STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO: 84-3699

)

ROYCE S. McCALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties by the undersigned on November 28, 1984, a hearing was held in this case before Arnold

1. Pollock, a Hearing Officer with the Division of Administrative Hearings in DeFuniak Springs, Florida on January 18, 1985. The issue for consideration was whether Respondent's license as a licensed practical nurse in the State of Florida should be disciplined because of his alleged unprofessional conduct as outlined in the Administrative Complaint filed in this case.

   
   

   APPEARANCES

   
   

   For Petitioner: Julia P. Forrester, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: Royce S. McCall, Pro Se

   7915 Beaver Drive

   Pensacola, Florida 32514 BACKGROUND INFORMATION

   By Administrative Complaint filed on September 11, 1984, Petitioner, Department of Professional Regulation, for the State of Florida, Board of Nursing, seeks to take disciplinary action against Respondent's license as a practical nurse in Florida because of his alleged unprofessional conduct which took place on or about July 11, 1982 and which is alleged to constitute a violation of Section 465.018(1)(f), Florida Statutes, 1983. On October 15, 1984, Respondent submitted an Election of Rights form on which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

   
   

   At the hearing, Petitioner introduced the testimony of Rachiel Infinger and Corene Fondren, both nurses' aides who worked with Respondent at the time in question; Barbara Jean Miller, a licensed practical nurse employed by the same convalescent center which employed Respondent; Eleanor Annise Harwell, Director of Nursing at the same facility; and Rosemary Tidwell, Activities Director at the same institution; and introduced Petitioner's Exhibits 1 and 2. Respondent

   introduced the testimony of Hazel Lou Stubbs and Hildegard Blocker, both nurses' aides who worked with him at the center; and Emily Louise Fields, a licensed practical nurse there.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues contained herein, Respondent. ROYCE S. McCALL, was licensed by the State of Florida as a licensed practical nurse, the license initially issued on December 4, 1978 and renewed thereafter until the present. His license number is 0500981.

      
      

   2. On July 11, 1984, Respondent was employed as a licensed practical nurse with the Walton County Convalescent Center (WCCC) in DeFuniak Springs, Florida. Late that evening, at approximately 4 or 5 a.m., Respondent, as charge nurse on one of the Center's units, along with Rachiel Infinger and Corene Fondren, was about to change a bladder catheter on one of the Center's residents, a Mrs. Rourke. Before doing so, however, he discovered that Mrs. Rourke had fouled herself and he refused to do the procedure then instructing Mrs. Rourke's aides to clean her up. He then went to the room occupied by Mrs. Harper, an elderly, completely bedridden patient between 80 and 90 years old, who rarely talks and can hardly move her arms and legs. Mrs. Harper also required a bladder catheter change and Respondent, along with another nurse, was attempting to do it. Since apparently Mrs. Harper was resisting somewhat, Respondent asked Ms. Infinger to help.

      
      

   3. During the course of the procedure, Mrs. Harper brought her hand down into the area where Respondent was working in an attempt to stop him. It was obvious that the procedure was somewhat painful to her and in the opinion of Ms. Infinger, Respondent was being less than gentle. When Mrs. Harper brought her hand down, Respondent grabbed it and moved it out of the way telling her at the time to, "Move your damned hand." This comment was heard by both Ms. Infinger and Ms. Fondren.

      
      

   4. When Respondent moved Mrs. Harper's hand, it collided with the bed rail which broke the skin causing it to bleed. Ms. Infinger noticed this and mentioned it to Respondent. He said he would take care of it and Ms. Infinger went some place else to do something. When she came back some 30 to 45 minutes later, she found that Respondent had still not dressed the skin break on Mrs. Harper's hand.

      
      

   5. Ms. Infinger thinks Respondent was too rough with Mrs. Harper. She believes it was not necessary for him to throw the elderly woman's hand off as he did. There were two aides present who could have, had they been asked, moved the hand and held it out of the way.

      
      

   6. There is some divergence in the testimony of Ms. Infinger and Ms. Fondren as to whether Respondent threw Mrs. Harper's hand or pushed it with the former contending it was a throw and the latter contending it was merely a push. Even Ms. Fondren, however, who believes this rough action was a reflex action by Respondent who had been in a bad mood all evening, agrees that since someone was there to help him, he should have asked for help rather than reacting on his own. If either witness is to be believed, however, Respondent acted unprofessionally.

      
      

   7. On the other hand, however, Ms. Stubbs, Ms. Blocker, and Ms. Fields, all of whom had worked with Respondent for several months, knew him from their repeated observations of him at work never to be abusive or rough with his

      patients. He is generally very kind to his patients, taking the time to explain what he is doing and exhibiting patience and understanding. His patience is somewhat less with the aides who in his opinion, do not do what they should on duty.

