Findings Of Fact At all times relevant to the issues, Respondent was licensed as a registered nurse in the State of Florida under license number 1262382 and was employed as a registered nurse at University Hospital of Jacksonville, Jacksonville, Florida. On the late afternoon or early evening of March 14, 1984, a female patient was brought into the emergency room at University Hospital suffering from an overdose of asthma medicine for which the prescribed treatment was dialysis to cleanse the blood of the drug. When the hospital personnel had determined that adequate dialysis had been accomplished the patient was removed from the dialysis machine. A patient is affixed to a dialysis machine through the insertion of tubes into a vein and artery which facilitates the removal and replacement of the blood being cleansed. When the catheters are removed, it is necessary that pressure be applied to the place of insertion for a period of time to allow clotting sufficient to stop bleeding from the vein or artery. Generally, the pressure is administered by a nurse physically applying pressure to the immediate area. This patient did not respond properly, however. As a result, Dr. Mendez-Vigo was called to examine her. He determined that because of her blood loss, a transfusion was appropriate, which he ordered, and then left the treatment area. Approximately ten minutes later, he was called again and advised that the patient's blood pressure was dropping and that the dialysis nurse, the nurse that was attending the patient at the time, needed him. Dr. Mendez-Vigo advised the nurse to start a saline solution and indicated he would come to the dialysis unit, where the patient was being treated, as soon as possible. The dialysis of this patient was accomplished in the dialysis room which is located contiguous to and immediately off the cardiac intensive care unit (ICU) in the hospital. Ordinarily, the dialysis room, which opens onto the ICU is not manned. It is however, generally fully equipped with its own supplies and equipment and when this patient was placed on the dialysis machine, she was moved to this dialysis unit and tended by a nurse, Ms. Domingo, whose sole job was in the dialysis unit. Ms. Domingo was called to come in from off-duty to attend to the patient in question and arrived at the dialysis unit at approximately 5:15 p.m. When she arrived, she found the patient stable, and the only treatment required at the time was pressure to the groin area as described above to promote clotting until the bleeding stopped. After Dr. Mendez-Vigo started the transfusion and left, as described above, the patient became restless and started sweating, which prompted Ms. Domingo to stop the flow of blood. This took place at approximately 6:00 p.m. Once she stopped the inflow of blood, she wanted to remove the needle through which the blood was being inserted, but because she was unable to remove the pressure from the patient's groin area and because she was alone in the dialysis unit, she called for help from those nurses assigned to the ICU. At first, no one responded, but shortly thereafter, after a second call for assistance, Nurse O'Brien did come in. Ms. O'Brien was, at the time, one of several nurses assigned to duty on the ICU and had worked there just a few days. She and Respondent, the nurse in charge of the unit, were the only two registered nurses on duty, along with several licensed practical nurses (LPN's). However, at the time in question, Respondent was off the unit at dinner and Ms. O'Brien is not sure where the LPN's were. When she heard the dialysis nurse call for help, she went into that room and saw the situation. Ms. Domingo told her that the patient looked to be in shock - sweating, with a high pulse rate, very low blood pressure, and in a semi-conscious state. At this point, Ms. O'Brien immediately opened up the IV point to put in a saline solution, then went outside the dialysis room to get equipment to start another intravenous line (IV), and to page Dr. Mendez-Vigo. When she brought back the equipment she needed and tried to start the second IV, she experienced difficulty because of the patient's low blood pressure. At this point, she asked another nurse from the ICU to speed the doctor up. At this time, in her opinion, the patient was extremely unstable and near critical. It was then that Ms. O'Brien first saw the Respondent. She told him she was going into the dialysis unit to help out. Respondent did not follow, but instead went to the nurse's station on the ICU from which he could see the door to the dialysis room and called to Ms. O'Brien telling her she was not to go into the dialysis unit since it was a separately staffed unit. Ms. O'Brien responded to the effect that while this might be the case, the patient was sick and needed help and she was going to give it. In response, Respondent told her several times that she was not to be in the dialysis room. Ms. O'Brien finally told Respondent that she was going to do what she had to do regardless of what he- said. She further contends that when Dr. Mendez-Vigo finally returned her call, Respondent took the call and spoke with the doctor but refused to tell Ms. O'Brien what the doctor said until she came out of the dialysis room to talk to him. To do so, she had to leave the patient with whom she was working to go to the nurse's station and get the message from the doctor which had been given to Respondent. When Dr. Mendez-Vigo arrived at the dialysis unit, he saw the Respondent and two other nurses in the ICU area. He went into the dialysis unit and observed the dialysis nurse still applying pressure to the artery and one other nurse, subsequently identified as O'Brien. At this point, Respondent and the other nurses in the ICU were standing around in that unit not assisting in the dialysis area. When he arrived, Dr. Mendez-Vigo found the patient to be nearly unconscious with a high pulse rate and low blood pressure. He suspected a transfusion reaction and because of that, started action to counteract that situation. Because both nurses in the dialysis room were totally occupied by the patient, he needed help to get other things ready for treating the patient. For example, he needed to get additional equipment, additional IV lines had to be prepared; and solutions had to be mixed. Both Ms. Domingo and Ms. O'Brien seemed to him to be upset because it appeared Respondent had attempted to keep the other ICU nurses from helping in the dialysis room when they were needed because the patient was not an ICU patient. During the initial