STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3828

)

LUCY JEAN BOGGS PHELPS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case, on October 19, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Lois B. Lepp, Esquire

Department of Professional Regulation Suite 60

1940 N. Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Thomas D. Casper, Esquire

4830 W. Kennedy Boulevard Suite 750

Tampa, Florida 33609 STATEMENT OF THE ISSUES

Whether Respondent is guilty of unprofessional conduct or is subject to disciplinary action by reason of failure to comply with hospital's written policy regarding x-raying a Dobbhoff tube to determine placement.

PRELIMINARY STATEMENT

By Administrative Complaint filed November 6, 1989, and an Amended Administrative Complaint filed October 18, 1990, Petitioner seeks to revoke, suspend, or otherwise discipline the license of Lucy Jean Boggs Phelps, Respondent, as a registered nurse. As grounds therefor, in the original Administrative Complaint filed, it is alleged that Respondent is guilty of unprofessional conduct in violation of Section 468.018(h) Florida Statutes. The Amended Administrative Complaint on which this case proceeded to hearing, contained all operative facts contained in the original Administrative Complaint with non-material changes describing Respondent as charge nurse rather than as Director of Nursing at the hospital and changing Petitioner from Board of Cosmetology to Board of Nursing; however, the Amended Administrative Complaint merely alleged that Respondent's direction (to another nurse) not to have an x-

ray taken was contrary to hospital policy. This was not alleged to constitute unprofessional conduct or violate any specific provision of Chapter 468, Florida Statutes, as did the original Administrative Complaint. All parties proceeded to hearing on the premise that Respondent was duly and properly charged with unprofessional conduct in violation of Section 468.018(h), Florida Statutes.

Following the opening of the hearing, Petitioner called six witnesses, Respondent testified in her own behalf, and eight exhibits were admitted into evidence. Proposed findings have been timely submitted by the Petitioner.

Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

After considering all evidence submitted and the demeanor and candor of the witnesses, the following is submitted.

FINDINGS OF FACT

1. At all times relevant hereto Lucy Jean Boggs Phelps, Respondent, was a registered nurse holding license number RN0941002 and was employed as charge nurse at AMI Town and Country Medical Center (AMI).

   
   

2. On or about February 10, 1990, a 98 year old white male patient at AMI pulled out the Dobbhoff tube inserted that day into his small intestines. The doctor was notified, and he directed the Dobbhoff tube be reinserted in the stomach of the patient and to start feeding the patient 50 cc per hour. The order further provided for the patient's bed to be elevated at the head (a reverse trendlenberg) and to "x-ray tonight or early am to replace small bowel feeding tube."

   
   

3. Pamela Bayne, LPN, received this order over the telephone, entered it on the doctor's order page and requested the floor nurse, Mary Metzger, RN, to replace the Dobbhoff tube. This was done, and the location of the tube in the stomach was verified by Bayne and Metzger by inserting air in the tube and listening with stethoscope over the abdomen. Also, the end of the tube was placed in a glass of water, and no air escaped which, if present, would indicate the tube was in the lung. Nevertheless, in compliance with her understanding of hospital policy, Metzger prepared the patient for x-ray and so notified Respondent who responded that, under the circumstances, x-ray was not necessary.

   
   

4. AMI has a hospital policy procedure (Exhibit 1) whose subject is: ENTRAL FEEDING TUBE (DOBBHOFF) - INSERTION AND MAINTENANCE OF. The second paragraph thereof states: "A flat plate of the abdomen is to be obtained, and a radiologist or a physician confirmation of appropriate tube placement is needed prior to administering medications, feeding or irrigation through the tube. A physician's order must be written in the patient's medical record to authorize the x-ray."

   
   

5. This policy goes on the outline the steps to follow in preparing the patient and inserting the Dobbhoff tube. After these procedures are accomplished and the tube inserted, Section 21 provides:

   
   

   Confirm stomach placement of the tube, while stylet is still in place, by introducing approximately 10-25 cc of air into the tube, using a 60 cc syringe, while listening with a stethoscope over the patient's stomach.

   Rumbling noise would indicate the tube is

   probably in the stomach.

   Aspirating stomach contents, using a 60 cc syringe, can also confirm stomach placement. However, this will not always be a good check since the tubes are small and sometimes aspirating contends is difficult.

   
   

   Section 24 provides for patient to be returned to a position of comfort and "if the tube is inserted for post-pyloric placement (naso-duodenal or naso- jejunal) place patient on right side as much as possible. This will facilitate tube passage due to anatomical structure." Section 25 provides: "For final confirmation of placement, obtain flat plate of abdomen order with an `as soon as possible' reading."

