STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-2006

) SHELBA A. SCHUMAN STEVENS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 13, 2000, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Room 3231A Tallahassee, Florida 32308

For Respondent: Thomas A. Delegal, III, Esquire

Randy Rogers, Esquire Delegal & Merritt, P.A.

424 East Monroe Street Jacksonville, Florida 32202-2837

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and Rules 64B9-8.005(2) and

64B9-8.005(12), Florida Administrative Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 2, 1998, Petitioner Department of Health, Board of Nursing (Petitioner) filed an Administrative Complaint against Respondent Shelba A. Schuman Stevens (Respondent). Said complaint alleged that Respondent was guilty of violating Section 464.018(1)(h), Florida Statutes, and Rules 64B9-8.005(2) and 64B9-8.005(12), Florida Administrative Code.

On or about February 23, 2000, Respondent filed an Election of Rights Form and an Answer to Administrative Complaint with Petitioner. In these documents, Respondent denied the allegations in the Administrative Complaint and requested a formal administrative hearing.

Petitioner referred this matter to the Division of Administrative Hearings on May 11, 2000. On May 17, 2000, the Division of Administrative Hearings issued an Initial Order.

The parties filed a Response to Initial Order on May 22, 2000. The undersigned issued a Notice of Hearing dated May 30, 2000, scheduling the case for formal hearing on July 13, 2000.

On June 7, 2000, the parties filed a Joint Motion to Expedite Discovery. This motion was granted by Order dated June 8, 2000.

On June 27, 2000, Respondent filed a Motion for Protective Order. In this motion, Respondent asserted her right to refuse to answer a request for admissions, interrogatories, and a request for production on grounds that such responses might incriminate her, citing State ex rel Vining v. Florida Real

Estate Commission, 281 So. 2d 487 (Fla. 1973) and Department of Professional Regulation v. Echlov, 14 F.A.L.R. 3983 (1992).

Petitioner did not file a motion to enforce the pending discovery requests.

On July 5, 2000, the parties filed a Joint Prehearing Stipulation.

During the hearing, Petitioner presented the testimony of six witnesses. One of Petitioner's witnesses, Dr. Stiehl, was qualified and accepted as an expert in nursing and standards of nursing practice. Petitioner's Exhibits P1-P5, P9-13, and a portion of P14 were accepted into evidence. Petitioner's Exhibits P6-P8 and the Florida Protective Service System Report attached to P-14 are hereby accepted into evidence to the extent that they do not violate Section 120.57(1)(c), Florida Statutes.

Respondent testified on her own behalf. She offered Respondent's Exhibits R1 and R2, which are hereby accepted into evidence to the extent they do not violate Section 120.57(1)(c), Florida Statutes.

The court reporter did not file a copy of the transcript until September 1, 2000. The parties filed their Proposed Findings of Fact and Conclusions of Law on September 11, 2000.

FINDINGS OF FACT

1. Petitioner is the agency charged with the regulatory and prosecutorial duties related to nursing practice in Florida.

2. Respondent is a licensed practical nurse in Florida, holding license no. PN 0481631. From May 13, 1992, to April 11, 1997, she was employed by Southlake Nursing and Rehabilitation Center (Southlake).

3. On April 9, 1997, Respondent worked as a nurse on the 3:00 p.m. to 11:00 p.m. shift on Southlake's A wing. T.C. was a patient of another nurse on that wing.

4. Around 7:00 p.m., Respondent began administering medications to her patients. Melody Perez, the ward clerk, informed Respondent that T.C. needed assistance because he was in respiratory distress. T.C. was sitting in the hall, six to eight feet from Respondent. Respondent went over to T.C., checked to make sure that there was oxygen in his tank and that his nasal cannula was in place. Respondent saw no outward symptoms of T.C. being in acute respiratory distress such as rapid breathing or anxiety. Respondent told Ms. Perez that she could not help T.C. because he was not her patient. She told

   T.C. that his nurse, who was on break and had the keys to the other medication cart, would be back in a few minutes.

5. Respondent thought that T.C. just wanted his medications. She did not perform a nursing assessment, as that term is commonly understood in the practice of nursing. She did not take T.C.'s vital signs, count his respirations, or listen to his chest. After telling him to wait for his nurse, she just walked away.

6. On April 10, 1997, T.C. and another resident complained to Southlake's administrative staff about Respondent's failure to help T.C. Southlake initiated an investigation based on these complaints.

7. Conchita Griffin, Southlake's Assistant Director of Nursing, conducted the investigation. As was the custom and procedure at Southlake, Ms. Griffin interviewed T.C., the second complaining resident, Ms. Perez, and two certified nursing assistants (CNAs) who were on duty during the incident.

   Ms. Griffin then compiled a written report of the incident and submitted it to Southlake's administration. Based on her investigation, and after considering Respondent's disciplinary history at Southlake, Ms. Griffin recommended that Southlake terminate Respondent.

8. Southlake had written policies requiring a nurse to attend to any resident who needed help. The policies require a

   nurse to assess a patient complaining of respiratory distress by taking the patient's vital signs, listening to respirations and to the chest for congestion. According to the policies, a nurse should attend to any patient in distress, calling the patient's assigned nurse, facility management, or 911 if needed. There are no circumstances where the nurse should do nothing.

9. On April 11, 1997, Respondent was called in and asked about her side of the incident. She admitted that she looked at

   T.C. and that he did not appear to be in distress. She acknowledged that she did nothing except tell T.C. that his nurse would be back soon.

