STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1934

)

MARY MOSHIER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 7, 1980, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Florida State Board of Nursing against Mary Moshier alleging that she was guilty of unprofessional conduct contrary to Section 464.21(1)(b) , Florida Statutes (Section 464. 18 (1)(f), Florida Statutes 1979)

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Joseph S. Farley, Jr. Esquire

350 East Adams Street Jacksonville, Florida 32202

ISSUE

Did Mary Moshier violate Section 464.21(1)(b) , Florida Statutes, as alleged in the Administrative Complaint?

FINDING OF FACT

1. Mary Moshier is a registered nurse licensed by the Florida State Board of Nursing and holding License #75509-2.

   
   

2. In late December, 1978 through February, 1979 Moshier was employed at University Hospital in Jacksonville, Florida, in the Pediatric Intensive Care unit.

   
   

3. Moshier admits that on or about December 28, 1978, she failed to administer a medication, Phenobarbital, to a patient, Frankie Howard. Howard had not been Moshier's assigned patient at the beginning of her shift, but due to reassignment of the nurse caring for Howard, Moshier assumed responsibility for him. She felt that this contributed to the error but recognized her responsibility for it.

4. Moshier was the nurse in charge of the patient, Fred Williams, on or about January 13, 1979. Williams was a small infant having respiratory trouble. Dr. Nawal Kamel was present and the treating physician. A hood to administer oxygen was used which introduced a water mist into the oxygen the infant received. This had the effect of reducing the infant's temperature. The reduction of the temperature had to be counteracted. Dr. Kamel asked Moshier to set up an overhead radiant warmer as Moshier was leaving the infant's room.

   When she returned, Moshier covered the infant with a blanket while the physician was present. Dr. Kamel wanted to be able to observe the infant's chest to gauge the amount of respiratory distress he was having, and therefore she removed the blanket and set up the radiant warmer. Dr. Kamel did not personally comment to Moshier on her failure to set up the warmer, but afterward she prepared a letter to the hospital's personnel department criticizing Moshier's failure to set up the warmer. This report was marked confidential, and the matter was not raised with Moshier, who had no knowledge of the basis for the incident until these charges were filed.

   
   

5. On or about January 25, 1979, Moshier was caring or a patient, Anthony Bailey. The nurse on the shift preceding Mushier's had hung the wrong IV fluid for that patient. The nurse assigned to the patient on the shift following Moshier's was briefing a student nurse and therefore had carefully reviewed the medication orders for that patient. While briefing the student, this nurse observed the IV fluid and, although uncertain why, felt something was wrong. She rechecked the orders and discovered that the order for the fluid which was being given had been changed several days before, and the wrong IV fluid had been hung by the nurse who preceded Moshier. Moshier had failed to catch this error on her shift. Both Moshier and the nurse who had hung the wrong IV fluid were required to attend remedial training for their actions.

   
   

6. On or about February 16, 1979, Moshier was assigned to care for a patient, Alvester Lamb. Moshier was required to draw blood for testing from this patient. The patient resisted, and another nurse, Kathy Ryals, came in to assist Moshier. Ryals was lying across the patient with her head in such a position that she could not view Moshier, who was standing alongside the opposite side of the bed. Moshier had unsuccessfully tried to draw a blood sample from the vein in the patient's inner elbow. Moshier slapped the patient across the inner elbow, a procedure which causes the vein to rise. Moshier was able to draw the sample thereafter, although the patient, according to Ryals, did not stop struggling. It was Ryals' opinion that Moshier struck the patient in anger. Moshier said she struck the patient only hard enough to raise the vein. Moshier did not strike the patient hard enough to overcome his resistance to Ryals. Ryals also testified that Moshier was cursing and saying "I hate you," or words to that affect. Moshier said she did use inappropriate language, but not until after she had left the patient's room.

   
   

7. Conflicting testimony was presented concerning whether the failure to medicate or to catch administration of the wrong IV fluid was unprofessional conduct.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Board charges Respondent with unprofessional conduct, a violation of Section 464.18(1)(f) , Florida Statutes (1979). The facts are uncontroverted that Moshier failed to medicate a patient on December 28, 1978, and failed to catch the fact that the wrong IV fluid was hung on a patient on January 25, 1979. In both instances Moshier erred, but in both instances there were

   mitigating circumstances. Hanging the wrong IV fluid is more serious and the person responsible more culpable than the person who fails to observe that the wrong IV fluid was hung. Moshier's failure to medicate the patient on December 2, 1978, is mitigated by the fact that she assumed responsibility for the patient in midshift. Moshier in both instances acknowledged her responsibility for the error.

