STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1260
)
ERIN GAYLE McCORMICK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in this case was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Leesburg, Florida, on July 28 1983. The issue for determination was whether the Respondent's nursing license should be suspended, revoked, or otherwise disciplined for alleged repeated instances of misconduct, as set out in the Administrative Complaint.
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: George L. Waas, Esquire
Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301
INTRODUCTION
Petitioner filed an Administrative Complaint on March 28, 1983, alleging that Respondent ingested codeine without a prescription, abused patients, charted nursing functions without having performed them, falsified employment applications, was physically or mentally incapable of skillfully and safely practicing nursing because of the use of external substances and violated a previously entered order of the Board of Nursing, all of which are alleged to be violations of various provisions of Chapter 464, Florida Statutes (1981).
Petitioner presented the testimony of Catherine Devore, Eugene K. Speener, Donna Devoe, Doris Draper, Laura Burley, Lillian Dick, Charles W. Dick, Dr. Paul
Tumlin, Nita Edington, Carol Hawks, Reba Simons, Mary Willis, Jill Warren and Penelope Swager, and Petitioner's Exhibits 1 through 5, 7 through 9, 11, 13 through 17, and 21 through 25. Respondent testified in her own behalf and presented the testimony of Beth Scovil Moore, Janet O. Arnold and Emma Lou Gray, and Respondent's Exhibits A through D.
FINDINGS OF FACT
At all times pertinent hereto, Respondent, Erin Gayle McCormick, was a registered nurse and licensed as such by the State of Florida under License No. 101652-2.
On June 24, 1981, Respondent's nursing license was suspended because of charges relating to drug use and the forging of prescriptions and their subsequent issue while she was employed at Leesburg Nursing Center during August and September, 1980. Thereafter, on October 12, 1982, the suspension was lifted and Respondent's license was reinstated on one year's probation, subject to certain conditions, one of which was that she not violate any federal or state laws, or rules or orders of the Board of Nursing. Another condition of probation was that she not consume or otherwise self-medicate with any unprescribed controlled substances.
Respondent has been a long-term patient of Dr. Paul F. Tumlin, her family physician for many years and who, during the period August through October, 1982, treated her several times for two separate types of headaches, cluster headaches and migraine headaches. Both generate great pain when an attack is ongoing. During the period in question, he treated Respondent with several types of pain killers, some of which are controlled and some of which are not. Among the drugs he used to treat Respondent are: Florinal, Zomax, Phenergan, Inderal, Ludiomil, Talwin and Nubain.
Each of these drugs has some side effect. However, over prolonged use, a tolerance may develop in the patient so that the magnitude of the side effect is reduced. Several of them produce such side effects as drowsiness and blurred vision (Ludiomil and Talwin). Another (Inderal) produces depression and weakness. Phenergan is a drug which used in conjunction with others tends to accentuate or extend the effect of that drug. The side effects are of varying duration, and a nurse should not practice her profession when those side effects, such as drowsiness, unclear vision, unsteadiness and weakness, interfere with the full effective control of her facilities and the safe performance of her duties. However, reasonable use of any drug, consistent with a medically indicated purpose, does not constitute drug abuse. Dr. Tumlin cannot recall from memory or from his records any instance where Respondent abused medications prescribed for her by him.
All of the drugs Dr. Tumlin prescribed for Respondent during this period are listed in her medical records. These records reflect that on October 14, 1982, Dr. Tumlin prescribed for the Respondent 36 tablets of Florinal #3, a pain killer which contains codeine, which he directed be taken either one or two at a time every four hours for pain. This prescription was authorized one refill.
Pursuant to the terms of the October 12, 1982, Order, on October 18, 1982, less than one week after the reinstatement of Respondent's license, Nita Edington, an investigator for the Department of Professional Regulation (DPR), contacted Respondent and requested she provide a urine sample for testing. This was not done because of any report of drug abuse by Respondent and was less than a week after the Board of Nursing, in its October 12, 1982, Order, indicated receipt of good reports on her rehabilitation. This urine sample provided by Respondent was subsequently tested by DPR's contract laboratory and determined to be positive for codeine. However, this codeine residue was from the ingestion of Florinal #3, which had been previously prescribed for Respondent by her physician.
