STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD NURSING,

Petitioner,

vs.

PETER J. RAMME, R.N.,

Respondent.

)

)

)

)

) Case No. 03-1101PL

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on June 4, 2003, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Lynne A. Quimby-Pennock, Esquire

Department of Health

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

For Respondent: Peter J. Ramme, R.N., pro se

1600 E. DeSoto Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent's license should be subjected to disciplinary sanctions on the basis of the allegations in the Amended Administrative Complaint, which charges that he has

violated Sections 464.018(1)(d)5 and 464.018 (1)(j), Florida Statutes. If the charges or any portions of them should be substantiated it must be determined what, if any, penalty is warranted.

PRELIMINARY STATEMENT

This cause arose from the filing of an Amended Administrative Complaint by the Petitioner Agency charging the Respondent with violating Sections 464.018(1)(d)(5) and 464.018(1)(j), Florida Statutes. The Petitioner maintains that the Respondent was found guilty (regardless of adjudication) of a violation of Chapter 784, Florida Statutes, relating to an assault, battery and culpable negligence. The Petitioner also maintains that the Respondent is unable to practice nursing with reasonable skill and safety to patients by reason of use of alcohol, drugs, illness or as a result of a physical or mental condition.

The Administrative Complaint was filed February 2, 2003, and the Respondent timely elected to pursue a formal proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes. The case was ultimately forwarded to the Division of Administrative Hearings and the undersigned administrative law judge.

Prior to hearing the Respondent answered the Petitioner's request for admissions admitting allegations regarding Count I

of the Administrative Complaint concerning his criminal conviction. A jury found the Respondent guilty, apparently of assault and battery, but the judge withheld adjudication of guilt. The incident resulting in the criminal charge apparently involved a rather minor altercation between the Respondent and his then girlfriend. Accordingly, the hearing herein was conducted in order to receive testimony and evidence regarding Count II of the Amended Administrative Complaint concerning whether the Respondent is unable to practice nursing with reasonable skill and safety by reason of illness, use of alcohol, drugs, etc., or as a result of any mental or physical condition.

The Petitioner introduced four exhibits at hearing which were admitted into evidence. The Petitioner presented the testimony of Dr. Roberta Schaffner, M.D., an expert physician witness. The Respondent testified on his own behalf.

The parties elected to transcribe the proceeding and to avail themselves of the right to submit proposed recommended orders. The Proposed Recommended Orders filed have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an Agency of the State of Florida charged with regulating the practice of nursing, the entry into practice and discipline of licensed practioners, in accordance

   with Sections 20.165 and 20.43, Florida Statutes and Chapters

   
   

   456 and 464, Florida Statutes. The Respondent at all times material hereto has been a licensed registered nurse in the State of Florida, holding license No. RN3294352. The license is currently suspended. The Respondent's address of record is 1600

   E. DeSoto Street, Pensacola, Florida 32501.

   
   

2. Roberta Schaffner, M.D., testified as an expert witness in nursing and psychiatry. She is a Florida licensed, board- certified psychiatrist, who also earned a bachelor of science degree in nursing before becoming a physician. She passed her nursing boards in 1977 and was licensed in Tennessee, Ohio and California. She was on the nursing faculty at Mwami Nursing School in Zambia, Africa in 1977 and 1978. She has extensive experience in the field of nursing as well as psychiatry and was accepted in both areas of expertise.

3. The Respondent saw Dr. Schaffner for evaluation on March 3, 2003. Prior to that evaluation she reviewed some of his prior treatment history and records concerning the incident for which he was arrested, as well as letters from a prior physician who had treated him. Dr. Schaffner asked the Respondent to take two psychological tests following their meeting: the Zung Depression Scale and the Minnesota Multi- Phasic Personality Inventory-II (MMPI-II).

4. The Zung Depression Scale is designed to quantify recent depressive symptoms or level of depression. The MMPI-II is a complex 500 question psychometric test that Dr. Schaffner had scored by the company owning the test. She then interpreted the results.

5. As a result of the Zung test administered to the Respondent, Dr. Schaffner opined that he was not suffering from any significant depressive symptoms, although she did feel that he had had depression episodes at various times.

