STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5719

) DPR CASE NO. 0100829

SCARLETT JONES, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on February 17, 1989 in Tallahassee, Florida, in the offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, a final hearing was held in this case. This was a formal hearing in accordance with section 120.57(1), Florida Statutes. The hearing was to commence at 10:00 a.m.; however, the starting time was delayed until 10:15 a.m. in anticipation of the attendance of the Respondent. She did not appear and the hearing was conducted in her absence. This case had been mistakenly set for final hearing in Jacksonville, Florida, to begin at the same time and on the same date. Nonetheless, the location or venue had been corrected through an order of January 6, 1989 renoticing the case for Tallahassee, Florida. The notices of hearing which had been sent to the Respondent had not been returned to the Division of Administrative Hearings.

Counsel for the Petitioner was unaware of the reason for the non attendance of Respondent. At the conclusion of the Petitioner's presentation on the merits, a transcript was ordered and this Recommended Order is being entered in consideration of the transcript and the exhibits offered at hearing, as well as the proposed recommended order of the Petitioner. The fact proposals are commented on in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner: Lisa N. Bassett, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

ISSUES

The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes.

Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the

physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct.

Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing.

Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.

FINDINGS OF FACT

1. During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172.

   
   

2. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation.

   
   

3. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift.

   
   

4. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties

   included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable.

   
   

5. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients.

   
   

6. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units.

   
   

7. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No.

   
   

8. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions.

   
   

9. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due

   to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the

   I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro.

   
   

10. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient

    E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J.

    
    

11. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date.

    
    

12. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty.

    
    

13. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes (1987) and Section 255.225, Florida Statutes.

    
    

15. Petitioner bears the burden in this case of showing by clear and convincing evidence that the Respondent's actions violate the provisions set out

    in the Administrative Complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. For reasons as set out in the fact finding, Respondent has been unprofessional in her conduct in the care and treatment of the patient K.W. related to her recordkeeping for patient K.W. and the substance Heparin. Within that Count the reference to the patient A.W. within the Administrative Complaint is confusing where it says that Respondent failed to note in the nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. and that it was not restarted until 8:00 a.m. after discovery by a subsequent shift. The facts reveal that entries were made concerning problems with the Aminophylline drip. They did not prove that within that time frame Respondent inaccurately reported that Aminophylline was restarted on her shift and that this was done knowingly and willfully, as argued in the proposed conclusions of law filed by the Department's counsel. Moreover, this reference was not in keeping with the allegations as set forth in the Administrative Complaint The Administrative Complaint talks about the failure to make an entry, and then the fact that the Aminophylline was not restarted until the following shift. Counsel's argument speaks in its suggested conclusions of law, of inaccurate records keeping in a situation in which it was known to be inaccurate and to an alleged violation of Section 464.018(1)(j), Florida Statutes which is not set out in the Administrative Complaint pertaining to Count One The significant item is that no one has proven that the Respondent has failed to make the appropriate entry or has made an inaccurate entry. The fact that the Aminophylline drip had to be restarted with the commencement of the 7:00 a.m. to 3:00 p.m. shift on the date in question does not mean it was not running at 6:30 a.m. at the time of the last entry by the Respondent.

    
    

17. The Department did not present competent evidence concerning the allegations within Count Two. The investigative report related to the alleged incident of June 4, 1988 involving the patient E.J. as made by Lucinda Mack, LPN, who did not testify in this case, constitutes hearsay not relied upon for fact finding by courts of competent jurisdiction in the State of Florida and standing alone may not form the basis for fact finding in this administrative prosecution. See Chapter 90, Florida Statutes and Section 120.58, Florida Statutes.

    
    

18. Respondent was asleep on duty on June 14, 1988, as alleged in Count Three.

    
    

19. The circumstances set out as they relate to the treatment of patient

K.W. and the sleeping on duty incident of June 14, 1988 show that the Respondent is guilty of unprofessional conduct within the meaning of Section 464.018(1)(f), Florida Statutes and is subject to the penalties announced in Rule 210-10.005, Florida Administrative Code.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in

the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven.

DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719

Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Scarlett Jones

2636 Mission Road, #138

Tallahassee, Florida 32302

Judy Ritter, Executive Director Florida Board of Nursing

111 East Coastline Drive, Room 504

Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005719

Orders for Case No: 88-005719