STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 84-4080
)
PHYLLIS CAROL HOLMES, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing furnished to the parties on March 13, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Crestview Florida, on June 5, 1985.
The issue for consideration at the hearing was whether Respondent's license as a licensed practical nurse in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
APPEARANCES
For the Petitioner: William B. Furlow, Esquire and
Cecil Bradley, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For the Respondent: Dale E. Rice, Esquire
Post Office Box 687 Crestview, Florida 32536
BACKGROUND INFORMATION
On October 15, 1984, the Petitioner, Department of Professional Regulation, on behalf of Petitioner, Board of Nursing filed an Administrative Complaint in this case against the Respondent alleging various incidents of unprofessional conduct in violation of Section 464.018(1)(f) and (j), Florida
Statutes (1983). Thereafter, on October 30, 1984, the Respondent A submitted an Election of Rights form on which she indicated she disputed the allegations of fact contained in the Administrative Complaint and requested a hearing.
At the hearing, Petitioner presented the testimony of Charles Wheelahan, an investigator for the Department of Professional Regulation; Stephen Buxton Hopkins, former administrator of the nursing home where the alleged misconduct took place; America LeBrun, former Director of Nursing at that nursing home;
Barbara Ann Griffin, Linda Diane Gibbons and Inez Cobb, aides at the home; Lynda Faye Barrow, a licensed practical nurse at the home; and Bonnie Vanessa Faulkner Duckworth, a registered nurse and formerly an employee of the nursing home in question. Petitioner also introduced Petitioner's Exhibits 1 and 3 through 11. Respondent testified in her own behalf.
The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)(4), Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
FINDINGS OF FACT
At all times pertinent to the issues involved in this hearing, Respondent, Phyllis Carol Holmes, was a licensed practical nurse licensed by the State of Florida under license number 31075-1, employed as a licensed practical nurse at Crestview Nursing and Convalescent Home (CNCH), in Crestview, Florida, as a charge nurse on the 11:00 P.M. to 7:00 A.M. shift.
When Respondent first began work at CNCH, she was required to go through a modest training and orientation program starting on June 21, 1983. As part of this program, she was briefed by various section heads on such matters as personnel policies and procedures, knowledge of working units and various aspects of nursing procedures. The checklist utilized in accomplishing this orientation was signed by four different nurses who accomplished the orientation briefings and it reflects that all aspects of the orientation were accomplished.
In addition, Respondent was furnished with a complete written job description outlining the summary of work to be performed and the performance requirements for each which she acknowledged. She was also furnished with a policy letter on nursing personnels' responsibilities for charting and a policy letter on decubitus care procedure.
Under the above-mentioned policies and procedures, as charge nurse Respondent had the responsibility for some 60 patients. Part of the requirements of her position included:
Making rounds when coming on duty to
see that there were no special problems;
Administering medications;
Preparing and controlling all documenta- tion for individual patients;
Making rounds at least every two hours and checking on seriously ill patients more often than that; and
Administering treatment immediately as needed in those areas where appropriate.
Charge nurses also have the responsibility to insure that patients are moved every two hours to be sure that pressure sores (bed sores) do not develop.
On or about July 19, 1983, Barbara Ann Griffin was working as a nurse's aide for Respondent who was charge nurse over her on the 11 - 7 P.M. shift. She observed the Respondent involved in a catheter insertion into an elderly female patient whose name she cannot remember. The records admitted at the hearing do not identify the patient by name but merely as a patient number. In any case,
the evidence clearly reflects Respondent inserted a catheter into the female patient's rectum by mistake, then pulled it out, wiped it off and then inserted the same catheter into the patient's meatus. The term meatus means passage or opening. In this case, the witness was referring to the external opening of the urethra.
This incident was also observed by Linda Gibbons, an aide who also cannot recall the name of the patient. She recalls, however, that Respondent has had difficulty in inserting catheters on other occasions and in each case, would insert it, perhaps in the wrong opening, withdraw it, and insert it again. At the hearing Respondent admits that she had a problem one time with Mrs. Henderson in inserting a catheter, but she denies reinserting it once she discovered it had been improperly inserted. She states that she got a new catheter from the supply room and inserted it rather than utilizing the one previously inserted and denies ever having any other problems with catheters on any other patients.
However, the incident in question was brought to the attention of Mr. Hopkins, the nursing home administrator, at the time in question, and when he spoke with Respondent about it, she admitted that she made a mistake, but said the room was dim and she was in a hurry at the time.
