vs. ) CASE NO. 75-2047
JEAN S. McARTHUR CONKLIN, )
Respondent. )
A hearing was held pursuant to notice on February 23, 1976 and May 6, 1976 in the above-styled cause at the Hollywood Medical Center, 3600 Washington Street, Hollywood, Florida before Stephen F. Dean, assigned Hearing, Officer of Division of Administrative Hearings.
This matter arose upon the Administrative Complaint and Notice filed by the Florida State Board of Nursing against Jean S. McArthur Conklin, R.N. Said Administrative Complaint alleges that Conklin signed a statement admitting to converting morphine to her own use, to tampering with boxes of morphine, and with -replacing morphine in vials with sterile water; and further that said acts were unprofessional conduct where fore the Board asserted that the license issued to Conklin by the Board should be revoked. Thereafter Conklin requested a formal hearing pursuant to Section 120.57, F.S., and the Board referred the matter to Division of Administrative Hearings to conduct the hearing.
For Respondent: Edward A. Sirkin, P.A.
Whether Jean S. Conklin committed the acts alleged Whether said acts constitute unprofessional conduct.
The Board presented testimony which established that on July 29, 1975, it was discovered that supplies of morphine were missing from Fourth Floor South of Hollywood Medical Center. As a result of this discovery a more thorough inventory of narcotic drugs was conducted and it was determined that a box of
morphine had been opened, its contents removed and the box resealed. This matter was reported to the administration of the hospital who caused an investigation to be conducted by Investigations Unlimited, Inc.
Richard Gottlieb, an employee of investigations Unlimited, Inc., (IUI) conducted polygraph investigations as instructed by Gerald Slocum, owner and president of IUI. The hospital had directed Slocum to polygraph all persons who had had access to the narcotics storage of Fourth Floor South. Among the dozen or so employees polygraphed was Jean Conklin who was the head nurse on Fourth Floor South. Conklin was advised by her supervisor that all employees with
,access were to be polygraphed and that she (Conklin) was next. Conklin was not advised that she could refuse, that any evidence or statements obtained could be used against her or that she had a right to remain silent. Following her first examination, Gottlieb determined that Conklin's test indicated deception. On the day following the first test, Conklin was again polygraphed. On both occasions, Conklin signed a document designated "Authority for Polygraph Examination". A copy of the authorization executed for the second examination was introduced as Exhibit C. Following the second examination, upon being advised that she had been found to be "lying", Conklin was encouraged by Gottlieb to give a statement. Gottlieb testified that this was a standard procedure and part of the polygraph examination and the Hearing Officer finds that the taking of Conklin's statement was a part of the examination. Conklin prepared two statements on July 31, 1975, received into evidence as Exhibits A and B.
In these statements Conklin admitted taking a tube of morphine inadvertently about 2 months prior to the discovery of the missing drugs. Instead of returning the drug, Conklin took it herself for what she described as severe back pain. Subsequently, Conklin signed out for additional morphine for a patient when the patient did not require morphine and took them for her own use. She did this approximately 8 times. About two weeks prior to the date the statement was given, Conklin stated she took 10 tubexes of morphine from a previously sealed box on Fourth Floor South and then resealed the box. She used two of the tubexes and threw the others away the night before the second polygraph examination. She further admitted taking morphine from the bottles and replacing it with sterile water.
Respondent, Conklin, presented the testimony of her psychiatrist, Gilbert Berken. Berken testified that he had first met Conklin while in the Air Force stationed at Kesseler, Air Force Base where he was on the psychiatric staff and Conklin was a nurse. At that time he observed that she was a conscientious, efficient Registered Nurse.
He later treated Conklin in 1972. At that time Conklin was very agitated and had a disturbed sleep pattern. She stated that she felt as if ants were crawling over her. Dr. Berken's initial diagnosis was acute anxiety reaction, but following her hospitalization he diagnosed her condition as agitated depression, psychotic depressive occurrence. He felt that the cancer and radiation treatment which Conklin had had was a significant stress which contributed to her psychotic condition. Dr. Berken stated that he had treated Conklin by heavily sedating her. This relatively heavy sedation continued from February 12, 1972 until March, 1972 being gradually reduced. Ore March 3, 1972 Conklin advised him she was discontinuing medication and that she was doing well. On March 10, 1972, she had a recurrence, however, and started back on medication.
Dr. Berken did not see Conklin again until May 23, 1973. At that time Conklin experienced a recurrence of sleep disturbances. At that time Berken prescribed lithium carbonate to facilitate the action of the drugs which he was giving Conklin. He did not see Conklin again until August 1, 1975. When Conklin saw Dr. Berken in August, 1975 she advised ham that she had been fired, deservedly so, for self-medication with morphine for sleep disturbance. Shortly afterward Conklin was hospitalized when outpatient treatment failed. Dr. Berken's diagnosis was acute depressive neurosis, severe with agitation. Dr. Berken stated that in his professional opinion that Conklin's condition had existed for several months prior to his seeing her. The sleep disturbance, which Conklin had treated with the morphine, was an outgrowth of the depression. The morphine assisted Conklin to sleep, acting as a sedative, but it also masked the depression. He again treated Conklin's condition with drugs, but stated that she had been able to come off medication due to a deepened religious faith.
