STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2507

)

DAVID BROWN, R.N., )

)

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 February 23, 1983, at Jacksonville, Florida.

APPEARANCES

For Petitioner: W. Douglas Moody, Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: David W. Brown, pro se

Post Office Box 8822 Jacksonville, Florida 32239

By Amended Administrative Complaint filed August 13, 1982, the Department of Professional Regulation, Board of Nursing, seeks to revoke, suspend, or otherwise discipline the license of David W. Brown as a registered nurse. As grounds therefor it is alleged that Respondent, while employed at St. Johns Psychiatric Hospital, Hodges Boulevard Cluster, and St. Augustine General Hospital, is guilty of unprofessional conduct in mistreating patients, in making unprofessional comments about and committing unprofessional acts with patients and other employees, in bringing martial arts weapons to the hospital and demonstrating them to other employees, in failing to chart a patient's complaint against Respondent, and in leaving his duty station for extended periods while in a car in the parking lot at the hospital with far another employee. Charges regarding misuse or mishandling of drugs were voluntarily withdrawn at the conclusion of Petitioner's case.

At the commencement of the hearing, Respondent's motion for a continuance on the grounds that he did not receive a notice of the hearing until February 11, 1983, was denied, with leave to renew the motion at the conclusion of Petitioner's case. The Hearing Officer's file reveals a copy of the notice of hearing was mailed to Respondent's correct address on October 6, 1982, and was not returned by the post office. Respondent states he did not receive this notice and learned of the hearing time and place by calling the office of the Board of Nursing to inquire as to the status of this case. At the conclusion of Petitioner's case, Respondent renewed his motion for a continuance and the

hearing was recessed to allow the parties time to resolve any problems Respondent may have to proceeding. When the hearing reopened, Petitioner voluntarily dismissed Count 7(B), 8 (with respect to Sosa), 13, 14, 15, 16 and

19 and stipulated that in regard to technique and knowledge, Respondent is a competent nurse. Respondent then withdrew his motion for continuance.

During the hearing, Petitioner called 12 witnesses, Respondent testified in his own behalf, and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. David W. Brown, Respondent, is a registered nurse and was so registered at all times here relevant. During the period 1978-1982, Respondent was employed at St. Augustine General Hospital, St. Johns Psychiatric Hospital, in Jacksonville, Florida, and Hodges Boulevard Cluster as a registered nurse. During his tour at St. Johns Psychiatric Hospital and Hodges Boulevard Cluster, Respondent served as night nurse (11-7 shift).

   
   

2. While at St. Johns, Respondent, while attempting to draw blood from an elderly male patient, was struck in the eye by this patient. In retaliation, Respondent grabbed the patient's index finger and bent it back. On another occasion when he refused a female patient in restraints something to drink and she spat on him, Respondent slapped her.

   
   

3. When a 16-year old female patient complained to a nurse's aid that Respondent had fondled her breasts, he directed the aide not to chart the event. Respondent's testimony, that he told the aide to take her instructions on charting the incident from the charge nurse who investigated the incident, is not credible.

   
   

4. On several occasions, Respondent, a martial arts buff, brought some of his martial arts equipment to the hospital and showed it to other staff members. This consisted of throwing stars, numchucks and knives. Respondent admitted bringing this equipment to the hospital and showing it to staff members but he denies throwing the pointed stars into a door and contends it was another member of the staff who threw the stars at the door.

   
   

5. Respondent, on several occasions, showed another male staff member various holds used in martial arts and occasionally refused to release them when they demanded to be released. This caused discomfort and considerable displeasure to those so treated. Respondent contends he only showed them these holds at their request.

   
   

6. While demonstrating to a female aide certain pressure points in emergency treatment of chest injuries, Respondent placed his hand on the aide's breast. Respondent contends he was only showing the aide certain procedures at her request. The aide testified that thereafter she never let Respondent get within three feet of her.

   
   

7. Several witnesses testified that Respondent made unprofessional comments to them about female patients such as "she has nice tits" as well as comments disparaging to blacks. One black witness testified she was not offended because she knew Respondent was joking when he made the comment. Several witnesses also testified that Respondent exhibited cruel and sadistic conduct toward patients; that he would arbitrarily refuse to give patients water, let them smoke, or leave their rooms; that he was rude to patients; he

   seemed to have no compassion for patients; and that these witnesses were uncomfortable around Respondent because of his demeaning manner.

   
   

8. Working at Hodges Boulevard Cluster, Respondent became friendly with the nurse he relieved on the 3-11 shift and often when she left duty after being relieved, Respondent would walk her to her car in the parking lot and remain with her for up to one and a half hours before returning to his duty station. Respondent admitted walking the nurse to her car but contends this was done solely for the woman's protection; that he was responsible for the security of the establishment; and that, while outside, he made a security check around the grounds.

   
   

9. On another occasion a car, which was not recognized by the personnel on duty, was noticed in the hospital parking lot late at night. As nurse in charge of the night shift, Respondent proceeded to investigate. He got in his car and drove to where the car was parked, got out carrying a pistol he kept in his car, pointed the gun at the strange car, and directed the occupants to get out. They were hospital employees who were off duty but who had not gone home. Respondent testified that he removed the clip from his gun before he got out of the car but doesn't remember why he did so.

