Judges: STEPHEN F. DEAN
Agency: Department of Health
Latest Update: Oct. 04, 1990
Summary: DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs CASE NO. 0977Advanced Registered Nurse Practitioner (ARNP) who allegedly didn't follow protocols for dealing with body packers by releasing suspect patient is not guilty because protocols were followed.
84-0286STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0286
)
DAVID GOERG, )
)
Respondent. )
)
RECOMMENDED ORDER
This is a disciplinary care brought by the Petitioner, Department of Professional Regulation, Board of Nursing, against the Respondent David Goerg, an advanced registered nurse practitioner. A formal hearing in this cause was held on May 24, 1984, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by Petitioner against the Respondent for violations of the nursing statutes. The Administrative Complaint alleges that Respondent violated Section 464.018(1)(f), Florida Statutes, by failing to conform or departing from the minimal standards of acceptable and prevailing nursing practice. Respondent is alleged to have released a patient from Ward D (the prison ward) of Jackson Memorial Hospital contrary to the protocols which were in effect at the time. The issue is whether Respondent departed from or failed to conform to the minimum standards of acceptable and prevailing nursing practice.
APPEARANCES
For Petitioner: Julia P. Forrester, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: David Goerg, pro se
9395 Southwest 181st Street Perine, Florida 33157
FINDINGS OF FACT
At all times pertinent to these proceedings, the Respondent, David Goerg, was a licensed registered nurse in the State of Florida, holding license number 83239-1, and was an advanced registered nurse practitioner, holding license number 83239-G.
At all times pertinent to these proceedings, the Respondent was employed as an advanced registered nurse practitioner in Ward D at Jackson Memorial Hospital. Ward D is a prison ward at Jackson Memorial Hospital for patients who are from the local jails or in the custody of or under detention by local law enforcement officials.
Advanced registered nurse practitioners employed in Ward D at Jackson Memorial Hospital functioned under a set of "protocols," introduced as Petitioner's Exhibit 2. These protocols were entitled "Suggested Protocols" and were not officially adopted by the hospital.
Under these "protocols," a person suspected of cocaine ingestion for purposes of smuggling could be released under one of the two following sets of conditions:
Observation for not more than 24 hours after a clear bowel movement plus negative rectal examination and x-ray studies;
Same as (a), supra, but suspect may waive the 24-hour observation period by signing a release of responsibility.
The remainder of the protocols stress that patients are not to be treated as prisoners and are to be regarded as in need of diagnosis and therapy. Methods of diagnosis are solely at the discretion of the Prison Medical Service (PMS) medical personnel.
According to Dr. Al-Sheikh, a resident radiologist, x- rays cannot exclude the presence of cocaine packets. X-ray studies will be either "positive" (identifiable cocaine packs) or "inconclusive" because x-rays cannot determine what causes opaque areas on the bowel.
On August 25, 1984, a female patient was received in Ward D of the Jackson Memorial Hospital for suspected cocaine ingestion. Although the initial paperwork on this patient was
prepared by Phyllis Fields, ARNP, at some point during the patient's assessment in Ward D the management of the patient was transferred to Respondent. An x-ray study was made of the patient by Dr. Al-Sheikh, and a rectal examination of the patient was performed by Respondent.
This rectal examination revealed stool, which was inconsistent with the profile historically observed with "body packers" (persons ingesting cocaine for purposes of smuggling). The x-ray studies of the patient were reviewed by Dr. Al-Sheikh, who labeled them "inconclusive" on the basis of inability to determine what caused an opaque area in the patient's bowel.
In applying this standard for assessing x-rays to the conditions for release, a patent would never be eligible for release on the basis of a "negative" x-ray study, because there is no such classification. X-rays are either positive or inconclusive.
Dr. Al-Sheikh made a preliminary finding that there was at lease one ovoid density which could represent cocaine or feces. Dr. Al-Sheikh conferred with Dr. Moriollo, who confirmed this conclusion. Dr. Al-Sheikh's final report stated: "At least one ovoid density in the region of the splenic flexure of the colon which could represent cocaine bags; however, feces cannot be excluded."
Respondent discussed this patient's x-rays and condition with Dr. Al-Sheikh, pointing out that it was highly unlikely that a "body packer" would have only one small packet of cocaine and that the presence of feces in the lower colon was inconsistent with the conditions generally observed in body packers. Dr. Al- Sheikh agreed with Respondent, who charted that the x-rays had been negative and ordered the patient released. Respondent was authorized to release patients upon negative findings. However, Dr. Al-Sheikh did not alter his diagnosis of x-rays as stated above.
