STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3889

)

DREMA G. M. SERVOSS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Craig A McCarthy, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

For the Respondent: Cynthia A. Mikos, Esquire

A.S. Weekley, Jr., M.D., Esquire Holland & Knight, LLP

510 Vonderburg Drive Suite 3005

Brandon, Florida 33511 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent’s license as a registered nurse in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By a five-count Administrative Complaint dated June 21, 1997, the Agency for Health Care Administration charged Respondent with making or filing a false report or record; with failing to conform to the minimal acceptable standards of prevailing nursing practice; with falsely representing facts on a patient record; by inaccurately recording or altering a patient record or nursing progress record; and with knowingly violating a rule of the Board of Nursing or a provision of Chapter 464, Florida Statutes, all in violation of provisions of Section 464.018(1), Florida Statutes. Respondent thereafter disputed the allegations of fact and demanded formal hearing, and this hearing ensued.

At the hearing, Petitioner presented the testimony of B.K., a former patient of the Respondent; David C. Berry, an investigator for the Agency; and Joyce L. Kovacs, a clinical home care supervisor; Denise E. Tracy, a scheduler; Angela S. Tisdale, a registered nurse case manager; and Barbara Bilgutay, director of performance services; all with Respondent’s former employer, Community Home Care Professionals. Petitioner also introduced Petitioner’s Exhibits 1 through 7.

Respondent testified in her own behalf and presented the testimony of Kathleen C. Burcham, a health care consultant and expert in home health care nursing; Deborah Sue Adams Butcher, a registered nurse and expert in home health care nursing; and

Christopher J. Servoss, Respondent’s husband. Respondent also introduced Respondent’s Exhibits A through F. The undersigned also officially recognized all pertinent provisions of Chapter 464, Florida Statutes, and the Rules of the Agency for Health Care Administration, and the licensing history of the Respondent.

A transcript of the proceedings was provided. Subsequent to the receipt thereof by the undersigned, counsel for both parties submitted Proposed Findings of Fact and written argument which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Board of Nursing, was the state agency responsible for the licensing of nurses and the regulation of the nursing profession in Florida. Respondent, Drema G. M. Servoss, was licensed as a registered nurse holding license number 1918522.

2. Ms. Servoss holds both an Associate and a Bachelor’s degree in Nursing from the University of Tampa, and is currently completing work on a Master’s degree in family nurse practice, also from the University of Tampa. For several years, she worked weekends at University General Hospital (University), in Tampa, in special care nursing. When she started back to school to earn her Master’s degree, in September 1995, she transferred to the home care unit at University, then identified as Community Home Care Professionals, (CHCP).

3. For the one year leading up to the job change that led to the incident in question, Ms. Servoss worked at CHCP as the weekend scheduler of home health personnel, but made no home visits herself. Finally, because she had worked every weekend for the preceding five years, and wanted to spend more time with her family, and since the remaining classes she needed for her Master’s degree were offered primarily at night, she applied for a weekday field nurse position. She was selected for the position.

4. Though the normal orientation period for new home health nurses normally lasted for approximately two weeks, depending on staffing needs, a part of which included a preceptorship, Ms. Servoss was provided with only four days of orientation, of which two days consisted of following another nurse around. On the Friday before Labor Day, 1996, she was given an assignment of six patients to see starting on Monday, September 2, 1996, which was Labor Day. However, on the Sunday evening preceding Labor Day, when she returned from a weekend trip, Respondent found a message waiting on her answering machine advising her of three more patients to be added to her list.

5. Feeling that nine patients were too many for a new home health nurse, she attempted to contact Ms. Tisdale, her supervisor, to inform her of that and to also advise that Respondent’s husband, Christopher, also a registered nurse and a part-time home health nurse for CHCP, might see some of the nine

   patients on Labor Day. Ms. Servoss also tried to reach Ms. Watkins, the weekend scheduler, but neither could be reached. Respondent left word for Ms. Watkins to please call her back, but she did not do so, and Watkins did not have a pager through which she could be reached.

