STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

)

v. ) CASE NO. 84-1870

)

1. DELORES LANE ECKARD, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on October 24, 1984. Respondent appeared on her own behalf, unrepresented by counsel. Petitioner appeared through counsel:

   
   

   Julia P. Forrester, Esquire

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   By administrative complaint filed April 24, 1984, petitioner alleged that respondent Eckard "at all times material...a licensed registered nurse" was "on or about June 17, 1983..in possession of two ten milligram vials of Valium, a controlled substance, which had been prescribed for another. . .in violation of Section 464.018(1)(f), Florida Statutes (1983), which prohibits unprofessional conduct which departs from. . .minimal standards of acceptable and prevailing nursing practice" and in violation of "Section 464.018(1)(g), Florida Statutes (1983), which prohibits...possesion of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes." In count two, the administrative complaint alleges violations of the same statutory provisions in that "on or about June 16, 1983...(Ms. Eckard) failed to promptly report her improper possession of two, ten milligram vials of Valium, a controlled substance, which had been prescribed for a patient." In count three, the administrative complaint alleges that respondent "on or about July 7, 1983...exhibited emotional instability in a tape recording she forwarded to her supervisor at Baptist Hospital subsequent to her dismissal"; and that she "on or about October 19, 1983...pled nolo contendere to driving under the influence of alcohol...on June 16, 1983"; and that "(o)n or about December 4, 1983,...(she) was driving while under the influence of alcohol or other intoxicants"; all "in violation of Section 464.018(1)(h), Florida Statutes (1983), by being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs...or as a result of mental or physical condition" and "Section 464.018(1)(c), Florida Statutes (1983), which prohibits being convicted...of a crime directly related to the ability to practice nursing."

   FINDINGS OF FACT

   
   

   1. Respondent B. Delores Lane Eckard holds a Florida license as a registered nurse, No. 1091372. She has been so licensed since September 10, 1979. Petitioner's Exhibit No. 1.

      
      

   2. Before she was fired in July of 1983, respondent worked twelve-hour night shifts in the surgical intensive nursing unit at Baptist Hospital in Pensacola. A burn victim, Marc MacInvale, was among the patients respondent attended, during the shift that began at seven o'clock on the evening of June 15, 1983. Because of the extent of his burns, Mr. MacInvale had been placed in a private room, and hospital staff observed "reverse isolation" techniques. In or on his nightstand, Ms. Eckard found two, ten milligram ampules of Valium. Knowing that it was against hospital policy for the ampules to be there, she picked them up, intending to return them to the medication cart. She put them in her pocket for safekeeping, while she finished tasks in Mr. MacInvale's room.

      
      

   3. After she got home from work, on the morning of June 16, 1983, she undressed and went to bed. When she awoke and gathered up her clothes for washing, she discovered that the ampules were still in the pocket of her uniform. She was aware that a nurse had been fired two weeks earlier when Valium had been discovered in her locker at Baptist Hospital; and she decided against notifying the hospital or anybody she worked with of the whereabouts of the Valium. Instead, she placed the ampules in a clear plastic bag together with a piece of paper with Marc MacInvale's name on it and put the clear plastic bag in her "work purse," with the intention of returning the Valium to the hospital, when she next went to the hospital.

      
      

   4. In these circumstances, failure to report promptly that she had removed a patient's medicine from his room and that he did not receive it fell below minimal standards of acceptable and prevailing nursing practice, according to uncontroverted testimony.

      
      

   5. The clear plastic bag with the ampules and the piece of paper with "Marc MacInvale" written on it were still in Ms. Eckard's purse when she was arrested in the early morning hours of June 17, 1983, for driving under the influence of intoxicants. Celebrating with friends at a restaurant in anticipation of her June 18 birthday, she had drunk two glasses of wine and a "brandy manhattan," but had ingested no other intoxicating substances, before setting out for home. After her arrest, she demonstrated poor coordination and balance, slurred speech and difficulty in understanding. After twice registering less, the breathalyzer registered 1.0. Formal charges were apparently filed, and, on October 19, 1983, respondent pleaded nolo contendere. Petitioner's Exhibit No. 2.

