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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1915

)

DAVID W. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on November 6, 1981, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Steven O. Parker, Esquire

128 East Forsyth Street Suite No. 607

Jacksonville, Florida 32202 BACKGROUND

These proceedings began on July 7, 1981 when Petitioner, Department of Professional Regulation filed an Administrative Complaint against Respondent, David W. Brown. Mr. Brown executed an election of rights form on July 28, 1981, and thereby requested an administrative hearing on the charges contained in the Complaint. On August 3, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

At the hearing Petitioner presented testimony of witnesses and offered Exhibit No. 1 which was received into evidence. Respondent offered no exhibits, but did present the testimony of witnesses. At the conclusion of the hearing the parties filed Proposed Recommended Orders containing Proposed Findings of Fact. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here.

Agrico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st DCA 1979).

ISSUE PRESENTED

Should professional discipline be imposed on Respondent for allegedly striking a patient under his care?

FINDINGS OF FACT

1. David W. Brown is a registered nurse. He holds license No. 85273-2, issued by the Florida Board of Nursing. He has been licensed for six years.

   
   

2. For one and one-half years Respondent was employed as a nurse at the St. Johns River Hospital, an acute care psychiatric facility. On August 18, 1980 Mr. Brown was the charge nurse on the east wing of the hospital during the 11:00 p.m. to 7:00 a.m. shift.

   
   

3. At an unspecified time during the course of that shift three juvenile patients were brought to the east wing, which contains a secure unit, because they were being boisterous and disturbing the other patients. Upon their arrival on the east wing they continued to create a commotion and to be rebellious toward the staff. At one time the patients were striking matches and throwing them on the floors and on the beds of the room where they were confined.

   
   

4. After numerous warnings to the patients that their behavior was intolerable and contrary to hospital rules, Mr. Brown, as the charge nurse for the unit, decided to medicate the most uncontrollable of the three patients, Steven Burke, according to a P.R.N. prescription.

   
   

5. Steven Burke was fifteen years old at the time. He was 5 feet 7 inches high and weighed approximately 130 pounds. By comparison Mr. Brown had a height of 5 feet 7 1/2 inches and weighed approximately 160 pounds. The patient Burke had a reputation for being foul-mouthed and potentially violent. He had a hostile rebellious attitude toward the hospital staff and generally presented a management problem.

   
   

6. When Mr. Brown decided to medicate Steven Burke there were two staff members available to assist him. They were Mr. W. Harden Addy and Ms. Joan Ann Bender, both mental health assistants at the hospital.

   
   

7. After drawing the P.R.N. medication Mr. Brown, Ms. Bender and Mr. Addy went to the room where the juveniles were still in an uproar. When the staff members entered the room Steven Burke yelled that no one was going to medicate him. He was most profane in his use of expletives. As Mr. Brown entered the room Steven Burke advanced toward him with his arms raised in a threatening manner. Mr. Brown restrained him around the arms in order to lie him across a bed and administer the medication intramuscularly. The patient appeared to agree to accept the medication. However, as soon as Mr. Brown released him the patient again became agitated and threatening. Mr. Brown again restrained the patient from behind, but Steven Burke managed to keep one arm free. With that arm he elbowed Mr. Brown several times in the face. At that point Mr. Brown used his hand to strike the patient on the back of the head just above the neck. The blow caused the patient to begin sobbing and to accept the medication which was given.

   
   

8. There is no evidence of any physical damage to Mr. Brown as the result of Steven Burke's resistance. There is similarly no evidence of physical damage to the patient from the blow which he received from Mr. Brown. During the melee

   Mr. Casteel who was temporarily assigned to another ward appeared at the door of the room to see what was causing the commotion. Mr. Casteel's testimony presented at the final hearing concerning the nature of the confrontation between Steven Burke and Mr. Brown is not accepted as credible. He was shown to have a bias against Respondent and his testimony conflicted with credible testimony of other witnesses.

   
   

9. When Mr. Brown was struggling with the patient Mr. Addy assisted to some degree by restraining the patient's legs. Ms. Bender was occupied during that time with with other two patients in the room to insure that they did not join the struggle.

   
   

10. During his struggle with Steven Burke, Mr. Brown was not in danger of serious bodily injury. He had the choice of breaking contact with the patient at anytime. Striking a patient under the circumstances of this case is a deviation from the minimal acceptable and prevailing nursing practices in Florida. While the behavior of Steven Burke was obnoxious and he had a reputation for being physically violent there was no justification for Mr. Brown's striking him. Mr. Brown's attempt to administer intramuscular medication to a resisting patient with insufficient assistance from other hospital staff created a dangerous situation. At a minimum, the room where the patient Steven Burke was being confined should have been cleared of the other two juveniles in order to allow the staff present to concentrate on Steven Burke.

    
    

11. On the morning subsequent to his confrontation with Steven Burke, Mr. Brown admitted to the Director of Nursing, Ms. Joyce Starnes, that, "He was quite concerned because he lost it and hit a patient." Ms. Starnes, who was Mr. Brown's supervisor, considered him to be very knowledgeable and qualified to be a nurse.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes (1981).

    
    

13. Discipline against a registered nurse may be taken for "unprofessional conduct which shall include but not be limited to any departure from, or the failure to conform to, the minimum standards of acceptable and prevailing nursing practice, in which case actual injury need not be established." 464.018(1)(f), Florida Statutes (1979). 1/ Pursuant to the authority of 464.018(4), Florida Statutes (1981), the Board of Nursing has adopted the disciplinary guidelines which are contained in Section 210-10.05, Florida Administrative Code. When deciding what discipline is appropriate the Board shall consider:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since date of violation;

    5. The number of complaints filed against the licensee;

    6. The length of time licensee has practiced;

    7. The actual damage, physical or otherwise, to the patient;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the licensee's livelihood;

    10. Any efforts for rehabilitation;

    11. Any other mitigating or aggra- vating circumstances.

        
        

14. Mr. Brown's striking a patient under his care under the circumstances set out in the Findings of Fact above clearly establishes a failure to conform to the minimal standards of acceptable prevailing nursing practice. A violation of Section 464.018(1)(f), Florida Statutes and Section 210-10.05(2)(e)13. Florida Administrative Code is thereby established. With consideration having been given to the above disciplinary guidelines it appears that the appropriate penalty for Mr. Brown's act is a one-month suspension of his license to practice nursing in the State of Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Nursing enter a Final Order suspending the license of David W. Brown to practice nursing for a period of one month.

DONE and RECOMMENDED this 27th day of August, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Department of Administrative Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27 day of August, 1982.

ENDNOTE

1/ This section of the Nurse Practice Act has not subsequently been changed.

COPIES FURNISHED:

Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Steven O. Parker, Esquire

128 East Forsyth Street Suite No. 607

Jacksonville, Florida 32202

Samuel R. Shorstein Secretary

Department of Professional Regulation

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Helen P. Keefe, Executive Director Florida Board of Nursing

Ill East Coastline Drive Room 504

Jacksonville, Florida 32202

Docket for Case No: 81-001915

Orders for Case No: 81-001915