STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-3258PL

)

ELOISE DUNLAP JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge, Fred L. Buckine, held a formal hearing in the above-styled cause on October 2, 2000, in Courtroom A, Pinellas County Courthouse, 545 First Avenue, North, St. Petersburg, Florida.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Ford Knox Building Three, Suite 3231 Tallahassee, Florida 32308

For Respondent: Eloise Dunlap Jones, pro se

2001 Walton Street, South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Eloise Dunlap, Jones, licensed registered nurse, should be disciplined

on charges alleged in the Administrative Complaint filed by Petitioner, The Department of Health, Board of Nursing, (hereinafter "Agency"), in Case No. 00-04174.

Essentially, the charges are that on April 25-26, 1999, during the 11:00 P.M. to 7:00 A.M. shift, while employed by Suncoasts Manor Nursing Home (hereinafter Suncoast) Respondent's residential care for patient K.M. was below the minimal standard of acceptable and prevailing nursing practice, as defined by Florida Statutes, 464.018(1)(h).

Specifically, whether the conduct of RN Jones, who came on midnight duty at 10:45 p.m., was briefed by the evening duty nurse of K.M.'s condition, and upon personal evaluation observed K.M., who suffered a previous stroke and cerebrovascular accident, with protruding tongue, droopy left face, slight weak left hand grip, and normal vital signs, and who then determine to continue monitoring K.M. throughout the night rather than immediately call the resident physician, is conduct that is a departure from or, failure to conform to, the minimal standards of acceptable and prevailing nursing practice.

PRELIMINARY STATEMENT

On August 9, 2000, the Agency filed Administrative Compliant No. 99-04174 against Respondents, Eloise Dunlap Jones, licensed registered nurse (hereinafter RN), and Administrative Complaint No. 99-04246 against Angela Bynum Robinson, licensed

practical nurse (hereinafter LPN). Respondent Eloise Jones disputed the charges and requested a formal administrative proceeding.

On August 14, 2000, the Agency filed its Motion to consolidate Administrative Complaint Nos. 99-04147 and 99-04246, on the basis that both Complaints arose out of the same events which occurred on April 25 and April 26, 1999. On August 23, 2000, an order was entered granting consolidation of both Complaints.

The Agency advised Department of Administrative Hearings that Administrative Compliant No. 00-4246 (DOAH Case No. 00- 2903), Department of Health, Board of Nursing vs. Angela Bynum

Robinson, had been dismissed, nollo prosequi. On September 27, 2000, an order granting dismissal of Administrative Complaint No. 00-4246, Department of Health, Board of Nursing vs. Angela

Bynum Robinson, was entered.

At the final hearing, Petitioner presented the testimony of John C. Backe, Jr., M.D.; Melissa Ward, Medical Records Custodian of St. Anthony's Hospital; Linda Hetrick, Medical Records Custodian of Suncoast; Rose Shaw, Certified Nurse Assistant (hereinafter CNA); Emma Ford, CNA; Margaret Edwards, License Practical Nurse (hereinafter LPN); Angela Bynum Robinson, LPN; and Beverly Horan, Registered Nurse (hereinafter RN), Director of Nurses at Suncoast. All witnesses, excepting

Melissa Ward, are employees of Suncoast. Beverly Horan, RN, was accepted as an expert in nursing and standards of nursing practice. Petitioner's Exhibits 1-4 were admitted into evidence. Respondent testified on her own behalf and offered two exhibits. One of Respondent's proffered exhibits was admitted into evidence over Petitioner's objection.

The Court Reporter filed the transcript of this hearing on October 6, 2000. Petitioner filed its Proposed Recommended Order on October 27, 2000. Respondent filed no proposed recommended order.

FINDINGS OF FACT

Respondent admitted facts 1-6. Findings of fact 7 and thereafter are based on the evidence or the lack of evidence of record.

1. Petitioner is a state agency charged with the regulation of the practice of nursing pursuant to Chapters 20 and 456, formerly 455, and 464, Florida Statutes.

2. Pursuant to authority of Section 20.43(3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint investigation and prosecutorial services as required by the Division of Medical Quality Assurance, counsel or boards as appropriate, including the issuance of emergency orders of suspension or restriction.

3. Respondent is Eloise Dunlap Jones, a licensed registered nurse in the State of Florida, having been issued license number RN 35822-2. At all times material hereto, Respondent was employed by Suncoast working only on Sundays and Mondays. On April 25 and 26, 1999, from 11:00 p.m. to 7:00 a.m., during the course of employment Respondent was responsible for the residential care of Patient K.M., (hereinafter K.M.).

