STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1981

)

BETTY BOWMAN FULK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 2, 1983, in Miami, Florida.

APPEARANCES

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

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Betty Bowman Fulk, pro se

Apartment 1221

1500 Northwest 12th Avenue Miami, Florida 33136

ISSUE

Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).

BACKGROUND

By administrative complaint dated June 16, 1982, the Department of Professional Regulation, Board of Nursing ("Department") charged respondent Betty Bowman Fulk ("respondent") with multiple violations of Chapter 464, Florida Statutes (1981), the "Nurse Practice Act." Specifically, the Department charged that respondent, on at least 12 occasions between December, 1981 and March, 1982, signed out Schedule II controlled substances but failed to properly record their administration or disposal, in violation of Sections 464.018(1)(d) and (f), Florida Statutes (1981). Other charges contained in the administrative complaint were subsequently dropped at hearing.

Respondent denied the charges and requested a hearing. On July 20, 1982, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for February 2,

1983. At hearing, the Department presented the testimony of Hattie Stinson, David Osterberger and Donna Rumbold. Petitioner's Exhibit Nos. 2-7 were received into evidence. Respondent testified in her own behalf and introduced respondent's Exhibit Nos. 1-6 into evidence.

The transcript of hearing was filed on March 14, 1983. The parties filed proposed findings of fact and conclusions of law by April 27, 1983.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. At all times relevant to the charges, respondent was a registered nurse (license no. 91221-2) employed at Jackson Memorial Hospital in Miami, Florida. (Testimony of Rumbold)

   
   

2. In February, 1982, she worked the 11:00 p.m. to 7:00 a.m. shift on West Wing 8 at Jackson Memorial Hospital. As a staff nurse, one of her duties was to record her administration and disposal of scheduled controlled drugs in accordance with hospital policy and regulations. (Testimony of Rumbold, Osterberger)

   
   

3. The hospital's policy and regulations required nurses to make entries in the Controlled Drug Administration Records and Medication Administration Records when they dispensed or disposed of controlled drugs. The entries must identify the patient, the drug, the time and date it is administered, the physician who prescribed it and the nurse who administered it. If the drug becomes contaminated or exceeds the dosage prescribed it may be, wasted (destroyed), but this may only be done in the presence of a second witness, who also must sign the Drug Administration Record. Respondent knew of these hospital requirements and, ordinarily, followed them. (Testimony of Osterberger, Rumbold, respondent)

   
   

4. On February 15, 1982, respondent drew a controlled drug, Meperidine, 75 mg. Tubex, to administer to patient Gladys Lopez. The Drug Administration Records do not indicate that she administered the drug or that she wasted it. (On that date, administration of this drug to patient Lopez was discontinued.) Respondent apparently, as was her practice, returned the unused drug to the pharmacy. She did not know that such action was not allowed. During orientation, she had been told that the unused portions of controlled drugs could be returned in small envelopes, with notations as to how much was administered, how much returned, the patient's name, and room number. She had returned controlled drugs to the pharmacy in the past, without being criticized for it. (Testimony of respondent)

   
   

5. On February 22, 1982, respondent drew Meperidine, 75 mg., a controlled drug, to administer to patient Alicia Finchum. She did not, however, record its administration. She, twice, wasted a portion of the drug and recorded it in the Controlled Drug Administration Record. However, she neglected to have it witnessed by another; the second witness signature line was left blank. (P-3A)

   
   

6. Also, on February 22, 1983, respondent drew 60 mg. of Phenobarbital, a controlled drug, to administer to patients Tom Baker (twice) and Ethel Lewis. She indicated on the Controlled Drug Administration Record that she wasted a total of 45 mg., but she did not have the wasting witnessed by a second person; the second witness signature line was left blank. (P-4A)

7. A registered nurse who, contrary to hospital policy and regulations, draws a controlled drug to administer to a patient but fails to properly chart its administration or disposal violates minimal acceptable nursing standards. (Testimony of Rumbold)

   
   

8. There are numerous instances of other registered nurses at Jackson Memorial Hospital having committed similar charting errors. Yet, they have not been disciplined. Careless controlled drug recordkeeping was apparently condoned or overlooked by hospital supervisory personnel.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

   
   

10. Section 464.018(1), Florida Statutes (1981) authorizes the Board of Nursing to revoke, suspend, or otherwise discipline the license of a nurse for, among other things,:

    
    

    (d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing 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 licensed nurse.

    * * *

    (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.

    
    

11. License revocation proceedings, such as this are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

12. Measured by these standards, it is concluded that the evidence establishes that respondent violated Section 464.018(1)(f) on three separate occasions. She failed to conform to minimal standards of acceptable and prevailing nursing practice by not fully and accurately recording administration or disposal of controlled drugs. The evidence, however, does not establish a violation of Section 464.018(1)(d).

    
    

13. Penalty. It is critically important that nurses maintain accurate and complete controlled drug administration records. This is so even if a hospital condones or overlooks careless recordkeeping. It is, however, unfair to single out one individual for disparate treatment or a disproportionate penalty.

    Moreover, there is no evidence of prior disciplinary infractions by respondent. Accordingly, the imposition of an administrative fine of $500.00 and the issuance of a reprimand, are warranted. Such a penalty would impress upon respondent the seriousness of her infractions and serve to deter others from engaging in similar misconduct.

    
    

14. The parties' proposed findings of fact, to the extent they are incorporated herein, are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolving the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions.

DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 6th day of May, 1983.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Betty Bowman Fulk, pro se Apartment 1221

1500 N.W. 12th Avenue Miami, Florida 33136

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Helen P. Keefe, Executive Director

Department of Professional Regulation

Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32202

Docket for Case No: 82-001981

Orders for Case No: 82-001981