Judges: ARNOLD H. POLLOCK
Agency: Department of Health
Latest Update: Nov. 15, 1988
Summary: Nurse who took phenobarbitol pill without authority and self-administered and who was obviously unfit for duty due to some substance ingestion guilty of misconduct
88-0734.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0734
)
TRACIE JOHNSON, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida, on September 7, 1988, before Arnold H. Pollock, Hearing Officer. 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 Petitioner: John Cobb, Law Clerk
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Was not present and was not represented
BACKGROUND INFORMATION
On November 13, 1987, William M. Furlow, for the Petitioner, Department of Professional Regulation, Board of Nursing, (Board), filed an Administrative Complaint in this case alleging that the Respondent violated Section 464.018(1)(f) and (g), Florida Statutes, by possessing a controlled substance for other than a legitimate purpose and by exhibiting unprofessional conduct in the practice of nursing. On January 25, 1988, Respondent disputed the allegations of fact and requested a formal hearing and the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
On March 2, 1988, the undersigned set the case for hearing in Tampa on July 5, 1988 but, pursuant to Petitioner's Motion for Continuance on behalf of the Respondent, filed on June 23, 1988, on June 28, 1988, granted the continuance to allow Respondent to hire an attorney. The case was rescheduled for September 7, 1988.
On September 6, 1988, the undersigned contacted counsel for Petitioner to determine if the case was ready for hearing. At that time, counsel advised that she had received a written communication from Respondent requesting another continuance for the purpose of getting an attorney. This second request for continuance had not been addressed to the Hearing Officer nor had the former.
The undersigned directed counsel for Petitioner to contact Respondent and advise her that the hearing would proceed as scheduled but moved the hearing back from 10:00 am to 1:00 PM on September 7. Evidence introduced at the hearing indicated that Respondent did not appear at the 10:00. AM scheduled time nor did she appear at the 1:00 PM hearing. After a reasonable wait to permit Respondent opportunity to appear, the Petitioner presented a prima facie case to establish the essential elements of the offenses alleged and the hearing was adjourned. At no time did Respondent appear at the hearing.
Petitioner presented the testimony of Deborah W. Murphy, a mental health worker and licensed practical nurse who worked with Respondent on the day in question; and Laura Lynn Cottrell, a registered nurse expert in the field of drug impaired nurses and the assistant director of nursing at the Hillsborough County Development Center on the day in question. Petitioner also introduced Petitioner's Exhibits 1 and 2.
No transcript was provided and neither party submitted Proposed Findings of Fact.
FINDINGS OF FACT
At all times pertinent to the allegations contained herein, Respondent, Tracie Ann Johnson, was licensed as a practical nurse in Florida under license number NI20852451. The Board of Nursing was and is the state agency responsible for the licensing of practical nurses in Florida.
On March 28, 1987, Deborah W. Murphy was a licensed practical nurse and charge nurse at the Hillsborough County Development Center assigned to the 3 -
11 PM shift. As a part of her duties that evening she was assigned to conduct an orientation of the Respondent, Tracie A. Johnson, who had recently been employed by the facility.
As a part of her routine duties, Ms. Murphy conducted a count of all controlled drugs at the beginning of her shift, when medications were passed, and again at the end of her shift. The initial count, less the drugs passed, should have resulted in the number present at the end of shift count. On the night in question, Ms. Murphy, along with the Respondent, went to each individual house at the facility to pass medications. Drugs are kept in a locked cabinet in a locked storage room in each house. In order to get to the drugs, it takes two separate keys - one for the room and one for the drug cabinet. Both keys were kept within the personal control of the charge nurse on duty, and on the night in question, Ms. Murphy, as the sole nurse on duty, had the only keys.
When Ms. Murphy was out of the drug room passing medicines, she would leave the room unoccupied save for Respondent for a few moments. During this period, the drug cabinet was unlocked as well. On the night in question, no one else, other than Ms. Murphy or Respondent, was present or had access to the drug room and cabinet.
When Ms. Murphy finished passing medicines in the house where the shortage in question here was noted, she and Respondent were to go to another house to pass medicines. However, prior to leaving, Ms. Johnson indicated she had to go to the bathroom and they agreed that she would meet Ms. Murphy at the next house. Ms. Johnson did not show up and Ms. Murphy went back to find her. When she did, she found that Respondent was still in the bathroom.
When Respondent came out of the bathroom, she was pale and sweaty, and her eyes appeared glassy. She said at that point that the "Doritos" must have made her sick. The two nurses went back to the nurse's station but Respondent was unable to stay awake to continue the orientation. In Ms. Murphy's opinion, Respondent was under the influence of some substance, either alcohol or a drug.
When Ms. Murphy conducted the 11 PM count of drugs at the end of her shift, she found that one 100 mg phenobarbital capsule was missing from one of the drug cabinets in the room where she had left Respondent unaccompanied. Both Ms. Murphy and her replacement night nurse searched thoroughly for the pill but could not find it. As a result, Ms. Murphy called Ms. Cottrell, the assistant director of nursing, who advised her to fill out an incident report which all parties involved were to sign. When asked to sign this report, Respondent refused, stating that she was not present during the search and therefore could not vouch for its effectiveness.
