STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4408

)

DAVID PEARL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on December 10, 1990, in Lake Butler, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether or not Respondent should be disciplined for violations charged under Count I of the Administrative Complaint pursuant to Rule 210- 10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [for intentionally or negligently failing to file a report or record required by state or federal law] and pursuant to Rule 210-10.005(1)(e)1. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, inaccurate recording, falsifying or altering of patient records]; under Count II pursuant to Rule 210- 10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, acts of negligence or gross negligence, either by omission or commission]; and under Count III pursuant to Rule 210-

1. (1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, practicing beyond the scope of the licensee's license, educational preparation or nursing experience].

   PRELIMINARY STATEMENT

   
   

   The three-count Administrative Complaint herein was filed June 26, 1990.

   Upon Respondent's election in favor of a formal hearing pursuant to Section 120.57(1) F.S., the cause was referred to the Division of Administrative Hearings. Notice of formal hearing was issued August 17, 1990, establishing a formal hearing date of December 10, 1990 in Lake Butler, Florida.

   
   

   At formal hearing, Petitioner presented the oral testimony of Russell Adler, Willie Hogan, Larry Feltner, Sergeant Allan Ross, Marinell Brown, Donna Thornton, Patricia K. Bassitt and Diane Richtine, M.D., and had six exhibits admitted in evidence. The Respondent failed to appear for formal hearing and, accordingly, the record was left open pending further inquiry.

   
   

   By order of January 15, 1991, it was determined that the Respondent had had reasonable notice of formal hearing, that the Division of Administrative Hearings had jurisdiction of the parties and subject matter of this cause, that the Respondent voluntarily did not appear for formal hearing, and that the record of formal hearing was closed as of that date.

   
   

   Petitioner filed its proposed recommended order on January 23, 1991, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S. Respondent filed no posthearing proposals.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, Respondent was licensed as a registered nurse in the state of Florida, Board of Nursing license number 84080-2.

      
      

   2. At all times material, Respondent was employed as a registered nurse/nurse supervisor with North Florida Reception Center (NFRC) Hospital, part of the Florida Department of Corrections.

      
      

   3. On December 13, 1989, Officer Russell Adler was on duty in 05 dormitory. It was called to Officer Adler's attention and he observed that an inmate, Artis Baker, was crawling around on the floor and was having trouble breathing.

      
      

   4. At approximately 11:29 p.m. Officer Adler turned over custody of inmate Baker to Officer Willie Hogan for escort to the emergency room.

      
      

   5. Officer Hogan escorted inmate Baker to the emergency room and went elsewhere while inmate Baker was seen by Respondent, who was the nurse on duty. Shortly thereafter, Respondent returned custody of inmate Baker to Officer Hogan.

      
      

   6. Officer Hogan testified that the Respondent informed him at that time that he, the Respondent, had given Baker a shot "to calm him down to rest." Hogan escorted inmate Baker back to his dormitory. Officer Adler testified that Hogan told him that Respondent had given Baker "some sleeping medication." However, other witnesses testified that when Respondent was questioned by Dr. Richtine and others after Baker was found dead, Respondent denied that he had medicated Baker. In light of the objective evidence of the autopsy, these contrary so-called "admissions" of Respondent are not sufficient for making a finding of fact that Respondent, did, in fact, administer any drug to Baker. See, Finding of Fact 14.

   7. Contrary to NFRC policy, neither inmate Baker's visit to the emergency room nor any medication which may have been administered by Respondent was recorded by Respondent in inmate Baker's patient record.

      
      

   8. Diane Richtine, M.D., was the on-call physician that night. Contrary to NFRC policy and protocol, Respondent never notified Dr. Richtine that there was an inmate who had presented himself to the emergency room for possible treatment.

      
      

   9. The foregoing NFRC policies requiring notations in the patient's record and the notification by the on-duty nurse to the on-call physician are contained in a written policy and procedure manual, receipt and reading of which Respondent had acknowledged in writing prior to December 13, 1989, but there was no affirmative proof that these policies or the reports/records required by them are "reports or records required by state or federal law." No statute or Florida Administrative Code rule adopting the Department of Corrections NFRC policy manual was introduced by Petitioner or referenced by any witness.

      
      

   10. Inmate Baker was returned by Officer Willie Hogan to the dormitory at approximately midnight on December 13, 1989. At 5:55 a.m. on December 14, 1989, Officer Larry Feltner was informed by other inmates that inmate Baker was not responding to the wake-up calls.

       
       

   11. Officer Feltner checked inmate Baker for a pulse, but was unable to locate one and then called the control room to inform its occupants of the incident. Sergeant Allan Ross and Captain J.D. Wainwright responded. They entered the dormitory and checked inmate Baker for a pulse, and finding none, removed Baker from his bunk and attempted to administer cardiopulmonary resuscitation. The Respondent, David Pearl, then entered the dormitory and while Captain Wainwright and Sergeant Ross were present, checked inmate Baker for life signs and found none. Baker's body was thereafter removed from the dormitory and taken to the NFRC morgue.

       
       

   12. The Respondent failed to notate inmate Baker's death on his patient records. The first notation of death was made by E. Johnson, R.N., at 8:15 a.m. on December 14, 1989.