Dr. Berken further stated that in his professional opinion that Conklin's taking the morphine was not consistent with her general conduct and personality. Based upon his prior knowledge of Conklin and tests he had conducted with her in 1972, Conklin had a very well developed sense of honesty and integrity. He concluded therefore, that her behavior in taking the morphine was not consistent with her general conduct, and that the probability of a recurrence of her misconduct was not appreciably higher than the probability of a person initially acting in such a manner.
Dr. Berken stated that he had last seen Conklin in February 1976 prior to the first hearing in the case, At that time she handled the stress well, was not experiencing any difficulties sleeping, and was able to support her emotional needs by prayer.
Dr. Berken stated that Conklin was symptom free, that she was a very fine nurse, very competent, and that in his opinion she would not turn to self- medication if she should have a recurrence of her problem. Dr. Berken stated that there was no evidence of morphine addiction while she was hospitalized in August, and that he would trust her with drugs, would trust her to administer drugs to his patients, and would hire her if he needed a nurse.
Berken also stated that Conklin was aware of the nature of the authorization to be polygraphed which she signed despite her neurosis.
Miriam Anderson was called by the Respondent. She is Director of Nursing at Greynolds Park Manor Rehabilitation Center where Conklin was currently employed. Miriam Anderson is a Registered Nurse with 31 years of experience. She stated that she had hired Conklin with knowledge of the charges pending against her. Conklin had begun work in October, 1975 as a staff nurse under careful observation. Subsequently she was promoted to night supervisor, and had been promoted again to Day Supervisor. Anderson stated that Conklin was a competent, efficient nurse who she trusted with supervision of nursing care to the patients at Greynolds Park. Conklin was daily trusted with administration of narcotics and Anderson had no questions about Conklin's ability to handle that responsibility.
Anderson further stated that she felt cases such as Conklin's had to be considered on an individual basis, and that in her experience some people made mistakes, realized it, and were better for it. Anderson said that Conklin was a good nurse, a trustworthy employee and had a job at Greynolds for as long as she wanted it.
George Leader, the administrator of Greynolds Park Manor, was called by Respondent. Leader supported Anderson's testimony regarding Conklin. In response to the Hearing Officer's inquiry, he stated that he would be happy to work with the Florida State Board of Nursing to provide any supervision needed of Conklin if she were placed on probation.
Mrs. Jo Ann Mann, the Director of Nursing of Hollywood Medical Center, was called by the Respondent. She stated that Conklin, up until the incident in question, had been a very good head nurse. Based upon the hospital records which she examined, Mann stated that there had been drugs tampered with and taken from Conklin's floor.
Based on the evidence presented, the Hearing Officer finds that Conklin did take the drugs and use them to self treat her neurotic depression. Further, Conklin was aware of the nature of her acts when she took the drugs. Such conduct is contrary to the high standards of trust and responsibility expected of a Registered Nurse. However, it is equally clear that while Conklin realized what she was doing, that she was suffering from a severe mental depression which ultimately required her hospitalization for treatment. Her treating physician's professional opinion is that she is currently free of symptoms and that a recurrence of such behavior is no greater than a person who has never indulged in such conduct, taking drugs for self-treatment. Her present employer and supervisor stated that Conklin's conduct has been exceptional and that she is a trusted employee who has been placed in a supervisory position because of her abilities.
The question presented is what action should be taken? If a purely punitive view is taken, most certainly Conklin's conduct would warrant severe action. However, the thrust of the provisions of Ch. 464 are regulatory. Punishment is the purpose of the criminal law, and while the courts recognize that actions by professional regulatory bodies may be punitive, that is not their prime function. Section 464.011, F.S. which states the purpose of Ch.
464 states:
"In order to safeguard the life, health, and welfare of the people of this state and to protect them from unauthorized, unqualified, and improper application of services by individuals engaging in the practice of nursing, it is necessary that a proper regulatory authority be established and adequately provided for. To this end, it is the policy of the state to regulate the practice of nursing through the State Board of Nursing, which shall have the power to enforce the provisions of this Chapter.
Regulation deals with the removal from practice of persons who are unqualified by virtue of lack of training or conduct those who would constitute a hazard to the public. In the instant case, the evidence is equally clear that Conklin's conduct was inconsistent with her general personality, that the problem which gave rise to the conduct is gone, and probability of recurrence is no greater than that of a nurse who has never had such a problem. Certainly her training and abilities, either before or after her misconduct are not in question.
A reading of Subsection 3 of Section 464.21, F.S. indicates a general thrust to grant the Board great latitude in tailoring disciplinary action to fit the circumstances. The Board may suspend judgment and penalties, suspend
judgment and penalties on probation, suspend or limit the right to practice, revoke or deny reissuance, or take such other action as the Board may deem proper and in the interest of the public health.
Other than punishing Respondent it would appear that little would be accomplished by revoking or suspending the license of Jean Conklin. Such punishment would not act as a further deterrent to Conklin, who according to expert testimony would not have any greater likelihood of repeating her conduct than another nurse to commit the same act the first time. It would not remove a person of little ability from practice but would, according to the testimony, deprive the profession of a very competent member.
The Hearing Officer would, therefore, recommend that the Board of Nursing impose a penalty of revocation, indicating the seriousness with which it views the actions of the Respondent, and thereafter suspend imposition of the penalty placing the Respondent on probation for the maximum period allowed by law, the conditions of said probation to be established in the discretion of the Board as it may deem appropriate for the best interest of the public.
DONE and ORDERED this 8th day of June, 1976, in Tallahassee, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
