STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6187

)

JANETTE S. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 11, 1995 in Miami, Florida.

APPEARANCES

For Petitioner: Natalie Duguid, Esquire

Staff Attorney

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Cornelius Shiver, Esquire

Post Office Box 1542 Miami, Florida 32333

STATEMENT OF THE ISSUES

Whether Respondent, a licensed practical nurse, committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is a licensed practical nurse who was employed by Laposada Convalescent Home and assigned to the night shift that began at approximately 11:00 p.m. on Saturday, January 15, 1994. Based on factual allegations pertaining to events that occurred during that night shift, Petitioner filed the Administrative Complaint that initiated this proceeding. Petitioner charged that Respondent " ... violated Rule 59S7-8.005(1)(e)5., F.A.C., for patient abandonment, and is therefore subject to discipline as provided by Section 464.018(1)(h), Florida Statutes, for unprofessional conduct as defined in the above Rule." Respondent timely requested a formal hearing as to the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. Without objection from Respondent, Petitioner was permitted to amend the Administrative Complaint at the beginning of the formal hearing to reflect that the rule allegedly violated

should have been cited in the Administrative Complaint as Rule 61F7- 8.005(1)(e)4, Florida Administrative Code. This rule has subsequently been transferred and renumbered as Rule 59S-8.005(1)(e)4, Florida Administrative Code.

At the formal hearing, Petitioner presented the testimony of Teresita Garcia (an employee and part owner of Laposada), Dale Abbott (the Director of Nursing at Laposada), Prima Washington (a certified nursing assistant employed by Laposada), and Cathy Bailey (a registered nurse who was accepted as an expert witness pertaining to the standard of conduct for nurses). Petitioner offered six exhibits, each of which was admitted into evidence. Respondent offered one exhibit, which was accepted into evidence. Respondent testified on her own behalf and recalled Teresita Garcia as her only other witness.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Petitioner are adopted in material part by this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Section 20.42, Chapter 455, and Chapter 464, Florida Statutes.

   
   

2. Respondent is a licensed practical nurse in the State of Florida, having been issued license number PN 1091251.

   
   

3. Laposada Convalescent Home, is a 54-bed nursing home located in Miami, Florida.

   
   

4. At the times pertinent to this proceeding, Respondent was employed as a licensed practical nurse by Laposada, Teresita Garcia was a part owner and manager of Laposada, Angela Barba was the nursing home administrator for Laposada, and Prima Washington was employed as a certified nursing assistant by Laposada.

   
   

5. Respondent expected to receive her first paycheck as an employee of Laposada on January 15, 1994. Respondent's understanding was that she was to be compensated at the rate of $11.75 per hour. Respondent tried to obtain her paycheck during the afternoon hours on January 15, 1994. She talked to Ms. Garcia by telephone twice that afternoon and made a special trip to the facility that afternoon with the expectation that her check would be ready for her to pick up. When she came to the facility, her check was not ready and Ms. Garcia was not on the premises. Respondent was told that her check would be ready for her when she came on duty.

   
   

6. Respondent was assigned to the night shift that began at approximately 11:00 p.m. on Saturday, January 15, 1994, and ended at 7:00 a.m. on Sunday, January 16, 1994. Respondent was the only licensed nurse assigned to the night shift. The two other employees assigned to the night shift were Prima Washington and another certified nursing assistant.

   
   

7. Respondent returned to the facility and clocked in for the night shift at approximately 10:45 p.m. on January 15, 1994. She arrived early to pick up her paycheck and to review the patient reports with staff from the outgoing

   shift. After she clocked in, she received her paycheck. Respondent's pay was calculated on a rate of $7.00 per hour, not on the rate of $11.75 per hour that she had expected.

   
   

8. Respondent became upset when she discovered this discrepancy in pay and called Ms. Garcia at her home at approximately 10:50 p.m. Respondent advised Ms. Garcia that she wanted the discrepancy straightened out immediately. After Ms. Garcia stated that the matter could not be resolved until Monday, Respondent advised that she was quitting her employment and demanded that Ms. Garcia locate a replacement for her.

   
   

9. Ms. Garcia made several telephone calls in an attempt to find a replacement for the Respondent, but she could not locate a qualified replacement for Respondent on that Saturday night. The nursing home administrator, Angela Barba, is Ms. Garcia's daughter and resides with Ms. Garcia. Ms. Barba was aware of the conversations Ms. Garcia had with Respondent. Their residence is near Laposada so that they could reach the facility in a matter of minutes.

   
   

10. Ms. Garcia instructed Prima Washington by telephone to inform her immediately if Respondent left the facility.

    
    

11. Respondent clocked out of the facility at 11:30 p.m. At the time she clocked out, there was no other qualified nurse at the facility.

    
    

12. Some of the patients at Laposada were scheduled to take medication at midnight. After Respondent clocked out, there was no one at the facility authorized to administer medication to these patients at midnight.

