STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4736

)

SANDRA ANN BACON, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in Arcadia, Florida on March 12, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing, Gary Beatty, Esquire, represented the Department of Professional Regulation, Board of Nursing (Petitioner), and Sandra Ann Bacon (Respondent) represented herself. Petitioner called three witnesses, and Respondent testified on her own behalf and introduced two exhibits. A transcript of the hearing was filed on March 25, 1987 and the parties were given ten days thereafter to file proposed findings of fact, rulings upon which are included in the Appendix to this Recommended Order.

ISSUE

The issue in this case is whether Petitioner should take license disciplinary action against Respondent based upon matters set forth in an Administrative Complaint filed on October 22, 1986 which alleges she violated Section 464.018(l)(f), Florida Satutes.

FINDINGS OF FACT

1. Respondent is currently licensed as a registered nurse in the State of Florida, with license number 68722-2. She was also licensed as a registered nurse, with the same license number on February 28, 1986.

   
   

2. On February 28, 1986 Respondent was employed as a registered nurse at G. Pierce Wood Memorial Hospital in Arcadia, Florida. As one of her duties, she was assigned to transport a patient from Punta Gorda a Medical Center to G. Pierce Wood Memorial Hospital, a drive of between thirty and forty minutes.

   
   

3. When Respondent was assigned to transport the patient from Punta Gorda Medical Center, she was informed by Elaine Snider, secretary at G. Pierce Wood Memorial Hospital, that the patient required oxygen therapy during the drive to

   G. Pierce Wood Memorial Hospital.

   
   

4. In transporting the patient, Respondent failed to provide any oxygen therapy to the patient, although she knew that this patient required oxygen therapy.

5. Respondent testified that her supervisor, Ruby Woodbine, ordered her to use a particular van, which she had never used before, to transport this patient. The van was not equipped to provide oxygen therapy. While on the way to Punta Gorda, Respondent discovered the van was not equipped to provide oxygen therapy. However, since the request to pick up the patient was "urgent," she determined it was more important to proceed to Punta Gorda and get the patient than to turn around and return to G. Pierce Wood for a properly equipped van.

   
   

6. Respondent's actions resulted in the patient being transported for thirty or forty minutes without oxygen, contrary to the order of the patient's attending physician.

   
   

7. Ruby Woodbine did not "order" Respondent to take the van without oxygen. In fact, Elaine Snider had contacted the transportation department at

   G. Pierce Wood Memorial Hospital and arranged for the van, but had failed to specify that the van must have oxygen. Snider then informed Respondent of the van she was to take, and Respondent failed to check that van before leaving to be sure it was properly equipped. Woodbine simply agreed with Respondent that she should use the van Snider had identified.

   
   

8. By failing to check the van for necessary equipment and by proceeding to transport the patient without oxygen therapy contrary to physician's orders, Respondent did not conform to minimal standards of acceptable nursing practice. She should have obtained a properly equipped van, arranged for portable oxygen, or refused to accept the patient until arrangements could be made for oxygen. The discontinuation of oxygen is not a proper nursing function when the patient's physician has ordered oxygen therapy. This finding is based upon the consideration of all evidence received and particularly the testimony of Deborah Frank, who was accepted as an expert in the practice of nursing, including nursing practice standards.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes. In this case, Petitioner bears the burden of proof since it seeks to impose license disciplinary action based on the matters alleged in the Administrative Complaint. Balino V. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Florida Department of Transportation V. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. Section 464.018(1)(f), Florida Statutes, provides that the following is grounds for license 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.

It is clear from the facts established herein that Respondent deviated from physician's orders concerning the need to provide oxygen therapy for a patient she was transporting from Punta Gorda to G. Pierce Wood Memorial Hospital. She did not make sure that the van she was told to use was properly equipped and upon discovering it was not equipped for oxygen, she nevertheless proceeded to

pick up and transport the patient, disregarding orders of the attending physician. According to expert testimony, these actions deviated from acceptable minimum standards of nursing. Respondent is therefore subject to disciplinary action for having violated Section 464.018(l)(f), Florida Statutes.

In determining an appropriate penalty, Rule 210- 10.005(1), Florida Administrative Code, is instructive and requires Petitioner to take into consideration the following factors:

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.

In the presentation of its case, Petitioner did not address the provisions of this rule, and therefore there is no evidence in the record concerning any other complaints against Respondent, any repetition of offenses, the length of time the licensee has practiced, the deterrent affect of any penalty imposed, or any other aggravating or mitigating factors. Section 464.018(2)(d), Florida Statutes, authorizes Petitioner to issue a reprimand against a licensee, and such penalty would be appropriate in a case such as this where an offense has been proven, but no aggravating circumstances have been established.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a reprimand upon Respondent.

DONE AND ENTERED this 6th day of April, 1987 in Tallahassee, Florida.

DONALD D. CONN

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 6th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4736

Rulings on Petitioner's Proposed Findings of Fact:

COPIES FURNISHED:

Gary Beatty, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Sandra Ann Bacon 611 Sharon Circle

Port Charlotte, Fl 33952

Judie Ritter Executive Director

Department of Professional Regulation

Board of Nursing

Room 504, 111 East Coastline Dr.

Jacksonville, Fl 32201

Van Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Docket for Case No: 86-004736

Orders for Case No: 86-004736