STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4135

)

THELMA L. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, Hearing Officer, in Clewiston, Florida, on April 27, 1988. The issue for consideration was whether Respondent's license as a practical nurse in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For the Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For the Respondent: Steven R. Duhl, Esquire

607 South Main Street

Belle Glade, Florida 33430 BACKGROUND INFORMATION

On October 1, 1986, Fred Roche, then Secretary of the Department of Professional Regulation, (DPR), for the Board of Nursing, filed an Administrative Complaint in this case alleging that Respondent had abandoned her shift without permission, while working as a licensed practical nurse, (LPN), in violation of Section 464.018(1)(f), Florida Statutes. The matter was forwarded to the Division of Administrative Hearings on September 18, 1987, and referred to the undersigned for hearing. A hearing was scheduled for November 25, 1987, but continued twice at the request of the parties, with hearing finally held on April 27, 1987.

At the hearing, Petitioner presented the testimony of James E. Potter, an investigator for DPR; and Darrold N. Gooley, a Registered Nurse and Director of Nursing at the Glades Health Care Center, (GHCC); and introduced Petitioner's Exhibits 2 and 3. By a late filed deposition, Petitioner also introduced the testimony of Kathy Davis, an LPN employed at GHCC at the time of Respondent's alleged misconduct. Respondent testified in her own behalf; presented the testimony of William W. Arthur, Administrative Lieutenant with the Palm Beach County Sheriff's Department; and introduced Respondent's Exhibit A.

A transcript of the proceedings was furnished. Both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Thelma L. Jones, was licensed as a Licensed Practical Nurse in Florida, holding license number PN 0704471, and Petitioner was the agency responsible for licensing nurses in Florida.

   
   

2. On June 2, 1986, Respondent was employed as a LPN by the Glades Health Care Center in Pahokee, Florida, as nurse on the 3-11 p.m. shift. She was assigned to the West Wing of the facility, and was assisted by at least two nursing assistants. Kathy Davis, another LPN, was assigned to the East Wing of the facility with her assistants, and in that location, though not officially identified as such, was the charge nurse for the entire facility.

   
   

3. Though licensed as a 120 bed skilled nursing home, GHCC somewhat resembles an acute care facility, since the least seriously ill patient is normally more severely affected than those in most nursing homes. The patient census at that facility at the time was between 45-60 patients, total, in both wings. The facility is a one-story building with the two parallel nursing wings separated by a corridor. While possible, it would be extremely difficult for one nurse to service both wings.

   
   

4. At approximately 3:50 p.m., on June 2, 1986, Respondent clocked in for work at the facility, approximately 50 minutes late. She immediately went to the West Wing, where she told Ms. Davis she was quitting and delivered to her the letter of resignation she had prepared that same day. Ms. Jones then returned to her duty station and attempted to contact the Director of Nursing, Mr. Gooley by phone, but was unable to do so. She then went out on the floor and spoke with some of the patients with whom she was most friendly, telling them she was leaving, but assuring them they would be taken care of.

   
   

5. She returned to her station and again tried to contact Mr. Gooley by phone without success. After passing out some medications and making the required entries on some medical records, and after making a count of the narcotics as required, but without making an official record of it, she went back to Ms. Davis and told her she could not reach Mr. Gooley. Ms. Jones states that Ms. Davis replied, "Don't worry about it. I'll call him." After going back to the West Wing to collect her belongings, Ms. Jones then went to the front exit, where, over the television security monitor, she again spoke to Ms. Davis, who, for the second time, allegedly said she'd call Mr. Gooley.

   
   

6. At this point, Ms. Jones saw a wandering resident trying to run away from the facility. She caught him and turned him over to a nursing assistant and for the third time, called Ms. Davis, who advised her she had reached Mr. Gooley and he was on his way in. Ms. Davis reportedly told Ms. Jones there was no reason she should stay.

   
   

7. According to her time clock records, Ms. Jones punched out at approximately 5:40 p.m. She contends, however, she did not leave immediately, but stayed at least an hour after punching out. Mr. Gooley, on the other hand, indicated he arrived at the facility, pursuant to Ms. Davis' call, at

   approximately 5:50, and though he walked through the whole facility, failed to see Ms. Jones. It is found, therefore, that Ms. Jones left prior to the arrival of Mr. Gooley.

   
   

8. After his walk through the facility, Mr. Gooley asked Ms. Davis where Respondent was, at which point, Ms. Davis handed him Respondent's letter of resignation and the key to the narcotics cart on the East Wing. Mr. Gooley immediately went to that wing, where he counted the narcotics with Ms. Davis present. He checked other records and determined that certain medications due to be dispensed at 5:00 p.m. by the Respondent, had apparently not been dispensed. Ms. Jones strongly contends that no patient due medicines failed to receive them prior to her departure and that she noted this in at least one record in each file. She admits, however, and it is so found, that she did not complete all records necessary prior to her departure.

   
   

9. To ensure the East Wing was properly covered after Respondent's departure, Mr. Gooley remained on duty until relieved at the 11:00 p.m. shift change.

   
   

10. Ms. Jones asserts her departure was justified and was not without authority. She had had some previous discussion with Mr. Gooley about the proposed change in working hours to require 12 hour, 8:00 a.m. to 8:00 p.m., shifts. Since her husband went to work at 4:00 a.m. and she had two children to care for, she advised him she could not work those hours. He insisted that she do so, however. On the day before she left, when she came to work, she again spoke with Mr. Gooley about the problem and he is reported to have advised her that her family was of no importance to him and she had to work the new hours. Mr. Gooley denies this. That same day, Respondent's husband told her he was being transferred to Leesburg and she could go up there with him to work.

