STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

)

v. ) CASE NO. 84-0140

)

RICHARD TEMPLETON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 15, 1985 in Clearwater, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint which originally charged Respondent with two counts; one of diverting demerol/mepheridine to five patients and one of failing to administer demerol/mepheridine. Both counts arose from the same set of facts.

Subsequently, the Respondent moved to strike the allegations regarding four of the patients because of the inability of Respondent to subpoena them and the inability of Petitioner to locate them. This motion was granted and only the allegations in the two counts relating to David Johnson remains. Petitioner moved to amend the Administrative Complaint to add Count III which charged that Respondent had been found guilty of violating Chapter 893, Florida Statutes and thereby Chapter 464.018(1)(c), Florida Statutes. 1/

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul Castagliola, Esquire

5656 Central Avenue

St. Petersburg, Florida 33707 ISSUES

The issues are as follows:

1. Whether Respondent diverted Demerol which was signed out for Davis Johnson,

   
   

2. Whether Respondent did not administer to David Johnson the Demerol which he signed out, and

   
   

3. Whether Respondent was found guilty of criminal violation of Chapter 893, Florida Statutes.

FINDINGS OF FACT

1. Richard Templeton is a registered nurse holding license #RN 137921-2 issued by the State Board through the Department of Professional Regulation.

   
   

2. At all times pertinent to this case, Respondent was employed at Morton Plant Hospital, Clearwater, Florida.

   
   

3. On the night of 19/20 July, 1983 Respondent was charge nurse on ward Bernard 5 at Morton Plant Hospital, and was responsible for the administering of medications to include controlled substances, to David Johnson. There were approximately 45 patients on the ward, and Respondent was responsible for at least one third of them.

   
   

4. The narcotic sign out sheets reflect that Respondent signed out for 100 mg Demerol at 1:15 A.M. & 4:15 A.M. for David Johnson on said night. Johnson's nursing notes in his medical chart for 7:00 A.M. reflect that Johnson was given

   2 pain medicines at 1:15 & 4:15. Johnson's charts reflect he got sleeping medicines at 11:50 P.M. and was sleeping at 2:00 A.M. & 6:00 A.M. 2/

   
   

5. Johnson testified as to the medicines he received while a patient at Morton Plant Hospital in July 1983. Johnson stated he did not receive any injections prior to his pre op medicines which were administered at approximately 1-2:00 P.M. on 20 July, 1983. Johnson's testimony is very concrete and reflects a good recollection of events. His testimony is borne out by the records and is credible.

   
   

6. On April 2, 1984 the Respondent entered a plea of nolo contendere to criminal charges that he had violated Chapter 893.13(3)(a)1, Florida Statutes. See Petitioner's Exhibit 2. The court found the Respondent guilty of said charges.

   
   

7. Registered nurses have a legal obligation to administer or waste properly controlled substances which they sign out, and to chart the administration of drugs they administer.

   
   

8. Mepheridine is the generic name for Demerol, and is a controlled substance pursuant to Chapter 893, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

9. This order is entered pursuant to Section 120.57, Florida Statutes. The Board of Nursing has authority to discipline their licenses pursuant to Chapter 464, Florida Statutes.

   
   

10. The Respondent is charged with diverting Demerol which he signed out to David Johnson and with charting that the Demerol was administered when it was not administered. These are violations of Sections 464.018(1)(f) and 464.018(1)(g), Florida Statutes, respectively.

    
    

11. The facts show Respondent did sign out for the drugs. Someone charted the medicines were administered; however, Johnson did not receive the drugs. These facts fall short of proving the very serious allegation of drug diversion. In fact, the Petitioner does not suggest in its Proposed Recommended Order that there was a violation of Section 464.018(1)(g), Florida Statutes, clearly abandoning this allegation.

12. Although the evidence falls short of proving that the Respondent diverted the drugs, the Respondent was legally responsible for the proper disposition of the drugs to include proper charting. The facts reveal Johnson did not get the drugs, Johnson did not request or need the drugs which were prescribed PRN, and the Respondent was legally responsible for the drugs until administered or wasted. The Respondent failed to meet these responsibilities contrary to Section 464.018(1)(f), Florida Statutes.

    
    

13. The facts show Respondent plead nolo contendere to criminal charges of violating Section 893.13(3)(a)1, Florida Statutes. A plea of nolo contendere is treated as a plea of guilty under Chapter 464, Florida Statutes. The court found Respondent guilty based upon his plea of nolo contendere. Violations of Chapter 893, Florida Statutes, are deemed by the courts to be related to the practice of nursing. See Bush vs. Department of Professional Regulation, Board of Podiatry; 448 So2d 26 (Fla. 1st DCA, 1984). The Respondent violated Section 464.018(1)(c), Florida Statutes.

    
    

14. There was no evidence presented in mitigation. However, the Board may consider any statements which the Respondent may make in mitigation in its deliberations. The facts did reveal that Respondent was responsible for an unusually large number of patients on the shift and that a large number of errors appear in the records all of which were not the responsibility of the Respondent.

    
    

15. Both the Petitioner and Respondent submitted proposed findings of fact in the form of proposed orders. Both were read and considered. To the extent the findings here do not incorporate their proposed findings, they have been rejected as not being the most credible evidence presented.

RECOMMENDATION

Having found the Respondent guilty of violating Sections 464.018(1)(c), Florida Statutes, it is recommended the Respondent's license be revoked; however, it is recommended that the revocation be suspended and the Respondent's license be suspended for one year and placed upon probation for two years thereafter during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board.

Having found the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes, it is recommended the Respondent's license be suspended for three years; however, it is recommended that the final two years of the suspension be abated and the Respondent be placed upon probation the final two years during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board.

DONE and ORDERED this 28th day of June, 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

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 28th day of June, 1985.

ENDNOTES

1/ Citation to Section 464.018(1)(c), Florida Statutes was corrected by interlineation upon Petitioner's motion by order dated 21 April 1985.

2/ Johnson's charts reflect various inaccuracies and errors which were the responsibility of various staff members other than Respondent.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul Castagliola, Esquire 5656 Central Avenue

St. Petersburg, Florida 33707

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Judie Ritter, Executive Director

Department of Professional Regulation

Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32202

Docket for Case No: 84-000140

Orders for Case No: 84-000140