STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02-0397PL

)

HEIDI HOWARD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 27, 2002, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael T. Flury, Esquire

Department of Health

Division of Medical Quality Assurance 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Heidi Howard, pro se

5321 Ogilvie Lane

St. Augustine, Florida 32086-5619 STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a registered nurse should be disciplined for the reasons given in the Administrative Complaint.

PRELIMINARY STATEMENT

This matter began on July 16, 2001, when Petitioner, Department of Health, on behalf of the Board of Nursing, issued an Administrative Complaint alleging that Respondent, Heidi Howard, then known as Heidi Howard Hamby, a licensed registered nurse, had violated Section 464.018(1)(h), Florida Statutes (2000), by engaging in unprofessional conduct and failing to conform to the minimal acceptable standards of prevailing nursing practice while working at a hospital in Jacksonville, Florida, in November 2000.

Respondent denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on February 1, 2002, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated February 12, 2002, a final hearing was scheduled on April 3, 2002, in Jacksonville, Florida. At Respondent's request, the matter was continued to May 9, 2002. A second request for a continuance by Respondent was granted and the case was rescheduled to June 27, 2002, at the same location. Respondent's third request for a continuance filed on June 24, 2002, was denied. On June 26,

2002, the case was transferred from Administrative Law Judge Charles C. Adams to the undersigned.

At the final hearing, Petitioner presented the testimony of Mary Jo Guizard, a registered nurse; Respondent; and Geraldine B. Johnson, a registered nurse, legal nurse consultant, and accepted as an expert. Also, it offered Petitioner's Exhibits 1-7, which were received in evidence.

Exhibits 6 and 7 are the deposition testimony of Beatrice Padilla, a former certified nurse's aide at Specialty Hospital, and I.H.C., the spouse of a patient at Specialty Hospital. Respondent testified on her own behalf and offered Respondent's Exhibits 1-5, which were received in evidence.

Finally, the undersigned took official recognition of Chapters 20, 120, 456, and 464, Florida Statutes.

At the conclusion of the hearing, both parties were granted leave to take the depositions of I.H.C. and Joni Rigdon. The deposition of I.H.C. was taken by Respondent on July 25, 2002. However, when Petitioner was unable to secure the deposition of Ms. Rigdon by September 27, 2002, the record was closed.

The Transcript of the hearing was filed on July 25, 2002. Proposed Findings of Fact and Conclusions of Law were filed by the parties on October 15, 2002, and they have been considered by the undersigned in the preparation of this Recommended

Order. On October 18, 2002, Respondent also filed a response to Petitioner's Proposed Recommended Order styled "Supplemental Order to Final Order." Because a response has not been authorized, Petitioner's Motion to Strike that filing is hereby granted.

FINDINGS OF FACT

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

1. In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), which regulates the practice of nursing, has alleged that Respondent, Heidi Howard (formerly known as Heidi Howard Hamby), a licensed registered nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a registered nurse at Select Specialty Hospital (Specialty Hospital) in Jacksonville, Florida, in November 2000. Respondent holds license number RN 2004412 issued by the Board. She is presently employed as a registered nurse at Shands Regional Trauma Center in Jacksonville.

2. In November 2000, Respondent worked for Suwannee Medical Personnel, a staffing firm which supplied nurses to various health care facilities in the Jacksonville area, including Specialty Hospital. On November 12, 2000, she was working the 7 a.m. - 3 p.m. shift and had the responsibility

   of caring for T.C., a 71-year-old male patient suffering from dementia, secondary to Alzheimer's Disease; left hemispheric cerebrovascular accident; history of hypertension; anemia; a history of a nephrostomy tube; and acute renal failure. In lay terms, he had a severe kidney failure, a stroke, and a form of Parkinson's Disease, with Alzheimer's Disease.

   However, even though T.C. could not speak and he had a poor memory, he was not a hostile or difficult patient.

3. In addition to his other ailments, T.C. had an involuntary tremor of the jaw, which caused his mouth to open and close involuntarily. Because of all of these ailments, the patient was on a soft diet (soft foods or liquids), and his medications had to be crushed, so that he would not choke or aspirate while eating or taking medications. Aspiration occurs when the food or fluid is sucked into the lungs rather than going down the esophagus and stomach, and it may cause pneumonia and other conditions in the patient.

4. Because of T.C.'s medical condition and susceptibility to aspiration and choking, it was necessary to elevate his bed to 45 degrees when administering medications or feeding him. These instructions were prominently posted on a sign at the end of T.C.'s bed.

5. Late on the morning of November 12, 2000, Mary Jo Guizard, a registered nurse on duty that day, was walking down

   the hall in front of T.C.'s room when she heard Respondent laughing and saying words to the effect "Hey, you guys, come look at this" and in a joking manner say "I don't even have to crush his pills." She also observed Respondent pouring water into T.C.'s mouth from about an inch above his mouth causing water to run down the sides of his mouth. Ms. Guizard further recalled that T.C.'s head "may have been on a pillow," and that the bed "may have been at a twenty-degree angle, if that." However, she specifically recalled that the bed was not at the required 45 degrees. The incident was reported by another nurse to the floor supervisor a few minutes later, and Ms. Guizard confirmed these events in a written statement.

