STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

)

)

Petitioner, )

)

vs. ) CASE NO. 90-2243

)

JOYCE KNOWLTON, )

)

)

)

Respondent. )

)

RECOMMENDED ORDER

On September 19 and October 3, 1990, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lois B. Lepp, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Christina M. Ippolito, Esquire

Gulfcoast Legal Services, Inc.

6 South Ft. Harrison Avenue Clearwater, Florida 34616

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Nursing should discipline the Respondent, Joyce Knowlton, on charges contained in the Amended Administrative Complaint, DPR Case No. 0111292.

PRELIMINARY STATEMENT

This proceeding commenced when the Petitioner, the Department of Professional Regulation, filed an Administrative Complaint against the Respondent on or about March 9, 1990, and the Respondent disputed the charges and requested a formal administrative proceeding by Election of Rights form dated on or about April 4, 1990. Later, the Department filed an Amended Administrative Complaint.

The Amended Administrative Complaint alleges that, in January, 1989, while employed as a nurse at the Seminole Nursing Pavilion in Seminole, Florida, the Respondent dispensed Mellaril to a certain patient every night of the month, even when the patient was not agitated, despite doctor's orders that the drug be dispensed only as needed for agitation. The Department also alleges that the Respondent attempted suicide by drug overdose on or about February 28, 1989, and underwent treatment for major recurrent depressive episodes from March 6-21, 1989. (It also alleges that the Respondent was hospitalized for depression and schizophrenia in 1968. Emphasis added.)

The Amended Administrative Complaint charges that the alleged conduct constitutes unprofessional conduct (failure to meet minimum standards of acceptable and prevailing nursing practice) in violation of Section 464.018(1)(h), Fla. Stat. (1989). It also charges that the Respondent is unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of drugs, or as a result of a mental or physical condition, in violation of Section 464.018(1)(j), Fla. Stat. (1989).

The final hearing in this case commenced on September 19, 1990. But when the time allotted for the hearing expired before the Department had completed its case-in-chief, the Respondent moved for a continuance, which was granted. The hearing reconvened and was completed on October 3, 1990.

The Department presented the testimony of its investigator and several fact witnesses who were fellow employees with the Respondent at the time of the alleged incident, as well as the fact testimony of a consulting pharmacist who observed the Respondent's dispensation of medications ("med pass"). The Department also presented the expert testimony of a nurse/mental health therapist who examined the records but presented no testimony from any expert who examined or treated the Respondent herself. The Department also introduced in evidence Petitioner's Exhibits 1 through 9. (Petitioner's Exhibit 10 was not moved into evidence.)

The Respondent presented the testimony of an expert in the field of nursing and introduced Respondent's Exhibit 1 in evidence.

At the conclusion of the hearing, the Department ordered the preparation of a transcript of the final hearing, and both parties asked for and received 20 days from the filing of the transcript for filing proposed recommended orders.

The transcript was filed on October 26, 1990.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90

FINDINGS OF FACT

1. The Respondent is a licensed practical nurse who was working as a nurse at Seminole Nursing Pavilion in Seminole, Florida, in January, 1989. She holds Florida license number PN13417.

   
   

2. The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on the evenings of January 5, 6, 8, 9, 11-14, 18, 19, 22, 25 and 26, 1989. On the evenings of January 3, 4 and 28, 1989, another nurse dispensed Mellaril to the patient. On the other 15 evenings in January, 1989, the Respondent was not on duty, and Mellaril was not dispensed to the patient.

3. The doctor's orders for the patient, L. W., were: "Mellaril concentrate

   25 mg. give two (2) times daily as needed for agitation."

   
   

4. The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on at least one occasion--on January 5, 1989--when the patient was not agitated and showed no sign of becoming agitated. The patient was "calm to the point of being almost placid." The Respondent went in and roused the patient to give her the medication.

   
   

5. The Respondent explained to other witnesses that she dispensed Mellaril to the patient, L. W., without symptoms of agitation because the patient ate better and with less agitation at meal time after administration of Mellaril, and also because the patient's family favored this course.

   
   

6. The evidence proved that it was below minimum standards of acceptable and prevailing practice of nursing for the Respondent to administer Mellaril to this particular patient, L. W., for the stated purpose. It is possible for a patient regularly to become agitated at about meal time. This is not uncommon with some nursing home patients; it is commonly referred to as "sundowner syndrome." In the case of "sundowner syndrome," administration of the medication just before meal time to prevent agitation, so that the patient would eat better and with less agitation, could be in compliance with the doctor's orders, as written, and not below minimum standards of acceptable and prevailing practice of nursing. But, in this case, the evidence proved that the patient did not have "sundowner syndrome." On only three of the 16 evenings in January, 1989, when the Respondent was not on duty did the on-duty nurse administer Mellaril for agitation.

