STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-719

)

LINDA SEARS GIBSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on March 16, 1984 in Ocala, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Julia P. Forrester, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Linda Sears Gibson, Pro Se

a/k/a Linda Sears

2003 Southwest Seventh Street Ocala, Florida

This cause was initiated upon an amended administrative complaint filed against the Respondent whereby the Petitioner seeks to revoke, suspend or take other disciplinary action against the Respondent's licensure status as a practical nurse for violation to Sections 464.018(1)(s), Florida Statutes (1981), the "Nurse Practice Act." Specifically, it is alleged that on the dates September 16 and September 17, 1982, the Respondent failed to properly record the fluid intake of naso-gastric or "tube-fed" patients Whitehurst and Rubright and that on that date the Respondent made no entries, or inadequate entries in the nursing notes for patients Rubright, Whitehurst and Lesimby. It is further alleged that on September 17, 1982, the Respondent threatened to leave duty claiming illness even though she was not ill and that on September 16, 1982, she failed to order medications required by patients during the following weekend when it was her responsibility to do so.

At the hearing the Petitioner presented the testimony of five witnesses and introduced four exhibits into evidence. The Respondent presented her own testimony after waiving her Fifth Amendment rights.

At the conclusion of the hearing the Petitioner requested a transcript of the proceedings and the parties were afforded the right to file proposed findings of fact and conclusions of law. The Petitioner timely filed its

proposed findings of fact and conclusions of law. Those proposed findings of fact and conclusions of law have been considered by the Hearing Officer. To the extent that the proposed findings and conclusions have not been adopted or otherwise incorporated herein or are inconsistent with the findings and conclusions herein, they are found to be cumulative, immaterial, irrelevant, and not necessary to a determination of the material issues presented or not supported by the evidence. See Sonny's Italian Restaurant v. Department of Business Regulation, 41 So. 2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v.

Orlando Utilities Commission 43 So. 2d 383 (Fla. 5th DCA 1983). The issue to be resolved in these proceedings concerns whether the Respondent should have her practical nursing license revoked, suspended or have other discipline imposed on that licensure status if it be determined that she committed the aberrant conduct charged in the amended administrative complaint.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc.

   
   

2. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station.

3. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst.

   
   

4. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed.

   
   

5. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient.

   
   

6. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however.

7. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

9. Pursuant to Section 464.018(1)(f), Florida Statutes (1981), a nurse licensed in the State of Florida may be subjected to discipline with regard to her licensure status if proven guilty of unprofessional conduct which departs from or fails to conform to minimal standards of acceptable and prevailing nursing practice in Florida.

   
   

10. In proceedings of this type where an agency seeks to impose discipline upon licensure in a manner seriously affecting the ability and right of that licensee to continue to practice his or her profession, the prosecuting agency must prove the allegations of the administrative complaint by clear and convincing evidence. Gahns v. Department of Professional and Occupational Regulation, 397 So. 2d 107 (Fla. 3d DCA 1950); Walker v. Board of Optometry, 322 So. 2d 107 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2d DCA 1966). That evidence must be as substantial as the consequences or penalty to be meted out if the charges are proven. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1951). Petitioner herein has clearly proven by clear and convincing evidence, especially with reference to the expert testimony of nurses Cain and Jamison, that the Respondent has failed to comply with minimal standards of acceptable and prevailing nursing practice, chargeable to nurses in the State of Florida. By failing to make proper entries on the fluid intake and output records of patients Whitehurst and Rubright on her shift and failure to properly chart nursing notes for those patients on the dates in question, by failing to make proper explanatory notes on the nursing notes for patient Rubright on September 16, 1982 when that patient had a "O" intake of fluids charted for that day, Respondent clearly violated the above statutory authority.

    
    

11. Further, by her failure to order the next day's medication required of her in her position on the 11:00 p.m. to 7:00 a.m. shift by the policy of her employer, of which policy she was well aware, the Respondent has also violated the above subsection. Such a failure to order medication could have resulted in serious harm to such critical care patients. Finally, the Respondent was also shown to have violated this subsection of the nursing practice act by her failure to properly respond to her supervisor's assignment to duty in the east wing, specifically by threatening to report herself as ill and leave the facility rather than take an assignment which she preferred not to perform.

Such conduct exhibits a lack of concern for the welfare of the patients for whom she was responsible and demonstrates her primary concern was for her own convenience and personal preferance as to duties she should perform. In consideration of the fact that this Respondent has not been proven to have

committed such misconduct in the past nor to have been subjected to such disciplinary action previously, the substantial penalty of revocation or a lengthy suspension is not warranted, however.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed.

DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida.

P. MICHAEL RUFF 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 20th day of July, 1984.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Linda Sears Gibson

2003 Southwest Seventh Street Ocala, Florida

Helen P. Keefe, Executive Director Board of Nursing

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000719

Orders for Case No: 83-000719