6. As a result of the MMPI-II psychological test Dr.

   
   

   Schaffner testified that his score did not fit with her pre- existing impression of Mr. Ramme from the interview; it was rather an unusual result. The Respondent did not complete some of the basic identifying information on the test which can affect the scoring. She also testified that some of his responses were very different from what he had told her in the verbal interview a couple of hours before he took the test.

   Although he had verbally described himself as a loner with only one close friend in California, the MMPI-II gave the specific description that the Respondent was "quite outgoing and social," with a "strong need to be around others. . . is gregarious and enjoys attention."

7. Dr. Schaffner explained the five axes that are used in psychiatric diagnosis (as represented in the "DSM-IV" diagnostic

   handbook) which are ways to describe different aspects of a person's symptoms and behavior when they have a psychiatric illness. The five specific axes are:

   Axis I: Thought to be primarily very

   serious psychiatric illnesses that might have a biologic base.

   
   

   Axis II: Developmental delays and developmental problems, mental retardation and personality disorders.

   
   

   Axis III: Other medical conditions.

   
   

   Axis IV: Recent stressors, economic stressors, major illnesses traumas.

   
   

   Axis V: Global Assessment Functioning (GAF), this is a number from 0-99, used to describe an individual's ability to function.

   
   

8. After her evaluation of the Respondent, her consultation with his prior physicians and the reviewing of his records, Dr. Schaffner expressed the following diagnosis: As to Axis I she found a "mood disorder, not otherwise specified," (NOS), stating that the Respondent has a serious and chronic psychiatric condition, is impaired and has difficulties. She was concerned that he may have some cognitive changes over a period of time because he did not present like a professional nurse with regard to the vocabulary he used or his way of discussing things that they talked about.

9. She also found that he might have a schizo-affective disorder, which is a chronic illness associated with mood

   symptoms as the Respondent has exhibited. People with schizo- effective disorder tend to have a decrease in functioning over time, as Dr. Schaffner believes Mr. Ramme has experienced. As to Axis II she finds a personality disorder with paranoid and narcissistic features as being exhibited by the Respondent.

   Such a disorder can be characterized by declining cognition ability or ways of perceiving and interpreting other people and events which she believes are consistent with the history displayed by Mr. Ramme, such as his rather turbulent employment history and relationship with other people since 1998. She finds also that this sort of personality disorder is characterized with a range of intensity or appropriateness of emotional responsibility "which deviates from the expectations of the culture in which Mr. Ramme lives and operates." In other words she found that his emotional response or responsibility deviated marketedly from expectations of his culture and that his inter-personal function and impulse control exhibited deviation from normal expectations.

10. Concerning Axis III she found that he had history of hypertension, hepatitis C, hyperlipidemia and pot smoking. Concerning Axis IV she found stress of a moderate level including chronic psychological problems, problems with work functioning, social isolation and financial struggles. Concerning Axis V, she found that he had a current level of

    functioning of 60 on a scale of 0 to 99. She found that score significantly low and explained that with a higher number an individual is functioning better. When the level of functioning goes down into the 70's range a person can be responding to problems and still functioning pretty well, but below 70's down into the 60's one sees an indication of significant problems.

    Dr. Schaffner found that the Respondent was having difficulties in functioning in both his social life and his work life.

11. Dr. Schaffner established that the Respondent has a history of impairment and a lack of awareness of his difficulty and a lack of interest in securing and pursuing on-going treatment. This makes him at risk in nursing practice since he would not be in treatment or monitored. The Dr. opined that patients could potentially be at risk if the Respondent should be allowed to practice as a nurse without treatment, close supervision and monitoring. She stated that the Respondent needs further evaluation to see that he has not suffered some cognitive declines. It must be ascertained if he has the intellectual capabilities for nursing information and she found that he needs on-going psychiatric evaluation and treatment, including medication. He would need close monitoring of his nursing performance and perhaps limitations on the type of environment he could practice nursing in, in order to continue practicing nursing in some fashion, according to Dr. Schaffner.

12. Dr. Schaffner also described the Respondent's multiple employment terminations and the effect of those on his ability to practice nursing with reasonable skill and safety. She highlighted an incident of his "poor judgment that's not consistent with professional nursing behavior." This involved the Respondent's termination from employment and his demand for a paycheck immediately upon his termination. Because of the Respondent's refusal to leave the facility where he was terminated that day, security personnel had to be called to forcibly remove him.

