STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-2547

)

SHEILA KEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 26, 2000, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration Building 3, Room 3231A

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Sheila Key, pro se

3561 Dignan Street

Jacksonville, Florida 32254 STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a practical nurse should be disciplined for the reasons given in the Administrative Complaint.

PRELIMINARY STATEMENT

This matter began on March 13, 2000, when Petitioner, Department of Health, Board of Nursing, issued an Administrative Complaint alleging that Respondent, Sheila Key, a licensed practical nurse, had violated Section 464.018(1)(h), Florida Statutes (1999), by engaging in unprofessional conduct while working at a nursing home in October 1999.

Respondent denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes (1999), to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on June 21, 2000, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated July 19, 2000, a final hearing was scheduled on September 26, 2000, in Jacksonville, Florida. At the final hearing, Petitioner presented the testimony of Eleanor McKinnon, a registered nurse specialist and accepted as an expert in nursing and standards of nursing practice; Sherryl

1. Goode, an administrative assistant at Florida Christian Health Center; Colleen O'Connor, medical records clerk at Florida Christian Health Center; Marilyn Widhalm, assistant director of nursing at Florida Christian Health Center and accepted as an expert in nursing and standards of nursing practice; and Cheryl Woodard, director of nursing at Florida Christian Health Center and accepted as an expert in nursing and standards of nursing

   practice. Also, it offered Petitioner's Exhibits 1-11, which were received in evidence. Exhibit 2 is the deposition testimony of Rose Dalton, a licensed practical nurse and accepted as an expert in nursing and standards of nursing practice. Respondent testified on her own behalf.

   The Transcript of the hearing was filed on October 18, 2000.

   
   

   Proposed Findings of Fact and Conclusions of Law were filed by Petitioner on October 30, 2000, and they have been considerd by the undersigned in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   1. In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), has alleged that Respondent, Sheila Key, a licensed practical nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a practical nurse at Florida Christian Health Center (FCHC), in Jacksonville, Florida, in the Fall of 1999. Respondent holds license number PN 0792331 issued by the Board.

   2. The allegations against Respondent arose as a result of a routine Agency for Health Care Administration (AHCA) licensure survey of the facility on October 1, 1999. On that date, an AHCA survey team found an elderly resident with a head injury whose nursing notes had not been properly charted; a resident in the recreation area with blood on her gown and requiring medical

      attention; and a third resident with unattended sores on his ankles. All were under the direct care of Respondent.

   3. As to the first resident, the Board charged Respondent with failing to document the resident's head injury or condition in her nursing notes. In the second case, she was charged with failing to notify a physician or other responsible party in a timely manner about the injury and applying "steri-strips without a physician's order." Finally, Respondent was charged with failing and refusing "to comply with the surveyors' request" that she "remove [the patient's] socks so the ankle area on his feet could be observed." Each of these charges will be discussed separately below.

   4. Around 5:15 p.m. on September 30, 1999, A. B., an eighty-seven-year-old male resident at FCHC, acidentally fell and sustained an injury to his head that required emergency room treatment. A. B. returned to FCHC from the emergency room sometime after 9:00 p.m.

   5. Respondent reported for duty at 7:00 p.m. that same evening. Although good nursing practice dictated that Respondent promptly perform a neurological check on A. B. after he returned from the hospital, she failed to do so and did not perform one until 7:00 a.m. the next day (October 1). Even then, she failed to document any of her findings in the resident's nursing notes. By failing to document "the fall or his condition" in the nursing notes until the morning following the injury, Respondent failed

      to conform to the minimal standards of acceptable prevailing nursing practice.

   6. Around 7:40 a.m. on October 1, 1999, M. C. suffered a laceration on her neck while being transferred from her bed to a wheelchair. Respondent applied steri-strips to the wound, but she did not have a physician's order to do so. Also, she failed to document the neck wound or her treatment of the wound until 10:45 a.m., or more than three hours later. Finally, M. C.'s physician was not notified about the injury until around 12:15 p.m.

   7. FCHC has a written policy entitled "Changes in a Resident's Condition Status," which requires that the nurse promptly notify the resident, the resident's physician, and the resident's family of changes in the resident's condition. Thus, a nurse must notify the resident's attending physician and family whenever the resident is involved in any accident or incident that results in an injury. If the injury is of an emergency nature, such notification is required within thirty minutes to an hour. The evidence establishes that M. C.'s injury was of a type that required notification within this short time period.

