Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 Several days prior to November 1, 1974, respondent had gone to a licensed medical doctor complaining of nervousness and a swollen and painful left leg. This doctor diagnosed her condition as plebitis and prescribed antibiotics and also the drug Darvon for pain. There was no evidence of elevated blood pressure at this time. On November 1, 1974, the respondent was on duty as a licensed practical nurse at the Cor Jusu Convalescent Center in Tampa, Florida. At approximately 9:00 P.M., the respondent began to have back pains and feel nervous and shaky. The respondent could not remember whether or not she had taken the prescribed drug Darvon, which can produce light-headedness, prior to going on duty that day. Another nurse on duty on the same floor, Ms. Ems, took respondent's blood pressure, which read 140 over 110. The respondent testified that she feared that she was going to have a stroke. She attempted to call her doctor, but could not reach him. She testified that she then called another doctor, Dr. Decobo, who told her to come in to see him the next day. Dr. Decobo testified that he could not remember whether or not he talked to respondent over the telephone on November 1, 1974. The respondent then decided to and did consume the drug Vistaril, which she thought to be helpful in relieving apprehension. This drug was obtained from those prescribed for a patient, Mrs. Falty. This was not a routine medicine for Mrs. Falty, but was to be administered when needed. Respondent informed nurse Ems that she had consumed the Vistaril. There was some dispute in the evidence as to the extent of respondent's ability to perform her duties after taking the drug Vistaril. Respondent admitted that she was unsteady and dizzy, but testified that she laid down for awhile and finished her charting. The only evidence of any harm being done by respondent was that a solution was spilled in a patient's room. The other nurse on duty, Ms. Ems, called the Director of Nursing, Ms. Kriston, and she in turn called respondent on the telephone. Ms. Kriston testified that respondent's speech was "slightly slurred". While she could not recall the exact conversation, Ms. Kriston felt that respondent was incoherent because she could not understand why she should go home. The respondent testified that she did not go home until her shift ended at 11:00 P.M. because she wanted to finish her charting and because she felt that there were too many patients for Ms. Ems to carry alone. She testified that at the time she felt she could carry out her duties until her shift ended. In retrospect, respondent admitted that she did not use good judgment and that she should have left the hospital at an earlier time. Respondent received her license as an L.P.N. in 1969. There was no evidence of any prior charges of immoral or unprofessional conduct on her part.
Recommendation While respondent is guilty of unprofessional conduct which is grounds for discipline under F.S. 464.21(1)(b), the evidence adduced at the hearing illustrates substantial mitigating factors which bear directly upon the penalty to be imposed. The event complained of occurred over a period of only two hours, a portion of which time respondent spent lying down. No patient was harmed during this two hour period. The penalty of suspension of a professional license should always be sparingly and cautiously used. Pauline v. Borer, 274 So.2d 1 (Fla. 1973). It is my conclusion that the record in this case demonstrates that suspension would be too harsh a penalty for this respondent, and it is recommended that the petitioner Board of Nursing place respondents on probationary status for a period of six months, with appropriate sanctions and/or reports, as prescribed by the Board within its discretion. Such a penalty would adequately safeguard and protect the public health, maintain the dignity of the nursing profession and sufficiently punish the licensee commensurate with her conduct. Respectfully submitted and entered this 5th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Geraldine B. Johnson, R.N. Ms. Janet G. Zeller Investigation and Licensing 122 Brentridge Drive 6501 Arlington Expressway, Brandon, Florida 33511 Jacksonville, Florida 32211 Julius Finegold, Esquire Frederick L. Joiner, Esquire 1130 American Heritage Build. 4616 West Kennedy Boulevard Jacksonville, Florida 32202 Tampa, Florida 33609
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what disciplinary action should be imposed on her nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed practical nurse in the State of Florida, holding license no. PN 0986101. Respondent has been so licensed since 1990. At all times relevant to this proceeding, Respondent was employed in the office of Dr. David Flick, M.D., an oncologist. On October 17, 1995, Dr. Flick wrote a prescription for Fiorinal for Katherine Filan, who on that date, was an employee of Dr. Flick. The prescription authorized one refill. On or about January 12, 1996, in response to an inquiry from a pharmacy, Respondent approved a refill of the prescription for Fiorinal for Katherine Filan, without first consulting Dr. Flick. According to Dr. Flick, at all times pertinent to this proceeding, the general policy in his office was that he approved all refills. This policy was unwritten and was not effectively communicated to employees. Respondent and one other licensed practical nurse, formerly