6. Beatrice Padilla, formerly a certified nurse's aide at Specialty Hospital and who now lives in Kansas, was also on duty when the incident occurred. Her testimony has been preserved by deposition. Ms. Padilla was walking down the hall when she heard laughter coming out of T.C.'s room. After being invited into T.C.'s room by Respondent "to see something," Ms. Padilla watched Respondent pour water into the patient's mouth from a cup about an inch or inch and one-half above his mouth. Because T.C. could not control his mouth, the mouth would open and shut and spray water down the side of his face. According to Ms. Padilla, T.C.'s head was on a pillow, and the bed was "flat" rather than being raised to a

   45-degree angle. Respondent also joked that she did not have to crush T.C.'s medication since she could drop it in his mouth and he would crush it himself through his involuntary jaw movements. Upon seeing this, Ms. Padilla "smacked [Respondent] in the arm," told her that "it wasn't funny," and immediately reported the incident to her supervisor. Whether the facility actually filed the complaint with the Board or, as Respondent suggests, her former roommate did so after the two had a quarrel, is not of record.

7. The Boards's expert established that pouring water in the mouth of a patient with the same diagnoses as T.C., from an inch above the mouth, without the bed being properly elevated, creates a potential danger for aspiration and is not an acceptable method of administering fluids. By doing so, Respondent's conduct fell below the minimal acceptable standards of prevailing nursing practice.

8. At hearing, Respondent suggested that the two witnesses who observed the incident (Ms. Guizard and

   Ms. Padilla) were not telling the truth, and that Ms. Guizard had changed the details of her testimony after making a written statement. However, these contentions have been rejected. Respondent also contended that while she did in fact pour water into T.C.'s mouth, it would have been impossible for her to pour it from an elevation of an inch or

   so without the patient fighting back. The more persuasive evidence shows, however, that T.C. was not a hostile patient. Finally, Respondent points out that the patient did not choke or aspirate. While this is true, a violation of the statute can occur even if there is no actual harm to a patient.

9. In mitigation, Respondent introduced into evidence a certificate from her supervisor at Specialty Hospital thanking her for "working so hard and being a great teamplayer." In addition, there is no evidence that Respondent has ever been disciplined by the Board.

   CONCLUSIONS OF LAW

   
   

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

11. Because Respondent's license is at risk, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the charging document are true. See, e.g., Hasbun v. Dep't of Health, 701 So. 2d 1235, 1236 (Fla. 3d DCA 1997).

12. The Administrative Complaint alleges that Respondent violated Section 464.018(1)(h), Florida Statutes (2000), by engaging in "unprofessional conduct," as that term is defined by Rule 64B9-8.005(2) and (13), Florida Administrative Code. That rule defines unprofessional conduct as a "[f]ailure to

    conform to the minimal standards of acceptable prevailing nursing practice, regardless of whether or not actual injury to the patient was sustained."

13. By clear and convincing evidence, Petitioner has established that Respondent violated the foregoing statute by engaging in unprofessional conduct, to wit, pouring water into T.C.'s mouth from an elevation of at least an inch above his mouth when the patient's bed was not elevated at the proper angle. While the evidence is conflicting as to the actual elevation of the bed, that is, whether the bed was flat or at an angle of around 20 degrees, it is clear that the bed's elevation was less than the required 45 degrees. Therefore, it is concluded that Respondent's conduct fell below the minimal acceptable standards of prevailing nursing practice, and that the alleged misconduct has been proven. By the terms of the statute, the fact that T.C. did not choke or aspirate is not relevant to this determination.

14. In its Proposed Recommended Order, Petitioner has recommended that Respondent be fined $500.00, plus costs of the investigation, that she be given a reprimand, that she be placed on one year's probation with terms to be set by the Board, and that she be required to take an approved continuing nursing education course in Medication Administration. Except for the imposition of investigatory costs, this penalty falls

within the range of penalties dictated by Rule 64B9- 8.006(3)(p), Florida Administrative Code, and is found to be appropriate. Because the imposition of investigatory costs is discretionary with the Board under Section 455.227(3), Florida Statutes (2002), this request is referred to the Board for final disposition. Due process considerations require, however, that Respondent be given the opportunity to examine and question the reasonableness of such costs before any are imposed.

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 guilty of the violation described in the Administrative Complaint. It is further recommended that Respondent be fined $500.00, given a reprimand, and placed on probation for one year subject to such conditions as the Board deems appropriate. Finally, it is recommended that Respondent be required to take an approved continuing education course in Medication Administration.

DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalache e 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 30th day of October, 2002.

COPIES FURNISHED:

Dan Coble, RN, Ph.D. CNAA C, BC

Executive Director Board of Nursing

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

Michael T. Flury, Esquire Department of Health

Division of Medical Quality Assurance 4052 Balk Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Heidi Howard

5321 Ogilvie Lane

St. Augustine, Florida 32086-5619

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 should be filed with the agency that will issue a final order in this matter.

Docket for Case No: 02-000397PL

Orders for Case No: 02-000397PL