      
      

   6. The police examined the contents of respondent's purse on June 17, 1983, and an assistant state's attorney eventually inquired of William Allen Foster, Baptist Hospital's director of security, whether Valium had been prescribed for Marc MacInvale. Norma Jean Vaughan, respondent's supervisor, confronted her, after she learned that Ms. Eckard had been arrested with Valium in her purse. Respondent volunteered blood and urine samples for analysis. The results of analysis were negative, but Baptist Hospital terminated her employment nevertheless.

   7. At the time, things were not going well on the domestic front, either. Ms. Eckard's husband had beaten her, and they were separated. In despair, she recorded the following:

      
      

      "Begin a good-bye tape. Um, I don't want anybody feeling sorry for me. I just want everyone to know why - I never thought that I would come to this point in my life. Cir- cumstances have, uh, made it so that I have, and the decision has been made and is irrevocable. In my forty-three years, I've

      spent the first (voice shaky, clearing throat) well, five years, with a divorced mother.

      Then, I spent until I was eleven in an orphanage. This taught me a lot of compassion, if, nothing more. Through my teen years, I had various stepfathers; many were - had means and, uh, were very good to me.

      I married young and was very happy - raised three chil, well, two children, and, uh, thought I did a decent job. Thought our marriage was well organized and pretty happy, overall. We had everything under control. We saved our money. We made good

      investments. Everything was going our way. I decided after the children were grown that I wanted to be a nurse. I could do what I wanted to do now. My job with the children was over as far as their, their primary needs were concerned. They had other interests in their lives, and I accepted my displacement.

      I went to nursing school and, uh, worked very hard to make the grades that I did. I went far and beyond what I had to do to advance my knowledge in medicine and to prepare myself to be the best nurse that

      I could be. I've worked five years in nursing and, uh, even though I worked Surgical Floor, many people feel like all you do is change bandages, do your job and that's it. The emotional needs of the patient are completely ignored. They hurt, you give them pain meds or you tell them, 'That's too bad; you can't have any pain medicine for another so many hours.

      And then, that's it. There's no, there's no, uh, efforts to make them more comfortable during that waiting period where they, where they're suffering

      so much. Or maybe they feel that nobody loves them. Nobody cares. They feel the isolation (pause) the, like no one's with them. They're in an alien environment. A lot of this is ignored by a lot of nurses.

      I was in reverse isolation when I was burned, and I spent three months in a wheelchair. I know what it is to be alone in an isolation

      room and, uh, the nurses saying, 'Oh,

      my God, do I have to dress that again?'. You know. Nobody, it's not a very pleasant thing, but I know the feeling of isolation.

      I know the feeling of not feeling wanted even though you are. Uh, and I've tried to take, in my nursing, the total body into, to mind to try to fill the needs of the total person, not just the colostomy.

      It's not a colostomy patient. It's not, it's not a cardiac, and uh, and uh, an abdominal mass, a tumor or whatever. It's a person to me. The compassion that my patients and the families feel that I've afforded has been given freely because

      I do care about that person as a human being.

      I have found though (choked up - brief pause - then voice somewhat shaky), now that my life has essentially fallen apart. The marriage that I thought would last forever,

      you know. Now, we're in our middle years and the kids are grown and we're making good money and we can afford nice things, uh, we can have a nice bank account. We can go places and do things, but then you find that this doesn't happen - that somewhere along the, that time of getting there, that you've lost what originally drew you together.

      Those dreams of making it there. You've made it. Where is there to go?

      (Big sigh.) I guess, and with my husband's illness, he can't help, I guess, what he said to me. I never thought anyone would want to hurt me. I've been fairly well protected all my life. I'm not a worldly person as far as the streets are concerned or, or what goes

      on in this world. I'm well versed in politics and, and in things like that, but my world consists of my work and my home. Now, I come home to an empty house, and I have no goal as far as nursing is concerned. That's been taken away from me also.

      So - and I feel sort of deserted because, with the exceptions that I've made for other people and for the hospital, things that, things that I would like to change that, that bother me have never been changed and never will be. Those are accepted. Uh, doctors that harm my patients - that has had to be accepted - reported and nothing

      really accomplished by it. That person is still there. (Click. Recorder apparently turned off and then back on. Clearing throat and then continuing in a somewhat deeper

      tone of voice.) Yet, when I, as a nurse, inadvertently make an error without malice or without forethought, and with every

      intention of correcting my error, my only thought was protecting my job - a job that I love dearly, that I was afraid of losing.

      This was the only reason it wasn't reported to you by myself. Then, I am terminated.