   8. By waiting for almost five hours to notify M. C.'s physician about the injury, Respondent failed to conform with minimally acceptable nursing practices. She also violated the same standard by applying steri-strips to the injury without a doctor's order. Finally, she failed to conform to minimally

      acceptable nursing practices by not charting the injury in the nursing notes until more than three hours had elapsed.

   9. During the October 1, 1999, inspection, a member of the survey team asked Respondent to remove the socks and dressings on

      J. R., a resident. The request was made since the team could see a brown discharge on the inner aspects of his socks. Respondent would not do so, and eventually an assistant director of nursing performed that task.

   10. After the socks were removed, the survey team found old dressings through which drainage had soaked. They also observed sores that had thick yellow or serosanguinous drainage. Even though the sores had been there for at least a week or so, dressings had been previously applied, and the soaked socks were clearly visible, Respondent had failed to check the resident and was therefore unaware of his condition. Despite this omission, however, Respondent was only charged with failing and refusing "to comply with the surveyors' request," and not with inappropriate conduct with respect to the care of the resident.

   11. By failing to respond to a reasonable and legitimate request to remove the resident's socks so that a suspicious area could be observed, Respondent failed to conform to minimally acceptable standards of prevailing nursing practice.

   12. Respondent failed to admit responsibility for any of the foregoing violations. As to the resident with the neck wound, Respondent contended that the wound was not serious.

       However, it was serious enough that the resident's physician believed emergency room treatment was necessary. Respondent also contended that the assistant director of nursing (Widhalm) advised her that she (Widhalm) would call M. C.'s physician, an assertion which Widhalm credibly denied. Respondent further contended that she failed to chart A. B.'s nursing notes because the chart was in the hands of the surveyors. Under those circumstances, however, acceptable protocol requires that the nurse request the return of the notes so that essential information can be timely recorded. Finally, Respondent contended that the surveyor had told her that she could finish her "medication pass" before removing the socks and could do so whenever she had time. This assertion is not deemed to be credible.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569 and 120.57(1), Florida Statutes (1999).

   14. Because Respondent's license is at risk, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Hasbun v. Dep't of Health, 701 So. 2d 1235, 1236 (Fla. 3d DCA 1997).

   15. The Administrative Complaint alleges that Respondent violated Section 464.018(1)(h), Florida Statutes (1999), by

       engaging in "unprofessional conduct," as that term is defined by Rule 64B-8.005(13), Florida Administrative Code. That rule defines unprofessional conduct as a "[f]ailure to conform to the minimal standards of acceptable prevailing nursing practice, regardless of whether or not actual injury to the patient was sustained."

   16. By clear and convincing evidence, Petitioner has established that Respondent: (a) failed to document A. B.'s fall or his condition in the nursing notes; (b) failed to notify a physician or other responsible party about M. C.'s condition in a timely manner and applied steri-strips to M. C.'s wound without a physician's order; and (c) failed to remove J. R.'s socks when asked to do so by the surveying team. Therefore, the allegations in the complaint have been sustained. A suggestion that Respondent violated the statute and rule by other misconduct has been rejected since those allegations are not contained in the charging document.

   17. In its Proposed Recommended Order, Petitioner has suggested that Respondent be fined $1,000.00, plus costs of the investigation, that she be given a reprimand, and that she be placed on two years' probation with conditions to be set by the Board. Except for the imposition of investigatory costs, this penalty falls within the range of penalties dictated by Rule 64B9-8.006(3)(i), Florida Administrative Code, and is found to be appropriate. Because the imposition of investigatory costs is

discretionary with the Board, Section 455.227(3), Florida Statutes (1999), this request is referred to the Board for final disposition. Due process considerations require, however, that Respondent be given the opportunity to examine and question the reasonableness of such costs before any are imposed.

RECOMMENDATION

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

RECOMMENDED that the Board of Nursing enter a final order finding that Respondent is guilty of the violations described in the Administrative Complaint. It is further recommended that Respondent be fined $1,000.00, given a reprimand, and placed on probation for two years subject to such conditions as the Board deems appropriate.

DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 7th day of November, 2000.

COPIES FURNISHED:

Ruth R. Stiehl, PhD., R.N., Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Diane K. Kiesling, Esquire

Agency for Health Care Administration Building 3, Room 3231A

2727 Mahan Drive

Tallahassee, Florida 32308

Sheila Key

3651 Dignan Street

Jacksonville, Florida 32254

William W. Large, General Counsel Department of Health

4052 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 a final order in this matter.

Docket for Case No: 00-002547

Orders for Case No: 00-002547