STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 76-244

) JACQUELINE CARROLL MOORE, R.N., )

)

Respondent. )

)

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Orlando, Florida, on October 21, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Julius Finegold

1130 American Heritage Building Jacksonville, Florida 32202

For Respondent: John T. O'Shea

MURRAH, DOYLE AND O'SHEA, P.A.

Morse Boulevard Professional Center 800 West Morse Boulevard

Post Office Box 1328 Winter Park, Florida 32789

ISSUE

Whether Respondent is in violation of Section 464.21(1)(b) and 464.21(1)(f), Florida Statutes.

The Administrative Complaint in this matter charged the Respondent with ten statutory violations. At the commencement of the hearing, Petitioner withdrew Paragraphs 2 and 6 of the Administrative Complaint. During the course of the hearing, Petitioner also withdrew Paragraphs 3, 4, 8 & 9 of the Complaint.

FINDINGS OF FACT

1. Respondent is a licensed registered nurse in the State of Florida, License No. RN-41209-2.

   
   

2. During the period August 31 - September 1, 1975, Respondent was charge nurse of an 11:00 P.M. - 7:00 A.M. shift at Mercy Hospital, Orlando, Florida. A hospital Narcotic and Hypnotic Disposition Record, dated August 28, 1975, Number 13580, for Seconal capsules, 100 mg., reflects that on August 31, 1975 at 12:00 A.M., Respondent signed out for a Seconal capsule for patient John Marks. Hospital records, including Nurse Medication Record, Nurses' Supplementary

   Medication Record, and Nurses Notes do not reflect that the patient received the aforesaid medication. Hospital policy requires that all controlled drugs such as Seconal be "charted", i.e., shown in the appropriate medical record that the drug was administered to the patient by the nurse. Respondent admits that she failed to "chart" the medication that she gave to patient Marks. A similar Seconal charting omission by another nurse as to patient Marks occurred on September 3, 1975. (Testimony of Werner, Cahill, Mincevich, Moore, Petitioner's Exhibits 1, 3)

   
   

3. A hospital Narcotic and Hypnotic Disposition Record for "Meperidine Amp., 75 mg." dated August 28, 1975, Number 46620, reflects that at 1:15 A.M., August 31, 1975, Respondent signed out 75 mg. of the drug for patient Jesse Elfrud. Meperidine is a controlled drug known as "Demerol" and is used for the relief of pain. Hospital records, including Nurse Medication Record, Nurses' Supplementary Medication Record, and Nurses Notes for the patient on that date fail to show administration of the drug. Respondent admits that she neglected to make the required entry on the appropriate record. (Testimony of Mincevich, Moore, Petitioner's Exhibits 2, 4)

   
   

4. A hospital Narcotic and Hypnotic Disposition Record for "Meperidine Amp. 100 mg." dated August 16, 1975, Number 47653, reflects that on September 1, 1975 at 1:30 A.M. and 6:00 A.M. Respondent signed out for 100 mg. of the drug for patient Eugene Catalina. Although the Nurses' Supplementary Medication Record shows that "Demerol, 100 mg." was administered to the patient at 1:30 A.M., hospital records do not reflect that the patient received the drug at 6:00

   A.M. on September 1st. A hospital supervisor interviewed Catalina later that day and he informed her that he had had an injection about 5:30 A.M. when he awakened. Respondent admits that she neglected to "chart" the Demerol that she had signed out for at 6:00 A.M., September 1, 1975. (Testimony of Mincevich, Moore, Petitioner's Exhibits 5, 6, supplemented by testimony of Reynolds.)