Respondent was employed in a full-time position as a nurse at the Leesburg Nursing Center, Leesburg, Florida, during August and September, 1980. When she had indication her license was to be reinstated, on August 12, 1982, she applied for a position at the Lakeview Terrace Retirement Center (LVT). The application form filled out, signed and submitted by Respondent calls for "Former Employers and Experience (References)" and reflects that the position desired by the applicant was "sitter." Respondent, in listing former employers, listed the following:
Shoe-Biz III | 10/81-2/82 | |
Belks | 1/81-6/81 | |
Tampa Critical | Care | 9/79-6/80 |
Nursing Pool |
Leesburg General-Hospital 6/78-11/78
11/78-7/78
This total period covered includes the months of August and September, 1980, but the application form fails to reflect the August and September, 1980, employment at Leesburg Nursing Center.
On November 11, 1952, Respondent applied for a position as a registered nurse at Lake Community Hospital, Leesburg, Florida, and filled out and submitted an application form which called for the applicant to list the last four employers, starting with the last one first. On this form, Respondent listed:
Lakeview Terrace Retirement Center | 5/82-10/82 |
Tampa Med. Pool | 11/79-10/80 |
Waterman Memorial Hospital | 11/78-7/79 |
Leesburg General Hospital | 6/78-11/78 |
Again, she failed to list her employment at Leesburg Nursing Center during August and September, 1980, including that period in the employment period at Tampa Med. Pool, which was untrue, nor did she reveal this employment when she was interviewed for the position. Had she done either, the reference would have been checked, and the information provided by this reference would have had a definite bearing on the decision to hire Respondent or not.
Respondent was hired by Lakeview Terrace Retirement Center as a sitter on August 24, 1982, and her position was converted to that of a registered nurse on August 30, 1982, when a vacancy came about. On several occasions from that date until she resigned from employment on October 29, 1982, Charles W. Dick, at that time a food supervisor at the facility, now head baker and a former Baptist minister who, he says, has counseled 100 drug addicts over a 35-year ministry, observed Respondent when she came to the kitchen to pick up food for a resident/patient. On three particular occasions, he saw that her eyes were glassy; her speech was unclear, though understandable; and she appeared unsteady on her feet. Mr. Dick did not, however, report these incidents or discuss them with anyone other than his wife, also an employee of the facility. These symptoms, which are often indicative of drug ingestion, are, according to Dr. Tumlin, also consistent with the effects of severe migraine headaches.
Laura Burley, a licensed practical nurse (LPN), worked with Respondent at Lakeview Terrace Retirement Center during August through October, 1982. Ms. Burley has had 10 years' experience with drug abuse patients and is familiar with the symptoms of drug abuse. In her opinion, she saw similar conduct on the
part of Respondent during this period. She saw, for example, the Respondent frequently ingest white tablets while on duty, though she does not know what they were. She has heard Respondent complain of the cold and put on a lab coat when the witness, herself, was not cold. She has observed Respondent clutching her stomach and holding her head and has heard Respondent say she did not know if she would make it through the day. She observed Respondent to have radical mood shifts and to eat a lot of sugar or foods with heavy sugar content. She has seen Respondent frequently try to get into the drug carts or get the keys to the drug cart. Ms. Burley also keeps a notebook in which she records what she perceives as unusual conduct on the part of her coworkers. She does this because of her interpretation of a request by the facility administrator for her to report to him any significant occurrences.
Doris Draper was also an LPN at LVT while Respondent worked there. A part of Ms. Draper's duties was to dispense drugs. On one occasion, while she was doing so, Respondent came to her and asked for the keys to the medication cart, as she needed to get some Tylenol for another nurse, Mrs. Dick. On a later discussion, Mrs. Dick denied having asked Respondent to get her Tylenol, but said she had wanted some other medicine for a patient. On the basis of this, the two nurses concluded that Respondent intended to substitute regular Tylenol for a patient's Tylenol #3 so as to convert the latter codeine-included medication to her own use. However, though Ms. Draper heard other nurses say they suspected Respondent was taking drugs, she never saw her do so.
Nurse Donna Devoe also worked with Respondent at LVT during the period in question. At one point during Respondent's employment, at the request of Ms. Burley and Ms. Draper, she reviewed the charts on a patient, Mrs. Testerman, who, by her recollection, rarely received pain medication. Her review of these patient records revealed that the patient was recently being given pain medicine more frequently than usual by Respondent, whom she counseled about the situation. Ms. Devoe also discussed the situation with the Center administrator, but, because there was no evidence of drug diversion, nothing further was done about it. Her review of the records also revealed that all medications given to patients by the Respondent were given in accordance with a physician's orders, and there was no evidence that Respondent violated these orders.
