STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

)

MARLA GUNDERSON, )

)

Respondent. )

Case No. 01-4817PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 14, 2002, by videoconference between Tallahassee and Fort Myers, Florida, before Carolyn Holifield, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Agency for Health Care Administration General Counsel's Office-

Practioner Regulation Post Office Box 14229 2727 Mahan Drive

Tallahassee, Florida 32317-4229

For Respondent: Marla Gunderson, pro se

1807 Northeast 26th Terrace Cape Coral, Florida 33909

STATEMENT OF THE ISSUES

The issues are whether Respondent withdrew controlled substances from the narcotics dispensing system and failed to document the administration or wastage of those substances; if yes, whether this conduct fails to conform to minimum acceptable standards of prevailing nursing practice; and, if

yes, what penalty should be imposed on Respondent's license as a registered nurse.

PRELIMINARY STATEMENT

On October 8, 2001, Petitioner, the Department of Health ("Department") on behalf of the Agency for Health Care Administration filed an Administrative Complaint against Respondent, Marla Gunderson, seeking to discipline her license as a registered nurse. Specifically, the Administrative Complaint alleged that Respondent, while working at Lee Memorial Health System Rehabilitation Hospital, removed controlled substances from the narcotics dispensing system or drawer for patients under her care and failed to subsequently document the administration and/or wastage of the controlled substances. The Administrative Complaint alleged that Respondent is subject to disciplinary action pursuant to Subsection 464.018(1)(h), Florida Statutes, in that the alleged conduct is unprofessional

and fails to conform to the minimum acceptable standards of prevailing nursing practice.

Respondent timely filed an Election of Rights form in which she challenged the allegations in the Administrative Complaint and requested a formal hearing. On or about December 13, 2001, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing and prepare a recommended order.

At hearing, the Department presented the testimony of Gerald Sushil, Director of Nursing at the Lee Memorial Health System Rehabilitation Hospital, and Melody Simmons, a registered nurse and nursing supervisor at the Lee Memorial Health System Rehabilitation Hospital. Petitioner's Exhibits numbered 1 through 15 were admitted into evidence. Respondent testified on her own behalf. No exhibits were offered by Respondent.

A Transcript of the proceeding was filed with the Division of Administrative Hearings on February 25, 2001. The Department timely filed a Proposed Recommended Order that has been considered in preparation of this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of nursing in the State of Florida.

2. Respondent Marla Gunderson ("Respondent") is, and has been at all times material hereto, a licensed registered nurse in the State of Florida, having been issued license number 2832622 by the Florida Board of Nursing in 1994.

3. Respondent was employed by Lee Memorial Health Care System Rehabilitation Hospital ("Lee Memorial") as a registered nurse from about January 29, 2001, until about March 22, 2001.

4. During the first three or four weeks of Respondent's employment, she participated in a full-time training program through Lee Memorial's education department. A part of this training included training in the administration of medications to patients.

5. After completing the three or four-week training program, Respondent began working directly with patients. From about mid-February 2001 through early-March 2001, Respondent had no problems with documenting the administration of medications to patients.

6. Some time in or near the middle of March 2001, Melanie Simmons, R.N. ("Simmons"), Lee Memorial's Nursing Supervisor, received a complaint from the night nurse following Respondent's shift. The complaint alleged that a patient's wife reported that the pain medication her husband was given by Respondent was not the Codeine that had been ordered by the physician.

7. Pursuant to Lee Memorial's policies and procedures, Simmons conducted an investigation into the allegations of the above-referenced complaint regarding the Respondent.

8. Lee Memorial's policies and procedures set out a specific method for conducting investigations regarding the administration of medications to patients. First, the physician's orders are checked to see what medications have been ordered for the patient. Next, the Pyxis records are pulled to determine if and when medications were withdrawn for administration to patients. The Pyxis system is a computerized medication delivery system. Each nurse has an assigned user code and a password, which must be entered before medication can be withdrawn from the Pyxis system. Then, medication administration records (MARs), the documents used by nurses to record the administration of medications to patients, are checked to verify whether the nurse documented the administration of the medications to the patients for whom they were withdrawn. Finally, the Patient Focus Notes, the forms used by nurses to document non-routinely administered medications, are also checked to determine if, when, and why a medication was given to a patient.