   
   

5. On October 14, 1975, Respondent was employed at the Barrington Terrace Nursing Home, Orlando, Florida, assigned to the 4:00 P.M. - 12:00 A.M. shift as nurse in charge. At approximately 3:45 P.M., she arrived for duty and was observed by three licensed practical nurses. She was disheveled, uncoordinated, staggering, and bumping into things as she came down the corridor. Her speech was slurred and her breath smelled of alcohol. She entered the medicine room and had difficulty placing her key in the lock of the narcotics cabinet. She was not in a fit condition to carry out her duties and appeared to be under the influence of alcohol. One of the nurses reported the matter to the hospital Administrator who had the Assistant Administrator meet her in the office of the Director of Nursing and inform her that her employment was terminated. The Respondent had been involved in a similar incident at the nursing home on October 2, at which time she manifested the same appearance, but did not have the odor of alcohol on her breath. At that time, inquiries established that her condition had been brought about by a prior injection of Demerol and Compazine from her physician for the relief of a migraine headache. In spite of the circumstances surrounding the prior incident and the Administrator's knowledge that Respondent suffered from a disease called diabetes insipidus, he did not inquire into the possibility that Respondent might have been ill on October 14th, because of the reports from other employees that she was intoxicated. (Testimony of Cole, Stonecipher, Smith).

   
   

6. Respondent testified that she suffers from diabetes insipidus. The illness is controlled by the use of Diaped nasal spray. Occasionally, she takes a shot of Pitressin to restore her hormone balance. The disease manifests itself by dizziness, slurred speech and the presence of a sweetish smelling

   breath from acidosis. The general appearance of an individual with the disease during an attack is similar to that of intoxication. It is also possible that an observer might mistake the breath odor for that of alcohol if unfamiliar with the disease. Prior to going to work on October 14, Respondent felt herself in the early stages of dehydration from the disease and administered nasal spray to herself. She does not recall the events of that day after arriving at the hospital.

   
   

7. Although Respondent's credibility was impaired to some degree by a showing that she had falsified an application for employment at the Barrington Terrace Nursing Home by omitting the fact that she had previously been employed at Mercy Hospital, it is found that, under the circumstances, the evidence is insufficient to establish that Respondent was in an intoxicated condition by reason of alcohol at the time she reported for duty on October 14, 1975. (Testimony of Moore, Morris, supplemented by Respondent's Exhibit 1).

   
   

8. In extenuation of her admitted "charting" errors, Respondent testified that a nurse had difficulty maintaining proper records during the night shift because of the scarcity of support personnel during that period. The Director of Nursing at Medic-home Health Center, Winter Garden, Florida, where Respondent has been employed for the past year, and her present supervisor at that institution, testified that charting errors are common and that such omissions happen more frequently on a night shift due to the heavier patient load. However, Respondent and these witnesses acknowledged that such omissions can have serious consequences if the nurse on the next shift is not aware that medication previously had been given to a patient. Respondent has done an excellent job at her present place of employment under close scrutiny, even though she lost her son in an automobile accident during the period of employment. (Testimony of Moore, Morris, Blackmer).

   
   

   CONCLUSIONS OF LAW

   
   

9. Respondent is alleged to have violated Sections 464.21(1)(b) and 464.21(1)(f), Florida Statutes, which read as follows:

   
   

   "464.21 Disciplinary proceedings. --

   1. Grounds for discipline. --

      The Board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered

      or has been heard and found guilty by the board of:

      * * *

      (b) Unprofessional conduct, which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding actual injury need not be established.

      * * *

      
      

      (f) Exhibiting behavior which the board has reason to believe is due to poor physical

      or mental health and which creates an undue

      risk that the person, as a nursing practitioner, would cause harm to other persons.

      
      

10. As to Section 464.21(1)(b), the complaint does not specify those particular charges which are alleged to constitute unprofessional conduct. Petitioner sought to show that Respondent's incapacity to perform her duties on October 14, 1975, was, in itself, unprofessional in nature even if she was not intoxicated at the time, but merely suffering from diabetes insipidus. Such a theory necessarily must be predicated upon a knowledge by the individual that she is not capable of performing her duties and deliberately elects to enter upon them, thus creating the probability that the proper care of patients would be diminished. There is no question but that Respondent was incapable of performing her duties on October 14th. The evidence does not establish that her condition on that day was caused by intoxication. It does show that the manifestations Respondent displayed can rapidly develop after the onset of an attack of dehydration from diabetes insipidus. Such an attack usually occurs without warning. Respondent's testimony was to the effect that she had administered her normal medication to herself prior to departing for the hospital and that this almost always controlled the disease and prevented such attacks from progressing to a loss of faculties. She further testified that she was not subject to such attacks more frequently than once every several years. Accordingly, it cannot be said that she should have anticipated her resulting condition.