employed as a nurse in Dr. Flick's office, provided credible testimony that nurses in Dr. Flick's office were allowed to refill prescriptions, except for narcotics. However, when nurses authorized such refills, the policy was that the refills were to be documented and charted. Respondent believed that her action of authorizing the refill of Ms. Filan's prescription was consistent with the practice and policy of Dr. Flick's office. Moreover, Respondent believed that her approval of the refill was permitted because Dr. Flick had expressly authorized one refill on the original prescription he had written. No evidence was presented that Ms. Filan had refilled the prescription prior to January 12, 1996. After Respondent authorized the refill of the prescription for Ms. Filan, she failed to record the refill authorization on the any medical records. Respondent maintains that her failure to document the refill was inadvertent and was the result of her being extremely busy that day. On the day that Respondent authorized the refill, she was the only chemotherapy nurse on duty, was taking care of patients, and taking incoming nurse's calls. Except for this proceeding, Respondent has never been the subject of a disciplinary proceeding related to her nursing license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is REOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of February, 1999. COPIES FURNISHED: Sam Power, Agency Clerk Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Howard M. Bernstein, Esquire Agency for Health Care Administration General Counsel's Office Medical Quality Assistance Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Michele L. Schrembs DeGrolier, pro se 1501 Carlos Avenue Clearwater, Florida 33755
The Issue The issue for consideration in this case is whether the Respondent's license as a licensed practical nurse in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Board of Nursing, was the state agency responsible for the licensing of registered and practical nurses and the regulation of the nursing profession in this state. The Respondent, Virginia Ellen Wright, was a licensed practical nurse employed at Gulf Coast Center, (GCC), an institution for the training and rehabilitation of mentally retarded adults located in Ft. Myers, Florida. On the morning of January 29, 1990, Respondent, who was working the 6:30 AM to 3:00 PM shift in Buchanan and Adams Cottages at GCC, was called to come to the District VIII headquarters to see David Sherwin, the District VIII Inspector General regarding a letter she had written to the parents of a resident, and others. Ms. Wright left GCC at approximately 9:30 AM. At approximately 12:00 noon, Glenn Green, the Registered Nurse in Adams cottage, who had been assigned to complete the Respondent's 12:00 noon medications, found that certain medications for some of the residents were missing and had apparently been administered. There was, however, no indication on the Medication Administration Record, (MAR), that these medications had been given or wasted. When Eleise Paquette, the registered nurse in Buchanan cottage that day, who had been given the responsibility to complete the Respondent's 12:00 noon medications in that location, started to do so, she also found that some medications were missing and were neither shown on the MAR as administered nor wasted. Because she was not sure what had been done with the medications, and not wanting to overdose any resident, Ms. Paquette did not administer the noon medications that were not recorded. It was safer for the resident to miss one medication dose than to be overdosed. Ms. Pauley, the LPN in Buchanan cottage on the 2:30 PM to 11:00 PM shift also discovered that some of the medications due to be administered at 4:00 PM were missing and found that there was no MAR entry to show them administered or wasted. She reported this matter to her supervisor, Mr. Stonham who called the Respondent at home to see if she had administered them. Because she had been gone since 9:30 AM and felt, therefore, that his question was silly since she could not have administered them in a timely manner, she sarcastically answered his question in the affirmative. Respondent now categorically denies having administered any of the noon or 4:00 PM medications that day. On the day in question, Ms. Wright claims, she got the key to the medications at the infirmary and went to Monroe cottage to pass the medications due. She went there first because some of the residents there are school children who need their insulin. When she was finished there, she went to Buchanan and was passing medications there when she was called by Mrs. Blake who advised her she had to be at the District VIII office by 10:00 AM. Before leaving, she then went to Adams to pass medications there and then left. She claims that all medications she gave that day were for the 7:00 to 8:00 AM dosage. When she went down to the District office she took the medication keys with her because she believed she'd be back in time to administer the noon medications. She was relieved of duty at GCC by the Inspector General, however, and immediately barred from the facility. Medications at GCC are generally kept under lock and key on a medication cart which is kept in a locked room when not being used. According to Ms. Wright, the locks on the medication carts and the storage room in the units are universal. One key fits all. This was not