9. If after comparing the physician's orders, Pyxis records, MARs, and Patient Focus Notes, it is determined that medications were not properly administered or documented, the

   nurse making the errors is advised of the discrepancy and given an opportunity to review the documentation and explain any inconsistencies.

10. Simmons' investigation, which included comparing the physician's orders, Pyxis records, MARs and Patient Focus Notes, revealed discrepancies in medications withdrawn by Respondent and the MARs of the three patients under her care. The time period covered by the investigation was March 12 through

    March 17, 2001. Of the six days included in the investigation period, Simmons determined that all the discrepancies had occurred on one day, March 13, 2001.

11. Nurses are required to record the kind and amount of medication that they administer to patients. This information should be recorded at or near the time the medication is administered.

12. It is the policy of Lee Memorial that should a nurse not administer the medication or the entire amount of the medication dispensed under his or her password, that nurse should have another nurse witness the disposal of the medication. The nurse who serves as a witness to the disposal of medication would then enter his or her identification number in the Pyxis. As a result of that entry, the nurse who observed the disposal of the medication would be listed on the Pyxis report as a witness to the disposal of the medication not

    administered to patients. Such excess medication is termed waste or wastage.

13. The physician's order for Patient F.R. indicated that the patient could have 1 to 2 Percocet tablets, to be administered by mouth, as needed every 3 to 4 hours. On

    March 13, 2001, at 14:06 Respondent withdrew 2 Percocet tablets for Patient F.R. However, there was no documentation in the patient's MAR, focus notes, and other records which indicated that Respondent administered the Percocet tablets to Patient F.R.

14. The physician's order for Patient G.D. indicated that

    
    

    1 to 2 Percocet tablets could be administered to the patient by mouth as needed every 4 to 6 hours. On March 13, 2001, at 11:18 Respondent withdrew 2 Percocet tablets and on that same day at 17:16, Respondent withdrew another 2 Percocet tablets for Patient G.D. However, there was no documentation in the patient's MAR, focus notes, or any other records which indicated that Respondent administered the Percocet tablets to Patient

    G.D.

    
    

15. The physician's order for Patient T.G. indicated that

    
    

    1 to 1.5 Lortab/Vicodin tablets could be administered to the patient by mouth as needed every 4 to 6 hours. On March 13, 2001, Respondent withdrew 2 Lortab/Vicodin tablets for Patient

    T.G. However, Respondent failed to document on the patient's

    MAR, focus notes, or other records that the medication had been administered to Patient T.G.

16. With regard to the above-referenced medications withdrawn by Respondent on March 13, 2001, there is no documentation that any of the medications were wasted.

17. All the medications listed in paragraphs 13, 14, and

    
    

    15 are narcotics or controlled substances.

    
    

18. Because Respondent did not document the patients' MARs or focus notes after she withdrew the medications, there was no way to determine whether the medications were actually administered to the patients.

19. Proper documentation is very important because the notations made on patient records inform nurses on subsequent shifts if and when medications have been administered to the patients as well as the kind and amount of medications that have been administered. Without such documentation, the nurses taking over the subsequent shifts have no way of knowing whether medication has been administered, making it possible for affected patients to be overmedicated.

20. Respondent has been a registered nurse since 1994 and knows or should have known the importance of documenting the administration of medications to patients.

21. Respondent does not dispute that she did not document the administration and/or wastage of the narcotics or controlled

    substance she withdrew from the Pyxis system on March 13, 2001, for the patients identified in paragraphs 13, 14, and 15.

    Moreover, Respondent provided no definitive explanation as to why she did not properly document the records. According to Respondent, she "could have been busy, called away, [or] got distracted."