Based on all the above, if Respondent was under the influence of any medication, it was the medication prescribed for her by Dr. Tumlin and not non- prescribed substances. The symptoms described by Mr. Dick, certainly not a trained drug therapist, are equally pertinent to migraine headaches. The innuendos of Ms. Burley, Ms. Draper and Mrs. Dick are just that--innuendos--and not probative of any improper drug usage. Not one witness could conclusively state there was any instance where Respondent failed to properly treat patients or was incapable of doing so because of drugs, alcohol, or illness. Mr. Speener, to whom Ms. Devoe and Ms. Burley both admittedly reported, stated that he had no reports of poor or improper treatment. By his own admission, due to her prior involvement, for which she had been disciplined, Respondent was the subject of "preconceived concerns and misinformation, rumors, and etc.," and she found it difficult to function. In his letter to Ms. Keefe, Mr. Speener said that if there was any conclusive, provable evidence of incompetence, or if there was any substantiation of drug involvement, Respondent would be immediately terminated. Mr. Speener could find no evidence of such and neither can I. In fact, he found her to be a highly professional nurse.
During the period of her employment, Respondent had responsibility for the care of, inter alia, Clifford Bryant and Arthur Everett. Arthur Everett was
an elderly, paralyzed individual who, on the occasion in question, was administered treatment by Respondent for an impacted bowel. This procedure was inordinately messy and resulted in fecal material getting on both Mr. Everett's clothing and the bed clothes. Both had to be changed. When Respondent came to the patient's room to perform this procedure, she failed to bring a clean gown with her. As a result, by her own admission, Mr. Everett was left totally undressed and uncovered without the screen drawn for the period of time it took her to go get him a clean gown. While this was going on, Mr. Everett was one of two patients in a semiprivate room. The other was a blind, stroke patient. No one else was in the room at the time, but Ms. Burley came in for one brief period while Mr. Everett was unclothed.
With regard to Mr. Bryant, at the time in question, he had just arrived at the facility by ambulance and was in wrist restraints because he had previously tried to pull out his catheter. Respondent was in the midst of completing an admission examination of the patient when Ms. Burley entered the patient's private room to find out what was taking so long. She observed the patient to be fully unclothed with the bed clothes pulled down to the foot of the bed. This was also observed by Mrs. Dick, who, when she entered the room, saw the patient nude and the Respondent there with a stethoscope in her hand. While Ms. Burley does not consider this to be patient abuse, she does consider it to be an abuse of his privacy, poor practice and a violation of the standards of LVT. This opinion is shared by several others employed there, such as Nurse Warren and Mary Willis, a registered nurse of long standing and vast experience who is currently Supervisor of Investigative Services for DPR.
Respondent denies that Mr. Bryant was totally unclothed at any time she was with him. When he arrived at the facility, he was in pajamas, and she helped him from the wheelchair to the bed before she began the examination. In order to complete the examination, it was necessary for her to unbutton his pajama top to listen to his chest sounds and to observe his chest movement. She also had to lower his bottoms to examine that part of his body as well, but in each case, she asserts she replaced the clothing when she was finished. In light of the nature of Ms. Burley's and Mrs. Dick's testimony on other aspects of this case, nebulous and devoid of specifics as it was, the fact that both were in the room only briefly and the apparent animosity felt by these witnesses toward the Respondent, the evidence shows that Mr. Bryant was not left totally unclothed at any time.
On October 29, 1982, Mrs. Catherine Devore was visiting her husband, Henry, in his private room at LVT when Respondent entered the room to give him his medication. Mr. Devore is blind and has had a stroke and generally is uncommunicative. Because of his resistance to taking his medicine, it is concealed in ice cream which is fed to him. Mrs. Devore indicates that at the time in question, her husband's head was forward with his chin on his chest, and Respondent lifted it up for the medicine by entwining her fingers in the hair at the top of his head and pulling it up. Respondent did not yank his head up, but lifted and held the head up by the hair while she administered the medication. When Respondent released the head, the hair where Respondent had been holding remained standing up. Mrs. Devore did not consider this to be abuse, nor did she feel her husband was hurt by this action. She did, however, consider it unusual and unnecessary and felt that if the Respondent would treat her husband that way with her there, she was uncertain of the treatment he would get if she were not there. As a result, when she got home, she called one of the owners of LVT, to whom she reported the incident and who suggested she report it to the administrator, Mr. Speener, which she did.
Respondent indicates a somewhat different story. When she went in to give Mr. Devore his medicine, Mrs. Devore stated, "He's not going to like that," at which point Mr. Devore put his head on his chest. Respondent then put one hand on his head and began to rub it while at the same time placing her other hand on his chin. With this, Mr. Devore voluntarily raised his head. When Respondent moved the hand on top of the head, the hair where she had been rubbing remained standing. In light of the basic improbability that a nurse would, without provocation, grab a patient by the hair and pull his head up with the patient's wife standing by and the fact that the actions described by Respondent could readily be mistaken for pulling, it is clear that Respondent did not pull Mr. Devore's hair on October 29, 1982, and, therefore, her actions did not constitute abuse. No report of abuse was ever filed with the Department of Health and Rehabilitative Services regarding this incident.
