STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1775

)

DELORES GROCHOWSKI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 30, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Roberta Fenner, Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Christopher Knox, Esquire

4801 S. University Drive, #302 W. P. O. Box 291207

Davie, Florida 33329-1207 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Second Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

Petitioner filed a Second Amended Administrative Complaint alleging that Respondent had violated various statutes and rules regulating her conduct as a licensed practical nurse, and Respondent timely requested a formal hearing regarding the allegations contained within that Second Amended Administrative Complaint. Thereafter, this cause was transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Cynthia L. Gamache, Mae Myers, and Diane Mears. The Respondent testified on her own behalf and presented the testimony of Denise E. May. Additionally, Petitioner's Exhibits numbered 1 and

2 were admitted in evidence.

Although both parties requested leave to file post hearing proposed findings of fact in the form of proposed recommended orders, only Respondent did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041.

   
   

2. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida.

   
   

3. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift.

   
   

4. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties.

   
   

5. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator.

   
   

6. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts.

   
   

7. Hospital personnel then went through Respondent's patients' charts and found some "errors."

   
   

8. A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation.

   
   

9. Respondent has had no prior or subsequent administrative complaints filed against her.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

11. The Second Amended Administrative Complaint filed against Respondent contains five Counts. Count One alleges that Respondent had a syringe taped to her chest but that Broward General Medical Center's policy requires a nurse to bring the I.V. box to the patient's room. Count One charges, therefore, that Respondent violated Section 464.018(1)(h), Florida Statutes, which prohibits:

    
    

    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 practice, in which case actual injury need not be estab- lished.

    
    

12. Petitioner has failed to meet its burden of proof as to Count One. First, Respondent did not have a syringe taped to her chest. Second, Petitioner failed to establish Broward General Medical Center's policy regarding the carrying of syringes in an I.V. box. The witnesses in this proceeding disagreed as to whether a syringe should be carried in an I.V. box and whether the policy of using I.V. boxes was in place in 1989. There was additional conflicting testimony over whether Broward General permitted licensed practical nurses to flush I.V.s on the date in question; however, there is no allegation and no evidence was offered that Respondent in fact did flush an I.V. Whether Respondent violated a policy of Broward General Medical Center is irrelevant unless she also violated a statute or a rule of the Board of Nursing in such conduct. No evidence was presented that Respondent violated a statute or a rule in tucking the unopened, unused syringe in her bra, although witnesses did testify that it was inappropriate for Respondent to do so because it "didn't look good."

    
    

13. Counts Two through Five contain allegations involving charting errors or deficiencies. Count Two alleges that on July 31, 1989, Respondent charted that patient F. A.'s Foley catheter was draining but that patient F. A. did not have a Foley catheter. Count Two alleges, therefore, that Respondent violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct and Section 464.018(1)(f), Florida Statutes, by making or filing a false report or record which the licensee knows to be false. Count Two further alleges that Respondent violated Rule 21O-10.005(1)(e)1., Florida Administrative Code, by committing unprofessional conduct which includes inaccurate recording or falsifying or altering patient records. Petitioner presented no competent evidence that patient F. A. did not have a Foley catheter. Accordingly, Petitioner has failed to prove that Respondent made either a false or inaccurate entry in patient F. A.'s chart.

    
    

14. Count Three alleges that Respondent violated Section 464.018(1)(h), Florida Statutes, prohibiting unprofessional conduct by failing to chart urinary outputs and/or colostomy drainage for patients R. D., R. V., and A. M., and by failing to chart an I.V. administration for patient A. S. on the respective patients' nursing care flow sheets on approximately July 30-31, 1989.

    Petitioner has failed to prove the allegations contained in Count Three. No competent evidence was presented that Respondent was required to chart urinary

    outputs and/or colostomy drainage for those patients or that patient A. S. had been ordered to receive an I.V. administration. Since there was no evidence that those patients were to receive those services, there can be no determination that Respondent failed to perform services required of her. Even had Petitioner offered competent evidence that the outputs and drainage of those patients were to be recorded or that an I.V. was to be administered or was administered to patient A. S., Petitioner would still fail in its burden of proof regarding Count Three. The evidence is uncontroverted that Respondent was interrupted while she was completing patient charts, taken to a nearby office, and then ordered off the floor. Respondent was prevented by personnel at Broward General Medical Center from completing patient charts that she was working on at the time.