telephone conversation between Dr. Mendez-Vigo and Respondent, the doctor requested Respondent to secure certain supplies. When the doctor got to the dialysis unit and saw the condition of the patient, he took a blood sample, which he asked Respondent to take to the lab for identification for transfusions. Respondent failed to respond to any of the doctor's requests. Another resident, Dr. Curran, was called into the dialysis from by Dr. Mendez-Vigo when she came to the ICU that same evening. On at least one occasion, after she started to work on this particular patient, she walked out to the nursing station of the ICU and asked Respondent for help. At that point he refused, stating that he was busy and responsible for all the other patients and could not leave. As a result, Dr. Curran took the blood to the lab for what lab work was necessary. When she got back from the lab, she asked Respondent where she could get MAST trousers for the patient and if he would call the emergency room to inquire. Respondent refused to do this, requiring Dr. Curran to do it herself. When she was advised that the operating room might have them and started to place that call, at that point, Respondent did make the call to try to secure what she needed. During the course of his treatment of the patient, Dr. Mendez-Vigo had occasion to attempt to use the cardiac monitor that was a part of the equipment in the dialysis room. It is unclear whether the doctor did not know how to operate the equipment or whether it did not work. In any event, the doctor requested the Respondent to get a portable monitor that was a part of the ICU's equipment. Respondent refused this request initially on the basis that the patient was a dialysis patient rather than an ICU patient, and that his instructions were that ICU equipment could not be used for dialysis patients. Notwithstanding his initial refusal, Respondent ultimately did provide the requested monitor, however. Dr. Mendez-Vigo's recollection of the incident was that the Respondent's total response was that since the patient was not an ICU patient, he could not help out and do what was necessary since he was assigned to ICU, not dialysis. He reportedly stated that he could get into trouble if he did. According to the doctor, however, none of the other patients in the ICU needed immediate attention so that, in his opinion, Respondent or some other member of his staff could have assisted in the treatment of this critically ill patient. What was unknown to Respondent at the time was that the patient had been identified for admission to the ICU, and orders to that effect had been written by Dr. Mendez-Vigo though the formal process of admission had not taken place. As was stated, this information regarding proposed admission had not been communicated to Respondent or the other ICU nurses even though the information was contained on the patient's chart which was with her in the dialysis room during this period of time. If Respondent had gone in to help as requested and looked at the chart, he would have seen this. According to Ms. O'Brien, through all the period of requests for help prior to the arrival of the doctor, and even through the period of requests for assistance and equipment after the arrival of the doctors, Respondent did not come into the dialysis room to see the patient's condition for himself. It was only after Dr. Mendez-Vigo started the neck IV line that the Respondent came into the dialysis room, and when he saw the patient he said something to the effect of, "Oh, I didn't know she was so sick." This was 20 to 25 minutes after the original call for help. Sometime after the incident, Respondent went to Ms. O'Brien and apologized to her for not responding more quickly and for trying to get her out of the dialysis room when he returned from dinner. At that time, he said his resistance was based on the fact that he did not want her to get into trouble. He also told her that if she intended to report the incident, he would just go ahead and submit his resignation because he had been in trouble previously and this would hurt him. Respondent's demands to Ms. O'Brien to come out of the room when she was in assisting Ms. Domingo, prior to the arrival of the doctor, were heard clearly by Ms. Domingo. Ms. Domingo also overheard the doctor ask Respondent to help hook the patient up to the monitor and overheard Respondent's initial refusal. What was most puzzling to Ms. Domingo was that though she had never dealt with Respondent prior to this time, whenever she had asked for help from the ICU nurses previously, she had always gotten it. According to another nurse on the ICU that evening, Ms. Bowers, who was on her break at the time of O'Brien's first confrontation with Respondent, emergency situations requiring help from the ICU personnel were not frequent and this was the first emergency situation she knew of involving Respondent. In this case, she was not aware of any "code" being announced, nor overheard the argument between Respondent and Ms. O'Brien. She had been in the ICU for an hour prior to this time and during that entire period, had received no request from Ms. Domingo for help. She had not previously been asked for assistance and until she became aware of the problem by overhearing the dispute referenced above, she had no idea there was an emergency situation in the dialysis room. Frank B. Bellamy works as a nurse manager at University Hospital for the ICU. As a part of his job, he oversees and evaluates nursing services in the ICU and was doing so at the time of the incident in question. To his knowledge, at that time, there was no written policy on support of the dialysis unit by the ICU. However, the oral instructions given to ICU personnel were that ICU equipment and supplies were not be used in routine cases in the dialysis unit - only in emergency cases. In an emergency case, anything could be used. The job description drafted for registered nurses in University Hospital does not delineate any separation for jobs between ICU and the dialysis unit, but it was generally followed at the time in question that ICU nurses did not help out in the dialysis room in routine situations. However, in an emergency situation, ICU nurses could and should help--out. In Mr. Bellamy's opinion, in the instant case, as the fact situation existed, extra help was needed and the ICU nurses, including Respondent, could have and should have helped out if this assistance could be provided without jeopardizing the patients in the ICU. In such a case, the ICU nurse would have called the nursing