STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2491

) LINDA S. BERNARDI DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Ella Jane P. Davis a duly assigned hearing officer of the Division of Administrative Hearings in Orlando, Florida on October 30, 1986.

APPEARANCES

For Petitioner: John Namey, Esquire

22 East Pine Street Orlando, Florida 32801

For Respondent: Francisco Colon, Jr., Esquire

1 North Orange Avenue, Suite 500 Orlando, Florida 32801

ISSUES

By an Administrative Complaint executed May 27, 1986 and filed with the Division of Administrative Hearings on July 11, 1986, Respondent is charged, pursuant to Sections 464.018(1)(f) and/or (h) Florida Statutes (1985) with "unprofessional conduct which departs from minimal standards of acceptable and prevailing nursing practice; and/or being unable to practice nursing with reasonable skill and safety to patients by reason of use of alcohol or drugs." All charges are limited to events allegedly occurring May 6, 1985.

BACKGROUND

Petitioner presented the oral testimony of Jeanette Crandall, Cathleen Sharp, Linda Ciekot, Lucille Diel, Leslie Martinez, Pamela Warner, Arlene McClellan, Robert Borders, Earlene Freeman, and Respondent, and had admitted 4 out of 5 exhibits offered. Respondent testified orally and presented the oral testimony of Linda Oram.

Transcript of the hearing was filed by Petitioner. Both parties have filed proposed findings of fact and conclusions of law. Although Respondent's proposals were filed beyond the extended timeframe stipulated to by the parties,

no objection was subsequently filed by Petitioner and accordingly all proposals have been considered and are ruled on pursuant to Section 120.59(2) F.S. in the appendix to this recommended order.

FINDINGS OF FACT

1. The Respondent is a licensed practical nurse.

   
   

2. On May 5-6, 1986, Respondent was employed at the Orlando Health Care Center as a licensed practical nurse on the 11:00 p.m. to 7:00 a.m. shift.

   
   

3. At that time, Jeanette Crandall, a 68 year-old female patient roomed with Lorene Johnson, another elderly female patient who has a history of "wandering." Mrs. Crandall testified that early on the morning of May 6, 1986 she observed Respondent alone attempt to place Lorene Johnson in bed and that when Respondent could not get Lorene Johnson into bed due to Johnson's resistance, Respondent struck Johnson with Johnson's shoe two or three times in her head resulting in a one and a half inch laceration causing Johnson to bleed. Although Ms. Crandall's testimony is somewhat disjointed as to precise time sequence, it is credible.

   
   

   In making the foregoing finding, the testimony of Linda Oram, nurse's aid, has not been overlooked. Ms. Oram testified upon behalf of the Respondent that when she first saw Lorene Johnson, witness Oram was with Respondent near the nurse's station and that patient Johnson came out of her room and was already bleeding. Ms. Oram stated she did not see how Ms. Johnson received her injuries nor did she see Respondent batter Ms. Johnson. Ms. Oram helped Respondent put Johnson back to bed but did not relate that Johnson had her shoes in her hand or that she resisted Oram and Respondent. Ms. Gram carefully explained that she was not present with Respondent all the time prior to putting Johnson back to bed and all the time afterwards. This evidence of Ms. Gram is not contradictory of Ms. Crandall's testimony. Moreover, there is the testimony of patient Lucille Diel that she subsequently heard Respondent telling Ms. Johnson "I didn't mean it," and the testimony of Pam Warner that Respondent told Warner that Lorene Johnson "just kept hitting me and hitting me. She was trying to kill me."

   
   

4. Both Oram and Respondent confirm that Respondent applied a band-aid to Johnson's head injury when the two entered the room together despite profuse bleeding.

