STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1336

)

JOANN JENSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on July 23 and 24, 1981, in Fort Lauderdale, Florida. The transcript was filed on August 28, 1981, and the parties were given ten days thereafter within which to submit proposed findings of fact and conclusions of law to the Hearing Officer. However, no post-hearing submissions were received, and the filing of the transcript closed the record in this proceeding.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Marie S. Hotaling, Esquire

1523 North East 4th Avenue

Fort Lauderdale, Florida 33304

This matter was referred to the Division of Administrative Hearings when the Respondent filed an Election of Rights form in which she disputed the actual allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The Petitioner's Administrative Complaint, as amended, seeks to revoke or suspend the Respondent's nursing license, or otherwise discipline her, for alleged violation of Section 464.018(1)(f), Florida Statutes, by departing from or failing to conform to the minimal standards of acceptable and prevailing nursing practice. Specifically, the Complaint charges that the Respondent was abusive to newborn infants while she was employed at Holy Cross Hospital in Fort Lauderdale between March 26, 1979, and October 3, 1979, by force-feeding infants until they would regurgitate and stop breathing, and by forcefully pressing on the bladders of newly circumcised infants to induce urination.

The Petitioner presented seven witnesses, including five Registered Nurses and a Licensed practical Nurse who worked at Holy Cross Hospital with the Respondent during the time in question, and a Registered Nurse whose specialty is neonatal intensive care, who was qualified and accepted as an expert witness. The Respondent testified in her own behalf, and presented three Registered

Nurses, witnesses, including the head nurse who supervised the Respondent during the subject time period. Seven exhibits were identified, five of which were received in evidence.

FINDINGS OF FACT

1. The Respondent, Joann Jensen, graduated from the University of Nebraska with the degree of Bachelor of Science in Nursing in 1972. She became licensed as a Registered Nurse in Florida, but upon moving back to the North she let the license lapse. When she returned to Florida in 1976 she was reinstated as a Registered Nurse, and she now holds license number 70429-2 issued by the Board of Nursing.

   
   

2. Thereafter the Respondent became employed at Holy Cross Hospital in Fort Lauderdale on the 3:00 p.m. to 11:00 p.m. shift, and was assigned to the nursery where she became charge nurse in August of 1977. She held this position during the March-October, 1979, period which is involved in this proceeding. In October of 1979 the Respondent was transferred out of the nursery into a medical/surgical adult unit at Holy Cross Hospital, where she remained for about six months, when she left the hospital to work for a private nursing agency.

   
   

3. Between March and October of 1979 the Respondent was observed by six nurses on several occasions when she continued to feed infants after they had begun to choke, gag and struggle for air. Specific occurrences were described with reference to infant's named Baby Mandell, Baby Saul, Baby Riccobono, Baby McDaniel, Baby Fast, Baby Davis, Baby Pierce, and Baby Fletch, although precise time frames were not uniformly established. Other instances were described generally without reference to any particular infant. The Respondent was further observed to have tube-fed an infant to the point where its abdomen became distended, to have forced liquid into an infant after it had been breast fed by the mother, and to have manipulated the nipple of a bottle in the mouth of an infant in a rough manner so as to increase the flow of fluid into the mouth. On at least one occasion an infant turned blue and required suction to clear its passages. This form of handling of infants by the Respondent continued from March of 1979 until October when she was transferred to an adult-care unit.

   
   

4. The testimony of the six nurses presented by the Petitioner also establishes that the Respondent used what is known as the Crede Maneuver to induce newly circumcised infants to urinate. This is a procedure used by some nurses in which the bladder is massaged gently until urination occurs. However, the manner in which the Respondent performed this procedure was forceful and rough, resulting in painful screams from infants. On one occasion there was no stated medical reason for use of the Crede Maneuver on the infant except that the Respondent wanted to have the chart show that urination had occurred during her shift.

