Judges: G. STEVEN PFEIFFER
Agency: Department of Health
Latest Update: Oct. 19, 1979
Summary: Respondents were not guilty of failing to report violation when evidence did not support their concluding a violation had occurred.
79-1244.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1244
)
NED EARLE RUBIN, )
)
Respondent. )
) FLORIDA STATE BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1245
)
HELEN ELIZABETH HARPER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, conducted a final hearing in this case on September 6, 1979, in Jacksonville, Florida.
The following appearances were entered:
APPEARANCES
For Petitioner: Julius Finegold, Esquire
1107 Blackstone Building
Jacksonville, Florida 32202
For Respondents: Stephen D. Busey, Esquire
Waddell Wallace, Esquire
SMITH, HULSEY, SCHWALBE & NICHOLS
500 Barnett Bank Building Jacksonville, Florida 32202
On or about May 29, 1979, the Board of Nursing issued an Administrative Complaint against the Respondent Helen Elizabeth Harper, alleging that Harper committed certain violations of Florida statutes relating to the practice of nursing. Harper Responded to the Complaint by denying the allegations, and requesting a formal hearing in accordance with the provisions of Section 120.57(1), Florida Statutes.
On or about May 30, 1979, the Board issued an Administrative Complaint against Ned Earle Rubin alleging that Rubin committed violations of the Florida
Statutes relating to the practice of nursing. Rubin denied the allegations and requested the convening of formal proceedings.
On June 15, 1979, the Board forwarded the two matters to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing in accordance with the provisions of Section 120.57(1)(b)3. The final hearings were scheduled by notices issued June 21, 1979. The Respondents moved that the matters be consolidated for hearing, and the motion was granted by Order entered August 31, 1979. A consolidated hearing was conducted in the matters as set out above.
The Board called the following Witnesses: Vicki Lynn Enos, a Registered Nurse; Barbara Ann Fox Enos, a Registered Nurse; and Dr. Jay W. Edelberg, a physician who is employed as head of the emergency room at Baptist Medical Center in Jacksonville, Florida. The Respondents testified as witnesses on their own behalf. Petitioner's Exhibit 1 and Respondent's Exhibits 1 and 2 were received into evidence. The Board has submitted proposed recommended orders, and the Respondents have submitted a post-hearing legal memorandum.
There were several conflicts in the testimony among witnesses who appeared at the hearing. In resolving these conflicts, regard has been given to the demeanor of the witnesses as evidenced by their appearance at the hearing, by the logical consistency of their testimony, and by the extent to which their testimony was corroborated by other evidence.
FINDINGS OF FACT
The Respondents have, at all times relevant to this proceeding, been registered with the Board of Nursing as Registered Nurses. The Respondent Rubin has, at all relevant times, been employed at Baptist Medical Center in Jacksonville, Florida as a clinical specialist in psychiatric nursing. He has fifteen years experience within that specialty. The Respondent Harper has at all material times been employed as the Assistant Administrator for Nursing at Baptist Medical Center. She has thirty years experience as a Registered Nurse, and twenty-two years experience as a nursing supervisor.
On January 1, 1979, the Respondent Rubin received a telephone call from Dr. Jay W. Edelberg, the physician in charge of the emergency room at Baptist Medical Center. Dr. Edelberg related that he was scheduling a meeting for the next day with respect to a nurse on the emergency room staff. Dr. Edelberg told Rubin that he believed the nurse might be suffering from psychiatric difficulties and he wanted a person with experience in that area to be present at the meeting. The meeting began at 8:00 or 8:30 a.m. on January 2. Dr. Edelberg, the Respondent Rubin, and Mary Brown, Dr. Edelberg's secretary, were present. The focus of the meeting was potential drug abuse on the part of a nurse, Vicki Lynn Enos. After a discussion of approximately ten minutes relating to general conditions in the emergency room, Vicki Enos was brought into the meeting. She was confronted with Dr. Edelberg's suspicions respecting drug abuse. She vehemently denied any drug use on her part at all. Dr. Edelberg confronted her with a syringe that he stated he had found in her locker. Vicki Enos admitted taking the syringe, but she denied taking it home or using any drugs. The meeting ended without any definite action being taken against Vicki Enos. She had agreed to seek psychiatric attention. The Respondent Rubin believed that she was suffering from severe psychiatric problems and that she needed extensive care and treatment.
