STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2413

)

CORNELIA WHITENING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams on February 11, 1983, in Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of record which was filed with the Division of Administrative Hearings on March 9, 1983. In addition, Petitioner, through counsel, has offered a proposed recommended order and that proposal has been examined prior to the entry of the Recommended Order. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. To the extent that the proposal is inconsistent with the Recommended Order, it is rejected.

APPEARANCES

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

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Cornelia Whitening, Pro Se

2087 West 26th Street Jacksonville, Florida 32209

ISSUES

The issues in dispute in this case result from an administrative complaint brought by Petitioner against Respondent accusing Respondent of inappropriate conduct by placing a controlled substance, within the meaning of Chapter 893, Florida Statutes, in the possession of a fellow nurse practitioner, which controlled substance had not been prescribed for the benefit of the other nurse. Respondent is also accused of misappropriating an amount of that controlled substance for her personal use. Purportedly, these actions violate Subsection 464.018(1)(f), Florida Statutes, in that Respondent was guilty of unprofessional conduct departing from the minimal standards of acceptable and prevailing nursing practice and in violation of Subsection 464.018(1)(g), Florida Statutes, by engaging or attempting to engage in the possession, sale, or distribution of controlled substances within the meaning of Chapter 893, Florida Statutes, other than for legitimate purposes.

FINDINGS OF FACT

1. On August 18, 1982, the Secretary, State of Florida, Department of Professional Regulation, filed the Administrative Complaint which is the subject of this hearing. This case is being prosecuted by that Department pursuant to Chapter 464, Florida Statutes. Respondent disputed factual allegations within the Administrative Complaint, which led to the formal hearing on February 11, 1983.

   
   

2. Respondent is licensed by the State of Florida, Board of Nursing, in the category of licensed practical nurse and at all times pertinent to this case held License No. 39013-1.

   
   

3. On April 29, 1982, Respondent was working in the capacity of a licensed nurse at the University Hospital, Jacksonville, Florida. She was serving as a floor nurse at that time. A patient who had been admitted to the hospital, was discharged and 30 Tylenol Number 3 tablets, a scheduled substance within Chapter 893, Florida Statutes, which had been dispensed for the benefit of that patient, were left in the hospital following the patient's discharge. Tylenol Number 3 contains Codeine phosphate, 30 mg.

   
   

4. Respondent retrieved those tablets on the date in question and approached another nurse practitioner who was working on the same floor on that evening. This nurse is Bonnie Booth who is licensed as a registered nurse in the State of Florida.

   
   

5. While in Booth's presence, Respondent stated, "these were left by a patient who probably doesn't want them anyway and, you know, the patient is gone. So, what's the difference if they go back to the pharmacy or not?" Respondent additionally mentioned having a problem with her knee and taking one of the Tylenols for that difficulty. Booth told Respondent that the tablets should be locked in the medication security area and gave the keys to Respondent that would unlock that narcotics cabinet. Respondent walked away and while standing by a medication cart, Respondent counted the tablets, walked back to Booth, and placed 16 of those tablets in Booth's laboratory coat pocket. While standing there, Respondent told Booth that Booth and Respondent should split the pills "50/50", meaning an equal share of the controlled substance. Respondent then left the area, taking with her the remainder of the Tylenol tablets. Booth subsequently turned in the tablets in her possession by giving them to hospital officials. Those items were introduced in the hearing as Petitioner's Exhibit No. 1.

   
   

6. Later on that same evening, following Booth's provision of the tablets which she had received to officials within the hospital, Respondent spoke to Booth. Respondent asked Booth why she had told the hospital officials and was answered, to the effect, that Booth did not involve herself with drugs. Respondent then asked Booth to return the tablets which Respondent had given her and was told that it was too late to do that.

   
   

7. According to Debra Fitzgerald, Advanced Nurse Practitioner, certified by the State of Florida, the actions by Respondent involving the Tylenol were not in keeping with minimal and acceptable standards of nursing practices in the State of Florida. This opinion is correct.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See, Subsection 120.57(1), Florida Statutes.

   
   

9. By her actions in misappropriating Tylenol Number 3 tablets, dispensing a portion of those tablets to Nurse Booth and keeping the remainder of the tablets, Respondent was guilty of unprofessional conduct, by departing from and failing to conform to the minimum standards of acceptable and prevailing nursing practices, within the meaning of Subsection 464.018(1)(f), Florida Statutes.

   She also was guilty of engaging in the possession and distribution of controlled substances as set forth in Chapter 893, Florida Statutes, in violation of Subsection 464.018(1)(g), Florida Statutes. For these violations, Respondent is subject to the penalties set forth in Subsection 464.018(2), Florida Statutes.

   
   

10. Based upon full consideration of the facts, conclusions of law, and suggested disposition offered by Petitioner's counsel, it is

RECOMMENDED:

That a Final Order be entered placing Respondent on a period of probation of two years, with a special condition that Respondent attend continuing education courses related to dispensing controlled substances as defined in Chapter 893, Florida Statutes, and related to implications of abuse of controlled substances.

DONE and ENTERED this 8th day of April, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1983.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Ms. Cornelia Whitening 2087 West 26th Street

Jacksonville, Florida 32209

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Helen P. Keefe Executive Director Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32202

Docket for Case No: 82-002413

Orders for Case No: 82-002413