STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1355

)

MYRTIS BROWN HARRIS, R.M., )

)

Respondent. )

)

RECOMMENDED ORDER

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 15 October 1982 at Jacksonville, Florida.

APPEARANCES

For Petitioner: Frank Vickory, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Myrtis Brown Harris, Pro Se

3237 West Edgewood Avenue Jacksonville, Florida 32209

By Administrative Complaint dated 13 April 1982 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Myrtis Brown Harris, Respondent. As grounds therefor it is alleged that Respondent is unable to practice nursing with reasonable skill and safety to patients by reason of mental or physical condition.

Specifically, it is alleged that Respondent administered oxygen to a deceased patient, described persecution by others, exhibited flighty ideas and changed subjects erratically.

At the hearing Petitioner called one witness and Respondent testified in her own behalf. Proposed findings submitted by Petitioner and not included below were not supported by the evidence or were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. Myrtis Brown Harris is a registered nurse and has been so registered for some 30 years. She also holds a master's degree from Florida State University and a Rank II teaching certificate.

   
   

2. In February 1982 while Respondent was working as a registered nurse at St. Jude Nursing Home in Jacksonville, Florida, her supervisor received

   information from aides that Respondent was giving oxygen to a deceased patient. Upon arriving in the room the supervisor observed Respondent administering oxygen to the patient who was, in fact, dead. The supervisor testified that she asked Respondent how long the patient had been dead and why she was giving oxygen, and Respondent replied the patient had been dead for about an hour but he looked like he needed a little oxygen.

   
   

3. Respondent, on the other hand, testified that when she came on duty that evening, after inventorying narcotics, she commenced her rounds of the 56 patients under her care, starting with those on life-support systems. When she arrived at this particular room, the patient was in a sitting position with his bed up and was cyanotic. She checked his pulse, found he had none, brought in oxygen equipment, and attempted to resuscitate the patient. She denied saying the patient had been dead for an hour and considered her actions proper in the emergency situation she encountered.

   
   

4. Standard procedure at St. Jude Nursing Home is for the supervising nurse to be called if a patient dies. Respondent, on this occasion, did not notify the supervisor. When asked why she had not called the supervisor, the supervisor testified Respondent told her she was too busy to call her. Respondent testified that the supervisor had 45 patients to administer and she did not want to bother her unless help was needed.

   
   

5. This witness was Respondent's supervisor for a short period of about one month and testified that she had observed Respondent when Respondent appeared to be unaware of her surroundings. Specifically, she recalled Respondent's going down the corridor of the nursing home with one finger in the air, turning occasionally, and talking, apparently to the walls. Respondent testified that she had adopted the mannerism of holding one finger in the air to symbolize "There must be one person around here who knows what's right from what's wrong."

   
   

6. Other incidents described by the supervisor were from what she had been told by others and not what she had personally observed. This hearsay evidence was not used as the basis for any findings.

   
   

7. Respondent took the stand and testified at length about some of her difficulties. She suffers from a persecution complex which detracts from her usefulness as a junior college teacher, which she used to be, and as a nurse. She had brought discrimination actions against former employers and believes authorities, such as police, are infringing on her rights and that her potential employers who don't hire her are discriminating against her in violation of the Equal Employment Opportunities Act.

   
   

8. On the other hand Respondent is well educated and articulate. No evidence was presented that any of Respondent's actions caused harm or potential harm to her patients.

   
   

9. Respondent testified she visited a psychiatrist after leaving St. Jude Nursing Home and was told she should get another job. Respondent states she filed an EEOC complaint in 1966 against Brewster (now Methodist) Hospital and feels she has been retaliated against since that time. In 1977 during a CBS- sponsored call-in to the White House Respondent called to complain that she was being retaliated against. She sends complaints to federal judges, FBI, police, customs and others. Recently she mailed "all over" Jacksonville copies of the Ten Commandments she had reproduced.

10. Respondent further testified she has received psychiatric evaluations in 1974, 1979, and 1982 from doctors Lasorda, Orea, and Burdesque, respectively, but was unable to get copies of their reports.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Section 464.018(1), Florida Statutes (1981), authorizes disciplinary action against a licensee who commits the act of:

    
    

    (h) Being unable to practice nursing with reasonable skill and safety to patients by reason of ill- ness, drunkenness, use of drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

    A nurse affected under this para- graph shall at reasonable intervals be afforded an opportunity to demon- strate that she can resume the competent practice of nursing with reasonable skill and safety.

    
    

13. Respondent's explanation of the oxygen/deceased patient incident is reasonable. It is expected that a nurse would attempt to resuscitate a patient she suddenly finds not breathing. The evidence that the patient had been dead for an extended period of time was not credible.

    
    

14. The burden of proof to establish by a preponderance of the evidence the claim that Respondent is unable to practice nursing with reasonable skill and safety to patients is on Petitioner. Florida Department of Transportation

    v. J.W.C. Corporation and Department of Environmental Regulation, 396 So.2d 778 (Fla. 1 DCA 1981); Balino v. Department of Health and Rehabilitative Services,

    348 So.2d 349 (Fla. 1 DCA 1977). This burden is not established by proof creating an equipoise. Florida Department of Health and Rehabilitative Services

    v. Career Service Commission, 289 So.2d 412 (Fla. 4 DCA 1974).

    
    

15. While there is evidence, principally from the testimony of Respondent, that her persecution complex does little to endear her to her employers, no evidence was presented that Respondent has not treated her patients with reasonable skill and safety. In view of Respondent's testimony that she has been evaluated by psychiatrists, it would appear appropriate for the Board of Nursing to become privy to those evaluations. If Respondent will not voluntarily authorize the release of those evaluations to the Board of Nursing, future bizarre behavior by Respondent could lead to emergency suspension pending such release and further psychiatric evaluation.

From the foregoing it is concluded that the evidence presented is insufficient to show, by a preponderance thereof, that Respondent is unable to practice nursing with reasonable skill and safety to patients by reason of mental or physical condition. It is

RECOMMENDED that these charges be dismissed.

ENTERED this 29th day of November, 1982, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer 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 29th day of November, 1982.

COPIES FURNISHED:

Frank Vickory, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtis Brown Harris

3237 West Edgewood Avenue Jacksonville, Florida 32209

Helen P. Keefe, Executive Director Board of Nursing

Department of Professional Regulation Room 504, 111 East Coastline Drive

Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001355

Orders for Case No: 82-001355