STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-6008

)

JOSEPH FARRELL WEBB, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on April 23, 1998, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. Petitioner, the witnesses, and court reporter attended the hearing in Orlando. Respondent and the undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration 1580 Waldo Palmer Lane

Post Office Box 14229 Tallahassee, Florida 32308-4229

For Respondent: Joseph Webb, pro se

2169 Turner Church Road McDonough, Georgia 30252

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 464.018(1)(h), Florida Statutes (1997) (hereinafter, "Florida Statues"), and Florida Administrative Code Rules 59S- 8.005(1)(e)1 and 2, by diverting morphine during his care and treatment of two patients and failing to keep accurate nurse's notes. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order).

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on October 7, 1997. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of four witnesses and submitted three exhibits for admission in evidence. Respondent cross-examined Petitioner's witness but did not submit any other evidence in his case in chief.

The identity of the witness and exhibits, and the rulings regarding each, are set forth in the transcript filed on May 26, 1998. Petitioner timely filed its proposed recommended order ("PRO") on March 21, 1998. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of nursing. Respondent is licensed as a nurse pursuant to license number RN 2185632.

2. Respondent admitted under oath at the hearing that he committed the acts alleged in the Administrative Complaint. Respondent did not overdose any patient, endanger, or neglect any patient.

3. Respondent diverted morphine during his care and treatment of patients J.G. and R.B. at West Volusia Memorial Hospital on March 24 and 26, 1997. Respondent was addicted to morphine and diverted morphine from the two patients for self- administration.

4. Respondent is guilty of negligent administration of morphine. Respondent self-administrated morphine that was not medically necessary.

5. Respondent failed to keep accurate nurse's notes for patient J.G. Respondent inaccurately recorded the amount of morphine administered to patients J.G. and R.B.

6. Respondent has voluntarily sought aggressive care and treatment for his drug addiction. Respondent is in three rehabilitation programs in Georgia.

7. Respondent is in an intervention program for nurses ("IPN") approved by the State of Georgia pursuant to a prosecution conducted by the appropriate state agency in Georgia. He is also in a nurses anonymous program and a follow-up hospital program. Respondent is also under the regular care of a psychiatrist.

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

9. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Petitioner satisfied its burden of proof. Petitioner showed that Respondent is guilty of unprofessional conduct within the meaning of Section 464.018(1)(h), Florida Statutes, and Rules 59S-8.005(1)(e)1 and 2.

11. Section 464.018(2), Florida Statutes, authorizes penalties ranging from probation to revocation of Respondent's license. Rule 59S-8.006 prescribes disciplinary guidelines for violations of Section 464.018(1)(h).

12. For a single violation of Section 464.018(1)(h), disciplinary guidelines recommend that the range for an administrative fine be between $250 and $1,000 plus probation with conditions, such as appropriate continuing education, up to suspension of Respondent's license until it is shown that it is safe for Respondent to practice.

13. Rules 59S-8.006(4)(a) and (b) provide that the Board of Nursing (the "Board") may impose a penalty outside the recommended range of penalties where there is proof of

    aggravating or mitigating circumstances. Petitioner seeks a penalty that exceeds the recommended range of penalties based on the aggravating circumstances that Respondent was impaired by reason of morphine and exposed the public to danger.

14. While Petitioner correctly considers the aggravating circumstances, Petitioner ignores evidence of mitigating circumstances. Respondent did not harm any patient or any member of the public. Respondent has no prior disciplinary history. Respondent voluntarily terminated his nursing career, sought professional help, and admitted himself into a rehabilitation program. Respondent cooperated in the prosecution of this proceeding.

15. The $2,000 fine sought by Petitioner is not appropriate. It exceeds the recommended range of penalties without considering the mitigating circumstances evidenced in this proceeding.

16. The recommendation that Respondent's license be suspended indefinitely until Respondent proves his ability to practice nursing with safety, followed by probation of five years, fails to give appropriate weight to the mitigating circumstances in this proceeding. The remaining proposed penalties are appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 464.018(1)(h) and

Rules 59S-8.005(1)(e)1 and 2, suspending Respondent's license for two years from the date of this Recommended Order, and placing Respondent on probation for two years from the end of the suspension period. The terms of probation shall include a requirement that Respondent successfully complete the IPN program in Georgia and hospital follow-up program.

DONE AND ENTERED this 18th day of June, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 18th day of June, 1998.

COPIES FURNISHED:

Marilyn Bloss, Executive Director Department of Health

Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Joseph S. Garwood, Esquire

Agency for Health Care Administration 1580 Waldo Palmer Lane

Post Office Box 14229 Tallahassee, Florida 32308-4229

Joseph Webb, pro se 2169 Turner Church Road

McDonough, Georgia 30252

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from 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.

Docket for Case No: 97-006008

Orders for Case No: 97-006008