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DEPARTMENT OF HEALTH, BOARD OF NURSING vs GREGORY NORTON, R.N., 02-004163PL (2002)

Court: Division of Administrative Hearings, Florida Number: 02-004163PL Visitors: 8
Petitioner: DEPARTMENT OF HEALTH, BOARD OF NURSING
Respondent: GREGORY NORTON, R.N.
Judges: DON W. DAVIS
Agency: Department of Health
Locations: Jacksonville, Florida
Filed: Oct. 24, 2002
Status: Closed
Recommended Order on Friday, February 14, 2003.

Latest Update: Jul. 06, 2004
Summary: The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against Respondent's nursing license based on an alleged violation of Section 464.018(1)(h), Florida Statutes.Lack of clear and convincing evidence militates that complaint against Respondent should be dismissed.
02-4163.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

)

GREGORY NORTON, R.N., )

)

Respondent. )


Case No. 02-4163PL

)


RECOMMENDED ORDER


Administrative Law Judge Don W. Davis of the Division of Administrative Hearings conducted a formal administrative hearing in this case on December 17, 2002, in Jacksonville, Florida.

APPEARANCES


For Petitioner: Amy M. Pietrodangelo, Esquire

Michael T. Flurry, Esquire Department of Health

Bureau of Health Care Practitioner Regulation - Legal

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265


For Respondent: Harvey L. Jay, III, Esquire

Erica Vitsky, Esquire

Saalfield, Coulson, Shad & Jay, P.A. 1000 First Union Tower

225 Water Street

Jacksonville, Florida 32202-4458

STATEMENT OF THE ISSUES


The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against Respondent's nursing license based on an alleged violation of Section 464.018(1)(h), Florida Statutes.

PRELIMINARY STATEMENT


On July 29, 2002, an Administrative Complaint was filed against Respondent, Gregory Norton, seeking to permanently revoke, suspend, or otherwise discipline his license to practice nursing.

Respondent timely requested a formal hearing and the matter was referred to the Division of Administrative Hearings for a formal hearing. The Administrative Complaint alleges that Respondent practiced below the minimal acceptable standards of prevailing nursing practice, specifically Section 464.018(1)(h), Florida Statutes. The single charge in the Administrative Complaint is premised on Respondent's treatment of patient, M.E. on December 6, 2001.

At the hearing, Petitioner called five witnesses: M.E., the patient; R.A., the patient’s mother; Jeanne Baranek, a Wolfson Children’s Hospital nurse without an independent recollection of M.E.; Fern Rossello, a Wolfson Children’s Hospital nurse without an independent recollection of M.E.; and Worthlyn White, an expert contracted with the Agency for Health

Care Administration to provide expert testimony. Petitioner offered two exhibits: Exhibit 1 was M.E.’s medical records at Wolfson Children’s Hospital from December 5, 2001, to December 7, 2001; Exhibit 2 was a copy of Worthlyn White’s abbreviated resume.

Respondent called three witnesses: Kip Deckerhoff, a nurse manager at Wolfson Children’s Hospital; Gregory Norton, Respondent; and Cynthia Gerdik, an expert witness in pediatric nursing. Respondent did not offer any exhibits.

A Transcript of the hearing was ordered and filed with the Division of Administrative Hearings on January 16, 2003. The parties requested and were granted leave to file proposed recommended orders more than ten days after the filing of the Transcript. Both parties filed Proposed Recommended Orders which have been reviewed in the preparation of this Recommended Order.

FINDINGS OF FACT


  1. Respondent, Gregory Norton, is a licensed registered nurse in the State of Florida holding License No. RN 2219032.

  2. On December 5, 2001, M.E. presented at Wolfson Children’s Hospital with complaints of pneumonia and fever and was admitted for treatment. M.E. had been previously diagnosed with sickle cell disease prior to his admission to the hospital.

  3. Respondent was not working at Wolfson Children’s Hospital on December 5, 2001.

  4. In compliance with his duties at Wolfson Children’s Hospital, Respondent performed a full assessment on M.E. on December 6, 2001.

  5. M.E. was discharged from the hospital on December 7, 2001. Again, Respondent was not working at Wolfson Children’s Hospital on December 7, 2001.

  6. At the final hearing, M.E. stated under oath that he had no recollection of any events at Wolfson Children’s Hospital on December 6, 2001, the only date alleged in the Administrative Complaint. Specifically, M.E. testified that he did not remember any examination by or discussion with Respondent on December 6, 2001.

  7. On December 6, 2001, M.E., in R.A.’s presence, denied to Kip Deckerhoff that Respondent had engaged in any inappropriate conduct during his examination. M.E.’s denial is confirmed by sworn testimony provided by both R.A. and Kip Deckerhoff, the nurse manager of M.E.’s floor at Wolfson Children’s Hospital.

  8. R.A. has no personal knowledge regarding Respondent's examination of her son, M.E.

  9. Worthlyn White, an expert witness presented by Petitioner, has no current clinical nursing role or consulting

    contracts with any other employers at this time. White has a contract/fee agreement with Petitioner to serve as an expert witness. This is the only Florida case in which White has offered an expert opinion. Before she became a consultant for Petitioner, White worked at the facility, Express Care, where she rarely saw pediatric sickle cell patients. Her primary area of certification is neonatal nursing. A neonate is a newborn child up to 28 days of age. Teenagers are not classified as neonates.