contradicted by the Department. The key for the cart and the room is kept by the LPN charged with the responsibility for administering them. Only the pharmacy is supposed to have the other key to that room. However, according to Mr. Stonham, the keys to the medication carts were, at that time, being stored in a key box at the other end of the hall from the infirmary - not in the same room with the attendant. They were not signed out when taken, and Mr. Stoneham, who worked in the infirmary, would not necessarily see someone taking a key and would not know if a key had been taken unless he looked in that key box. He had not looked that day. When medications are not being used, they are supposedly kept in a cabinet in the infirmary. The medications in issue here are not the sort of drug that would have a street value on the illegal market. Ms. Wright was called to the Inspector General's office to discuss a letter she admits to sending out to the parents of a resident and to several state officials that that resident was being sexually abused at GCC. Ms. Wright admits to writing and sending the letters and, in fact, in Circuit Court, pleaded nolo contendere to, and was found guilty of, a charge of knowingly and wilfully making a false report of child abuse. She admits to exercising extremely poor judgement in doing so. Both individuals who testified for Respondent had prior experience working with her in health care. Both witnesses found Respondent to be very trustworthy and competent. The one witness who recalls Respondent having responsibility for the passing of medications, a registered nurse herself, saw no indication of any difficulty in that regard. In fact, she claims the Respondent is one of the best clinical nurses she has ever seen in many years of nursing practice. Both the allegation regarding the medications and that regarding the false report, if proven, would constitute failure to conform to the minimal standards of acceptable and prevailing nursing practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be issued in this case placing the Respondent, Virginia Ellen Wright's, license on probation for a period of one year under such terms and conditions as are prescribed by the Board of Nursing. RECOMMENDED this 24th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7812 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 11. Accepted and incorporated herein. - 15. Accepted and incorporated herein. Accepted and incorporated herein with additional information added. Rejected as contra to the weight of the evidence. - 23. Accepted and incorporated herein. FOR THE RESPONDENT: No Proposed Findings of Fact submitted. Counsel's Final Argument, submitted subsequent to the hearing, was fully considered in the preparation of this Recommended Order. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph Hoffman, Esquire 4388 Palm Beach Blvd. Ft. Myers, Florida 33905 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
The Issue Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.
Findings Of Fact Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient, G. C. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable nursing practice in the treatment of patient, G. C.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East Tallahassee, Florida 32312 Bonnie Fay Baker Palmer Route 2, Box 810 Waynesville, Georgia 31566 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
The Issue At issue is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts The Petitioner is the State Agency charged with the regulation of the practice of nursing pursuant to Chapters 20,456 (formerly Chapter 455, Part II; see Chapter 2000-160, Laws of Florida) and 464, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is Cynthia Chance. Respondent is a Licensed Practical Nurse in the State of Florida, having been issued license No. PN 0855441. On or between March 1997-May 1997, Respondent was employed by Health Force, a nurse-staffing agency. In or about March 1997, Respondent was assigned to work various shifts at Baptist Medical Center-Beaches. In or about March 1997, Respondent submitted time slips to Health Force alleging that she had worked an eight-hour shift on March 18, 1997. In or about March 1997, Respondent submitted time-slips to Health Force alleging that she had worked an eight-hour shift on March 21, 1997. Findings of fact based on the evidence of record Missing Drugs On May 13, 1997, Health Force received a "late call" from Cathedral Gerontology Center (Cathedral) needing a "stat" nurse because one of their nurses had not come to work. Tresa Streeter (now Calfee), administrator for Health Force, called Respondent who reported to Cathedral at 6:50 p.m. Kim Harrell, R.N., a supervisor at Cathedral, was the nurse who stayed until Respondent arrived. Also at 6:50 p.m. on May 13, 1997, Barbara Kelley, R.N., received and signed for a delivery of medications for residents from American Pharmaceutical Services. Included in that delivery was an order of Alprazolam (Xanax) and an order of Diazepam (Valium) for two residents on the floor where Respondent was working that evening. The delivery came with a separate medication or narcotics card for each medication. There were two floors of residents at Cathedral. Each floor had its own medication cart and its own nurse assigned to the floor. Controlled medications have a separate box in the medication cart with a separate key. The nurse on each