STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2678

)

CAROLYN WILDER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard pursuant to notice on January 7, 1983, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a two-count Administrative Complaint filed by the Board of Nursing against the Respondent, Carolyn Wilder, alleging in Count I that the Respondent had been in the possession of a controlled substance for other than legitimate purposes contrary to the provisions of Section 464.018(1)(g), Florida Statutes, and charging Respondent in Count II with making a false report or record contrary to Section 464.018(1)(d), Florida Statutes, and failing to conform to the minimal standards of acceptable and prevailing nursing practice contrary to Section 464.018(1)(f), Florida Statutes.

APPEARANCES

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

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert W. Pope, Esquire

689 Central Avenue, 2nd Floor St. Petersburg, Florida 33701

ISSUES

With regard to Count I of the Administrative Complaint, the issue is whether the Respondent possessed a controlled substance for other than a legitimate purpose. The Respondent admits possession; therefore, the issue is whether she possessed the controlled substance for legitimate purposes. Count II alleges 47 specific instances in which the Respondent violated hospital policy by failing to account for a controlled substance by properly recording withdrawals and administrations of the controlled substance. The petitioner alleges that the Respondent made false reports or a record which she knew was false and, by the aforesaid conduct, failed to conform to minimal standards of acceptable and prevailing nursing practices. With regard to Count II, both factual and legal issues are controverted.

The Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

Count I

1. The Respondent is a licensed registered nurse and duly certified registered nurse anesthetist (CRNA) holding license number 40895-A. At all times relating to the charges, the Respondent was so licensed and was employed as a CRNA at Bayfront Medical Center (Bayfront), a full-service hospital located in St. Petersburg, Florida.

   
   

2. A CRNA essentially performs the acts of an anesthesiologist, inducing and maintaining in surgical patients a physical state which is appropriate for the particular surgical procedure to be performed through the administration of drugs to the patient.

   
   

3. On March 4, 1981, the Respondent had been working in the operating room at Bayfront during her regular shift and had just completed a surgical procedure at 12:00 noon, when at approximately 1:00 p.m. she was called to the administrative offices. She changed from her operating room clothes, took off her warm-up operating room jacket, and put on a long lab coat. The Respondent proceeded to the administrative offices, where she remained until she accompanied Donna Roberts, Manager, Surgical Services, back to Respondent's locker, where a consent search was conducted by Roberts.

   
   

4. Roberts' search revealed an ampule which was labeled Sublimaze, a trade name for the controlled substance fentanyl, in the pocket of Respondent's lab coat, which was in the Respondent's locker in the dressing room for female surgical staff at Bay front. Said locker room is located some 25 to 30 feet from the operating rooms.

   
   

5. The record reveals that CRNAs and anesthesiologists at Bayfront checked out medications at the beginning of their shifts at approximately 7:00 a.m. and retained these medications throughout the day, returning the remaining medications at the end of the day at approximately 5:00 to 6:00 p.m. The record reveals that CRNAs and anesthesiologists have breaks, eat lunch, and are at the hospital when not involved in surgery.

   
   

   Count II

   
   

6. The following procedures were in effect and followed by staff at Bayfront at the time involved in the Administrative Complaint. Although these procedures may not comport with the legal requirements, they were at that time and place the minimal acceptable standards of conduct accepted by the hospital administration.

   
   

   1. CRNAs and anesthesiologists drew their medications for the day early in the morning from the recovery room nurses in the recovery room. CRNAs and anesthesiologists on the hospital staff frequently drew medications for unknown patients, indicating type of surgery or in some instances giving the patient's name as John Smith. There was no requirement for CRNAs or anesthesiologists to initial narcotics records showing receipt of medications drawn from the recovery

      room nurse, who was charged with issuing these controlled substances. The names of patients were not required to be entered on the narcotics record. It was not uncommon for CRNAs and anesthesiologists on the hospital staff to be changed from one patient to another prior to the commencement of surgery. It was also not uncommon for one CRNA to relieve another CRNA during a surgical procedure and to finish the procedure.

      
      

   2. CRNAs and anesthesiologists were not required to show wastage. They used the quantity of drugs necessary during a surgical procedure, and if they ran out they had the circulating nurse in the operating room obtain additional medications from the recovery room nurse. Members of the hospital staff and other anesthesiologists turned in excess medication at the end of the day.

   
   

7. Sublimaze or fentanyl was introduced as an anesthetic agent and for many years was treated much like sodium pentathol, which is not controlled. Sublimaze or fentanyl is a controlled narcotic substance.

   
   

8. Some of the CRNAs employed at Bayfront use few, if any, controlled substances in their practice. However, many of the anesthesiologists use fentanyl regularly. The Respondent appears to have been the only CRNA who regularly used Sublimaze or fentanyl in her practice.

   
   

9. The following findings regarding the lettered paragraphs of the Administrative Complaint are summarized below by date:

   
   

   1. On 02/02/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Forman. She did not work on Forman. She did work on the patients Kilmark and Whitehead. She administered 3.5 cc (two ampules) of Sublimaze to Kilmark and 4 cc (two ampules) of Sublimaze to Whitehead.