13. The Respondent obtained his Florida licensure in 1998 and has had three employment positions since that time in the nursing field. He worked for CDI an agency in Pensacola that staffed the hospital in Panama City. He was terminated from that position when he refused to drive the 90 miles to the hospital to work one evening in a hurricane. His second job was at West Florida Hospital where he worked in the emergency room. Due to some disagreement or verbal altercation or disagreement as to policy he was terminated from that position in September of 1999, after being hired in July of 1999. His third position was with a firm called "Nurses on Call." He had just begun orientation and employment with "Nurses on Call" when he was arrested in June of 2000 concerning the battery charge. This event apparently caused him to lose that job before he actually

    got started with his duties.

    
    

14. Dr. Schaffner also found that the Respondent "does not seem to be aware of the significance or seriousness of a number of his experiences or things that have happened to him. He minimizes the seriousness of his previous psychiatric hospitalizations. . . he has a marked lack of either insight or understanding of the difficulty that he has had in a number of settings." Also, according to Dr. Schaffner, the Respondent is not currently being monitored by any kind of health care professional except concerning his high blood pressure.

15. Dr. Schaffner thus opined that the Respondent is not able to practice nursing with reasonable skill and safety without treatment, monitoring and exhibiting a willingness, on an ongoing basis in the future, to be treated and to continue his treatment.

16. Although she obtained additional information that the Respondent related to her during the hearing, Dr. Schaffner indicated that the additional information would not change her diagnosis of the Respondent nor her opinion concerning his ability to practice nursing. Dr. Schaffner also opined that the Respondent's statements to the effect that he had long periods of "low moods and hopelessness and problems sleeping" were consistent with a major depressive disorder diagnosis. Although the Respondent sought to illicit a definitive diagnosis from

    Dr. Schaffner in his examination of her, to the effect that he does not have a bi-polar disorder, Dr. Schaffner opined that she did not have enough information to rule that out. A "bipolar disorder" is one of the potential diagnoses under the diagnosis "mood disorder NOS" which she had given him.

17. The Respondent admitted that he had mood problems in the past and that he had "taken some medications." The Respondent also stated that he is ready to do his best and do whatever is necessary to get back into nursing, including necessary treatment. The Respondent states that he had started going to the Lakeview Center in Pensacola, a local mental health center, in 1999, to continue on medications that he had previously taken. Those medications included Restoril, a benzodiazopine for sleep and Zoloft, a Seratonin re-uptake inhibitor, commonly known as a mood drug. The Respondent had taken Zoloft for approximately three and one-half years until he stopped in June of 2000. That is the month when he was arrested for battery and resisting arrest, involving the altercation with his then-girlfriend. The Respondent also admitted to taking Lithium, a medication normally prescribed for bi-polar disorder. It is unclear whether he stopped taking the Lithium prior to or after the arrest.

18. The Respondent has been very candid and remorseful in admitting and discussing the altercation which led to his minor

    criminal conviction. He additionally has been quite candid and positive in expressing the need and the desire to embark on treatment of his personality disorder, including taking medication if necessary and undergoing evaluation therefore. He is passionate about wishing to continue practicing nursing and has a keen desire to help disabled people. He is confident that he has a large fund of knowledge which would help him to continue to practice highly-skilled nursing and has a strong desire to continue to do so. He is willing to do whatever is best for him in order to get back to practicing his nursing

    profession.

    
    

    CONCLUSIONS OF LAW

    
    

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

20. The Board of Nursing has the authority to impose one or more of the following penalties for violation of Section 464.018(1), Florida Statutes (2000):

    1. Revocation or suspension of a license with reinstatement subject to the provision of subsection (3).

       
       

    2. Permanent revocation of a license.

       
       

    3. Restriction of practice.

       
       

    4. Imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense.

       
       

    5. Issuance of a reprimand.

       
       

    6. Placement of a nurse on probation for a period of time and subject to such conditions as the board may specify, including requiring the nurse to submit to treatment, to attend continuing education courses to take an examination, or to work under the supervision of another nurse.