6. Respondent’s first patient on September 2, 1997, was P.W., who was to receive medication through an IV medport three times a day. Respondent’s visit was scheduled for 7:00 a.m., and the visit included changing the needle in the medport. She did not know how to do this, so she called her husband at home. He worked as a nurse on an intensive care unit and had all the skills required to see the patient received the care she needed. When he arrived at P.W.’s home, Christopher showed Respondent how to do the medport access, which she did, and while she performed the treatment required, he filled out the nursing notes. It was not unusual for this division of labor to take place. Respondent had done it before during her orientation when following Ms. Tisdale.

7. After completing the required treatment on P.W., Respondent assigned her husband several other of her patients to see. She then went to the company office to talk with the supervisor on duty, but it was closed for the holiday. This was a change from previous practice prior to the buyout of the company by Columbia Health Care System. Prior to that, it was company policy to have the office open on holidays. Finding the

   office closed, she thought about what to do for a while. Mindful of the warning she had received to stay within the boundaries permitted a field nurse and not to act as a supervisor, she decided to visit those patients on her list which she had assigned to her husband.

8. At each of the three patients’ homes, Respondent explained that she was the regular nurse who should have come to see them that day, and that the male nurse who had previously been there, though a nurse, was not the assigned nurse. She assured each patient that they would not be double-billed, but did not leave a second copy of the nursing clinical notes signed by her as required. Aside from B.K., who objected to being seen by a male nurse because of the nature of her problem, none complained about being seen by Christopher or that Respondent made a second visit that day.

9. Petitioner contends that Respondent did not make the visits as she claims, and in support of that position, presented the testimony of B.K. who did not recall Respondent’s being at her home that day. None of the other three patients in issue were present to testify nor were they deposed. In addition, the record of client/family teaching, left with each patient and reflecting the date and subject of each visit, and by whom it was made, which was left with B.K. for the period August 31 through October 14, 1996, fails to reflect a visit by Respondent or any other nurse. By the same token, however, it does not reflect a

   visit each day, and there is an extended and unexplained hiatus between September 25, 1996 and October 14, 1996. For this reason, it is not given much probative weight.

10. In addition, Respondent described what she said were the residences of each of the patients in issue, and no evidence was submitted by Petitioner to dispute this, save the testimony of B.K. Based on the state of the evidence, it is found that she made the repeat visits as claimed.

11. That evening, after completing all nine visits, Respondent completed the paperwork for the visits she had made on Labor Day, including those patients previously seen by Christopher. In doing so, she utilized the information contained on Christopher’s copies of the unsigned nursing clinical notes, the yellow copies of which he had, as required, left at the house. She supplemented that information with her own memory.

12. Two days later, on September 4, 1996, as Respondent was getting ready to leave for the day, she was paged by Joyce Kovacs, the clinical home care supervisor, who took her to the office of the director of professional services, Ms. Bilgutay. There, Respondent was accused of assigning patients to her husband, which was out of her area of authority. She was also accused of not making any of those visits, and was informed right away that she was fired. Because she was afraid her husband would leave his job in protest over her treatment, she initially did not indicate she had also made the visits. She was

    humiliated by the way she was treated, and in order to get out of the room as quickly as possible, she did not strenuously contest what her accusers said.

13. During that encounter, nothing was said to her about her signing the nursing notes allegedly prepared by her husband. Later, however, she was again called in and asked to reimburse the company for the tuition assistance she had previously received because, it was alleged, she had fraudulently signed the notes. She was also threatened that the matter might be referred to the Board of Nursing. It was.

14. Several months later Respondent was interviewed by David Berry, an investigator for the Agency for Health Care Administration. During this interview, the investigator would not release to Respondent the names and addresses of the patients in issue. She, therefore, requested he visit the patients and refresh their memories regarding her subsequent visit.

15. During the course of his investigation, on February 21, 1997, in excess of five months after the date in issue, Mr. Berry spoke with three of the four patients to whom the allegations herein relate. All are elderly. Though two of them, including B.W., professed to remember that only a male nurse came to see them on September 2, 1996, neither could identify Christopher from the photograph presented. The third could remember very little of the incident. Only B.W. was present to testify. D.D. could not remember much of the incident, and S.W. declined to

    appear voluntarily at the hearing. He claimed he was too elderly, and, besides, the day was scheduled for his golfing.