From the above, it is found, therefore, that Respondent on or about the date alleged, improperly inserted a catheter into a patient without insuring that it was sterile.
Ms. Griffin, an aide, also indicates that on or about September 15, 1983, when she was conducting her midnight rounds, she observed the resident in Room 213A having some sort of problems. According to Ms. Griffin, from the symptoms the patient was displaying, it appeared that the patient had had a stroke. She immediately reported this to the Respondent at the nurse's station and then went back to the patient's room. Approximately 15 minutes later the Respondent came in, looked at the patient, and decided not to call the doctor because, according to Ms. Griffin, "it was too late." Ms. Griffin contends that Respondent did not check on the patient again that night, but at 6:00 A.M., told her to get the patient up for the day. Ms. Griffin went off duty at 7:00 A.M. and did not again see the patient who she later heard had been hospitalized with a stroke. Respondent, on the other hand, contends that instead of waiting 15 minutes when advised by Ms. Griffin, she went to the patient's room almost immediately. Admittedly, she did not make any notes in the patient's record about this situation but claims this was because she was giving her midnight medicines and thereafter forgot. However, she claims she checked the patient approximately every 30 minutes all through the night. Respondent contradicts Ms. Griffin's description of the patient indicating that when she first saw her, the patient was displaying no symptoms and when she saw the patient later that morning, she looked fine.
Though she did not make notes at the time, the following day Ms. Holmes entered an after-the-fact note in the records which indicated that the patient was checked at 30 minutes past midnight due to an elevation in blood pressure. Her observation at the time was that the patient's color was good and her skin was warm and dry. The patient appeared cheerful and smiling but not talkative and appeared to be in no acute distress.
The admission physical done at the time the patient was admitted to the hospital on September 15, 1985, reflects that there was no swelling of the extremities which had a full range of motion and there was no evidence of
Babinski's symptoms which relate to a reflex when the tendons to the extremities are palpated. The history also shows that on the day of admission, the patient was found to have a right-sided weakness and slurred speech but there is no evidence to support the symptoms reported by Ms. Griffin.
In substance, then, it appears that while the Respondent failed to report the patient's symptoms to the physician, there is some substantial question that the patient was in the acute distress indicated by the witness, Ms. Griffin. Further, Ms. Griffin admitted that she was in and out of other rooms in the home throughout the remainder of the shift and though she contends she is sure Respondent did not visit the patient during the remainder of the shift, there is no way she can be so certain.
In paragraph 4 of the Administrative Complaint, Petitioner alleged that on or about April 11, 1984, Respondent administered Ascriptin to a patient in her care even though the physicians's order for the patient had discontinued administration of this substance on April 4, 1984.
Review of the documentation submitted by the Petitioner in support of its claim here, specifically the medication administration record for patient number 17, reflects that on April 11, 1984, the Respondent did administer Ascriptin to the patient. The physician's orders clearly reflect that on April 4, 1984, Ascriptin, along with several other medications were discontinued by the physician. However, on April 16, 1984, according to the medication administration record, another nurse also administered Ascriptin. Petitioner admits that the medical administration record did not show the fact that the medication was discontinued. The entry indicating discontinuance was made well after the second administration by the other nurse. However, Ms. LeBrun, the then Director of Nursing for CNCH, contends that even though the medication administration record did not show the discontinuance, Respondent should have noted that the medicine had not been given for quite a while and gone to the doctor's orders to see why that was the case. Had she done so, she would have noticed the order indicating the medication was discontinued. Ascriptin, however, is a pain medication and the doctor's original order indicated it was to be given in the event of pain. If the patient was not suffering pain, the patient would not have called for it and it would not have been given even if authorized.
Respondent indicated that the patient did not complain of pain often. When she administered the medication last, there was no indication on the medication administration record that it had been discontinued and even as of April 11, 1984, when the medication was administered by the Respondent, seven days after the doctor's order discontinuing it, the medication was still in the patient's drawer on the medication cart.
Inez Cobb has worked at CNCH for approximately 15 years as a nurse's aide and worked for Respondent during the 1983-1984 period. As she recalls, on the morning of May 2, 1984, while getting the patients up for the day, between 6:00 and 6:45 A.M., she entered the room of patient Haas. When she came in she observed the patient slumped in his chair. She checked his blood pressure and found it to be very low and his pulse was weak and faint. She immediately reported this to the Respondent who did nothing and as of 7:00 A.M., when the witness left duty, Respondent had failed to check on the patient. As she recalls, however, the incoming charge nurse who was to replace Respondent on the next shift also failed to check on the patient.