    
    

13. After she clocked out, Respondent called 911 and went outside of the building to await the arrival of the police. It is not clear what Respondent expected the police to do once they arrived.

    
    

14. Respondent also attempted to contact the abuse registry to advise the Department of Health and Rehabilitative Services (DHRS) as to the situation at Laposada. It is not clear what Respondent expected to accomplish by contacting DHRS, but she received a recorded message to call back during work hours. There was no evidence that DHRS became involved in this incident.

    
    

15. The door Respondent used to exit the facility locks automatically. Consequently, once Respondent went outside of the building, she was locked out of the facility. Prima Washington thought that Respondent had left the premises and gave that information to Ms. Garcia. Respondent remained on the premises, but outside of the building, until Ms. Garcia came to the facility at approximately 2:00 a.m. Ms. Garcia was accompanied by Ms. Barba and by Ms. Barba's husband.

    
    

16. When Ms. Garcia and Ms. Barba arrived at the facility, the Respondent left the premises. There was no further communication between Respondent and either Ms. Garcia or Ms. Barba as to the wage dispute, as to the condition of the patients, or as to whether a replacement nurse had been located.

    
    

17. Respondent did not perform any duties after she clocked out at 11:30

    p.m. She did not file a report as to the condition of her patients before leaving the facility.

18. The patients at Laposada were without a qualified nurse between 11:30

    p.m. on January 15, 1994, and 6:00 a.m. on January 16, 1994, when a nurse reported early for the morning shift.

    
    

19. Respondent left the facility at approximately 2:00 a.m. before a replacement arrived.

    
    

20. The accepted standards of conduct in the nursing profession require that a nurse, who wants to leave patients assigned to her care, wait for a replacement to arrive at the facility, discharge her nursing duties to her patients until the replacement arrives, and report the condition of her patients to her replacement prior to leaving. Respondent failed to meet the foregoing standards of conduct in the nursing profession by abandoning her patients at Laposada.

    
    

21. Exceptions to these standards may arise in emergency circumstances. The facts of this case do not establish an emergency that would justify deviation from the accepted standards of conduct. While Respondent may have a bona fide dispute with the management of Laposada as to the rate of compensation she was to receive, that dispute does not constitute an emergency circumstance and does not justify her action in abandoning her patients.

    
    

22. There was no evidence that Respondent has been previously disciplined by the Petitioner. There was no evidence that any patient was harmed as a result of Respondent's actions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. Pursuant to Section 464.018(2), Florida Statutes, the license of a nurse may be disciplined by the Board of Nursing if that licensee engages in unprofessional misconduct in the practice of nursing. That discipline may include the revocation or suspension of licensure. Section 464.018(1)(h), Florida Statutes, provides, in pertinent part, that:

    
    

    (h) unprofessional conduct, which shall include, but not be limited to, any departure from, or

    the failing to conform to, the minimal standards of acceptable and prevailing nursing practice,

    in which case actual injury need not be established;

    
    

25. Rule 61F7-8.005(1)(e)4, Florida Administrative Code, has been transferred and is now cited as Rule 59S-8.005(1)(e)4, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The Board of Nursing may impose disciplinary penalties upon a determination that a licensee:

       * * *

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

       * * *

       4. Leaving a nursing assignment before properly advising appropriate personnel . . .

26. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989).

    
    

27. Petitioner established by clear and convincing evidence that Respondent engaged in unprofessional conduct in the provision of nursing services by her actions at Laposada during the night shift that began on January 15, 1994. The evidence clearly and convincingly established that Respondent was required to do more than merely inform the nursing home personnel that she was leaving her station and her patients. Consequently, Petitioner established that Respondent violated Section 464.018(1)(h), Florida Statutes.

    
    

28. Rule 59S-8.006(3)(i), Florida Administrative Code, provides disciplinary guidelines pertinent to this proceeding. For the violation found in this proceeding, the recommended penalty ranges from the imposition of a fine of not less than $250.00 and not more than $1,000.00. The disciplinary guidelines also include the imposition of probation for one year with conditions and appropriate continuing education courses. In the alternative, the Petitioner may order the suspension of licensure until proof that the licensee is able to safely practice, with the suspension to be followed by probation with conditions. There was no showing in this proceeding that the Respondent is unable to safely practice the profession of nursing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds the Respondent

guilty of unprofessional conduct in the provision of nursing services as alleged

in the Administrative Complaint. It is further recommended that the Petitioner impose an Administrative Fine against Respondent in the amount of $250.00 and place her licensure on probation for a period of one year. The conditions of her probation should require that she complete an appropriate continuing education course dealing with her professional responsibilities for the care of patients.

DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 29th day of June, 1995.

COPIES FURNISHED:

Natalie Duguid, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Cornelius Shiver, Esquire Post Office Box 1542 Miami, Florida 33233

Judie Ritter, Executive Director Board of Nursing

Daniel Building, Room 50

111 East Coastline Drive Jacksonville, Florida 32202

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

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 ten 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: 94-006187

Orders for Case No: 94-006187