4. K.M. was admitted to Suncoast May on May 1, 1997, from Bayfront Rehabilitation following a left cerebrovascular accident, (hereinafter CVA), that left him with several problems: some right side and facial paralysis, inability to speak clearly, blindness in the right eye, and depression.

5. K.M., at some unspecific time during the morning of April 26, 1999, experienced a second stroke and heart attack. K.M.'s observed condition was a decreased level of consciousness, weakness in his left extremity, inability to communicate, and some tongue protrusion. The resident physician and two consulting doctors confirmed that K.M. had suffered a second stroke and mild heart attack in their post-CVA evaluation reports.

6. Rose Shaw, CNA, on the 3:00-11:00 p.m. shift, while on her 10:30 p.m. rounds found K.M. non-responsive to both her touch and verbal commands. Rose Shaw requested duty nurse, Margaret Edwards, LPN, to come observe and examine K.M. Upon

   arrival to K.M.'s room Margaret Edwards found K.M. initially unresponsive to her verbal commands; however, a few minutes later K.M. became somewhat more responsive. Examination revealed that K.M.'s vital signs were normal and Rose Shaw decided to monitor K.M. until the next shift arrival.

7. Respondent arrived at K.M.'s room approximately 10:45- 10:50 p.m. to commence her 11:00 p.m.-7:00 a.m. shift. Margaret Edwards gave Respondent a verbal report on K.M.'s condition. Rose Shaw recalled that during that time period, K.M. put up his hand and made "yeh," "yeh"-like statements. When requested to squeeze Respondent's hand K.M. was able to do so. Rose Shaw overheard Respondent tell Edwards that Respondent thought K.M. had suffered a mini stroke or TIA. Respondent admits the statement to be her true diagnosis based upon her observation and examination of K.M. Respondent and Edwards discussed calling the physician and it was agreed by Margaret Edwards and Respondent that Respondent would continue to closely monitor

   K.M. throughout the night, and should K.M.'s condition change the resident physician would be called.

8. Emma Ford, CNA, on the 11:00 p.m.-7:00 a.m. shift, entered K.M.'s room at approximately 11:30 p.m. and found him lying cross-wise in bed, wet from urine, and she contacted Respondent. Respondent and Emma Ford returned to K.M.'s bed and after drying him, wiping his mouth, cleaning and repositioning

   him in bed, Respondent advised Emma Ford of K.M.'s condition when Respondent came on duty and requested Emma Ford to monitor

   K.M. throughout the night. During the night, Emma Ford noticed no change in K.M.'s condition from the state she found him upon arrival on duty, except for some restlessness when sleeping.

9. Angela Robinson, LPN, charge nurse on duty April 26, 1999, during the 11:00 p.m.-7:00 a.m. shift, was summoned by Respondent at approximately 1:45 a.m. for an examination of K.M. and for Angela Robinson to render her opinion on K.M.'s condition and status. Angela Robinson's observation and examination of K.M. found him lying on his left side, skin warm and dry, alert and responsive. Angela Robinson opined that Respondent should continue monitoring K.M. and if Respondent saw a change in K.M.'s condition, at that time Respondent should call the resident physician.

10. Respondent believed that Angela Robinson, having worked at Suncoast for three years, was more familiar with K.M.'s normal condition than Respondent. At the hearing Respondent asked Angela Robinson if she had worked with K.M. during daylight hours and thus, did she see any change in his condition. Angela Robinson testified that she worked during the day; however, she did not work much with K.M. and did not notice any changes. Angela Robinson testified further that it was not unusual for K.M.'s tongue to protrude and his left facial

    drooping was always evident. Angela Robinson could not recall whether Respondent told her about any nurse's note entries.

11. Beverly Horan, RN, director of nursing at Suncoast, testified that upon her arrival on April 26, 1999, she reviewed the daily Director of Nursing's 24-hour report which contained K.M.'s situation. Beverly Horan, RN, conducted a complete internal investigation, to include a request that Respondent prepare an hour-by-hour activity report of Respondent's observation of and actions with patient K.M. In Beverly Horan's office and presence, Respondent prepared an hour-by-hour activity report as requested by Beverly Horan (Respondent's Exhibit "A"). Beverly Horan's internal investigation included an interview of all nurses on duty during both the 3:00 p.m.- 11:00 p.m. and ll:00 p.m.-7:00 a.m. shifts; reviewed K.M.'s nurse's notes, (Petitioner's Exhibit 4), and review of Respondent's requested detailed, hour-by-hour activity account of Respondent's activities with and observations of K.M. during Respondent's time on duty,(Respondent's Exhibit "A").