    
    

11. Respondent acknowledged the three incidents involving neglect to chart controlled drugs. This is considered to be a failure to conform to minimal standards of acceptable and prevailing nursing practice and therefore constitutes unprofessional conduct. Charting is required not only by general nursing standards, but by specific requirements of Mercy Hospital where Respondent was employed. The omission to properly record the administration of controlled drugs can lead to their loss or theft and can jeopardize the well- being of patients by the consequent failure to put other medical personnel on notice that a particular drug has been administered to the patient. The fact that accurate charting might become difficult during the night shift when fewer personnel are in attendance, or that other nurses have been equally derelict, does not excuse such conduct. It is therefore concluded that Respondent violated the above-mentioned statutory provision.

    
    

12. As to Section 494.21(1)(f), Petitioner's theory apparently is that Respondent's alleged condition on October 14, 1975 which rendered her incapable of performing her normal nursing duties, constituted behavior "due to poor physical or mental health" which created an "undue risk" that she would cause harm to other persons. Not having found that Respondent was intoxicated on that date, the only remaining theory under which this provision could have been violated by the Respondent is her susceptibility to attacks of dehydration due to diabetes insipidus. Since there is evidence that these attacks occur infrequently and have not incapacitated Respondent with any degree of regularity, it is considered that her physical health does not create a definite risk to the well-being of her patients. Respondent has been a nurse for many years and the October 14th incident appears to be the only recorded time that she may have been incapacitated as a result of her illness. It is concluded that Respondent's physical health does not create a serious risk that she might cause harm to her patients and, therefore, grounds for action under Section 464.21(1)(f) have not been established.

    
    

13. In assessing an appropriate penalty for Respondent's unprofessional conduct as concluded above, it is well to take into consideration the fact that

she has been a registered nurse for a long period of time and has performed her duties in a commendable manner, without incident, during the past year. No evidence has been presented that she has previously been disciplined by Petitioner for violation of nursing standards or practices. On the other hand, Petitioner has an obligation to protect the interests of the public and ensure that required nursing practices are scrupulously observed by licensees, particularly with respect to the use of controlled substances. This being so, it is believed that Respondent should be issued a written reprimand and that her license to practice as a registered nurse should be suspended for a period of three months.

RECOMMENDATION

That Respondent Jacqueline Carroll Moore, R.N., License Number RN-41209-2, be issued a written reprimand and that her license to practice nursing be suspended for unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes.

DONE and ENTERED this 6th day of December, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Julius Finegold John T. O'Shea

1130 American Heritage MURRAH, DOYLE and O'SHEA, P.A. Building Morse Boulevard Professional Jacksonville, Florida 32202 Center

800 West Morse Boulevard

P.O. Box 1328

Winter Park, Florida 32789

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

Jacqueline Carroll Moore 3002 Woodbridge Lane

Orlando, Florida 32808 CASE NO. 76-244

As a Registered Nurse License No. 41209-2

/

ORDER

The above entitled cause came on to be heard by the Florida State Board of Nursing on the 18th day of January, 1977 in the Board of Construction Industry Conference Room, 6501 Arlington Expressway Building B, Jacksonville, Florida 32211.

The Board, having reviewed the entire record including all the pleadings, exhibits admitted into evidence, the transcript of the hearing proceedings, and the Recommended Order of the Hearing Officer, adopts the Findings of Facts numbered one through five and number seven.

The Board rejects that portion of the Finding numbered "6" of the Recommended Order wherein the Hearing Officer found that the evidence was insufficient to establish that Respondent was in an intoxicated condition by reason of alcohol at the time she reported for duty at Barrington Terrace Nursing Home, Orlando, Florida on October 14, 1975. Such a finding was not based on competent and substantial evidence.

The Hearing Officer based his Finding of Fact that the was not intoxicated on the date in question on the testimony of the Respondent, whose credibility was impaired, as noted by the Hearing Officer on Page four of his order, and who has an obvious interest in the outcome of this case, and upon the testimony of Florence Morris, who was not present at the place and time the Respondent was observed by three impartial licensed nurses to be under the influence of alcohol. Since Mrs. Morris was not present, she was therefore not competent to testify as to the Respondent's condition at the time of the incident.

