STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

)

PETER DAWBER, R.N., )

)

Respondent. )

Case No. 01-3165PL

)

RECOMMENDED ORDER

On January 25, 2002, a formal administrative hearing was held in this case in Tampa, Florida, before Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Agency for Health Care Administration General Counsel's Office-Practitioner

Regulation

Post Office Box 14229

2727 Mahan Drive, Building 3

Tallahassee, Florida 32317-4229

For Respondent: Richard W. Kearney, Esquire

Kearney & Associates

800 Hingham Street, Suite 201S Rockland, Massachusetts 02370

STATEMENT OF THE ISSUES

The issues are whether Respondent, on or about October 2000, while employed by St. Joseph's Hospital, withdrew controlled substances (Demerol) from the Pysix system for

patients and inaccurately and or incompletely documented the administration and or wastage of said medications, and, if so, what penalty is appropriate for Respondent's failure to conform to minimum standards of acceptable and prevailing nursing practice in violation of Subsection 464.018(1)(h), Florida Statutes.

PRELIMINARY STATEMENT

On July 19, 2001, Respondent, Peter A. Dawber, requested a formal administrative proceeding on the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings on August 13, 2001.

The case was set for hearing on November 6, 2001, in Tallahassee, Florida, but Petitioner, Department of Health, Board of Nursing (DOH), filed a Motion for Change of Venue on October 26, 2001. On November 7, 2001, an Order was entered changing the venue to Tampa, Florida, and rescheduling the final hearing for December 14, 2001. On December 12, 2001, Respondent filed a Motion to Continue that was granted, and the final hearing was rescheduled for January 25, 2002.

At the final hearing, Petitioner, called four witnesses: Artemis Ennocent, Lynn Kelly, Ira J. Kurland, and Sharon Benson. Petitioner's nine exhibits (P1-9) were admitted in evidence.

Respondent testified in his own behalf, and Respondent's exhibit (R1) was admitted in evidence.

The hearing was concluded on January 25, 2002, closing the record with the exception of evidence related to two nurses who were formerly employed by St. Joseph's Hospital and terminated for abuse of protocol regarding unauthorized use of Demerol, to wit: Nurse Erica Bryant (termination in December 2000) and Nurse Schlomberg (terminated in 1999).

The parties, waiving Chapter 120.57, Florida Administrative Procedure, time restrictions, agreed that the time for filing Proposed Recommended Orders would be extended from March 4, 2002 to March 24, 2002. It was agreed and stipulated that any submissions of exculpatory evidence available regarding Nurse Bryant and Nurse Schlomberg would be submitted by a written joint stipulation of the parties. No joint stipulation has been filed.

On March 4, 2002, Petitioner's Proposed Order was filed, and on March 8, 2002, Respondent's Proposed Recommended Order was filed, both of which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence, and the entire record complied therein, the following relevant and material facts are found.

1. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Subsections 120.57(1) and 464.018(1)(h), Florida Statutes.

2. Respondent is, and has been at all times material hereto, a licensed registered nurse (RN) in the State of Florida, having been issued license number RN 3141652 by the Florida Board of Nursing.

3. Respondent, at all times material hereto, was employed by St. Joseph's Hospital (St. Joe's), in Tampa, Florida. At all times material to this case, Respondent was working in the Intensive Care Unit (ICU), wherein is situated a Pysix medication dispensing machine.

4. The Pysix medication dispensing system is comprised of a central control panel located in the office of the hospital's pharmacist. There are multiple outlets located in various units throughout the hospital.

5. Access to medication contained in the several Pysix system outlets is similar in operation to access to money in an ATM machine, to wit: each authorized nurse is given by the hospital a personal password (like personal identification numbers for an ATM). A nurse enters the patient's name (for whom the medication is to be given and logged), then enters their personal password, and enters the desired medication number before the Pyxis machine will dispense the medication. All

   access entries to Pysix and dispensing of prepackaged medication by Pysix are recorded.

6. The amount of medication administered to the patient is required to be recorded simultaneously on the patient care record (PCR) and on the hospital's Medication Administration Record (MAR). These records are required to be maintained and are reviewed periodically by doctors, nursing staff, and staff supervisors for accuracy and quality assurance purposes.

7. It is the policy requirement of St. Joe's hospital that should a nurse not administer the entire amount of medication dispensed under his or her private password to the named patient, the acquiring nurse must retain the "waste" medication (unused medication). The accessing nurse shall then secure the presence of another nurse who shall witness the disposal of the "waste" medication. The nurse disposing of "waste" medication shall then enter into the Pyxis, his/her personal password and the amount of disposed "waste" medication. The witness nurse shall enter his/her personal password as having witnessed the actual "waste" medication disposal.

