STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2418

)

MARGIE V. GRAY DENOMME, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Milton, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton II, on December 29, 1981. At that time, counsel for respondent moved ore tenus for a continuance of the final hearing on grounds that he had not deposed the witnesses he could see petitioner had gathered for calling at the final hearing, in reliance on a witness list petitioner's former counsel had voluntarily furnished him, which list contained none of the names of the witnesses assembled for the final hearing. The motion was granted, but petitioner adduced the testimony of two witnesses, Alice Rhoades and Sarah Helen Lowe, on December 29, 1981, without objection. The hearing reconvened and concluded on May 14, 1982, at which time Altha Steen Chandler, Bonnie Ripstein, and James Thomas Allred testified for petitioner. Debra Rezzarday and Sandra Jean Peat testified for respondent, and respondent testified in her own behalf. On June 4, 1982, the Division of Administrative Hearings received a transcript of the May 14, 1982, proceedings. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Allen W. Lindsay, Jr., Esquire

Post Office Box 586 Milton, Florida 32570

By administrative complaint dated August 31, 1981, petitioner alleged that respondent, a licensed practical nurse at all pertinent times, "[o]n or about December 26, 1980, ... signed out for ... 15 mg. Morphine, wasted 5 mg., and allegedly administered 10 mg. to a patient ... but did not sign the MAR as the nurse who administered the medication, nor the nurses notes"; that respondent "[o]n or about December 17, 1980, ... signed out for ... Morphine, two (2) 10 mg. tubexes, for a patient ... wasted 5 mg. with no witness, and failed to sign the MAR as the nurse who administered the medication"; that respondent "[o]n or about December 19, 1980, ... signed out for ... Demerol, 75 mg., for a patient

... and charted same on MAR as being administered" even though "[o]ne hour

earlier, the patient had ... [had] 15 mg. of Morphine Sulfate [and a]pproximately one and one half hours ... [after] he was wide awake, alert and watching television" notwithstanding that "[p]rior to this incident, the patient had only been receiving Tylenol #3 for pain"; that respondent, or or about January 24, 1981, "reported that someone had tampered with five (5) Morphine Sulfate, 15 mg., cartridges which had been in respondent's narcotics drawer"; that respondent "first said that all [five] tabs were intact when she discovered the tampering, but later ... said that she had broken one of the tabs"; and that "[w]hen she ... accepted the Narcotic Count and keys ... the narcotics had not been tampered with nor had any Morphine Sulfate been signed out on the prior shift." Also on or about January 24, 1981, petitioner alleges respondent "signed out for ... Demerol, 75 mg., for a patient ... then allegedly wasted same, without a witness"; that the "nurses notes for that patient indicated only 'slight pain' at 8:00 p.m. and 10:00 p.m."; that "records also indicate that the patient received two (2) tablets of Tylenol #3 at 5:30 p.m. and again at 9:35

1. [and t]he patient had not received anything other than Tylenol #3 for pain" for the preceding four days. Also on or about January 24, 1981, petitioner alleges, respondent "requested Tylenol #4 for a patient who had been receiving Tylenol #3 ... [saying] she needed to have Tylenol #4 because she had been administering Tylenol #3 to another patient who had had orders for Tylenol #4" and that respondent "said that she would file an incident report, but failed to do so."

   
   

   DIVERSE TIMES

   
   

   "On or about February 8, 1981," paragraph ten of the administrative complaint alleges, respondent "rolled [a] patient over in preparation to give an injection of pain medication, said she did not have the correct medication, left the room, returned and administered the injection [returned later] that same shift . . . and said that she had . . . had to lie down . . . [and] that she was still having problems and proceeded . . . into the patient's bathroom where she remained with the water running for approximately five (5) minutes [after which she] appeared hyper. On or about January 16, 1981," paragraph eleven of the administrative complaint alleges "a member of the hospital staff knocked Respondent's cigarette case off of a table, and it opened when it hit the floor [revealing i]nside . . . a Ben[a]dryl, a Codeine, and a Demerol." "On or about September 9, 1981," paragraph twelve of the administrative complaint alleges, respondent "was counseled for failing to record the administration of . . . Stadol and Demerol." "At diverse times between September, 1980, and February, 1981," paragraph thirteen of the administrative complaint alleges, respondent "was observed acting strangely, as if under the influence of a controlled substance."