12. Beverly Horan, qualified as Petitioner's expert on the minimum standards of acceptable and prevailing nursing practice, opined that based upon her personal interviews of all nurses having contact with K.M.; review of K.M.'s nurse's notes and review of Respondent's requested hour-by-hour written activity report notes, that K.M. had suffered difficulties on the late

    part of the 3:00 p.m.-11:00 p.m. shift on April 25, 1999. Additionally, Beverly Horan stated that K.M.'s change of condition should have been observed by Margaret Edwards, and because of his change of condition, Margaret Edwards should have sent K.M. out or call the resident physician. Beverly Horan opined further that because Margaret Edwards did not send K.M. out or call the physician, Beverly Horan expected Respondent to do so upon her arrival on duty for the ll:00 p.m.-7:00 a.m. shift.

13. Beverly Horan further opined that Margaret Edwards' failure to call the resident physician or send K.M. out, after observing his protruding tongue, slow response, weakness of left extremity and loss of consciousness, was conduct that fell below the minimum standards of acceptable and prevailing nursing practice.

14. Beverly Horan further opined that because Margaret Edwards failed to send K.M. out and failed to call the resident physician, the duty to immediately send K.M. out or immediately call the resident physician fell upon Respondent. According to Beverly Horan Respondent's failure to immediately send K.M. out or call the resident physician upon coming on shift constitutes conduct that fell below the minimum standards of acceptable and prevailing nursing practices.

15. Respondent, at approximately 7:00-15 a.m., April 26, 1999, intercepted Dr. Backe during his morning rounds and requested that he check K.M. Upon examination by Dr. Backe,

    K.M. was transported from Suncoast to St. Anthony's Hospital.

    
    

16. Dr. Backe, in the St. Anthony's Hospital admission report, found that K.M. apparently had no problem during the night of April 25, 1999; however, on the morning of April 26, 1999, there were differences noted in his condition. K.M. was nonverbal, showed a protrusion of the tongue to the right and a rather marked left-side weakness. Dr. Backe, Dr. Pyhel and

    Dr. Weiss agreed with the findings and suggestions that K.M.'s condition indicated a new cerebrovascular accident. The physicians' collective assessment of K.M. was: (1) acute right cerebrovascular accident on top of old cerebrovascular accident with some question whether this could be embolic, (2) acute myocardial infraction, (3) past left cerebrovascular accident with right hemiplegia and depression, and (4) new right hemispheric stroke.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.571 and Chapter 20.43, Section 464, Florida Statutes.

18. In proceedings of this nature, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 935 (Fla. 1999); Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

19. " 'Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

20. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the Administrative Complaint. Cottrill v. Department of Insurance,

    685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v.

    Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2nd DCA 1984).

21. Section 464.018(2), Florida Statutes, empowers the Board of Nursing to revoke, suspend, or otherwise discipline the license of a nurse who is found guilty of any one of the acts enumerated in that section.

22. The sole charge against Respondent in the Administrative Complaint is that, by reason of or lack of specified actions alleged in the complaint, Respondent has violated Section 464.018(1)(h), Florida Statutes, by "fail(ure) to recognize signs consistent with a stroke, fail(ure) to timely and properly respond to those signs, and fail(ure) to report those signs to resident K.M.'s physician in a timely manner." The cited statutory provisions authorize the Department of Health, Board of Nursing to take disciplinary action against a nurse on the following grounds:

    (h) Unprofessional conduct, which shall include, but not 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.

    
    

23. In the final analysis, the charge against Respondent is one of "failure to properly diagnose" K.M.'s condition upon arrival on duty at 10:45 p.m. on April 25th and Respondent's continued failure to properly diagnose K.M.'s condition through April 26, 1999. Nursing diagnosis standards are contained in Section 464.003 (3)(d), Florida Statutes.

    (d) "Nursing diagnosis" means the observation and evaluation of physical or mental conditions, behaviors, signs and symptoms of illness, and reactions to treatment and the determination as to whether such conditions, signs, symptoms, and reactions represent a deviation from normal."

    
    

24. The proffered evidence must address the initial issue of what was the patient's normal or usual condition on April 25, 1999, at or before 10:45 p.m. Second, proffered evidence must address the issue of what signs, symptoms, behavior and mental condition were exhibited by K.M. that were different from, or in addition to, his normal or usual condition so as to indicate a change of condition. Third, evidence must address the issue of whether the attending nurse observed, diagnosed, or misdiagnosed those conditions exhibited by the patient which were evidence of a change from his prior condition. Finally, evidence must answer the question whether the attending nurse's reaction to the changed condition, signs and symptoms deviated from the normal.

