STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3134

)

JUDY ANN SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 5, 1990, in Stuart, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the administrative complaint?

   
   

2. If so, what disciplinary action should be taken against her?

PRELIMINARY STATEMENT

On April 4, 1990, the Department of Professional Regulation issued an administrative complaint charging that in October 1988, while working as a nurse assigned to Martin Memorial Hospital's oncology unit, Petitioner violated the provisions of Section 464.018(1)(f), (h), (i), and (1), Florida Statutes, in connection with her handling of medication intended for a patient and her recording of information concerning the purported administration of such medication. Respondent denied these allegations of wrongdoing and requested a formal hearing on the charges. On May 22, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct such a hearing.

The hearing was held as scheduled on September 5, 1990. The Department presented the testimony of six witnesses: Jo Ann Mason, the Director of Nursing at Martin Memorial Hospital; Russell Patti, the Director of Pharmacy at Martin Memorial Hospital; Laurie Banning Harper, Earlene (Amy) Jacobson and Sandra Barrasso Cooper, nurses who worked in the oncology unit at Martin Memorial Hospital during the time that Respondent allegedly engaged in the conduct which

forms the basis of the instant administrative complaint; and Darryl Fruth, an investigator with the Department. In addition to the testimony of these witnesses, the Department offered six exhibits into evidence. All six exhibits were received by the Hearing Officer. Although she had been given notice of the hearing in accordance with Section 120.57(1) (b)2, Florida Statutes, Respondent did not make an appearance, either in person or through an attorney or other qualified representative. Accordingly, the record evidence consists exclusively of the evidence adduced by the Department at hearing.

At the close of the evidentiary portion of the hearing on September 5, 1990, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the transcript on October 9, 1990. On October 22, 1990, the Department filed a proposed recommended order. The findings of fact proposed by the Department in its proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the following findings of fact are made:

1. Respondent is now, and has been since August 17, 1987, licensed to practice practical nursing in the State of Florida. She holds license number 0876721.

   
   

2. Respondent was employed for more than a year as a nurse at Martin Memorial Hospital (hereinafter referred to as the "hospital"), a private nonprofit community hospital located in Stuart, Florida. She was suspended from her position for three days on October 25, 1988, for suspected diversion of drugs and falsification of medical records. Upon the expiration of her suspension, she was terminated.

   
   

3. At all times material to the instant case, Respondent was assigned to the hospital's sixth floor oncology unit and she worked the day shift (7:00 a.m. to 3:00 pm).

   
   

4. Among the patients for whom Respondent cared was S.H. S.H., who is now deceased, had lung cancer. The first five days of S.H.'s stay at the hospital were spent in a room on the hospital's fifth floor. On October 15, 1988, she was moved to the sixth floor oncology unit, where she remained until her discharge at 3:35 p.m. on October 22, 1988.

   
   

5. When a patient is admitted to the hospital, the admitting physician provides the nursing staff with written orders regarding the care that is to be given the patient. These written orders, which are updated on a daily basis, include instructions concerning any medications that are to be administered to the patient.

   
   

6. The hospital's pharmacy department provides each patient with a twenty- four hour supply of the medications prescribed in the physician's written orders. The supply is replenished daily. In October, 1988, the medications that the pharmacy department dispensed were stored in unlocked drawers that were kept in designated "medication rooms" to which the nursing staff and other hospital personnel had ready access.

7. The hospital's nursing staff is responsible for caring for the hospital's patients in accordance with the written orders given by the patients' physicians. Furthermore, if a nurse administers medication to a patient, (s)he must indicate that (s)he has done so by making an appropriate, initialed entry on the patient's MAR (Medication Administration Record). 1/ In addition, (s)he must note in the nursing chart kept on the patient that such medication was administered. Moreover, if the physician's written orders provide that the medication should be given to the patient on an "as needed" basis, the nursing chart must contain information reflecting that the patient's condition warranted the administration of the medication. The foregoing standards of practice that nurses at the hospital are expected to follow are the prevailing standards in the nursing profession.

   
   

8. On October 13, 1988, S.H.'s physician indicated in his written orders that S.H. could be administered Darvocet N-100 for pain control on an "as needed" basis, but that in no event should she be given more than one tablet every six hours.

   
   

9. S.H.'s MAR reflects that at 9:00 a.m. on October 18, 1988, the first day that Respondent was assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent.

   
   

10. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 18, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date.

    
    

11. S.H.'s MAR reflects that at 10:00 a.m. on October 21, 1988, the day Respondent was next assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent.

    
    

12. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 21, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date.

    
    

13. At some time toward the end of her stay in the hospital, S.H. told one of the charge nurses who worked in the sixth floor oncology unit that she had taken very few Darvocet N- 100 tablets during her stay at the hospital and that she had not taken any recently.