supervisor, reported the situation, and requested help. In his opinion, Respondent's conduct in this case was unprofessional misconduct. It was not negligence but willful misconduct in that the Respondent refused to render assistance in an emergency situation and attempted to prevent Ms. O'Brien from doing so as well. Both of these are evidence of willful misconduct. In addition, in an emergency situation, the Respondent's failure to provide the portable monitor in a timely fashion was both unprofessional and unsafe in that the ability of the physician to determine cardiac rhythm is crucial. Nurses are obliged to acknowledge physician's orders and, if considered safe, to follow them. In emergency situations, according to Mr. Bellamy, it is negligence and unprofessional conduct not to provide assistance and equipment to a doctor upon request. Here, in the professional opinion of Mr. Bellamy, the Respondent's failure to provide the requested assistance to the doctor was critical and constituted negligence and unprofessional misconduct. The mere fact that the Respondent delayed responding is negligence because in an emergency situation, as here, time can be and was of the essence. Respondent made much of the need for the charge nurse to oversee the patients on the ICU. In fact, these checks by the charge nurse, the job which Respondent was filling at the time, were done only every 10 or 15 minutes, and assuming that this was necessary and critical on a routine schedule, there was still ample time between the checks for the Respondent to respond to the dialysis unit. Here it is clear that Respondent was asked for help and either refused to give it all, or failed to respond in a timely fashion. It is also clear that Respondent refused to provide equipment and other supplies, even though under the guidelines in place at the time, and which, though oral, had been briefed to the ICU nurses, this situation was one where he could have properly done so. With regard to Respondent's contention that he had been told that he was not to go into the dialysis unit to help, Ms. Kamienski, the Director of Nursing who helped to interview Respondent when he was hired, advised him that the dialysis section was responsible for routine care but that it was placed where it was, contiguous to the ICU, so that ICU nurses could help out in an emergency. She categorically denies ever telling Respondent that dialysis was to get no help, nor that he was never to go in there. As Director of Nursing, Ms. Kamienski received the complaint about the Respondent in the incident in question, and on the basis of the complaint did some investigation. She determined from her interview of the physicians and nurses involved, that the allegations were true and Respondent's conduct was inappropriate. In her opinion, any registered nurse who has the knowledge and skills (and, as here, the resources) to render aid and assistance in a need situation, who does do so and who, as here, attempts to hinder aid, is guilty of negligence and should not practice nursing in the State of Florida. Ms. Kamienski is satisfied that Respondent used poor judgment in this assistance. He should have either helped out himself or assigned someone on the unit to assist and he did neither. Also, he could have contacted the house supervisor to get help either for his unit or for the dialysis unit and failed to do that. In her opinion, his conduct was unprofessional and insubordinate. He had the responsibility to help out in a life threatening situation and failed to do so. Admittedly, the dialysis unit had been requested to use its own equipment and supplies, but in a life threatening situation, they were to get anything they needed. This is now, and was the policy at University Hospital, and to the knowledge of Ms. Kamienski, a similar policy is found in almost any hospital. It is a general standard of practice in nursing to use whatever is needed from wherever located in an emergency situation. Here, Respondent's delaying tactics in making the telephone calls at the request of physicians, was unprofessional conduct because of the life threatening situation. Death to the patient could be imminent in a situation such as this, and Respondent had a duty to respond in a timely fashion. Respondent also makes much of the fact that none of the other nurses in the ICU offered assistance and that nothing was done to them. The fact is that none of the other nurses were asked for help, nor were they asked for supplies and equipment by physicians, nor did they interfere to tell Ms. O'Brien to come out. As to the monitor, Ms. Kamienski feels that while admittedly it is not Respondent's responsibility to ensure that the dialysis monitor was working, under the circumstances of this incident, when he was asked for a portable monitor in an emergency situation, he should have provided it and not argued about whether the dialysis monitor was working or not. In the opinion of Ms. Cayer, a professor of nursing at Jacksonville University, a registered nurse should respond to an emergency and provide whatever assistance is necessary in the situation in the geographical area of the nurse, even if the patient is not the nurse's patient. Having had an opportunity to review the extensive documentation which outlines the situation here and what Respondent did and failed to do, and which fairly reflects the facts in evidence, she concluded that the patient here was unstable and rapidly declining; this was very near or actually was a severe emergency, and there was a need for help. Ms. Cayer was made aware of a hypothetical situation which very closely parallels the factual situation in this case. Based on this hypothetical situation, she concludes that the Respondent in that case was negligent because: (1) when the nurse in question arrived on the scene, he should have gone into the dialysis unit, assessed the situation, and made staffing changes to help out and meet the situation, all of which he failed to do (he needed to gain the knowledge of what the needs were and to take action to meet those needs); (2) he improperly attempted to get the nurse (Ms. O'Brien) to come out of the dialysis room without assessing the situation and its needs (by the time he knew that the blood pressure was low and communicated this information to Dr. Mendez-Vigo, he surely must have known there was a problem); (3) while it would not have been proper for him to leave the floor to go to the blood bank himself, it was unprofessional of him not to arrange for someone else to go in light of the fact that he