Ms. Murphy indicates that even before the medicines were passed, Respondent disappeared with her purse often and her conversation seemed to be somewhat inappropriate. She was highly talkative and after the passing of medicines, it appeared that her demeanor changed. She was much quieter and did not go with Ms. Murphy on any of the other medicine passes that evening.
Ms. Cottrell, herself a recovered impaired nurse, was called by Ms. Murphy when the shortage was noticed. In a meeting the next morning, Ms. Murphy reported that Respondent's performance and demeanor had been inappropriate and Ms. Cottrell had heard from other nurses as well that Respondent appeared to be under the influence of some substance. When Ms. Murphy attempted to question Respondent about her familiarity with a venous puncture, she reportedly stated she did not have to observe that as she had experience in sticking needles in her own veins.
After receiving a complete report from Ms. Murphy, Ms. Cottrell called Respondent in at which time Respondent indicated strong signs of impairment. These included repeated absences to go to the bathroom, drowsiness, sweating, and paleness. During their conversation, Respondent appeared to be bored and angry at having to come in early to talk. Ms. Cottrell spoke of her concerns about Respondent's behavior and condition, and Respondent's refusal to sign the incident report, and asked Respondent to be evaluated by an addiction counselor rather than to be reported to the Board. At this point, Respondent, already angry, got angrier. She denied taking drugs, made a few more inappropriate comments, and stomped out of the room. This type of conduct is consistent with a drug dependance denial but is also consistent with innocence.
After the interview, during which Respondent declined to be evaluated by an addiction counselor, Ms. Cottrell felt she had no choice but to discharge Respondent from employment with the Center. In her opinion, based on her personal experience and her training in drug addiction, Respondent was under the influence of something at the time. Her symptoms are not consistent with food poisoning but with a drug high. She is satisfied that Ms. Murphy is not responsible for the loss of the pill and Ms. Murphy denied having taken it. She is further satisfied that none of the patients assigned to the residence from which the pill was missing was capable of taking it.
It is found, therefore, that Respondent took the phenobarbital from the drug room while Mrs. Murphy was out of the room and ingested it. It is also found that her symptoms, as described by the three nurses who observed her, are
consistent with drug ingestion and that she was under the influence of drugs whale on duty with Ms. Murphy on March 28, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In the Administrative Complaint, Petitioner alleges that Respondent is guilty of engaging or attempting to engage in the possession, sale, or distribution of controlled substances for other than legitimate purposes in violation of Section 464.018(1)(g), Florida Statutes, and of having exhibited unprofessional conduct in the practice of nursing in violation of Section 464.018(1)(f).
When an agency seeks to discipline a professional license the evidence of Respondent's guilt of the offense alleged upon which it relies to take that action must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The evidence is quite clear that Respondent took the missing pill and that she took it for the purpose of an unprescribed self-administration which she accomplished. No one else had access to the pill with the exception of Ms. Murphy who denied having taken it and there is no evidence to indicate she did. The residents of the house were not in the area and there is no reason to believe they are responsible. On the other hand, Respondent exhibited all symptoms of a drug ingestion and had unsupervised access, to the substance when Ms. Murphy was out of the room. Her subsequent extended time in the bathroom and the evidence of her change in physical condition is consistent with a conclusion that she took the pill for her personal use and, under the circumstance, is guilty of that violation alleged.
Even if, however, it were concluded that Respondent did not take the pill in question, the evidence is overwhelming that she was, while on duty as a nurse, even for orientation, under the influence of some substance which was inconsistent with the performance of her duties. This constitutes a gross lack of professionalism in the practice of nursing and a violation of subsection 464.018(1)(f) as well.
Having concluded that Respondent is guilty as alleged, the next question relates to an appropriate disciplinary action. Under the provisions of the statute, the Board is empowered to discipline the license of anyone found guilty of various misconduct as outlined therein and this discipline may range from a reprimand to a revocation of the license.
In the instant case, Respondent has demonstrated a condition which makes her continued untreated practice of nursing to be totally unacceptable and inappropriate. Consequently, she must be removed from the practice of nursing until such time as she demonstrates, to the satisfaction of the Board that she has controlled her substance dependency.
RECOMMENDATION
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 three years or until such time as she proves to the satisfaction of the Board of Nursing that she is capable of safely engaging in the functions of the profession of nursing.
RECOMMENDED this 15th day of November, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 15th day of November, 1988.
COPIES FURNISHED:
John Cobb, Law Clerk Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Tracie Johnson 1906 East Hamilton
Tampa, Florida 33610
Bruce D. Lamb, General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Judie Ritter, Executive Director DPR, Board of Nursing
Room 504, 111 East Coastline Drive
Jacksonville, Florida 32201
Docket for Case No: 88-000734
Orders for Case No: 88-000734
| Issue Date |
Document |
Summary |
|
Mar. 03, 1989 |
Agency Final Order
|
|
|
Nov. 15, 1988 |
Recommended Order
|
Nurse who took phenobarbitol pill without authority and self-administered and who was obviously unfit for duty due to some substance ingestion guilty of misconduct
|