       
       

21. The burden of proof in this matter is on the party, the Agency, asserting the affirmative of the issue, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner has the burden in this proceeding to establish facts upon which its allegations are based by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

22. Section 464.018(1)(j), Florida Statutes (2000), provides in pertinent part as follows:

    (1) The following acts shall be grounds for disciplinary action set forth in this section:

    
    

    * * *

    
    

    (j) being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemical or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the secretary or the secretary's

    designee that probable cause exists to believe that the licensee is unable to practice nursing because of the reason stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department.

    . . . A nurse affected by the provisions of this paragraph shall at reasonable intervals be provided an opportunity to demonstrate that she or he can resume the competent practice of nursing with reasonable skill and safety to patients.

    
    

23. The Petitioner has demonstrated by clear and convincing evidence that the Respondent is currently unable to practice nursing with reasonable skill and safety to patients by reason of illness or mental condition. Before being allowed to unrestrictedly practice he should submit to a psychological evaluation including referral to an impairment program and with conditions attached to his practice to ensure safety of patients, including direct supervision by another registered nurse or physician and follow-up on the psychological/ psychiatric evaluation which includes a firm commitment and embarkation on a treatment program. This should include appropriate medication, if the psychological/psychiatric evaluator or evaluators deem such to be required for an appropriate treatment regimen.

24. The disciplinary guidelines of the Board of Nursing are found at Rule 64B9-8.006(1), Florida Administrative Code, and provide a range of penalties for violation of the provision

    of Section 464.018, Florida Statutes. Under Rule 64B9- 8.006(3)(k), Florida Administrative Code, concerning impairment, a violation of Section 464.018(1)(j), Florida Statutes, may be disciplined as follows:

    Fine from $100.00 - $1,000.00 plus referral to IPN [impairment program] and stayed suspension under IPN or probation with conditions: suspend for time certain to show continuous sobriety and until proof of safety to practice; fine from $250.00 -

    $l,000.00 prior to reinstatement followed by probations with conditions or IPN participation.

    
    

25. In light of the Respondent's candid admission to the allegations of Count I of the Amended Complaint concerning the battery conviction and his demonstration of genuine remorse for that single isolated incident, the appropriate penalty for that violation of Section 464.018(1)(d)(5), Florida Statutes, is the issuance of a written reprimand and a psychological evaluation co-extensive with that recommended with reference to the violation with regard to Count II of the Amended Complaint.

26. Concerning the violation referenced in Count II of the Amended Complaint, the Respondent should be required to undergo a psychological/psychiatric evaluation prior to any practice.

He should be required to faithfully comply with a treatment regimen, if such is recommended by the psychological/psychiatric evaluator; that he practice under the supervision of another registered nurse or physician; his licensure should be suspended

for a period of two years, with the suspension stayed for a probationary period of two years, conditioned on the Respondent's complying faithfully with the requirements of and recommendations of the psychological/psychiatric evaluators, the restrictions on his practice involving direct supervision, his required participation during that time period in an appropriate IPN program and other monitoring and continuing education conditions reasonably to be imposed by the board.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore,

RECOMMENDED that with regard to the violation in Count I that, by Final Order, a written reprimand be accorded to the Respondent and that he be required to submit to the psychiatric evaluation and/or treatment referenced with regard to Count II.

It is further RECOMMENDED, with regard to Count II that a Final Order be entered finding the charges substantiated and imposing a two-year suspension of licensure, with the suspension stayed. Concomitant with the stay of suspension, there shall be imposed a two-year probationary period wherein the Respondent must successfully undergo a psychological/psychiatric evaluation and faithfully follow any treatment regimen recommended by such

evaluators, including on-going medication, if needed, and accompanied by the successful completion of an IPN program and other continuing education and monitoring conditions, including direct supervision by a registered nurse or physician as may be reasonably required by the Board of Nursing, as conditions on his continued practice.

DONE AND ENTERED this 6th day of August, 2003, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 6th day of August, 2003.

COPIES FURNISHED:

Lynne A. Quimby-Pennock, Esquire Department of Health

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

Peter J. Ramme, R.N., pro se 1600 E. DeSoto Street Pensacola, Florida 32501

R. S. Power, Agency Clerk Department of Health

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

Dan Coble, RN, PhD CNAA C, BC Executive Director

Board of Nursing Department of Health

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

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: 03-001101PL

Orders for Case No: 03-001101PL