STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0324

)

SANDRA D. BRUCE, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West Palm Beach, Florida, on March 21, 1990, 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:

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Sandra D. Bruce, R.N., pro se

155 E. Hampton Way Jupiter, Florida 33478

STATEMENT OF THE ISSUES

This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violation of Section 464.018(1)(f), (g), and (h), Florida Statutes, on the basis of allegations regarding the improper use of drugs, narcotics, or chemicals.

PRELIMINARY STATEMENT

At the hearing the Petitioner presented the live testimony of one witness, presented the deposition testimony of several other witnesses, and offered several exhibits. The Respondent testified on her own behalf and also offered two exhibits. Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on April 12, 1990. The parties were allowed until April 23, 1990, within which to file Proposed Recommended Orders. The Petitioner filed a timely Proposed Recommended Order containing proposed findings of fact and proposed conclusions of law. The Respondent did not file a Proposed Recommended Order, but did file a letter in which she reiterated her position that she is innocent of all charges and raised several arguments regarding the reliability of the evidence offered against her. The proposed

findings of fact submitted by the Petitioner are specifically addressed in the Appendix to this Recommended Order.

To facilitate an understanding of the remainder of this Recommended Order, it is noted at this point that this is a case in which the Petitioner has failed to prove the crux of its case by clear and convincing evidence. For reasons discussed at further length in the Conclusions of Law and in the Appendix, the record in this case fails to demonstrate by clear and convincing evidence that the Respondent is guilty of the violations charged in the Administrative Complaint.

FINDINGS OF FACT

Based on the evidence received at the hearing, the following facts are found:

1. At all times material hereto, the Respondent has been a licensed registered nurse in the State of Florida, having been issued license number RN 83300-2. At all times material hereto, the Respondent was employed by A Visiting Redi-Nurse and Redi-Nurse of West Palm Beach, Florida (hereinafter "Redi-Nurse")

   
   

2. Prior to the events that gave rise to the charges in this case, the Respondent suffered a broken hip in an automobile accident. The hip did not heal properly and it was ultimately necessary for the Respondent to undergo surgery a second time to correct problems with her fractured hip. During the time between the original hip surgery and the second hip surgery, the Respondent's physician prescribed, and the Respondent used, several drugs to relieve pain and stress. Those drugs included Percocet, Valium, Darvocet, and Tranxene.

   
   

3. During June of 1987, after the Respondent had returned to work following her automobile accident, her employer became concerned because the Respondent seemed to be lethargic, tended to talk louder than usual, and tended to repeat herself. Because of these concerns, the Respondent was given two weeks leave with pay and a suggestion that she get some counseling. Following the two weeks of leave, the Respondent-returned to work and, apparently, nothing eventful occurred until early in September of 1987. During the week beginning September 7, 1987, the Director of Professional Services for Redi-Nurse, a Ms. Mary Lynn Dunne, was relieving the regular supervisor at the Redi-Nurse office in Palm Beach Gardens, where the Respondent was working at that time. During that week several other employees expressed concerns to Ms. Dunne regarding the ability of the Respondent to safely drive a car. These employees described behavior by the Respondent that included hand tremors, lethargy, taking loud, and being repetitive. As a result of these comments by other employees, the management at Redi-Nurse decided to ask the Respondent to provide a urine specimen. Ms. Dunne discussed this decision with the Respondent and the Respondent readily agreed to provide a urine specimen. The Respondent collected a urine specimen in the presence of Ms. Dunne and gave the specimen to Ms. Dunne. Ms. Dunne, in her own words, "sent the urine specimen out to be picked up by the laboratory."

   
   

4. After obtaining the urine specimen from the Respondent, Ms. Dunne asked the Respondent to prepare a list of the medications she was taking. Later she asked the Respondent to write down how recently she had taken each of the medications. The Respondent complied with this request. The list of medications apparently explained the Respondent's behavior, because Ms. Dunne

   voiced the opinion that if she had known what medications the Respondent had been taking, she would probably not have requested the urine specimen.

   
   

5. A couple of days later the management of Redi-Nurse received a report from National Health Laboratories that purported to be a report of the testing of the Respondent1s urine specimen. That report stated that the specimen was positive for cannabinoids (marijuana) and benzodiazepines. Upon receipt of that report, the management of Redi-Nurse called the Respondent into the main office at West Palm Beach, told her what the lab report stated, and told her she was fired. The Respondent told the Redi-Nurse management that she did not use marijuana and she offered to give another urine specimen.

   
   

6. The Respondent has never used marijuana. Specifically, the Respondent did not use marijuana at any time material to the facts in this case.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec 120.57, Fla. Stat.