    
    

15. Count IV alleges that Respondent violated Section 464.018(1)(h), Florida Statutes, by charting patient assessments that were not in keeping with either medical diagnosis of the patient's condition or with medication treatments being administered to the patients. The two instances set forth in the Second Amended Administrative Complaint are as follows: (1) Respondent charted on July 31, 1989, patient R. V.'s dressing on the left hip was dry and intact but the dressing was in fact, on the patient's right hip; and (2) Respondent charted on July 30, 1989, that patient M. S.'s arm was elevated in a half-cast, but the patient's arm was not in a half-cast, but rather a sling and swathe. Respondent has failed to prove the allegations contained in Count IV. Petitioner offered no evidence regarding the medical diagnosis of either patient's condition and offered no evidence regarding medication treatments being administered to those patients. Respondent admitted that on one of the shifts she charted that the dressing was on patient R. V.'s left hip and on the other shift she charted that the dressing was on patient R. V.'s right hip. It is, therefore, clear that one of those entries was inaccurate, but no evidence was offered by either party as to which of the entries was inaccurate. Further, there is no evidence that making one inaccurate entry on one patient's chart constitutes unprofessional conduct or is even a departure from acceptable and prevailing nursing practice.

    
    

16. As to Respondent's entry that patient M. S.'s arm was elevated in a half-cast rather than in a sling and swathe, no competent evidence was offered as to whether that patient's arm was in a half-cast or in a sling and swathe. The hospital records reflect that another nurse also entered in that patient's record that the patient's arm was in a half-cast. In short, Petitioner offered no competent evidence that the entry was incorrect.

    
    

17. Count V alleges that on July 30, 1989, Respondent left a seven hour gap containing no charting on patient N. L.'s condition in that patient's nurse's notes and failed to chart in patient A. M.'s nurse's notes after 9:00

    p.m. although scheduled to work until 11:00 p.m., thereby violating Section 464.018(1)(h), Florida Statutes. Petitioner has failed to meet its burden of proof as to Count V. Petitioner offered no evidence regarding the frequency required for the entry of notations in nurse's notes. Accordingly, Petitioner failed to prove that Respondent's notations were less frequent than required by law. Further, although Count V alleges that Respondent was scheduled to work until 11:00 p.m., the remainder of the Second Amended Administrative Complaint and the unrebutted evidence reveal that Respondent was scheduled to work until 7:00 a.m. the following morning and was in the process of charting and entering nurse's notes when Broward General personnel prevented her from doing so.

    
    

18. The only direct evidence that Petitioner offered to prove its allegations of charting errors and deficiencies was the testimony of the nurse

    who reported Respondent for having a syringe taped to her chest who said she made some notes and those notes were then admitted in evidence. No testimony was elicited by either party regarding the content of those notes, and those notes appear to also contain writing by another unidentified person. Even if those notes lost their hearsay nature so as to be considered competent evidence, they are simply notes alleging that errors were made and do not prove that any of the entries made were in error or in violation of any statute or rule regulating Respondent's conduct as a licensed practical nurse. For example, although that nurse's notes regarding Respondent's notes indicate "no I & O" re patient L., there is no evidence that patient L. was required to have his or her input and output recorded.

    
    

19. Excerpts from different patient's records were admitted in evidence. No physician's orders accompany any of those records, and the parties stipulated that the dates stamped on those records by Broward General Medical Center are incorrect. Petitioner presented no testimony regarding the contents of those hearsay documents.