could have done so; (4) as to the monitor situation, he should have followed up on the request for an additional monitor to see why the request was made (If he had done so, it would have shown that the monitor was not working and he would have provided a replacement sooner. His failure to follow up on the request and his rejection of it without further inquiry was unprofessional); (5) his failure to communicate effectively in all these respects hindered the staff in their treatment of the patient and was unprofessional conduct. Much the same approach is taken by Dr. Eileen K. Austin, also an expert in the field of nursing, who indicated that nursing education generally teaches that first and foremost the interest of the patient takes precedence over policies and regulations which may be ignored if necessary. Also, the nurse must assess the situation and either provide the needed service or get someone else who can provide it. Emergency procedures care is taught as a part of several courses in nursing education. Nurses are also taught generally that if the need is there, the nurse acts regardless of where the patient is assigned and once in the picture, retains treatment status until relieved. As to the response to physicians, nurses are taught they are to respond promptly unless they suspect it is an improper order which would endanger the patient. Nursing assessment includes observing the patient for signs and condition, to take vital signs, to ensure there is an airway for breathing, and once having made an assessment, either provide or secure help. These basic concepts are universal to nursing training. The course title may vary among nursing schools and among nursing programs, but the subject matter is basically the same and these subjects are, in substance, on the nursing licensing examination. The primary difference between the two-year associate of arts program in nursing and the four-year bachelor program is in the other primarily non-nursing, non-scientific curriculum. Basic nursing material is the same in both. The requirements for the registered nursing license requires certain basic information be taught, and it does not matter through which program these requirements are met. Respondent's reputation is good among the people with whom he currently works. For example, Respondent has worked for JoAnn Hahn at Methodist Hospital as a staff nurse for one year and she has observed his work in both routine and emergency situations in the accomplishment of his duties which are equivalent to being the charge nurse on a particular shift. She finds Respondent to have a very good knowledge of critical care situations and to her knowledge, he has never mis-diagnosed a case. He anticipates medications correctly and has them ready, and he also knows what lines are needed and has them ready. In critical care his performance is above the standards she has observed in other hospitals. In responding to requests from supervisors or doctors, if he agrees with the request, he speaks out, somewhat abruptly sometimes, but this is what she wants her nurses to do. Above all, however, Respondent never lets the patient down, and Ms. Hahn has no reservations whatsoever about his training, ability or performance. When he is on duty, she feels quite safe. Ms. Hahn is aware of the incident in question here, having reviewed the statements regarding it and her knowledge is consistent with the facts in evidence. She has also reviewed the hypothetical situation and based on this, she feels that Respondent's actions in question were not a violation of the Nursing Practices Act. In Ms. Hahn's opinion, Respondent was not incorrect in calling Ms. O'Brien out of the dialysis room because the ICU was, in her opinion, under-manned in light of the serious condition of the patients on the floor, and Respondent did not have a report on the condition of the patient in the dialysis room. As to the monitor situation, she feels the patient should not have been put on the dialysis machine in this case without being put on a monitor as well from the very beginning. Also, the needed IV lines should have already been started prior to the dialysis in case of need. As to Dr. Mendez-Vigo's telephone request to the Respondent to start an IV line, since Ms. O'Brien was already trying to get it started and Respondent could see this, it was not necessary for him to go in and attempt the same thing. The fact that Ms. O'Brien could not accomplish the start and it was necessary for the doctor to start a sub-clavian line is immaterial since a registered nurse would not do that procedure anyway. In short, in light of the condition of the patients on the ICU, Ms. Hahn feels Respondent could not have properly left the unit. He also could not have gotten the blood because he did not have the patient's proper plates or bands as required by the lab. As for the portable monitor, he could have asked why they did not use the monitor they had, but, Ms. Hahn feels the delay based on his understanding of the monitor being in there was "just common sense." Cathy Carvery has known Respondent from the time she hired him at University Hospital. She observed him in his work there in the handling of patients and feels that his competence, training, and other skills are very good. He handled crisis situations very well and knew what he was doing. She, too, has reviewed all the background information on the situation and is familiar with the dialysis room and equipment at University Hospital. In light of the staffing in the ICU at the time, in her opinion, it was not at all improper for the Respondent to have refused to send any more of his staff to the dialysis room. Also, in her opinion, though he could have tried to get the blood as requested, he would not have been able to do so without more information on the patient, which was not available to him. In addition, even if he had tried to insert the IV line as requested by the doctor, the likelihood is great he would not have been able to get it started. What is overlooked by both Ms. Hahn and Ms. Carvery in their exulpatory comments regarding Respondent's failure to assist, failure to go for blood, and failure to attempt to start the IV line as requested, is that though what they say may well be true and that Respondent could not have accomplished anything, the fact is he did not even try. With regard to assisting or providing more help, a telephone call to the supervisor of nursing would have resolved that situation without either he or any more of his people being required. Though he called Ms. Lee, he did so