STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

) BRENDA A. THOMPSON, C.N.A., )

)

Respondent. )

Case No. 07-0044PL

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on March 8, 2007, in Panama City, Florida.

APPEARANCES

For Petitioner: William F. Miller, Esquire

Department of Health

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

For Respondent: Brenda A. Thompson, pro se

21734 Clarks Road

Fountain, Florida 32438 STATEMENT OF THE ISSUE

The issue is whether disciplinary action is appropriate with regard to Respondent's license as a Certified Nursing Assistant.

PRELIMINARY STATEMENT

The genesis of the hearing was an Administrative Complaint filed by the Department of Health, Board of Nursing (Department), on April 25, 2006, naming Brenda Ann Thompson (Mrs. Thompson) as Respondent. In an Election of Rights form dated May 30, 2006, Mrs. Thompson disputed the allegations of the Administrative Complaint and asserted her right to a hearing.

The matter was forwarded to the Division of Administrative Hearings and filed on January 3, 2007. The case was assigned to Administrative Law Judge Charles C. Adams and set for hearing on March 8, 2007. The Department subsequently moved to amend the Administrative Complaint, the Motion was granted, and the Amended Administrative Complaint was filed on February 1, 2007.

On January 4, 2007, the Department served Mrs. Thompson with discovery materials, including a Request for Admissions. The Request for Admissions was received by Mrs. Thompson. The response to the Request for Admissions was not received by the due date of February 8, 2007. When the hearing commenced, the document had not been received by counsel.

On February 14, 2007, the Department filed a Motion to Deem Admitted. This motion asked that the matter contained in the Request for Admissions be admitted as facts. This Motion was

granted in an order signed by Administrative Law Judge Adams on March 1, 2007.

On March 1, 2007, the Department filed a Motion to Relinquish Jurisdiction based on the assertion that the facts deemed admitted were such that no material facts remained in dispute. On or about March 5, 2007, the case was administratively assigned to the undersigned Administrative Law Judge.

A telephonic hearing was held on the Motion to Relinquish Jurisdiction on March 6, 2007. All of the parties participated. Wendell Thompson, who informed the undersigned that he was

Mrs. Thompson's husband, also participated. Wendell Thompson asserted that the Request for Admissions had been properly completed and that he had mailed the document to counsel for the Department. No ruling was made at this time so that sworn testimony could be had.

At the hearing, both Mr. Thompson and Mrs. Thompson claimed that the Request for Admissions had been timely completed, but did not assert that they had sworn to the answers before a notary. They further asserted that it had been timely mailed to the Department. A document, purporting to be a completed request for admissions, marked as Respondent's Exhibit 1, was received into evidence.

Mr. and Mrs. Thompson claimed that a copy of Respondent's Exhibit 1 was mailed to counsel for the Department.

An inspection of the reverse of Respondent's Exhibit 1, revealed raised pressure marks of the implement making the checkmarks. Recognizing that a copy of the document could have been made, and the both the original and the copy executed, it is nevertheless more likely that Respondent's Exhibit 1 is the original that should have been, but wasn't, sent to counsel for the Department. Accordingly, it is found that the assertion by Mr. and Mrs. Thompson that a copy of the document was sent to counsel for the Department lacks credibility.

Accordingly, it is found that Mrs. Thompson did not at any time respond to the request for admissions.

Pursuant to Rule 1.370, Florida Rules of Civil Procedure, the failure to deny under oath any requested admission results in the facts contained in the request being admitted. However, in the case of unsophisticated litigants, unschooled in the niceties of the Florida Rules of Civil Procedure, the forfeitures provided therein should not necessarily operate to prevent Mrs. Thompson from having a hearing.

In at least one case, Farish v. Lum's, Inc., 267 So. 2d 325 (Fla. 1972), corporate counsel, presumably well-trained in the law, failed to have his client sign the Requests for Admissions submitted by Farish, or to swear to their denials. In that

case, Lum's, Inc., when faced with a motion for summary judgment, offered a properly completed response prior to entry of judgment. However, the trial judge entered summary judgment in favor of Farish. A motion for rehearing, based on

Rule 1.540(b), Florida Rules of Civil Procedure, was denied by the trial court.