    
    

20. By Initial Order entered March 26, 1991, the parties were advised that they would be precluded from engaging in further discovery commencing five days before the date of the final hearing. By Order entered April 22, 1991, the parties were required to file a prehearing stipulation containing certain stipulations and disclosing witnesses and exhibits to be offered at the final hearing. That Order further advised the parties that their failure to disclose witnesses or exhibits could result in the exclusion of such evidence. With two working days left before the final hearing Petitioner's attorney advised Respondent's attorney that it intended to present an "expert" witness. At the final hearing Respondent objected to that witness testifying on the basis that the witness had not been previously disclosed and that Respondent would be unfairly prejudiced. Respondent's objection was sustained, and the previously- undisclosed witness was precluded from testifying. Although Petitioner was given an opportunity to proffer that witness's testimony, Petitioner failed to include in that proffer any identification of the witness or the witness's credentials and thus failed to even proffer that the witness was an expert and therefore qualified to render opinions. Accordingly, Petitioner failed not only to prove the truth of the allegations against Respondent but failed to prove that any of those allegations if true violated any statute or rule regulating the conduct of Respondent as a licensed practical nurse.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice.

RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida.

LINDA M. RIGOT

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 18th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775

1. Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel.

   
   

3. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate.

COPIES FURNISHED:

Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Judie Ritter, Executive Director Department of Professional

Regulation/Board of Nursing Daniel Building, Room 50

111 East Coastline Drive Jacksonville, Florida 32202

Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Christopher Knox, Esquire

4801 S. University Drive, #302 W.

1. Box 291207

   Davie, Florida 33329-1207

   
   

   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 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.

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA BOARD OF NURSING

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. DPR CASE NO.: 89-007492

   DOAH CASE NO.: 91-1775

   
   

   DELORES GROCHOWSKI,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   Respondent Delores Grochowski holds Florida license number LPN 0867041 as a licensed practical nurse. Petitioner filed a Second Amended Complaint seeking disciplinary action against the licensee.

   
   

   Respondent requested and received a formal hearing before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

   
   

   The Board of Nursing met on February 13, 1992, in Tallahassee, Florida, to take final agency action. The Board has reviewed the entire record supplied in the case. The Petitioner filed exceptions to the Recommended Order to which Respondent filed a written response. Neither Respondent nor her counsel were present at the Board meeting.

   
   

   RULINGS ON EXCEPTIONS

   
   

   1. The Board accepts Petitioner's First and Second Exceptions to the extent that there is competent substantial evidence as found by the hearing officer in paragraphs four and five of the Findings of Fact in the Recommended Order that Respondent was carrying a syringe under her shirt. Further there is competent substantial evidence appearing in the transcript at pages 24, 25, 32, 33, 36,46 and 54 that the proper hospital procedure was to carry a syringe in one's hand or in an IV box, not in one's bra as Respondent admitted doing. Therefore, the conclusion of law on page five of the recommended order is rejected to the extent that carrying a syringe tucked inside a bra is unprofessional conduct.

      
      

   2. The Board rejects Exception number Three. The ruling of the Hearing Officer was within the discretion of the trier of fact and the Board finds no abuse of discretion.

FINDINGS OF FACT

The Board accepts and adopts the Findings of Fact in paragraphs 1-9 of the Recommended Order, as amended by Rulings on Exceptions.

CONCLUSIONS OF LAW

The Board accepts the Conclusions of Law in the Recommended Order, as amended by Rulings on Exceptions.

DISPOSITION

The Board finds the Respondent in violation of one count of unprofessional conduct, contrary to Section 464.018(1)(h), Florida Statutes.

The Board reprimands the license of Delores Grochowski.

The licensee shall enroll in and successfully complete courses in administration of medication within six months. This shall be in addition to other normally required continuing education courses. Home study will not be accepted. Verification of course content and course completion must be submitted to the Board's probation supervisor within six months from the date of this order.

The licensee shall pay an administrative fine in the amount of two hundred fifty dollars ($250) within sixty (60) days.

Pursuant to Section 120.68, Florida Statutes, the parties are hereby notified they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.

Done and Ordered this 31st day of March ,1992.

BOARD OF NURSING

Sandra Darling, ORNA, ARNP Vice 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 CHRISTOPHER KNOX, Post Office Box 291207, Davie, Florida 33329-1207, DELORES GROCHOWSKI, 5875 Southwest 41st Street #C-4, Davie, Florida 33314, and by interoffice mail to ROBERTA FENNER, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550, this 31st day of

March , 1992.

Judie K. Ritter Executive Director

Docket for Case No: 91-001775

Orders for Case No: 91-001775