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 When Respondent informed J.L. that the pass was revoked, J.L. became very agitated.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. /
The Issue Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
Findings Of Fact Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined: Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock) Injury to and Standard of Care Provided Myrtle White On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer) After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White) Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer) At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock) Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White) Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez) Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer) Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White) At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White) It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White. Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue. As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah) Shortage of One Nurse on Night Shift During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah) During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2) The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook) The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook) Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock) The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock) The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED. DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
The Issue Whether Petitioner should be issued a license as a Licensed Practical Nurse, pursuant to Chapter 464, Florida Statutes.
Findings Of Fact Petitioner Mary Ellen Stone Zirkle, Huntington, West Virginia, submitted an application for Licensed Practical Nurse by Endorsement to Respondent Florida State Board of Nursing, dated August 29, 1978. The application was denied by Respondent by letter of September 28, 1978, for the reason that Petitioner had not completed a program approved by the Board for the preparation of Licensed Practical Nurses and had not completed the 12th grade. Petitioner, through her counsel's letter of October 19, 1978, requested an administrative hearing. (Exhibit 1, Case File) Petitioner attended high school in West Virginia for three years from 1940 to 1943. In November, 1958, she received a certificate from the Huntington East High Trades School, Huntington, West Virginia, certifying that she had completed the requirement in practical nursing prescribed in the adult trade extension program sponsored by the Practical Nurses of West Virginia, Inc., District No. II, and the National Association for Practical Nurse Education. The course in practical nursing consisted of 285 hours of classroom work which involved class attendance for two nights a week for approximately one and one- half years. Although the school was not accredited by the West Virginia State Board of Examiners for Practical Nurses until 1961, West Virginia permitted individuals who had engaged in practical nursing for a period of three years to be issued a license as a practical nurse by waiver. It further authorized such individuals who had completed extension courses equal in theory to those for the graduate practical nurses to thereafter take the examination prescribed by the Board and obtain a license without the designation of "waiver" thereon. In this manner, Petitioner obtained her West Virginia license by waiver on November 6, 1958 and, in 1959, she passed the State Board examination. During the time Petitioner attended the extension course at Huntington East High Trades School, she was simultaneously employed at Cabell Huntington Hospital performing the duties of a practical nurse. During the period March - September, 1960, she attended a "post graduate educational program" at the hospital in operating room technique and was awarded a certificate of graduation. She thereafter was employed as a licensed practical nurse at Doctor's Memorial Hospital, Huntington, West Virginia, from 1962 until 1976. Her duties included working in all areas of surgery as well as general central service type functions in the general nursing units. In 1974, she satisfactorily completed a required course of studies in operating room technician refresher program which consisted of 80 hours of classroom work. She was also certified as an Operating Room Technician in 1974. (Exhibits 2-6, 7-8) Petitioner submitted letters from the various physicians familiar with her performance of duty at Doctor's Memorial Hospital who "found her to be reliable and efficient in the Operating Room and seemingly quite knowledgeable as a Staff Nurse in the general nursing departments." Her former supervisor at Doctor's Memorial Hospital also submitted a letter in which she commented favorably on Petitioner's efficiency and reliability. The letter stated in part as follows: When assigned to other areas, she worked with as much efficiency as she did in the Operating Room. It was very evident she had been trained well to function as a L.P.N. Her knowledge of nursing procedures and medications was quite adequate even with long periods of absence from general duty. (Exhibit 7) In determining qualifications for licensure by endorsement, Respondent considers that an applicant's graduation from an "approved school of practical nursing" in another state is acceptable as meeting Florida's requirements and does not inquire into the number of hours of instruction required for such graduation. Its inquiry into Petitioner's qualifications in this respect was caused by the fact that the West Virginia State Board of Examiners for Practical Nurses indicated on Respondent's application form that Petitioner's education had been an extension course. It is a policy of Respondent that the equivalent of a four year high school education is completion of the General Education Development Test (GED). Petitioner has not taken such a test. (Testimony of Johnson, Zirkle)
Recommendation That Petitioner's application for license to practice practical nursing without examination pursuant to Section 464.121 (2), F.S., be approved. DONE and ENTERED this 21st day of February, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Peter S. Penrose, Esquire 3175 South Congress Avenue Suite 103 Lake Worth, Florida 33461 Geraldine Johnson, R.N. Licensing and Investigation Coordinator State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211