Respondent released the patient because rectal examination revealed stool, which was not found generally in body packers who take laxatives to clean out their bowels to enable them to carry the maximum number of packages. The patient's x-ray study revealed only one small opaque area. Historically, body packers do not carry only one packet of cocaine. Generally, they will ingest in excess of 50 packets.
There was no evidence presented that the patient was ever in any danger or was, in fact, a body packer. This matter became an issue after Respondent's decision was questioned by the registered nurse supervisor.
Evidence was also received that a contract existed between various law enforcement agencies, to include the Custom Service, and Jackson Memorial Hospital to provide the medical services to these suspected body packers, and that said patients retained in the ward were admitted as private patients by the supervising physicians.
CONCLUSIONS OF LAW
This Recommended Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes. The Board of Nursing has authority to discipline its licensees pursuant to Chapter 464, Florida Statutes.
The specific allegations of the Administrative Complaint filed against Respondent allege that Respondent violated Section 464.018(f), Florida Statutes, by failing to conform to or departing from the minimum standards of acceptable and prevailing nursing practices. In this specific instance, it is alleged that Respondent failed to adhere to the protocols in releasing a suspected cocaine ingestor from the hospital.
Substantial and competent evidence was received that Respondent is an advance registered nurse practitioner who has substantial experience in dealing with body packers (persons suspected of cocaine ingestion for smuggling purposes). Persons suspected of being body packers who were detained by various law enforcement agencies in the Miami area were transported to Jackson Memorial Hospital and detained in Ward D. The suggested protocols (Petitioner's Exhibit 2) were used for treating these patients, but these protocols had not been officially adopted by the hospital. Pursuant to these protocols, Respondent and other advanced registered nurse practitioners provided almost all primary care to patients in Ward D, to include body packers.
These protocols permitted the advanced registered nurse practitioners to order the release of patients.
After 24 hours' observation, suspected body packers could be released if they had a clear bowel movement plus a negative rectal examination and negative x-ray study; or a suspected body packer could be released without 24 hours' observation if the patient had a clear bowel movement and a negative rectal exam and x-ray study. However, given the manner in which x-rays were classed (either "positive" or "inconclusive"), the protocols on release were illusionary. There was no basis for release because no patient would have a negative x-ray. This is of some concern, given the apparent effort of the drafters of the protocols not to treat these patients like prisoners. Put another way, on their face the protocols appear to
treat these suspects as patients while detaining them for a medical problem. In actuality, these suspects were to be detained by the medical staff without their arrest because there were no negative x-rays.
Although Dr. Al-Sheikh agreed with the reasoning of the Respondent in assessing the subject patient's condition, he adhered to the hospital's procedure of characterizing x-rays as inconclusive when it could not be determined from the x-rays that any opaqueness in the bowel was not cocaine.
Respondent acted in his best judgment and professional experience in releasing the subject patient. His actions were consistent with the reasoned intent of the protocols to release persons who did not need treatment. He had no professional obligation to detain on "medical" grounds a patient who was not under arrest.
The Board has suggested that this is a particularly severe case because of the potential dangers to a cocaine ingestor. However, it is noted that a cocaine ingestor knows better than anyone whether he/she did or did not ingest cocaine and assumes whatever risks are attendant to such ingestion when he/she undertakes to smuggle cocaine into this country. The advanced registered nurse practitioner, the physician, and the hospital should not be held responsible for any injuries resulting to a body packer from his/her own acts in ingesting cocaine, his/her refusal to advise health care professionals that he/she has in fact ingested this drug, and his/her refusal to accept medical treatment.
Under the circumstances which existed, it is concluded that the Respondent did not depart from accepted and prevailing minimum standards of nursing practice. Respondent did not violate Section 464.018(f), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Respondent be dismissed.
DONE AND RECOMMENDED this 7th day of August 1984 in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of August 1984.
COPIES FURNISHED:
Julia P. Forrester, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. David Goerg
9395 Southwest 181st Street Perine, Florida 33156
Frederick Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Helen P. Keefe, Executive Director Board of Nursing
111 East Coastline Drive, Room 504 Jacksonville, Florida 32202
AGENCY FINAL ORDER
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs CASE NO. 0977
DOAH CASE NO. 84-0286
DAVID N. GOERG,
Respondent.
