ANNELORE C. CARLTON, )
vs. ) CASE NO. 81-2607
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 16 December 1981 at Tampa, Florida.
For Petitioner: Annelore C. Carlton, Pro Se
For Respondent: Percy W. Mallison, Jr., Esquire
By letter dated May 28, 1981, Annelore C. Carlton, Petitioner, requested a hearing to contest the denial by Respondent of, her application to write the licensed practical nurse examination,. By letter dated May 13, 1981, Respondent advised Petitioner that her application had been denied because, while serving as a student nurse,' Petitioner was guilty of unprofessional conduct. The unprofessional conduct was alleged to result from instilling approximately 50 cc of tube feeding in the tracheostomy of a comatose patient while Petitioner was working as a student nurse under the auspices of the Hillsborough Community College Nursing Program.
At the hearing two witnesses were called by Respondent and Petitioner testified in her own behalf. There was no real dispute regarding facts here involved.
On December 9, 1980, Petitioner was working as a student nurse at University Community Hospital, Tampa, Florida. She was in her next to last quarter as a student in the Registered Nurse Program at Hillsborough Community College. Her supervisor had assigned Petitioner to provide exclusive care to a comatose patient who had both a tracheostomy and a gastrostomy.
Attached to the trachea of this patient was a tube into which oxygen and water were added to help patient's respiration and to keep the proper moisture content in his lungs. The hole was covered by a mask which could be slipped aside by the nurse to suction fluids emerging from the lungs. This suctioning around the trachea was required every few minutes, hence the assignment of Petitioner to only one patient during this shift.
Petitioner was informed she would get this assignment one or two days prior and had visited the patient's room, read his charts, and studied the nursing required before reporting for duty on 9 December 1980. She was fully aware of the tracheostomy, gastrostomy, and the purpose and function of each.
Petitioner reported for work at 6:00 a.m. on December 9, 1980, and was assigned to the comatose patient as noted above. She spent most of the first two hours suctioning and cleaning around the tracheostomy and generally caring for the patient, which included turning the patient. From her observation and study Respondent was aware of the tube into the abdomen of this patient by which he was to be fed.
Shortly after 8:00 a.m. on December 9, 1980, Petitioner prepared the bag for liquid feeding of the patient and hung it on the IV pole alongside the patient's bed. She then connected the tube from the feeding bag to the tracheostomy tube.
Around 8:45 a.m. James Holly, a respiratory therapy technician, entered the room and saw Petitioner standing alongside the patient's bed with the feeding bag on the IV pole and the tube from the bag leading to the tracheostomy of the patient. He immediately yelled words to the effect that the feeding tube is connected to the treach and ran to the opposite side of the bed from which Petitioner was standing.
Petitioner heard a noise, immediately realized what was happening and removed the feeding tube from the trachea. Holly testified the patient coughed once violently; Petitioner testified-the patient did not cough violently. In either, event the patient's lungs were checked immediately with a stethoscope, the supervising nurse was sent for and Petitioner's supervisor was called. The patient received very little, ,if, any, feeding fluid into his lungs and suffered no adverse effects from this incident.
Petitioner's supervisor discussed the incident with Petitioner, assisted her in giving the patient his morning feeding and concluded Petitioner was capable of caring for the patient for the rest of the shift. Petitioner remained with the patient throughout the shift and gave the patient his twelve o'clock feeding without assistance or incident.
Petitioner's supervisor reported the incident to the Director of Nursing at Hillsborough Community College, who called a meeting of the evaluating committee the following day. At the evaluation hearing Petitioner could give no explanation of why she had connected the feeding tube to the tracheostomy tube rather than the gastrostomy tube, nor could she explain at this hearing why she did it. In Petitioner's words, "If I knew why I did it, it wouldn't have happened."
Following the meeting of the evaluating committee Petitioner was dismissed from nursing school and her subsequent application for readmission was denied. Her application to take the licensed practical nurse examination, for which her time as a student nurse qualified for the licensed practical nurse training requirements, was denied by Respondent and Petitioner requested this hearing.
Prior to the incident of 9 December 1980 Petitioner was regarded by her supervisors as well motivated, good with patients, and well organized. Petitioner is 37 years old and has wanted to be a nurse for a long time. She readily acknowledges that she knew the patient was to be fed through the gastrostomy tube, that the patient could not be fed through the tracheostomy tube and that it would be very dangerous to attempt to do so. Her inability to give any explanation of why she attached the feeding tube to the tracheostomy was a major factor in the evaluation board's determination to dismiss Petitioner from nursing school.
