Judges: D. R. ALEXANDER
Agency: Department of Health
Latest Update: Feb. 24, 1986
Summary: Complaint that nurse acted unprofessionally was not sustained.
85-2358.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) Case No. 85-2358
) MARGARET ANN MORRIS MARTIN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on January 16, 1986 in Naples, Florida.
APPEARANCES
For Petitioner: B. Ceceila Bradley, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: John P. Cardillo, Esquire
3550 South Tamiami Trail Naples, Florida 33962
BACKGROUND
By administrative complaint filed on June 7, 1985, petitioner, Department of Professional Regulation, Board of Nursing, has charged that respondent, Margaret Ann Morris Martin, a licensed registered nurse, had violated Subsection 464.018(1)(f), Florida Statutes. The underlying allegations supporting the complaint are that while employed as a nursing home administrator in Naples, Florida in 1983-84, respondent obtained power of attorney from a patient, that she had the patient discharged to her custody in January, 1984, that she had over $25,000 in funds transferred from the patient's Ohio bank to a local Naples bank and sold certain of the patient's
property, and had his debt at the nursing home written off by telling the nursing home the patient's whereabouts were unknown. By virtue of this conduct; it is charged that Martin departed from minimum standards of acceptable and prevailing nursing practice within the meaning of Subsection 464.18(1)(f) by using her position as a nurse to gain the confidence of a patient in her care for purposes of defrauding both the patient and the nursing home.
Respondent disputed the above allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was referred by petitioner to the Division of Administrative Hearings on July 12, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 5, 1985, the final hearing was scheduled on January 16, 1986 in Naples, Florida.
At final hearing, petitioner presented the testimony of respondent, John H. Patrick, Jr., Harold L. Clark, and Eileen Kay Martin. It also offered petitioner's exhibits 1-3. All were received in evidence except exhibit 3 upon which a ruling was reserved. Respondent testified on her own behalf and presented the testimony of Stephen B. Thompson, Winifred Radosti, and Raymond M. Smith. She also offered respondent's exhibits 1-3. All were received in evidence.
At the outset of the hearing, respondent moved to dismiss the administrative complaint on the ground it failed to state a cause of action; this was denied as being untimely. In the alternative, she moved for a judgment on the pleadings. This motion was also denied since issues of fact were raised by the administrative complaint. Finally, respondent moved to dismiss the action on the ground Section 464.018 was unconstitutional. The motion was denied because the undersigned has no authority to grant the requested relief. However, counsel was given leave to make a record on the constitutional issues for appellate purposes. At the conclusion of petitioner's case chief, respondent ore tenus moved for dismissal of the charges. A ruling on this motion was reserved.
The transcript of hearing was filed on January 29, 1986. Proposed findings of fact and conclusions of law were due on February 13, 1986. Only petitioner complied with this deadline. A ruling on each of petitioner's proposed findings of fact has been made in the Appendix attached to this Recommended Order.
At issue is whether respondent's license as a registered nurse should be disciplined for the alleged violations set forth in the administrative complaint.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all time relevant hereto, respondent, Margaret Ann Morris Martin, held registered nurse license number 1076252 issued by petitioner, Department of Professional Regulation, Board of Nursing. She presently resides at 3101 Buena Vista Lane, Naples, Florida. Martin has been a registered nurse since 1963, and holds licenses in Florida and Pennsylvania. She has worked in a variety of positions at various institutions since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. She has received outstanding evaluations concerning the quality of her work, and has never been subjected to prior disciplinary action.
Martin also holds a nursing home administrator's license. Using that license she held the position of nursing home administrator at Heritage Healthcare Center, Inc. (HHHC) in Naples, Florida from January, 1979 until October, 1984. HHHC is a 97 bed skilled nursing facility providing medical and nursing services to Medicare, Medicaid and private pay patients. Martin was hired by HHHC as a nursing home administrator, and did not perform nursing duties while employed at the facility.
Clarence Berlyoung was a 78 year old private pay patient admitted to HHHC on July 21, 1983. He remained a patient at HHHC until his discharge on January 23, 1984. According to his patient records, Berlyoung required an intermediate level of nursing care, which included observation, monitoring of his condition, and a daily note by the nurses. The notes indicated that Berlyoung was "weak", that he had some "drooping" on one side of his face, and that his gait was unsteady. The records also indicated Berlyoung had suffered a stroke and had an additional diagnosis of organic brain syndrome.
During his stay at HHHC, Berlyoung and Martin developed what she called a "close relationship" and one which was similar to that of father and daughter. Among other things, she talked
with the patient whenever he visited her office, and took him outside the facility for recreational or shopping purposes, or an occasional meal. She also made sure that Berlyoung was provided with personal necessities, such as cigarettes and his daily ration of two cans of beer.
On an undisclosed date, but apparently in late 1983, Martin carried Berlyoung at his request to an attorney's office in Naples so that he could take care of some needed legal matters. Without Martin's prior knowledge, Berlyoung signed a "power of attorney" which designated Martin to handle his financial affairs. He also had Martin named a beneficiary in his will. When these documents were executed, Berlyoung was mentally alert and competent to make these decisions. There is no evidence that Martin influenced Berlyoung to execute these documents, or to choose her as a beneficiary.