The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Background On May 1, 2011, Petitioner graduated from Southeastern Community College (West Burlington, Iowa) with a certificate in Practical Nursing (PN). Thereafter, Petitioner received a passing score on the Iowa PN licensure examination, and was issued an Iowa PN license on June 13, 2012. Although both he and his wife hail from Iowa, Petitioner desired to relocate to Florida and seek employment as a practical nurse. In pursuit of that goal, Petitioner submitted an application for PN licensure by endorsement on October 19, 2012. Petitioner’s Criminal History Prior to submitting the Florida application, Petitioner had run afoul of the law on three occasions, only two of which are relevant to the application at issue. On May 10, 2007, Petitioner entered a plea of guilty to misdemeanor battery in Henderson County, Illinois. As a result of this plea, Petitioner was sentenced to two years of supervision and was required to complete anger management counseling. At the request of the Florida Board of Nursing (Board), Petitioner provided a written account of the circumstances surrounding the battery charge as follows: I had just gotten married and my wife and I were out celebrating her birthday at a club. A bouncer came to me and said that the person I had came in with was being bothered by someone else and that I should go check on her. I got my wife and we were in the process of leaving along with the rest of our group. The person bothering my wife continued talking and fussing. As I turned my back to leave, the person grabed [sic] me by the shoulder and lunged at my wife. In reaction I instinctively protected my wife feeling that she was in danger. Everyday since then this has haunted me. If I had taken a different path I would not be writing you this letter today. I feel I have learned the hard lesson from this mistake. I completed the requirements of the court for this along with my own self evaluation of life of how better to handle the situation or avoid them all together. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the battery incident was consistent with his written account above, and is found to be credible. Henderson County court records reflect that Petitioner was accused of striking the person who had been bothering his wife “in the face with his fist.” On July 27, 2011, Petitioner was charged with driving under the influence, also in Henderson County, Illinois. On August 30, 2011, Petitioner entered a plea of guilty to the misdemeanor charge. In his written submission to the Board, Petitioner explained the circumstances surrounding this incident as follows: Regarding my DUI, I had just finished my semester for LPN. I was out celebrating with some classmates. I was pulled over because my oversized tires went over the white line. I was arrested for DUI. I went to the states attorney and explained my situation. He informed me that he would allow me to have court supervision if I pled guilty and pay a hefty fine. My lawyer informed me that this was not a reasonable means for stopping me, but since I had already talked to the states attorney, he informed me that it would not be wise to fight this case because I had already spoke with the states attorney and gave a verbal agreement of what I agreed to do. I have completed all of my classes, I am still paying monthly on my fine, which will be finished this year. I have learned my lesson from this situation. As a nurse I have a high standard to uphold to help people get better and by drinking and driving I was endangering many lives which is the opposite of my civic, humanitarian and the basic oath I took when I decided to become a nurse. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the DUI charge was consistent with his written account above, and is found to be credible. As a result of his guilty plea, Petitioner was ordered to pay a fine and attend a substance abuse class, which he successfully completed. Petitioner’s Application Respondent introduced a copy of Petitioner’s “Initial Application for Licensure” which was submitted by Petitioner through the Board’s online website. The online application contains the following question: Criminal History Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense?2/ Your answer: NO At hearing, Petitioner testified that although he carefully reviewed his application before submitting it, he did not intend to answer the above question in the negative, and that “he made a mistake” when he did so. On cross-examination Petitioner confirmed that he read and understood the Affirmation Statement at the end of the application, and that he affirmed that the information he provided was true and correct. There is no question that Petitioner provided a false response on his application regarding his criminal history. However, the evidence of record does not support a finding that the false statement was intentional. At hearing, Petitioner presented as an articulate, intelligent, and well-educated individual. Petitioner had also successfully undergone the PN application process in Iowa, and was therefore familiar with the application review process. As such, it is reasonable to infer that Petitioner was aware that the information he provided on his application would be verified by Board personnel. This makes it increasingly unlikely that Petitioner intentionally falsified his application, since he could have no reasonable expectation of successfully perpetrating a fraud on the Board. Petitioner was notified by correspondence dated November 10, 2012, that he was required to provide information concerning his criminal history. As noted, it was not until after the notification that Petitioner provided explanations regarding his criminal charges to the Board. Petitioner included several letters of reference with his application to the Board. One of those letters was from his former employer in Iowa, Wayland Mennonite Home Association. In that letter, the facility’s director of nursing wrote: December 4, 2012 To Whom it may Concern: Hosea Pratt has been employed as a licensed practical nurse, at Parkview Home, Wayland, Iowa. He started employment September 11, 2012. Our pre-employment criminal background evaluation revealed a court proceeding regarding the suspension of his Iowa driver’s license. There was no disposition on this case and Iowa Department of Human Services ruled this did not preclude him from practicing nursing. He had a valid Iowa driver’s license at the time of hire. Hosea functioned independently as a night shift charge nurse. He assisted with orientation of new nursing staff. He completed assigned tasks during his scheduled shift. He proved to be a thoughtful young man, who demonstrated kindness towards our residents. He had good assessment skills and excellent computer technical abilities. He would be welcomed back to work in this facility. On April 9, 2013, the Board informed Petitioner that it intended to deny his Florida application. Petitioner thereafter challenged the intended denial of his application, and the instant proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order approving Petitioner's pending application for licensure as a practical nurse without conditions. However, should the Board determine that approval with conditions is warranted, a one-year probationary period is recommended. DONE AND ENTERED this 22nd day of October, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2013.