    
    

14. S.H.'s physician did not prescribe Darvocet N-100 or any other similar pain medication for S.H. upon her discharge from the hospital.

    
    

15. Notwithstanding the entries she made on S.H.'s MAR, Respondent did not give Darvocet N-100 to S.H. on either October 18, 1988, or October 21, 1988. Respondent made these entries knowing that they were false. She did so as part of a scheme to misappropriate and divert the medication to her own use.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Board of Nursing (Board) is statutorily empowered to discipline licensed practical nurses based upon any of the grounds enumerated in Section 464.018(1), Florida Statutes.

17. The proof establishing the existence of these grounds for discipline must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)

    
    

18. The administrative complaint filed against Respondent in the instant case alleges that the Board of Nursing has grounds to discipline Respondent pursuant to Section 464.018(1)(f), (h), (i) and (1), Florida Statutes.

    
    

19. Subsection (1) (f) of Section 464.018, Florida Statutes, authorizes the Board to take disciplinary against a licensed practical nurse for "[m]aking or filing a false report or record, which the licensee knows to be false," provided that such report or record is one which is "signed in the nurse's capacity as a licensed nurse." A MAR is the type of report or record, the intentional falsification of which constitutes grounds for discipline pursuant to Section 464.018(1)(f), Florida Statutes.

    
    

20. Subsection (1) (h) of Section 464.018, Florida Statutes, gives the Board authority to punish a licensee for "[u]nprofessional conduct, which . . . include[s], but [is] not limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, [regardless of whether] actual injury [is] established." The Board, by rule, has construed the term "unprofessional conduct," as used in Section 464.018(1)(h), Florida Statutes, to include, among other things, "[i]naccurate recording, falsifying or altering of patient records" and "[m]isappropriating supplies, equipment or drugs." Fla. Admin. Code Rule 210-10.005(1)(e)1 and 3.

    
    

21. The Board is authorized pursuant to subsection (1)(i) of Section 464.018, Florida Statutes, to take disciplinary action against a licensee for "[e]ngaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes." Darvocet N-100 is such a controlled substance.

    
    

22. Subsection (1)(1) of Section 464.018, Florida Statutes, empowers the Board to discipline a licensee for "[k]nowingly violating . . . a rule of the board," including the provisions of Florida Administrative Code Rule 210- 10.005(1)(e)1 and 3 referenced in paragraph 5 of these Conclusions of Law.

    
    

23. The record evidence clearly and convincingly establishes that, as charged by the Department, on October 18 and 21, 1988, Respondent intentionally falsified S.H.'s MAR as part of a scheme to misappropriate and divert Darvocet N-100 tablets from S.H.'s supply of medications to Respondent's own use. Accordingly, the Board has grounds to take disciplinary action against

    Respondent pursuant to subsections (1) (f), (h), (i) and (1) of Section 464.018, Florida Statutes.

24. The Department proposes that the following disciplinary action be taken against Respondent for such misconduct:

The license of Respondent shall be suspended until such time as the Respondent personally appears before the Board of Nursing and can demonstrate the ability to practice nursing in a safe and proficient manner. The Board then shall have the discretion to place the Respondent's license on probation for a period of up to two (2) years with the imposition of reasonable terms.

The penalty proposed by the Department is an appropriate one that is consistent with the pertinent statutory and rule provisions governing the subject. Section 464.018, Fla. Stat.; Fla. Admin. Code Rule 210-10.011.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violations of Section 464.018(1), Florida Statutes, charged in the instant administrative complaint and disciplining Respondent by taking the action proposed by the Department, which is described in paragraph 9 of the foregoing Conclusions of Law.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1990.

STUART M. LERNER

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 October, 1990.

ENDNOTES

1/ If the nurse makes an entry on the patient's MAR upon removing the medication from its storage area and the patient subsequently refuses the medication or for some other reason the medication is not administered, the nurse must circle her initials or otherwise indicate on the MAR that the medication was not given to the patient.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the Department in the instant case:

1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

5. To the extent that this proposed finding states that "Darvocet N-100 is defined in Chapter 893, Florida Statutes as a Schedule IV controlled substance," this proposed finding has been rejected as a finding of fact because it is more in the nature of a statement of the law, albeit a correct one, than a factual finding. Otherwise, it has been accepted and incorporated in substance.

6-8. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

9-12. Accepted and incorporated in substance.

13-16. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

2. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

3. Accepted and incorporated in substance.

   
   

4. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

21-22. Accepted and incorporated in substance.

1. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

   
   

2. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.

25-26. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Judy Ann Smith

270 Summer Road

Port St. Lucie, Florida 34983

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-003134

Orders for Case No: 90-003134