STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1552

)

MARIE NOVAK, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above styled case at Merritt Manor Nursing Home,

125 Alma Boulevard, Merritt Island, Florida at 2:00 p.m. on December 9, 1976 before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This cause came on to be heard upon the Administrative Complaint filed against Marie Novak, L.P.N., License Number 36419, which alleged that Marie Novak violated Section 464.21(1)(b) by striking and verbally abusing a patient who refused to be fed. Marie Novak requested a formal hearing of the allegations against her and this matter was referred to the Division of Administrative Hearings by the Florida State Board of Nursing pursuant to the provisions of Chapter 120, Florida Statutes.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

218 East Forsyth Street Jacksonville, Florida

For Respondent: Robert T. Westman, Esquire

Post Office Box 1888 Cocoa, Florida 32922

FINDING OF FACT

1. Marie Novak is a Licensed Practical Nurse holding License Number 36419 issued by the Florida State Board of Nursing. Marie Novak was employed at Merritt Manor Nursing Home, Merritt Island, Florida on or about April 10, 1976. Marie Novak is a large, young woman of apparent good health. At the time of the alleged offense, Marie Novak had been a Licensed Practical Nurse for slightly over one year and employed at Merritt Manor Nursing Home for almost a year.

   
   

2. Louise Thomas was a cardiovascular accident patient with diabetes controllable by diet who had had one leg amputated as a result of her illnesses. On April 10, 1976, Louise Thomas weighed approximately 300 pounds, had good upper-body strength, and sometimes exhibited unrulely or aggressive behavior.

3. On April 10, 1976, Marie Novak was assisting Louise Thomas to eat her grapefruit in the dining room of Merritt Manor Nursing Home where approximately thirty-five (35) other patients and staff were seated. Louise Thomas was at a long table with several other patients who were also confined to wheel chairs.

   
   

4. Louise Thomas threw the grapefruit in her bowl over her head and shoulder where they struck Marie Novak in the head, face and shoulders. Louise Thomas retained the bowl in her hands. The action of Louise Thomas stunned all the persons who observed it.

   
   

5. Marie Novak, after having been struck with the grapefruit, initially moved away from Louise Thomas several steps, then Marie Novak returned to Thomas where she approached her from the rear and in the process of taking the grapefruit bowl from Thomas struck Thomas about the head no more than two times in an effort to take the bowl away. Having taken the bowl from Thomas, Novak took her from the dining room to the recreation room where she was left to calm down. Marie Novak then returned to the dining room to assist in caring for the patients there.

   
   

6. Marie Novak did not call Louise Thomas any names in English although Marie Novak said something at the time in Czechoslavakian, her native language.

   
   

7. Both of Marie Novak's immediate nursing supervisors at Merritt Manor Nursing Home, both of whom were Registered Nurses, spoke highly of Novak's competency and concern for patients.

   
   

8. None of the nurses and staff called to testify in this cause could recall having seen or having had a similar experience with a patient.

   
   

9. Although Louise Thomas was an invalid, she was a large woman who possessed substantial strength and in the agitated state which she had demonstrated by throwing the fruit at Novak, was in a position to injure herself or other patients at the point Novak intervened to take the bowl away from her and remove her from the dining room. Had Novak not acted to remove Thomas from the dining room, Novak would have been violating her duty and obligation to the other patients close to Thomas.

   
   

10. Novak did not strike Thomas more than two times and there is no evidence that Thomas was physically hurt in any way. Novak is a large woman who would be capable of delivering a substantial blow if not restrained. The medical records for Thomas for April 10, 1976 and April 11, 1976 indicate no treatment for any physical effects of Novak's blows. Novak's actions in taking the bowl from Thomas and removing her from the dining room were successful and without any physical injury to Thomas.

    
    

11. In returning to Thomas, taking away the bowl, and removing her from the dining room, Novak performed her duties correctly and did not use excessive or unreasonable force to do so.

    
    

    CONCLUSIONS OF LAW

    
    

12. Marie Novak is charged with violation of Section 464.21(1)(b), Florida Statutes, in that she acted in a manner which did not conform to the minimal accepted standards of nursing practice.

    
    

13. While Marie Novak struck Louise Thomas on April 10, 1976, Novak did so in her effort to take away a fruit bowl from Thomas after Thomas had exhibited

    conduct which was aggressive and potentially violent in nature. At the time Thomas did so, she was in close proximity of other patients of the nursing home who were confined to wheel chairs and therefore unable to escape or avoid her.

    
    

14. While it is clearly unprofessional conduct for a nurse to strike a patient as punishment to enforce an order, or as intimidation, there are circumstances which the law recognizes in which a person may use reasonable force to protect themselves and others.

    
    

15. The practice of nursing and the standards applicable to it do not require a nurse to endure an assault upon her person or permit the assault of a patient in her care under circumstances in which at common law she would be entitled to defend herself or her patients against the assailant even though the assailant is a patient of hers.

    
    

16. Based on the foregoing facts, the Hearing Officer does not find that Marie Novak violated the minimal acceptable nursing standards but concludes as a matter of fact and law that Marie Novak acted properly under the circumstances.

RECOMMENDATION

Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N.

DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire

218 East Forsyth Street Jacksonville, Florida 32202

Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922

Docket for Case No: 76-001552

Orders for Case No: 76-001552