Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
Findings Of Fact At all times pertinent hereto, Respondent, Erin Gayle McCormick, was a registered nurse and licensed as such by the State of Florida under License No. 101652-2. On June 24, 1981, Respondent's nursing license was suspended because of charges relating to drug use and the forging of prescriptions and their subsequent issue while she was employed at Leesburg Nursing Center during August and September, 1980. Thereafter, on October 12, 1982, the suspension was lifted and Respondent's license was reinstated on one year's probation, subject to certain conditions, one of which was that she not violate any federal or state laws, or rules or orders of the Board of Nursing. Another condition of probation was that she not consume or otherwise self-medicate with any unprescribed controlled substances. Respondent has been a long-term patient of Dr. Paul F. Tumlin, her family physician for many years and who, during the period August through October, 1982, treated her several times for two separate types of headaches, cluster headaches and migraine headaches. Both generate great pain when an attack is ongoing. During the period in question, he treated Respondent with several types of pain killers, some of which are controlled and some of which are not. Among the drugs he used to treat Respondent are: Florinal, Zomax, Phenergan, Inderal, Ludiomil, Talwin and Nubain. Each of these drugs has some side effect. However, over prolonged use, a tolerance may develop in the patient so that the magnitude of the side effect is reduced. Several of them produce such side effects as drowsiness and blurred vision (Ludiomil and Talwin). Another (Inderal) produces depression and weakness. Phenergan is a drug which used in conjunction with others tends to accentuate or extend the effect of that drug. The side effects are of varying duration, and a nurse should not practice her profession when those side effects, such as drowsiness, unclear vision, unsteadiness and weakness, interfere with the full effective control of her facilities and the safe performance of her duties. However, reasonable use of any drug, consistent with a medically indicated purpose, does not constitute drug abuse. Dr. Tumlin cannot recall from memory or from his records any instance where Respondent abused medications prescribed for her by him. All of the drugs Dr. Tumlin prescribed for Respondent during this period are listed in her medical records. These records reflect that on October 14, 1982, Dr. Tumlin prescribed for the Respondent 36 tablets of Florinal #3, a pain killer which contains codeine, which he directed be taken either one or two at a time every four hours for pain. This prescription was authorized one refill. Pursuant to the terms of the October 12, 1982, Order, on October 18, 1982, less than one week after the reinstatement of Respondent's license, Nita Edington, an investigator for the Department of Professional Regulation (DPR), contacted Respondent and requested she provide a urine sample for testing. This was not done because of any report of drug abuse by Respondent and was less than a week after the Board of Nursing, in its October 12, 1982, Order, indicated receipt of good reports on her rehabilitation. This urine sample provided by Respondent was subsequently tested by DPR's contract laboratory and determined to be positive for codeine. However, this codeine residue was from the ingestion of Florinal #3, which had been previously prescribed for Respondent by her physician. Respondent was employed in a full-time position as a nurse at the Leesburg Nursing Center, Leesburg, Florida, during August and September, 1980. When she had indication her license was to be reinstated, on August 12, 1982, she applied for a position at the Lakeview Terrace Retirement Center (LVT). The application form filled out, signed and submitted by Respondent calls for "Former Employers and Experience (References)" and reflects that the position desired by the applicant was "sitter." Respondent, in listing former employers, listed the following: Shoe-Biz III 10/81-2/82 Belks 1/81-6/81 Tampa Critical Care 9/79-6/80 Nursing Pool Leesburg General-Hospital 6/78-11/78 11/78-7/78 This total period covered includes the months of August and September, 1980, but the application form fails to reflect the August and September, 1980, employment at Leesburg Nursing Center. On November 11, 1952, Respondent applied for a position as a registered nurse at Lake Community Hospital, Leesburg, Florida, and filled out and submitted an application form which called for the applicant to list the last four employers, starting with the last one first. On this form, Respondent listed: Lakeview Terrace Retirement Center 5/82-10/82 Tampa Med. Pool 11/79-10/80 Waterman Memorial Hospital 11/78-7/79 Leesburg General Hospital 6/78-11/78 Again, she failed to list her employment at Leesburg Nursing Center during August and September, 1980, including that period in the employment period at Tampa Med. Pool, which was untrue, nor did she reveal this employment when she was interviewed for the position. Had she done either, the reference would have been checked, and the information provided by this reference would have had a definite bearing on the decision to hire Respondent or not. Respondent was hired by Lakeview Terrace Retirement Center as a sitter on August 24, 1982, and her position was converted to that of a registered nurse on August 30, 1982, when a vacancy came about. On several occasions from that date until she resigned from employment on October 29, 