Because of Mrs. Devore's report, however, Respondent was shortly called to the office of Mr. Eugene K. Speener, administrator of the 20-bed skilled nursing facility at LVT. After some discussion of the incident and of some other discussions they had had relating to Respondent's alleged rigidity of personality, he suggested, and she agreed, that her immediate resignation would be appropriate and accepted. Respondent was not discharged from employment, and her departure had nothing to do with drugs. Unfortunately, however, because of the knowledge of her former difficulty and the continued gossip and insinuations by coworkers, there was always present the spectre of her earlier problem, and Mr. Speener admits telling Respondent he felt it was difficult for her to function as a nurse at that facility because of it. He also included these sentiments in a letter he sent to Ms. Keefe of the Board of Nursing, sometime between October 15 and October 29, 1982.
When it was determined that Respondent would resign effective immediately, Mr., Speener called Ms. Burley, who was off duty at the time, and requested that she come in and replace Respondent at 5:00 p.m. Ms. Burley agreed. In the interim, Respondent remained in another office until her departure from LVT sometime between 5:00 p.m. and 7:00 p.m. on October 29, 1982. When Ms. Burley got to the ward that day, she discovered that Respondent had already made entries in various patients' records showing procedures taken, medications given, vital signs taken and patient condition noted, all as of 8:00 p.m., October 29, 1982. Respondent admitted to Ms. Burley before she left that day that she had advance-charted the 8:00 p.m. medications that had not been given, and at the hearing admitted the other advanced chartings. She contends, however, that she did so partially upon the previous written advice of Ms. Burley, who, early in Respondent's tenure at LVT, suggested to her that she lump together three hours' medication at one time. It is also common practice to chart activities at a time other than when the actual function is accomplished. To do otherwise would make it impossible for a person to do what was required and at the same time accomplish the attendant paperwork. It is, however, unacceptable practice within the nursing profession, according to Ms. Willis, to chart substantially in advance. This is because things may change which alter the patient's condition, so that a particular precharted drug, for example, is not actually given, or some procedure is not followed. Generally, a leeway of one half hour on each side of the procedure or drug is acceptable.
Somewhat after the submission of her application to Lake Community Hospital, she was employed by that facility as a nurse and is still employed there. According to two former coworkers, Respondent has performed in an excellent manner and has been recommended for promotion.
Respondent's drug therapist for the last few years is of the opinion that Respondent is not now, nor was she during the August through October, 1982, period, abusing medications. Respondent is involved in nursing and has continued to improve. In fact, her supervision was terminated as unneeded in March, 1982. It was only because supervision was made a part of the Order of Probation that she is back with Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
In Count One of the Administrative Complaint, Respondent is alleged to have violated Section 464.018(1)(j) Florida Statutes (1981), by violating the order of the Board of Nursing previously entered by possessing controlled substances without a prescription and to have violated Section 464.018(1)(g) of the same statutes by possessing or trying to possess controlled substances for any other than legitimate purposes.
In the Findings of Fact, it was shown that Respondent had a valid prescription issued to her for a medication which contained codeine, the only drug found in her system during the urinalysis conducted by Petitioner. Further, there is no substantial evidence tending to establish that Respondent possessed or attempted to possess a controlled substance for any illegitimate purpose, notwithstanding the obvious rumor campaign mounted against her by some of her former coworkers. Therefore, the allegations in Count One have not been proven.
In Count Two, Respondent is alleged to have violated Section 464.018(1)(f), Florida Statutes (1981), by unprofessional conduct which failed to conform to the minimal standards of acceptable nursing practice in three particulars. This provision states:
The following acts shall be grounds for disciplinary action set forth in this section:
* * *
(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.
It has been found, after considering all the evidence, that Respondent did not pull Henry Devore's hair on October 29, 1982, and is not, therefore, guilty of patient abuse. It has also been found that the evidence of record fails to establish that Respondent required Mr. Bryant to be unnecessarily and unreasonably unclothed. Consequently, these allegations do not form a part of the conclusions in regard to this count.
Respondent has admitted to leaving Mr. Everett undraped and nude for a few minutes while she went to get another hospital gown for him to wear. It has been shown that Mr. Everett was the occupant of a semiprivate room, the other occupant of which was a blind, stroke victim who was unable to see him or to know in what condition he was in. However, the testimony of Ms. Burley that she
walked into the room and observed Mr. Everett in a state of complete undress from the doorway and the testimony of the other nurses that this is not an acceptable practice at this facility or within the profession in general, coupled with Respondent's admission, shows Respondent's guilt here.