   
   

9. Testimony was received regarding what constitutes unprofessional conduct. It was suggested by the Board that any medication error would be unprofessional conduct. At least one nurse with a substantial amount of experience testified that such errors occur due to normal human frailty. According to this witness, all nurses make such errors, and it might be excusable or inexcusable, professional or unprofessional, dependent upon the circumstances. Based upon the facts in this case, there is no pattern of errors, or multiple errors. The failure to administer the Phenobarbital was oversight. The burden lay directly on Moshier, who accepted it even though she had taken over the patient in midshift. In the second incident Moshier was not directly at fault. She failed to detect the fact that the nurse on the shift preceding hers had hung the wrong IV fluid. The IV fluid that was hung was a combination of an old and a new order. It was close enough to the medication ordered that the nurse who did detect the error said she did not know why she was suspicious of it or what was wrong with it, and she had just reviewed the medication orders in preparation for briefing a student. Again, Moshier's conduct was not correct, but it was not grossly negligent. In tie absence of conduct which is grossly negligent or repetitious conduct calling into question a nurse's professional competency, the occasional nursing error is not unprofessional conduct. The facts in this case do not indicate gross negligence or errors too numerous that Moshier's professional competence is questionable.

   
   

10. The testimony regarding the allegations of Dr. Kamel Is conflicting. Dr. Kamel stated that &ring an emergency resuscitation of an infant patient she gave Moshier an order to put on a radiant warmer to warm the patient, that Moshier questioned the order, and that Moshier left the room and brought back a blanket to warm the patient. Dr., Kamel said that she removed the blanket and put on the warmer herself. Moshier states she remembers treating the child on the night in question but has no recollection of any disagreement with Dr. Kamel over warming the child. Moshier said that the child's temperature was within normal limits, a fact supported by the hospital's records. Dr. Kamel stated that it would by proper for a pediatric intensive care nurse to question any resident's order with which she did not concur except in a resuscitation situation. In Dr. Kamel's mind it was the critical situation and the fact that time could not be spared to debate a course of treatment that made this case different. However, the view of the situation as critical is contrary to the records of the patient's temperature. Further, Dr. Kamel's actions were contrary to what one would expect if warming the patient were critical and could be accomplished as quickly as Dr. Kamel accomplished it after the blanket was put on the child. She could have turned on the warmer herself without asking Moshier or after Moshier left to get the blanket. Dr. Kamel did not repeat the order to Moshier. Dr. Kamel did not accuse Moshier of failing to follow her order. No discussion of the matter with Moshier occurred after the fact. Dr. Kamel' only mention of the incident was in a confidential memorandum of which Moshier had no knowledge until months later. Lastly, it is not credible that an incident which would be so memorable to Dr. Kamel would not have been the subject of immediate correction of Moshier by the physician or the staff. The facts as presented do not support the allegations that Moshier failed to follow the physician's order.

11. Finally, the allegations deal with Moshier's alleged slapping of a child. The facts reveal that Moshier had been unable to take a blood sample and the child had had to be restrained permit blood to be drawn. In this process the child's arm was slapped to raise a vein. It was Ryals' opinion that Moshier struck the child harder than was necessary to raise the vein. It was Moshier's opinion that she did not. The fact was the child was not slapped so hard that he ceased to struggle, but was struck hard enough to permit Moshier to take the sample the second time even with the child struggling. The facts support a finding that Moshier did no more than was necessary to accomplish the procedure.

    
    

12. Regarding the allegations that Moshier used profane language, Ryals testified that Moshier did use strong language. Moshier admitted using such language but not in front of the patient. Moshier stated this incident occurred as they were exiting the room and entering the hallway. It was inappropriate and unprofessional to use such language around or in such close proximity to a patient. This would constitute unprofessional conduct contrary to Section 464.13(1)(f), Florida Statutes. However, Ryals did testify that the situation was less than ideal, the child's bed having been messed up with a loose stool during the foregoing procedure. While not absolving Moshier of her conduct, her conduct should be viewed within the context of the actual events.

RECOMMENDATION

It is noted as a fact in mitigation that Moshier was suspended for 21 days by the hospital where she worked for the incidents that gave rise to this Administrative Complaint. Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that Mary Moshier be placed on probation for a period of six months for the violation of Section 464.10(1)(f) , Florida Statutes, by using profane language regarding a patient in the vicinity of the patient.

DONE and ORDERED this day of May, 1980, 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

Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

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

111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202

Docket for Case No: 79-001934

Orders for Case No: 79-001934