   
   

7. The Respondent has a history of recurring episodes of major depression. She was fired from her job at the Seminole Nursing Pavilion on or about January 27, 1989. She became angry and then deeply depressed. On or about February 28, 1989, the depression became so severe that the Respondent attempted to end her life, or at least made a suicidal gesture, by an overdose of valium and wine. Fortunately, she recovered and received treatment in various clinical settings through approximately April 24, 1989. She continued to receive therapy, particularly to deal with the stress of this proceeding. But by the time of the hearing, she was fairly stable, and her recurrent depression was in remission. She now is able to work and, in fact, has been working as a nurse without any apparent incapacity.

   
   

8. The opinion testimony of the Department expert witness that the Respondent is now incapable, by reason of mental illness, to practice nursing with reasonable skill and safety to patients was not persuasive. The testimony was based solely on a review of the records in evidence as part of the Department's case in chief. The witness did not examine the Respondent and had no knowledge of the Respondent's employment history before about 1982 or after her employment at Seminole Pavilion ended.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 464.018(1), Fla. Stat. (1989), provides in pertinent part:

   
   

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

      * * *

      (h) Unprofessional conduct, which shall included, 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.

      * * *

      (j) 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.

      
      

10. As found, the Department proved a violation of Section 464.018(1)(h).

    
    

11. As to Section 464.018(1)(j), the findings reflect that the Department's expert witness did not have a sufficient base of knowledge from which to persuasively give the opinion to the Respondent's current mental condition. In that regard, it is noted that Section 464.018(1)(j) also provides in pertinent part:

    
    

    In enforcing this paragraph, the department shall have, upon a finding of the secretary or his designee that probable cause exists to believe that the licensee is unable to

    practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011.

    
    

    There is no evidence that the Department followed the procedures outlined in this provision of the statute. The evidence did not prove that the Respondent is now incapable of practicing nursing safely.

    
    

12. However, the evidence did prove that the severity of the Respondent's depressed mental condition, which led to her suicide attempt on February 28, 1990, and subsequent treatment, incapacitated her from the practice of nursing for an extended period of time. The evidence was that, under certain combinations of stress and other factors, the Respondent's major depression could recur. The evidence was sufficient to justify the imposition of "discipline" by the Board of Nursing in the form of probation for the purpose of insuring that the Respondent is rehabilitated enough to be able to continue to practice nursing safely. See Major v. Dept. of Prof. Reg., 531 So. 2d 411 (Fla. 3d DCA 1988).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order placing the Respondent, Joyce Knowlton, on probation for one year, during which time the Respondent's current mental condition can be evaluated and her practice closely monitored to insure that she is rehabilated enough to be able to continue to practice nursing safely.

RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 26th day of November, 1990.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-3. Accepted and incorporated to the extent not subordinate or unnecessary.

4. Rejected as not proven that agitation necessarily results in harm to the patient or others. Agitation could result only in what is called resistance to care. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

5.-13. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven. The Respondent believed that the patient ate better and with less agitation after being given Mellaril, not that the Mellaril "made the patient eat better" in the sense that it increased her appetite.

2. Accepted but subordinate and unnecessary.

3. Rejected as not proven. The evidence suggested that the family approved of the use of Mellaril to counteract anticipated agitation; it did not prove that the family asked the Respondent to keep the patient sedated, as implied by this proposed finding.

17.-20. Accepted and incorporated to the extent not subordinate or unnecessary.

21. Accepted and incorporated.

22.-25. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact.

1. Accepted and incorporated.

2. Accepted but subordinate and unnecessary.

3. Rejected. See 22-25, above.

29.-33. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

2. Rejected as not proven. See 22-25, above.

3. Accepted and incorporated.

4. First clause, accepted. However, the same records indicate that the Respondent's major depression is in remission. The Respondent's history is that her major depression alternately recurs and goes into remission depending on what is happening in her life and what kind of treatment she gets. Therefore, to the extent that it is inconsistent with the Findings, the rest is rejected as not proven.

38.-41. Generally accepted but unnecessary. These are vague generalities; no specifics were proven. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing.

42.-43. Rejected as not proven.

44.-46. The Respondent was not charged with untruthfulness. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing.

47.-50. The Respondent was not charged with breach of a contractual agreement. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. Proposed finding 50 is based strictly on inadmissible hearsay.

51.-52. Rejected as based strictly on inadmissible hearsay. 53.-57. Subordinate to facts found and unnecessary.

58.-60. The Respondent was charged with only one med pass error--dispensing Mellaril to the patient, L.W. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing.

61. Rejected as not proven.

62.-72. Rejected as not proven. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact.

1. Accepted and incorporated.

2. Rejected as not proven. Nursing has some unique stresses. It has more stress than some jobs and less stress than other.

3. Accepted but subordinate to facts found.

Respondent's Proposed Findings of Fact.

1.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected contrary to facts found and to the greater weight of the evidence. As found, the evidence did not prove that the Respondent is now unable, by reason of her mental condition, to practice nursing safely. However, the Respondent's evidence on this point consisted only of medical records and progress notes created by the Respondent's therapist. Without any testimony to explain these records, the evidence did not prove that the Respondent was more than "fairly stable" at the time of the hearing. On the other hand, the evidence did prove that the Respondent has a history of recurrent major

   depression, a legitimate concern to the Board of Nursing after the February 28, 1989, suicide attempt.

