STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4678

)

LINDA J. AUER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on November 8, 1995. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Laura P. Gaffney, Senior Attorney

Agency for Health Care Administration

General Counsel's Office Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Robert E. Tardif, Jr.

Duncan & Tardif, P.A. Post Office Drawer 249 Ft. Myers, FL 33902

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.

PRELIMINARY STATEMENT

The Administrative Complaint dated March 20, 1995 alleges that Respondent, while working as a registered nurse at East Pointe Hospital, failed to perform accuchecks on patient C. P. and failed to administer IV medications to patient C.P.

The Administrative Complaint alleges that Respondent violated Rule 59S- 8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner, and therefore is guilty of unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes.

By undated Answer Respondent denied the material allegations of the Administrative Complaint.

At the hearing Petitioner called two witnesses and offered into evidence two exhibits, which were both admitted. Respondent called one witness and offered into evidence no exhibits.

Neither party ordered a transcript. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it.

   
   

2. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist.

   
   

3. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems.

   
   

4. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible.

   
   

5. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P.

   
   

6. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications.

   
   

7. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient.

8. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered.

   
   

9. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing.

   
   

10. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

12. Section 464.018(1)(h) states that the Board of Nursing may impose discipline for:

    
    

    Unprofessional conduct, which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal stand- ards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

    
    

13. Rule 59S-8.005(1) provides that the Board of Nursing shall impose disciplinary penalties if a licensee:

    
    

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

    * * *

    2. Administering medications or treatments in negligent manner[.]

    
    

14. If a person is guilty of a violation of Section 464.018(1), Section 464.018(2) authorizes the Board of Nursing to revoke or suspend the license, restrict the licensee's practice, impose an administrative fine of not more than

    $1000 for each separate offense, issue a reprimand, and place the licensee on probation.

15. Rule 59S-8.006(3)(i) provides that the penalty range for unprofessional conduct in the delivery of nursing services is a "fine from $250-

    $1000 plus one year probation with conditions and appropriate CE courses to suspension until proof of safety to practice, followed by probation with conditions."

    
    

16. Rule 59S-8.006(4) identifies aggravating and mitigating circumstances that justify deviation from the penalty guidelines. Factors include the severity of the offense, danger to the public, number of repetitions of offenses, previous disciplinary action, length of time the licensee has practiced, actual damage caused by the violation, deterrent effect of the penalty, financial hardship, and cost of disciplinary proceedings.

    
    

17. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

18. Petitioner proved by clear and convincing evidence that Respondent negligently failed to perform the accuchecks or to make sure that the other nurse performed them and is thereby guilty of unprofessional conduct. Although diagnostic tools, the accuchecks are, broadly speaking, part of the treatment that nurses are obligated to render to patients under their care. However, Petitioner failed to prove by clear and convincing evidence that Respondent failed to administer two doses of IV antibiotic.

    
    

19. There are no aggravating circumstances. Although Respondent was recently licensed as a registered nurse, she had been licensed for several years as a licensed practical nurse and had had no discipline imposed upon her. There is a single offense that resulted in no injury to the patient, and there is no indication that the likelihood of injury, as distinguished from the consequences, was great. There is but a single offense. The financial consequences to Respondent have already been severe, and there is no indication that the cost of the disciplinary proceeding was significant. Petitioned did not hire an outside expert, but called two fact witnesses who, due to their status as nurses, could also testify as experts. Moreover, Respondent had already admitted to one of the witnesses that she had failed to perform the accuchecks.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent.

ENTERED on December 21, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 21st day of December, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-4: adopted or adopted in substance. 5: rejected as irrelevant.

6-12 (first sentence): adopted or adopted in substance.

12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate.

16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance.

19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate.

24: rejected as subordinate.

25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance.

29: rejected as irrelevant.

Rulings on Respondent's Proposed Findings

1-3 (first sentence): adopted or adopted in substance.

3 (first sentence)-4: rejected as subordinate and irrelevant.

5-6: adopted or adopted in substance, although not as to the identify of the other nurse.

7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence.

8-14: rejected as subordinate.

15-18: adopted or adopted in substance.

COPIES FURNISHED:

Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office

Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Robert E. Tardif, Jr. Duncan & Tardif, P.A.

P.O. Drawer 249

Ft. Myers, FL 33902

Linda Goodgame, General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Judie Ritter, Executive Director Board of Nursing

Daniel Building, Room 50

111 East Coastline Drive Jacksonville, FL 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 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: 95-004678

Orders for Case No: 95-004678