Respondent contends that when she was notified of Mr. Haas' condition, she had the medicine nurse for the day shift check him and this nurse, acting on Respondent's instructions, called the doctor almost immediately after the Respondent was notified. Respondent was giving report to the oncoming charge nurse when Ms. Cobb mentioned Mr. Haas to her, and when she finished this report, she went and checked on him. Admittedly, she did not notify the physician.
The nurse's notes made by Respondent on the day in question fail to reflect any mention of this incident.
Ms. LeBrun noting that Respondent's nurse's notes fail to reflect any acknowledgment of the problem, indicated that proper practice would have been for Respondent to have immediately gone to observe the patient, made her own assessment, immediately called the physician, and then made her nurses notes entry. This is so especially in light of the comment regarding the incident in the flow sheet made by Ms. Cobb regarding the patient's condition.
Also, according to Ms. Cobb, on May 11, 1984, she noticed a red area on the coccyx of patient Martin. She reported this to the Respondent several times even after the skin broke, but to her knowledge, nothing was done about it for several days.
It is her understanding that when an aide sees an area like this, she is not allowed to treat it herself but must report it to the nurse on duty which she did. Unfortunately, the red spot turned into an ulcer which remained on the patient until he died at some later date.
The decubitus care procedure and policy letter reflected above outlines the method of care to be taken with regard to the prevention of ulceration. It calls for keeping the patient's skin dry, massage and frequent turning.
Ms. Gregg noted this situation on the flow sheets for May 11, at 5:15
A.M. The nurse's notes prepared by the Respondent at 5:15 A.M. in the morning on May 11 reflect merely that a bed bath was given with a linen change and that a broken area was noted on the patient's right buttox. There is no indication that any treatment was given by the Respondent or that the physician was notified.
Respondent admits that she knew Mr. Martin had a broken area and she treated it often. Admittedly, she did not chart her treatment properly because she had to give all medicines at the time and do all the charts for more than 60 patients and did not get around to it. She contends she may not have heard Ms. Cobb report this situation to her because she is somewhat hard of hearing from time to time and as a result, has asked all her aides not to just give her information on the run but to be sure to get her attention when they need to report something.
On the issue of whether Respondent's performance measures up to the standard of care required of nurses in Florida, Ms. LeBrun contends that the standard of care for licensed practical nurses is not that much different or much less than that required for registered nurses because in this State, licensed practical nurses do many of the same procedures often reserved for registered nurses elsewhere.
In the area of medications, for example, there is no room for error. As a result, standards are high and Ms. LeBrun feels there is a need for checking and double checking. In the situation regarding the Ascriptin here, she believes that even though it is strictly a pain medication, the Respondent should still have checked the doctor's orders to insure the requirement was still valid before administering a medication which the records show had not been administered for quite a while.
With regard to the catheter insertion, Ms. LeBrun states the fact that the patient did not develop an infection is irrelevant. The issue concerns the following of a procedure using a contaminated catheter which could easily have developed an infection for the patient.
Referring to the stroke patient, Ms. LeBrun agrees with the testimony of Ms. Barrow, another licensed practical nurse, who was the day shift charge nurse relieving Respondent at 7:00 A.M. in the morning. As she recalls the situation on September 15, she observed the patient in question being brought out of the dining room. At that time, the patient was semi-lethargic. Ms. Barrow is of the opinion that if the patient was wakened at 6:30 A.M.; she would not have been in the condition she was in at 11:30 A.M. for a long time. Therefore, the stroke must have taken place just before 11:30 A.M.; as the patient was not in such poor shape during the preceding 11:00 P.M. - 7:00 A.M. shift. Ms. LeBrun feels that if the patient was in condition as described by the night nurse, it is not likely they would have gotten her up at 6:30 A.M. to go to the dining room. Nonetheless, she feels that Respondent should have responded sooner as the symptoms described by the night nurse are consistent with strokes as well as other things. On that basis, the Respondent should have made an assessment on the vital signs and notified the doctor immediately.
Turning to the issue of the decubitus situation on the patient with the ulcer, Ms. LeBrun feels that the Respondent should have documented what she did for the broken area. If the records do not say what was done, it is presumed not to be done. When notified that the broken area was getting larger, the Respondent should have documented what treatment she administered since the nursing home had a procedure to be followed for this type of condition and it appears respondent did not follow this procedure.