In January, 1984 Berlyoung became dissatisfied with living in a nursing home, and left HHHC on his own accord. Since he had no other place to go at that time, he approached Martin and asked if he could stay in her home temporarily. Martin agreed and allowed Berlyoung to move into her home. There is no evidence that Martin encouraged Berlyoung to leave the nursing home, or to choose her home as a place to live. Once the move was made, she prepared his meals, did his laundry and helped bathe him. Berlyoung was capable of taking his own medication and did not need Martin's assistance in this respect.
Berlyoung's physical condition and medical requirements after his discharge from HHHC on January 23, 1984, were not disclosed. He stayed at Martin's home for several months until he moved to a motel for a few days, and then to an apartment.
He died on a later undisclosed date.
While the power of attorney was in effect, Martin helped Berlyoung transfer between $25,000 and $30,000 from an Ohio bank to a Naples area bank. She, or her husband, also sold a Volkswagen automobile and a "trailer" which Berlyoung owned. This is no evidence that she misused the funds, or performed any act which Berlyoung had not instructed her to do.
When Berlyoung departed HHHC, he left an outstanding bill of $1,389.90. On May 7, 1984, Berlyoung's bill was written off by HHHC. This was a routine function after an account had aged for ninety days. A write-off slip is not generally
considered to be a "medical record," but is more akin to a business record of the facility. On Berlyoung's writeoff slip was the notation "Present address unknown." The slip was prepared by someone other than Martin. However, as nursing home administrator Martin signed and approved the slip. This was a routine duty of the administrator, and the Berlyoung slip was one Of some fifteen or twenty that she signed that same day.
The record is unclear as to whether Berlyoung still resided with Martin in early May, 1984 or had moved elsewhere by that time.
However, Martin knew where Berlyoung resided, for she testified she assisted him in finding an apartment, and kept in touch with him until he died.. Therefore, it is found that Martin knew the address of Berlyoung when she signed the slip, but for some reason, she still approved the write off of his account on the ground his address was unknown. There is no evidence that she did so for fraudulent purposes as alleged in the administrative complaint.
Martin did not know that DPR apparently viewed the holding of a patient's power of attorney by a nursing licensee to be improper until she read a DPR newsletter in the spring of 1984 which indicated a nurse had been reprimanded for doing this. By this time, she stated she had already torn the document up, and no longer exercised the authority.
Two registered nurses and the owner of a skilled nursing facility offered opinion testimony as to Martin's conduct. The agency witness, who was accepted as an expert in the field of nursing and in the review of medical records, gave opinions concerning the minimal standards of prevailing nursing practice, and whether respondent's activities constituted a deviation from said standards. She also gave testimony on the issue of whether respondent was acting in the capacity of a nurse in her relationship with Berlyoung. Respondent's first witness, a registered nurse, gave opinion testimony on the issue of whether Martin was acting as a nurse, whether the write off slip was a medical record, and whether the allegations against Martin related to the nursing profession. A second witness, who owned a nursing home, also gave testimony on whether the allegations against Martin related to the nursing profession.
As might be expected, the conclusions reached by the two sets of witnesses differed in material respects. The difference in opinion stems primarily from whether Martin was acting in the role of a registered nurse when the events herein occurred.
According to uncontroverted testimony, a minimal standard of acceptable and prevailing nursing practice is "a
trust relationship which is necessary to provide quality care to a patient." Accordingly, a nurse should not manage a patient's money in the absence of a court order, and should not accept a patient in her home. A second minimal standard is "anything that a nurse signs is (a) true and accurate record of what she knows to be the truth." This standard prohibits a nurse from signing a record she knows to be false. These two standards were not disputed by respondent. By violating either or both of the standards, a nurse is engaged in "unprofessional conduct."
A matter requiring resolution is whether Martin was acting as a registered nurse during Berlyoung's stay at HHHC and at her home. When Berlyoung was at HHHC from July 1983 until January 1984, Martin did not sign his medical records, administer medication, or otherwise engage in what are normally considered to be nursing duties associated with caring for the patient. Indeed, she performed only administrative duties consistent with her position as nursing home administrator. The fact that she talked to the patient, ran errands for him, and joined him for an occasional meal did not constitute what are generally considered to be the functions of a registered nurse. Therefore, she was not acting as a nurse at that time.
When Berlyoung was allowed to temporarily stay at Martin's home, he was not accepted as a patient, nor was it the outgrowth of a nurse patient relationship. Indeed, it was based upon their friendship and the "close relationship" which had developed between the two at HHHC. Even though she prepared his meals, bathed him and did his laundry, these functions required no "substantial knowledge, judgment, and nursing skill," and could have been performed by a friend, relative or acquaintance. Therefore, it is found Martin did not accept a "patient" into her home as a "nurse," and was not acting as a registered nurse when she performed these duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Respondent is charged with violating Subsection 464.018(1)(f), Florida Statutes (1985), "due to unprofessional conduct which departs from acceptable and prevailing nursing practice, by using her position as a nurse to gain the confidence of a patient in her care for purposes of defrauding HHHC, and/or the patient." (paragraph 7 of administrative
complaint). Subsection 464.018(1) ( f ), Florida Statutes (1985), makes it unlawful for a licensee to engage in:
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 464.003(3)(a), Florida Statutes (1985), defines "practice of professional nursing" as follows:
. . . the performance of those acts requiring substantial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences which shall include, but not be limited to:
The observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care; health teaching and counseling of the ill, injured, or infirm and the maintenance of health and prevention of illness of others.