Respondent's culpability is also established by her admitted precharting of vital signs, medications, snacks and other items without having performed them. The danger inherent in this practice is obvious, and while a brief leeway is granted, an extended length of time is not. Here, the showing that Respondent left the hospital between 5:00 p.m. and 7:00 p.m. without having returned to the ward from her visit with Mr. Speener, having already made the 8:00 p.m. entries on the patients' charts far exceeds the permissible and constitutes unprofessional conduct which falls far below the minimum acceptable standards. Therefore, in these two particulars, Count Two has been proven.
In Count Three, Respondent is alleged to have violated Section 464.018(1)(j), Florida Statutes (1981) and Rule 210-10.05(2)(d), Florida Administrative Code, by falsely misrepresenting the facts on applications for employment as a nurse. The statute in question states:
(1) . . .
* * *
(j) Willfully or repeatedly vio- lating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing
to comply with a lawfully issued subpoena of the department.
and the rule states:
(2) The Board of Nursing may impose disciplinary penalties upon a deter- mination that a licensee:
* * *
(d) Has falsely misrepresented the facts on the patient records, includ- ing, but not limited to, patient charts, narcotic records, medication administration records, or on appli- cations for employment as a nurse or otherwise misrepresented the facts on
records relating directly to the patient.
Respondent is alleged to have falsified two applications. The first, on August 12, 1982, to LVT was not an application for employment as a nurse, but as a sitter, and the form so states. That all understood the position would be converted when a vacancy occurred is immaterial. The fact remains that the form reflected the employment desired was that of sitter. Further, the form also calls only for "Former Employers and Experience," not for the "last four" employers or "all former" employers. As a result, the evidence of record fails to support the allegation in the Administrative Complaint.
With regard to the November 11, 1982, application, the situation is completely different. Here, the position applied for was that of nurse, and the
form called for the "last four employers." The evidence of record shows that references on application forms are checked and the information received is utilized in determining whether to hire or not. Consequently, it is obvious that falsifying an application form is most definitely pertinent to the nursing profession because it deprives a prospective employer of the opportunity to make an informed judgment about the applicant. Further, the intentional falsification of an application form calls into question the basic integrity and honesty of the individual which, in a nurse, of all people, is so important.
Therefore, the falsification of the November 11, 1982, application form is a violation of the rule and the statute.
In Count Four, Respondent is alleged to have violated Section 464.018(1)(h), Florida Statutes (1981), which states:
(1) . . .
* * *
(h) Being unable to practice nursing with reasonable skill and safety to patients by reason of illness, 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 paragraph shall at reasonable intervals be
afforded an opportunity to demonstrate that she can resume the competent practice of nursing with reasonable skill and safety.
Here, the Petitioner seeks to establish its case primarily by the use of rumor, hearsay, innuendo and implication, and the sketchiest of all direct evidence.
The former food supervisor who testified to Respondent's condition on three instances did not think it significant enough to report. Mr. Speener could not find any direct evidence of drug abuse or incompetence. The other nurses, Ms. Burley in particular, could find only general symptoms. Based on the facts found, supra, there is insufficient evidence to prove the allegation in Count Four.
Finally, in Count Five, Respondent is again alleged to have violated Section 464.018(1)(j), previously recited, by violating in several particulars the October 12, 1982, Order of the Board of Nursing.
As I have already concluded, the Respondent had improperly precharted items without having performed them; had unprofessionally left Mr. Everett unnecessarily undressed and undraped; and had falsely misrepresented a material fact on her November 12, 1982, application for employment as a nurse; and since all three are violations of either state law or a rule of the Board of Nursing, insofar as those allegations have been proven, so has this one.
The Respondent has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
Based on the above, it is, therefore, RECOMMENDED:
That Respondent be reprimanded and that probation be continued one additional year until October 11, 1984.
RECOMMENDED this 21st day of September, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1983.
COPIES FURNISHED:
Stephanie A. Daniel, Esq. Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Ms. Helen P. Keefe Executive Director Board of Nursing
Department of Professional Regulation
Room 504
111 Coastline Drive, East Jacksonville, Florida 32202
| Issue Date | Proceedings |
|---|---|
| Dec. 13, 1983 | Final Order filed. |
| Sep. 21, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 12, 1983 | Agency Final Order | |
| Sep. 21, 1983 | Recommended Order | Evidence of unprofessional misconduct in several areas justifies continuation of probation. |