floor had a key to her own medication cart but did not have a key to the medication cart of the other floor. The Director of Nursing (DON) also had a key to both medication carts in the event of an emergency such as a lost key. After receiving and signing for these drugs, Nurse Kelley locked the medications that belonged to her medication cart in it and inserted the narcotic cards for those medications into the notebook that corresponded to her cart. She then gave the medications and control sheets that belonged to Respondent's medication cart to Respondent, placing them in Respondent's hand. Nurse Kelley told Respondent that these were controlled drugs and instructed Respondent to lock up the medications in Respondent's medicine cart. There is conflicting testimony as to what happened next. Respondent admits to receiving the medications and the control cards. However, Respondent maintains that she placed the medications in the locked drawer of the medication cart and inserted the cards into the notebook in front of Nurse Kelley, whereas Nurse Kelley maintains that she walked away immediately after giving the drugs and cards to Respondent and did not see her place the drugs in the controlled drug lock box or the cards in the notebook. It was a policy at Cathedral for the out-going nurse to count controlled drugs with the on-coming nurse. When Respondent arrived on the night in question, she counted the controlled medications with Nurse Harrell. The narcotics count for both narcotics cards and actual doses was 16. At the end of her shift, Respondent counted the controlled medications with the on- coming nurse, Pamela Schiesser. The number of narcotics cards and tablets or doses was 16, the same as when Respondent came on duty. Nurse Schiesser was scheduled to work a double shift, 11 to 7 and 7 to 3. During the 11 to 7 shift, Nurse Schiesser was the only nurse for both floors of residents and she, therefore, had the key to both medication carts. Sometime during the 7 to 3 shift on May 14, 1997, Nurse Schiesser called the pharmacy to find out about a medication order she had placed for two residents so they would not run out. She was informed by the pharmacy that the drugs had been delivered the evening before and that they had been signed for by Nurse Kelley. She checked the delivery sheets and confirmed that Nurse Kelley had signed for the medications. After determining that there were no cards for the missing drugs and the drugs were not in the cart, she then reported to her supervisor, Kim Harrell, that the medication had been delivered but could not be located. Nurse Schiesser and Nurse Harrell checked the entire medication cart, the medication cart for the other floor and the medication room but did not find the missing medications. Nurse Harrell then notified the Assistant Director of Nursing (ADON), Lu Apostol, and the Director of Nursing (DON), Fely Cunanan, regarding the missing medications. The ADON began an investigation and secured written statements from all of the nurses on her staff who had access to the drugs: Nurses Kelley, Harrell, and Schiesser. She called Nurse Kelley to confirm that she had received the medications from the pharmacy and confirmed that the two missing medications, Alprazolam (Xanax) and Diazepam (Valium), were given by Nurse Kelley to Respondent. The ADON also called Tresa Streeter (now Calfee), the administrator of Health Force for whom Respondent worked to notify her of the missing medications. On May 14, 1997, Ms. Streeter (Calfee) called Respondent and informed her about the missing drugs. On May 15,2000, Ms. Streeter and Respondent went to Cathedral for a meeting. They were informed that the two missing drugs had not been located and they were shown the written statements of the other nurses. Respondent admitted that the drugs had been given to her the night before by Nurse Kelley, but stated that she had locked the drugs in her cart. She denied any further knowledge about the drugs. At Ms. Streeter's suggestion, Respondent took a blood test on May 15, 2000.1 The drug test result was negative thus indicating that the drugs were not in her blood at the time of the test, which was two days after the drugs were missing. No competent evidence was presented as to how long it takes for these drugs to leave the bloodstream. Cathedral had a policy that required that all controlled substances be properly accounted for and secured by each nurse responsible for the drugs. This policy was verbally communicated from the off-going nurse to the oncoming nurse. When Nurse Kelley gave the drugs and drug cards in question to Respondent, she specifically instructed Respondent to lock up the drugs in the narcotics drawer. Respondent maintains that other people had keys to her medication cart and could have taken the drugs after she put them in the locked narcotics box. This testimony is not persuasive. Every witness from Cathedral testified unequivocally that there was only one key in the facility for each medication cart and that key was in the possession of the nurse assigned to that cart. The only other key, which was in the possession of the Director of Nursing, was not requested or given to anyone at anytime material to these events. The persuasive testimony is that Respondent was the only person during her shift with a key to her medication cart. That key was passed to Nurse Schiesser who discovered that the drugs and narcotics cards were not in the