Several of the nurses who worked for the Respondent indicated that they had had other professional problems with her. For example, Ms. Griffin indicated that in addition to the catheter incident, she had instances when she would report problems to the Respondent but Respondent would make no record of it. She would, for instance, report patients with rashes to the Respondent but nothing would be done about it. It got so bad that the witness finally started to request Respondent to initial reports she made.
Ms. Gibbons also has noticed Respondent to have had difficulty on other occasions than that involved in this hearing with the insertion of catheters.
Ms. LeBrun prepared at least one efficiency report on Respondent which had to be reaccomplished because the Respondent would not sign for it and acknowledge the rating. In addition, Ms. LeBrun counseled Respondent on at least one occasion for jumping channels. On the basis of Ms. LeBrun's testimony, it would appear that there was some friction between the two nurses but this does not necessarily, in light of all the other evidence, indicate that Ms. LeBrun's testimony is biased or tainted.
On the basis of the above incidents, Ms. Holmes was terminated from employment with the nursing home on June 29, 1984, because of poor performance.
On December 21, 1983, the Board of Nursing entered an Order pursuant to a stipulation executed by the Respondent in another case which resulted in her being fined $250.00, being placed on probation, and being required to take certain continuing education courses. The stipulation reflects that the Respondent denied the allegations of fact contained in the Administrative Complaint which supported it which related to various failures by Respondent to conform to the minimal standards of nursing practice. Respondent indicated that she entered into the stipulation simply because she had no money with which to retain an attorney and was forced, therefore, to utilize the services of Legal Aid. It was her Legal Aid attorney who talked her into stipulating on the basis that she had no witnesses to support her position. She continues to deny the allegations in the former Administrative Complaint, however.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.
In its Administrative Complaint filed herein the Petitioner alleged five instances from July 19, 1983, through May 11, 1984, which it contends constitute unprofessional conduct in violation of Section 464.018(1)(f), Florida Statutes, and a willful violation of a lawful order of the board previously entered in violation of Section 464.018(1)(j).
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.
Subsection (j) of the same statute includes as grounds for discipline:
Willfully or repeatedly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.
In paragraph 4 of the Administrative Complaint, Petitioner alleges that on April 11, 1984, Respondent administered a medication to a patient even though the physician had previously ordered the medication to be discontinued. The evidence admitted at the hearing reflects that the entry on the records reflecting that the doctor discontinued the medication was made subsequent to the Respondent's use of the medication and Respondent cannot, therefore, be held responsible for an order of which she did not have and could not have had notice at the time she took action.
The next allegation contained in the Administrative Complaint reflects that the Respondent failed to use proper asceptic techniques in inserting a
catheter in a female patient. Here the evidence is ample to establish that the procedure Respondent followed was improper and clearly constituted unprofessional conduct which failed to conform to the minimal standards of acceptable and prevailing nursing practice. As such, it is a violation of Section 464.018(1)(f).
Another allegation relates to the September 15, 1983 failure by Respondent to promptly respond to a patient in distress. There is insufficient evidence to conclude that Respondent's actions constitute a departure from the minimal standards of acceptable and prevailing nursing practice. while the evidence shows that Respondent may not have responded as promptly as could be expected, it fails to indicate that the patient was in distress to the degree that would constitute an emergency situation requiring immediate response by the Respondent. Therefore, it cannot be said that Respondent's actions here constitute a violation as alleged.
The same cannot be said, however, regarding her conduct in response to the patient observed to be in distress on May 2, 1984. Here, she failed to respond in a timely fashion and she failed to quickly and expeditiously notify the physician of the patient's situation. She also failed to document any of the above or what she allegedly did and this constitutes a departure from appropriate standards and a violation of the statute as alleged.
With regard to the allegation that on May 11, 1984, Respondent failed to properly assess and report a broken area on a patient's coccyx, while the evidence is not overwhelming in support of the allegation, there is sufficient evidence nonetheless to establish that Respondent failed to take appropriate action with regard to this patient as outlined in the decubitus procedure, and that her actions fell short of the minimum acceptable standards of the nursing practice in Florida.
Even though it has been established that Respondent was in violation, in at least some particulars of the statute because of her failure to conform to appropriate standards of the nursing profession, this does not support a further finding of violation of Section 464.018(1)(j). The stipulation on which the prior order is based contains Respondent's denial of the allegation of facts in the supporting Administrative Complaint and it would be improper to use that prior order not based on findings of improper conduct, to increase the punishment here.
