STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7812

)

VIRGINIA ELLEN WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Ft. Myers, Florida on April 17, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Tracey S. Hartman, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For the Respondent: Joseph Hoffman, Esquire

4388 Palm Beach Blvd. Ft. Myers, Florida 33905

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent's license as a licensed practical nurse in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint filed in this case on November 5, 1990, by Charles S. Tunnicliff for Larry Gonzalez, Secretary of the Department of Professional Regulation, the Department seeks to discipline the Respondent's license as a practical nurse in this state because of her alleged unprofessional conduct in the practice of nursing by administering medication in advance of the scheduled time and not charting the administration, and by making a false report of child abuse, both in violation of Section 464.018(1), Florida Statutes.

Respondent requested a formal hearing to dispute the allegations, and by letter dated December 7, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. After Petitioner's counsel responded to the Initial Orders entered herein, Hearing Officer Donald R. Alexander, by Notice of Hearing dated December 31, 1990, set

the case for hearing in Ft. Myers on April 17, 1991, at which time it was held as scheduled by the undersigned to whom the file had been transferred in the interim.

At the hearing, Petitioner presented the testimony of Patricia A. Markert, Director of Nursing at Gulf Coast Center; Glenn P. Green and Eleise J. Pacquette, both Senior Registered Nurses at the Center; Sallee Ann Pauley, a Licensed Practical Nurse; Arlene R. Bowers, Supervisor for Adult Abuse in the Department's Ft. Myers Investigative Unit; Edward E. Stoneham, Sr., Registered Nurse Coordinator at the Center; and David R. Sherwin, the Department's District VIII Inspector General. Petitioner introduced Petitioner's Exhibits 1 through 6.

Respondent testified in her own behalf and presented the testimony of Sandra A. Belton, a friend and owner of an employment agency, and Faith L. Faust, a friend and coworker. Respondent did not introduce any exhibits.

A transcript was provided and subsequent to the hearing counsel for Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. The Final Argument, submitted in writing by counsel for Respondent, was thoroughly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Petitioner, Board of Nursing, was the state agency responsible for the licensing of registered and practical nurses and the regulation of the nursing profession in this state.

   The Respondent, Virginia Ellen Wright, was a licensed practical nurse employed at Gulf Coast Center, (GCC), an institution for the training and rehabilitation of mentally retarded adults located in Ft. Myers, Florida.

   
   

2. On the morning of January 29, 1990, Respondent, who was working the 6:30 AM to 3:00 PM shift in Buchanan and Adams Cottages at GCC, was called to come to the District VIII headquarters to see David Sherwin, the District VIII Inspector General regarding a letter she had written to the parents of a resident, and others. Ms. Wright left GCC at approximately 9:30 AM.

   
   

3. At approximately 12:00 noon, Glenn Green, the Registered Nurse in Adams cottage, who had been assigned to complete the Respondent's 12:00 noon medications, found that certain medications for some of the residents were missing and had apparently been administered. There was, however, no indication on the Medication Administration Record, (MAR), that these medications had been given or wasted.

   
   

4. When Eleise Paquette, the registered nurse in Buchanan cottage that day, who had been given the responsibility to complete the Respondent's 12:00 noon medications in that location, started to do so, she also found that some medications were missing and were neither shown on the MAR as administered nor wasted. Because she was not sure what had been done with the medications, and not wanting to overdose any resident, Ms. Paquette did not administer the noon medications that were not recorded. It was safer for the resident to miss one medication dose than to be overdosed.

5. Ms. Pauley, the LPN in Buchanan cottage on the 2:30 PM to 11:00 PM shift also discovered that some of the medications due to be administered at 4:00 PM were missing and found that there was no MAR entry to show them administered or wasted. She reported this matter to her supervisor, Mr. Stonham who called the Respondent at home to see if she had administered them. Because she had been gone since 9:30 AM and felt, therefore, that his question was silly since she could not have administered them in a timely manner, she sarcastically answered his question in the affirmative. Respondent now categorically denies having administered any of the noon or 4:00 PM medications that day.

   
   

6. On the day in question, Ms. Wright claims, she got the key to the medications at the infirmary and went to Monroe cottage to pass the medications due. She went there first because some of the residents there are school children who need their insulin. When she was finished there, she went to Buchanan and was passing medications there when she was called by Mrs. Blake who advised her she had to be at the District VIII office by 10:00 AM. Before leaving, she then went to Adams to pass medications there and then left. She claims that all medications she gave that day were for the 7:00 to 8:00 AM dosage. When she went down to the District office she took the medication keys with her because she believed she'd be back in time to administer the noon medications. She was relieved of duty at GCC by the Inspector General, however, and immediately barred from the facility.

   
   

7. Medications at GCC are generally kept under lock and key on a medication cart which is kept in a locked room when not being used. According to Ms. Wright, the locks on the medication carts and the storage room in the units are universal. One key fits all. This was not contradicted by the Department. The key for the cart and the room is kept by the LPN charged with the responsibility for administering them. Only the pharmacy is supposed to have the other key to that room. However, according to Mr. Stonham, the keys to the medication carts were, at that time, being stored in a key box at the other end of the hall from the infirmary - not in the same room with the attendant. They were not signed out when taken, and Mr. Stoneham, who worked in the infirmary, would not necessarily see someone taking a key and would not know if a key had been taken unless he looked in that key box. He had not looked that day.