The Third District Court of Appeal overruled the trial court, finding that the trial court abused its discretion by failing to find Lum's, Inc.'s failure to be the result of inadvertence. The Florida Supreme Court overruled the Third District Court of Appeal, holding that it is the role of the trial court to apply these types of procedural rules. In this case, it is the duty of the fact-finder, the Administrative Law Judge, to apply the rule.

Walker v. City of Bartow Police Department, 725 So. 2d 382 (Fla. 2d DCA 1998), held that where the defendant maintains a position contrary to the automatic admission in all other pleadings and affidavits filed prior to summary judgment, the withdrawal of the admission and acceptance of the belated response preserves presentation of the case on the merits. See Sher v. Liberty Mut. Ins. Co., 557 So. 2d 638 (Fla. 3d DCA 1990). While it is normally within the trial court's discretion to use a technically deemed admission to support a summary judgment, it is error if the record contains evidence to the

contrary of the admission. See State Dep't of Revenue v. Aravz, 678 So. 2d 464 (Fla. 3d DCA 1996) and Sterling v. City of West

Palm Beach, 595 So. 2d 284 (Fla. 4th DCA 1992).

Upon consideration of the clear assertion by Mrs. Thompson that she disputed the essential elements of the Amended Complaint and that she wanted a hearing, in her response to the notice of rights, and upon consideration of Mrs. Thompson's lack of sophistication in the niceties of the Florida Rules of Civil Procedure, it is found that Mrs. Thompson's failure to make denials in the request for admissions did not require that the facts contained therein be admitted. See Fla. R. Civ.

P. 1.540(b). Accordingly, the Motion to Relinquish Jurisdiction was denied.

At the hearing, the Department presented the testimony of Lesly Buchikos (by telephone), Nurse Stan Dunn, and Nurse Jodie Mills. The Department offered five exhibits that were received into evidence.

Respondent testified and presented the testimony of Kevin McVay, Joseph Mowers, and Donna Sirk. These witnesses have known Mrs. Thompson for two years or more and currently work with her at Sea Breeze Health Care Nursing Home (Sea Breeze).

Mrs. Thompson did not offer any exhibits in her case-in- chief.

A Transcript was filed on April 11, 2007. After the hearing, the Department filed its Proposed Recommended Order on April 19, 2007. Mrs. Thompson did not submit a Proposed Recommended Order.

References to statutes are to Florida Statutes (2004) unless otherwise noted.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of nursing pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes.

2. Mrs. Thompson, during times pertinent, held a certificate as a Certified Nursing Assistant (C.N.A.) and was assigned license number CNA24755 by the Department. She was originally licensed October 6, 2003. At the time of the hearing she was a resident of Fountain, Florida.

3. Lesly Buchikos (Ms. Buchikos) is a C.N.A. licensed in the State of Florida. She is also licensed in the State of New Hampshire, and has been licensed in that state since 1976.

   Ms. Buchikos currently lives in New Hampshire and works as a

   
   

   C.N.A. in a New Hampshire medical facility. She has 31 years of experience as a C.N.A.

4. Ms. Buchikos has worked continuously as a C.N.A. since 1976. She has received specialty training in geriatrics and caring for patients suffering from Alzheimer's and related

   disorders. She has trained medical personnel on providing aid to elderly persons and on the rights of persons residing in nursing homes. Professionally, Ms. Buchikos has substantially more experience than Mrs. Thompson, and has undergone more training.

5. On February 15, 2005, Mrs. Thompson and Ms. Buchikos were working together at the Community Health and Rehabilitation Center in Panama City, Florida (Community). This facility houses elderly persons. Some of the residents are mentally and physically challenged.

6. On that day, Mrs. Thompson and Ms. Buchikos were assigned to change the soiled undergarments worn by

   Resident R.L. Resident R.L. was more than 70 years of age and was suffering from dementia. He was nonverbal and resisted care. He was a very difficult patient.

