STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5042

)

GAIL ANN SCHAEFER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing on July 11, 1992, in Sarasota, Florida.

APPEARANCES

For Petitioner: Roberta Fenner, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Timothy A. Freeland, Esquire

Post Office Box 3944 Sarasota, Florida 34230

STATEMENT OF THE ISSUES

The issue to be decided is whether the Respondent's license as a practical nurse in the State of Florida should be revoked, suspended or otherwise disciplined.

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 23, 1991, and filed with the Division of Administrative Hearings on August 8, 1991, the Respondent is charged with violating: (a) Section 464.018(1)(f), Florida Statutes, for making or filing a false report or record which the licensee knows to be false;

(b) Section 464.018(1)(b), Florida Statutes, for unprofessional conduct, including but not limited to, the minimal standard of acceptable and prevailing nursing practice; (c) Section 464.018(1)( i), Florida Statutes, for engaging or attempting to engage in the possession, sale or distribution of controlled substances as set out in Chapter 893, Florida Statutes, for any other than legitimate purposes; and (d) Section 464.018(1)(j), Florida Statutes, for being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics or chemicals or any other type of material or as a result of any mental or physical condition. As grounds

therefor, it is alleged that: (a) Respondent, during the month of May 1990, acted strange, including telephoning other employees of the hospital, while Respondent was off duty, and during the conversation, the Respondent appeared disoriented and exhibited slurred speech; (b) on or about July 1, 1990, that Respondent called in twice within a period of two hours to indicate her intended absence for the following day (apparently having forgotten the first call), and during these conversations, the Respondent's speech was slurred and her conversation rambled; and (c) on or about July 27, 1990, Respondent submitted a prescription for Xanax, 0.5 mg. - 150 count from John R. Picken, M.D., to Doctor's Hospital Pharmacy, which was suspected of having the count altered from

50 count to 150 count.

The Respondent disputed the allegation in her Election of Rights form and petitioned for a formal hearing pursuant to Section 120.57(1), Florida Statutes, before a Hearing Officer appointed by the Division of Administrative Hearings.

The Petitioner referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the proceeding ensued.

At the hearing, the Petitioner presented the testimony of Lon Estes; Larry

E. Blair; John R. Picken, M.D.; June Helms, R. Ph.; Tracie Burchette, R.N.; and Cameron McLean. Petitioner's exhibits 1 through 6 were received as evidence in this case. Respondent testified in her own behalf and presented the testimony of Daniel Guajardo. Respondent's exhibit 2 was received as evidence in this case. Respondent's exhibit 1 was rejected.

A transcript of this proceeding was filed on June 24, 1991. Petitioner filed an unopposed Motion For Enlargement Of Time To File Proposed Recommended Order on July 7, 1991. The motion was granted extending the time for filing Proposed Recommended Orders until 5:00 p.m., July 20, 1992, with the understanding that the time constraint imposed for issuance of a Recommended Order by Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 22I-6.031(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders with the Division of Administrative Hearings under the extended time frame. A ruling on each proposed findings of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the testimony of the witnesses and the documentary evidence received as evidence in this case, the following relevant findings of fact are made.

1. At all times material to this proceeding, the Respondent was licensed as a practical nurse in the State of Florida, holding license number 0947131.

   
   

2. Between February 19, 1990, and July 13, 1990, Respondent was employed by Doctor's Hospital of Sarasota, Sarasota, Florida, as a medical/surgical nurse.

   
   

3. On July 1, 1990, Respondent called in at 1:30 p.m. (1330 hours) to indicate her intended absence from her 3-11 shift for the next day. Respondent called in again at 3:15 p.m. (1515 hours), apparently having forgotten her previous call-in. Respondent called in a third time at 6:00 p.m. (1800 hours). During these conversations with Tracie Burchette, Administrative Nurse Supervisor, the Respondent's speech appeared to be slurred, her conversation rambled and she appeared to be disoriented. Respondent advised Burchette that

   she had a vaginal irritation and a yeast infection, and was taking Tylenol #3 for pain. Burchette could only speculate as to why Respondent called three times about not coming to work the next day, and as to why her speech appeared to be slurred, or why her conversation rambled, or whey she appeared to be disoriented.