  10. At the final hearing, White conceded that according to Stedman’s Medical Dictionary for the Health Professional, perineum is defined as the area between the thighs extending from the coccyx to the pubis and lying below the pelvic diaphragm and, accordingly, Respondent's care and examination of M.E.’s perineum was appropriate. Respondent’s total examination of M.E. was within the standard of care and Respondent's femoral pulse check on M.E. was not below the standard of care.

  11. Respondent testified regarding his treatment of M.E. on December 6, 2001. Respondent has worked clinically at Wolfson Children’s Hospital for 20 years. He has practiced as a registered nurse in the State of Florida for 12 years. There has never been an investigation of Respondent’s license prior to Petitioner’s allegations in this case.

  12. Respondent testified that he performed a required physical examination on M.E on December 6, 2001. When asked his personal opinion on the standard of care, Respondent testified that his treatment of M.E. on December 6, 2001, was appropriate.

  13. Cynthia Gerdik, an expert in the area of pediatric nursing, has practiced as a registered nurse for 30 years. She is currently the nurse manager of Pediatric Services at Shands Jacksonville and the manager of the only sickle cell clinic in North Florida.

  14. Testimony of Gerdik establishes that Respondent's full head-to-toe assessment on M.E., including an examination of all body systems was within the standard of care. Further, it was within the standard of care for Respondent to perform a femoral pulse check and assess M.E.’s perineum. None of Respondent's actions, pertaining to the treatment of M.E. on December 6, 2001, fell below the standard of care.

    CONCLUSIONS OF LAW


  15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner has the burden of proving by clear and convincing

    evidence the allegations against Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

  16. The standard of "clear and convincing evidence" requires that:

    [T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered, the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produced in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.


    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (emphasis added).


  17. The Administrative Complaint alleges that Respondent practiced below the minimal acceptable standards of prevailing nursing practice by improperly performing a femoral pulse check and exam on M.E.’s genitals on December 6, 2001.

  18. Under the definition of clear and convincing evidence, Petitioner has not proven that Respondent’s treatment of M.E. fell below the standard of care.

RECOMMENDATION


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

That a final order be entered dismissing the complaint against Respondent Gregory Norton.

DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida.


DON W. DAVIS

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 14th day of February, 2003.


COPIES FURNISHED:


Amy M. Pietrodangelo, Esquire Michael T. Flurry, Esquire Department of Health

Bureau of Health Care Practitioner Regulation - Legal

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265


Harvey L. Jay, Esquire Erica Vitsky, Esquire

Saalfield, Coulson, Shad & Jay, P.A. 1000 First Union Tower

225 Water Street

Jacksonville, Florida 32202-4458


Dan Coble, Executive Director Board of Nursing

Department of Health

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


R.S. Power, Agency Clerk 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 the final order in this case.


Docket for Case No: 02-004163PL
Issue Date Proceedings
Jul. 06, 2004 Final Order filed.
Feb. 14, 2003 Recommended Order issued (hearing held December 17, 2002) CASE CLOSED.
Feb. 14, 2003 Recommended Order cover letter identifying hearing record referred to the Agency sent out.
Feb. 05, 2003 Petitioner`s Proposed Recommended Order filed.
Feb. 05, 2003 Respondent`s Proposed Recommended Order filed.
Jan. 16, 2003 Transcript filed.
Dec. 17, 2002 CASE STATUS: Hearing Held; see case file for applicable time frames.
Dec. 16, 2002 Motion in Limine to Exclude Testimony of Carla D. Roberts-Jones (filed by Petitioner via facsimile).
Dec. 12, 2002 (Joint) Prehearing Stipulation (filed via facsimile).
Dec. 11, 2002 Notice of Filing Petitioner`s Response to Respondent`s Request for Admissions (filed via facsimile).
Dec. 06, 2002 Notice of Filing Petitioner`s Response to Respondent`s First Set of Interrogatories and Request for Expert Interrogatories (filed via facsimile).
Dec. 05, 2002 Notice of Serving Verified Answers to Petitioner`s First Set of Expert Interrogatories (filed by Respondent via facsimile).
Dec. 05, 2002 Notice of Serving Answers to Petitioner`s First Set of Interrogatories (filed by Respondent via facsimile).
Dec. 05, 2002 Respondent`s Motion to Compel (filed via facsimile)
Nov. 22, 2002 Notice of Respondent`s Assertion of His Fifth Amendment Right (filed via facsimile).
Nov. 22, 2002 Respondent`s Motion for Protective Order (filed via facsimile).
Nov. 21, 2002 Emergency Motion for Case Conference (filed by Petitioner via facsimile).
Nov. 19, 2002 Notice of Taking Deposition (R. Ali and M. Everett) filed via facsimile.
Nov. 08, 2002 Order of Pre-hearing Instructions issued.
Nov. 08, 2002 Notice of Hearing issued (hearing set for December 17 and 18, 2002; 10:00 a.m.; Jacksonville, FL).
Nov. 04, 2002 Joint Response to Initial Order (filed by Petitioner via facsimile).
Nov. 01, 2002 Notice of Serving Respondent`s First Set of Expert Interrogatories to Petitioner filed.
Oct. 25, 2002 Initial Order issued.
Oct. 24, 2002 Administrative Complaint (filed via facsimile).
Oct. 24, 2002 Election of Rights (filed via facsimile).
Oct. 24, 2002 Agency referral (filed via facsimile).

Orders for Case No: 02-004163PL
Issue Date Document Summary
Apr. 22, 2003 Agency Final Order
Feb. 14, 2003 Recommended Order Lack of clear and convincing evidence militates that complaint against Respondent should be dismissed.
Source:  Florida - Division of Administrative Hearings

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