25. Petitioner's evidence demonstrated that Respondent's 10:45 p.m. nurse's diagnosis, observation and evaluation of K.M.'s urine wet bed, droopy face, slow response to verbal commands, and tongue protrusion and normal vital signs was the condition in which K.M. was initially observed by Respondent. On this point, the credible evidence fails to establish, by a

    clear and convincing standard, that a protruding tongue, facial drooping, weakness in left extremity, and normal vital signs were not resulting difficulties from K.M.'s prior cerebrovascular accident and stroke. Rose Shaw, during her 3:00 p.m.-11:00 p.m. shift, recalls that K.M. was responding when she checked on him. Margaret Edwards, during her 3:00 p.m.-11:00

    p.m. shift, recalls K.M.'s initially being unresponsive to verbal commands and later somewhat more responsive when she observed him. Emma Ford, during her ll:00 p.m.-7:00 a.m. shift, recalls that K.M. never responds, never talks and sometimes shakes his head to verbal inquiries and rarely make eye contact. Angela Robinson, during her ll:00 p.m.-7:00 a.m. shift, recalls that K.M.'s usual condition was tongue hanging out and some left side facial drooping. The credible evidence presented by Petitioner does not produce a firm belief sufficient to establish a firm conviction without hesitance that the resulting condition from K.M.'s first stroke and the specific signs exhibited on April 26, 1999, were exclusively signs of a pending stroke and were not, in part if not all, the result of his prior stroke.

26. The evidence establishes that K.M. suffered a prior right cerebrovascular accident and stroke which left him with several difficulties, such as weakened response and limited ability of movement, tongue protrusion, right eye closure, and

    speech impediment. There was evidence in Dr. Backe's report that K.M. underwent rehabilitation; however, no evidence was presented regarding the effect rehabilitation had upon K.M.'s condition.

27. The second question is whether Respondent's response to K.M.'s observed condition deviated from the normal response. The evidence showed that Respondent, upon entering K.M.'s area at approximately 10:45-50 p.m. on April 25, 1999, (1) was briefed by the attending nurse, Margaret Edwards, who had completed her examination of K.M.; (2) Respondent then conducted her examination of K.M. consisting of verbal command inquiries, hand squeezing, vital sign evaluation and discussion of the appropriate reaction to K.M.'s condition with Margaret Edwards; and (3) after discussion with Margaret Edwards, Respondent determined she would continue to "closely monitor" K.M. just as Margaret Edwards had before determined "closely monitoring" as the appropriate response to K.M.'s exhibited signs and condition prior to and at approximately 10:45-10:50 p.m., April 25, 1999.

28. There was no testimony presented nor do the nurse's notes contain information describing the condition of K.M. during the period preceding his April 25-26 difficulties. Beverly Horan, Petitioner's expert, opined that K.M. had his difficulties "some time during the late part of the

3:00-11:00 p.m. shift on April 25, 1999". Drs. Backe, Phyel and Weiss agreed, in their April 26, 1999, report, that K.M. "had no problems during the night, (April 25th); however, on this morning (April 26), there were differences noted in his condition." Respondent, on the morning of April 25, observed K.M.'s condition, and requested

Dr. Backe to examine K.M. Rather than a "failure to report these signs to resident . . . physician in a timely manner"; the evidence shows that Respondent observed and reported K.M.'s condition changes to Dr. Backe in the morning of April 26, when, per the doctor's St. Anthony Hospital report, K.M. experienced his difficulties. Consideration of the totality of Petitioner's evidence presented at the final hearing, leads to the inescapable conclusion that Petitioner failed to carry its burden of proof by evidence that is clear and convincing and the charges against Respondent, Eloise Dunlap Jones, RN, should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that the Department of Health, Board of Nursing issue a final order finding Respondent, Eloise Dunlap Jones, RN, not guilty of violation of Section 464.018(1)(h), Florida Statutes.

DONE AND ENTERED this 17th day of November, 2000, in

Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 17th day of November, 2000.

COPIES FURNISHED:

Eloise Dunlap Jones

2001 Walton Street, South

St. Petersburg, Florida 33712

Diane K. Kiesling, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3231 Tallahassee, Florida 32308

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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

Board of Nursing Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

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: 00-003258PL

Orders for Case No: 00-003258PL