   
   

   Based "on any or all of the foregoing," petitioner alleged that respondent violated "Section 464.018(1)(f), Florida Statutes, by unprofessional conduct," violated "Section 464.018(1)(g), Florida Statutes, by engaging or attempting to engage in the [illegitimate] possession, sale or distribution of a controlled substance"; violated "Section 464.018(1)(d), Florida Statutes, by [intentionally] making or filing a false report or record . . . intentionally or negligently failing to file a report or record required by . . . law, [and/or] willfully impeding or obstructing such filing or inducing another

   person to do so," and violated "Section 464.018 (1)(h), Florida Statutes, by being unable to practice nursing with reasonable skill and safety . . . by reason of . . . use of drugs or as a result of any mental or physical condition." In paragraph twenty-two, petitioner specifically alleges that respondent "[a]t diverse times between September 1980 and February 1981, diverted to her own use and self administered controlled substances" in violation of Section 464.018(1)(f) and (g) , Florida Statutes.

   
   

   After respondent disputed the allegations of the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1981), petitioner requested the assignment of a hearing officer, pursuant to Section 120.57(1)(b)3, Florida Statutes (1981). See Section 120.57(1)(a)1, Florida Statutes (1981).

   
   

   FINDINGS OF FACT

   
   

   1. At all pertinent times, respondent Margie V. Gray Denomme worked the 3- to-11 shift as a licensed practical nurse on the orthopedic floor, 3 North, of West Florida Hospital, in Pensacola.

      
      

   2. On or about September 9, 1980, respondent was counseled for failing to record the administration of Stadol and Demerol, controlled substances, "on MAR." Petitioner's Exhibit No. 2.

      
      

      CHART NO. 670613

      
      

   3. On December 19, 1980, Dr. Hooper ordered, inter alia, 10 to 12 milligrams of morphine sulfate for a patient (Chart No. 670613) "q 3-4 hrs prn pain." Petitioner's Exhibit No. 1. According to a Narcotics and Controlled Drug Administration Record, Petitioner's Exhibit No. 2, respondent administered

      10 milligrams of a 15-milligram tubex of morphine (sulfate) to the patient at five o'clock on the afternoon of December 26, 1980, and wasted the other five milligrams, the wastage being witnessed by another licensed practical nurse, Ms. Grant.

      
      

   4. The December 26, 1980, patient progress notes for the patient, Petitioner's Exhibit No. 1, contain an entry reflecting administration of medication at five o'clock in the afternoon: [complaining] o[f] pain, medicated [with] M[orphine] S[ulfate] 10 mg IM . . . as stated by M. Denomme LPN." The entry is signed, "G. Grant LPN." The PRN medication administration record for this patient was signed by "G. Grant LPN" for the 3-to-11 shift on December 26, 1980. Petitioner's Exhibit No. 1.

      
      

      CHART NO. 667312

      
      

   5. On December 17, 1980, Dr. Batson ordered morphine sulfate for this patient "1/4 to 1/6 IM q 34 PRN Pain." Petitioner's Exhibit No. 1. At quarter of seven on the evening of December 17, 1980, respondent administered 15 milligrams of morphine sulfate to the patient, using one 10-milligram tubex and half of another, the wastage being witnessed by another licensed practical nurse, Ms. Grant, all according to the Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. "v. Robertson, GPN" signed the patient's PRN medication administration record for the 3-to-11 shift on December 17, 1980. Petitioner's Exhibit No. 1. The nurses' notes contain this entry for 6:45 (pm.): "c/o pain-Medicated E MS 15 mg IM as stated by V. Robertson GPN-G. Grant GPN."

      CHART NO. 67194-3

      
      

   6. For this patient, Dr. Batson ordered, among other things, "Morphine gr 1/6-gr 1/4 IM q 3-4 h prn pain. or Demerol 50-75-100 mg q 3-4 h IM prn pain. Tylenol #3 po T-TT q 3-4 h prn pain" on December 17, 1980, the date of his admission to West Florida Hospital's orthopedic ward. At half past six on the evening of December 17, 1980, the patient was given two tablets of Tylenol #3. Petitioner's Exhibit No. 1. He got another two tablets of Tylenol #3 about noon the following day. Petitioner's Exhibit No. 1.

      
      

   7. On December 19, 1980, Randy Godwin, a licensed practical nurse at West Florida Hospital, signed a Narcotics and Controlled Drug Administration Record indicating he had administered 15 milligrams of morphine to the patient at 6:20

      p.m. Petitioner's Exhibit No. 2. Attached to this Narcotics and Controlled Drug Administration Record is an interoffice memorandum to the hospital pharmacy from Cynthia Ayres, R.N., Assistant Director of Nursing. Ms. Ayres wrote, "I have met with Randy Godwin, LPN and discussed his specific narcotic errors. He was terminated from employment at WFH. I did not allow him to correct these errors." Petitioner's Exhibit No. 2. There is no indication on this patient's PRN medication administration record that he was given any morphine on December 19, 1980. Petitioner's Exhibit No. 1. No administration of morphine on December 19, 1980, was charted in the patient's progress notes. Petitioner's Exhibit No. 1.