/
ORDER
Respondent, David N. Goerg, holds Florida license No. 83239-2 as a registered nurse and 83239-G as a nurse practitioner.
Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.; it is attached to and made a part of this Order.
The Board of Nursing met on October 18, 1984, in Miami, Florida, to take final agency action. The Petitioner was represented by Julia Forrester, Esquire. The Respondent was present, and was represented by Charles R. Steinberg, Esquire The Board has reviewed the entire record in the case.
The Board grants the Petitioner's Exceptions to the Recommended Order, and adopts the following Findings of Fact, on the basis that the hearing officer's findings which are deleted were not based on competent, substantial evidence, and further that the competent, substantial evidence that was introduced could support only the findings that are substituted.
FINDINGS OF FACT
At all times pertinent to these proceedings, the Respondent, David Goerg, was licensed registered nurse in the State of Florida, holding license number 83239-1, and was an advanced registered nurse practitioner, holding license number 83239-G.
At all times pertinent to these proceedings, the Respondent was employed as an advanced registered nurse practitioner in Ward D at Jackson Memorial Hospital. Ward D is a prison ward at Jackson Memorial Hospital for patients who are from the local jails or in the custody of or under detention by local law enforcement officials.
Advanced registered nurse practitioners employed in Ward D at Jackson Memorial Hospital functioned under a set of "protocols," introduced as Petitioner's Exhibit 2. These protocols were entitled "suggested protocols" but were approved by the then medical directors of the hospital and were officially adopted by the hospital.
Under these "protocols," a person suspected of cocaine ingestion for purposes of smuggling could be released under one of the two following sets of conditions:
Observation for not more than 24 hours after a clear bowel movement plus negative rectal examination and x-ray studies;
Same as (a), supra, but suspect may waive the 24-hour observation period by signing a release of responsibility.
The remainder of the protocols stress that patients are not to be treated as prisoners and are to be regarded as in need of diagnosis and therapy. Methods of diagnosis are solely at the discretion of the Prison Medical Service (PMS) medical personnel.
According to Dr. Al-Sheikh, a resident radiologist, x- rays may be negative, positive, or inconclusive. A negative x-ray would rule out the presence of foreign bodies, a positive x-ray would identify foreign bodies and an inconclusive x-ray would indicate that a foreign body could not be ruled out.
On August 25, 1984, a female patient was received in Ward D of the Jackson Memorial Hospital for suspected cocaine ingestion. Although the initial paperwork on this patient was
prepared by Phyllis Fields, ARNP, at some point during the patient's assessment in Ward D the management of the patient was transferred to Respondent. An x-ray study was made of the patient by Dr. Al-Sheikh, and a rectal examination of the patient was performed by Respondent.
This rectal examination revealed stool, which was inconsistent with the profile historically observed with "body packers" (persons ingesting cocaine for purposes of smuggling). The x-ray studies of the patient were reviewed by Dr. Al-Sheikh, who labeled them "inconclusive" on the basis of inability to determine what caused an opaque area in the patient's bowel.
Under the official protocols for suspected cocaine ingestors, the patient is eligible for release on the basis of a "negative" x-ray study and a negative examination. Should an x- ray be inconclusive or positive, the protocols would not allow the release of a patient by an advance registered nurse practitioner.
Dr. Al Sheikh made a preliminary finding that there was at least one ovoid density which could represent cocaine or feces. Dr. Al-Sheikh conferred with Dr. Moriolle, who confirmed this conclusion. Dr. Al-Sheikh's final report stated: "At least one ovoid density in the region of the splenic flexure of the colon which could represent cocaine bags; however, feces cannot be excluded."
Respondent discussed this patient's x-rays and condition with Dr. Al-Sheikh, pointing out that it was highly unlikely that a "body packer" would have only one small packet of cocaine. Dr. Al-Sheikh agreed that this argument was logical but maintained his position that the x-ray was inconclusive and further had the agreement of an attending physician regarding the inconclusive nature of the x-ray. Even though the x-ray report remained inconclusive and was not altered by Dr. Al-Sheikh, Respondent charted that the x-ray had been negative and ordered the patient released.
Respondent released the patient after noting a negative examination and charting that the x-ray was negative. The patient's x-ray study revealed only one small opaque area. Historically, body packers do not carry only one packet of cocaine. Generally, they will ingest in excess of 50 packets.