22. Following Simmons' investigation of Respondent relating to the withdrawal and/or administration of medications, Respondent agreed to submit to a drug test. The results of the drug test were negative.

23. Prior to being employed by Lee Memorial, all of Respondent's previous experience as an R.N. had been in long- term care.

24. Except for the complaint which is the subject of this proceeding, there have been no complaints against

    Respondent's registered nurse's license.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.

26. The Department bears the burden of proof in this case to establish by clear and convincing evidence the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). Here, the Department has met its burden.

27. The undisputed evidence established that, on March 13, 2001, Respondent withdrew narcotics or controlled substances from Lee Memorial's Pyxis system for three patients and that she failed to document the administration and/or wastage of the medications. This conduct by Respondent constitutes unprofessional conduct within the meaning of Subsection 464.018(1)(h), Florida Statutes.

28. Subsection 464.018(1)(h), Florida Statutes, provides:

    
    

    1. The following acts shall be grounds for disciplinary action set forth in s. 456.072(2):

       
       

       * * *

       
       

       (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.

       
       

29. Rule 64B9-8.006, Florida Administrative Code, sets forth the range of penalties for offenses listed in Section 464.018, Florida Statutes. According to that rule, the penalties that the Board of Nursing may impose include probation, suspension, and administrative fines.

30. Rule 64B9-8.006(3)(i), Florida Administrative Code, provides a penalty range for unprofessional conduct within the meaning of Subsection 464.018(1)(h), Florida Statutes. That rule states that the penalty may be the following:

    
    

    [A] [f]ine from $250 -- $1000 plus from one year probation with conditions and appropriate CE courses to suspension until proof of safety to practice followed by probation with conditions.

    
    

31. Rule 64B9-8.006(4)(a), Florida Administrative Code, provides that the Board of Nursing may deviate from the guidelines upon a showing of aggravating or mitigating circumstances.

32. Rule 64B9-8.006(4)(b), Florida Administrative Code, sets forth the circumstances which may be considered for purposes of mitigation or aggravation of penalty. That rule

states:

1. Circumstances which may be considered for purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

   
   

   1. The severity of the offense.

   2. The danger to the public.

   3. The number of repetitions of offenses.

   4. Previous disciplinary action against the licensee in this or any other jurisdiction.

   5. The length of time the licensee has practiced.

   6. The actual damage, physical or otherwise, caused by the violation.

   7. The deterrent effect of the penalty imposed.

   8. Any efforts at rehabilitation.

   9. Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.

   10. Cost of treatment.

   11. Financial hardship.

   12. Cost of disciplinary proceedings.

1. The aggravating circumstances in this case are that the offense committed by Respondent, failure to document the administration and/or wastage of medication, is a severe offense. Furthermore, this offense is one which poses a danger to patients.

2. The mitigating circumstances are that Respondent has practiced as a registered nurse for seven years and that during that time has never had a complaint filed against her. Moreover, there is no evidence that this offense has been repeatedly committed by Respondent. The offenses which are the subject of the Administrative Complaint all occurred on the same day.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order (1) imposing an administrative fine of $250; (2) requiring Respondent to remit the Agency's costs in prosecuting this case; (3) requiring Respondent to complete a continuing education course, approved by the Board of Nursing, in the area administration and documentation of medications; and (4) suspending Respondent's nursing license for two years.

DONE AND ENTERED this 1st day of April, 2002, 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 1st day of April, 2002.

COPIES FURNISHED:

Reginald D. Dixon, Esquire

Agency for Health Care Administration

General Counsel's Office-Practitioner Regulation Post Office Box 14229

2727 Mahan Drive

Tallahassee, Florida 32317-4229

Marla Gunderson

1807 Northeast 26 Terrace Cape Coral, Florida 33909

Ruth R. Stiehl, Ph.D., R.N. Executive Director

Board of Nursing Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Mr. R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-004817PL

Orders for Case No: 01-004817PL