      
      

   2. On 02/04/81, the Respondent had signed out to her ten ampules of Sublimaze for the patient Warren. She worked on Warren and administered 19 cc (ten ampules) of Sublimaze to him.

      
      

   3. On 02/06/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Asaro, three ampules of Sublimaze for the patient Mastry, and three ampules of Sublimaze for an unknown patient. The records show that the Respondent administered 9 cc (five ampules) of Sublimaze to the patient McMullen. The Respondent did not turn in or account for three ampules of Sublimaze.

      
      

   4. On 02/09/81, the Respondent had signed out to her three ampules of Sublimaze for the patient Hull and four ampules of Sublimaze for an unknown patient. The records reveal she participated in three surgeries on this date on patients Braswell, Walker and Morgan. The patient Hill was assigned to another anesthesiologist. The record reveals that the Respondent administered 5 cc (three ampules) of Sublimaze to Braswell, 6 cc (three ampules) of Sublimaze to Walker, and none to Morgan. The Respondent failed to turn in or account for one ampule of Sublimaze.

      
      

   5. On 02/11/81, the Respondent had signed out to her five ampules of Sublimaze for the patient Brown and three ampules of Sublimaze for the patient Graham. She participated only in the surgery on Graham. It appears that CRNA

      Kolodzeij may have anesthetized Brown. The Respondent administered 6 cc (three ampules) to Graham. Kolodzeij drew no medications for her surgeries on the date in question. Kolodzeij relieved Respondent during the Graham surgery and finished the procedure. The Respondent left for Kolodzeij to use on Graham all the ampules of Sublimaze which she had checked out.

      
      

   6. On 02/13/81, the Respondent had signed out to her five ampules of Sublimaze for the patient Smith and five ampules of Sublimaze for an unknown patient. The records reveal no patient Smith. The Respondent's only surgery on this date was the patient Vielhauber. The record reveals that the Respondent administered 6 cc (three ampules) of Sublimaze to Vielhauber. She failed to turn in or account for seven ampules of Sublimaze.

      
      

   7. On 02/15/81, the Respondent had signed out to her four ampules of Sublimaze for the patient Jocalsky. She participated in no surgeries on the date in question. The Respondent did not turn in or account for four ampules of Sublimaze.

      
      

   8. On 02/16/81, the Respondent had signed out to her six ampules of Sublimaze for an unknown patient and four ampules of Sublimaze for the patient Smith. The records reveal that the Respondent participated in five surgeries on the date in question. She administered 4 cc (two ampules) of Sublimaze to the patient Harrison, 3.5 cc (two ampules) to the patient Stephens, 6 cc (three ampules) to the patient Miller, 6 cc (three ampules) to the patient Fuldaver, and none to the patient Flournay, for a total of ten ampules. The records reflect that CRNA Robbins participated in surgery on a patient Jacobson, for which Robbins drew no medications.

      
      

   9. On 02/18/81, the Respondent had signed out to her six ampules of Sublimaze for unnamed patients and five ampules of Sublimaze for the patient Nelson. She participated in two surgeries on the date in question. She administered 3.5 cc (two ampules) of Sublimaze to the patient Rothwell and 12 cc (six ampules) to Nelson. Ford, R.N., as recovery room nurse, received two ampules of Sublimaze on the date in question as turned in from an unrecorded source. These are credited against the ampules withdrawn by the Respondent.

      The Respondent failed to turn in or account for one ampule of Sublimaze.

      
      

   10. On 02/20/81, the Respondent had signed out to her four ampules of Sublimaze for the patient Baker. She administered 6 cc (three ampules) of Sublimaze to Baker. The Respondent failed to turn in or account for one ampule of Sublimaze.

       
       

   11. On 02/23/21, the Respondent had signed out to her ten ampules of Sublimaze for the patient Hicks. The record reflects that the Respondent administered 9 cc (five ampules) to Hicks. The Respondent failed to account for or turn in five ampules of Sublimaze.

       
       

   12. On 02/24/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Jackson, two ampules of Sublimaze for the patient Marlin, and five ampules of Sublimaze for an unnamed patient. She participated in two surgeries on the date in question. She administered 5 cc (three ampules) of Sublimaze to Jackson and 3 cc (two ampules) of Sublimaze to the patient Lumpkin. The Respondent failed to account for or turn in four ampules of Sublimaze.

   13. On 02/27/81, the Respondent had signed out to her four ampules of Sublimaze for an obstetrical patient at 6:30 a.m. on the date in question and three ampules of Sublimaze for an obstetrical patient at 6:45 p.m. on the date in question. She participated in two surgeries on this date, one at 9:15 a.m. and one at 9:30 a.m. She administered 4 cc (two ampules) of Sublimaze to the patient Halstead at 11:30 a.m. The Respondent failed to turn in or account for three ampules of Sublimaze drawn at 6:45 p.m.

       
       

   14. On 03/04/81, the Respondent had signed out to her a total of eight ampules of Sublimaze for the patient Brown. She administered 5 cc (three ampules) to Brown. The Respondent failed to turn in or account for three ampules of Sublimaze.