      And the only other reason for my existence is taken away from me. This is not to make you feel guilty. I know you have your job to do. I know there have been exceptions made. I know of one girl in particular where her whole life was a damn exception, and she has actually come close to killing patients,

      and it could be proven by records, etc. by actual observations. And yet, she's welcomed with open arms when she comes back. She left in a world of glory. It's

      as one of our other nurses said, 'She could fall in a bucket of (pause) and come

      up smelling like a rose very time.' My assets are frozen now. I have no means of support other than my job. I have no other place I want to go or would go. I've thought it over, and I know where my place in life lies and I know what my future holds. It holds nothing at this point because I can't make that decision to divorce my husband or to have him come back here. Those are my options at this point for survival. Those decisions I cannot make. The decision to work - the only reason I had any medication at all was the fact that I had been beaten half to death, and I was forced to go to Dr.

      - to the doctor simply as a, because I needed the slip to come back to work. At that point, he saw that I was just falling apart as far as my nerves were concerned, simply because my system couldn't adjust to the beatings that I had, had been inflicted upon me. He suggested that I take something until I got over that hump. I've never taken medication before, and, uh, as I told you, I told him I didn't want anything heavy because my system was

      just not used to medication and anything that I took, even an aspirin, one aspirin, would cure a headache. So, uh, my system is super sensitive to medication apparently.

      Therefore, he prescribed what he did and, uh, I took it. It's the lowest dosage he could have give - that he could give me. Uh, he said I could take up to 30 milligrams without any harm. The maximum I took was 10, and this was only, you know, when I was really upset and, or felt that I

      was not in control. For instance, like when I had to meet with my husband or things like this due to the legal matters, or uh, other business interests that we had that brought us

      together. I'm not making this tape to defend myself. I don't think any defense really is necessary because I've done nothing really wrong. I made an error in judgement, and I've paid dearly, both financially, emotionally, etc...I've lost everything for one error in judgement. I would hope that this would never happen to anyone else because it leaves you with very few options in your life. So, I appreciate your support as far as your confidence in my nursing care. (Click. Recorder apparently turned off

      and then back on.) I appreciate the fact that you didn't take my license away. I guess that would have been the ultimate defeat. Um (pause) at this point, as I said, um, I have no options. I feel that you're put on this earth for a purpose. My purpose has ended."

      
      

      She mailed the tape recording to Baptist Hospital where various people listened to it on July 8, 1983. Mr. Foster tried to reach respondent by telephone, but got a busy signal. He then called the police department. Three policemen appeared at her home to find her talking to a friend on the telephone. At least one of the policemen stayed to talk for an hour or two, then left and called Mr. Foster. He told Mr. Foster he did not think that Ms. Eckard "needed to be Baker Acted," but said that he would look in on her again later in the day.

      
      

   8. On December 4, 1983, Ms. Eckard was arrested a second time for allegedly driving under the influence of alcohol, but the state's attorney's office did not pursue these charges. The arresting officer testified at the hearing in the present case. Neither his testimony that she was driving nor his testimony that she was intoxicated has been credited.

      
      

      CONCLUSIONS OF LAW

      
      

   9. Petitioner is authorized to suspend or revoke a nurse's license, impose an administrative fine not to exceed 31,000 for each separate offense, issue a reprimand, or place a nurse on probation, Section 464.018(2), Florida Statutes (1983), on the following grounds, among others:

      
      

      (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

      A plea of nolo contendere shall be considered a conviction for purposes of this provision.

      * * *

      1. Unprofessional conduct, which shall include, but not be limited to, an departure from, or the failure to con-

         form to, the minimal standards of acceptable and prevailing nursing practice, in

         which case actual injury need not be established.

      2. Engaging or attempting to engage in

         the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

      3. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a nurse

      to submit to a mental or physical examination by physicians or health care practitioners who possess expertise in the diagnosis of mental or physical impairments, designated by the department and board. The cost of such examination shall be borne by the licensee being examined. The failure of a nurse to

      submit to such an examination when so directed shall constitute an admission of the allegations against such nurse upon which a default and final order may be entered

      without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond the nurse's control. A nurse affected by the provisions of this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of nursing with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a nurse in any other proceeding.

      
      

   10. Section 464.018(1), Florida Statutes (1983). The administrative complaint alleges violations of all of these statutory provisions.