to report what he considered to be Ms. O'Brien's improprieties and at no time requested any help. Though he most likely could not have accomplished getting the blood as requested because of the lack of plates, the fact is that though asked to do so, he did not even try and the same is true with regard to the IV line. It does not matter that the sub-clavian insertion was done by the doctor. Respondent was not asked to insert a sub-clavian catheter. He was asked to attempt an intravenous line and did not even try. It is impossible to say what he would have done if he had attempted to assess the situation and find out what the condition of the patient was as he should have done. He did not, and it this particular especially, he was deficient. With regard to the incident in question, when Respondent came back from dinner he was told by one of the LPN's on staff that Ms. O'Brien was in the dialysis room because a patient was bleeding from an arterial line. In his experience, this was not too serious and in light of the fact that Ms. O'Brien was off the ward, one nurse was out to dinner, another was on duty, and he did not know here the fourth was, he was miffed. As a result of this, he called Ms. O'Brien out of the dialysis room to talk to her and she did not respond to his request. This made him angry. He did not have any responsibility for dialysis patients and his understanding of support to be furnished to the dialysis unit was that he was not to take any equipment in there. In light of his previous chastisement for doing so, he was upset. Though he denies refusing to convey Dr. Mendez-Vigo's message to Ms. O'Brien unless she came out of the dialysis room to get it, it is clear that in light of his admittedly poor frame of mind at the time, he did just that. He also admits to first suggesting, when requested to get another monitor, that they use the one in the dialysis room. Nonetheless, he says he went and got the portable within just a few minutes and hooked the patient up to it. Since Dr. Mendez-Vigo did not ask for any further assistance or give him any additional orders thereafter, he went back to work. When Dr. Curran asked him for the blood from the lab, he asked for a charge plate and was told it was in the dialysis room. He found, however, that the patient had not been admitted and did not have a charge plate, and he would therefore be unable to get the blood requested. He then started the admission process because he felt that when that was accomplished, within a 30-minute period or so, he could then get the blood as requested. As for the MAST trousers, when asked by Dr. Curran to get them, he, because of other duties, could not respond immediately, but did so several minutes later, at which time the request was refused. Dr. Curran, parenthetically, also was refused when she requested the trousers. When, as stated before, Respondent called Ms. Lee, the 3:00 p.m. to 11:00 p.m. supervisor, to report Ms. O'Brien, he was told to let her stay there. No request for assistance, equipment or supplies was made. On the basis of the investigation by Ms. Kamienski and after consultation with Mr. Bellamy, a recommendation of termination was prepared and delivered to the Respondent. In accordance with the procedures that were in effect at the time, he requested a hearing and one was afforded him. Respondent contends that the hearing was a farce and he was not given the opportunity to confront any of the witnesses or evidence against him. After the hearing was over, he was offered the opportunity to resign in lieu of termination and did so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED, that Respondent's license as a registered nurse in the State of Florida be suspended for one year and that upon completion of the period of suspension, he be reinstated and placed on probation for a period of three years under such terms and conditions as prescribed by the Board of Nursing. RECOMMENDED in Tallahassee, Florida this 27th day of September, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 L. Haldane Taylor, Esq. 331 East Union Street Jacksonville, Florida 32202 Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
Findings Of Fact The Respondent, Daniel E. Gallagher, is a licensed practical nurse, holding license number 41727-1 issued by the Department of Professional Regulation on June 1, 1985. From May 28, 1985, to August 29, 1985, the Respondent was employed at Care Unit of Jacksonville Beach, Florida, as a licensed practical nurse. During this employment, the Respondent appeared for work frequently with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition. He frequently used mouth wash and mints. The odor of alcohol was smelled by other employees and by patients. This behavior started shortly after the Respondent began working at Care Unit, and it became progressively more evident until August, 1985, when the Respondent was terminated from his employment. Coming to work as a licensed practical nurse in the condition described above is unprofessional conduct which departs from the minimal standards of acceptable and prevailing nursing practice. A licensed practical nurse who assumes the duties of his employment under the effects of the use of alcohol, with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition, is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 41727-1, held by the Respondent, Daniel E. Gallagher, be suspended for 30 days; and that following this period of suspension the Respondent be placed on probation for one year, subject to such conditions as the Board may specify. THIS RECOMMENDED ORDER entered this 11th day of September, 1986 in Tallahassee, Leon County, 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 11th day of September, 1986. COPIES FURNISHED: William M. Furlow, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Daniel E. Gallagher 379 East 5th Street Mount Vernon, N.Y. 10550 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Judie Ritter Executive Director Department of Professional Regulation 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 =================================================================
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11 day of October, 1989.
