STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION ) (BOARD OF NURSING), )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-3610

) (DPR # 65875)

KIMBERLY BAUZON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 1, 1986, in Jacksonville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

FOR PETITIONER: Lisa Bassett, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

FOR RESPONDENT: Kimberly Bauzon, pro se

2968 Songbird Trail

Atlantic Beach, Florida 32233 ISSUES AND INTRODUCTION

By Administrative Complaint signed on March 17, 1986, the Respondent has been charged with violations of Sections 464.018(1)(d) and (f), Florida Statutes, on the basis of several incidents of conduct which are alleged with specificity in the Administrative Complaint. During the course of the hearing, by agreement of all parties, the Administrative Complaint was amended in the following manner. Paragraph 6 of the Administrative Complaint was amended by inserting the words "her unit within" immediately following the word "left" at the first line of Paragraph 6. Paragraph 8 of the Administrative Complaint was deleted in its entirety.

Following the hearing the Petitioner elected to obtain a transcript of the hearing and the parties were granted 10 days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was never filed, and on March 2, 1987, an order was issued changing the deadline for the filing of proposed recommended orders. The new deadline was March 17, 1987. The Petitioner filed a timely proposed recommended order. The Respondent did not. The Petitioner's proposed recommended order has been

carefully considered in the preparation of this recommended order. The substance of all findings of fact proposed by the Petitioner is included in the findings of fact which follow.

FINDINGS OF FACT

Based on the admissions of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact.

1. Respondent, Kimberly Bauzon, L.P.N., is a licensed practical nurse in the state of Florida, having been issued license number PN 0803361. Respondent has been so licensed at all times material to the allegations in the complaint.

   
   

2. Between the dates of October 25, 1985, and December 2, 1985, the Respondent was employed as an LPN by the Care Unit of Jacksonville Beach. On various occasions during her employment as an LPN at the Care Unit of Jacksonville Beach, Respondent charted vital signs for patients that she had not, in fact, taken.

   
   

3. On or about November 21, 1985, while employed as an LPN on duty at the Care Unit of Jacksonville Beach, without authority or authorization, Respondent left her unit within the Care Unit for at least thirty (30) minutes. During that period of at least thirty (30) minutes on November 21, 1985, during which Respondent was out of her unit, there was no nurse present in the unit to take care of patient needs. Also on or about November 21, 1985, while on duty at the Care Unit of Jacksonville Beach, Respondent was asleep for a period of at least two (2) hours.

   
   

4. On one occasion during Respondent's employment at the Care Unit of Jacksonville Beach, Respondent pulled a male adolescent by the waistband at the front of his trousers in the course of directing the patient to provide a urine specimen. The manner in which Respondent pulled on the patient's clothing was inappropriate and unprofessional.

   
   

5. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to be asleep while on duty. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to chart vital signs which she has not, in fact, taken. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to leave her unit for a period of thirty (30) minutes in the absence of a replacement nurse.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

7. The statutory provisions Respondent is charged with violating, Section 464.018(1)(d) and (f), Florida Statutes, read as follows:

   
   

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

      section:

      (d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

      (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.

      
      

8. Respondent's act of charting vital signs for patients that she had not in fact taken is a violation of both subsection (d) and subsection (f) of Section 464.018(1), Florida Statutes. Respondent's acts of leaving her unit unattended for thirty (30) minutes, of sleeping on duty for two hours, and of pulling an adolescent male patient by the front of his pants are all violations of subsection (f) of Section 464.018(1), Florida Statutes.

   
   

9. Section 464.018(2), Florida Statutes, reads as follows:

   
   

   1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

      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 $1,000 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.

   
   

10. And Section 464.018(5), Florida Statutes, reads as follows:

    
    

    The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license.

11. In implementation of the last-quoted statutory provision, the Board of Nursing has adopted Rule 210-10.05, Florida Administrative Code. Section (4) of that rule reads as follows:

    
    

    1. If the Board determines, after a review of the factors in paragraph (1) above, that suspension or revocation are not required to protect the public or are otherwise appropriate, it may utilize the following as general, non-binding guidelines:

       1. When the violation is intentional and there is an actual danger to the public, the penalties may include a fine of two hundred fifty to one thousand dollars and probation for up to two years.

