STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2944

) JANE FRANCES O'LEARY, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 11, 1989, in Lauderhill, Florida, before Joyous D. Parrish, a Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Lisa M. Bassett, Senior Attorney

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Jane Frances O'Leary, pro se

5295 15th Terrace, Northeast Pompano Beach, Florida 33064

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 14, 1989; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on March 14, 1989, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Jane Frances O'Leary. That complaint alleged Respondent had violated Section 464.018(1)(f), Florida Statutes, by exhibiting conduct which was unprofessional and which failed to conform to the minimal standards of acceptable and prevailing nursing practice. Respondent filed an election of rights which contested the allegations of fact contained in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 1, 1989.

At the hearing, the Department presented the testimony of the following witnesses: Lucille Markowitz, an investigative specialist for the Department;

Laurie Shifrel, a registered nurse formerly employed as the supervisor at Parkside; Lilli B. McCain, formerly employed as a residential specialist at Parkside; Pressoir Berrouet, a residential specialist at Parkside; Deborah Moon, the residential program coordinator for Henderson Mental Health Center, which is a parent company of Parkside; and Nancy Cox, accepted as an expert in nursing and restraint procedures. Respondent testified in her own behalf and Respondent's exhibit 1 was admitted into evidence. The transcript of the proceedings was filed on September 25, 1989.

After the hearing, the Department filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. At all times material to the allegations of the administrative complaint, Respondent has been licensed as a licensed practical nurse (LPN) in the State of Florida, license no. PN 35080-1.

   
   

2. The Department is the state agency charged with the responsibility of regulating the practice of nursing within the State of Florida.

   
   

3. During the month of September, 1988, Respondent was employed as a night-shift LPN at Parkside, a residential treatment facility for psychiatric patients. On or about September 25, 1988, Respondent attempted to administer the morning medication to a resident patient, J.L. The patient refused the applesauce (which contained the medicine) and struck the Respondent across the wrist with great force.

   
   

4. J.L. had been scheduled for a pass (an opportunity to leave the grounds) that day, but following the incident described in paragraph 3, Respondent decided to revoke J.L.'s privilege. When Respondent informed J.L. that the pass was revoked, J.L. became very agitated. Respondent summoned a fellow worker, Pressoir Berrouet, to assist and to restrain J.L.

   
   

5. At some point in time between the activities described in paragraphs 3 and 4, Respondent went to her personal automobile and retrieved a stunning apparatus which she owns for her self-protection. Respondent took the "zapper" or "stun gun" to the patio area of the facility where Mr. Berrouet had secured J.L. in a chair. While J.L. was not restrained by bonds (physical restraints are impermissible at this type of facility), Mr. Berrouet had his hands on the patient's arms so that she was effectively pinned and unable to exit the chair.

   
   

6. By this time, Lilli McCain, a day-shift employee at Parkside, had arrived at the facility. She observed Respondent approach J.L. who was still pinned in the chair on the patio. Ms. McCain observed a "black something" in Respondent's hand and witnessed Respondent touch J.L. with the instrument. She then heard J.L. scream out, "you pinched me." Respondent had purportedly "zapped" J.L. Moments later, Ms. McCain observed a red mark on J.L.'s chest.

7. Mr. Berrouet had his back to Respondent through out the time of the incident described in paragraph 6. Consequently, he did not see the Respondent touch the resident, J.L. He did, however, hear a click noise which immediately preceded the scream from J.L.

   
   

8. Respondent was upset at having been struck by J.L. Subsequent to the events described above, she resigned from her employment at Parkside. Respondent admitted to Laurie Shifrel, the nursing supervisor at Parkside, that she had used a "zapper" on the resident, J.L. Respondent also told Deborah

   Moon, the residential program coordinator for the Henderson Mental Health Center (a company which owns Parkside), that she had used a "zapper" on the resident,

   J.L. At hearing, Respondent testified that she did not use the stunning apparatus on J.L. but admitted she had taken the instrument onto the property to frighten J.L. The more compelling proof demonstrates, however, that Respondent did use the stunning apparatus on J.L.

   
   

9. Parkside policy did not require residents to take medications against their will. If a resident refused medication, the proper procedure was to note that information on the patient chart so that the physician could be informed. Restraints were not used at Parkside to control resident behavior. In the event a resident were to become uncontrollable, the operating procedures required that the nursing supervisor be called to the facility or 911 for Baker Act referral depending on the severity of the resident's misconduct.

   
   

10. J.L. did not have a history of becoming physically abusive at Parkside.

    
    

11. It is not acceptable nursing practice to strike a psychiatric patient or to use a shocking device to curb undesirable behavior. Such conduct falls below the minimal acceptable standard for nursing care. Further, given J.L.'s history, it would be inappropriate to attempt to scare J.L. by a threatened use of such a device.

    
    

12. Respondent was sincerely remorseful that she had brought the device onto the Parkside property.

    
    

13. Evidence regarding a proper penalty, in the event a violation were found to have occurred, was not offered at the formal hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 464.018(1), Florida Statutes, provides, in pertinent part:

    
    

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       * * *

       (f) 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.

