STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL, ) REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0227

) ATALIA DACOSTA G. SAGASTUME,) L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on August 30, 1990, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUE

An administrative complaint dated August 16, 1989 alleges that Respondent, Atalia Dacosta G. Sagastume, L.P.N., violated certain provisions of Chapter 464, F.S., related to the practice of nursing, by failing to properly chart the administration of controlled substances to patients. The issue in this proceeding is whether the alleged violations occurred, and, if so, what discipline is appropriate.

Procedural Matters

Ms. Sagastume responded to the administrative complaint with a request for formal hearing. The case was referred to the Division of Administrative Hearings and was scheduled for hearing on May 9, 1990.

On April 24, 1990, Ms. Sagastume called the hearing officer to request a continuance, as she was working with the U.S. Census Bureau and also had surgery scheduled. She asked that the case be reset for the end of June, or thereafter. She was told to check with opposing counsel regarding her request, and later she confirmed that there was no objection. The hearing was cancelled, and Ms.

Sagastume was asked to follow up her oral request in writing.

No written request was filed. The hearing officer's secretary made several efforts to contact Ms. Sagastume and left messages on her answering machine or with whomever answered her phone. On June 4, 1990, when nothing further was heard from Ms. Sagastume, the amended notice of hearing was mailed, establishing a new hearing date of August 30, 1990.

The notice was not returned, nor was any communication received from Ms. Sagastume. She did not appear at the hearing. Instead, she sent a certified letter to Lisa Bassett, then counsel for Petitioner, postmarked August 27, 1990 and received August 29, 1990. The letter requested that the hearing be rescheduled for sometime in November, as she was still working for the Census Bureau. No return address nor telephone number was listed on the letter or envelope.

When Respondent did not appear at the hearing, the hearing officer tried to contact her at the telephone number in the file, 407-348-4450, but the number had been discontinued.

Mr. Tunnicliff informed the hearing officer that he had not spoken with Ms.

Sagastume. The DPR investigator had attempted to reach her by phone, or in person at her house, several times, but was unsuccessful. Ms. Sagastume had returned the call once, but left no telephone number.

Since Ms. Sagastume had successfully obtained a continuance in the past, it was deemed that she is aware of the proper procedure and was attempting to avoid the proceeding. Petitioner was prepared to present its case and the hearing commenced at 9:50 a.m.

In support of the allegations, Petitioner presented the testimony of Mary Elizabeth Duchaine, Helen Louis Shipley, Jacquette Cockrell, and Patricia Allen Zimmerman. Petitioner's exhibits #1-9 were admitted, which exhibits include the letter from Ms. Sagastume referenced above, patient records, Respondent's license file and a final order and complaint in another disciplinary action against the same Respondent.

No transcript was filed and the right to file a proposed recommended order was waived by counsel for Petitioner.

FINDINGS OF FACT

1. During the relevant period, Respondent Atalia Dacosta G. Sagastume was licensed by the State of Florida as a practical nurse holding license number PN 0824781, issued on March 31, 1986. Her address of record was 316 Florida Parkway, Kissimmee, Florida, 34743-6325.

   
   

2. Ms. Sagastume was employed by Kissimmee Memorial Hospital as a "pool nurse" in November, 1988. A pool nurse is not a regular employee, but serves on call during times of need, and receives a premium salary with no regular benefits.

   
   

   Pool nurses are considered experienced nurses and are held by the hospital to the same nursing standards as regular staff. Ms. Sagastume received orientation as to hospital procedures at Kissimmee Memorial Hospital all day on November 28, 1988, and on five additional days throughout the next few months.

   The orientation included methods of appropriate record-keeping, which methods are also standard nursing practice.

   
   

3. On January 18, 1989, Ms. Sagastume signed out the narcotic, Demerol, two times on the sign out sheet for Patient "D". Ms. Sagastume was not the attending nurse for this patient and no entries on this patient's chart were made by Ms. Sagastume, as observed by Jacque T. Cockrell, R.N., the Director of Nursing at Kissimmee Memorial at the time of the incident.

   
   

   Ms. Cockrell and another nurse supervisor met with Ms. Sagastume and prepared a counselling report on January 19, 1989. Ms. Sagastume was reminded that she may administer medications only to her own patients and that she must document narcotics on the patient's chart (progress notes) as well as on the narcotics record sheet.

   
   

   At that time the supervisors considered the problem was educational and felt they had remedied it.

   
   

4. On February 6, 1989, Ms. Sagastume signed out narcotic medications for two patients, "W" and "M". She altered the times on the signout sheet by simply writing over the entries, rather than by striking through, writing "error", and then correcting the entry as she had been instructed.

   
   

   In addition, on February 6, 1989, Ms. Sagastume signed out narcotic medications to patient "M" four times during her evening shift: 15:05 (3:05 p.m.), 19:00 (7:00 p.m.), 21:00 (9:00 p.m.), and 23:10 (11:10 p.m.). This is

   unusual, and some notation should have been made that the physician was called about the patient's pain. The notes on the patient's chart do not reflect a need for the medication, particularly since the 7:00 p.m. entry by Ms. Sagastume indicates that the pain was relieved.

   
   

5. Ms. Sagastume's careless, improper or incomplete record-keeping violate minimal standards of acceptable prevailing nursing practice.

   
   

6. Kissimmee Memorial Hospital discharged Ms. Sagastume on February 20, 1989.

   
   

7. A separate administrative complaint in DPR case #89-001399 was filed against this Respondent on March 8, 1990. That complaint alleges other violations of nursing practice standards at St. Cloud Hospital in April, 1989. These violations involved irregularities in narcotics record keeping, as well as the observation of unsteady, erratic behavior and the presence of fresh needle marks on the Respondent's arms.

   
   

   Respondent failed to respond to that complaint and on July 10, 1990, the Board of Nursing entered its Final Order finding that the investigative file supported the allegations of the complaint. The license of Atalia Sagastume was ordered suspended until she personally appears before the Board and demonstrates her ability to safely engage in the practice of nursing. (Petitioner's Exhibit #9).

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this proceeding pursuant to Sections 455.225, F.S. and 120.57(1), F.S.

   
   

9. Section 464.01(1), F.S. provides, in pertinent part:

   
   

   464.018 Disciplinary actions. - (1) the following acts shall be grounds for disciplinary action set forth in this section:

   . . .

   (h) 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.

   
   

10. Petitioner presented clear and convincing evidence that Respondent failed, as alleged, to maintain proper records of administration of narcotic medication to her patients. Petitioner also presented competent expert testimony that such failure constitutes a departure from minimal standards of acceptable and prevailing nursing practice. Petitioner, thus, met its burden of proof. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. At the close of hearing, counsel for Petitioner explained that because Respondent's license is already suspended in DPR case #89-001399, an additional penalty is not being sought, as the violations in the latter case are considered more egregious.

    
    

12. For this reason, an additional penalty is not recommended.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered finding Respondent guilty of unprofessional conduct as alleged, and suspending her license to practice nursing, concurrently with the suspension already imposed in DPR case #89-001399.

DONE and RECOMMENDED this 4th day of October, 1990, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1990.

COPIES FURNISHED:

Atalia Dacosta G. Sagastume

316 Florida Parkway Kissimmee, FL 32743-8413 and

710 Royal Palm Drive Kissimmee, FL 34743

Charles Tunnicliff, Esquire Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Kenneth E. Easley General Counsel

1940 North Monroe Street Tallahassee, FL 32399-0792

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Docket for Case No: 90-000227

Orders for Case No: 90-000227