The Respondent Rubin reported his participation in the meeting to his supervisor, the Respondent Harper. He related to Harper that the meeting involved a young nurse from another section of the hospital who had a psychiatric problem. He reported the meeting because it was outside of the normal scope of his responsibilities. He did not relay any information to Harper respecting drug abuse. Vicki Enos sought a meeting with the Respondent Harper, and an appointment was scheduled for January 4, 1979. Prior to the meeting, Dr. Edelberg had advised the Respondent Harper that he had been told by other personnel in the emergency room that they were concerned about strange behavior on the part of Vicki Enos. Dr. Edelberg told her that he did not know of any drug abuse on the part of Vicki Enos, and he did not tell her about his finding the syringe. the appointment on January 4, Vicki Enos told Harper about problems she was having with other personnel at the emergency room. Enos told Harper of rumors of drug abuse, but she denied any drug abuse on her part, and denied possession of any drugs. She did not tell the Respondent Harper of the syringe. The January 4 meeting was the only time that the Respondent Harper ever met Vicki Enos. Nurses in the emergency room were not supervised by Ms. Harper. Vicki Enos was supervised by Dr. Edelberg.
On March 22, 1979, Barbara Enos, Vicki Enos' mother telephone the Respondent Harper at Harper's office. Ms. Harper was not in her office when the telephone call was placed, but she did return the call. When she returned the call a Ms. Barbara Enos and the Respondent Rubin were present in the office. Barbara Enos asked that the Respondent Harper stand as a reference for Vicki Enos. The Respondent Harper responded that she could do that since she was not Enos's supervisor. She explained Dr. Edelberg was Vicki Enos' supervisor and that he would have to provide any references. The Respondent Harper then let Respondent Rubin speak with Barbara Enos. The Respondent Rubin told Ms. Harper that he believed that Vicki Enos had a major psychiatric problem. He did not speak of any drug problem.
The Respondent Rubin did not work directly with Vicki Enos. His only contact with her was in connection with the January 2 meeting and the March 22 telephone conversation with Barbara Enos.
There was a very serious conflict in the testimony given by Vicki Enos and Barbara Enos, the testimony given Respondents, and the testimony given by Dr. Edelberg. The Findings of Fact in Paragraphs 2, 3, and 4 represent a resolution of the conflicting testimony. The testimony of the Enoses has been disregarded as not being creditable. Vicki Enos testified inter alia that she made a full confession of numerous instances of drug abuse at the January 2 meeting. This testimony was rebutted not only by the testimony of the Respondent Rubin, but also by the testimony of Dr. Edelberg, a witness with no interest in this proceeding. This instance of lack of candor on the part of the witness Vicki Enos demonstrates her willingness to testify falsely under oath, and has been taken into consideration in evaluating the totality of her testimony. The demeanor of Vicki Enos at the hearing has also been evaluated in rejecting her testimony. Furthermore, Enos testified that she had difficulties securing employment in Jacksonville subsequent to leaving the emergency room at Baptist Medical Center. It is clear that she considered the Respondents responsible for her failure to obtain other employment. The testimony of Vicki Enos' mother has been similarly rejected.
The testimony of the Respondent Rubin and Dr. Edelberg, with respect to the January 2, 1979 conference with Vicki Enos, was not totally consistent. Dr. Edelberg admitted that his recollection was very unclear. He could not recall specifically whether he announced that he found a full syringe of morphine
sulphate in Vicki Enos' purse which was in her locker, as he in fact did, or whether he merely said that he found a syringe in her locker. It is clear that the Respondent Rubin perceived that the syringe was not full and that it was found in her locker, not her purse. Dr. Edelberg testified that he was interested in protecting Vicki Enos from losing her nursing license and that accordingly he was vague at the January 2 meeting. That fact, together with his admitted inability to recall the facts of the meeting with definite clarity, explain the conflict between his testimony and that of the Respondent Rubin.
Vicki Enos eventually confessed numerous instances of conversion of drugs to the Board of Nursing. A disciplinary proceeding was instituted against her, her license to practice nursing was suspended for one year, and the suspension was probated.
The only evidence that the Respondent Rubin was aware of as to potential drug abuse on the part of Vicki Enos was his understanding that an empty syringe was found in her locker. The only evidence that the Respondent Harper was aware of was the statement from Dr. Edelberg that other personnel in the emergency room regarded Vicki Enos with suspicion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and over the parties. Sections 120.57(1), 120.60, Florida Statutes.
The Administrative Complaints filed in these matters allege that the Respondents failed to inform the Board of Nursing as to the actions of Vicki Lynn Enos in converting drugs from the emergency room at Baptist Medical Center to her own use. It is alleged that the Respondents knowingly concealed this information from the Board in violation of Section 464.24(1)(h), Florida Statutes.
Section 464.21(1)(g), Florida Statutes, provides:
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 who has been heard and found guilty by the board of:
* * *
Willfully or repeatedly violating any of the provisions of this chapter or laws of this state.
