STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1399

)

SANDRA LEAH MEDINA POUGH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 9, 1986, in Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: William M. Furlow, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ms. Sandra L. M. Pough, pro se

Route 1, Box 1588

Gainesville, Florida 32609 ISSUES AND INTRODUCTION

This is a license discipline case in which the Respondent has been charged by Administrative Complaint signed February 7, 1986, with violation of Section 464.018(1)(f), Florida Statutes, by reason of alleged unprofessional conduct which departs from minimal standards of acceptable and prevailing nursing practice. At the hearing, the Respondent admitted some of the allegations of the Administrative Complaint but specifically denied all allegations of unprofessional conduct.

Subsequent to the hearing the parties were provided an opportunity to file proposed recommended orders with the Hearing Officer. A timely proposed recommended order was filed by the Petitioner. The Respondent has not filed any proposed recommended order or other post-hearing written submission to the Hearing Officer. The proposed recommended order submitted by the Petitioner has been given careful consideration in the preparation of this Recommended Order.

A specific ruling on each proposed finding of fact contained in the Petitioner's proposed recommended order is contained in the Appendix which is attached to and incorporated in this Recommended Order.

FINDINGS OF FACT

On the basis of the stipulations of the parties, of the exhibits received in evidence, and the testimony of the witnesses at hearing, I make the following findings of fact.

1. The Respondent, Sandra Leah Medina Pough, is, and has been at all times material hereto, a licensed practical nurse in the State of Florida, having been issued license number 0696361. Respondent's last known address is Route One, Box 1588, Gainesville, Florida 32609.

   
   

2. At all times material to this complaint, the Respondent was employed at the Sunland Training Center (Sunland) in Gainesville, Florida, although Respondent is no longer employed at that facility.

   
   

3. In July 1985, and again in August 1985, the Respondent administered tuberculosis skin tests to patients at Sunland without a physician's order to do so. The August incident occurred in direct contravention of previous orders. These two unauthorized administrations of tuberculosis skin tests occurred because of the Respondent's failure to take adequate steps to verify the identity of the patients to whom the tuberculosis skin tests were administered. These two unauthorized administrations of tuberculosis skin tests were administered to patients who had previously had a positive tuberculosis skin test.

   
   

4. After a patient has had a positive tuberculosis skin test, it is unnecessary, against hospital policy, and potentially harmful to give the test again. The harm which can result from readministration of the test includes induration or ulceration of the test site, tissue damage and infection, and local reaction to the vaccine.

   
   

5. A nurse should never administer tuberculosis skin tests to a patient without a physician's order to do so. It is the duty and responsibility of a nurse to verify the identification of a patient before administering any tests or medications which require a physician's order. It is a departure from, or a failure to conform to, the minimal standards of acceptable and prevailing nursing practice for a nurse to administer tuberculosis skin tests without a physician's order or for a nurse to administer tuberculosis skin tests without positive verification of the identity of the patient to whom the test is administered.

   
   

6. On August 22, 1985, the Respondent was requested to obtain a urine sample from a patient by means of the "clean-catch" method. Instead of using the "clean-catch" method, the Respondent catheterized the patient. The catheterization of the patient was done without a physician's order and in direct contravention of specific instructions given to the Respondent. Catheterization has inherent risks, such as an increased risk of infection and the possibility of traumatic injury.

   
   

7. A nurse should never catheterize a patient without a physician's order to do so. It is a departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice for a nurse to catheterize a patient without a physician's order to do so.

   
   

8. None of the patients involved in the three incidents described above suffered any actual injury as a result of the actions described above. However, all of the patients were unnecessarily exposed to a risk of actual injury as a

   result of the conduct described above. It is extremely important in the practice of nursing for a nurse to always verify that the correct medication is being administered to the correct patient and to verify that the correct procedure is being performed upon the correct patient. A failure to make such verification exposes the patient to unnecessary and potentially dangerous risks.

   
   

9. The professional standards applicable to the occurrences described above are the same for both licensed practical nurses and registered nurses.

   
   

   CONCLUSIONS OF LAW

   
   

10. Based on the foregoing findings of fact and on the applicable principles of law, I make the following conclusions of law.

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Sec. 120.57(1), Fla. Stat.

    
    

12. Section 464.018(1)(f), Florida Statutes, reads as follows:

    
    

    1. The following acts shall be grounds for disciplinary action set forth in this Section:

       * * *

       (f) 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.

       
       

13. Section 464.018(2), Florida Statutes, authorizes the Board of Nursing to enter an order imposing one or more of the following penalties when a person is found guilty of any of the grounds set forth in subsection (1) of Section 464.018, Florida Statutes:

    
    

    1. Refusal to certify to the department an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative fine not to exceed $1000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify, including requiring the nurse to submit to treatment, to attend continuing education courses, to take an examination, or to work under the supervision of another nurse.