   
   

8. When medications are not being used, they are supposedly kept in a cabinet in the infirmary. The medications in issue here are not the sort of drug that would have a street value on the illegal market.

   
   

9. Ms. Wright was called to the Inspector General's office to discuss a letter she admits to sending out to the parents of a resident and to several state officials that that resident was being sexually abused at GCC. Ms. Wright admits to writing and sending the letters and, in fact, in Circuit Court, pleaded nolo contendere to, and was found guilty of, a charge of knowingly and wilfully making a false report of child abuse. She admits to exercising extremely poor judgement in doing so.

   
   

10. Both individuals who testified for Respondent had prior experience working with her in health care. Both witnesses found Respondent to be very trustworthy and competent. The one witness who recalls Respondent having responsibility for the passing of medications, a registered nurse herself, saw no indication of any difficulty in that regard. In fact, she claims the Respondent is one of the best clinical nurses she has ever seen in many years of nursing practice.

11. Both the allegation regarding the medications and that regarding the false report, if proven, would constitute failure to conform to the minimal standards of acceptable and prevailing nursing practice.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioner has alleged that Respondent, in the two specifics outlined above, is guilty of unprofessional conduct which includes, inter alia, the failure to conform to the minimal standards of acceptable and prevailing nursing practice, and seeks to discipline her license as a practical nurse in Florida. To prevail, Petitioner must establish the Respondent's guilt of all elements of those offenses by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Section 464.018, Florida Statutes, permits discipline of a nursing license when the licensee has demonstrated:

    
    

    (h) Unprofessional conduct, which shall include but not be limited to, any departure from, or the failure to conform to, the min- imal standards of acceptable and prevailing nursing practice, ....

    or

    (d) [has been] found guilty, regardless of adjudication of any of the following offenses:

    7. A violation of Chapter 415 relating to protection from abuse, neglect and exploi- tation.

    
    

15. With regard to the allegation that Respondent administered medications in advance of the time they were due and then failed to properly record their administration, the evidence presented by the Petitioner, in light of the Respondent's unequivocal denial of wrongdoing, does not clearly and convincingly establish she did that with which she is charged. To be sure, she had the key to the medicine carts in her possession and retained that key when she left the center to see the Inspector General. Clearly she had access to the medications, and it was her responsibility to pass them to the residents. However, by the same token, the evidence is also clear that almost anyone had access to the backup key. It was not under constant supervision, and, in addition, the uncontroverted evidence indicates that other individuals who had keys to their medication carts had a key that would open Respondent's cart since, it appears, one key fit all carts and storage rooms. While the evidence does establish that Respondent could have done that which is alleged, it does not, clearly and convincingly, establish that she did it.

    
    

16. On the other hand, Respondent admits to having written the letter containing false allegations of sexual abuse to the pertinent patient's parents as well as to state officials. To file a false report on a matter such as this with officials is bad enough and deserves sanction, but to send a letter falsely alleging sexual abuse to the parents of the supposed victim is not only improper but cruel and unconscionable. Respondent admits to a lack of judgement in her actions in this regard, but it is more than that. The parents presumably are already undergoing stress as a result of their child's condition and

    hospitalization. To exacerbate this stress by falsely alleging that their child is being sexually abused is heinous misconduct and falls far short of acceptable human behavior, much less acceptable and prevailing nursing practice. Filing a false report of sexual abuse is a violation of the provisions of Section 415, Florida Statutes.

    
    

17. Petitioner does not seek to revoke or suspend Respondent's license. It does, however, seek to place the Respondent on probation for a period of two years and to impose an administrative fine of $500.00. Imposition of a fine in this case, in light of the findings and conclusions drawn, would not serve any appropriate purpose. To be sure, Respondent has been found guilty of

misconduct, but probation under supervision by the Board of Nursing would appear to be the most effective and appropriate remedy here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be issued in this case placing the Respondent, Virginia Ellen Wright's, license on probation for a period of one year under such terms and conditions as are prescribed by the Board of Nursing.

RECOMMENDED this 24th day of May, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 24th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7812

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. & 2. Accepted and incorporated herein.

3. & 4. Accepted and incorporated herein.

5. - 7. Accepted and incorporated herein.

8. - 11. Accepted and incorporated herein.

1. - 15. Accepted and incorporated herein.

   1. Accepted and incorporated herein with additional information added.

   2. Rejected as contra to the weight of the evidence.

   3. - 23. Accepted and incorporated herein.

FOR THE RESPONDENT:

No Proposed Findings of Fact submitted. Counsel's Final Argument, submitted subsequent to the hearing, was fully considered in the preparation of this Recommended Order.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joseph Hoffman, Esquire 4388 Palm Beach Blvd.

Ft. Myers, Florida 33905

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Judie Ritter Executive Director Board of Nursing

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 within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 90-007812

Orders for Case No: 90-007812