STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

) CASE NO. 89-2557

)

AUDREY D. JACKSON BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on August 2, 1989 in Jacksonville, Florida. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes.

Charles C. Adams served as the Hearing Officer.

APPEARANCES

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Courtney Johnson, Esquire

The Law Exchange Building

24 North Market Street, Suite 400 Jacksonville, FL 32302

STATEMENT OF THE ISSUES

The issues under consideration here are based upon an Administrative Complaint in Department of Professional Regulation Case No. 0104255. Through this complaint, the Petitioner has accused the Respondent of violation of Section 464.018(1)(f), Florida statutes related to a claim that she has acted unprofessionally in her nursing

practice. The Operative paragraphs of that complaint are as follows:

1. At all times material hereto,

   Respondent was employed at Methodist Hospital, Jacksonville, Florida.

2. On or about August 15, 1988, while working the 3-11 shift, the Respondent felt ill due to her pregnancy and telephoned the nurse manager from the previous shift to obtain permission to leave.

3. The Respondent was granted permission to leave, but she neglected to inform the

   nurse manager that an agency nurse had failed to report in and that another nurse had threatened to leave if the Respondent was allowed to do so.

4. The despondent's absence left only one nurse to care for twenty patients, and she failed to convey this information to the nurse manager prior to departing.

PRELIMINARY STATEMENT

This Recommended Order is being entered in view of the election on the part of the Respondent to have a formal hearing under Section 120.57(1), Florida statutes, to dispute the allegations of the Administrative Complaint.

The exhibits offered have been reviewed. The transcript of the hearing filed with the Division of Administrative Hearings on August 23, 1989 has been read. The request for admissions and affirmative responses to those requests have been examined. Finally, the proposed recommended orders of the Petitioner and the Respondent as filed on September 8 and 13, 1989, respectively, were reviewed, and their factual proposals are spoken to an Appendix to this Recommended Order. Given the filing date of the proposed recommended orders, the parties have waived the right to the entry of a Recommended Order within thirty days of the filing of transcript. Section 221- 6.031, Florida Administrative Code.

FINDINGS OF FACT

1. In those times pertinent to the dispute, Respondent was licensed as a registered nurse by the State of Florida, under license number RN-1271152.

   
   

2. On August 15, 1988, Respondent was working as a staff nurse at Methodist Hospital, Jacksonville, Florida. Her shift on that day was from 3:00 p.m. to 11:00 p.m. in a medical/surgical floor, which is referred to as "3 Plaza II". On that shift, she was the Charge Nurse among the four nurses who were to work that shift. The other nurses scheduled to work on that shift were Rachel Calhoun, Rizalina Chu, and a nurse to be assigned from an agency other than Methodist Hospital. The person that the referring agency intended to send to work the 3:00 p.m. - 11:00 p.m. shift was Helen Lesters. In addition, Theresa Harrison was a nursing assistant assigned to that shift. The nurses were responsible for the care of 19 patients, with the expectation that an additional patient would be admitted to that floor during the 3:00 p.m. - 11:00 p.m. shift.

   
   

3. The shift responsibilities for the Respondent and the other nurses had been established by Juliete Williams,

   R.N. who had worked the 7:00 a.m. - 3:00 p.m. shift at "3 Plaza II", and whose position at that time was one of Head Nurse or Nurse Manager.

   
   

4. The schedule that Williams had prepared anticipated that each nurse on the 3:00 p.m. - 11:00 p.m. shift would be responsible for five patients. The Nurse Assistant, Theresa Harrison, was not contemplated as having responsibility in this connection because she was not capable of performing nursing duties.

   
   

5. Helen Lesters had been hired through Nurse Finders of Jacksonville through the efforts and coordination on the part of Methodist Hospital and its Staffing Coordinator Helen McGrath.