   
   

5. The evidence further establishes that the Respondent cursed and used foul language in the nursery, and that in one instance this was directed at an infant when the mask used to protect its eyes under the bilirubin lights kept slipping off its face. Placing an infant under bilirubin lights with its eyes masked for protection is a procedure designed to break-down excessive bilirubin in the blood when this is a problem. Although the Complaint did not specifically allege that the Respondent's language in the nursery would be an issue, this evidence was received without objection, but has been accorded no weight by the Hearing Officer.

6. The evidence presented by the Petitioner's expert witness establishes the fact that conduct such as described above, if true, is not acceptable nursing practice, and deviates from the minimum standards established for and prevailing in the nursing profession. Based upon the observed candor and demeanor of all the witnesses, the evidence presented by the Petitioner has been accorded sufficient weight to support the findings of fact set forth herein. No evidence was presented to show that these facts were in accordance with good nursing practice; thus, the evidence warrants a finding that the Respondent's conduct failed to conform to and departed from the standards of acceptable nursing practice.

   
   

7. The testimony of the Respondent and her witnesses, and other evidence, amounted to a denial that the occurrences took place, that the Respondent was not working on at least one date when the conduct described was observed, that the charts and records do not corroborate the facts charged, and that the Petitioner's witnesses were engaged in a conspiracy against the Respondent. However, the testimony of the three nurses on behalf of the Respondent establishes no more than that they have not observed the conduct described by the other nurses. There was no corroborative testimony relative to a conspiracy among the Petitioner's witnesses. Further, the occurrences described took place over a prolonged time period, and involved numerous infants. There is no particular significance to the failure of the charts to contain notations confirming the observations of the nurses, or that the Respondent was not shown by the records to have been on duty the particular date of only one incident.

   
   

8. The Respondent's former supervisor related one instance when a mother complained that the Respondent had been rough with her infant. An investigation resulted, from which she concluded that the Respondent might have been rough with the baby. This witness also thought there was some merit to the complaints that nurses made of the Respondent's treatment of infants, although she continued to give the Respondent good performance evaluations.

   
   

9. In summary, there was not sufficient evidence presented by the Respondent to support her own self-serving denial and assertion of a conspiracy against her, or to effectively rebut the clear and convincing testimony presented in support of the allegations set forth in the Administrative Complaint.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 464.018(1), Florida Statutes, provides that "[T]he following acts shall be grounds for disciplinary action [against a registered nurse]. . .

    
    

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

    
    

11. The facts detailed above warrant a finding that the Respondent is guilty of unprofessional conduct in violation of Section 464.018(1)(f), Florida Statutes. There was not evidence that any actual injury was suffered as a direct result of the Respondent's conduct, however.

12. Section (2) of this statute further provides that "[W]hen the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation or suspension of a license.

    2. Imposition of an administrative fine not to exceed $1,000 for each count or offense.

    3. Issuance of a reprimand.

    4. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify. . ."

       
       

13. The statute explicitly eliminates any requirement that actual injury to a patient be established as a prerequisite to the imposition of any of the prescribed penalties. Thus, it might be argued that unless there is actual injury the penalty should be less than when there is a resulting injury. However, in circumstances where the nurse's unprofessional conduct is directed at infants who are not able to complain, or object, or refuse, or resist, and where the conduct may be abusive and punishing but stop short of the point where actual injury occurs, the lack of actual injury is not significant. In order to assure the members of the public generally that the form of unprofessional conduct engaged in by the Respondent will not recur, the most effective and assuring penalty is license revocation. Lesser forms of penalty can be only intervals during which the conduct is in abeyance, but after which it can again become a danger to the public.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 70429-2 authorizing the Respondent, Joann

Jensen, to practice as a registered nurse, be revoked.

THIS RECOMMENDED ORDER entered on this 25 day of September, 1981.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25 day of September, 1981.

COPIES FURNISHED:

William M. Furlow, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Marie S. Hotaling, Esquire 1523 North East 4th Avenue

Fort Lauderdale, Florida 33304

Docket for Case No: 81-001336

Orders for Case No: 81-001336