Section 464.24(1)(h) provides:
It shall be a violation for any person, including firms, associations, or corporations, to:
Knowingly conceal information relative to violations of this chapter.
The Board contends that tide Respondents knowingly concealed information relative to Vicki Enos' violations of Chapter 464, and are therefore guilty of a violation of Section 464.21(1)(g). The Respondents assert that grounds for discipline set forth in Section 464.21 do not constitute violations of Chapter 464, and therefore cannot serve as the basis for a charge that the Respondents violated Section 464.24(1)(h). This contention was rejected on the record at the final hearing. The Respondents further assert that their actions, even assuming that the testimony of Vicki Enos and Barbara Enos was accepted at most constitute a passive failure to reveal information, rather than a concealment.
It is difficult to evaluate this contention in view of the evidence presented in this case, and in view of the Conclusion of Law set out in the following paragraph.
The evidence does not reveal that the Respondents knew that Vicki Enos converted drugs to her own use. The Respondent Rubin knew only that an empty syringe was found in her locker, and that she vehemently denied any drug abuse or conversion. It was not unreasonable for him to conclude that he did not have evidence of a sort which would impose upon him a duty to provide the information to the Board of Nursing.
The Respondent Harper had no evidence whatever of any drug abuse or violations on the part of Vicki Enos. She did not even know of the finding of the syringe.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby
RECOMMENDED:
That a final order be entered finding the Respondent Ned Earle Rubin not guilty of the allegations contained in the Administrative Complaint filed by the Board of Nursing, and dismissing the complaint.
That a final order be entered finding the Respondent Helen Elizabeth Harper not guilty of the allegations contained in the Administrative Complaint filed by the Board of Nursing, and dismissing the Administrative Complaint.
RECOMMENDED this 19th day of October, 1979, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Stephen D. Busey, Esquire SMITH, HULSEY, SCHWALBE & NICHOLS
500 Barnett Bank Building Jacksonville, Florida
Julius Finegold, Esquire 1107 Blackstone Building
Jacksonville, Florida 32202
Ms. Helen P. Keefe Executive Director Board of Nursing
111 East Coastline Drive Jacksonville, Florida 32201
Geraldine Johnson, R. N. Investigation & Licensing Coordinator
Board of Nursing
111 East Coastline Drive Jacksonville, Florida 32201
Appendix
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1224
)
NED EARLE RUBIN, )
)
Respondent. )
) FLORIDA STATE BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1245
)
HELEN ELIZABETH HARPER, )
)
Respondent. )
)
APPENDIX TO RECOMMENDED ORDER, RULING
IN ACCORDANCE WITH FLORIDA STATUTES SECTION 120.59(2)
The Petitioner has submitted Proposed Findings of Fact and Conclusions of Law with respect to each of the Respondents. Rulings upon the proposed findings and conclusions are set out herein in accordance with Section 120.59(2), Florida Statutes.
The Proposed Findings of Fact respecting the Respondent Rubin have been rejected because the testimony of Vicki Enos and Barbara Enos has been found not creditable. While the Respondent Rubin did have an interest in the proceeding which could have colored his testimony, his testimony was found more believable than that of the Enoses. The fact that Vicki Enos's testimony was directly rebutted in several particular respects by the testimony of Dr. Edelberg, a disinterested witness; her demeanor as a witness and participant at the hearing; and the fact that she perceived that the Respondents were responsible for her having difficulty finding employment have all led to the conclusion that Vicki Enos' testimony should be disregarded.
The proposed conclusions of law set out with respect to the Respondent Rubin have been rejected because the testimony of the Enoses has been rejected.
The Proposed Findings of Fact and Conclusions of Law set out with respect to the Respondent Harper have been rejected for the same reasons as set out above with respect to Proposed Findings of Fact and Conclusions of Law respecting the Respondent Rubin.
ENTERED this 19th day of October, 1979, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Stephen D. Busey, Esquire SMITH, HULSEY, SCHWALBE & NICHOLS
500 Barnett Bank Building Jacksonville, Florida
Julius Finegold, Esquire 1107 Blackstone Building
Jacksonville, Florida 32202
Ms. Helen P. Keefe Executive Director Board of Nursing
111 East Coastline Drive Jacksonville, Florida 32201
Geraldine Johnson, R.N. Investigation & Licensing Coordinator
Board of Nursing
111 East Coastline Drive Jacksonville, Florida 32201
Docket for Case No: 79-001244
Orders for Case No: 79-001244
| Issue Date |
Document |
Summary |
|
Oct. 19, 1979 |
Recommended Order
|
Respondents were not guilty of failing to report violation when evidence did not support their concluding a violation had occurred.
|