   
   

6. When Respondent arrived at work at 3:13 p.m. on August 15, 1987, she was not feeling well, suffering moderate discomfort associated with a condition known as round ligament pain. That ailment is a sporadic condition common to pregnancy. On August 15, 1989, Respondent was five months pregnant. The round ligament pain had also

   been prevalent on August 5, 1987. Again, on August 14, 1988, when Respondent went to work, she was not feeling well because of that problem. When she went home that evening after her shift, she was tossing and turning and didn't feel well because of round ligament pain.

   
   

7. The scheduling that had been arranged by Ms. Williams was to meet an acuity level related to the patients in a setting which three nurses and an aide was allowed as a staff component. An extra nurse had been placed on that shift.

   
   

8. The beginning of the 3:00 pm. - 11:00 pm. shift was somewhat hectic. Somewhere along the way, it was noted that Ms. Lesters had not shown up for her shift. Under those circumstances, there was a discussion between the Respondent and Ms. Calhoun about going home in view of the fact that Ms. Lesters had not come in.

9 The situation of a missing nurse was not uncommon in the hospital and Respondent and Ms. Calhoun had commented on the problems of working with a shortage in nursing staff on other occasions.

1. Throughout the time that Respondent remained at the hospital on August 15, 1988, she was experiencing discomfort in her pregnancy associated with round ligament pain. That condition intensified while she was there.

   
   

2. Theresa Harrison called Frona Montgomery to advise Ms. Montgomery that the agency nurse, Ms. Lesters, had not arrived. That call took place sometime before 3:30

   p.m. Ms. Montgomery was the Clinical Coordinator at Methodist Hospital on the 3:00 p.m. - 11:00 p.m. shift and as such was responsible for nurses on five floors to include "3 Plaza II". This made her Respondent's immediate supervisor on that date.

   
   

3. Under these circumstances, Ms. Montgomery called Helen McGrath, Staffing Coordinator for Methodist Hospital who attempted to find out from Nurse Finders, the agency, why Ms. Lesters had not come in for her shift. She was told that Ms.. Lesters was having babysitting problems and that no substitute nurses were available from that agency. Ms. McGrath's attempts to find replacement nurses from other referral agencies was unsuccessful. The call from Ms. Montgomery to Ms. McGrath to explain the problem took

   place around 3:15 p.m. Ms. McGrath also tried to call in 8 or 10 nurses on the Methodist Hospital staff, but without success.

   
   

4. McGrath became aware of a message from Respondent which had been left around 3:00 p.m. McGrath returned that call around 4:00 p.m. and spoke to Ms. Calhoun and told Ms. Calhoun that the agency nurse was not going to show but an attempt was being made to replace her. Ms. Calhoun told Mrs. McGrath that Respondent was going home and if she went home, Ms. Calhoun would also go home.

   
   

5. Around 3:30 p.m., Respondent called Ms. Montgomery and told Ms. Montgomery that if the hospital did not get an agency nurse, a replacement, that Respondent was going home because she was sick. Ms. Montgomery responded that that floor was allocated another nurse and that Ms. Montgomery was working to get one and that she thought they should be able to get one. Ms. Montgomery had in mind calling persons such as Sylvia Brooks and Helen Brown, nurses from the 11:00 p.m. - 7:00 a.m. shift and others as well. Ms. Montgomery had had success in the past with getting Sylvia Brooks to come in. Ms. Montgomery did not give the Respondent permission to leave her floor. Respondent's circumstance was not such a dire emergency that she would have been justified in leaving without being relieved.

   
   

6. Not long after Respondent called Ms. Montgomery, Ms. Montgomery received a call from Ms. Calhoun who stated that, "if Respondent goes home, I'm going home too."

   
   

7. Although Respondent had heard Ms. Calhoun express her intention to leave if Respondent left, she did not communicate this information to Ms. Montgomery nor did the Respondent describe to Ms. Montgomery the fact of the non- appearance of Ms. Lester or a replacement for her. Nonetheless, Ms. Montgomery was aware of the missing agency nurse and stated intentions of Ms. Calhoun to leave if Respondent did.