   
   

6. AMI has another hospital policy procedure the subject of which is: LEVINE TUBE - FEEDING THROUGH (Exhibit 7). The purpose of the Levine tube is to provide nourishment by means of naso-gastric feeding when the patient cannot or will not take food in the usual manner. This tube is determined to be in the proper place by aspirating the stomach contents from the Levine tube or injecting 30 cc of air into the Levine tube while simultaneously listening to the stomach with a stethoscope for a gurgling sound.

   
   

7. The Dobbhoff tube is a small flexible rubber tube, while the Levine tube is a larger, stiffer plastic tube. The Dobbhoff tube is more comfortable for the patient due to its softness and size than is the Levine tube. The Dobbhoff tube is more frequently used for feeding directly to the small intestine, while the Levine tube is used only to send material to the stomach. Respondent has inserted some 36 to 40 Dobbhoff tubes in her career and has never seen this tube used as a naso-gastric (stomach) feeder before this instance.

   
   

8. The word ENTRAL to several witnesses meant simply, internal; to Respondent the word meant intestinal. Respondent testified that she once looked the word up in a dictionary to confirm this definition. However, this word is not contained in Webster's New Intercollegiate Dictionary (1977) or Dorland's Illustrated Medical Dictionary, Twenty-Sixth Edition (1985). Accordingly, it appears that this is either a coined or misspelled word used in some areas of the medical profession, but without an authoritative definition. Dorland's, supra, defines the word ENTAL as inner, central; derived form the Greek word entos and ENTERAL (Gr. enteron intestine) as within, by way of, or pertaining to the small intestine.

   
   

9. All witnesses employed at AMI, except Respondent, understood the hospital policy expressed in Exhibit 1 to require an x-ray be taken before nourishment or medication is passed through a Dobbhoff tube whether the tube is inserted into the stomach or to the intestine. The reason for this is that the tube is very flexible and can kink back on itself, and the air test with stethoscope is not fool proof.

   
   

10. Respondent understood an x-ray was required when the Dobbhoff tube was to be used for entral (intestinal) feeding as opposed to naso-gastric feeding when the tube is passed only into the stomach. The doctor's order entered in this case to "x- ray tonight or early am to replace small bowel feeding tube" leads some credence to this interpretation. In order to place the tube in the intestines, x-ray techniques are used by radiologists to visually so place the Dobbhoff tube.

11. Following placement of the Dobbhoff tube in the stomach at 6:30 p.m., February 10, 1990, nurses notes show "feeding was started at 7 p.m. At 10 p.m. the patient was anxious/restless, full of fluid, suctioned. Dr. Rose called. 10:15 Dr. Frank notified of patient's condition. 10:40 tube feeding clamped. Patient remains anxious with labored breathing." (Exhibit 2).

    
    

12. Subsequent thereto, an x-ray was taken which showed the Dobbhoff tube projected over patient's right lower lobe. The patient died 36 hours after the tube was clamped off (Exhibit 3). Primary cause of death was asphyxia secondary to aspiration of gastric contents. Essentially, the patient suffered sufficient stress from the material fed into his lung through the Dobbhoff tube to cause cardiac arrest. No evidence or explanation was submitted to describe how the air-stethoscope tests here conducted failed to insure the tube placement in the stomach.

    
    

13. This elderly patient was admitted to the hospital February 6, 1990, suffering primarily from anemia. Accordingly, when the doctor on February 10 ordered the tube the patient had pulled out to be replaced to the stomach and later relocated to the intestine, Respondent correctly concluded that the doctor considered nourishment necessary for the patient. At this time, radiology had closed for the day and, except in an emergency, a radiologist was not available to read an x-ray.

    
    

14. Respondent realized that the emergency room physician could read the x-ray to determine if the Dobbhoff tube was properly placed in the stomach, but had some reservations about the doctor's willingness to do so. All other witnesses considered it appropriate to request such an x-ray reading from the emergency room physician particularly since no special expertise is needed to make such a determination. Normally emergency room physicians are called on to read x-rays only in emergency situations.

    
    

15. Four registered nurses opined that failure to follow hospital policy constitutes unprofessional conduct and does not meet the minimum standards of professional conduct for nurses.

