STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2808

)

KAREN LOUISE DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Punta Gorda, Florida

on August 9, 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: Was not present and was not

represented by counsel.

STATEMENT OF THE ISSUES

The issue for consideration in this case was whether the Respondent's license as registered nurse in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

In a two Count Administrative Complaint dated January 9, 1990, Petitioner alleged that Respondent herein, Karen L. Davis, had departed from the minimal standards of nursing practice, in violation of Section 464.018(1)(h), and had practiced nursingwithout an active license, in violation of Section 464.018(1)(l), Florida Statutes.

Through counsel, on January 25, 1990, Respondent requested a formal hearing, and by letter dated May 7, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. The undersigned, by Notice of Hearing dated May 29, 1991, set the matter for hearing in Punta Gorda on August 9, 1990 after Petitioner responded to the Initial Order filed herein and on July 26, 1991, granted Respondent's counsel permission to withdraw from representation.

The undersigned delayed convening the hearing for 30 minutes beyond the noticed commencement time in the event the Respondent had been unavoidably delayed. She did not appear, however, nor was she represented by counsel, and the undersigned efforts to determine a local phone number for her from Punta Gorda information was not successful. As a result, the hearing was convened in her absence.

At the hearing, Petitioner presented the testimony of Francine Ross, Director of Medical Records at Sarasota Memorial Hospital; Tina Maultsby, a registered nurse on staff at Sarasota Memorial Hospital; and Iris Rosella Graber-Helmuth, manager and Head Nurse of the obstetrics service at Sarasota Memorial Hospital and an expert in labor and delivery. Petitioner also introduced Petitioner's Exhibits 1 through 5. Respondent made no presentation.

A transcript was furnished and subsequent to the hearing,Petitioner submitted Proposed Findings of Fact which have been incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the matters herein, the Petitioner, Board of Nursing, (Board), was the state agency responsible for the licensing and regulation of the nursing profession in Florida. The Respondent, Karen Louise Davis, was a registered nurse in this state except that her license, during the period August 2, 1987 through June 12, 1989 had lapsed. It was subsequently reissued on July 1, 1989 and was scheduled to expire on March 31, 1991.

   
   

2. On April 11, 1989, C.S. was a patient on the obstetrical service at Sarasota Memorial Hospital and Respondent was assigned as one of her nurses. On this date, the Respondent informed Tina Maultsby, also a staff nurse on the obstetrical service at that hospital at the time, that she had reduced the ordered dosage of a particular medication, Retodrine, without the order of the patient's physician or any other doctor. At this time, the patient, who had been admitted for a pre-term labor, was receiving the medication by order of her physician that date and was to receive it according to a pre-printed protocol in an attempt to stop the labor. According to the doctor's orders, if the medication controlled the contractions, the patient was to get further treatment. These orders were acknowledged by the Respondent.

   
   

3. The patient's hospital records reflect she was toreceive the medication at a certain dosage which , before Respondent came on duty that day, was increased from .2 to .225 mg. When this was done, the contractions stopped. However, when Respondent came on duty, without authority, she reduced the dosage to .175 mg, and the contractions started again. When Ms. Maultsby came on duty and noticed this, she notified the patient's physician who instructed her to increase the dosage to .300 mg. but this did not stop the contractions. He finally instructed her to change medications. The doctor was not aware, until told by Ms. Maultsby, that the Respondent had reduced the dosage.

   
   

4. The hospital's protocol for this medication calls for preliminary tests to insure the patient is having premature labor. Once that is determined, it calls for starting Retodrine at a certain level and increasing it to a certain point. Under the terms of the protocol, the attending physician is to be notified if the contraction s stop, but there is no provision therein for reducing the dosage without physician orders.

5. When Ms. Maultsby found out what had happened, she notified Ms. Graber- Helmuth, the Head Nurse of the obstetrics service who asked Respondent about the situation. Respondent readily admitted she had reduced the dosage but claimed she did so because the patient's pulse rate had gone up and she was nauseous. She claimed she did not call the physician because it was night and she didn't want to wake him.

   
   

6. Ms. Graber-Helmuth has worked in the labor and delivery end of obstetrics all her career of over 20 years innursing. She has been qualified as an expert in labor and delivery in either court or in a hearing of this nature at least three times. In her opinion, the care the patient received here from Respondent was less than optimum. She believes the Respondent's conduct failed to conform to acceptable standards and by failing to conform to the requirements of the protocol in place at the time, jeopardized her patient. It is so found.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. In the Administrative Complaint filed herein, Petitioner

   seeks to discipline Respondent's license in Florida as a registered nurse because, it alleges, by changing a prescribed dose of a prescribed medication without proper authority from the attending or another physician, she is guilty of unprofessional conduct, here consisting of a failure to conform to the minimal standards of acceptable and prevailing nursing practice, in violation of Section 464.018(1)(h), Florida Statutes. It also alleges that she practiced nursing without holding an active license to do so, in violation of Section 464.018(1)(l), Florida Statutes.

   
   

9. The burden here is on the Petitioner to establish Respondent's guilt of the allegations in this case by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987.

   
   

10. The uncontroverted evidence of record here clearlyestablished that on the date as alleged in the Administrative Complaint, the Respondent admittedly reduced the dosage of a patient's medication without authority, and the expert testimony establishes that this constituted a departure from the minimal standards of acceptable and prevailing nursing practice. The evidence also establishes that at the time in question, she was practicing nursing with a lapsed license. Both incidents are violations of the statute, Section 464,018(1), Florida Statutes, which permits the discipline of the license of a nurse who is guilty of:

    
    

    1. Unprofessional conduct which shall in- clude but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and pre- vailing nursing practice,

       and

       1. Knowingly violating any provision of this chapter, a rule of the Board or Department,

          or a lawful order of the Board or Department previously entered ....

11. Section 464,016, Florida Statutes, makes it mandatory to hold an active license in order to practice nursing in this state.

    
    

12. There was no evidence presented that Respondent has been the subject of any other disciplinary proceedings by the Board or any other agency in Florida or elsewhere. However, his misconduct here, in without authority, changing a doctor's medication order and thereafter not notifying that doctor of her actions is so egregious as to mandate serious action. Respondent did not appear to present her side of the issue or any matters in extenuation or mitigation. While her failure to appear is not considered asevidence of misconduct, it deprives the undersigned of the opportunity to consider any opposing point of view, and, therefore, the recommendation here is based solely on the evidence presented by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, therefore: it is, recommended that a Final Order be issued suspending Respondent, Karen Louise Davis' license in Florida as a registered nurse for a period of one year, to be followed by a period of probation for an additional two years, under such terms and conditions as prescribed by the Board of Nursing.

RECOMMENDED in Tallahassee, Florida this 17th day of September, 1991.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1991.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Karen Lousie Davis 1136 Van Buren

Port Charlotte, Florida 33952

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 EXCEPTI0NS

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 thedeadline 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: 91-002808

Orders for Case No: 91-002808