As opposed to that evidence, the transcript of the hearing reveals the uncontroverted testimony of Nancy Cole, a licensed practical nurse for eight years, who testified she smelled the Respondent's breath and smelled what she believed to be alcohol. In addition the testimony of Anne Stonecipher, a licensed practical nurse, testified that she was closer to the Respondent than three feet at the time and place in question and detected alcohol on the breath of Respondent and based upon this fact and the fact that the Respondent could not keep her balance, she concluded that Respondent was intoxicated. (Page 32 of the transcript). Mrs. Stonecipher, was positive that the Respondent's breath smelled of alcohol on the date and time in question. In response to Mr.

Finegold's question whether or not she had any question in her mind that it was alcohol, she replied "there was no question whatever". (Page 33, line 25 of the transcript).

On cross examination of Miss Stonecipher by Mr. O'Shea, Respondent's attorney, Miss Stonecipher testified that she was familiar with the odor of diabetic acidosis, that it was very sweet and that it was not similar to alcohol. (Page 35 of the transcript.

In addition to the testimony of the above two witnesses,

Miss Ruby J. Smith, L.P.N. who was also present at the time and place in question testified that the Respondent spoke to her, that Respondent's speech was slurred and that she, Respondent, smelled of liquor. (Page 38 of the transcript).

Mrs. Florence Morris, who testified on behalf of the Respondent, on direct examination testified that the "odor of acidosis" was a "kind of sweet odor" and that once you smelled it, "You can always recognize it again." (Page 116, line

25 and Page 117, line of the transcript).

On cross examination by Mr. Finegold, Mrs. Morris testified that although an untrained person might confuse the sweet odor of acidosis with alcohol, that she, Mrs. Morris, could detect a difference because she was a trained person, (Page 120 of the transcript) and that a person who was a nurse and was familiar with the odor of acidosis (as was Miss Stonecipher) would be able to detect the difference between alcohol and the "odor of acidosis".

Based upon the testimony of the three licensed nurses; Nancy Cole, Anne Stonecipher, and Ruby J. Smith, none of whom were shown to have any bias or interest in the outcome of this cause or to bear any animosity towards the Respondent and the testimony of Mrs. Morris that a trained person could tell the difference between the odor of alcohol and acidosis, the Board finds that the Respondent was intoxicated while on duty on October 14, 1975 at Barrington Terrace Nursing Home, Orlando, Florida.

Based also upon the admissions of the Respondent that she had made numerous charting errors and the exhibits placed in evidence and the finding of the Hearing Officer to this effect, the Board finds that on the date and place in question Respondent did commit several charting errors. The evidence further shows that licensee signed out for a controlled drug, Seconal, for a patient more frequently than ordered by the doctor (see Page 53 of the transcript) and failed to chart it as having been administered or otherwise account for it.

Based upon the above Findings of Fact, the Board concludes the Respondent is guilty of unprofessional conduct in violation of Florida Statute Section 464.21(1)(b) and also is in violation of Florida Statute Section 464.21(1)(f).

ORDERED AND ADJUDGED that the Respondent's license to practice nursing as a registered nurse be suspended for a period of one year provided however that after 90 days the suspension be stayed and the license be placed on probation for the remaining nine months upon the following terms and conditions:

1. That the Respondent shall return License No. 41209-2, issued to practice as a registered nurse, to the Florida State Board of Nursing within seven (7) days of receipt of this order. The failure to comply shall be deemed a violation of this condition of probation.

   
   

2. That the Respondent advise the Board in writing every three months of her residence address and place of employment.

   
   

3. That the Respondent refrain from violation of any law; Federal State, or Local.

   
   

4. That the Respondent request her employer to provide this office with an evaluation of her nursing performance and practice every three months.

DONE AND ORDERED this 21st day of January, 1977, Jacksonville, Florida.

Dorothy C. Stratton, R.N., President Florida State Board of Nursing

SEAL

cc: John T. O'Shea, Esquire Julius Finegold, Esquire

Docket for Case No: 76-000244

Orders for Case No: 76-000244