    
    

16. Respondent has been licensed as a registered nurse for 15 years, and this is the first disciplinary proceeding brought against her. Her supervisors at AMI who testified in these proceedings agreed that Respondent was sincere in her interpretation of Exhibit 1, but thought the policy was clear that, regardless of the tube placement, hospital policy required the taking of an x- ray to determine Dobbhoff tube placement prior to passing fluids, nourishment or medication through the tube.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. The notice of hearing issued in this case complied with the requirements of Section 120.57(1)(b)(2), Florida Statutes, thereby placing Respondent on notice that she was charged with unprofessional conduct as defined in Section 464.018(1)(h), Florida Statutes. No issue was raised at the time permission to file an amended Administrative Complaint was granted, and nobody apparently realized the charging paragraph in the original Administrative Complaint had been omitted from the Amended Administrative Complaint. The Amended Administrative Complaint contained all factual allegations of the unprofessional conduct the Petitioner intended to prove; accordingly, the

    omission of the charge did not prejudice the Respondent or deny Respondent due process. Further, if this Amended Administrative Complaint is determined to be insufficient to support a charge of unprofessional conduct, the Petitioner would only have to refile a new Administrative Complaint containing the specific allegation of unprofessional conduct, and the hearing could be repeated. This would put both parties to the expense of a new hearing without a benefit to anyone. The Amended Administrative Complaint sufficiently apprised Respondent of the charges she was called upon to defend against and accorded Respondent due process.

    
    

19. Section 464.018(1), Florida Statutes, provides disciplinary action may be taken against a licensee guilty of

    
    

    (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 practices, in which case actual injury need not be established.

    
    

20. Four registered nurses opined that failure to follow established hospital policy constitutes nursing practice falling below minimal standards of acceptable and prevailing nursing practices. I accept that conclusion. However, the policy Respondent allegedly failed to follow is not that clear and concise so as to support a forfeiture of registration of one who misinterprets this policy. It is axiomatic that hard cases make bad law. Here, the failure to take an x-ray after the Dobbhoff tube was presumably inserted in the stomach of the patient before sending nutrients down this tube, undoubtedly was a significant contributor to the demise of this patient.

    
    

21. Had no adverse consequences resulted from this failure to take an x- ray after inserting a Dobbhoff tube in the stomach, it is highly unlikely these proceedings would have been initiated. However, a charge of unprofessional conduct or failure to conform to the minimal standards of acceptable and prevailing nursing practices does not depend upon actual injury to be established. Accordingly, this determination of guilt should be predicated upon the acts performed rather than the consequences.

    
    

22. When the policy (Exhibit 1) is read in conjunction with the doctor's orders to insert Dobbhoff in stomach, start feeding and x-ray "tonight or early

    a.m. to replace the small bowel feeding tube," it is not clear the intent of the policy was not followed by Respondent.

    
    

23. The title or subject of Exhibit 1, viz. ENTRAL FEEDING TUBE (DOBBHOFF)

    - INSERTION AND MAINTENANCE OF can be read that Dobbhoff is synonymous with entral feeding tube. That leaves the definition of "entral" to be ascertained. As noted in the above findings this Hearing Officer, in an acknowledged limited search, was unable to locate this word in either a lay or medical dictionary.

    Entral is close to ental, from the Greek word entro, which means inner or central; it is also close to entrail[s], which most dictionaries define as intestines; and it is close to "interal" which is also generally defined as intestine.

24. If entral was intended to mean enteral and misspelled by omitting the second "e", then the Dobbhoff procedures are to be followed for intestinal feeding, and not necessarily for naso-gastric feeding. Suffice it to say, this policy (Exhibit 1), is not so clear that failure to take an x-ray in this case before sustenance is sent through the tube constitutes unprofessional conduct.

    
    

25. In a license disciplinary proceeding, the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington,

510 So.2d 292 (Fla. 1987). For the foregoing reasons, Petitioner has failed to sustain this burden.

RECOMMENDATION

It is recommended that Lucy Jean Boggs Phelps be found not guilty of unprofessional conduct and these charges be dismissed.

ENTERED this 14 day of November, 1990, in Tallahassee, Florida.

K. N. AYERS 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 14 day of November, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3828

Treatment accorded proposed findings submitted by Petitioner.

1 - 7. Accepted.

8. Rejected insofar as Dobbhoff tube placement in stomach. 10-11. Rejected due to the lack of specificity of hospital

policy caused by use of the word "entral."

1. Accepted.

2. Rejected as unsupported by competent and substantial evidence.

3. Accepted.

COPIES FURNISHED:

Lois B. Lepp, Esquire Department of Professional

Regulation, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792

Thomas D. Casper, Esquire 4830 W. Kennedy Boulevard Suite 750

Tampa, FL 33609

Judie Ritter Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 90-003828

Orders for Case No: 90-003828