1982, Charles W. Dick, at that time a food supervisor at the facility, now head baker and a former Baptist minister who, he says, has counseled 100 drug addicts over a 35-year ministry, observed Respondent when she came to the kitchen to pick up food for a resident/patient. On three particular occasions, he saw that her eyes were glassy; her speech was unclear, though understandable; and she appeared unsteady on her feet. Mr. Dick did not, however, report these incidents or discuss them with anyone other than his wife, also an employee of the facility. These symptoms, which are often indicative of drug ingestion, are, according to Dr. Tumlin, also consistent with the effects of severe migraine headaches. Laura Burley, a licensed practical nurse (LPN), worked with Respondent at Lakeview Terrace Retirement Center during August through October, 1982. Ms. Burley has had 10 years' experience with drug abuse patients and is familiar with the symptoms of drug abuse. In her opinion, she saw similar conduct on the part of Respondent during this period. She saw, for example, the Respondent frequently ingest white tablets while on duty, though she does not know what they were. She has heard Respondent complain of the cold and put on a lab coat when the witness, herself, was not cold. She has observed Respondent clutching her stomach and holding her head and has heard Respondent say she did not know if she would make it through the day. She observed Respondent to have radical mood shifts and to eat a lot of sugar or foods with heavy sugar content. She has seen Respondent frequently try to get into the drug carts or get the keys to the drug cart. Ms. Burley also keeps a notebook in which she records what she perceives as unusual conduct on the part of her coworkers. She does this because of her interpretation of a request by the facility administrator for her to report to him any significant occurrences. Doris Draper was also an LPN at LVT while Respondent worked there. A part of Ms. Draper's duties was to dispense drugs. On one occasion, while she was doing so, Respondent came to her and asked for the keys to the medication cart, as she needed to get some Tylenol for another nurse, Mrs. Dick. On a later discussion, Mrs. Dick denied having asked Respondent to get her Tylenol, but said she had wanted some other medicine for a patient. On the basis of this, the two nurses concluded that Respondent intended to substitute regular Tylenol for a patient's Tylenol #3 so as to convert the latter codeine-included medication to her own use. However, though Ms. Draper heard other nurses say they suspected Respondent was taking drugs, she never saw her do so. Nurse Donna Devoe also worked with Respondent at LVT during the period in question. At one point during Respondent's employment, at the request of Ms. Burley and Ms. Draper, she reviewed the charts on a patient, Mrs. Testerman, who, by her recollection, rarely received pain medication. Her review of these patient records revealed that the patient was recently being given pain medicine more frequently than usual by Respondent, whom she counseled about the situation. Ms. Devoe also discussed the situation with the Center administrator, but, because there was no evidence of drug diversion, nothing further was done about it. Her review of the records also revealed that all medications given to patients by the Respondent were given in accordance with a physician's orders, and there was no evidence that Respondent violated these orders. Based on all the above, if Respondent was under the influence of any medication, it was the medication prescribed for her by Dr. Tumlin and not non- prescribed substances. The symptoms described by Mr. Dick, certainly not a trained drug therapist, are equally pertinent to migraine headaches. The innuendos of Ms. Burley, Ms. Draper and Mrs. Dick are just that--innuendos--and not probative of any improper drug usage. Not one witness could conclusively state there was any instance where Respondent failed to properly treat patients or was incapable of doing so because of drugs, alcohol, or illness. Mr. Speener, to whom Ms. Devoe and Ms. Burley both admittedly reported, stated that he had no reports of poor or improper treatment. By his own admission, due to her prior involvement, for which she had been disciplined, Respondent was the subject of "preconceived concerns and misinformation, rumors, and etc.," and she found it difficult to function. In his letter to Ms. Keefe, Mr. Speener said that if there was any conclusive, provable evidence of incompetence, or if there was any substantiation of drug involvement, Respondent would be immediately terminated. Mr. Speener could find no evidence of such and neither can I. In fact, he found her to be a highly professional nurse. During the period of her employment, Respondent had responsibility for the care of, inter alia, Clifford Bryant and Arthur Everett. Arthur Everett was an elderly, paralyzed individual who, on the occasion in question, was administered treatment by Respondent for an impacted bowel. This procedure was inordinately messy and resulted in fecal material getting on both Mr. Everett's clothing and the bed clothes. Both had to be changed. When Respondent came to the patient's room to perform this procedure, she failed to bring a clean gown with her. As a result, by her own admission, Mr. Everett was left totally undressed and uncovered without the screen drawn for the period of time it took her to go get him a clean gown. While this was going on, Mr. Everett was one of two patients in a semiprivate room. The other was a