The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments.
The supervision and teaching of other personnel in the theory and performance of any of the above acts. This definition is applicable to registered nurses, in which category Martin falls.
Respondent contends that the term "acceptable and prevailing nursing practice" is vague and undefined, and therefore unenforceable. However, such standards applicable to nurses can be established, as it was done here, on a case-by- case basis through expert testimony. Solloway v. Department of Profession al Regulation, 421 So. 2d 573, 575 (Fla. 3rd DCA 1982). Therefore, the issue is whether respondent was performing the duties of a registered nurse when the events
herein occurred, and if so, violated the two cited minimal standards of acceptable and pre veiling nursing practice.
The evidence supports a conclusion that Martin was not acting as a registered nurse in her relationship with Berl Young, either at HHHC or in her home. This conclusion accords with Subsection 464.003(3)(a) which defines the practice of professional nursing as "the performance of acts requiring substantial specialized knowledge, judgment, and nursing skill." Accordingly, if Martin is subject to disciplinary action at all, it must be on the theory that a licensee can be disciplined for "unprofessional conduct" that arises from acts done as a private person.1 The complaint alleges that the unprofessional conduct stems from Martin's departure "from acceptable and prevailing nursing practice, by using her position as a nurse to gain the confidence of a patient in her care for purposes of defrauding HHHC; and/or the patient." The only remaining issue, then, is whether a licensee must be acting as a nurse in order to violate the minimum standards of acceptable and prevailing nursing practice. In this regard, petitioner has cited no authority for the proposition that a licensee can be disciplined for accepting a non-patient in her home, managing the financial affairs of someone who is not a patient, or signing a document as a nursing home administrator. Because penal statutes must be strictly construed in favor of a licensee. Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980), it is concluded that a nurse must be engaged in the "practice of professional nursing" in order to violate the minimal acceptable and prevailing standards of nursing practice. Then, too, the primary thrust of the complaint is that Martin used "her position as a nurse to gain the confidence of a patient in her care for purposes of defrauding HHHC, and/or the patient."
There is no evidence whatsoever to support this charge, or that Martin had any sinister purpose in her dealings with Berlyoung. Accordingly, the charges in the complaint must fail.
In view of the above conclusions, respondent's motion to dismiss is rendered moot and is hereby denied.
Petitioner's exhibit 3 is received in evidence.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the administrative complaint be DISMISSED, with prejudice.
DONE and ORDERED this 24th day of February, 1986, in Tallahassee, Florida.
DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1986.
ENDNOTE
1/ See, for example, Sellars v. Florida Real Estate Commission,
380 So. 2d 1052 (Fla. 1st DCA 1 80) (real estate licensee can be disciplined for improper conduct in his own affairs unrelated to the real estate profession).
COPIES FURNISHED:
B. Cecelia Bradley, Esquire
130 North Monroe St. Tallahassee, Florida 32301
John P. Cardillo, Esquire 3550 South Tamiami Trail Naples, Florida 33962-4999
Ms. Judie Ritter, Executive Director Florida Board of Nursing
Room 540, 111 E. Coastline Drive
Jacksonville, Florida 32202
APPENDIX
PETITIONER:
Covered in findings of fact 1 and 4.
Covered in finding of fact 4.
Covered in finding of fact 4.
Covered in finding of fact 5.
Covered in finding of fact 6.
Covered in finding of fact 8.
Covered in finding of fact 8.
Covered in finding of fact 9.
Covered in finding of fact 9.
Covered in finding of fact 1.
Covered in finding of fact 10.
Covered in finding of fact 2.
Covered in finding of fact 3.
Covered in finding of fact 3.
Rejected as being unnecessary for a determination of the issues.
Rejected as being unnecessary for a determination of the issues.
Rejected as being contrary to the weight of the evidence.
Rejected as being unnecessary for a determination of the issues.
Partially covered in finding of fact 6.
Rejected as being contrary to the weight of the evidence.,
Rejected as being contrary to the weight of the evidence.
Rejected since there was no nurse-patient relationship between Martin and Berlyoung at HHHC.
Rejected since Martin was acting under her nursing home administrator's license when she signed the write-off slip.
Rejected since Martin was not acting as a nurse.
Rejected as being unnecessary for a determination of the issues.
Covered in finding of fact 11.
Rejected as being unnecessary for a determination of the issues.
Covered in finding of fact 11.
Rejected as being unnecessary for a determination of the issues
Rejected as being unnecessary for a determination of the issues
Covered in finding of fact 11.
Rejected as being unnecessary for a determination of the issues
Covered in findings of fact 7 and 9.
Docket for Case No: 85-002358
Orders for Case No: 85-002358