   
   

4. On July 27, 1990, Respondent had an appointment with Dr. John Picken, and while in his office in Sarasota, Florida, for the appointment, the Respondent and Dr. Picken became embroiled in a heated argument concerning her treatment. Basically, Dr. Picken wanted to "wean" Respondent from her dependency on Xanax which Dr. Picken had been prescribing for her regularly since January 31, 1990. Both Dr. Picken and Respondent were of the opinion that because of her constant use of Xanax, the Respondent had become dependent on the drug, possibly addicted. The argument stemmed from how Respondent was to be "weaned", so to speak, from Xanax. The Respondent and Dr. Picken disagreed on how many Xanax pills Dr. Picken was going to prescribe for the Respondent. The argument became so heated that Dr. Picken advised Respondent that he wanted to end the patient-doctor relationship. Both Respondent and Dr. Picken were both very upset at the time Dr. Picken wrote the prescription for Xanax for the Respondent.

   
   

5. Respondent could get Xanax prescribed by Dr. Picken whenever she needed them based on Dr. Picken's records and the number he prescribed each time. From January 31, 1990, through August 16, 1990, Dr. Picken prescribed approximately 730 0.5 mg. Xanax tablets for Respondent. Thirty of these tablets were prescribed over the telephone by Dr. Picken some 20 days after he had become so upset with Respondent that he wanted to end the patient-doctor relationship, and Respondent had been accused of altering the prescription given to her by Dr.Picken on July 27,1990.

   
   

6. After leaving Dr. Picken's office on July 27, 1990, the Respondent presented the prescription to June Helms, a pharmacist with Doctor's Hospital. Helms informed Respondent that the pharmacy did not have enough Xanax pills on hand to fill the prescription. The prescription called for 150 70.5 mg. Xanax pills. Although Helms looked at the number 150 on the prescription at this time, she did not notice anything to make her suspect that the prescription had been altered. It was not until later, after another pharmacist, Jay Swick, had advised Helms that Respondent no longer worked for the hospital and the prescription could not be filled, that Helms noticed what she considered to be an alteration. It appeared to Helms that a different kind of ink had been used to write a "1" in front of the "50" to make it read "150" tablets. The original of the prescription was not offered into evidence as it was unavailable and therefore, no independent examination could be made to determine if in fact the prescription had been altered by someone placing a "1" in front of the "50" to change the count to "150." At the time Respondent presented the prescription on July 27, 1990 it was her thinking that even though she no longer worked for Doctor's Hospital that her insurance was still in effect.

   
   

7. Helms testified that Jay Swick called Dr. Picken and that she was told by Jay Swick that Dr. Picken confirmed the count was "50" rather than "150." However, Dr. Picken's records do not reflect anyone from the hospital pharmacy calling him regarding the count on that prescription, nor did Dr. Picken have any independent recollection of anyone from the hospital pharmacy calling him in that regard. Although Dr. Picken may fail to record a conversation such as this as is evidenced by his failure to record the number of Xanax tablets prescribed for Respondent on several occasions, it is unlikely that Dr. Picken would forget such an important telephone call from the hospital pharmacy. In

   fact, Dr. Picken's testimony was that the first he had heard of the alteration was when Respondent's attorney called him a couple or three weeks before this hearing to request copies of his office records for the Respondent.

   
   

8. On several occasions, Dr. Picken prescribed 100, 0.5 mg. Xanax tablets for Respondent because this constituted a month's supply. However, there was no prohibition to prescribing 150 Xanax tablets at one time on a prescription.

   
   

9. Respondent denies that she had altered the July 27, 1990, prescription by placing a "1" in front of the "50" which resulted in the prescription reading

   150 0.5 mg. Xanax tables rather than 50.

   
   

10. Furthermore, it was the Respondent's testimony that Dr. Picken wrote more than one prescription for Xanax for her on July 27, 1990 because he became so frustrated with her, and each time he changed his mind about the number of Xanax tablets he was prescribing. In this regard, Dr. Picken's testimony supports Respondent in that he testified that in the beginning he intended not to prescribe any Xanax for Respondent but changed his mind and prescribed 50 tables.

