STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4253

)

BONNIE FAY BAKER PALMER, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was heard before Administrative Law Judge, Daniel M. Kilbride, of the Division of Administrative Hearings on May 5, 1998, in Lakeland, Florida.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire

Boyd, Lindsey, Williams & Branch, P.A. 1407 Piedmont Drive East

Tallahassee, Florida 32312

For Respondent: Bonnie Fay Baker Palmer, pro se

Route 2, Box 810

Waynesville, Georgia 31566 STATEMENT OF THE ISSUES

Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.

PRELIMINARY STATEMENT

On September 20, 1996, the Petitioner filed a one-count Administrative Complaint against the Respondent, alleging a violation of Chapter 464, Florida Statutes. Respondent filed an Election of Rights, dated October 28, 1996, and requested a formal hearing. This matter was referred to the Division of Administrative Hearings on September 10, 1997, and was set for hearing. This matter was continued at the request of Petitioner and an Order to Show Cause was issued by William R. Cave, Administrative Law Judge, on January 15, 1998. This matter was rescheduled and the case transferred to the undersigned Administrative Law Judge and the hearing was heard on May 5, 1998.

At the formal administrative hearing, Respondent represented herself. Official Recognition was taken of Chapters 20, 120, 455 and 464, Florida Statutes, and answers to Petitioner's Request for Admissions 1, 2, 3, 4, 5, 6, 8 (with explanation), and 9 (with explanation). The Petitioner presented the testimony of one witness, Terry Lynn Noland, Certified Nursing Assistant (C.N.A.). Petitioner offered one exhibit,which was received in evidence. The Respondent cross-examined the Petitioner's witness, testified in her own behalf, and offered no other evidence.

The transcript of the proceeding was prepared and filed on May 26, 1998. Neither party filed a proposed recommended order with the Division as of the date of this order

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto.

2. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes.

3. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996.

4. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient,

   G. C.

   
   

5. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a

   wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment.

6. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A.

7. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth.

8. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter.

9. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way.

10. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable

    nursing practice in the treatment of patient, G. C.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    
    

    Sections 120.569, 120.57(1), 120.60, and Chapter 464, Florida Statutes.

12. Pursuant to Section 646.018(2), Florida Statutes, the Board of Nursing is empowered to revoke, suspend, or otherwise discipline the license of a nurse for violation of Section 464.018(1), Florida Statutes.

13. Revocation of license proceedings are penal in nature; State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d

    487 (Fla. 1973) and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate,

    592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Hal Heifetz d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So. 2d 1277 (Fla. 1st DCA 1985); Department of Banking and Finance v. Osborne Stern & Co., 670

    So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by

    clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Subsection 464.018(1), Florida Statutes (1997), as it pertains to the alleged facts in this matter reads, in pertinent part:

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

       * * *

       (h) 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. . . .

       
       

15. Relative to the above statutory prohibitions, the Board's disciplinary guidelines are set forth in Section 646.018(2), Florida Statutes. This statute provides that the Respondent's license may be penalized as follows:

    * * *

    
    

    464.018(2) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    
    

    * * *

    
    

    1. Revocation or suspension of a license with reinstatement subject to the provisions of subsection (3).

    2. Permanent revocation of a license.

    3. Restriction of practice.

    4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    5. Issuance of a reprimand.

    6. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify. . . .

    
    

16. In order to find a nurse has violated this statute, an intentional act must be proven before a violation can be found. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992).

    
    

17. In a formal administrative hearing, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Section 120.57(1)(c), Florida Statutes (1997) (formerly Section 120.58(1)(a)(1.), Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 808 (Fla. 1st DCA 1986).

18. In the instant case, the principal evidence relied upon by Petitioner is the testimony of the C.N.A. who was in the room at the time of the incident, and the statement admitted in evidence.

19. The C.N.A.'s testimony was not clear and convincing in regard to any misconduct by Petitioner. The statement prepared by the Director of Nursing and signed by Respondent is an admission against interest and, therefore, an exception under Section 90.803(18), Florida Statutes. However, the statement is unreliable because it was not prepared by Respondent and she has

    explained the circumstances under which she signed it.

    
    

20. During the hearing, Respondent did not make an admission and denied any acts which would be considered unprofessional conduct.

21. In addition, Petitioner failed to prove through a qualified witness that Respondent departed from, or failed to conform to, the minimal standards of acceptable and prevailing nursing practice. A C.N.A. cannot testify as an expert on nursing standards and practice.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire

Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East

Tallahassee, Florida 32312

Bonnie Fay Baker Palmer Route 2, Box 810

Waynesville, Georgia 31566

Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Marilyn Bloss, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 97-004253

Orders for Case No: 97-004253