      
      

   8. Respondent administered 75 milligrams of Demerol, the entire contents of a tubex, to this patient at half past seven on the evening of December 19, 1980, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. (Count II) At nine o'clock that night, the patient was watching television, and had no complaint of pain.

      
      

      JANUARY 24, 1981

      
      

   9. As she administered narcotics to patients during the 3-to-11 shift on January 24, 1981, respondent dropped waste paper and other debris in the narcotics drawer of the medication cart she had charge of. Toward the end of the shift, she was in the process of cleaning out the narcotics drawer when she felt something wet. Exclaiming something like, "Oh God, look at this," (T. 156; Testimony of Peat), she retrieved a cardboard container soaked to the point of disintegration with a solution of morphine sulfate, in the presence of Sandra Jean Peat, Randy Godwin, and other nurses who were in the medical room on the orthopedic floor at the time.

      
      

   10. Respondent recorded these events in an incident report and took the five-tubex plastic sleeve to the hospital pharmacy, about quarter of eleven. She asked the hospital pharmacist, James Thomas Allred, "to swap them out for five good ones." (T. 88.) At Mr. Allred's request, respondent prepared a second incident report in which she stated:

       
       

       When I was cleaning the Narcotics drawer, I picked up some of the packages and felt moisture on my hands. I then took the cartridges out of the PCK & found solution in bottom of Plastic Jacket. Two

       cartridges had the stopper out & 1 cartridge was broken. The tabs were intact as wit- nessed by R. Godwin LPN. Petitioner's Exhibit No. 3.

   11. After the wet plastic sleeve had been exchanged for a new one, respondent returned to the floor to catch up on charting. By this time, Randy Godwin had left the hospital. Mr. Allred jotted down his own contemporaneous account on the Narcotics and Controlled Drug Administration Record:

       
       

       Replaced a packet of five morphine sulfate

       15 mgs. for a packet of five returned by

       M. Denomme LPN. The packet returned had two syringes with their rubber plungers out. One of these two syringes was broken. All tabs were intact except for the broken syringe. The cart count will remain the same. Petitioner's Exhibit No. 2.

       
       

       When respondent noticed broken glass in the five-tubex plastic sleeve, after another nurse had seen the sleeve with all tabs intact but before respondent took it to the pharmacy, she opened a tab to fish out syringe shards.

       
       

   12. The evidence clearly and convincingly established that somebody tampered with more than one of the disposable syringes or tubexes inside the plastic sleeve. Although factory defects . . . do occur, this was not a case of defective manufacture; a needle had punctured the sleeve.

       
       

   13. As the medication nurse for the 3-to-11 shift, respondent had signed for the narcotics and controlled drugs in the medication cart and taken the keys at three o'clock on the afternoon of January 24, 1981. Petitioner's Exhibit No.

1. When she counted narcotics, before assuming responsibility for them, respondent did not pick up each item. Looking down into the narcotics drawer, she would not necessarily have known whether the bottom of the cardboard container holding two plastic sleeves, each of which contained five 15-milligram tubexes of morphine sulfate, was wet. Respondent was the third person to sign the Narcotics and Controlled Drug Administration Record as "oncoming nurse." Petitioner's Exhibit No. 2.

   
   

   1. She had the keys to the medication cart during the entire 3-to-11 shift except when she went to supper or took a break. No patient on the orthopedic floor received any morphine sulfate during the whole 24-hour-period.

      
      

      CHART NO. 682231

      
      

   2. Also on January 24, 1981, respondent administered two tablets of Tylenol #3 to this patient at 5:30 and another two tablets of Tylenol #3 at 9:35, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. This "patient had been medicated with Tylenol #3 since January 20th, and this medication had held her . . . for a period of at least four hours." (T. 55.) Respondent signed out for 75 milligrams of Demerol for this patient but wasted it, in the presence of Randy Godwin. Randy Godwin did not sign the Narcotics and Controlled Drug Administration Record as a witness, however.

      
      

      OTHER MATTERS

      
      

   3. There was absolutely no evidence that respondent acted strangely or as if under the influence of a controlled substance at any time between September, 1980, and February, 1981. No evidence was adduced regarding anything that happened on or about February 8, 1981.

   4. On or about January 30, 1981, Altha Steen Chandler, then a ward clerk on the 3-to-11 shift for the orthopedic floor, told Gail Price that, two weeks earlier, while cleaning in the conference room, she had knocked respondent's purse off a table; that the purse opened when it fell; and that she saw containers of codeine, Demerol, and Benadryl. On hearing this, Ms. Price promptly relayed it to Bonnie Ellen Ripstein, then departmental nursing supervisor over surgical floors. The truth of this allegation, repeated under oath at the hearing (T. 5), was not clearly and convincingly established, considering all the evidence.