medication cart or notebook. The count of the drugs and the cards on hand did not show that anything was missing at the change of shift from Respondent to Nurse Schiesser as the count was 16, the same as when Respondent came on the shift. If Respondent had put the drugs and corresponding cards in the medication cart, the count should have been 18. The only logical inference is that Respondent did not put the drugs or cards in the cart. In the opinion of the two witnesses accepted as experts in nursing and nursing standards, Respondent's failure to properly secure the narcotics and to document the receipt of these controlled drugs constitutes practice below the minimal acceptable standards of nursing practice. Time-Slips While employed by Health Force as an agency nurse, Respondent was assigned at various times to work at Baptist Medical Center-Beaches (Beaches). Respondent submitted time cards or slips for each shift she worked to Health Force so that she would be paid for the work. Respondent submitted time-slips for working at Beaches on March 18 and 21, 1997. When Health Force billed Beaches for these two dates, Anne Hollander, the Executive Director of Patient Services, the person responsible for all operations at Beaches since 1989, determined that Respondent had not worked on either March 18 or 21, 1997. Ms. Hollander faxed the time-slips back to Health Force for verification. She advised Health Force that Respondent was not on the schedule as having worked on either of those dates. She also advised Health Force that the supervisor's signatures on the two time-slips did not match anyone who worked at Beaches. Ms. Hollander is intimately familiar with the signatures of all the supervisors who are authorized to sign time-slips at Beaches and none of them have a signature like the signatures on the two time-slips. Health Force did an investigation and ended up paying Respondent for the two days, but did not further invoice Beaches. Health Force was never able to determine whose signatures were on the time-slips. Health Force did have Respondent scheduled to work at Beaches on March 21, 1997, but not on March 18, 1997. Beaches keeps a staffing sheet for every day and every shift. The supervisors are responsible for completion of the staffing schedules to ensure that the necessary staff is scheduled to work on each shift. These staffing sheets are used for both scheduling and doing the payroll. According to Ms. Hollander, it is not possible that Respondent's name was just left off the staffing sheets. The staffing sheets are the working sheets. If a person works who is not originally on the staffing sheet, the supervisor writes that person's name into the correct column at the time they come to work. Ms. Hollander has been familiar with these staffing sheets for 12 years and does not recall any time when someone's name has been left off the staffing sheet when he or she had worked. The two supervisors who testified, Erlinda Serna and Carol Lee, are equally clear that in their many years of experience as supervisors at Beaches, no one has worked and not been on the staff schedules. Anybody who worked would show up on the schedule. Every shift and every day should be on the staffing schedules. Ms. Serna is unaware of any time in her 10 years at Beaches that someone's name was left completely off the schedules, but that person actually worked. Respondent's name was on the staffing schedule for March 21, 1997, but it was crossed out and marked as cancelled. When agency nurses are scheduled at Beaches, but are not needed, they are cancelled with the agency. If the agency fails to timely notify the nurse and the nurse shows up for work, the agency must pay her for two hours. If the hospital fails to notify the agency timely and the nurse shows up for work, then the hospital must pay the nurse for two hours. In no event is a nurse who is cancelled paid for more than two hours. There are times when a nurse is cancelled and shows up for work, but the hospital has a need for the nurse either as a nurse or in another capacity such as a Certified Nursing Assistant (CNA). If that happens, the nurse's name is again written into the nursing unit staffing schedule. For March 18, 1997, Respondent's name is not on the schedule for Beaches. She did not work in any capacity on March 18, 1997. For March 21, 1997, Respondent's name was on the schedule, but she was cancelled. Even if she had not been timely notified that she was cancelled and she showed up for work, the most she could have billed for was two hours. If she had stayed and worked in a different capacity, her name would have been rewritten into the staffing schedule. Beaches is very strict and follows a specific protocol. No one except the supervisors is allowed to sign time cards. The signatures on these two time cards do not belong to any supervisor at Beaches. Therefore, it can only be concluded that Respondent did not work on March 18 or 21, 1997, at Beaches and that she submitted false time-slips for work she did not do on March 18 and 21, 1997. In June 1997, Respondent was also working as an agency nurse for Maxim Healthcare Services (Maxim). On June 8, 1997, Respondent submitted a time ticket to Maxim and to Beaches indicating that she had worked eight-hour shifts at Beaches on June 2, 3, 4, and 5, 1997. All four days were on the same time ticket and purported to bear the initials and signature of Carol Lee. This time ticket was brought