STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0319

)

DORIS BREWER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on May 15, 1990, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Tobi C. Pam, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

For Respondent: Doris Brewer, Pro Se

319 Northwood Drive Lutz, Florida 33549

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed practical nurse, committed violations of Chapter 464, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against her license. The resolution of this issue rests upon a determination of whether Respondent failed to properly document the dispensing of certain medications topatients; whether she engaged in or attempted to engage in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes; and whether such action by Respondent constitutes unprofessional conduct in the practice of nursing.

PRELIMINARY STATEMENT

On August 23, 1989, Respondent filed a response to Petitioner's Administrative Complaint which charged Respondent with possessing or attempting to possess a controlled substance for other than legitimate purposes; failure to properly document dispensing of medication; and unprofessional conduct. All charges of the administrative complaint, if proven by clear and convincing evidence, constitute grounds for imposition of licensure discipline pursuant to

Section 464.018(1) and (2), Florida Statutes (1989) and Rule 210-10.005(1) and (2), Florida Administrative Code.

Respondent requested a formal administrative hearing on the charges contained in the Administrative Complaint and the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of four witnesses and nine evidentiary exhibits. Respondent presented the testimony of one witness, herself.

The transcript of the hearing was filed with the Division Of Administrative Hearings on June 4, 1990. Proposed findings of fact submitted by Petitioner are addressed in the appendix to thisrecommended order. Respondent did not timely submit proposed findings and none had been received at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Doris Brewer. She is a licensed practical nurse and holds license number PN 0537621. At all times pertinent to these proceedings, Respondent was employed at Memorial Hospital of Tampa, located in Tampa, Florida.

   
   

2. Respondent's employment with Memorial Hospital of Tampa began in January of 1988 and continued until her termination on November 29, 1988.

   
   

3. During her employment and prior to occurrence of the incidents which form the basis for charges set forth in the administrative complaint, Respondent was cited on two occasions by her superiors for deficient performance related to medical record keeping and dispersal of medications to patients. One of those incidents occurred on March 1, 1988, when Respondent failed to follow directions in the administration of medication and received a verbal warning. She was again disciplined on September 15, 1988, receiving a written warning for failure to properly document the administration of controlled substance medications to patients.

   
   

4. On November 19, 1988, Respondent signed out a controlled substance, Tylenol #3, for patient B.N. at 3:45 a.m. and again at 5:00 a.m. The medical administration record documents only one dose of the medication was actually given to the patient at approximately 5:10 a.m. The patient's nursing chart or "notes"do not reflect that the pain medication was subsequently provided to the patient by Respondent.

   
   

5. Respondent also signed out Tylenol #3 for patient R.B. at 1:45 a.m. and 5:00 a.m. on November 19, 1988. Respondent charted this medication dispersal on the medication administration record. Again, Respondent failed to document administration of the drugs to the patient in the patient's nursing chart or "notes."

   
   

6. On November 27, 1988, Respondent signed out Vicodin, a controlled substance, for patient D.G. at approximately 12:00 a.m. and 4:00 a.m., but did not document this action in the medication administration record or in the patient's nursing notes.

7. Respondent testified in mitigation of the charges in the administrative complaint that she was guilty of "poor documentation"; had appropriately administered the subject drugs in each instance; and had not diverted the drugs to the illicit personal use of herself or anyone else.

   
   

8. Failure of a nurse to document or "chart" administration of medication to patients in the patient's chart or nurse's notes constitutes a violation of acceptable standards of prevailing nursing practice. By her own admission at the final hearing, Respondent committed this offense.

   
   

9. Respondent's failure to properly document administration of the controlled substance medications in each of the three alleged instances constitutes inaccurate recording of patient records for which she was responsible during the period of time when she was on shift and administering medications to thepatients B.N., R.B., and D.G.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

11. 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).

    
    

12. The administrative complaint charges Respondent with engaging or attempting to engage in the possession, sale or distribution of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes; a violation of Section 464.018(1)(i), Florida Statutes (1989).

    
    

13. The evidence received at the final hearing does not clearly and convincingly establish Respondent's possession of a controlled substance for other than legitimate purposes. Respondent is not guilty of a violation of Section 464.018(1)(i), Florida Statutes (1989).

    
    

14. However, Respondent's actions constitute violations of Rule 210- 10.005(1)(e)1., Florida Administrative Code, which proscribe inaccurate recording of patient records and term such behavior to be unprofessional conduct.

    
    

15. Such conduct by Respondent is also a departure from minimal standards of professional nursing practice and constitutes unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes (1989).

    
    

16. Section 464.018(2), Florida Statutes (1989), authorizes Petitioner to impose disciplinary action upon Respondent's license for her violations ranging from a reprimand to an administrative fine not to exceed $1,000 per offense and suspension or revocation of licensure.

    
    

17. Rule 210-10.011(2), Florida Administrative Code, sets forth the range of possible disciplinary actions which Petitioner shall take pursuant to the previously noted statutory authorization. The rule provides discipline for unprofessional conduct in the delivery of nursing services ranging from one year probation and continuing education courses to suspension of licensure pending proof of safety to practice, followed by probation.

    RECOMMENDATION

    
    

    Based on the foregoing, it is hereby

    
    

    RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent guilty of unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes (1989) and Rule 210-10.005(1)(e)1., Florida Administrative Code.

    
    

    IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probation for a period of two years upon reasonable terms and conditions to be established by the Board, including a condition that Respondent enroll in and successfully complete continuing education courses, as may be determined by the Board, in the subject area of proper documentation of administration of patient medications.

    
    

    DONE AND ENTERED this 15th day of June, 1990, in Tallahassee, Leon County, Florida.

    
    

    
    

    DON W.DAVIS

    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 15th day of June, 1990.

    
    

    APPENDIX TO RECOMMENDED ORDER

    
    

    The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

    
    

    Petitioner's Proposed Findings.

    
    

    1.-17. Adopted in substance, though not verbatim.

18. Rejected; hearsay.

19.-21. Adopted in substance, though not verbatim.

22. Rejected; hearsay. 23.-25.

Adopted in substance. 26.

Rejected; hearsay.

27.-29.

Rejected; unnecessary. 30.

Adopted by reference. 31.-33.

Rejected as to patients claims; hearsay. 34.-35.

Adopted in substance.

Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

Tobi C. Pam, Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Doris Brewer

319 Northwood Drive Lutz, FL 33549

Kenneth Easley, Esq.

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Judie Ritter Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32201

Docket for Case No: 90-000319

Orders for Case No: 90-000319