STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 98-2959

) MICHELLE L. SCHREMBS DEGOLIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 2, 1998, in Largo, Florida, before Carolyn S. Holifield, a duly designated Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Howard M. Bernstein, Esquire

Agency for Health Care Administration General Counsel's Office

Medical Quality Assistance Allied Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Michele L. Schrembs DeGrolier, pro se

1501 Carlos Avenue

Clearwater, Florida 33755 STATEMENT OF THE ISSUE

Whether Respondent engaged in unprofessional conduct and, if so, what disciplinary action should be imposed on her nursing license.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated December 19, 1997, the Petitioner, the Department of Health, Board of Nursing, (Department) charged Respondent, Michele L. Schrembs DeGolier, (Respondent) with violating Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct. Specifically, it is alleged that Respondent authorized the refill of a prescription without her employing physician's approval and that by engaging in this conduct, Respondent committed acts of negligence, either by omission or commission, and practiced beyond the scope of her license. Respondent challenged the allegations and timely requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing.

At hearing, the Department called three witnesses: David A. Flick, M.D.; Chantelle Jackson; and Dave Charles Barry. The Department had eight exhibits admitted into evidence. Respondent testified on her own behalf and called one witness, Linda Goodard Wise, Licensed Practical Nurse. Respondent had two exhibits admitted into evidence. At the conclusion of Respondent's case, the Department made an ore tenus motion to amend the Amended Administrative Complaint by adding additional charges. The motion was denied.

A transcript of the proceeding and the Department's Proposed Recommended Order were filed on December 28, 1998. Respondent did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes.

2. At all times relevant to this proceeding, Respondent was a licensed practical nurse in the State of Florida, holding license no. PN 0986101. Respondent has been so licensed since 1990.

3. At all times relevant to this proceeding, Respondent was employed in the office of Dr. David Flick, M.D., an oncologist.

4. On October 17, 1995, Dr. Flick wrote a prescription for Fiorinal for Katherine Filan, who on that date, was an employee of Dr. Flick. The prescription authorized one refill.

5. On or about January 12, 1996, in response to an inquiry from a pharmacy, Respondent approved a refill of the prescription for Fiorinal for Katherine Filan, without first consulting

   Dr. Flick.

   
   

6. According to Dr. Flick, at all times pertinent to this proceeding, the general policy in his office was that he approved all refills. This policy was unwritten and was not effectively communicated to employees.

7. Respondent and one other licensed practical nurse, formerly employed as a nurse in Dr. Flick's office, provided credible testimony that nurses in Dr. Flick's office were allowed to refill prescriptions, except for narcotics. However, when

   nurses authorized such refills, the policy was that the refills were to be documented and charted.

8. Respondent believed that her action of authorizing the refill of Ms. Filan's prescription was consistent with the practice and policy of Dr. Flick's office. Moreover, Respondent believed that her approval of the refill was permitted because Dr. Flick had expressly authorized one refill on the original prescription he had written.

9. No evidence was presented that Ms. Filan had refilled the prescription prior to January 12, 1996.

10. After Respondent authorized the refill of the prescription for Ms. Filan, she failed to record the refill authorization on the any medical records. Respondent maintains that her failure to document the refill was inadvertent and was the result of her being extremely busy that day. On the day that Respondent authorized the refill, she was the only chemotherapy nurse on duty, was taking care of patients, and taking incoming nurse's calls.

11. Except for this proceeding, Respondent has never been the subject of a disciplinary proceeding related to her nursing license.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

13. Section 464.018(2), Florida Statutes, empowers the Board of Nursing to revoke, suspend or otherwise discipline the license of a nurse who is found guilty of any one of the acts enumerated in Section 464,018(1), Florida Statutes.

14. Respondent is charged with violating Section 464.018(1)(h), Florida Statutes, which provides:

    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 actual injury need not be established.

       
       

15. The Amended Administrative Complaint charges that the alleged conduct in which Respondent engaged comes within the meaning of unprofessional conduct as defined in Rule

    64B9-8.005(1)(e)12. and 15., Florida Administrative Code, which provides:

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

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

12. Acts of negligence, gross negligence, either by omission or commission; or

1. Practicing beyond the scope of the licensee's license, educational preparation or nursing experience.

2. The Department alleges that Respondent violated the above-quoted provisions by authorizing Ms. Filan's prescription to be refilled.

3. In a license disciplinary proceeding such as this, the burden is on the regulatory agency to establish the facts upon which its allegations are based by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 392, (Fla. 1987).

4. Clearly, the evidence presented by the Department relating to the allegation that Respondent authorized a prescription without first obtaining Dr. Flick's approval does not rise to the level of "clear and convincing." This is true, particularly in light of the lack of clarity of the policy in Dr. Flick's office regarding the refilling of prescriptions by nurses.

5. It is undisputed that Respondent failed to properly document and record that she approved Ms. Filan's prescription refill. However, the Amended Administrative Complaint did not allege any facts relative to Respondent's failure to document her approval of the prescription refill. Due process requires that Respondent receive notice of the factual allegations that constitute the alleged violation of the law. In absence of thereof, facts relative to Respondent's failure to document approval of the prescription refill cannot be the basis for finding Respondent guilty of the alleged violations.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

REOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1999.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency of Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency of Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Howard M. Bernstein, Esquire

Agency for Health Care Administration General Counsel's Office

Medical Quality Assistance Allied Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

Michele L. Schrembs DeGrolier, pro se 1501 Carlos Avenue

Clearwater, Florida 33755

Docket for Case No: 98-002959

Orders for Case No: 98-002959