   
   

8. Around 4:00 p.m., Respondent telephoned Ms. Williams and told Ms. Williams that she was ill and had to leave. Ms. Williams asked Respondent if she had spoken to Ms. Montgomery and Respondent stated that she had. Ms. Williams then replied "O.K.". The impression that Ms. Williams was given out of this conversation was that Ms.

   Montgomery had allowed the Respondent to leave. Moreover at that time, Ms. Williams did not realize that the situation on the floor would be something other than three nurses remaining and a Nursing Assistant.

   
   

9. Respondent without revealing the true nature of the circumstance to Ms. Williams, understood Ms. Williams' statement of "O.K" to mean that Respondent had permission to leave. In not telling Ms. Williams of the fact of the missing agency nurse and Ms. Calhoun's protestations about staying if Respondent left, she mislead Ms. Williams and any implicit permission to leave given by Ms. Williams was without value.

   
   

10. Sometime past 4:00 p.m., nurse Chu called Ms. Montgomery because Respondent said she had called Ms. Williams and that she, Respondent, was going home. In addition, Ms. Calhoun was carrying her pocketbook as if to leave. In the conversation with Ms. Montgomery, Ms. Chu asked Ms. Montgomery if she was aware that Ms. Brown and Ms. Calhoun were going home and that Ms. Chu would be by herself. Ms. Montgomery replied that she wasn't aware and that Ms. Chu should not let Respondent and Ms. Calhoun leave because Ms. Montgomery was trying to get help. Ms. Chu then told the Respondent and Ms. Calhoun not to go home. In the conversation between Ms. Chu and Ms. Montgomery, Ms. Montgomery told Ms. Chu to explain to the Respondent and Ms. Calhoun not to leave because Ms. Montgomery believed that Lisa would come in. This refers to Lisa Jenkins who works as a nurse and who is normally on the 3:00 p.m. - 11:00 p.m. shift with the Respondent and Ms. Calhoun. When Ms. Chu told the Respondent that Ms. Montgomery was calling Lisa Jenkins, Respondent said that she did not believe that.

    
    

11. When it was apparent to Ms. Chu that the Respondent and Ms. Calhoun were leaving, she attempted to call Ms. Montgomery again and the line was busy. As a consequence, she called Ms. Williams and in that conversation she stated to Ms. Williams that she wanted Ms. Williams to be aware that Ms. Chu was by herself and that the Respondent and Ms. Calhoun were going. Respondent and Ms. Calhoun were at the elevator door at that moment. During this conversation, Ms. Calhoun and Respondent left the floor. Ms. Williams told Ms. Chu to tell them that they could not do that. Ms. Chu replied, "Well, they're gone". Ms. Williams said that she would then come in.

    
    

12. Respondent and Ms. Calhoun left the floor around 4:35 p.m. Ms. Montgomery came to help Ms. Chu around 4:45

    p.m. In the interim, Ms. Chu was left alone to serve the needs of the 19 patients. Ms. Montgomery is a nurse and could offer assistance as a nurse.

    
    

13. Fortunately, no problems occurred with the patients in the absence of an adequate nursing staff.

    
    

14. Ms. Williams arrived on the floor around 5:20

    p.m. and Ms. Brooks thereafter.

    
    

15. According to Ms. Williams whose opinion is accepted, it was necessary to have at least two nurses on duty on "3 Plaza II" on the date in question. The patients who were on the floor were regular medical patients with one or two recovering from surgery.

    
    

16. The person responsible for the Respondent in a supervisory capacity on a shift 3:00 p.m. - 11:00 p.m. on August 15, 1988 was Ms. Montgomery. Respondent did not receive her permission to leave and should have not have left with Ms. Calhoun before relief help arrived. In doing so, Respondent left Ms. Chu to contend with a situation in which the patient acuity demanded more of a response in nursing staff.