7. Ms. Buchikos believes that when tending to residents, like Resident R.L., it is best to carefully explain what you wish to accomplish, before undertaking care, and to allow the resident time to respond. She believes that when the two approached Resident R.L., in the morning hours of February 15, 2005, Mrs. Thompson failed to explain their intentions toward him and that failure caused him to become agitated.

8. According to Ms. Buchikos' testimony, Resident R.L. resisted the efforts of Mrs. Thompson. She testified that

   Mrs. Thompson became rough and angry with Resident R.L., cursed him, and slapped him on the left buttock. Ms. Buchikos testified that the sound emanating from the slap was so loud that it echoed through the building.

9. Ms. Buchikos is certain that the slap was intentional and that it jolted him. She said that Mrs. Thompson used her left hand to strike him. She said this behavior upset her and that she cried. She reported this to the charge nurse, Amy Rosin, and prepared a written statement relating her allegations. Resident R.L. was unable to make a statement and has since died.

10. Registered Nurse Jodie Mills was the nurse supervisor who was in charge of the entire facility during the hours from 11:00 p.m. February 14, 2005, to 7:00 a.m. on February 15, 2005. Early in the morning of February 15, 2005, Ms. Rosin, informed Nurse Mills of Ms. Buchikos' allegation. Based on that report he sent Mrs. Thompson home.

11. Nurse Mills had no personal knowledge of the incident, nor, insofar as the evidence reveals, did Ms. Rosin. He noted in a statement signed by him and dated February 15, 2005,

    "I could not find any sign of marks on Resident R. L.'s bottom." He now works with Mrs. Thompson at Sea Breeze. He has never seen Mrs. Thompson strike anyone at Community or Sea Breeze.

12. Registered Nurse Stan Dunn, on February 15, 2005, was a supervisor and risk manager at Community. He has 11 years of experience in the nursing field. Nurse Dunn's chain of command ran to the assistant director of nursing, who reported to the director of nursing. He was informed of the incident by Nurse Mills. Nurse Dunn investigated the incident. When he questioned Mrs. Thompson about the incident, she denied the events occurred as related by Ms. Buchikos.

13. Nurse Dunn was intimately familiar with Resident R.L. He had personally cared for him and described him as incoherent, bigger than average, strong, and sometimes aggressive. He stated that usually two staff members were required to control him.

14. On February 16, 2005, Nurse Dunn prepared an Initial Adverse Incident Report-Day 1 that was submitted to the Florida Agency for Health Care Administration (AHCA). This report parroted the information supplied by Ms. Buchikos. He later sent AHCA a Complete Adverse Incident Report-15 Day, which added the information that Mrs. Thompson had been formally suspended.

15. On February 21, 2005, Nurse Dunn signed a memorandum entitled "Employee Counseling." He informed Mrs. Thompson of the results of the internal investigation into the events of February 15, 2005, and informed her that she would be terminated. She responded with threats to, "call the board" and

    report them. A subsequent Personnel Action Request dated February 21, 2005, effected Mrs. Thompson's termination.

16. Nurse Dunn stated that Mrs. Thompson was terminated because the facility was not able to totally preclude that the incident did not occur and because the facility had to err on the side of caution.

17. Mrs. Thompson stated that on the morning of

    
    

    February 15, 2005, it was necessary for Ms. Buchikos and her to clean Resident R.L. She said that she was holding Resident R.L. with her left arm and washing him with her right. Resident R.L. was being difficult and while holding him she had to draw back and when she did, her glove snapped and made a sound that she believes Ms. Buchikos mistook for a slap.

18. Mrs. Thompson said that she had been in an automobile accident on December 28, 2004, and that she suffered severe injuries to her left arm and required skin grafts on it as a result. Indeed, at the hearing it was obvious that her arm was the recipient of skin grafts at some time in her life. She said that her arm was in a sling at the time of the reported incident. She stated that these injuries made it impossible for her to slap anyone with her left hand.