    CONCLUSIONS OF LAW

    
    

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

17. The Board seeks to discipline Respondent alleging she filed a false report that she had visited the homes of four patients when she did not; falsely represented facts on patient charts and documents, and failed to conform to the minimum acceptable standards of nursing practice, in violation of Section 464.018(1)(f),(h), and (l), Florida Statutes.

18. Section 464.018(1) authorizes the Board of Nursing to discipline the license of any nurse who is guilty of:

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

    ...

    
    

    (h) unprofessional conduct which shall include, but not be limited to, any departure from or failure to conform to the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

    
    

    (l) Knowingly violating any provision of this chapter; a rule of the board or the department, or ...

    
    

19. In this case, since it seeks to discipline Respondent’s professional license, Petitioner must establish her guilt of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Petitioner asserts that Respondent failed to make any of the visits alleged, contending that they were in fact made by her husband, himself a qualified nurse. Petitioner also asserts that even knowing she did not make the visits in issue, Respondent nonetheless subsequently falsified the records relating to those visits to indicate she did make them and thereafter signed those records which she knew to be false.

21. In support of its allegations, Petitioner presented the testimony of B.K., only one of the four patients. B.K. was, initially, certain she was treated in her home on the day in question by a male nurse, a situation which outraged her, and there is no question that a male nurse did visit her. Respondent admits that. The patient’s testimony that Respondent did not visit that day is not so clear, and in light of the fact that Respondent, under oath, contends she did, it cannot be said that the evidence of misconduct in that instance is either clear or convincing.

22. The testimony of the Board’s investigator regarding the other patients is hearsay which is not supported by any other admissible evidence. None of the other three patients in issue was deposed or testified at the hearing, and in light of the description of their ability to recall the events in question or cooperate in the hearing process had they been present it is unlikely their testimony would have been significant. The testimony of the staff members from Community, Respondent’s

    employer, related primarily to their questioning of her when the situation was disclosed, but none of those individuals sought to confirm or verify the Respondent’s claim that she revisited the four patients, nor did they otherwise investigate the merits of the allegation.

23. In substance, the evidence is clear that Respondent sought her husband’s assistance on the day in question and that, with her concurrence, he visited the four patients. The evidence is not inconsistent with Respondent’s contention that she thereafter reconsidered and, herself, revisited the patients that day. The evidence is also clear that much of the material on the nurse’s notes pertaining to these patients was based on information supplied by her husband who drafted the originals. The evidence does not clearly demonstrate that she merely copied his notes and did not, as she claims, contribute much of what is in them from her own recollection of her later visits to the patients the same day. In short, while Respondent’s actions may have been irregular, they have not been shown, by clear and convincing evidence, to have been inappropriate or actionable misconduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the misconduct alleged and dismissing the Administrative Complaint in this matter.

DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998.

COPIES FURNISHED:

Craig A. McCarthy, Esquire Agency for Health Care

Administration

Post Office Box 14229 Tallahassee, Florida 32317-4229

Cynthia A. Mikos, Esquire

A. S. Weekley, Jr., Esquire Holland & Knight

510 Vonderburg Drive Brandon, Florida 33511

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel Department of Health

1317 Winewod Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

Marylin Bloss Executive Director Board of Nursing 4080 Woodcock Drive

Suite 202

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

AMENDED PAGE ONE, MAILED ON FEBRUARY 3, 1998

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3889

)

DREMA G. M. SERVOSS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 9, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Craig A McCarthy, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

For the Respondent: Cynthia A. Mikos, Esquire

A.S. Weekley, Jr., M.D., Esquire Holland & Knight, LLP

510 Vonderburg Drive Suite 3005

Brandon, Florida 33511 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent’s license as a registered nurse in Florida should be

disciplined because of the matters alleged in the Administrative Complaint filed herein.

Docket for Case No: 97-003889

Orders for Case No: 97-003889