       2. When the violation is intentional and there is only a potential danger to the public, the penalties may include a fine of one hundred to five hundred dollars and probation for one year.

       3. When the violation is negligent and there is an actual danger to the public, the penalties may include a fine of one hundred to two hundred fifty dollars and probation for one year.

       4. When the violation is negligent and there is only a potential danger to the public, the penalties may include a letter of reprimand and required specific continuing education courses.

       5. A higher fine may be imposed in any case to recover costs of investigation, prosecution, or probation.

    
    

12. Upon review of the facts in this case it appears that the violations in this case were more nearly negligent than intentional and that they involved only a potential danger to the public. Accordingly the appropriate penalty would appear to be that provided by paragraph (d) of subsection (4) of Rule 210- 10.05, Florida Administrative Code.

RECOMMENDATION

In view of all of the foregoing, it is recommended that the Board of Nursing enter a final order in this case finding the Respondent guilty of one incident of violation of Section 464.018(1)(d), Florida Statutes, and four incidents of violation of Section 464.018(1)(f), Florida Statutes. And in view of the provisions of Rule 210-10.05(4)(d), Florida Administrative Code, it is recommended that the Board of Nursing impose a penalty consisting of a letter of reprimand and further consisting of a requirement that Respondent attend required specific continuing education courses, with an emphasis on the legal responsibilities of a nurse to the patients under her care.

DONE AND ORDERED this 19th day of March, 1987, at Tallahassee, Florida.

M. 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 March, 1987.

COPIES FURNISHED:

Lisa Bassett, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kimberly Bauzon, LPN 2968 Songbird Trail

Atlantic Beach, Florida 32233

Kimberly Bauzon, LPN 216B Seagate Avenue, #B

Neptune Beach, Florida 32233

Joe Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

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.: 0065875

DOAH CASE NO.: 86-3610

KIMBERLY R. BAUZON,

Respondent.

/

FINAL ORDER

Respondent, Kimberly R. Bauzon, holds Florida License No. 0803361 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 Section 120.57, 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 April 23, 1987, in Tampa, 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 Findings of Fact contained in the Recommended Order.

CONCLUSIONS OF LAW

Petitioner filed an exception to Paragraph (7) of the Conclusions of Law contained in the Recommended Order. The Board agrees with Petitioner, for the reasons stated in Petitioner's Exception to Recommended Order and Motion for Increased Penalty. The Board therefore accepts and adopts Conclusions of Law

(1) through (6) contained in the Recommended Order, reflects Conclusion (7) and substitutes therefor the following:

7. Upon review or the facts in this case, it appears that the violations were not negligent (implying "accidental") but were intentional (meaning the actions or omissions were deliberate). Moreover, the violations are substantial and pose an actual danger to patients.

PENALTY

Based on the foregoing Findings of Fact and Conclusions or Law, together with the reasons as stated in Petitioner's Motion for Increased Penalty, the Board finds the penalty recommended by the Hearing Officer to be inadequate. These serious violations require a correspondingly serious penalty. It is therefore ORDERED that

The licensee is hereby REPRIMANDED for the conduct set out in the Findings of Fact.

The licensee shall pay an administrative fine of $500 within 60 days. The licensee is hereby placed on PROBATION for a period of one (1) 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 submit written reports to the Board, which contain the licensee's name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing her nursing employment and performance. These reports shall be submitted quarterly, as scheduled by the Board probation section.

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, 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 7th day of May, 1987.

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 KIMBERLY R. BAUZON, 2968 Songbird Trail, Atlantic Beach, Florida 32233, by United States Mail, at or before 5:00 p.m., this 7th day of May, 1987.

Judie Ritter Executive Director

Docket for Case No: 86-003610

Orders for Case No: 86-003610