STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1370

)

JUDITH BLAKE PERSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 27, 1979, in Hollywood, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The time noticed for hearing was 11:00 a.m. Counsel for the Petitioner Board was present and ready to proceed at that time; however, the Respondent was not present. The hearing was recessed until 11:30 a.m. to permit the Respondent additional time to appear or to contact the Hearing Officer. At that time, the Respondent not having been heard from, the hearing proceeded, and the Petitioner presented evidence in support of the allegations contained in the Administrative Complaint. The Administrative Complaint charged the Respondent with two (2) incidents of taking controlled substances from the Hollywood Medical Center where she was employed, which violated Section 464.21(1)(b) and (d), Florida Statutes. The issue was whether the Respondent committed the alleged acts.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Hackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: No appearance

FINDINGS OF FACT

1. The Respondent, Judith Blake Persky, is a licensed practical ours holding License No. 39779-1 issued by the Florida State Board of Nursing.

   
   

2. On or about May 30, 1978, the Respondent converted to her own use a controlled substance, Dilaudid. She admitted this to her supervisor, and she was suspended and referred to a psychiatrist for evaluation. The psychiatric evaluation determined that the Respondent was not dependent upon drugs. Upon this determination, the Respondent was reinstated and continued to work at the Hollywood Medical Center.

   
   

3. On or about March 6, 1979, members of the staff at the Hollywood Medical Center discovered that stocks of Dilaudid, more than twenty (20) doses, maintained in the Intensive Care Unit and the Progressive Care Unit, had been

   tampered with and the tampering disguised. As a result of this discovery, members of the staff with access to these stocks were polygraphed. The Respondent, when advised that her responses indicated deception, admitted she had taken the drugs in question and prepared a hand-written admission.

   
   

4. The handwritten admission asserts that the Respondent had been coerced into taking the drugs by threats of physical harm to her and to her husband.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Petitioner Board has jurisdiction to take disciplinary action against its licensees.

   
   

6. The Administrative Complaint charges the Respondent with violation of Section 464.21(1)(b) and (d), Florida Statutes. Section 464.21(1)(b), supra, alleges unprofessional conduct, and Section 464.21(1)(d), supra, alleges possession of a controlled substance.

   
   

7. The tampering with drug stocks is clearly unprofessional conduct. Evidence was received that drug stocks were tampered with and the tampering disguised. Tampering contaminates and adulterates medications to be given patients. This is a serious breach of conduct and constitutes a violation of Section 464.21(1)(b), Florida Statutes, which the Respondent admitted.

   
   

8. The admissions of the Respondent together with the evidence show that she converted (stole) controlled substances, and that she possessed them for other than legitimate purposes. This constitutes a violation of Section 464.21(1)(d), Florida Statutes. Having found that the Respondent violated the statutes as alleged, the only remaining issue is the penalty to be assessed.

   
   

9. The nature of the psychiatric findings and her continued employment at the Hollywood Medical Center lend credence to the Respondent's assertion that she was coerced into taking drugs the second time. The first incident was apparently an isolated instance arising out of severe personal problems. While she violated the statutes, the Respondent's continued satisfactory employment and lack of drug dependence normally would be considered in arriving at a penalty. In the instant case, a second incident occurred in which substantial stocks of drugs were involved. The quantity of drugs involved would generally indicate a high degree of drug usage. This would lead to the inference that the Respondent was not drug free but was dependent. However, this is contrary to the results of the earlier psychiatric consultation, and there was no evidence received that the Respondent's behavior while on duty indicated drug usage.

   This lends credence to the statement asserting coercion in the Respondent's admission.

   
   

10. Respondent's statement in her admission recites that she coerced by threats of physical violence to her husband and herself to steal the drugs in the second incident. There is no question that those engaged in drug traffic are often violent criminals whose threats cannot be taken lightly.

    
    

11. In considering the mitigation, the facts would support the conclusion that the Respondent did not use the drugs in the second incident, and that she was motivated by fear and not personal gain. However, the fact that the Respondent adulterated drug stocks cannot be excused. Virtually everyone who has legal access to controlled substances is a potential target for extortion. If coercion is exculpatory of the theft and adulteration of drugs, then the rights of the patient to pure and effective medication is in jeopardy. In the

final analysis it is the consideration of dangers to the patient against the dangers to the individual extorted. Clearly, the rights of the patient must prevail because the patient is truly helpless and totally dependent upon the health care staff. The person extorted may seek assistance from the law enforcement authorities, institutional staff and others. Therefore, the failure to properly report extortion threats is a gross error in judgment, and giving in to demands is a serious breach of professional conduct, although not as serious as theft for personal profit or personal usage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, and fully considering the facts in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing suspend the license of the Respondent for one year.

DONE and ORDERED this 25th day of October, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

Judith Blake Perskey

202 South Federal Highway Dania, Florida 33314

Geraldine B. Johnson, R. N. Board of Nursing

111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202

Docket for Case No: 79-001370

Orders for Case No: 79-001370