   
   

5. Respondent's witness Oram is a recovering alcoholic and friend of Respondent who is also a recovering alcoholic. Her initial impression of Respondent's behavior was that Respondent was intoxicated and she stated this impression to a number of other witnesses on May 6, 1986. Her testimony at formal hearing did not contradict this initial impression but was expanded to include her belief that Respondent might also have been distressed on May 6 due a fight with Respondent's boyfriend. Oram felt Respondent was not in a condition to work. Jeanette Crandall was familiar with intoxicated people and testified that Respondent was drunk when she hit Johnson. Linda Ciekot, the licensed practical nurse who came on to relieve Respondent at 6:50 a.m. for the beginning of the 7:00 a.m. May 6, 1986 shift found Respondent with her head down on the desk, sweating profusely and responding to questions with slurred speech. She observed Respondent at that time to have glassy eyes, a staggering gait and to smell of alcohol. Ciekot formed the impression Respondent was very intoxicated. At this time several witnesses observed that the medicine cart and medicine Room in Respondent's charge were both unlocked and the cart was messy

   with doors turned out, all contrary to standard requirements. Respondent acknowledged that she frequently leaves the medicine cart unlocked and is reprimanded by her superiors for it. Pam Warner, a licensed practical nurse was summoned by Ciekot to attend patient Johnson. By that time, Johnson was in the atrium near the nurse's station and still bleeding from her wound. Pam Warner observed that Respondent had slurred speech and was loud and disheveled; she observed no alcohol odor on Respondent in the atrium. Arlene McClellan, a registered nurse coming on the new shift as charge nurse on Respondent's wing, described Respondent at this time as having glassy eyes, a wandering gaze, slurred speech and talking loudly. McClellan smelled alcohol on Respondent's person when she spoke with her privately in the small closed medicine room.

   These observations by persons familiar with the appearance and behavior of intoxicated persons are consistent with Respondent's being under the influence of alcohol while on duty and it is found that she was under the influence of alcohol while on duty.

   
   

6. In making the immediately foregoing finding, Respondent's testimony has not been overlooked. She testified that her distraught condition was due to a violent fight she had had with her boyfriend just before coming to work at 11:00

   p.m. May 5 and because of his telephoned threats against herself and her dog during the shift. Respondent maintained she was staggering due to skinned knees incurred May 5 when the boyfriend had dragged her across a parking lot. Her evidence of skinned knees and a series of phone calls and emotional upsets through the shift are corroborated by the observations of Leslie Martinez, another licensed practical nurse who saw Respondent approximately every two hours through the shift up until 4:00 a.m. However, Martinez stated that Respondent seemed herself until 4:00 a.m. when Martinez observed Respondent with a Betadine-stained uniform, messy nurse's station, unlocked medicine cart and medicine room, and slurred speech. Martinez' description is similar to that of other witnesses at approximately 6:30 a.m.

   
   

7. It strains credulity to accept Respondent's version that so many medical personalities who are experienced with intoxicated persons could have confused the odors of imbibed apple juice and spilled Betadine (an iodine-based solution) with the odor of imbibed alcohol or confused the symptoms of acute emotional distress with the symptoms of being under the influence of alcohol. Her explanation is rejected.

   
   

8. Despite elaborate speculation by Arlene McClellan based on uncorroborated hearsay, Petitioner did not establish by any competent direct evidence that any drugs were missing from the medicine cart or room or that any were ingested by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.

   
   

10. Section 464.018(1)(f) and (h) Florida Statutes provide in pertinent part:

    
    

    1. Disciplinary actions.

       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.

    (h) 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.

    
    

11. Although the standards of acceptable and prevailing nursing practice have not been specifically laid out by any witness nor argued by counsel, these standards may be established on a case by case basis. Solloway v. Department of Professional Regulation 421 So.2d 573 (Fla. 3d DCA 1982). It is axiomatic that striking a patient and being under the influence of alcohol while on duty is behavior not conforming to the standards of acceptable and prevailing nursing practice.