2. Rejected as contrary to facts found and to the greater weight of the evidence.

COPIES FURNISHED:

Lois B. Lepp, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Christina M. Ippolito, Esquire Gulfcoast Legal Services, Inc.

6 South Ft. Harrison Avenue Clearwater, Florida 34616

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE BOARD OF NURSING WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE BOARD OF NURSING CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 0111292

DOAH CASE NO.: 90-2243

JOYCE KNOWLTON,

Respondent.

/

FINAL ORDER

This matter came before the Board of Nursing pursuant to Section 120.57(1)(b)(9) and (10), Florida Statutes, on April 11, 1991, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A) and Respondent's exceptions. Respondent's license numbers is 13417-1.

Respondent was not in attendance but represented by Christine Ippollito who was not present. Petitioner was represented by Lois Lepp who was not present.

Both sides filed exceptions to the Recommended Order.

Upon review of the Recommended Order, the parties Exceptions and the complete record in this case, the Board makes the following finding and conclusions:

RULING ON EXCEPTIONS

Respondent's Exception to paragraph five of the proposed Findings of Fact is denied.

During the hearing Respondent made no objections to the evidence of which she now complains constitute hearsay. Assuming arguendo that the contemporaneous objection rule should not apply and Respondent did not waive this objection, the evidence is not inadmissible hearsay. A statement against the interest of a party made by that party is an admission which is admissible as evidence. Section 90.803(18), Florida Statutes.

Respondent's Exception Number 2 goes to paragraph four of the proposed Conclusions of Law. The discipline recommended is well within the range of penalties permitted by both rules and statutes. There has been no showing of any clear abuse of discretion in recommendation. Participation in the IPN is appropriate along with probation.

The Petitioner's Exception Number One is granted. As a matter of law the mental health counseling records of Respondent (Respondent Exhibit 1) are admissible. Respondent specifically waived any claim of privilege under Section 90.503, Florida Statutes. As relevant evidence under Section 90.401, Florida Statutes, it can be used to sustain a finding of fact. The Board reviewed Respondent's Exhibit 1 which was erroneously overlooked by the hearing officer. The Board considers that material competent substantial evidence. Therefore the final sentence of paragraph 7 of the proposed Findings of Fact is stricken.

Instead the Board substitutes the following: There is no evidence that Respondent is currently working as a nurse in any capacity nor is there any showing that she is able to work as a nurse without any apparent incapacity.

Because the Board found that the hearing officer erroneously excluded the mental health records, the proposed findings of fact in paragraph 8 are stricken. To that effect Respondent's exception number two is granted.

Based on the Exception granted to paragraph 7 of the proposed Findings of Fact, the Board grants Respondents exception to paragraph three of the proposed Conclusions of Law. Although Section 464.018(1)(j), Florida Statutes, provides the Department with an additional mechanism of enforcement in the judicial branch neither the parties nor the Board are divested of the administrative remedies provided by Chapter 120, Florida Statutes. It is not necessary for the collateral judicial remedies to be followed. Since there was competent substantial evidence to show that Respondent is incapable of practicing nursing safely, paragraph three is stricken.

FINDINGS OF FACT

The Board adopts the findings of fact in the Recommended Order as amended by the granting of the exceptions above.

CONCLUSIONS OF LAW

The Board has jurisdiction over 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 as amended by the granting of the exceptions above.

DISPOSITION

Upon a review of the complete record, the Board rejects the recommendation for probation as an inappropriate penalty. The legislature has mandated treatment programs for impaired practitioners. Section 464.0185, Florida Statutes. The Board's duty is to protect the public while providing for rehabilitative efforts of its licensees.

Therefore, the license of Joyce Knowlton is suspended; however, the suspension will be lifted upon her entry into the IPN. The suspension will be stayed as long as the licensee participates in the IPN. Her failure to remain in or successfully complete the IPN will result in the immediate lifting of the stay and imposition of the suspension for one year. The licensee must comply with all conditions of the IPN Advocacy Contract or she will be in violation of the Board Order. The Board delegates the authority to suspend to the Director of the IPN and the Chairman of the Board. Reinstatement will require that she appear before the Board to demonstrate her present ability to engage in the safe practice of nursing.

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 effective 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.

Done and Ordered this 20th day of May, 1991.

BOARD OF NURSING

Natalia N. Cruz, A.R.N.P. Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to JOYCE KNOWLTON, 1975 West Bay Drive, Building 1, Unit 103, Largo, Florida 34641; and CHRISTINE IPPOLLITO, Gulfcoast Legal Services, 6 South Harrison Avenue, Clearwater, Florida 33516, and by interoffice mail to J. LAWRENCE JOHNSTON, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; LOIS LEPP, Attorney at Law, Department of Professional Regulation, 1940 N. Monroe Street, Tallahassee, FL 32399-0773 this

20 day of May, 1991.

Julie K. Ritter Executive Director

Docket for Case No: 90-002243

Orders for Case No: 90-002243