The Issue The issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and Rules 64B9-8.005(2) and 64B9-8.005(12), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the regulatory and prosecutorial duties related to nursing practice in Florida. Respondent is a licensed practical nurse in Florida, holding license no. PN 0481631. From May 13, 1992, to April 11, 1997, she was employed by Southlake Nursing and Rehabilitation Center (Southlake). On April 9, 1997, Respondent worked as a nurse on the 3:00 p.m. to 11:00 p.m. shift on Southlake's A wing. T.C. was a patient of another nurse on that wing. Around 7:00 p.m., Respondent began administering medications to her patients. Melody Perez, the ward clerk, informed Respondent that T.C. needed assistance because he was in respiratory distress. T.C. was sitting in the hall, six to eight feet from Respondent. Respondent went over to T.C., checked to make sure that there was oxygen in his tank and that his nasal cannula was in place. Respondent saw no outward symptoms of T.C. being in acute respiratory distress such as rapid breathing or anxiety. Respondent told Ms. Perez that she could not help T.C. because he was not her patient. She told T.C. that his nurse, who was on break and had the keys to the other medication cart, would be back in a few minutes. Respondent thought that T.C. just wanted his medications. She did not perform a nursing assessment, as that term is commonly understood in the practice of nursing. She did not take T.C.'s vital signs, count his respirations, or listen to his chest. After telling him to wait for his nurse, she just walked away. On April 10, 1997, T.C. and another resident complained to Southlake's administrative staff about Respondent's failure to help T.C. Southlake initiated an investigation based on these complaints. Conchita Griffin, Southlake's Assistant Director of Nursing, conducted the investigation. As was the custom and procedure at Southlake, Ms. Griffin interviewed T.C., the second complaining resident, Ms. Perez, and two certified nursing assistants (CNAs) who were on duty during the incident. Ms. Griffin then compiled a written report of the incident and submitted it to Southlake's administration. Based on her investigation, and after considering Respondent's disciplinary history at Southlake, Ms. Griffin recommended that Southlake terminate Respondent. Southlake had written policies requiring a nurse to attend to any resident who needed help. The policies require a nurse to assess a patient complaining of respiratory distress by taking the patient's vital signs, listening to respirations and to the chest for congestion. According to the policies, a nurse should attend to any patient in distress, calling the patient's assigned nurse, facility management, or 911 if needed. There are no circumstances where the nurse should do nothing. On April 11, 1997, Respondent was called in and asked about her side of the incident. She admitted that she looked at T.C. and that he did not appear to be in distress. She acknowledged that she did nothing except tell T.C. that his nurse would be back soon. When informed that she was being terminated, Respondent refused to sign the disciplinary form. She was asked to leave the premises immediately. Sharon Wards-Brown, Southlake's nursing supervisor for the evening shift in question, accompanied Respondent to A wing to retrieve her belongings. When Respondent arrived on the A wing, she went into the medication room, picked up T.C.'s chart, removed some pages from the chart, and went to the fax machine just outside the medication room. Ms. Wards-Brown and Beverly Burstell, the nurse manager who was on the floor checking some charts, saw Respondent remove the pages from T.C.'s chart and go to the fax machine. Both of them told Respondent that she could not remove or copy anything from the resident's chart. Respondent told Ms. Wards-Brown and Ms. Burstell not to touch her. Each page of nurses' notes in the patients' charts have a front and back side. Respondent stood at the fax machine for only a couple of seconds, not long enough to copy both sides of one page of nurses' notes. She certainly did not have time to copy both sides of all of the pages that she had removed from T.C.'s chart. Respondent's testimony that she had time to copy some of the nurses' notes from T.C.'s chart is not persuasive. Her testimony that she left all of the original pages in the fax machine is not credible. After being prevented from copying all of the pages that she had removed from T.C.'s chart, Respondent ran into the bathroom. A few seconds later she came out of the bathroom with papers and her purse in her hand. Ms. Wards-Brown called Clara Corcoran, Southlake's administrator, and Ms. Griffen for assistance. All three of them followed Respondent out of the building, demanding that she return the documents that she had removed from T.C.'s chart. Respondent repeatedly told them not to touch her. Ms. Corcoran and Ms. Griffen followed Respondent into the parking lot. Respondent got in her car but Ms. Corcoran and Ms. Griffen blocked Respondent from closing the car door and continued to demand the return of the papers. Respondent finally drove forward over the cement bumper and the grass in order to leave with the papers. Meanwhile, Ms. Wards-Brown returned to the A wing to examine T.C.'s chart. Ms. Griffen also examined the chart within two to three minutes after Respondent left the floor. The chart was still open on the desk. Ms. Wards-Brown and Ms. Griffen discovered that T.C.'s nurses' notes for April 9, 1997, were missing. They knew the notes were missing because both of them had seen the notes in the chart the day before when they reviewed the chart as part of the investigation. Respondent's Exhibit 2 is a copy of the front and back of one page of T.C.'s nurses' notes. The last note is dated March 27, 1997. It is not plausible that T.C.'s chart had no nurses' notes from that time until after April 10, 1997. Even if Respondent did not remove any of T.C.'s original nurses' notes from the premises, she violated the acceptable standards of nursing care by copying the front and back of one page and removing the copies from the facility.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $1,000 and suspending her license for one year, followed by two years of probation with appropriate conditions. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Thomas A. Delegal, III, Esquire Randy Rogers, Esquire Delegal & Merritt, P.A. 424 East Monroe Street Jacksonville, Florida 32202-2837 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4042 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact In October 1978 Bonnie Ray Solomon Crawford, LPN was employed at the West Pasco Hospital, New Port Richey, Florida as a licensed practical nurse provided by Upjohn Company's rent-a-nurse program. On 7 October 1978 Respondent signed out at 10:00 a.m. and 2:00 p.m., and on 8 October 1973 at 8:00 a.m. and 1:00 p.m. for Demerol 75 mg for patient Kleinschmidt (Exhibit 2). Doctor's orders contained in Exhibit 4 shows that Demerol 50 mg was ordered by the doctor to be administered to patient Kleinschmidt as needed. Nurses Notes in Exhibit 4 for October 7, 1978 contains no entry of administration of Demerol at 10:00 a.m. and at 2:00 p.m. shows administration of 50 mg. and Phenergan 25 mg. Exhibit 3, Narcotic Record for Demerol 50 mg contains two entries at 8:15 a.m. on October 7, 1978 and one entry at 12:30 p.m. where Respondent signed out for Demerol 50 mg. for patients King, Zobrist and King in chronological order. Nurses Notes for King, Exhibit 6, and Zobrist, Exhibit 5, contain no entry that Demerol was administered to patient Zobrist at 8:15 a.m. or to patient King at 12:30 p.m. on 7 October 1978. In fact, the record for Zobrist shows that Zobrist was discharged from the hospital on October 5, 1978. Failure to chart the administration of narcotics constitutes a gross error in patient care and is not acceptable nursing practice. Similarly it is not acceptable nursing practice to withdraw narcotics not contained in doctors orders or administer medication not in doctors orders. When confronted by the Nursing Administrator at West Pasco Hospital with these discrepancies in the handling of Demerol, Respondent stated that she failed to check the identity of the patient before administering medication and that she didn't feel she should be giving medications any more. Following this confrontation with the hospital authorities, Respondent was fired for incompetency. No evidence was submitted regarding Respondent's 1975 disciplinary proceedings.
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: At all times relevant hereto, respondent, Ruthie Mae Owens Brooks (Brooks or respondent), was licensed as a practical nurse having been issued license number PN 0877941 by petitioner, Department of Professional Regulation, Board of Nursing (Board). She has been licensed as a practical nurse since 1987. There is no evidence that respondent has been the subject of disciplinary action prior to this occasion. When the events herein occurred, respondent was an agency nurse for Underhill Personnel Services, Inc., an agency that furnished nurses to various health care facilities, including Methodist Medical Center in Jacksonville, Florida. She was employed at all times as a licensed practical nurse. On November 17, 1990, respondent was scheduled to work the 11 p.m. - 7 a.m. shift at Methodist Medical Center. Although her duty shift began at 11:00 p.m., respondent arrived a few minutes late and reported directly to the medical-surgical- orthopedic wing instead of signing in at the nursing office as required by hospital rules. After reporting to her work area, respondent went to the assignment board to review her assignment for that evening. Her specific duties that evening were to care for five patients in the medical-surgical-orthopedic wing. While respondent was at the assignment board, a registered nurse, Lynn Ivie, came to the board to ascertain her assignment. At that time, Ivie reported that she smelled a "strong odor of alcohol" on respondent's breath. However, Ivie said nothing at that time since she wanted to give respondent the benefit of the doubt. Around midnight, one of respondent's patients awoke in his room with severe chest pains. Both Ivie and respondent immediately went to the room. Although Ivie instructed Brooks to get a vital signs machine (also known as the Dynamap), Brooks ignored the instruction and "wiped the patient's face with a wet cloth". Ivie then brought the machine into the room and respondent was instructed by Ivie to take the patient's vital signs (blood pressure, temperature and pulse). This merely required her to place an attachment around the patient's arm and push a button to start the machine. The operation of the machine is considered a basic nursing skill. According to Ivie, respondent could not focus on the machine and did not seem to remember how to operate it. After waiting a few moments with no response from Brooks, Ivie finally took the patient's vital signs herself. During this encounter, Ivie again smelled alcohol on respondent's breath and concluded that her inability to assist in the care of the patient and to operate the machine was due to alcohol. Within a few moments, the patient was transferred to the intensive care unit (ICU) on another floor. Before accompanying the patient to the ICU, Ivie instructed respondent to chart the incident and action taken in the nurse's notes and then meet her in the ICU with the completed notes. These notes should be completed in an expedited manner so that the nurses in the ICU wing can utilize them in providing follow-up care to the patient. However, respondent did not chart the incident nor bring the notes to the ICU. Indeed, she failed to chart the notes on any of the patients assigned to her that night. By failing to chart any notes that evening, respondent contravened the requirement that a nurse file a report or record (nursing notes). Around 1:30 a.m. on November 18, Ivie and Joyce Biddix, the nursing supervisor, went to the room of one of the patients assigned to respondent and found the patient, a confused elderly male, sitting nude in a chair with the bed stripped of all linens. He had previously been tied to the bed to prevent him from falling. The linens were soiled with urine and were lying in a heap on the floor. Although respondent had taken the patient out of the bed, disrobed him, and removed the linens, she had left him unattended in the room and had not returned. Biddix called down the hall for someone to bring fresh linens and observed respondent "floating" down the hall saying "I can't find the linens" in a "singsong" voice. When she got closer to respondent, Biddix smelled alcohol on respondent's breath. It may reasonably be inferred from the evidence that respondent's conduct with this patient was unprofessional and constituted a departure from acceptable and prevailing nursing practice. After being confronted by Biddix regarding the alcohol, respondent told her she had drunk one beer with her meal around 10:30 p.m., or just before reporting to duty that evening. However, she denied she was intoxicated or unable to perform her duties. Respondent was then told to leave work immediately. The incident was later reported to Underhill Personnel Services, Inc. and that agency contacted the Board. After an investigation was conducted by the Board, an administrative