16. Rule 210-10.005, Florida Administrative Code, provides, in part:

    
    

    1. The Board of Nursing may impose disciplinary penalties upon a determination that a licensee:

       * * *

       (e) Is guilty of unprofessional conduct which shall include, but not be limited to:

       * * *

       13. Failure to conform to the minimal standards of acceptable prevailing nursing practice, regardless of whether or not actual injury to a patient was sustained;

       
       

17. The penalties for a violation of the statute or rule are found in Rule 210-10.005(2) and Rule 210-10.011, Florida Administrative Code. Under those guidelines, a violation of Section 464.018(1)(f), Florida Statutes, may result in a penalty ranging from reprimand to suspension, probation and fine. No aggravating or mitigating circumstances were offered at the formal hearing.

    
    

18. In this case, the Department has established by clear and convincing evidence that the Respondent exhibited unprofessional conduct by bringing the stunning apparatus onto the Parkside property, and by using such apparatus on her patient, J.L. Clearly, such conduct was inappropriate and violated the minimal standard of acceptable nursing practice. Further, such conduct was not justified even in light of the resident's misconduct. Nursing professionals are held to standard which requires that they react appropriately to such demanding situations so that they do become a part of the disruption but control it. Despite her experience, Respondent exercised very poor judgment for which she exhibited sincere remorse.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of the violation alleged, placing the Respondent on probation for a period of one year, requiring the Respondent to attend and complete such CE courses as may be appropriate, and imposing an administrative fine in the amount of $500.00.

DONE and ENTERED this 2nd day of November, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalache Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2944

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraph 1 is accepted.

2. The portion of paragraph 2 which is addressed in finding of fact paragraph 3, is accepted; otherwise rejected as irrelevant.

3. Paragraph 3 is accepted.

4. Paragraph 4 is accepted.

5. Paragraph 5 is rejected as irrelevant and unnecessary to the conclusions reached herein.

6. Paragraphs 6 through the first four sentences of paragraph 9 are accepted. The fifth sentence of paragraph 9 is rejected as contrary to the weight of the credible evidence. The last sentence of paragraph 9 is accepted.

7. Paragraph 10 is accepted.

8. The first sentence of paragraph 11 is accepted. The remainder of paragraph 11 is rejected as contrary to the weight of the evidence or irrelevant.

9. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as hearsay, irrelevant, or contrary to the weight of the credible evidence.

10. To the extent the facts are set forth in findings of fact paragraphs 3 through 8, paragraphs 13 through 22 are accepted; otherwise rejected as hearsay, irrelevant, or unnecessary to the resolution of the issues of this case.

11. The first two sentences of paragraph 23 are accepted. The remainder is rejected as irrelevant or hearsay.

12. Paragraph 24 is accepted.

13. Paragraphs 25 through 30 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT:

None submitted.

COPIES FURNISHED:

Lisa M. Bassett Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Jane Frances O'Leary 5295 15th Terrace, N.E.

Pompano Beach, Florida 33064

Judie Ritter Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 0106973

DOAH CASE NO.: 89-2944

JANE F. O'LEARY,

Respondent.

/

FINAL ORDER

This matter came before the Board of Nursing pursuant to Sections 120.57(1)(b)(9) and (10), Florida Statutes on February 8, 1990, in Gainesville, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner was represented by Lisa Bassett.

Respondent was not present nor represented by counsel. Neither party filed exceptions to the Recommended Order.

Upon review of the Recommended Order and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

The Board adopts the findings of fact in the Recommended Order.

CONCLUSIONS OF LAW

The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes and Chapter 464, Florida Statutes. The Board adopts the conclusions of law in the Recommended Order.

DISPOSITION

Upon a complete review of the record in the case, the Board determines that the penalty recommended by the Hearing Officer be modified in part.

Therefore it is ordered that the Respondent pay a $500 administrative fine. The Board agrees that continuing education courses in legal aspects of nursing, and behavior aspects in gerontological nursing are appropriate. However, the Board is concerned that such courses may not be readily available so that the licensee can reasonably complete them in one year. Therefore it is ordered that the licensee be placed on two years probation to complete the continuing education. If the licensee completes the courses within one year, the Board upon application by the licensee will consider terminating her from probation.

This Order takes effect upon filing with the Clerk of the Board of Nursing. The parties are notified that pursuant to Section 120.68, Florida Statutes,

that they may appeal this Final order by filing, within thirty days of the

filing date of this order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

Ordered this 30th day of March, 1990.

BOARD OF NURSING

Jeanne Stark, RN Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Final Order was sent by certified mail to Jane F. O'Leary, 5295 15th Terrace, N.E., Pompano Beach, Florida 33064, and by inter-office mail to Lisa Bassett, Department of Professional Regulation, 1940 N. Monroe Street, Tallahassee, Florida 32399-0773 this 30th day of March, 1990.

Judie K. Ritter Executive Director

Docket for Case No: 89-002944

Orders for Case No: 89-002944