The Issue Whether Respondent is guilty of unprofessional conduct, possessed a controlled substance for other than a legitimate purpose, and/or made a false report, knowing same to be false.
Findings Of Fact Respondent, at all times relevant here to, was a licensed practical nurse in the State of Florida, having been issued license no. PN 0702091, and she was employed at Oak Manor Nursing Center in Largo, Florida. Respondent was assigned to the care of terminally ill patient M. G., whose physician's orders called for administration of Demoral, 50 mg. every four hours as needed for pain. Upon reporting for duty at 3 p.m. on June 17, 1989, Respondent checked the narcotics for which she would be responsible on the 3-11 shift with the nurse being relieved and found all properly accounted for. Respondent had possession of the key to the narcotics locker on her wing. At approximately 4:45 p.m. on June 17, 1989, Respondent took four of five ampules of Demoral in a package that had been crushed to Ray Grondin, R.N., her supervisor. Grondin observed what appeared to be small needle holes in the crushed ampules and made arrangements to have the next shots administered by Respondent monitored and to have urine samples of Respondent and the patient taken for analysis. At 6:40 p.m. on June 17, 1989, Respondent administered what purported to be Demoral to patient M. G. This injection in the buttocks was witnessed by Rosemary Griffin, L.P.N. Griffin testified to no apparent change in M. G. immediately following the injection which would indicate relief from pain. Some four hours later, urine specimens were take from patient M. G. and Respondent, labeled and placed in a refrigerator from which these specimens were subsequently removed for laboratory testing. A lab report on the specimen marked as taken from M. G. was subsequently returned to the nursing center, and this report showed no evidence of Demoral. The specimen placed in the refrigerator labeled to be from Respondent disappeared some time between the time it was placed in the refrigerator and the return of the lab report to the nursing center. No chain of custody was established for these specimens, the refrigerator in which they were stored was apparently unlocked and available to anyone in the vicinity, and no one could testify with certainty that the lab report (Exhibit 4) was on the urine sample taken from patient M. G. Respondent denied any misuse of Demoral by her. In her answers to request for admissions (Exhibit 2), she state that R. N. Grondin was in the medication room when the hypodermic was prepared for the 6:40 p.m. injection, and that the urine specimens remained in the refrigerator several days before being picked up by the lab. At the hearing, L.P.N. Griffin, who witnessed the injection, testified that she did not observe the hypodermic syringe being filled. Grondin's testimony did not address this issue.