       
       

   13. Patricia K. Bassitt, R.N., was accepted as an expert witness on general nursing practices and record keeping. In her expert opinion, Respondent's failures to notate inmate Baker's visit to the emergency room, to notate his administration of medication to inmate Baker (which administration of medication the expert witness erroneously took to be factually established), and to notate Baker's subsequent death constituted inaccurate keeping of patient records; also in her opinion, Respondent's actions constituted negligent actions and actions below minimum standards of acceptable care. Further, Ms. Bassitt opined that Respondent had acted beyond the scope of good nursing practice, had acted contrary to good nursing practice, and that his actions had been "very lacking."

       
       

   14. Despite an autopsy performed on inmate Baker, it was not possible to determine the cause of his death. Nothing beyond his regular medications for chronic hypertension was found in his system. No toxic substance, legend drug, or drug which would cause him to sleep was found.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

       
       

   16. In license disciplinary cases, the burden is upon Petitioner to prove each element of the violation(s) charged by clear and convincing evidence. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

       
       

   17. Respondent is charged under the following statutes and rule:

       
       

       464.018 Disciplinary actions.--

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

       * * *

       (f) Making or filing a false report or re- cord, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or fed- eral law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

       * * *

       1. Unprofessional conduct, which shall in- clude, but not be limited to, any departure from, or the failure to conform to, the mini- mal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

          and

          21O-10.005 Disciplinary Proceedings.

          1. The Board of Nursing may impose disci- plinary penalties upon a determination that a licensee:

       * * *

       (e) Is guilty of unprofessional conduct which shall include, but not be limited to:

       1. Inaccurate recording, falsifying or alter- ing of patient records; or

       * * *

       12. Acts of negligence, gross negligence, either by omission or commission; or

       * * *

       15. Practicing beyond the scope of the licensee's license, educational preparation

       or nursing experience. (All emphasis supplied)

       
       

   18. As to Count I of the Administrative Complaint, upon the foregoing findings of fact and conclusions of law, it is determined that Respondent failed to file the required reports, but there is nothing to show that the reports are required by state or federal law or that the Department of Professional Regulation, Board of Nursing, has any authority to prosecute Respondent for failure to follow a Department of Corrections policy. Therefore, Respondent is not guilty under Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. However, there is clear and convincing evidence that Respondent has been guilty

       of unprofessional conduct by a departure or failure to conform to the minimal standards of acceptable and prevailing nursing practice by inaccurate recording. See, Rule 210-10.005(1)(e)1. and Section 464.018(1)(h).

       
       

   19. As to Counts II and III of the Administrative Complaint, due to the unclear nature of the Respondent's so-called "admissions" concerning whether or not he administered any drug to inmate Baker and due to the absence of any objective proof in the autopsy report to clarify these so-called "admissions," the undersigned concludes that insufficient evidence has been presented to establish either gross negligence or practice beyond the scope of the licensee's license, education, or experience. See, Rules 210-10.005(1)(e)12. and 15.

       F.A.C. and Section 464.018 (1)(h) F.S. However, upon Ms. Bassitt's testimony, it is concluded that failure to keep records accurately can constitute simple negligence and does here. Consequently, Respondent is guilty of Count II and not guilty of Count III.

       
       

   20. Assuming that guilt would be found as to all four violations charged in the three counts of the Administrative Complaint, Petitioner sought a penalty as follows: that the Respondent should be reprimanded for his actions and his license should be placed on probation for two years with the special condition that the Respondent successfully complete courses in charting/assessment and stress management in addition to other normally required continuing education courses, together with a $250 administrative fine.

       
       

   21. However, Respondent's guilt as to all violations has not been proven; only two violations have been established at law, and as to one of those, only simple negligence (not gross negligence) has been proven. Also, Petitioner has not shown any nexus between the violations proven and a penalty assigning Respondent to a course in stress management.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the portion of Count I of the Administrative Complaint brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [intentionally or negligently failing to file a report or record required by state or federal law], guilty of the portion of Count I brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct, specifically, inaccurate recording of patient records]; guilty of Count II brought pursuant to Rule 210-10.005(1)(e)12. F.A.C. and Section 464.018(1)(h)

F.S. [unprofessional conduct, specifically acts of simple negligence]; and not guilty of Count III brought pursuant to Rule 210-10.005(1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically practicing beyond the scope of the licensee's license, educational preparation or nursing experience], reprimanding Respondent for his actions, and placing his license on probation for two years with the special condition that he successfully complete courses in charting/assessment in addition to other normally required continuing education courses, together with a $250 administrative fine.

RECOMMENDED this 27th day of February, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 27th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4408

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-5 are accepted.

6-7 are covered in FOF 6 and 10 and the conclusions of law. 8-19 are accepted.

20-22 are accepted as modified to accurately reflect the witness' testimony and to the extent they are not accepted, they are rejected as contrary to the credible record evidence.

Respondent's PFOF: None submitted.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

David Pearl

1106 1/2 West Princeton Street Orlando, Florida 32804

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Jack McCray, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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 within which to submit written exceptions. You should consult with 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: 90-004408

Orders for Case No: 90-004408