       
       

   11. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis, Bowling, v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ax rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 491 )Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

   12. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

       
       

   13. By statute, respondent's plea of nolo contendere is made the equivalent of a conviction. But a single conviction for driving under the influence of alcohol on a night off does not amount to "(b)eing convicted or found guilty...of a crime...which directly relates to the practice of nursing or to the ability to practice nursing." Section 464.018 (1)(c), Florida Statutes (1983). The proof adduced at hearing did not establish that Ms. Eckard had possession of the Valium ampules for "other than legitimate purposes." Section 464.018(1)(g), Florida Statutes (1983). Nor did the evidence show her to be "unable to practice nursing with reasonable skill and safety to patients." Section 464.018(1)(h), Florida Statutes (1983).

       
       

   14. Petitioner has also proven, however, that respondent removed, albeit inadvertently, as far as the evidence showed, medicine intended for a patient in her care from the hospital, discovered that she had done so, and failed to let anybody in a position to give the patient medicine he might need, know what had transpired. The weight of the evidence established that this conduct fell below minimal standards of acceptable and prevailing nursing practice. Petitioner has shown respondent guilty of a violation of Section 464.018(1)(f), Florida Statutes (1983).

It is, accordingly, RECOMMENDED:

That petitioner reprimand respondent, and impose an administrative fine of

$50.00.

DONE and ENTERED this 10th day of January, 1985, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 10th day of January, 1985.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

B. Delores Lane Eckard 775 Berkley Drive Pensacola, Florida 32503

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 43028

DOAH CASE NO.: 84-1870

B. DELORES LANE ECKARD,

Respondent,

/

ORDER

Respondent, B. Delores Lane Eckard holds Florida license No. 1091372 as a Registered Nurse. 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 Section 120.57(1), F.S.; it is attached to and made a part of this Order.

The Board of Nursing met on April 11, 1985 in Tampa, Florida, to take final agency action. The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

The nurse has violated Section 464.018(1)(f), F.S., because her actions in placing patient MacInvales' Valium in her pocket and failing to notify the hospital that she had accidentally taken it home constituted unprofessional conduct. Her continued possession after its discovery was a violation of Section 464.018(1)(g), F.S., since it was possession of a controlled substance for other than a legitimate purpose. Had she called the hospital, the possession would have been for the legitimate purpose of returning it.

The conviction for DUI does constitute a violation of Section 464.018(1)(c)

F.S. in that the Board concludes that DUI is a crime that relates to the practice or ability to practice nursing. The ability to function as a nurse in the presence of alcohol and other intoxicants is important. The ability to understand the effect of chemicals in the body is important. The judgment to refrain from dangerous or inappropriate activity when the ability to conduct those activities is impaired is a judgment essential to a nurse. The experience of the Board is that arrests and convictions for DUI are an important indication of an inability to safely practice nursing.

The record also includes the text of a tape recording made by the Respondent. On the basis of our experience as nurses and Board members, the tape recording is evidence of a severely depressed individual, in danger of taking her own life and having impaired judgment.

The taking of the Valium, the failure to report the possession of it, the DUI conviction, and the state of mind revealed by the tape recording show very poor practice and judgment, and also support a conclusion that the Respondent is in violation of subsection 464.018(1)(h), F.S. in that she is unable to practice nursing safely.

PENALTY

Because of the nature of the additional violations, the Board imposes an increased penalty as necessary to protect the public.

The Respondent's license is hereby SUSPENDED until she personally appears before the Board and can demonstrate the present ability to safely engage in the practice of nursing. This demonstration shall include a satisfactory in-depth psychological evaluation, including an MMPI.

Within thirty (30) days the licensee shall return her license to the Board office, 504 Daniel Building, 111 Coastline Drive East, Jacksonville, Florida 32301, or shall surrender the license to an investigator of the Department of Professional Regulation.

The Board intends and anticipates that any further violation of this order or the Nurse Practice Act by the licensee could result in permanent revocation of the license.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE and ORDERED this 29th day of April 1985.

Sandra S. Bauman, Chairman Florida Board of Nursing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to B. Delores Lane Eckard, 775 Berkley Drive, Pensacola, Florida 32503 by U.S. Mail on or before 5:00 p.m., this day of 1985.

Judie Ritter, Executive Director

Docket for Case No: 84-001870

Orders for Case No: 84-001870