to Ms. Hollander's attention because Beaches had a strict policy that only one shift could appear on each time slip. Even if a nurse worked a double shift, she would have to complete two separate time tickets, one for each shift. Under Beaches policy, no time ticket would ever have more than one shift on it. The time tickets are submitted to Ms. Hollander's office daily with the staffing schedules that correspond. Therefore, a time ticket for a person who is not on the staffing schedule would immediately stand out. When Ms. Hollander was given the time ticket for June 2-5, 1997, she investigated and reviewed the staffing sheets for those days. Respondent was not listed on any of the staffing schedules. Ms. Hollander then showed the time ticket to Erlinda Serna, who was the nursing supervisor on the 3 to 11 shift. Nurse Serna verified that Respondent had not worked on the shift any of those days. Ms. Hollander then showed the time-slip to Carol Lee, the 11 to 7 nursing supervisor. Carol Lee verified that she had not initialed or signed the time ticket and that the initials and signature were a forgery. Nurse Lee would not have signed a time ticket with more than one shift per time ticket because she was well aware of the policy prohibiting more than one shift per time ticket. Nurse Lee verified that Respondent had not been scheduled to work any of those days and that Respondent had not worked on June 3, 4, or 5, 1997. These inquiries to Nurse Serna and Nurse Lee took place within a few days after the dates for which Respondent had submitted this time ticket. Therefore, the matter was fresh in the minds of both nursing supervisors. Both are certain that Respondent was neither scheduled nor worked on June 2-5, 1997. Only nursing supervisors at Beaches are authorized to sign time tickets. Maxim Healthcare has a policy of never working a nurse in excess of 40 hours in one week. The same policy was in effect in 1997. Susan Ranson, the records custodian who also staffs for Maxim on the weekends and assists in their billing, indicated that Respondent was paid by Maxim for working at another facility the same week as June 2-5, 1997. June 2-5, 1997, are a Monday through Thursday. Specifically, Respondent submitted a time ticket to Maxim for another facility showing that she worked 12 hours on Saturday, June 7, 1997, and 13 hours on Sunday, June 8, 1997. Maxim pays from Monday through Sunday. If Respondent had worked 32 hours at Beaches on Monday through Thursday and then 25 hours at another facility on Saturday and Sunday, she would have worked more than 40 hours in one week, which would have violated their policy and would have required Maxim to pay overtime. When Maxim gets a request for a nurse and has no one to send who would not exceed 40 hours in one week, rather than exceed 40 hours, the agency does not staff the job. In the disciplinary document from Health Force dated June 18, 1997, Health Force advised Respondent that it would not be scheduling her based on the complaints they received regarding false billing, the missing drugs at Cathedral, and another incident at Beaches that occurred during this same time. Taken in its totality, the testimony of Respondent is not credible. Respondent's explanation of the discrepancy in the count of drugs and corresponding cards is that during her shift "there was [sic] one or two cards that only had one or two pills on them, so you just throw them away. And that's what made it back to 16." This explanation is unpersuasive. If there had been any pills left in the drawer from cards that Respondent threw away, the count would have been off at the change of shift. Moreover, several witnesses testified as to the care that is taken to carefully account for all narcotics. Respondent's assertion that narcotic pills were simply thrown away is not credible. Nurse Schiesser clearly remembered that there were no cards for the medications in question and there were no medications from this delivery in the medication cart. Respondent has been previously disciplined by the Board of Nursing in the Board's case No. 98-20122.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, by failing to secure and document receipt of the drugs at Cathedral Gerontology Center; That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005(1), Florida Administrative Code, by falsifying employment and time records on multiple occasions; and That a penalty be imposed consisting of a fine of $1000 and payment of costs associated with probation, together with a reprimand and a three-year suspension of license to be followed by a two-year probation with conditions as deemed appropriate by the Board of Nursing. Reinstatement of Respondent's license after the term of the suspension shall require compliance with all terms and conditions of the previous Board Order and her appearance before the Board to demonstrate her present ability to engage in the safe practice of nursing, which shall include a demonstration of at least three years of documented compliance with the Intervention Project for Nurses. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 29th day of December, 2000.
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer 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 21st day of November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether the license of Respondent should be suspended, revoked, or whether the Respondent should be otherwise disciplined.