      
      

   8. Mrs. Harper has had several other skin tears both before and after the one in issue here. She is an old woman who bruises easily and whose skin can be broken easily. While not a difficult patient, she is somewhat confused and tends to try to interfere at times with the ministrations of those trying to help her and her hands often get in the way. Here, it is obvious that Respondent was in a bad mood late at night when he went to treat Mrs. Harper.

      He had just come from another patient who had not been properly cared for by the aides responsible for her and he was clearly annoyed. No doubt Mrs. Harper, not through spite or even consciously, attempted to stop him from doing what was no doubt a painful procedure and he reacted unprofessionally. This is not to say he consciously intended to harm her, but his reaction was less than it should have been in this situation.

      
      

   9. When Ms. Infinger came back and found that Respondent had not tended to Mrs. Harpers wound, she immediately reported this fact to Barbara Jean Miller, a licensed practical nurse working on another unit that evening who quickly treated and dressed the skin tear. When she left duty the next morning, she reported what she had seen and done and what Ms. Infinger had told her to the Assistant Director of Nursing who she saw outside in the parking lot. This lady reported it to the Director of Nursing, Mrs. Harwell, who conducted her own investigation.

      
      

   10. Mrs. Harwell interviewed Respondent who after first denying that the incident had taken place, admitted that he did yank Mrs. Harper's arm but stated he did not know it had hit the bed rail. He also initially denied knowing there was an injury but then admitted he had been told there was and that he had said he would fix it. He admitted that he was upset that evening.

       
       

   11. In the catheter procedure that Respondent was accomplishing, it is never appropriate to handle a patient so forcefully that it results in an injury even though it may be necessary to restrain or move the patient in some fashion. In Mrs. Harwell's opinion, Respondent's handling of Mrs. Harper in this instance was below minimum standards for the nursing profession.

       
       

   12. After talking with all the witnesses and securing pictures of the injury, based on her investigation and her discussions with Respondent, she terminated his employment with WCCC that day not only because in this instance his performance was below standards and unprofessional but also because this was the second incident of substandard performance on his record. She had previously chastised him for speaking improperly to or about another patient several weeks previously.

       
       

   13. Consequently, it is clear that Respondent moved Mrs. Harper's hand in such a manner that resulted in injury to her which is unprofessional conduct on his part compounded by his failure to return to treat the wound once he was made aware of it.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   15. Petitioner alleges that Respondent is guilty of unprofessional conduct in violation of Section 465.018(1)(f), Florida Statutes. Chapter 465, however, deals with the regulation of the profession of pharmacy, not nursing, which is regulated under the provisions of Chapter 464. It is obvious that this discrepancy is a scrivener's error and does not constitute a basis for setting aside this action.

       
       

   16. Referring to the appropriate statutory provision, Section 464.018(1)(f) lists as grounds for disciplinary action:

       
       

       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.

       
       

   17. Here the evidence shows clearly that an injury took place to a patient under the care of the Respondent which was directly attributable to his actions. It shows clearly that he is guilty of unprofessional conduct which fails to conform to the minimal standards of acceptable and prevailing nursing practice.

       
       

   18. However, the only evidence of prior misconduct is the one minor incident referred to by Mrs. Harwell. The current incident, while certainly improper has not been shown to be either aggravated or intentional. For this reason, and considering the fact that respondent has already lost his job because of this matter, extreme further disciplinary action is not warranted.

RECOMMENDED ACTION

On the basis of the foregoing findings of fact and conclusions of law, it is, therefore:

RECOMMENDED that Respondent, ROYCE S. McCALL'S license as a licensed practical nurse in Florida be placed on probation for one year and that Respondent be reprimanded.

RECOMMENDED this day of March, 1985, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 8th day of March, 1985.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Royce S. McCall 7915 Beaver Drive

Pensacola, Florida 32514

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 49744

DOAH CASE No. 84-3699

ROYCE S. McCALL

Respondent.

/

ORDER

Respondent, ROYCE McCALL holds Florida license No. 0500981, as a Licensed Practical 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 subsection 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 the final agency action. The Board has reviewed the entire record in the case.

The Board adopts the Findings of Fact and Conclusions of Law of the Recommended Order.

PENALTY

The Board imposes an increased penalty for the following reasons. There were alternative means available to deal with the problem the patient presented. The patient was not a difficult one; she was helpless. The Respondent was acting out anger unprofessionally and inappropriately. His remarks constituted psychological abuse. After the initial instance of physical abuse he failed to return to professional conduct and dress the wound.

The Respondent's license is hereby SUSPENDED until he 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, and a conclusion by the mental- health professional making the evaluation that the Respondent is safe to practice nursing.

Within thirty (30) days the licensee shall return his 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 Royce S. McCall at 7915 Beaver Drive, Pensacola, Florida 32514, by

U.S Mail, on or before 5:00 p.m., this 29th day of April, 1985.

Judie Ritter Executive Director

Docket for Case No: 84-003699

Orders for Case No: 84-003699