatry. The Rush case hinged on the podiatrist's ability and license to prescribe Legend drugs.

19. More to the point, however, are two cases which address Section 464.018(1)(c) of the Nurse Practice Act, Department of Professional Regulation, Board of Nursing v. Gibbons, DOAH Case No. 90-2915 (Recommended Order entered May 21, 1991), for which the Division has never received a Final Order, and Department of Professional Regulation v. Haischer, DOAH Case No. 81-3149 (Recommended Order entered April 20, 1982; Final Order entered June 15, 1982). In Gibbons, Administrative Law Judge Don W. Davis concluded that conviction of a crime directly related to the practice of nursing or the ability to practice nursing had not been proven where the nurse involved had pled "no contest" and was adjudged guilty of "Driving Under the Influence," a violation of Section 316.193, Florida Statutes (1987). In that case, the nurse was involved in a traffic accident involving property damage to other vehicles and personal injuries to herself. In Haischer, the nurse pled guilty and was adjudicated guilty of a lewd and lascivious act in the presence of a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the child's presence but without intent to commit sexual battery upon the child, under Section 800.04, Florida Statutes (1981). Then-Hearing Officer Robert T. Benton II concluded that the nurse's crime was not work-related,

    but because there was uncontroverted testimony that her crime was directly related to the ability to practice nursing, he held that the nurse had been proven to have violated Section 464.018(1)(c), Florida Statutes. The Board of Nursing's Final Order accepted Mr. Benton's findings of fact and conclusions of law, but rejected his recommendation of a two year license suspension, in favor of revocation.

20. The instant case demonstrates no competent evidence that Petitioner's conviction directly relates to the practice of nursing or the ability to practice nursing.

21. Respondent was not practicing nursing or even in a professional health care environment at the time of the vehicular homicide.

22. At base, Respondent was convicted of being a driver at fault in an automobile accident, and there is no reason to suppose that the severe penalty of professional license revocation sought by the Agency will protect patients or deter nurse-behavior.

23. Respondent has nursing skills that are vital to the public and to her own rehabilitation through work release. The chance of a repeated vehicular homicide are virtually non- existent.

24. Although Respondent volitionally drove a car which killed someone, there is no evidence whatsoever that she intentionally set out to commit murder as did Dr. Greenwald. Thus, there is no depravity of mind or disregard for human life

    evidenced by the accident itself. Likewise, there is no special danger associated with a practicing nurse driving a car such as was present with Dr. Rush being permitted to prescribe narcotics after having participated in the illegal drug trade.

25. Although Section 782.071 (1993) provided a greater criminal penalty (second degree felony) where it was proven that a driver willingly failed to stop or comply with the requirements of Section 316.027(1), Florida Statutes, than where that element was not proven, Section 782.071(2)'s increased criminal penalty and Section 316.027(1), Florida Statutes1 apply to any and all drivers, not just nurses. Neither statute relates directly to nursing or nurse practice.

26. In this light, and in light of Respondent's 25 years of unblemished professional nurse practice, her testimony to the effect that she would have rendered aid if she had known she had hit someone with her car is insufficient to establish a nexus between the crime of which she was convicted and either "the practice of nursing" or "the ability to practice nursing." There is no reason to suppose, upon the evidence in this case, that Respondent would be guilty of mis-, mal-, or non-feasance in nursing practice or that she would be guilty of poor professional judgment.

27. Therefore, Respondent also is not guilty of Count I of the Administrative Complaint.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Health, Board of Nursing enter a Final Order finding Respondent not guilty of both counts of the Administrative Complaint and dismissing the Administrative Complaint.

DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998.

ENDNOTE

1/ Section 316.027(1) (1993) required all drivers to stop, render reasonable aid, and give driver information when they were involved in an accident.

COPIES FURNISHED:

Craig A. McCarthy, Esquire

Agency for Health Care Administration Post Office Box 1229

Tallahassee, Florida 32317-4229

Barbara Kahn, 0-S00799

Pinellas County Correctional Institution 5205 Ulmerton Road

Clearwater, Florida 33760 Marilyn Bloss, Executive Director

Department of Health Board of Nursing

4080 Woodstock Drive, Suite 202

Jacksonville, Florida 32207

Angela Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004751

Orders for Case No: 97-004751