8. At all times material and specifically in October and November 2001, Lynn Kelly, RN (Kelly), was the nursing manager for the ICU at St. Joe's and was Respondent's supervising nurse. In her capacity as nursing manager, Kelly's responsibilities included the following: hiring, firing, duty scheduling,

   performance evaluation, employee counseling, auditing medical records, quality control, risk management, management investigations, education and policy writing.

9. In her capacity as a supervisor, Lynn Kelly received, reviewed and analyzed monthly reports that detailed controlled medication usage on her unit (ICU). The reports detailed the number of times a nurse accessed the Pysix system for narcotics as compared to the number of days that nurse worked a shift during the month.

10. St. Joe's Hospital developed a standard deviation to be used when analyzing and reviewing records. Should a nurse's number of accesses to Pysix's narcotics fall outside the standard deviation, it was Kelly's duty to check that nurse's assignments to determine, if possible, a reasonable explanation for narcotic accesses beyond the standard deviation guidelines; a particular nurse could have been continually assigned to a particular patient who required more than normal narcotic medication for pain. A cross-check of the patient's medication records (PCR) and the hospital's MAR would be made upon discovery of assess outside standard deviation guidelines.

11. After receiving a report on Respondent's narcotics (Demerol) withdrawals from the Pysix system that were outside the standard deviation, Kelly compared and analyzed Respondent's Pyxis access records to his assigned patients administration

    records with his narcotic waste records, for a two-month period, September 27 through November 2000.

12. Kelly found instances where 25 milligrams and 50 milligrams units of Demerol were accessed by Respondent, but were not administered to the assigned patient. They were not entered as waste, and they were not documented in the MAR records. The discrepancies revealed that between October 2, 2001, and October 23, 2001, Respondent withdrew a total of 1,075 milligrams of Demerol from the Pysix narcotics dispensing system for administration to patients without documenting administering the medications or wasting the medications.

13. Respondent suggested that "someone" could have or did look over his shoulder, observed and remembered his personal password as he typed it in, and later use his password to access the Pysix machine for Demerol. Respondent testified that on many occasions other nurses would come up behind him and instead of his logging out the Pysix machine, he would withdraw their narcotics for them and hand it to them. It was common practice for several nurses to be in the Pysix room at the same time. Respondent's responses and suggestions without other supporting evidence, are insufficient to account for the 1,075 milligrams of Demerol accessed by Respondent, not administered to the assigned patient, and not documented as waste medication as required.

14. Proper and correct documentation of accessed medication is important and essential for the prevention of potential overmedication by a subsequent nurse due to the lack of proper and correct documentation by the preceding nurse in this case, Respondent.

15. The record was left open from January 25, 2002, to March 4, 2002, for subsequent submission of evidence regarding theft of passwords by other employees at St. Joe's during the time material to the allegation in the Administrative complaint; the parties made no subsequent submissions.1

16. Petitioner has proven by clear and convincing evidence that in October 2001 while employed by St. Joe's Hospital, Respondent, using his personal password, withdrew controlled substances from the Pysix narcotics system and did not document, as required, administering the withdrawn controlled substances to the patients for whom the withdrawals were made, and did not document wasting the controlled substances withdrawn.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Subsection 120.57(1) and Subsection 464.018(1)(h), Florida Statutes.

18. The standard of proof required to discipline a licensee is that of clear and convincing evidence. Department

    of Banking and Finance, Division of Securities and Investors Protection v. Osborne Stern and Company, 670 So. 2d 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 295 (Fla. 1987), quoting from Reid v. Florida Real Estate Commission, 188 So. 2d 846, 851, (Fla. 2nd DCA 1996) which stated that:

    The power to revoke a license should be exercised with no less careful circumspection that the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to

    the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

    
    

19. The court further amplified the clear and convincing evidence standard. See 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), the Slomowitz Court said:

    Clear and convincing evidence requires that 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 truth of the allegations sought to be established.

    
    

20. The Administrative Complaint alleges that Respondent, Peter A. Dawber, violated Subsection 464.018(1)(h), Florida Statutes, when the following material allegations occurred:

    On or about October 2000, while employed by St. Joseph's Hospital, Respondent practiced below the minimal acceptable standards of prevailing nursing practice, to wit:

    
    

    Respondent withdrew controlled substances (Demerol) from the Pysix system for patients and inaccurately and or incompletely documented the administration and or wastage of said medications.

