STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0822

) GEORGE EDWIN KNICKERBOCKER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on July 16, 1985, in Miami, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered.

Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

200 South Monroe Street, Suite B Tallahassee, Florida 32301

For Respondent: Robert E. Weisberg, Esquire

5901 Southwest 74th Street, Suite 304

Miami, Florida 33143

By Administrative Complaint dated January 23, 1984, which was subsequently amended by a Complaint filed on September 5, 1984, the Respondent was charged with willfully violating an Order of the Board of Nursing in violation of Section 464.018(l)(j), Florida Statutes, and with unprofessional conduct departing from the minimal standards of acceptable nursing practice, and with sexual misconduct in the practice of nursing, in violation of Sections 464.018(l)(f) and 464.017, Florida Statutes, respectively. Another count of alleged misconduct was dismissed.

Thus, the issues presented are (1) whether the Respondent willfully violated a lawful Order of the Board of Nursing, and (2) whether the Respondent engaged in sexual misconduct in the practice of nursing, and with unprofessional conduct which departed from the minimal standards of acceptable nursing practice.

FINDINGS OF FACT

1. The Respondent, George Edwin Knickerbocker, is a Registered Nurse authorized to practice in the State of Florida by license number 1113462.

   
   

2. By Order of the Board of Nursing dated January 6, 1983, the Respondent's license to practice nursing was placed on probation. The basis for this probation was that at the time the Respondent applied for Florida licensure his nursing license in the State of South Carolina had been disciplined because he offered to have sexual relations with a male patient while on duty as a nurse.

   
   

3. Included as a term of the Respondent's probation in Florida was the requirement that he notify the Board of Nursing by certified, registered mail, of any changes in his address or in his employment.

   
   

4. The Respondent admitted that he did not notify the Board when he became employed in Medox, Inc., in October of 1983. In apparent mitigation of this admission, he testified that he did not notify the Board because he had been previously employed by Medox in 1980. When the Respondent's employment at Medox was terminated in June of 1984, he testified that he notified the Board by telephone, but he acknowledged that he did not notify the Board by certified, registered mail as required by the conditions of his probation.

   
   

5. The Petitioner offered without objection an Affidavit of the Administrative Assistant of the Board of Nursing, stating that records maintained by the Board do not indicate that the Respondent ever informed the Board of Nursing of his employment by Medox, Inc., or that the Respondent ever caused a report to be furnished by his employer to the Board as required by the terms of his probation order dated January 6, 1983. This Affidavit was received in evidence.

   
   

6. The Respondent's admission that he failed to notify the Board of his employment with Medox, Inc., by certified, registered mail, as required by the terms of his probation, is thus corroborated by independent evidence, and supports a finding of fact that the Respondent failed to notify the Board of Nursing of an employment change as required. Moreover, his failure to notify the Board of his employment with Medox is aggravated by his admission that there were other changes in his employment and in his address which he did not report to the Board by certified, registered mail, as required by the Board's lawful order.

   
   

7. On July 26, 1983, between two and three o'clock a.m., a respiratory therapist at Jackson Memorial Hospital entered the darkened room of a patient to administer respiratory therapy and found the patient to be in a drowsy, sedated state. This patient was in the hospital for a gall bladder operation. He saw the Respondent leaning over the patient as the patient lay in bed, and observed the Respondent rubbing the patient's chest and penis area. The Respondent was sweating, breathing rapidly and had an erect penis. The respiratory therapist reported these observations to his supervisor at the hospital the same night.

   
   

8. The Director of Nursing, Surgical Services, at Jackson Memorial Hospital, placed the Respondent on administrative leave from his employment as staff nurse at the hospital after two separate complaints of sexual misconduct were made against him. The first was the incident described above by the respiratory therapist. The second was made by another patient who complained

   that the Respondent has rubbed his genital area and moaned while doing so. This latter complaint was reduced to writing by the nurse who received it and signed by the patient. Two exhibits containing the nurse's statement and the patient's affidavit were received in evidence without objection.

   
   

9. The Director of Nursing has been employed by Jackson Memorial Hospital in that position for three years. Previously she was head nurse on her floor at this hospital for six years. She is responsible for a 250-bed area and the supervision of from 120 to 130 professional nurses. She is ultimately accountable for the professional practices of these nurses and employees relating to patient care, and is responsible for upholding the standards of the State and the Joint Commission of Hospitals. As such, she is acquainted with the minimum standards of acceptable and prevailing nursing practices in the Respondent's community. The fondling of a patient's genitals without any medical purpose constitutes unprofessional conduct which departs from, and fails to conform to, the minimal standards of acceptable and prevailing nursing practice, not only in Florida but in every other state where she has practiced.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes. The Department of Professional Regulation and the Board of Nursing are the State Agencies responsible for regulating the practice of nursing pursuant to Section 20.30, Chapter 455, and Chapter 464, Florida Statutes.

    
    

11. Section 464.018(l)(j), Florida Statutes (1983), prohibits willfully violating a lawful order of the Board of Nursing that was previously entered in a disciplinary proceeding. The Respondent admits that he failed to notify the Board of Nursing in writing of address and employment changes in accordance with the conditions of the Board's Order of Probation dated January 6, 1983. Thus, the Respondent has violated this statutory provision.

    
    

12. Section 464.017, Florida Statutes (1983), prohibits sexual misconduct in the practice of nursing, and Section 464.018(l)(f), Florida Statutes (1983), prohibits unprofessional conduct which departs from or fails to conform to the minimal standards of acceptable and prevailing nursing practice. Substantial competent evidence was presented to support the conclusion that the Respondent engaged in conduct which failed to conform to minimum standards of acceptable and prevailing nursing practice by massaging the genitals of a patient without any medical purpose. Consequently the Respondent is guilty of violating Sections 464.017 and 464.018(l)(f), Florida Statutes (1983).

    
    

13. The Respondent denied any impropriety in his treatment of the patient on July 26, 1983, and he denied that the incident described by the respiratory therapist occurred. He testified that he irrigated the patient's nasogastric tube and repositioned the patient to make him more comfortable. He testified that he checked all IV's and medications, and was in the bathroom washing his hands when the respiratory therapist appeared at the door. He admits that the room was darkened because the light was not working but he also admits that he does not know how long the therapist had been standing at the door observing him. The totality of the evidence presented is sufficient to support a finding that the Respondent committed the acts charged in Counts I and II of the Administrative Complaint as amended.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, George Edwin Knickerbocker, be found

guilty of the violations charged in Count I and Count III of the Amended Complaint, and that license number 113462 authorizing the Respondent to practice nursing in the State of Florida be suspended until such time as the Respondent demonstrates by evidence satisfactory to the Board of Nursing that he can engage in the practice of nursing without risk of sexual abuse to his patients.

DONE AND ENTERED this 3rd day of October 1985 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 3rd day of October 1985.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire

200 South Monroe Street, Suite B Tallahassee, Florida 32301

Robert E. Weisberg, Esquire

5901 S.W. 74th Street, Suite 304

Miami, Florida 33143

Judie Ritter, Executive Director Department of Professional Regulation

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000822

Orders for Case No: 84-000822