   
   

10. On or about March 4, 1981, the Respondent was discharged from Bayfront. The Administrative Complaint in this cause was issued on September 24, 1981. At the request of the Respondent, the final hearing in this matter was continued on three occasions: March, November and December 1982. Since the filing of the Administrative Complaint, the Respondent has been unable to work in her profession due to the unresolved charges against her. She has been employed as a secretary since 1981 and has suffered significant reduction in her income.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Board of Nursing has authority to discipline the Respondent under the provisions of Chapter 464, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57, Florida Statutes.

    
    

12. In Count I of the Administrative Complaint, the Board alleges that the possession of Sublimaze by the Respondent in her locker was for other than a legitimate purpose. The record indicates that at Bayfront CRNAs and anesthesiologists commonly drew their medications in the morning and kept these medications all day, turning in any excess in the evening. Ordinary cautionary measures would require that these staff members secure the medications in some manner when on break, at lunch, or when called away from the operating room area. The fact that staff members drew medications in the morning and did not return them until late evening was known to Donna Roberts, Manager of Surgical Services at Bayfront. The Sublimaze found by Roberts in the Respondent's locker was discovered during Respondent's normal work day after she had been called off the floor. Under customary circumstances at Bayfront, the possession of a controlled substance by CRNAs during the working day was normal. Securing controlled substances in one's locker while away from operating room areas would not be inappropriate or for other than a legitimate purpose. Under the circumstances, the Respondent did not violate Section 464.018 (1)(g), Florida Statutes.

    
    

13. In Count II of the Administrative Complaint, the Respondent is charged with falsifying a report contrary to Section 464.018(1)(d), Florida Statutes, and failing to adhere to minimal standards of acceptable practice contrary to Section 464.018(1)(f), Florida Statutes, by failing to account for controlled substances. The record shows that the Respondent failed to account for all the Sublimaze which was issued to her. However, the record also reveals that patients' names were not required to be given, that CRNAs and anesthesiologists did not have to record wastage, and that they did not have to have wastage witnessed. These are ways in which accountability for controlled substances is

    maintained. If one does not have to record patients' names and wastage, one does not have to account for controlled substances. Put another way, under the then-existing system at Bayfront, if one is called upon to account for controlled substances one is issued after the fact, one cannot document where all of the controlled substances were used or destroyed.

    
    

14. The record reflects that Bayfront had become concerned over accountability for Sublimaze. As a result thereof, the Respondent's actions were examined, and she was called upon to account for the Sublimaze which she had been issued. Under the procedures which were in effect at that time at Bayfront, the Respondent could not account for all of the controlled substances which she had been issued. It was not unusual for medications to be passed from one CRNA or anesthesiologist to another. CRNAs and anesthesiologists did not initial showing receipt of controlled substances issued to them. They were not required to record wastage or have wastage witnessed. They did not have to enter a specific patient's name when drawing medication. The testimony in this regard was uncontroverted and supported in many details by the records introduced. The evidence received does not show that the Respondent departed from the procedures used at Bayfront at that time except on 02/15/81. The Respondent did not depart from the acceptable and prevailing standards of nursing practice except for her conduct on 02/15/81.

    
    

15. On 02/15/81, the Respondent was at Bayfront while she was not on duty. She drew four ampules of Sublimaze for a patient "Jacolsky." The records do not reflect a patient by that name who had surgery on 02/15/81 or 02/16/81. On 02/16/81, the Respondent drew additional Sublimaze for her patients. Her conduct on 02/15/81 was a departure from the procedures at Bayfront and from acceptable standards. On 02/15/81, the Respondent departed from acceptable and prevailing standards of nursing practice contrary to Section 464.018(1)(f), Florida Statutes.

    
    

16. No reports or records signed by the Respondent were introduced that were shown to be false under Bayfront's then-existing procedures. Although the procedures at Bayfront appear insufficient to meet the legal requirements of state and federal law, by following Bayfront's procedures the Respondent did not intentionally or negligently fail to file any report or record required by state or federal law. Section 464.018(1)(d), Florida Statutes, was not intended to penalize a licensee for following the procedures of his or her employing institution under the circumstances in which those procedures are legally inadequate. The Respondent did not violate Section 464.018(1)(d), Florida Statutes.

    
    

17. Considering that the Respondent has been effectively suspended from practice for over two years, the Hearing Officer would recommend that she be permitted to return to practice immediately and placed on probation for one year.

RECOMMENDATION

Having found the Respondent guilty of one count of violating Section 464.018(1)(f), Florida Statutes, and considering that she has been effectively denied the right to practice for two years, it is recommended that the Respondent, Carolyn Wilder, be permitted to return to practice and placed on probation for one year.

DONE and RECOMMENDED this 30th day of July, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 30th day of July, 1983.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Robert W. Pope, Esquire

689 Central Avenue, 2nd Floor St. Petersburg, Florida 33701

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Helen P. Keefe, Executive Director Board of Nursing

Ill East Coastline Drive, Room 504

Jacksonville, Florida 32202

Docket for Case No: 81-002678

Orders for Case No: 81-002678