Recommendation It is recommended that a Final Order be entered finding Respondent not guilty of all allegations in the Administrative Complaint filed March 9, 1990. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0752 K. N. AYERS 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 27 day of November, 1990. Sherri Lynne Hartley 5821 90th Avenue North Pinellas Park, FL 34668 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent's license as a practical nurse should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), has alleged that Respondent, Sheila Key, a licensed practical nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a practical nurse at Florida Christian Health Center (FCHC), in Jacksonville, Florida, in the Fall of 1999. Respondent holds license number PN 0792331 issued by the Board. The allegations against Respondent arose as a result of a routine Agency for Health Care Administration (AHCA) licensure survey of the facility on October 1, 1999. On that date, an AHCA survey team found an elderly resident with a head injury whose nursing notes had not been properly charted; a resident in the recreation area with blood on her gown and requiring medical attention; and a third resident with unattended sores on his ankles. All were under the direct care of Respondent. As to the first resident, the Board charged Respondent with failing to document the resident's head injury or condition in her nursing notes. In the second case, she was charged with failing to notify a physician or other responsible party in a timely manner about the injury and applying "steri-strips without a physician's order." Finally, Respondent was charged with failing and refusing "to comply with the surveyors' request" that she "remove [the patient's] socks so the ankle area on his feet could be observed." Each of these charges will be discussed separately below. Around 5:15 p.m. on September 30, 1999, A. B., an eighty-seven-year-old male resident at FCHC, acidentally fell and sustained an injury to his head that required emergency room treatment. A. B. returned to FCHC from the emergency room sometime after 9:00 p.m. Respondent reported for duty at 7:00 p.m. that same evening. Although good nursing practice dictated that Respondent promptly perform a neurological check on A. B. after he returned from the hospital, she failed to do so and did not perform one until 7:00 a.m. the next day (October 1). Even then, she failed to document any of her findings in the resident's nursing notes. By failing to document "the fall or his condition" in the nursing notes until the morning following the injury, Respondent failed to conform to the minimal standards of acceptable prevailing nursing practice. Around 7:40 a.m. on October 1, 1999, M. C. suffered a laceration on her neck while being transferred from her bed to a wheelchair. Respondent applied steri-strips to the wound, but she did not have a physician's order to do so. Also, she failed to document the neck wound or her treatment of the wound until 10:45 a.m., or more than three hours later. Finally, M. C.'s physician was not notified about the injury until around 12:15 p.m. FCHC has a written policy entitled "Changes in a Resident's Condition Status," which requires that the nurse promptly notify the resident, the resident's physician, and the resident's family of changes in the resident's condition. Thus, a nurse must notify the resident's attending physician and family whenever the resident is involved in any accident or incident that results in an injury. If the injury is of an emergency nature, such notification is required within thirty minutes to an hour. The evidence establishes that M. C.'s injury was of a type that required notification within this short time period. By waiting for almost five hours to notify M. C.'s physician about the injury, Respondent failed to conform with minimally acceptable nursing practices. She also violated the same standard by applying steri-strips to the injury without a doctor's order. Finally, she failed to conform to minimally acceptable nursing practices by not charting the injury in the nursing notes until more than three hours had elapsed. During the October 1, 1999, inspection, a member of the survey team asked Respondent to remove the socks and dressings on J. R., a resident. The request was made since the team could see a brown discharge on the inner aspects of his socks. Respondent would not do so, and eventually an assistant director of nursing performed that task. After the socks were removed, the survey team found old dressings through which drainage had soaked. They also observed sores that had thick yellow or serosanguinous drainage. Even though the sores had been there for at least a week or so, dressings had been previously applied, and the soaked socks were clearly visible, Respondent had failed to check the resident and was therefore unaware of his condition. Despite this omission, however, Respondent was only charged with failing and refusing "to comply with the surveyors' request," and not with inappropriate conduct with respect to the care of the resident. By failing to respond to a reasonable and legitimate request to remove the resident's socks so that a suspicious area could be observed, Respondent failed to conform to minimally acceptable standards of prevailing nursing practice. Respondent failed to admit responsibility for any of the foregoing violations. As to the resident with the neck wound, Respondent contended that the wound was not serious. However, it was serious enough that the resident's physician believed emergency room treatment was necessary. Respondent also contended that the assistant director of nursing (Widhalm) advised her that she (Widhalm) would call M. C.'s physician, an assertion which Widhalm credibly denied. Respondent further contended that she failed to chart A. B.'s nursing notes because the chart was in the hands of the surveyors. Under those circumstances, however, acceptable protocol requires that the nurse request the return of the notes so that essential information can be timely recorded. Finally, Respondent contended that the surveyor had told her that she could finish her "medication pass" before removing the socks and could do so whenever she had time. This assertion is not deemed to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Respondent is guilty of the violations described in the Administrative Complaint. It is further recommended that Respondent be fined $1,000.00, given a reprimand, and placed on probation for two years subject to such conditions as the Board deems appropriate. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of November, 2000. COPIES FURNISHED: Ruth R. Stiehl, PhD., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Diane K. Kiesling, Esquire Agency for Health Care Administration Building 3, Room 3231A 2727 Mahan Drive Tallahassee, Florida 32308 Sheila Key 3651 Dignan Street Jacksonville, Florida 32254 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Background At all times relevant hereto, respondent, Lorrie Neumann Dupuis (Dupuis or respondent), was licensed as a practical nurse and held license number PN 0766491 issued by petitioner, Department of Professional Regulation, Board of Nursing (Board). When the events herein occurred in 1990, respondent was known as Lorrie Neumann. She has since changed her name to Lorrie Neumann Dupuis. Counts I and II At hearing respondent admitted that the charges in Counts I and II are true. The admitted allegations which underpin these counts are briefly as follows. On July 23, 1990, respondent applied for employment with Upjohn Health Services (Upjohn). On her application, Dupuis indicated that she was a registered nurse when in fact she was a licensed practical nurse. In addition, respondent submitted to Upjohn an altered nursing license which had been changed to indicate the designation "RN" and title "Registered Professional Nurse". Finally, respondent gave Upjohn a resume indicating the designation "RN" after her name. Accordingly, it is found that respondent (a) engaged in unprofessional conduct by improperly using the name or title Registered Nurse and (b) knowingly violated a statutory provision that prohibits any person from assuming the title of registered nurse or using the abbreviation "R.N." without being so licensed. There is no evidence, and the Board has not alleged, that any unlawful practice as a registered nurse occurred as the result of the application nor that respondent was subjected to criminal prosecution for this act. Count III Respondent is charged in Count III with "making or filing a false report or record which the licensee knows to be false". This charge stems from a factual allegation that, while employed by Consolidated Staffing Services (CSS), respondent altered a time verification form by increasing the number of hours she had allegedly worked on July 26, 1990, from four to nine. Respondent was employed as a licensed practical nurse (LPN) by CSS from April through July 1990. CSS, which is a for-profit division of St. Vincent's Hospital in Jacksonville, has agreements with various clients in the Jacksonville area to supply nurses to the clients on a supplemental staff basis. One such agreement was with the Jacksonville Naval Air Station (NAS) and called for CSS to furnish nurses to the NAS emergency room. During her tenure with CSS, respondent worked on various occasions as a LPN at the NAS emergency room. On Tuesday, July 24, 1990, Dupuis worked an eight hour shift at the NAS. Based on erroneous advice received from a CSS employee, respondent was under the impression she was to work again at the NAS on Thursday morning, July She accordingly reported to duty that day at 6:45 a.m. However, Dupuis was not actually scheduled to work that day since the emergency room already had a full complement of nurses on duty. After realizing that the emergency room had more persons on duty than was customary, the emergency room nursing manager contacted CSS and verified that respondent was not scheduled to work that day. Accordingly, around 10:45 a.m., the manager advised respondent that she must leave but that she would be paid for the four hours she had worked that morning. Just before leaving the premises, respondent filled out a CSS time verification form. The form is made up of four pages, an original and three copies, and the CSS nurse is instructed to leave one copy with the client, retain one copy for herself, and to return the original and one copy to CSS offices. On the form, respondent noted she had worked from 6:45 a.m. to 10:45 a.m., or a total of four hours. After she departed the NAS, respondent noted that the time sheet reflected a date of July 25 when in fact the correct date was July 26. She accordingly altered the three copies of the form still in her possession to reflect the correct date. The copy left with the NAS still carries the incorrect date of July 25. In accordance with her normal procedure, respondent accumulated her time verification forms from the week and turned them all in at one time to CSS on Sunday afternoon, July 29. She did so by placing them in an envelope and sliding the envelope under the locked doors of CSS's offices. Such a procedure was acceptable with her employer. When the envelope was opened by CSS the next day and sent to accounting for computation of pay, CSS personnel noted that on respondent's July 26 time verification form the number "4" had been altered to read "9" so that it appeared respondent had worked nine hours at the NAS. Also, the "time finished" column, which is the time Dupuis finished her stint of duty, reflected that "10:45" had been altered to read "15:45", which is the military time for 3:45 p.m. CSS then had the NAS fax its copy of the form to CSS. This form had not been altered and correctly reflected that Dupuis worked only four hours. When Dupuis would not agree to meet with CSS management to discuss the altered form, respondent was terminated from employment and the matter was turned over to the Board. Except for changing the date on the form from July 25 to July 26, respondent denied that she had altered any other numbers. She suggested at hearing that someone at CSS may have altered the copies after she turned them in on Sunday, July 29. She also suggested that the nurse manager at the NAS emergency room disliked her and may have set her up. However, these contentions are not deemed to be credible. Accordingly, it is found that respondent made a report which she knew to be false. Mitigation There is no evidence that respondent has ever been disciplined by the Board. In addition, there is no evidence that her actions endangered the public or resulted in actual damages of any nature, or that she engaged in any other similar misconduct. Finally, there are no complaints of record regarding the quality of work performed by respondent as a LPN.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is recommended that respondent be found guilty of violating Subsections 464.018(1)(f),(h), and (l), Florida Statutes (1989), and that her nursing license be suspended for thirty days. RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of September, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lorrie Neumann Dupuis 4156 Piney Branch Court Jacksonville, FL 32257 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