blind, stroke patient. No one else was in the room at the time, but Ms. Burley came in for one brief period while Mr. Everett was unclothed. With regard to Mr. Bryant, at the time in question, he had just arrived at the facility by ambulance and was in wrist restraints because he had previously tried to pull out his catheter. Respondent was in the midst of completing an admission examination of the patient when Ms. Burley entered the patient's private room to find out what was taking so long. She observed the patient to be fully unclothed with the bed clothes pulled down to the foot of the bed. This was also observed by Mrs. Dick, who, when she entered the room, saw the patient nude and the Respondent there with a stethoscope in her hand. While Ms. Burley does not consider this to be patient abuse, she does consider it to be an abuse of his privacy, poor practice and a violation of the standards of LVT. This opinion is shared by several others employed there, such as Nurse Warren and Mary Willis, a registered nurse of long standing and vast experience who is currently Supervisor of Investigative Services for DPR. Respondent denies that Mr. Bryant was totally unclothed at any time she was with him. When he arrived at the facility, he was in pajamas, and she helped him from the wheelchair to the bed before she began the examination. In order to complete the examination, it was necessary for her to unbutton his pajama top to listen to his chest sounds and to observe his chest movement. She also had to lower his bottoms to examine that part of his body as well, but in each case, she asserts she replaced the clothing when she was finished. In light of the nature of Ms. Burley's and Mrs. Dick's testimony on other aspects of this case, nebulous and devoid of specifics as it was, the fact that both were in the room only briefly and the apparent animosity felt by these witnesses toward the Respondent, the evidence shows that Mr. Bryant was not left totally unclothed at any time. On October 29, 1982, Mrs. Catherine Devore was visiting her husband, Henry, in his private room at LVT when Respondent entered the room to give him his medication. Mr. Devore is blind and has had a stroke and generally is uncommunicative. Because of his resistance to taking his medicine, it is concealed in ice cream which is fed to him. Mrs. Devore indicates that at the time in question, her husband's head was forward with his chin on his chest, and Respondent lifted it up for the medicine by entwining her fingers in the hair at the top of his head and pulling it up. Respondent did not yank his head up, but lifted and held the head up by the hair while she administered the medication. When Respondent released the head, the hair where Respondent had been holding remained standing up. Mrs. Devore did not consider this to be abuse, nor did she feel her husband was hurt by this action. She did, however, consider it unusual and unnecessary and felt that if the Respondent would treat her husband that way with her there, she was uncertain of the treatment he would get if she were not there. As a result, when she got home, she called one of the owners of LVT, to whom she reported the incident and who suggested she report it to the administrator, Mr. Speener, which she did. Respondent indicates a somewhat different story. When she went in to give Mr. Devore his medicine, Mrs. Devore stated, "He's not going to like that," at which point Mr. Devore put his head on his chest. Respondent then put one hand on his head and began to rub it while at the same time placing her other hand on his chin. With this, Mr. Devore voluntarily raised his head. When Respondent moved the hand on top of the head, the hair where she had been rubbing remained standing. In light of the basic improbability that a nurse would, without provocation, grab a patient by the hair and pull his head up with the patient's wife standing by and the fact that the actions described by Respondent could readily be mistaken for pulling, it is clear that Respondent did not pull Mr. Devore's hair on October 29, 1982, and, therefore, her actions did not constitute abuse. No report of abuse was ever filed with the Department of Health and Rehabilitative Services regarding this incident. Because of Mrs. Devore's report, however, Respondent was shortly called to the office of Mr. Eugene K. Speener, administrator of the 20-bed skilled nursing facility at LVT. After some discussion of the incident and of some other discussions they had had relating to Respondent's alleged rigidity of personality, he suggested, and she agreed, that her immediate resignation would be appropriate and accepted. Respondent was not discharged from employment, and her departure had nothing to do with drugs. Unfortunately, however, because of the knowledge of her former difficulty and the continued gossip and insinuations by coworkers, there was always present the spectre of her earlier problem, and Mr. Speener admits telling Respondent he felt it was difficult for her to function as a nurse at that facility because of it. He also included these sentiments in a letter he sent to Ms. Keefe of the Board of Nursing, sometime between October 15 and October 29, 1982. When it was determined that Respondent would resign effective immediately, Mr., Speener called Ms. Burley, who was off duty at the time, and requested that she come in and replace Respondent at 5:00 p.m. Ms. Burley agreed. In the interim, Respondent remained in another office until her departure from LVT sometime between 5:00 p.m. and 7:00 p.m. on October 29, 1982. When Ms. Burley got to the