STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1087

) JANET ANNETTE GARCIA ZELLER, LPN )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came up for hearing in Room 250A of the Hillsborough County Courthouse at 1:30 P.M. on August 25, 1975, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. Julius Finegold, Esquire

1130 American Heritage Building Jacksonville, Florida 32202

For Respondent: Mr. Frederick L. Joiner, Esquire

4616 West Kennedy Boulevard Tampa, Florida

INTRODUCTION

The issue presented for decision at the hearing was whether grounds exist for the suspension of the license of respondent. The Florida State Board of Nursing filed an administrative complaint against respondent charging her with violating F.S. 464.21(1)(b) in that

"1. On or about November 1, 1974, while on duty as a licensed practical nurse at Cor Jusu Convalescent Center in Tampa, Florida, licensee did convert to her own use and consume a certain drug, to-wit: Vistaril, prescribed for a patient, to wit: Mrs. Falty. As a result of said consumption of the drug, licensee became incoherent, unsteady on her feet and was unable to carry out her normal duties."

The attorney for the respondent licensee stipulated that the charges as quoted above were true, but attempted to put into evidence facts tending to mitigate the punishment for such charges.

FINDINGS OF FACT

1. Several days prior to November 1, 1974, respondent had gone to a licensed medical doctor complaining of nervousness and a swollen and painful left leg. This doctor diagnosed her condition as plebitis and prescribed antibiotics and also the drug Darvon for pain. There was no evidence of elevated blood pressure at this time.

   
   

2. On November 1, 1974, the respondent was on duty as a licensed practical nurse at the Cor Jusu Convalescent Center in Tampa, Florida. At approximately 9:00 P.M., the respondent began to have back pains and feel nervous and shaky. The respondent could not remember whether or not she had taken the prescribed drug Darvon, which can produce light-headedness, prior to going on duty that day. Another nurse on duty on the same floor, Ms. Ems, took respondent's blood pressure, which read 140 over 110. The respondent testified that she feared that she was going to have a stroke. She attempted to call her doctor, but could not reach him. She testified that she then called another doctor, Dr. Decobo, who told her to come in to see him the next day. Dr. Decobo testified that he could not remember whether or not he talked to respondent over the telephone on November 1, 1974.

   
   

3. The respondent then decided to and did consume the drug Vistaril, which she thought to be helpful in relieving apprehension. This drug was obtained from those prescribed for a patient, Mrs. Falty. This was not a routine medicine for Mrs. Falty, but was to be administered when needed. Respondent informed nurse Ems that she had consumed the Vistaril.

   
   

4. There was some dispute in the evidence as to the extent of respondent's ability to perform her duties after taking the drug Vistaril. Respondent admitted that she was unsteady and dizzy, but testified that she laid down for awhile and finished her charting. The only evidence of any harm being done by respondent was that a solution was spilled in a patient's room. The other nurse on duty, Ms. Ems, called the Director of Nursing, Ms. Kriston, and she in turn called respondent on the telephone. Ms. Kriston testified that respondent's speech was "slightly slurred". While she could not recall the exact conversation, Ms. Kriston felt that respondent was incoherent because she could not understand why she should go home.

   
   

5. The respondent testified that she did not go home until her shift ended at 11:00 P.M. because she wanted to finish her charting and because she felt that there were too many patients for Ms. Ems to carry alone. She testified that at the time she felt she could carry out her duties until her shift ended.

   
   

6. In retrospect, respondent admitted that she did not use good judgment and that she should have left the hospital at an earlier time.

   
   

7. Respondent received her license as an L.P.N. in 1969. There was no evidence of any prior charges of immoral or unprofessional conduct on her part.

   
   

   CONCLUSIONS OF LAW

   
   

8. On the basis of the stipulation by the licensee of the truth of the charges set forth in the administrative complaint and the evidence adduced at the hearing, the undersigned Hearing Officer concludes that there is clear and convincing evidence to support the allegations of conduct contained in paragraph

   1 of the complaint. The complaint further charges that such conduct constitutes

   a violation of F.S. 464.21(1)(b), which proscribes immoral or unprofessional conduct. It is my conclusion that the evidence does justify a finding that the respondent committed unprofessional conduct when she took a drug prescribed for a patient and remained on duty as a licensed practical nurse while feeling dizzy, unsteady and nervous.

   
   

9. However, there was evidence adduced at the hearing which showed that, other than the spilling of a solution in a patient's room, no harm was done as a result of respondent's condition. There was no evidence that respondent had or now has any problem with drugs nor was there any evidence that respondent had exercised unprofessional conduct in the past. Respondent explained her conduct, which was based upon fear of a stroke and reluctance to leave Nurse Ems on the floor alone, and admitted that she used poor judgment in both taking the drug and remaining on duty after taking the drug Vistaril.

   
   

10. Based upon the foregoing, the following recommendation is tendered.

RECOMMENDATION

While respondent is guilty of unprofessional conduct which is grounds for discipline under F.S. 464.21(1)(b), the evidence adduced at the hearing illustrates substantial mitigating factors which bear directly upon the penalty to be imposed. The event complained of occurred over a period of only two hours, a portion of which time respondent spent lying down. No patient was harmed during this two hour period.

The penalty of suspension of a professional license should always be sparingly and cautiously used. Pauline v. Borer, 274 So.2d 1 (Fla. 1973). It is my conclusion that the record in this case demonstrates that suspension would be too harsh a penalty for this respondent, and it is recommended that the petitioner Board of Nursing place respondents on probationary status for a period of six months, with appropriate sanctions and/or reports, as prescribed by the Board within its discretion. Such a penalty would adequately safeguard and protect the public health, maintain the dignity of the nursing profession and sufficiently punish the licensee commensurate with her conduct.

Respectfully submitted and entered this 5th day of September, 1975, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mrs. Geraldine B. Johnson, R.N. Ms. Janet G. Zeller Investigation and Licensing 122 Brentridge Drive 6501 Arlington Expressway, Brandon, Florida 33511

Jacksonville, Florida 32211

Julius Finegold, Esquire Frederick L. Joiner, Esquire 1130 American Heritage Build. 4616 West Kennedy Boulevard Jacksonville, Florida 32202 Tampa, Florida 33609

Docket for Case No: 75-001087

Orders for Case No: 75-001087