Transmitting liquid into a patient's lungs through a tracheostomy tube constitutes a very dangerous procedure which could prove fatal to the patient either from suffocation (if a sufficient quantity of fluid was injested) or through infection in the lungs from the unsterilized liquid. Committing such act constitutes a failure to conform to minimum standards of acceptable and prevailing nursing practices. Petitioner was sufficiently advanced in her training to know the proper procedures to be followed in such a case, and Petitioner readily acknowledges that she did know the proper procedures to follow and is unable to account for her deviation therefrom.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 464.008, Florida Statutes, prescribed the qualifications of applicants for licensure as a licensed practical nurse Subsection (1) thereof provides:
Any person desiring to be licensed as a registered nurse or licensed practical nurse
shall apply to the department to take the licensure examination. The department shall examine each applicant who:
Has completed the application form
and remitted an examination fee set by the board not to exceed $100.
Is in good mental and physical health, a recipient of a high school diploma or the
equivalent, and a graduate of an approved program for the preparation of registered nurses or licensed practical nurses, whichever is applicable. Courses successfully completed in a professional nursing program which are at least equivalent to
a practical nursing program may be used to satisfy the education requirements for licensure as a licensed practical nurse.
Has the ability to communicate in the English language, which may be determined by an examination given by the department.
Petitioner's testimony that she met the qualifications to sit for the licensed practical nurse examination was not disputed. Respondent proceeded in the course of this hearing as if Section 464.018(2) , Florida Statutes, was the applicable provision. That Subsection provides:
Each applicant who passes the exami- nation shall, unless denied pursuant to
s. 464.018, be entitled to licensure as
a licensed professional nurse or a licensed practical nurse, whichever is applicable.
From the foregoing it is concluded that Petitioner is qualified to sit for the examination for licensure as a licensed practical nurse and her application to so sit was improperly denied.
This case was presented as if Petitioner had passed the examination and was then denied licensure because of an alleged violation of s. 464.018. To ignore this issue, although not necessary to a determination of the legality of the denial of the Petitioner's qualifications to sit for the licensed practical nurse examination, would serve neither Petitioner nor Respondent, as both proceeded as though licensure was the issue rather than qualifications to sit for the examination.
Section 464.018, Florida Statutes, provides, inter alia, the following acts shall be grounds for disciplinary action which includes the refusal to certify to the department an applicant for licensure:
(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.
Petitioner's action in attaching the feeding tube to the tracheostomy tube was known by Petitioner to be wrong and unprofessional at the time the tube was so connected. This was not a conscious act of Petitioner, although she was fully conscious when the feeding tube was connected. The act occurred during a mental lapse or aberration and Petitioner herself is unable to explain or account for the mental lapse that led to what could have been a fatal error.
The serious question for decision is not whether Petitioner was guilty of unprofessional conduct-- she was--but whether the punishment imposed is appropriate for the offense committed. Bearing in mind the admonishment of the court in Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979) that so long as the penalty imposed (by the agency) is within the permissible range of statutory law, the appellate court has no authority to review the penalty unless agency findings are in part reversed, we are in a quite different position in these proceedings. The hearing process is intended to assist the agency in determining an appropriate penalty through adjudication in individual cases. Cf, McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The Petitioner was observed on the witness stand and in representing herself during the proceedings, a most unenviable task. The ultimate determination resolves itself into one simple question: Has the Petitioner by one act committed during a mental lapse for which she cannot account, shown herself to be forevermore not trustworthy as a nurse? I think not. It is
difficult to accept that by committing one error an individual can be permanently branded as dangerous or even incompetent, particularly when no explanation exists for the error. If the lack of explanation is the primary factor leading to the untrustworthy appellation, then the proposed punishment is less comprehensible. Despite the acknowledged expertise of Respondent in determining qualifications for licensure, it is ,doubtful that even that august body can appropriately determine lack of qualification based upon a failure to explain an inexplicable error.
While no specific incidents were presented at this hearing it is common knowledge that many licensees in the medical field have erred in leaving sponges in abdomens, amputating the wrong leg, performing unnecessary surgery, giving patients inadequate nursing care, and sundry other practices almost too frightening to contemplate; yet, few of those lost their licenses.
Here, we have a mature woman, highly motivated, who has committed a serious error for which she has no explanation. Will she be a better nurse in the future because of this grave sobering experience, or has she demonstrated by one isolated act that she is not qualified for licensure? I believe the former.
From the foregoing it is concluded that Petitioner was guilty of unprofessional conduct on December 9, 1980, by connecting a feeding tube to a tracheostomy tube but that act, standing alone, does not disqualify Petitioner from licensure as a licensed practical nurse. It is, therefore,
RECOMMENDED that Petitioner be authorized, if otherwise qualified, to sit for the examination for licensed practical nurse and, if successful, she be so licensed.
ENTERED this 5th day of January, 1982, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1982.
Annelore C. Carlton 3820 Ridge Avenue
Percy W. Mallison, Jr., Esquire Assistant Attorney General Department of Legal Affairs
