STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6769

)

DONNA MARIE WOODRUFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 22, 1990, at Fort Lauderdale, Florida, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings. Appearances 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: Donna Marie Woodruff, pro se

5240 S.W. Third Court Plantation, Florida 33317

STATEMENT OF THE ISSUES

The issue in this case is whether disciplinary action should be taken against the Respondent for violation of statutory provisions regarding the practice of nursing. By Administrative Complaint the Respondent was charged with unprofessional conduct and with being unable to practice nursing with reasonable skill and safety to patients.

PRELIMINARY STATEMENT

At the commencement of the hearing the Petitioner appeared through counsel and the Respondent appeared on her own behalf. The Respondent participated in the preliminary matters at the beginning of the hearing and also attended during most of the testimony of the first witness. In the course of discussion of a document identified by the first witness, the Respondent became visibly upset, expressed the opinion that she was not going to receive a fair trial, and abruptly departed from the hearing room. The hearing continued without the Respondent.

At the hearing the Petitioner presented the testimony of seven witnesses and offered two exhibits which were received in evidence. Following the hearing a transcript of the proceedings at the hearing was filed with the Hearing Officer on March 9, 1990, and the parties were allowed until March 19, 1990, within which to file their proposed recommended orders.1/ The Respondent has not filed any post-hearing documents. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all findings of fact proposed by the Petitioner has been accepted.

FINDINGS OF FACT

1. At all times material hereto, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0711261.

   
   

2. Respondent was employed at Humana Hospital Cypress in Pompano Beach from on or about October 10, 1988, until on or about March 10, 1989.

   
   

3. During her employment at Humana Hospital Cypress, Respondent was absent from her duties without giving notice on four occasions, was absent with notice on one occasion, and was on sick leave on five different occasions. These absences constitute an excessive number of absences. The pattern of the absences also raises concerns as to whether the absences are caused by behavioral problems.

   
   

4. During her employment at Humana Hospital Cypress, Respondent was observed while on duty by several Charge Nurses (Dysen, Fabella, and Keough) to be extremely nervous; jumpy; on the verge of tears or crying when asked what was wrong; to be constantly complaining about being tired and hungry; to be frequently looking very tired, taking naps during lunch break, and not waking up in time for duty; to be frequently flailing her arms around, talking verbosely in high volumes, and speaking about subject matter inappropriate at a nurse's station; and exhibiting generally unpredictable and worrisome behavior.

   
   

5. Lynn Whitehead, R.N., has been a staff nurse on the Substance Abuse floor of Humana Hospital Cypress for approximately six years. During February of 1989, Nurse Whitehead spoke to Respondent after Respondent had a hysterical crying reaction to learning that she failed the Telemetry Nursing course. During Nurse Whitehead's discussion with Respondent, Respondent admitted to Nurse Whitehead that Respondent used drugs and had been to some rehabilitation group meetings in the past. Respondent's behavior in her discussions with Nurse Whitehead - extreme anxiety, pacing, upset, complaints of hunger and exhaustion - along with Respondent's excessive absences, were consistent with drug abuse behavior based on Nurse Whitehead's knowledge and experience.

   
   

6. On or about February 28, 1990, Respondent was asked by Nurse Fabella to submit to a urinalysis based on Fabella's observation of Respondent's erratic and unusual behavior which led Nurse Fabella to suspect that drug use might be involved. Respondent refused to submit to a urinalysis and stated the reason was because she knew marijuana would show in her urine.

   
   

7. Nurse Fabella counseled Respondent about her erratic behavior, excessive absences, refusal to submit to a urinalysis, and unprofessional nursing conduct, on or about February 28, 1989.

8. Subsequent to the counseling by Nurse Fabella, Respondent failed to keep an appointment with Nurse Cruickshank to discuss her situation and the decision was made to terminate Respondent.

   
   

9. Amy Mursten, Investigative Specialist for the Department of Professional Regulation, interviewed Respondent for the purpose of conducting an investigation into her behavior and suspected drug abuse. Ms. Mursten discussed the Intervention Project for Nurses which could help rehabilitate the Respondent and save her nursing practice, but Respondent refused this help and denied having a problem.

   
   

10. On at least two occasion, Respondent failed to act professionally or responsibly towards a patient and would have given inappropriate dosages or types of medications to the patients had someone not intervened.

    
    

11. The Respondent's behavior patterns described above constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent's behavior patterns described above demonstrate an inability to practice nursing with reasonable skill and safety to patients by reason of use of drugs or narcotics or as a result of her mental condition.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Since this case involves proposed disciplinary action against a licensee, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Section 464.018(1)(h), Florida Statutes, states, in pertinent part, "The following acts shall be grounds for disciplinary action set forth in this section: 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."

    
    

14. Pursuant to Section 210-10.005(1)(e), Florida Administrative Code, unprofessional conduct includes:

    
    

    (2) Administering medications or treatments in a negligent manner.

    (4) Leaving a nursing assignment before properly advising appropriate personnel.

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

    
    

15. Section 464.018(1)(j), Florida Statutes, states, in pertinent part: "The following acts shall be grounds for disciplinary action set forth in this section: Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition."

16. The expert testimony at the hearing supports a conclusion that Respondent has engaged in unprofessional conduct in the practice of nursing. The expert testimony and the description of Respondent's unusual conduct while on duty support a conclusion that Respondent is suffering from some mental condition which causes her to be unable to practice nursing with reasonable skill and safety. The Respondent's admissions to her supervisors that she used marijuana support a conclusion that she is unable to practice nursing with reasonable skill and safety by reason of such usage.

    
    

17. The Board of Nursing has adopted disciplinary guidelines which appear at Rule 210-10.010, Florida Administrative Code. For unprofessional conduct in the delivery of nursing services, the guidelines provide for a penalty from one year of probation to suspension until proof of ability to safely practice. For impairment or inability to safely practice (when the licensee is not participating in an impaired professional program), the guidelines provide for a penalty of suspension until proof of ability to safely practice, followed by probation.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Nursing enter a final order in this case concluding that Respondent has violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct, and has violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients. It is further recommended that the Board's final order suspend Respondent's license until Respondent has demonstrated to the Board that Respondent is able to practice nursing with reasonable skill and safety to patients and, once Respondent has demonstrated her ability to so practice, place Respondent on probation for a period of one year subject to such requirements as may appear to the Board to be necessary to assure that Respondent continues to practice with reasonable skill and safety to patients.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 30 day of April 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 30 day of April 1990.

ENDNOTES

1/ Subsequent to the hearing, the Respondent was advised in writing of the deadline for submitting a proposed recommended order.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Donna Marie Woodruff 5240 S.W. Third Court

Plantation, Florida 33317

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Judie Ritter Executive Director

Florida Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Docket for Case No: 89-006769

Orders for Case No: 89-006769