    
    

17. While it is recognized that the Respondent was experiencing some discomfort due to her pregnancy, the more prudent course of conduct would have been to advise the hospital of her illness before coming to work so that some attempt might be made to gain a replacement. Having determined to attend her duties, it was incumbent upon her to remain in her place of employment until a replacement nurse could be found.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Under the authority of Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), Petitioner must prove its allegations by clear and convincing evidence. That proof

    is lacking in the sense that the Administrative Complaint contemplates the discipline of the Respondent for failure to apprise Ms. Williams as Nurse Manager of the failure of an agency nurse to report, and that another nurse was threatening to leave before departing her shift. There was no obligation to inform Ms. Williams of her intentions. On the other hand, Respondent's absence left only one nurse to care for 20 patients and this was a departure from the acceptable standards for nurse practitioners and constituted unprofessional conduct within the meaning of Section 464.018(1)(f), Florida statutes. For this violation, she is subject to the penalties set forth in Section 464.018(2), Florida Administrative Code.

    Reference in the proposed recommended order of the Petitioner to Rule 21O-10.005(1)(e)4., Florida Administrative Code which allows the Board of Nursing to impose discipline for a nurse that leaves the nursing assignment before properly advising appropriate personnel was not plead in the Administrative Complaint and is not considered in this disposition.

    
    

20. Upon an examination of the facts found and in view of the conclusions of law reached, it is,

RECOMMENDATION

RECOMMENDED: that a Final Order be entered which finds the Respondent in violation of Section 464.018(1) (f), Florida Statutes for reasons described and places the Respondent on probationary for a period of one year commensurate with terms which the Board feels would be advantageous to the rehabilitation of despondent.

DONE and ENTERED this 19th day of October, 1989, at Tallahassee, Florida.

Hearings

1550

CHARLES C. ADAMS

Hearing Officer

Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-

(904) 488-9675

Hearings 1989.

Filed with the Clerk of the Division of Administrative

this 19th day of October,

APPENDIX TO RECOMMENDED ORDER

The following discussion is made of the proposed facts of the parties:

PETITIONER'S FACTS

1.-18. subordinate to facts found.

19.-20. The facts in which it is suggested that Respondent had

not informed Ms. Montgomery that Ms. Calhoun

might also appear are Ms.

leave or the failure of the agency nurse to

not significant under the circumstance in which Montgomery knew those facts.

21.-22. Subordinate to facts found.

23. Contrary to the facts found. 24.-27. Subordinate to facts found.

1. The initial sentence within paragraph 28 is contrary to

   facts found. The latter sentence in that paragraph is

   a correct statement but not necessary.

2. Subordinate to facts found.

3. Not proven.

31.-32. Subordinate to facts found.

33.-34. Not significant in that Ms. Montgomery knew of the

from proposed the

Ms.

circumstances without reference to information Respondent. Additionally, these references in fact finding as well as previous references in proposed fact findings as to the duty to disclose

Montgomery do not track the Administrative Complaint in

which the allegation is the failure to disclose

to Ms. means

Williams and may not be properly considered as a of discipline against Respondent.

35.-36. Subordinate to facts found.

37. Is relevant.

RESPONDENT'S FACTS

1. Is a reiteration of the statement of the Issues. Subordinate to the facts found.

7. Correct as far as it is stated. What it neglects to

receive shift.

do, is to indicate that the Respondent did not permission from Ms. Montgomery to leave her

COPIES FURNISHED:

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Kenneth E. Easley

Department of Professional Regulation General Counsel

1940 North Monroe Street Tallahassee, FL 32399-0792

Lisa M. Bassett, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Courtney Johnson, Esquire The Law Exchange Building

24 North Market Street Suite 400

Jacksonville, FL 32302

Docket for Case No: 89-002557

Orders for Case No: 89-002557