    
    

11. Whether or not the aforementioned colloquy took place is immaterial. Investigation by DPR reveals Ms. Jones did not leave Clewiston right away after she left her position with GHCC, but remained in town for several days. She returned to Clewiston after staying in Leesburg for only a week or so.

    
    

12. When hired, each employee of GHCC is given a handbook which contains the facility's policy on resignation. This policy calls for two weeks notice to be given, in the case of nurses, to the Director of Nursing. Ms. Jones failed to give two weeks notice either orally or in writing.

    
    

13. Respondent also contends that since Ms. Davis was the nurse in charge, she had authority to release Ms. Jones when Ms. Jones decided to quit. Mr. Gooley contends, and his contention is well taken, that though the East Wing nurse held the more senior position of the two, and had authority to answer the phone, call for fire support, and perform other routine tasks, her authority did not include receiving and approving letters of resignation.

    
    

14. Ms. Jones also contends that by notifying Ms. Davis of her intent to leave at least an hour before delivering the letter of resignation, she gave ample notice. She asserts that because the State's staffing rules were not violated by her departure, and because Ms. Davis had her own aides as well as Respondent's after she left, no harm was done by her leaving. She had previously handled the whole facility by herself with only aides, even to the extent of passing medications. When she left, though it was during a shift, she was satisfied that everything that needed to be done was done and that Ms. Davis could handle anything that came up.

15. Mr. Gooley, on the other hand, is of the opinion that her leaving without authority; her departure without dispensing medications; and her failure to sign off on the narcotics register, itself a violation, is not consistent with the fundamental standards of proper nursing practice in Florida. Though one nurse, plus aides, may meet the State staffing requirements, in his opinion, one nurse cannot, in light of the physical layout of this facility, handle all patients in both wings. To leave only one licensed nurse in charge of the whole facility could endanger the patients.

    
    

16. For the past two years or so, Respondent has served as the nurse in charge of the medical facility at the Palm Beach County Jail, where she has been observed on a daily basis by Lieutenant William Arthur, under whose administrative supervision she falls. He is most pleased with her work and believes that due to her efforts, the facility has received clean inspection reports since she began working there. This is unusual for jail medical facilities. He has found her to be very conscientious in her work, and an employee who anticipates problems, solving them before they grow out of hand.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

18. Petitioner has alleged that by abandoning her shift as nurse, without authority, Respondent is in violation of Section 464.018(1)(f), Florida Statutes. This provision authorizes the Board to discipline the license of a nurse if it finds:

    
    

    "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."

    
    

19. In a disciplinary proceeding such as this, the burden is on the Petitioner to establish by clear and convincing evidence, that the Respondent has committed acts which justify and authorize discipline of his or her license (Ferris v. Turlington, 510 So.2d. 292, (1987)).

    
    

20. Petitioner has met that burden here. It has been shown, and Respondent admits that she was properly assigned to a shift of duty at the GHCC on June 2, 1986, and that she left that shift before it was completed. The departure, alone, does not constitute a violation. Here, Petitioner has also shown, however, that the facility for which Respondent worked had a policy requiring an employee to give two weeks notice before departure. Though not legally binding, this policy had a reasonable basis especially in a care facility such as this wherein the provision of appropriate caregiver staff is of the utmost importance. Respondent's argument that the two week notice requirement does not deprive her of her right to leave employment is specious. No doubt she had the right to terminate her employment with GHCC, but the manner in which she chose to do that may constitute a violation.

    
    

21. Respondent had ample opportunity to advise Mr. Gooley well in advance of her intention to leave. She did not do so, but instead, without warning, precipitously left her post in the middle of a shift, delivering both oral and

    written notice of her resignation almost contemporaneously with her departure. Her contention that she believed Ms. Davis could authorize her immediate departure is unworthy of belief.

    
    

22. Further, though she contends she insured that all patients received their medications prior to her departure, her failure to insure that a clear record of this was left, to prevent a possibility of double dosing, increases the seriousness of her improper departure.

    
    

23. It well may be that notwithstanding Gooley's denials, there had been an ongoing conflict between him and the Respondent. Even if that were the case, however, it would not justify her unannounced departure, without authority, and without giving the facility an opportunity to make appropriate alternative arrangements to safeguard the patients.

    
    

24. That Ms. Jones has performed in an excellent fashion since assuming her position with the Sheriff's Department is to her credit and must be considered as a factor in assessing the action to be taken here, based on her proven misconduct. It does not, however, justify or condone the gravity of her actions in issue here.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's license as a practical nurse in Florida be suspended for a period of one year and that she be reprimanded, but that the execution of the suspension be stayed and she be placed on probation for a period of two years under such terms and conditions as the Board of Nursing may prescribe.

Recommended in Tallahassee, Florida, this 15th day of June, 1988.

ARNOLD H. POLLOCK

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 15th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-4135

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6 - 7. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

For the Respondent

Respondent failed to number the paragraphs in the Findings of Fact outlined in the Proposed Recommended Order submitted. The numbers below relate to the paragraphs in the order presented:

1. Accepted and incorporated herein.

2. Not a Finding of Fact.

3. Not a Finding of Fact but a recitation of the evidence.

4. Not a Finding of Fact but a recitation of the evidence.

5. Not a Finding of Fact but a recitation of the evidence.

6. Not a Finding of Fact but a recitation of the evidence.

7. Rejected as contra to the weight of the evidence.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Steven R. Duhl, Esquire 607 South Main Street Belle Glade, Florida 33430

Judie Ritter, Executive Director DPR, Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

Docket for Case No: 87-004135

Orders for Case No: 87-004135