ward that day, she discovered that Respondent had already made entries in various patients' records showing procedures taken, medications given, vital signs taken and patient condition noted, all as of 8:00 p.m., October 29, 1982. Respondent admitted to Ms. Burley before she left that day that she had advance-charted the 8:00 p.m. medications that had not been given, and at the hearing admitted the other advanced chartings. She contends, however, that she did so partially upon the previous written advice of Ms. Burley, who, early in Respondent's tenure at LVT, suggested to her that she lump together three hours' medication at one time. It is also common practice to chart activities at a time other than when the actual function is accomplished. To do otherwise would make it impossible for a person to do what was required and at the same time accomplish the attendant paperwork. It is, however, unacceptable practice within the nursing profession, according to Ms. Willis, to chart substantially in advance. This is because things may change which alter the patient's condition, so that a particular precharted drug, for example, is not actually given, or some procedure is not followed. Generally, a leeway of one half hour on each side of the procedure or drug is acceptable. Somewhat after the submission of her application to Lake Community Hospital, she was employed by that facility as a nurse and is still employed there. According to two former coworkers, Respondent has performed in an excellent manner and has been recommended for promotion. Respondent's drug therapist for the last few years is of the opinion that Respondent is not now, nor was she during the August through October, 1982, period, abusing medications. Respondent is involved in nursing and has continued to improve. In fact, her supervision was terminated as unneeded in March, 1982. It was only because supervision was made a part of the Order of Probation that she is back with Petitioner.
Recommendation Based on the above, it is, therefore, RECOMMENDED: That Respondent be reprimanded and that probation be continued one additional year until October 11, 1984. RECOMMENDED this 21st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Helen P. Keefe Executive Director Board of Nursing Department of Professional Regulation Room 504 111 Coastline Drive, East Jacksonville, Florida 32202
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent is now, and has been at all times material hereto, a licensed practical nurse in the State of Florida holding license number PN 0626161. At all times material hereto, Dr. Vladimir Rosenthal owned three clinics in Dade and Broward Counties at which he performed abortions. The clinics were located in Coral Gables (hereinafter referred to as the "Coral Gables clinic"), North Miami (hereinafter referred to as the "North Miami clinic") and Plantation (hereinafter referred to as the "Broward clinic"). All three clinics were licensed under Chapter 390, Florida Statutes. In September and October, 1989, Respondent was employed by Rosenthal and worked full-time as a licensed practical nurse in the North Miami clinic. During this period of time, she had no responsibilities with regard to the other two clinics owned by Rosenthal. Among Respondent's duties at the North Miami clinic during this time period was to prepare, under Rosenthal's direct supervision, packages of medications that Rosenthal gave to his patients, free of charge, to take home with them upon their discharge, a practice that Rosenthal has since discontinued. 6/ On September 30, 1989, the Department of Health and Rehabilitative Services (HRS) conducted an on-site inspection at the Coral Gables clinic. Respondent was not present at the clinic during the inspection. Nor were there any patients at the clinic at the time. Approximately 50 small manilla envelopes containing multiple doses of medications were found in a drawer of a desk in the clinic. The envelopes were labeled to the extent that they indicated the name of the drugs they contained, but they did not provide any information regarding the lot number, expiration date or the name of the manufacturer of the drugs. Carmen Penaloza, one of the clinic workers who was present during the inspection, was asked to demonstrate how these packages were prepared. Penaloza proceeded to take an empty manilla envelope like the ones that had been found in the desk drawer and fill it with medication that came from a large container. In performing this demonstration, she did not use gloves and her bare hands came in contact with the medication. Carlos Arias, a licensed pharmacist and one of the HRS employees who participated in the inspection, advised Penaloza that the technique she had employed was unsanitary and recommended that in the future she use a tray and spatula like pharmacists do to perform such a task. The HRS inspection also revealed that medical devices were being stored in a refrigerator that also contained food items. On October 26, 1989, HRS conducted an on-site inspection of the North Miami clinic. Arias was among the various HRS employees who were on the inspection team. Diane Robie, a medical quality assurance investigator with the Department, accompanied the team members on their inspection. Approximately 30 envelopes containing medications were found during the inspection. They were similar to the packages that had been discovered the month before at the Coral Gables clinic. Respondent was at the clinic when the inspection was conducted. Penaloza was also there. No patients were present, however. Respondent was asked to demonstrate how the packages were prepared. Penaloza was nearby at the time the request was made. She saw Respondent nervously looking around and concluded that Respondent was unable to locate any sterile gloves to use. She therefore told Respondent where such gloves could be found. Respondent then donned the gloves, laid a clean piece of paper on top of the desk where she was situated, placed tablets from a large container onto the paper and pushed each tablet with a tongue blade into a small manilla envelope. 