   
   

10. While Respondent was employed at St. Johns, a patient was in difficulty and an ambulance had already been called to take the patient to a medical hospital when Respondent came on duty. Earlier attempts to hydrate the elderly patient intravenously had been unsuccessful when the nurses couldn't get the smallest needle, suitable for passing intravenous fluids, into the patient's vein. At some additional discomfort to the patient, Respondent attempted to use a Jalco type device which held a larger needle than the butterfly the earlier shift had tried without success. Respondent contends that he was directed by his superior to help, that he was better qualified than those on the shift he was relieving, but admitted lack of success in getting the needle into the patient's vein.

    
    

11. In 1976, while working at St. Augustine General Hospital, the medicine cart was opened without a key by Respondent. One witness testified Respondent admitted opening the medicine cart by using a case knife. Respondent testified someone else had opened the cart and he had repeated the process to demonstrate to his superiors how it could be done.

    
    

12. While at St. Johns and at the Clusters, Respondent frequently carried a sheath knife while on duty. Some witnesses described the knife as a switchblade; however, Respondent testified it was an ordinary sheath knife with a blade less than four inches long and that it was used solely for opening boxes while taking inventory.

    
    

13. In 1980, while employed at St. Johns Psychiatric Hospital, Respondent struck a juvenile patient who was violently resisting Respondent's attempt to medicate him, and his license was suspended for one month following an administrative hearing (Exhibit 1).

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 464.018(1), Florida Statutes, provides the following acts, inter alia, shall be grounds for disciplinary action:

    (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 a 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.

    
    

16. Competent evidence was submitted from which it can be found that Respondent impeded or obstructed the charting, in the nurses notes, the accusations made against him by a female patient. Testimony was presented that such charting is an important part of the duties of a nurse. However, my attention has not been directed to any statute, either state or federal, which requires such incidents be charted.

    
    

17. These proceedings are penal in nature, State ex rel. Vining v. FREC,

    281 So.2d 487 (Fla. 1973) and statutes declaring certain acts to be grounds for revocation of license are to be strictly construed. Lester v. Department of Professional and Occupational Regulation, etc., 348 So.2d 923 (Fla. 1st DCA 1977). Absent a specific requirement by state or federal law, to chart such incidents Respondent may not be found guilty of violating Section 464.018(1)(d), above-quoted. Such conduct could be found to be unprofessional conduct if so charged. Lester v. Department of professional and Occupational Regulation, supra.

    
    

18. With respect to the charge of opening a locked medicine cart at St. Augustine General Hospital, it is noted that the offenses charged to have been committed "on or about November 14, 1986." While it is probable that the intended date was 1976, this date is six and a half years ago and nearly two years prior to the charge of unprofessional conduct of which Respondent was found guilty in Exhibit 1. Furthermore, the only evidence to support this charge was the testimony of one witness who testified Respondent admitted opening the medication cart. Respondent testified that he demonstrated to his superiors how the locked cart could be opened with a knife. I find the evidence inadequate to sustain a finding of guilty of this charge.

    
    

19. The other allegations of mistreatment of patients by bending a finger, striking, addressing in an abusive manner, and attempting to use a larger needle to hydrate a patient when others have failed to insert a smaller needle were supported by clear and convincing evidence. Likewise, the charges of acting in an unprofessional manner toward hospital staff by touching the breast of a nursing assistant, treating subordinates in a demeaning manner, making inappropriate sexual comments towards them, and making sexually related and improper comments about patients to other staff members were supported by clear and convincing evidence.

20. The allegation regarding the use of a pistol by Respondent while investigating the "strange" car in the parking lot is charged under Paragraph 7 of the Administrative Complaint which alleges acting toward hospital staff in an unprofessional manner. Although the act of approaching a parked car with a pistol in his hand pointed at the "strange" car constitutes conduct lacking in considerable judgment, the evidence was unrebutted that until the occupants of the car got out, no one suspected they were members of the hospital staff.

    Under these circumstances, a finding of unprofessional conduct toward staff members cannot be sustained.

    
    

21. The evidence was unrebutted that Respondent brought his martial arts weapons to the hospital and to the Clusters. This conduct was clearly unprofessional, particularly where mental patients were being treated.

    
    

22. It is also found that Respondent left his duty station at the Clusters for extended periods of time while he sat in a car in the parking lot with a female staff member. Respondent's testimony that he only got in the car with her when it was raining, that he only stayed a few minutes with her, and that he spent the rest of the time away from his duty station checking the security of the area is not credible.

    
    

23. From the foregoing, it is concluded that Respondent is guilty of unprofessional conduct as noted above. It is also concluded that Respondent has personality traits that seriously detract from his effectiveness as a registered nurse. Revocation of a professional license is the most serious punishment that can be imposed upon a professional. This Respondent is a technically capable and qualified nurse whose effectiveness is impaired by lack of empathy for people. Perhaps he is of a temperament unsuited for the nursing profession. A period away from the profession may lead him into another field in which his personality is not a handicap, or it may cause Respondent to better control his impulses. In any event, it is concluded that the acts of which Respondent has been found guilty, are not the type which are life or health threatening to patients. It is, therefore,

Recommended that the license of David W. Brown as a registered nurse be suspended for a period of six months.

ENTERED this 15th day of April, 1983, at Tallahassee, Florida.

K. N. AYERS 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 15th day of April, 1983.

COPIES FURNISHED:

W. Douglas Moody, Esquire Ms. Helen P. Keefe

119 North Monroe Street Executive Director Tallahassee, Florida 32301 Board of Nursing

Room 504, 111 East Coastline Drive

Mr. David Brown Jacksonville, Florida 32202 Post Office Box 8822

Jacksonville, Florida 32239

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002507

Orders for Case No: 82-002507