Findings Of Fact Upon consideration of the evidence introduced and the testimony elicited, the following facts are found: Am administrative complaint was filed against Respondent Ponte by the Petitioner, Florida State Board of Nursing, on May 26, 1978 seeking to place on probation, suspend or revoke the LPN License No. 38103-1 held by Respondent Beverly Ceraldi Ponte. The complaint was amended at the public hearing to delete allegation number 5. "Respondent, while being searched at the women's annex of the jail, was found to be in possession of one glass vial of promethazine, a prescription drug." The complaint alleged that the Respondent, on several occasions, signed out for controlled narcotics for patients in her care and failed to properly account for the disposition of said narcotics; that Respondent converted a narcotic controlled substance to her own use and admitted to Dade County Police officers the theft of the drug; and that Respondent had in her possession at the time of her arrest a large quantity of syringes (tubex of from 50-75 milligrams of demerol) consisting of a total of 24, of which 7 were empty. The Respondent Beverly Ponte, a Licensed Practical Nurse, was employed at the Miami Heart Institute on January 16, 1978. On that date she signed out for a controlled narcotic, demerol, the generic term being meperedine, for four patients in her care. The medication sheets for the four patients failed to show that demerol or meperedine had been administered to the patients, and no disposition of the narcotics was shown by Respondent. On or about April 7, 1978 Beverly Ponte, the Respondent, was employed at Palmetto General Hospital in Hialeah, Florida. The evening supervisor, a Registered Nurse, was called at about 10:30 p.m. by one of the staff nurses to examine a narcotic sheet kept for patients under the care of the Respondent Ponte, the medication nurse on the shift that evening. The Vice President and Director of Nursing Service was then called and the police were notified that there was an apparent narcotic problem on the floor of the hospital. The police and the director questioned the Respondent. She was searched and on her person was found 24 syringes (tubexes or pre-loaded syringes) of the type used by the hospital. Respondent admitted that she had taken drugs that evening and could not tell the director which of the patients under her care had had medication. The Respondent was arrested and handcuffed. Thereafter an information was filed in the Eleventh Judicial Circuit Court in and for Dade County, Florida charging Respondent with possession of a controlled substance (meperedine) and charged with a count of petit larceny. The Respondent entered a plea of nolo contendre and was found guilty of possession of controlled substance and petit theft and was placed on probation for a period of eighteen months, beginning May 2, 1978, with a special condition that the Respondent not seek employment where she personally had access to narcotic drugs and to also complete the outreach program which is a drug rehabilitation program. The proposed order of the Respondent has been considered and each proposed fact treated herein. Evidence as to the adherence to the condition of probation, the present employment of Respondent, and whether Respondent should be allowed to sit for nursing license examination is insufficient and no finding is made in regard thereto. No memorandum or proposed order was submitted by the Petitioner.
Recommendation Suspend the license of Respondent Ponte. DONE and ORDERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Carl L. Masztal, Esquire Suite 806 Concord Building 66 W. Flagler Street Miami, Florida Norman Malinski, Esquire 2825 South Miami Avenue Miami, Florida Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator State Board of Nursing 6501 Arlington Expressway, Building B. Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Beverly A. Ceraldi Ponte 3500 S. W. 47th Avenue CASE NO. 78-1142 West Hollywood, Florida 33023 As a Licensed Practical Nurse License Number 38103-1 /
The Issue Whether the license of the Respondent, Virginia Downey White, License No. 24571-1, should be revoked or suspended, or whether the Respondent should be placed on probation.
Findings Of Fact The Respondent, Virginia Downey White, holds Licensed Practical Nurse License No. 24571-1. During the time pertinent to this hearing the Respondent was employed as a licensed practical nurse at St. Catherine Laboure Manor a nursing home in Jacksonville, Florida. An Administrative Complaint was issued against the Respondent on April 20, 1979, alleging unprofessional conduct. The Respondent requested an administrative hearing. Prior to an investigation by the personnel at St. Catherine Laboure Manor, and prior to the issuance of the Administrative Complaint against Respondent White, a call had been received at the nursing home stating that medications were not being properly given by the Respondent to her patients. On her own initiative, Priscilla Garske, a co-worker and licensed practical nurse who knew Respondent White, made a random selection of ten (10) patients from approximately twenty-five (25) assigned to the Respondent, listing the names of those ten (10) selected and listing their medications by their names in her nursing notes on March 25, 1979. Ms. Garske did not work on March 26, but on March 27, 1979, she returned to work on the 7:00 a.m. to 3:00 p.m. shift. On that date, after Ms. Garske had again counted medications for the same patients listed in her nursing notes, she reported to Florence Thibault, R. N., Director of Nurses at St. Catherine Laboure Manor, that the count was identical. Ms. Garske had checked the patients' medication sheets on which medications which had been given were to be charted and found that the medications had in fact been charted for these particular patients on