      
      

   5. There was no proof that any codeine was ever missing or unaccounted for at West Florida Hospital at any time between September of 1980 and February of 1981. The only record keeping irregularity with which respondent has been charged regarding Demerol has to do with records kept on January 24, 1981, after the ward clerk claims to have seen a vial of Demerol in her purse. The substances themselves were not in evidence. Ms. Chandler's testimony about their packaging was contradictory: "The demerol and the codeine was in a plastic like container and had red writing on it. The benadryl was in a brown container, and it had yellow writing on it . . . . The benadryl was a glass vial, but the other two vials, seemed like they were plastic to me." (T. 16.) Respondent admits that she regularly carries a vial of Benadryl in her purse; she testified that she is allergic to bee stings. She denied that there was codeine or Demerol in her purse on or about January 16, 1981, and claimed to be allergic both to codeine and to Demerol.

      
      

   6. At some point,, Ms. Ripstein was given the assignment of auditing narcotics records with which respondent, Randy Godwin, Nancy Torch, and Debra Mann, now Rezzarday, had been involved. None of the four is now employed at West Florida Hospital. This audit turned up most of the charges made against respondent in these proceedings.

      
      

      STANDARDS AND CONDITIONS

      
      

   7. The nurses at West Florida Hospital were strongly encouraged to finish their duties before shift's end to avoid their employer's having to pay overtime wages. Once, when respondent stayed late to finish her charting, she was reprimanded even though she had clocked out. On the orthopedic floor, a nurse who was "caught up" with her work would chart for other nurses who were busy, indicating on the records that she was relying on oral representations of another nurse. This practice was against hospital policy and does not conform to minimal standards of acceptable and prevailing nursing practice. It is also a departure from minimal standards to waste a controlled substance like Demerol without a witness's signing the control sheet at the time the drug is wasted.

      It was not shown that any patient suffered any injury at respondent's hands or on her account.

      
      

   8. The written closing argument of respondent and petitioner's proposed recommended order have been considered in preparation of the foregoing findings of fact. Petitioner's proposed findings of fact have been adopted in substance, except where unsupported by clear and convincing evidence.

      CONCLUSIONS OF LAW

      
      

   9. Petitioner is authorized, by Section 464.018(2), Florida Statutes (1981), to revoke or suspend respondent's license; impose a fine "not to exceed

      $1,000 for each count or separate offense," Section 464.018(2)(c), Florida Statutes (1981); or issue a reprimand, if it can establish that respondent is guilty of:

      
      

      (d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently fail- ing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a li- censed nurse.

      1. 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.

      2. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chap- ter 893, for any other than legitimate pur- poses.

      3. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness, drunkenness, use of drugs, narcotics, chemicals, or any other type of material or as a result of any men- tal or physical condition. A nurse affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she can resume the compe- tent practice of nursing with reasonable skill and safety. Section 464.018(1), Florida Statutes (1981).

      
      

      In its proposed recommended order, petitioner abandoned Counts Three and Four in which violations of Section 464.018(1)(d) and (h), Florida Statutes (1981) , were alleged.

      
      

   10. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) , in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are

       established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d

       201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d

       391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

       
       

   11. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

       
       

   12. Petitioner met this burden with respect to its allegations of unprofessional conduct on account of omissions and other irregularities in charting as alleged in paragraphs four, five, and eight of the administrative complaint, but not otherwise. Technically, paragraph twelve alleges that respondent was counseled rather than alleging the underlying charting omissions, which omissions, however, respondent admitted. Easily the most serious charting error was the lack of a signature by the witness to the wastage of 75 milligrams of Demerol. Respondent's explanation was that her normal end-of-shift charting routine was interrupted by dealing with the hospital pharmacy in connection with the morphine tubexes; and that the witness to the wastage had left the hospital by the time she caught up with charting. The other charting irregularities amount in essence to respondent's having dictated to other nurses rather than making entries herself on the MAR and in the nurses notes.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for thirty days.

DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 28th day of June, 1982.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire Samuel R. Shorstein, Secretary

119 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation

130 North Monroe Street Allen W. Lindsay, Jr., Esquire Tallahassee, Florida 32301 Post Office Box 586

Milton, Florida 32570

Helen P. Keefe Executive Director Board of Nursing

111 East Coastline Drive Jacksonville, Florida 32202

Docket for Case No: 81-002418

Orders for Case No: 81-002418