    
    

14. Rule 21-10.05, Florida Administrative Code, lists numerous factors which are to be taken into consideration by the Board of Nursing in determining the appropriate disciplinary action to be imposed. The specific factors are:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of

       offenses;

    4. The length of time since date of violation;

    5. The number of complaints filed against the licensee;

    6. The length of time licensee has practiced;

    7. The actual damage, physical or otherwise, to the patient;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the licensee's livelihood;

    10. Any efforts for rehabilitation;

    11. Any other mitigating or aggravating circumstances.

    
    

15. It is clear from the findings of fact in this case that during a two- month period in 1985 the Respondent engaged in three separate acts, each of which constitutes unprofessional conduct within the meaning of Section 464.018(1)(f), Florida Statutes. Two of these offenses are more serious than the other because they occurred in direct contravention of previous instructions. Although none of these occurrences caused any actual harm to the patients, each of them posed a potential danger to the patients.

    
    

    RECOMMENDATION

    
    

16. Based on all of the foregoing and giving particular consideration to the factors specified in Rule 21-10.05, Florida Administrative Code, it is recommended that the Board of Nursing enter a Final Order in this case finding the Respondent guilty of a violation of Section 464.018(1)(f), Florida Statutes, and imposing the following penalty:

1. Suspending the Respondent's license for a period of 60 days, and

2. Placing the Respondent on probation for a period of one year following the 60-day period of suspension, during which period of probation the Respondent shall be required to attend continuing education courses in the areas of administration of medications and the legal aspects of nursing.

DONE AND ORDERED this 19th day of August 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 this 19th day of August 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1399

The following are my specific rulings on each of the proposed findings of fact submitted by the parties.

Findings proposed by Petitioner

I have accepted all of the proposed findings of fact submitted by the Petitioner with the exception of those found in paragraphs 3 and 8 of Petitioner's proposed findings. The findings proposed in paragraphs 3 and 8 are rejected as constituting subordinate and unnecessary details.

Findings proposed by Respondent None.

COPIES FURNISHED:

William M. Furlow, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Sandra L. M. Pough Route 1, Box 1588

Gainesville, Florida 32609

Wings Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Judie Ritter, Executive Director Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 0062383

DOAH CASE NO.: 86-1399

SANDRA L. MEDINA POUGH,

Respondent.

/

ORDER

Respondent Sandra L. Medina, holds Florida License No. 0696361 as a licensed practical nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, 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 Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

The Board of Nursing met on October 23, 1986, in Orlando, Florida, to take final agency action. The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board accepts and adopts the finding of fact contained in the Recommended Order.

CONCLUSIONS OF LAW

The Board accepts and adopts the conclusions of law contained in the Recommended Order.

PENALTY

The Board concurs with the recommended penalty but feels that employer reports of work performance should be added as a condition of probation. As stated on page 25 of the transcript, Respondent failed to report her first medication error and subsequently made the same error. The Board feels that evaluations of Respondent's performance will make probation more meaningful to Respondent and will provide the Board with more complete information regarding her progress during the probationary term. It is therefore ORDERED that:

Respondent's license is hereby SUSPENDED for 60 days.

Upon completion of the term of suspension, the licensee shall be placed on PROBATION for one year, subject to the following terms and conditions:

The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing.

The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, the following specific courses: administration of medications and legal aspects of nursing.

Verification of successful completion and documentation of course content satisfactory to the Board shall be submitted to the Board probation section, prior to expiration of the probationary period.

During the probation the licensee shall report any change in residence address, any change of name, any change in employer or place of employment, or any time she is arrested. These events will be reported immediately (and in any event within ten working days) by certified mail to the Board of Nursing, Probation Section, 111 Coastline Drive East, Suite 504, Jacksonville, Florida 32202.

While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by her employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board probation section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates.

Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation.

Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing shall be subject to immediate and automatic suspension pending the licensee's appearance before the next Board meeting (or such other meeting as mutually agreed by the licensee and the Department). The licensee will be given notice of the hearing and an opportunity to defend.

The probationary period shall automatically terminate at the end of the prescribed time, but only if all terms and conditions have been met. Otherwise, the probation shall be terminated only by Order of the Board upon proper petition of the licensee, supported by evidence of compliance with this Order.

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 14th day of November, 1986.

Jessie Trice, 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 SANDRA L. MEDINA, Route 1, Box 1588, Gainesville, Florida 32609, by United States Mail, at or before 5:00 p.m., this 14th day of November, 1986.

Judie Ritter Executive Director

Docket for Case No: 86-001399

Orders for Case No: 86-001399