complaint was filed. At hearing, respondent did not contest or deny the assertion that by reporting to work with alcohol on her breath, she was acting in an unprofessional manner and deviated from the standards of acceptable and prevailing nursing practice. In this regard, she acknowledged that she had drunk alcohol (which she claimed was only one tall beer) with her meal around 10:30 p.m., or just before reporting to duty. However, she contended that all of her previously scheduled shifts at the hospital had been cancel led and she assumed her shift that evening might also be cancelled. In response to the allegation that she could not operate the vital signs machine, respondent offered a different version of events and suggested that the machine in the patient's room was inoperative. Therefore, it was necessary for Ivie to bring a Dynamap into the room and Ivie took the vital signs without respondent's assistance. She justified leaving the elderly patient alone without clothes in his room on the grounds there was no clean gown, the patient was not combative, and she was only gone from the room for a few moments. Finally, she contended that she charted the notes for one of her patients but did not chart the others because the remaining patients were removed from her care by Ivie and Biddix when she was sent home at 1:30 a.m. However, these explanations are either deemed to be not credible or, if true, nonetheless do not justify her actions. Although there was no testimony concerning the specific issue of whether respondent is unable to practice nursing with reasonable skill and safety by reason of use of alcohol, taken as a whole respondent's conduct on the evening of November 17, 1990, supports a finding that her capacity was impaired that evening by virtue of alcohol. Accordingly, it is found that respondent was unable to practice nursing with reasonable skill and safety by reason of use of alcohol.
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 (j), Florida Statutes (1989), and that her nursing license be suspended for six months but that such suspension be stayed upon respondent's entry into and successful completion of the Intervention Program for Nurses. Respondent's failure to remain in or successfully complete the program will result in the immediate lifting of the stay and imposition of the six-month suspension. Thereafter, said license shall not be reinstated until such time as respondent appears before the Board and can demonstrate that she can engage in the safe practice of nursing. DONE and ENTERED this 16th day of December, 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 16th day of December, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-5033 Petitioner: Partially adopted in finding of fact 1. Partially adopted in finding of fact 3. Partially adopted in finding of fact 8. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. 7-10. Partially adopted in finding of fact 5. 11-14. Partially adopted in finding of fact 6. 15-16. Partially adopted in finding of fact 7. 17-18. Partially adopted in finding of fact 8. COPIES FURNISHED: Roberta L. Fenner, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Ruthie Mae Owens Brooks 1604 S.W. 40th Terrace, #A Gainesville, Florida 32607 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact During early 1982, Petitioner submitted an application for licensure as an Advanced Registered Nurse Practitioner in the category of Midwifery. Petitioner's application was reviewed by the Respondent, Board of Nursing, on July 21, 1982. By letter of that date, Petitioner was advised that her application for certification as an Advanced Registered Nurse Practitioner did not meet the criteria for certification as set forth and defined in Section 464.012(1), Florida Statutes. Specifically, Petitioner was advised that: The midwifery training that she completed in 1962 in England was note post-basic. Enrollment as a midwife on the Central Midwife's Board has not been recognized as an "an appropriate" specialty board for certifi- cation as an Advanced Registered Nurse Practitioner, and The master's degree preparation that Petitioner acquired is not from a program leading to a master's degree in a nursing clinical specialty area. (Petitioner holds a master's degree in Education) Petitioner was further advised that she had one other means of being certified. I.e., that "registered nurses who have received their midwifery training outside the United States may be certified if they have completed an American college of nurse midwifery approved refresher program and the registered nurse is deemed eligible to take the ACNM examination. [Rule 210-11.23(2)(c), Florida Administrative Code] (Petitioner's Exhibits 2 and 3) Petitioner is a currently licensed registered nurse in the State of Florida, having been issued license number 30882-2, on January 1, 1964, by examination. Further, Petitioner was admitted to the Central Midwives' Board (London, England) after successfully completing a one year course of training undertaken by pupils who had previously qualified as state- registered general trained nurses. Petitioner took a three years' course of general nurse training at Bedford General Hospital from 1957 through 1960 and commenced midwifery training on August 1, 1961, as confirmed in the verification of her training and enrollment as a midwife. Debra Fitzgerald, a resident of Atlanta, Georgia, on May 26, 1983, was previously employed by the Respondent, Board of Nursing, from July, 1980 to February, 1983, as a nursing consultant in the educational section dealing primarily with the certification of applicants in the field of ARNP. As part of her duties as an employee of the Respondent, Ms. Fitzgerald reviewed the application of the Petitioner for certification as an ARNP. Upon review of the Petitioner's application, it is determined that the program that the Petitioner attended in midwifery during 1961-1962 in England was not a formal post-basic program equivalent to the standards required of formal post-basic programs in this country. Rule 21D-11.24, Florida Administrative Code. Petitioner was given credit for a total of one hundred four (104) didactic hours and the Board requires a minimum of one hundred twenty (120) didactic hours for proof of the equivalent of a post-basic course requirement in obstetrical nursing. (Testimony of Fitzgerald [by deposition]) Petitioner has not otherwise satisfied the criteria to be certified in keening with Rule 21D-11.23(2)(c)1 or 2, Florida Administrative Code.
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