   
   

8. In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. The nature of clear and convincing evidence is described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), `as follows:

   
   

   We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it Produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes the foregoing with approval and also includes the following at page 958:

   
   

   "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

   
   

9. The crux of the charges against the Respondent are the allegations that she improperly used drugs, specifically marijuana and benzodiazepines. The Respondent denies ever using marijuana and denies any improper use of benzodiazepines; her testimony being that the only medications or drugs she used

   at any time material to this case were those prescribed by her physician. I have found the Respondent's testimony in this regard to be credible. (In so doing, I have rejected the portion of the deposition testimony of Mary Lynn Dunne to the effect that the Respondent admitted she had smoked "pot." I find it more likely that Ms. Dunne misunderstood something said at the Respondent's termination interview than that the Respondent made such an admission.)

   
   

10. I have also not given any credit to the information reported in the laboratory report from National Health Laboratories, Petitioner1s Exhibit 7, because I have serious doubts as to its reliability. There are numerous reasons for this. First, the record in this case contains no chain of custody information beyond the testimony of Ms. Dunne that she "sent the urine specimen out to be pricked up by the laboratory." specifically, there is no information about how the urine specimen was labeled and there is no information about how or whether the integrity of the specimen was preserved in route to the lab.

    (The reliability of the labeling is called into question by the fact that the laboratory report has different numbers under the captions "Patient Name" and "Patient ID," one of which numbers is the Respondent's Social Security number and the other of which is the same with the exception of one digit where a 4 has been substituted for the 9.) The reliability of the laboratory report is also questionable by reason of the following statement typed on the face of the report: "If a presumptive positive was obtained by an immunoassay procedure, confirmation of results should be made by GC-mass spectrophoto- metry, when the result is intended for legal purposes." (Emphasis added.) It appears from the foregoing that the results of the immunoassay procedure are only "presumed" to be correct, and in this case there was no confirmation of the test results.

    Finally, the only witness called by Petitioner in support of the validity of the laboratory results, Mr. Donald R. Stalons, began his employment with the subject laboratory more than two years after the preparation of the subject report.

    While Mr. Stalons may be a very reliable witness with regard to the activities of the laboratory during the month and a half he has been employed there, he is not a reliable witness with regard to activities at the laboratory that occurred more than two years prior to his employment because he has no personal knowledge of those matters. Specifically, he has no personal knowledge of the chain of custody regarding the Respondent's urine specimen. For all of the foregoing reasons the Petitioner's evidence of marijuana use by the Respondent falls far short of being clear and convincing.

    
    

11. There is persuasive evidence in the record (primarily in the form of the Respondent's admissions) that the Respondent used benzodiazepines but that same evidence reveals that such usage was pursuant to a physician's prescription. And while the use of such benzodiazepines may have caused the Respondent to be lethargic, loud, and repetitive, the record contains no specific information about the degree of such behavior. Specifically, there is no reliable evidence that the Respondent's behavior affected the quality of her work, that it affected her ability to safely practice nursing, or that it constituted unprofessional conduct.

    
    

12. Finally, there is no expert witness testimony in this case regarding acceptable and prevailing nursing standards, nor is there any expert witness testimony regarding the Respondent's ability to practice nursing with reasonable skill and safety.

    
    

13. In summary, the record in this case is insufficient to establish by clear and convincing evidence that the Respondent is guilty of the violations of Section 464.018(1)(f), (g), and (h), Florida Statutes, charged in the Administrative Complaint.

RECOMMENDATION

For all of the foregoing reasons, it is recommended

that the Board of Nursing enter a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 29 day of May, 1990.

MICHAEL M. PARRISH, 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 29 day of May, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0324

The following are my specific rulings on all proposed findings of fact submitted by the parties.

Findings submitted by Petitioner:

Paragraphs 1

and 2: Accepted.

Paragraph 3: Accepted in substance, with some clarification and additional findings.

Paragraph 4: Accepted, with some additional findings for clarification.

Paragraph 5: Rejected as contrary to the greater weight of the evidence and as not supported by clear

and convincing evidence. (For the reasons discussed in the Conclusions of Law, I have serious doubts as to the probative value of the lab report, Petitioner's Exhibit 7.)

Paragraph 6: Rejected as contrary to the greater weight of the evidence. (On this issue, I have found the Respondent's denials to be more persuasive than the testimony of Petitioner's witnesses.)

Paragraph 7: Rejected as irrelevant in view of the absence of persuasive evidence that the Respondent used marijuana.

Findings submitted b Respondent:

(The Respondent did not submit any proposed findings of fact.)

COPIES FURNISHED:

Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Sandra D. Bruce, R.N.

155 E. Hampton Way Jupiter, FL 33478

Julie Ritter, Executive Director Kenneth E. Easley, Esquire Florida Board of Nursing General Counsel, Department

504 Daniel Building of Professional Regulation

111 East Coastline Drive 1940 North Monroe Street

Jacksonville, FL 32202 Tallahassee, FL 32399-0792

Docket for Case No: 89-000324

Orders for Case No: 89-000324