    
    

12. Clearly, striking a patient, being under the influence of alcohol while on duty, failing to adequately dress Ms. Johnson's wound or call a medical doctor, and leaving the medicine cart and medicine room unsecured constitute being unable to practice nursing with reasonable skill and safety in the circumstances of this case by reason of the use of alcohol. That emotional distress may have played some part in these events does not remove the behavior from discipline under sub-section (h).

    
    

13. In considering the penalty to be recommended, the fact that alcoholism is a disease capable of complete recovery has been considered.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Respondent be suspended for a period of three years with leave to reapply after one year upon a showing to the Board of Nursing that her alcoholism is under control, that she is rehabilitated, and that she is fit to practice nursing.

DONE and Ordered this 26th day of January, 1987 in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 26th day of January, 1987.

APPENDIX TO RECOMMENDED ORDER

Rulings pursuant to Section 120.59(2) F.S. upon Petitioner's proposed findings of fact (FOF):

1. Accepted FOF 1.

2. Accepted FOF 2.

3. Accepted but not adopted as subordinate and unnecessary.

4. Accepted but not adopted as subordinate and unnecessary.

5. Accepted FOF 3.

6. Accepted FOF 3.

7. Accepted but not adopted as subordinate and unnecessary.

8. Accepted FOF 5.

9. Those portions supported by the record as a whole are accepted in FOF

1. What is rejected is rejected as speculative, without predicate, and as not supported by the record as a whole.

   1. Accepted as FOF 5.

   2. Accepted that Respondent testified to this but rejected as a finding of fact as not supported by the record as a whole.

   3. Rejected as irrelevant what anyone observed concerning Respondent 10 hours after the incident at a time when she was off duty.

   4. Accepted but irrelevant for the reasons stated above.

   5. Accepted but irrelevant for the reasons stated above.

   6. Accepted FOF 5.

   7. Accepted FOF 5.

   8. Accepted FOF 5.

   9. Accepted FOF 3.

Rulings pursuant to Section 120.59(2) F.S. upon Respondent's proposed findings of fact (FOF):

1. Respondent has presented no additional argument as to why Petitioner should not have been permitted to reopen its case to present evidence of licensure. The reopening of the Petitioner's case was permitted upon authority of Dees v. State 357 So.2d 491 and Jones v. State 392 So 2d 18. Since Respondent has not availed herself of further argument on that issue in her post hearing proposals, that ruling on the record is reiterated here and the record therefore contains evidence to support licensure of Respondent by Petitioner.

Rulings pursuant to Section 120.59(2) F.S. upon Respondent's alternative proposed findings of fact (FOF):

1. Accepted FOF 1.

2. Accepted but not adopted as not determinative of any issue at bar (See FOF 5).

3. Accepted but not adopted as not determinative of any issue at bar (See FOF 5).

4. Accepted but not adopted as not determinative of any issue at bar (See FOF 5).

5. Rejected as not supported by the record.

6. Rejected as not supported by the record. Mrs. Crandall is unclear about whether Mrs. Oram was present or came in later from behind her. Mrs. Oram was not with Respondent at all times prior to going into the room with her. It would appear Ms. Johnson wandered on several occasions that night and Mrs. Crandall is clear Mrs. Oram was not assisting Respondent when the blow was struck.

7. Accepted FOF 3.

8. Accepted FOF 3.

9. Accepted FOF 3.

10. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent.

11. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent.

12. Rejected. Observation of Petitioner's Exhibits 1 and 2 suggests this type of injury is consistent with the sandal used.

13. Rejected as not supported by the record as a whole.

14. Accepted but not adopted as not determinative of any issue at bar. (See FOF 5)

15. Accepted FOF 6.

COPIES FURNISHED:

John Namey, Esquire

22 East Pine Street Orlando, Florida 32801

Francisco Colon, Jr., Esquire

1 North Orange Avenue Suite 500

Orlando, Florida 32801

Docket for Case No: 86-002491

Orders for Case No: 86-002491