10. When informed that she was being terminated, Respondent refused to sign the disciplinary form. She was asked to leave the premises immediately.

11. Sharon Wards-Brown, Southlake's nursing supervisor for the evening shift in question, accompanied Respondent to A wing to retrieve her belongings. When Respondent arrived on the A wing, she went into the medication room, picked up T.C.'s chart, removed some pages from the chart, and went to the fax machine just outside the medication room.

12. Ms. Wards-Brown and Beverly Burstell, the nurse manager who was on the floor checking some charts, saw Respondent remove the pages from T.C.'s chart and go to the fax machine. Both of them told Respondent that she could not remove

    or copy anything from the resident's chart. Respondent told Ms. Wards-Brown and Ms. Burstell not to touch her.

13. Each page of nurses' notes in the patients' charts have a front and back side. Respondent stood at the fax machine for only a couple of seconds, not long enough to copy both sides of one page of nurses' notes. She certainly did not have time to copy both sides of all of the pages that she had removed from T.C.'s chart.

14. Respondent's testimony that she had time to copy some of the nurses' notes from T.C.'s chart is not persuasive. Her testimony that she left all of the original pages in the fax machine is not credible.

15. After being prevented from copying all of the pages that she had removed from T.C.'s chart, Respondent ran into the bathroom. A few seconds later she came out of the bathroom with papers and her purse in her hand.

16. Ms. Wards-Brown called Clara Corcoran, Southlake's administrator, and Ms. Griffen for assistance. All three of them followed Respondent out of the building, demanding that she return the documents that she had removed from T.C.'s chart. Respondent repeatedly told them not to touch her.

17. Ms. Corcoran and Ms. Griffen followed Respondent into the parking lot. Respondent got in her car but Ms. Corcoran and Ms. Griffen blocked Respondent from closing the car door and

    continued to demand the return of the papers. Respondent finally drove forward over the cement bumper and the grass in order to leave with the papers.

18. Meanwhile, Ms. Wards-Brown returned to the A wing to examine T.C.'s chart. Ms. Griffen also examined the chart within two to three minutes after Respondent left the floor. The chart was still open on the desk.

19. Ms. Wards-Brown and Ms. Griffen discovered that T.C.'s nurses' notes for April 9, 1997, were missing. They knew the notes were missing because both of them had seen the notes in the chart the day before when they reviewed the chart as part of the investigation.

20. Respondent's Exhibit 2 is a copy of the front and back of one page of T.C.'s nurses' notes. The last note is dated March 27, 1997. It is not plausible that T.C.'s chart had no nurses' notes from that time until after April 10, 1997.

21. Even if Respondent did not remove any of T.C.'s original nurses' notes from the premises, she violated the acceptable standards of nursing care by copying the front and back of one page and removing the copies from the facility.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

23. Section 464.018(1)(h), Florida Statutes, makes it a violation of the Nurse Practice Act for a licensee to engage in "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 "

    
    

24. Rule 64B9-8.005, Florida Administrative Code, defines unprofessional conduct in relevant part as follows:

    (2) Administering medications or treatment in a negligent manner; or

    
    

    * * *

    
    

    (12) Acts of negligence, gross negligence, either by omission or commission . . . .

    
    

25. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated the above- referenced statute and rules when she failed to assist a patient who was asking for assistance and when she removed and/or copied pages from a patient's chart. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

26. In this case, Petitioner has met its burden.

    
    

    Respondent had a duty to fully assess and assist T.C. even if he was not in "acute" respiratory distress. Respondent's failure to perform a proper assessment to determine why he felt he was in distress was negligent. Her failure to properly assess how well T.C. was breathing was grossly negligent. At the very

    least, she should have recorded his vital signs and noted the nature of his respirations by listening to his chest. Clear and convincing evidence indicates that Respondent acted unprofessionally in this regard.

27. Respondent violated acceptable nursing practice by removing and/or copying pages from T.C.'s chart. The chart is a legal document; it is a violation of patient confidentiality to remove even a copy of a document from a chart without the patient's consent. Respondent's conduct in this regard clearly and convincingly constitutes unprofessional conduct.

28. Rule 64B9-8.006, Florida Administrative Code, details Petitioner's disciplinary guidelines and sets forth the range of penalties as well as the aggravating and mitigating circumstances.

29. Rule 64B9-8.006(3)(i), Florida Administrative Code, specifies the penalty for unprofessional conduct in the delivery of nursing services to be a fine ranging from $250 to $1,000 plus from one year of probation to suspension of license until proven safe to practice, followed by probation with conditions.

30. Multiple counts of violations of a statute and rules are grounds for enhancement of penalties here. Rule 64B9- 8.006(2), Florida Administrative Code. Additionally, clear and convincing evidence supports the aggravating circumstance of

Respondent's failure to make efforts at rehabilitation. Rule 64B9-8.006(4), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order fining Respondent

$1,000 and suspending her license for one year, followed by two years of probation with appropriate conditions.

DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2000.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Room 3231A Tallahassee, Florida 32308

Thomas A. Delegal, III, Esquire Randy Rogers, Esquire

Delegal & Merritt, P.A.

424 East Monroe Street Jacksonville, Florida 32202-2837

Ruth R. Stiehl, Ph.D., R.N. Executive Director

Board of Nursing Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4042 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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: 00-002006

Orders for Case No: 00-002006