19. Mrs. Thompson stated that she did not curse or otherwise speak or yell inappropriately to Resident R.L.

20. Donna Sirk, Kevin McVay, and Joseph Mowers are licensed practical nurses with many years of experience, and they currently work with Mrs. Thompson at Sea Breeze. They have worked with her for about two years. They stated that they had never seen her curse or otherwise misbehave and stated that she was a good caregiver upon whom they could depend.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

22. The burden of proof is on the Department to show by clear and convincing evidence that Respondent committed the acts alleged in the Amended Administrative Complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. Clear and convincing evidence requires that, "The 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 produces 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." Department of State,

    Division of Licensing v. Gerald Brown, Case No. 95-1850 (DOAH

    August 8, 1995), citing Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

24. Subsection 464.018(1)(n), Florida Statutes, provides as follows:

    1. Disciplinary actions

       
       

       1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

    
    

    * * *

    
    

    (n) Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience.

    
    

25. Subsection 464.204(1)(b), Florida Statutes, provides as follows:

    464.204. Denial, suspension, or revocation of certification; disciplinary actions

    
    

    1. The following acts constitute grounds for which the board may impose disciplinary sanctions as specified in subsection (2):

    
    

    * * *

    
    

    (b) Intentionally violating any provision of this chapter, chapter 456, or the rules adopted by the board.

    
    

26. Florida Administrative Code Rule 64B9-8.005 defines "failing to meet or departing from minimal standards of acceptable and prevailing nursing practice." Florida

    Administrative Code Rule 64B9-8.005(2)(o) defines the phrase "failing to meet or departing from minimal standards of acceptable and prevailing nursing practice" to include "using force against a patient, striking a patient, or throwing objects at a patient." Further, according to Florida Administrative Code Rule 64B9-8.005(2)(p), the phrase includes, "using abusive, threatening or foul language in front of a patient or directing such language toward a patient."

27. Mrs. Thompson offered character evidence for the purpose of demonstrating that she would not commit the acts charged. Character evidence in civil and administrative cases is inadmissible to prove action in conformity with it on a particular occasion. § 90.404(1), Fla. Stat., and Ehrhardt, Florida Evidence § 404.3.

28. However, when an administrative case charges an act which is akin to a criminal action, such as the charge in this case, which describes a battery, then the exception described in Subsection 90.404(1)(a), Florida Statutes, may apply. It is appropriate to apply the exception in this case. Therefore, the evidence offered that Mrs. Thompson does not make a habit of striking or cursing her patients will be considered. However, the evidence is not given great weight.

29. In the final analysis, due to Resident R.L.'s inability to illuminate the incident, only Mrs. Thompson and

    Ms. Buchikos saw and heard what happened on February 15, 2005. Thus, because the two versions are mutually exclusive, resolution must be made by an analysis of the credibility of the two people who were present.

30. There is no evidence in the record indicating a motive for Ms. Buchikos to lie about the incident. Her testimony as to what she believed occurred is taken to be true. That, however, does not rule out the possibility she was mistaken.

31. Mrs. Thompson's version of the event is bolstered by evidence that her left hand, the hand that Ms. Buchikos insisted was used to strike Resident R.L., was injured, and the evidence offered by Nurse Mills that he inspected Resident R.L.'s bottom after the incident and saw no marks. Mrs. Thompson's assertion that the snapping of her glove was the slapping sound heard by Ms. Buchikos is not patently unbelievable.

32. Evidence from four witnesses to the effect that they had worked with Mrs. Thompson for a combined period of many years, and had never seen her strike or curse a patient, adds something, but not much, to Mrs. Thompson's side of the scales of justice.

33. The evidence in this case, considered as a whole, does not provide the Administrative Law Judge the firm belief or conviction, without hesitancy, that the allegations are true.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health, Board of Nursing, dismiss the Amended Administrative Complaint.

DONE AND ENTERED this 24th day of April, 2007, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 24th day of April, 2007.

COPIES FURNISHED:

William F. Miller, Esquire Department of Health

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

Brenda A. Thompson 21734 Clarks Road

Fountain, Florida 32438

Josefina M. Tamayo, General Counsel Department of Health

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

Rick Garcia, MS, RN, CCM, Executive Director Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701

Patricia Dittman, PhD(C), RN, CDE, Board Chair Department of Health

4052 Bald Cypress Way, Bin C02 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: 07-000044PL

Orders for Case No: 07-000044PL