7/ The technique that Respondent used during her demonstration, while it may have been unconventional from the perspective of a pharmacist like Arias, nonetheless was antiseptic and therefore acceptable. Sometime during the inspection Respondent made a statement that led Robie to erroneously believe that Respondent was responsible for packaging medications, not just at the North Miami clinic, but at the Coral Gables clinic as well. A finding of probable cause was initially made in this case on May 14, 1990. An Administrative Complaint was thereafter issued and the matter was referred to the Division of Administrative Hearings. The Department received the following letter, dated September 4, 1990, from counsel for Respondent concerning settlement of the case: This will confirm our understanding that you will file a notice of dismissal with DOAH of the case now pending against my client and, providing the dismissal is confirmed as a final dismissal and closing order entered by the probable cause panel, that Ms. Echlov will agree not to seek fees against your agency under the Florida Equal Access to Justice Act. In the event the panel does not approve a final dismissal and instructs you to refile the case, neither party will be prejudiced by the present agreement and each party will retain all rights otherwise available to them, including my client's rights to seek fees should the case be refiled. If this does not reflect our understanding, please notify me at once. Otherwise, please fax me a copy of your notice of dismissal so that I can take the final hearing off my calendar. Thank you for your efforts to resolve this matter amicably. Counsel for Respondent sent to the Department, and the Department received, the following follow-up letter, dated November 6, 1990: You may recall that we reached an agreement in the above-referenced case providing for a voluntary dismissal on your part and promise on mine that my client would not seek attorney's fees under the Equal Access to Justice Act. You had to take the case back before the Probable Cause Panel and ask them to close it. In order that I can close my file and know that this matter is, in fact, concluded, please let me know whether you have taken the case back before the Probable Cause Panel and, if so, the outcome. If there are documents reflecting same, please, please send me a copy. If the case has not been taken back before the Panel, please let me know when this will be done. Thanks. I'll be looking forward to hearing from you. Counsel for Respondent sent to the Department, and the Department received, a third letter, dated January 14, 1991, the body of which read, as follows: It has now been over four months since we reached our "understanding" that DPR would dismiss the case pending before DOAH (which you did) and that my client would forego her right to seek fees under the EAJA, providing (to quote from my September 4, 1990 letter to you) "that the dismissal is confirmed as a final dismissal and a closing order [is] entered by the probable cause panel." The final part of the bargain has never been performed so far as I know (and, if it was performed, the action was illegal since I requested notification of the date when the matter would be presented to the panel so that I might attend or send a court reporter but never received any). I have not, of course, received any final order of dismissal from the probable cause panel. If, within ten days of the date of this letter, I have not received either: an order of closure from the probable cause panel, or the time, date and place when our agreement will be presented to the panel, I will consider that DPR is in breach of the agreement and pursue all remedies available to my client, including attorneys' fees. I look forward to hearing from you at your earliest convenience. The probable cause panel met a second time, at which it determined not to reconsider its initial finding of probable cause. 8/ Neither Respondent nor her attorney were notified of this second meeting of the probable cause panel. Following this meeting, an Amended Administrative Complaint was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the Second Amended Administrative Complaint, and (2) dismissing said complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent has been licensed as a licensed practical nurse (LPN) in the State of Florida, license no. PN 35080-1. The Department is the state agency charged with the responsibility of regulating the practice of nursing within the State of Florida. During the month of September, 1988, Respondent was employed as a night-shift LPN at Parkside, a residential treatment facility for psychiatric patients. On or about September 25, 1988, Respondent attempted to administer the morning medication to a resident patient, J.L. The patient refused the applesauce (which contained the medicine) and struck the Respondent across the wrist with great force. J.L. had been scheduled for a pass (an opportunity to leave the grounds) that day, but following the incident described in paragraph 3, Respondent decided to revoke J.L.'s