    
    

21. Petitioner has met its burden of proof by clear and convincing evidence that Respondent has violated Subsection 464.018(1)(h), Florida Statutes.

22. Subsection 464.018(1)(h), Florida Statutes, grants disciplinary authority to the Department of Health, Board of Nursing, authorizing the penalty of suspension, temporary revocation or permanent revocation of one's nursing license.

    464.018- -

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in section 456.072(2):

       
       

       * * *

       
       

       (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.

       
       

23. Rule 64B9-8.006(3)(i), Florida Administrative Code, provides a penalty range for violations of Subsection 464.018(1)(h), Florida Statutes, of a

    fine from $250 - $1,000 plus from 6 months probation with conditions and CE courses to two year probation with conditions and CE courses.

    
    

24. Rule 64B9-8.006(4), Florida Administrative Code, provides that the Board of Nursing may deviate from the disciplinary guidelines set forth in Rule 64B9-8.006(3), Florida Administrative Code, upon a showing of aggravating or mitigating circumstances, by clear and convincing evidence.

25. Rule 64B9-8.006(4)(a), Florida Administrative Code, provides that several factors may be considered in aggravation of penalty.

    (4)(a) The Board shall be entitled to deviate from the foregoing guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence, presented to the Board prior to the imposition of a final penalty at informal hearing. If a formal hearing is held, any aggravating or mitigating factors must be submitted to the hearing officer at formal hearing. At the final hearing following a formal hearing, the Board will not hear additional aggravating or mitigating evidence.

    
    

    1. Circumstances which may be considered for purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

       1. The severity of the offense.

       2. The danger to the public.

       3. The number of repetitions of offenses.

       4. Previous disciplinary action against the licensee in this or any other jurisdiction.

       5. The length of time the licensee has practiced.

       6. The actual damage, physical or otherwise, caused by the violation.

       7. The deterrent effect of the penalty imposed.

       8. Any efforts at rehabilitation.

       9. Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.

       10. Cost of treatment.

       11. Financial hardship.

       12. Cost of disciplinary proceedings.

    
    

26. The following aggravating factors have been considered.

1. The offense, failure to properly document the administration of controlled substances to patients is severe.

2. Respondent's conduct posed a danger to patients' health.

3. Respondent's conduct occurred repeatedly over a period of time and involved more than a few instances of controlled narcotics accessed by Respondent and unaccounted for by documentation.

RECOMMENDATION

Based on the foregone, it is

RECOMMENDED

That the Board of Nursing enter a final order finding Respondent, Peter A. Dawber, guilty of a violation of Subsection 464.018(1)(h), Florida Statutes, and impose the following discipline on Respondent's license:

1. That Respondent's license to practice nursing in the State of Florida be reprimanded;

   
   

2. That Respondent's license to practice nursing in the State of Florida be suspended;

   
   

3. That the suspension of Respondent's nursing license be stayed and Respondent be placed on probation for a period of two (2) years under the Board of Nursing's standard monitoring terms;

   
   

4. That Respondent be required to practice nursing on a regularly assigned unit only with another registered nurse readily available to provide assistance and monitoring.

   
   

5. That Respondent be prohibited from being self- employed as a nurse or work in a home health setting during the period of probation;

   
   

6. That Respondent be assessed an administrative fine of

   $1,000.00 dollars; and

   
   

7. That Respondent be required to pay the Department of Health's cost of prosecuting this case.

DONE AND ENTERED this 20th day of March 2002, 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 20th day of March, 2002.

ENDNOTE

1/ Respondent's counsel requested more time, when testimony that other nurses voluntarily either resigned or were terminated for reasons relating to unaccounted for Demerol during the time material to this case. Counsel wanted to have that information, once confirmed, considered as evidence in support of

Respondent's opinion that someone did or could have "stolen" his password and/or in penalty mitigation. No supplemental information was filed.

COPIES FURNISHED:

Peter Dawber

99 Hingham Street

Rockland, Massachusetts 02370

Reginald D. Dixon, Esquire

Agency for Health Care Administration

General Counsel's Office-Practitioner Regulation 2727 Mahan Drive, Building 3

Post Office Box 14229 Tallahassee, Florida 32317-4229

Richard W. Kearney, Esquire Kearney & Associates

800 Hingham Street, Suite 201S Rockland, Massachusetts 02370

Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A01 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-003165PL

Orders for Case No: 01-003165PL