March 25, 26 and 27, 1979, by the Respondent. Ms. Garske gave her nursing notes to Ms. Thibault when she reported her findings. Ms. Thibault examined the list of patients in Ms. Garske's nursing notes and their list of medications and immediately directed two (2) other nurses to check the medication cards against the list. Alberta Neeley and Eva Itameri, both licensed practical nurses, went to the units and checked Ms. Garske's list against the medication cards for the numbers of medications that were left. They returned with their findings, which indicated that six (6) of the ten (10) patients on the list had the same numbers of pills on their cards on that date, March 27, as they had had on March 25, 1979. Ms. Thibault then made a list of the same patients with their medications by their names, called Respondent White and discharged her from her employment, indicating to the Respondent that she had failed to give patients their medications while improperly charting on their records that they had received such medication. Of the ten (10) patients listed in Ms. Garske's nursing notes and by Ms. Thibault, it was alleged that Respondent White had failed to give medications to six (6) of them, whose records were introduced into evidence. It was stipulated at the hearing that the remaining four (4) patients on the list had in fact received their medications from the Respondent. Respondent White was responsible for giving medications to half of some fifty-eight (58) patients on her floor, who were mainly aged and infirm people. The patients on the list had not been questioned as to whether they had in fact received medication during the time in question. Each patient on the floor had a medication card with twenty-five (25) to thirty (30) pills on it, each pill being encircled by a plastic bubble. Some patients had more than one card. Some patients had one card opened and one not opened, and some patients had two (2) cards opened, although it was the policy of the nursing home to give all the pills from one card before a new card was opened. On the medication cart there were additional stock medications, such as vitamins, which were given the patients from time to time. The counts made on the medication cards of the patients on the list who were the responsibility of the Respondent were made from one medication card only according to the testimony of Ms. Garske. Eva Itameri, a nursing supervisor at St. Catherine Laboure Manor during the time pertinent to this hearing, and who had been instructed by Ms. Thibault to accompany Alberta Neeley to the floor on which Respondent White worked and to make an examination of the medication cards of the ten (10) patients on the list, pulled the cards from the patients' files, and Ms. Neeley wrote down their names and the numbers of medications on their cards. Ms. Itameri did not question the patients at the time she was making her investigation, stating that the patients on the floor whore the Respondent worked were very confused and disoriented. Ms. Itameri stated that it normally took about an hour to pass out medications each morning, and that sometimes the stock medications from the medication cart were also dispensed to the patients. Alberta Neeley, the licensed practical nurse who accompanied Ms. Itameri as instructed by Ms. Thibault at the time pertinent to this hearing, stated she talked in general with the patients at that time, but that she did not make a list of those to whom she had talked and did not specifically ask whether they had received their medications. Ms. Neeley also stated that the situation at St. Catherine Laboure' Manor was subject to "a turn- over in staff." At the hearing, Ms. Garske stated that all ten (10) patients listed in her nursing notes had had the same numbers of medications on their cards when counted by her on March 27, 1979, as they had had on March 25, but that each of those patients had been charted by Respondent White as having been given their medications each day as required. It can not be reliably ascertained from the testimony and evidence presented at the hearing whether the medications for the six (6) patients, whose records were introduced into evidence, had in fact been given to them as indicated on their charts. Whether Respondent White gave them medications from a different card than previously used, whether some medications were given from the stock medications, or whether some of the six (6) patients were not medicated is unknown. The patients were not questioned, and if they had been questioned would not have remembered. Respondent White stated she gave the medications as required. There was ill feeling between Respondent White and Ms. Garske, her co- worker, who made the initial count of the medications and reported that the Respondent had not given medications to the patients. Alberta Neeley, one of the witnesses for the Petitioner Board, was in doubt as to whether the count she and Ms. Itameri made as instructed by Ms. Thibault would conclusively indicate that medications had not been given patients. From time to time during her employment at St. Catherine Laboure Manor, Respondent White misplaced medications for patients and required assistance from other nurses to locate such medications. She finished giving her patients medications in less time than did the two (2) other nurses, although each nurse had approximately the same number of patients to medicate. Both Eva Itameri and Alberta Neeley, as witnesses for the Petitioner Board, stated they felt Respondent White to be a good nurse, but they had some reservations as to her general nursing performance. No proposed findings of fact or memoranda of law were submitted to the Hearing Officer by the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petition in this matter be dismissed. DONE and ORDERED this 22nd day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