Nonetheless Respondent has been measured against the standards of performance set out for nurses in Florida and has been found wanting and her explanation as to the reasons for her actions here been less than persuasive.
It is obvious that Respondent at the present time, has not demonstrated the professional qualifications to practice nursing in this State. It is clear that her skills need to be refreshed and honed and until such action is taken it would be inappropriate for her to practice the profession of nursing in this State.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent's license as a licensed practical nurse in the State of Florida be suspended for a period of one year or until such time as she has completed a course of remedial study prescribed by the Board of Nursing and to its satisfaction, and that upon her completion of such course of study, she be placed on probation for a period of one year under such terms and conditions as prescribed by the Board of Nursing.
RECOMMENDED this 29th day of July, 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 29th day of July, 1985.
COPIES FURNISHED:
William B. Furlow, Esquire, and Celia Bradley, Esquire Department of Professional
Regulation
130 N. Monroe Street Tallahassee, Florida 32301
Dale E. Rice, Esquire Post Office Box 687 Crestview, Florida 32536
Fred Roche Secretary
Department of Professional Regulation
130 N. Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino General Counsel
Department of Professional Regulation
130 N. Monroe Street Tallahassee, Florida 32301
Judie Ritter Executive Director Board of Nursing
Room 504, 111 E. Coastline Dr.
Tallahassee, Florida 32202
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING
BOARD OF NURSING, DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR CASE NO. 005046000
DOAH CASE NO. 84-4080
PHYLLIS C. HOLMES,
Respondent.
/
FINAL ORDER
Respondent, Phyllis C. Holmes, holds Florida License Number 31075-1 as a licensed practical nurse. Petitioner, Department of Professional Regulation, filed an Administrative Complaint against Respondent on October 17, 1984, seeking suspension, revocation, or other disciplinary action against the license. Respondent disputed the material facts contained in the Administrative Complaint and requested a formal hearing. The formal hearing was duly held before Arnold H. Pollack, Hearing Officer for the Division of Administrative Hearing on June 5, 1985.
This cause came before the Board of Nursing on October 3, 1985, in Miami, Florida, for final agency action. The Petitioner was represented by William Furlow, Esquire. The Respondent was duly notified of the meeting but was not present. The Board has reviewed the entire record in the case, including the transcript and exhibits.
FINDINGS OF FACT
The Board accepts and adopts the Findings of Fact contained in the Recommended Order.
CONCLUSIONS OF LAW
The Board accepts and adopts the Conclusions of Law contained in the Recommended Order, except that the Board further finds that Respondent's actions do constitute a violation of Section 464.018(j), Florida Statutes. Regardless of Respondent's position as to the facts of the previous disciplinary action, her license was on probation at the time of the May 2, 1984 and May 11, 1984 incidents which have been found to be violations of Chapter 464, Florida Statutes. She consequently did repeatedly violate a lawful order of the Board by her failure to comply with Chapter 464, and the terms of her probation.
PENALTY
The Board rejects the Recommendation of the Hearing Officer and as grounds therefor states:
The nature of the violations committed by Respondent are found to be very serious. Failure to respond to a patient in distress is an especially grave breach of professional conduct. The Board further finds, based on the record herein, that the types of deviations from good nursing practice exhibited by Respondent are so basic that little possibility exists that Respondent may be rehabilitated. The record reflects a disregard by the Respondent of the very minimum standards of asceptic techniques, appropriate response to patients in distress and patients requiring treatment, and the general welfare of her patients. In order to protect the health, safety and welfare of the public, the Board finds it necessary to increase the penalty. it is therefore ORDERED that:
The license of Phyllis C. Holmes is hereby REVOKED.
Within 30 days the licensee shall return her license to the Board Office,
504 Daniel Building, 111 Coastline Drive East, Jacksonville, Florida 32201 or shall surrender the license to an investigator of the Department of Professional Regulation.
The Respondent is permanently prohibited from petitioning the Board for reinstatement of her 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 Department of Professional Regulation, 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 15th day of November, 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 Phyllis C. Holmes, 337 E. Bowers Avenue, Crestview, Florida 32536; Dale E. Rice, Esquire, P.O. Box 687, Crestview, Florida 32536, and to the Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee Florida 32301, by United States mail, this 15th day of November, 1985.
Judie Ritter Executive Director
| Issue Date | Proceedings |
|---|---|
| Jul. 29, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 15, 1985 | Agency Final Order | |
| Jul. 29, 1985 | Recommended Order | Nurse's failure to use proper techniques and responses failed to conform to minimum standards. |