Suspected cocaine ingestion patients are at risk of imminent death through massive cocaine toxicity. If cocaine ingestion cannot be ruled out through a negative x-ray and a negative examination, this patient should be observed and treatment instituted as though the x-ray and exam results were positive. Respondent's decision to release the patient even
though the x-ray study was inconclusive was questioned by the registered nurse supervisor, Gretchen Betlem, during her audit of the patient's medical records which revealed the inconclusive x- ray and the Respondent's charting that the x-ray was negative.
Evidence was also received that a contract existed between various law enforcement agencies, to include the Custom Service, and Jackson Memorial Hospital-to provide the medical services to these suspected body packers, and that said patients retained in the ward were admitted as private patients by the supervising physicians.
CONCLUSIONS OF LAW
The Board does not adopt the Conclusions of Law of the Recommended Order, but adopts the following:
Substantial and competent evidence was received that Respondent is an advanced registered nurse practitioner who has substantial experience in dealing with body packers (persons suspected of cocaine ingestion for smuggling purposes). Persons suspected of being body packers who were detained by various law enforcement agencies in the Miami area were transported to Jackson Memorial Hospital and detained in Ward D.
The Board recognizes that the presence of a protocol was necessary for the Respondent to function as an ARNP. Pursuant to these protocols, Respondent and other advanced registered nurse practitioners provided almost all primary care to patients in Ward D, to include body packers. These protocols permitted the advanced registered nurse practitioners to order the release of patients. After 24 hours' observation, suspected body packers could be released if they had a clear bowel movement plus a negative rectal examination and negative x-ray study; or a suspected body packer could be released without 24 hours' observation if the patient had a clear bowel movement and a negative rectal exam and x-ray study.
The Board recognizes that there are positive and negative x- rays. X-rays that fall in between as inconclusive must be followed up in some other manner. The patient in question, with an inconclusive x-ray, could have been in danger of death.
Although Dr. Al-Sheikh agreed with the reasoning of the Respondent in assessing the subject patient's condition, he adhered to the hospital's procedure of characterizing x-rays as inconclusive when it could not be determined from the x-rays that any opaqueness in the bowel was not cocaine.
Respondent had a professional obligation not to discharge the patient without further studies or consultation.
Under the circumstances which existed, it is concluded that the Respondent did depart from accepted and prevailing minimum standards of nursing practice. Respondent did violate Section 464.018(f), Florida Statutes.
PENALTY
The Respondent is hereby ordered to pay a fine of $1000.00 within 60 days.
The licensee is hereby placed on PROBATION for one year, subject to the following terms and conditions:
The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing.
During the probation the licensee shall report any change in residence address, any change in employer or place of employment, or any time he is arrested. These events will be reported immediately (and in any event within ten working days) by certified mail to the Board of Nursing, Probation Section, 111 Coastline Drive East, Suite 504, Jacksonville, Florida 32202.
While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by the probation supervisor.
Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation.
Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing shall be subject to immediate and automatic suspension pending the licensee's appearance before the next Board meeting (or such other meeting as mutually agreed by the licensee and the Department).
The licensee will be given notice of the hearing and an opportunity to defend.
The probationary period shall automatically terminate at the end of the prescribed time, but only if all terms and conditions have been met. Otherwise, the probation shall be terminated only by Order of the Board upon proper petition of the licensee, supported by evidence of compliance with this Order.
Within 30 days of its filing, this Order may be appealed by filing notices of appeal and a filing fee as provided in Section 120.68(2), F.S., and Florida Rules of Appellate Procedure 9.110(b) and (c).
DONE AND ORDERED in Jacksonville, Florida, this 15th day of November, 1984.
Sandra S. Bauman, Chairman Board of Nursing
cc: David N. Goerg
9395 S.W. 181st Street Miami, Florida 33157
Charles R. Steinberg, Esquire
P.O. Box 1469
Orlando, Florida 32302
Docket for Case No: 84-000286
Orders for Case No: 84-000286
| Issue Date |
Document |
Summary |
|
Nov. 15, 1984 |
Agency Final Order
|
|
|
Aug. 07, 1984 |
Recommended Order
|
Advanced Registered Nurse Practitioner (ARNP) who allegedly didn't follow protocols for dealing with body packers by releasing suspect patient is not guilty because protocols were followed.
|