    
    

11. Notwithstanding the testimony of Dr. Picken that he prescribed only 50 Xanax tablets on the prescription given to Respondent on July 27, 1990, which was presented to Helms at Doctor's Hospital Pharmacy on the same day or the testimony of Helms that the prescription appeared to be altered, there is insufficient evidence to establish facts to show that Respondent did in fact alter the prescriptions given to her by Dr. Picken on July 27, 1990, by placing a "1" in front of a "50" and thereby increasing the number from 50 to 150. The more logical answer to why the prescription appeared to be altered is that in all the confusion on July 27, 1990 Dr. Picken change the number, and failed to make a correction in his records.

    
    

12. There was no reason for Respondent to alter the prescription when the record shows that she was able to get Dr. Picken to prescribe what she wanted anyway. This is supported by the fact that Dr. Picken even prescribed Xanax for Respondent on August 16, 1990, after his confrontation with Respondent on July 27, 1990, and after she was alleged to have altered the July 27, 1990, prescription.

    
    

13. Although there was testimony that Xanax was a mild tranquilizer and a Class IV drug, there was no evidence presented to show that Xanax is the brand name for a drug containing Alprazolam that is defined under Section 893.03(4) Florida Statutes, as a Scheduled IV, controlled substance.

    
    

14. There was no evidence that Respondent had ever gone to work at Doctor's Hospital or any hospital while under the influence of alcohol or drugs, specifically Xanax.

    
    

15. There was insufficient evidence to show that Respondent had failed to practice nursing with reasonable skill and safety to patients or that she had exhibited unprofessional conduct which resulted in her departure from, or her failure to conform to, minimal standard of acceptable and prevailing nursing practices.

    
    

16. Respondent admitted that she was addicted to (dependent on) Xanax and has been and was presently being treated at Manatee Glens Alcoholic and Drug Services, a rehabilitation center.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

18. Section 464.018(2), Florida Statutes, empowers the Board to revoke, suspend or otherwise discipline the license of a nurse who is found guilty of any one of the acts enumerated in Section 464.018(1), Florida Statutes.

    
    

19. Respondent is charged with violating Section 464.018(1)(f), (h), (i) and (j), Florida Statutes, which provides, in pertinent part, as follows:

    
    

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

       * * *

       (f) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file

       a report or record required by state or federal 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. (Emphasis supplied)

       * * *

       1. 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 established.

       2. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for

          any other than legitimate purposes. (Emphasis added)

       3. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition....

       
       

20. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987).

    
    

21. Clearly, the evidence presented by the Petitioner fails to rise to the level of "clear and convincing," particular in light of the lack of credibility of Dr. Picken's testimony. Therefore, Petitioner has failed to meet its burden. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, accordingly,

RECOMMENDED:

That the Board enter a final order dismissing the Administrative Complaint filed herein in its entirety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of July 1992.

WILLIAM R. CAVE

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 28th day of July 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis in the Findings of Fact which so adopts the Petitioner's proposed finding(s) of fact: 1 (1); 2 (2); 4 (3); 5( 7); 9-10 (6); and 11-12 (15).

   
   

2. Proposed findings of fact 3, 6, 7, and 8 are rejected as not being supported by competent, substantial evidence in the record.

   
   

3. Proposed finding of fact 13 is a conclusion that is not relevant here because the facts upon which the conclusion is reached are not supported by competent, substantial evidence in the record.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. The Respondents proposed findings of fact begin with paragraph 2.

   
   

2. Adopted in Finding of Fact 4 in substance as modified in the Recommended Order.

3. Adopted in Findings of Fact 4 and 5 in substance as modified in the Recommended Order.

4-6. Adopted in Findings of Fact 5, 7, and 6, respectively in substance as modified in the Recommended Order.

7-12. Proposed Findings of Fact 7 through 12 are a mixture of restatement of testimony, argument and proposed findings of fact. Where there are proposed findings of fact they have been adopted in the Findings of Fact in substance as modified in the Recommended Order.

COPIES FURNISHED:

Roberta Fenner, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Timothy A. Freeland, Esquire Post Office Box 3944 Sarasota, Florida 34230

Judie Ritter Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 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 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.

Docket for Case No: 91-005042

Orders for Case No: 91-005042