privilege. When Respondent informed J.L. that the pass was revoked, J.L. became very agitated. Respondent summoned a fellow worker, Pressoir Berrouet, to assist and to restrain J.L. At some point in time between the activities described in paragraphs 3 and 4, Respondent went to her personal automobile and retrieved a stunning apparatus which she owns for her self-protection. Respondent took the "zapper" or "stun gun" to the patio area of the facility where Mr. Berrouet had secured J.L. in a chair. While J.L. was not restrained by bonds (physical restraints are impermissible at this type of facility), Mr. Berrouet had his hands on the patient's arms so that she was effectively pinned and unable to exit the chair. By this time, Lilli McCain, a day-shift employee at Parkside, had arrived at the facility. She observed Respondent approach J.L. who was still pinned in the chair on the patio. Ms. McCain observed a "black something" in Respondent's hand and witnessed Respondent touch J.L. with the instrument. She then heard J.L. scream out, "you pinched me." Respondent had purportedly "zapped" J.L. Moments later, Ms. McCain observed a red mark on J.L.'s chest. Mr. Berrouet had his back to Respondent through out the time of the incident described in paragraph 6. Consequently, he did not see the Respondent touch the resident, J.L. He did, however, hear a click noise which immediately preceded the scream from J.L. Respondent was upset at having been struck by J.L. Subsequent to the events described above, she resigned from her employment at Parkside. Respondent admitted to Laurie Shifrel, the nursing supervisor at Parkside, that she had used a "zapper" on the resident, J.L. Respondent also told Deborah Moon, the residential program coordinator for the Henderson Mental Health Center (a company which owns Parkside), that she had used a "zapper" on the resident, J.L. At hearing, Respondent testified that she did not use the stunning apparatus on J.L. but admitted she had taken the instrument onto the property to frighten J.L. The more compelling proof demonstrates, however, that Respondent did use the stunning apparatus on J.L. Parkside policy did not require residents to take medications against their will. If a resident refused medication, the proper procedure was to note that information on the patient chart so that the physician could be informed. Restraints were not used at Parkside to control resident behavior. In the event a resident were to become uncontrollable, the operating procedures required that the nursing supervisor be called to the facility or 911 for Baker Act referral depending on the severity of the resident's misconduct. J.L. did not have a history of becoming physically abusive at Parkside. It is not acceptable nursing practice to strike a psychiatric patient or to use a shocking device to curb undesirable behavior. Such conduct falls below the minimal acceptable standard for nursing care. Further, given J.L.'s history, it would be inappropriate to attempt to scare J.L. by a threatened use of such a device. Respondent was sincerely remorseful that she had brought the device onto the Parkside property. Evidence regarding a proper penalty, in the event a violation were found to have occurred, was not offered at the formal hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of the violation alleged, placing the Respondent on probation for a period of one year, requiring the Respondent to attend and complete such CE courses as may be appropriate, and imposing an administrative fine in the amount of $500.00. DONE and ENTERED this 2nd day of November, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalache Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2944 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. The portion of paragraph 2 which is addressed in finding of fact paragraph 3, is accepted; otherwise rejected as irrelevant. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is rejected as irrelevant and unnecessary to the conclusions reached herein. Paragraphs 6 through the first four sentences of paragraph 9 are accepted. The fifth sentence of paragraph 9 is rejected as contrary to the weight of the credible evidence. The last sentence of paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of paragraph 11 is rejected as contrary to the weight of the evidence or irrelevant. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as hearsay, irrelevant, or contrary to the weight of the credible evidence. To the extent the facts are set forth in findings of fact paragraphs 3 through 8, paragraphs 13 through 22 are accepted; otherwise rejected as hearsay, irrelevant, or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted. The remainder is rejected as irrelevant or hearsay. Paragraph 24 is accepted. Paragraphs 25 through 30 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: None submitted. COPIES FURNISHED: Lisa M. Bassett Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Jane Frances O'Leary 5295 15th Terrace, N.E. Pompano Beach, Florida 33064 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. DPR CASE NO.: 0106973 DOAH CASE NO.: 89-2944 JANE F. O'LEARY, Respondent. /
Findings Of Fact At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984. During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty. Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense. DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1985. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Anthony Martin 4041C NW 16th Street Apartment 109 Fort Lauderdale, Florida 33313 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
