The Issue The matters presented for consideration in this instance concern an Administrative Complaint brought by the Petitioner against the Respondent seeking to suspend, revoke or take other disciplinary action against the Respondent's license, in particular, against her license as a Registered Nurse. The substance of the Administrative Complaint is contained in five (5) counts. Count I to the Administrative Complaint alleges that on or about March 10, 1981, Respondent signed out a controlled substance, to wit: two (2) ampules of Demerol, between the approximate hours of 7:00 P.M. to 7:15 P.M. for a patient, DeFrisco [sic]. DeFrisco [sic], reputedly states that she did not receive the Demerol. Based upon the foregoing alleged facts, Respondent has purportedly violated Subsection 464.018 (1)(d), Florida Statutes (1979), by making a false report of record which she knew was false and in addition has violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with the minimal standards of acceptable and prevailing nursing practice. 1/ Count II to the Administrative Complaint alleges that on or about March 5, 1981, the Respondent administered a controlled substance, to wit: Demerol, in excess of that ordered by the attending physician and for that reason violated Subsection 464.018(1)(f), Florida Statutes (1979), in that she failed to conform with the minimal standards of acceptable and prevailing nursing practice. 2/ Count III alleges that the Respondent wasted, without a witness, certain controlled substances, in violation of hospital policy, as follows: On 2/28/81 Dilaudid, 1 mg On 2/23/81 Demerol, 100 mg. On 2/22/81 Demerol, 50 mg. On 2/16/81 Demerol, 100 mg. On 2/22/81 Morphene Sulphate 3 mg. On 1/28/81 Demerol, 25 mg. On 1/22/81 Demerol, 100 mg. Based upon these alleged facts, the Respondent purportedly violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with minimal standards of acceptable and prevailing nursing practice. Count IV to the Administrative Complaint alleges that on or about March 5, 1981, Respondent signed out a controlled substance, to wit: Demerol, at approximately 9: 02 A.M., and at 12:15 P.M., for the use of patient Theodora Durham. It is further alleged that patient Durham states that she did not receive the above mentioned Demerol. Based upon those alleged facts Respondent purportedly violated Subsection 464.018(1)(d), Florida Statutes (1979), in that she made a false report of record which she knew was false. Further, Respondent, based upon those facts, has allegedly violated Subsection 464018(1)(f), Florida Statutes (1919), by failing to conform with minimal standards of acceptable and prevailing nursing practice Count V alleges that on or about April 12, 1981, the Respondent reported to her place of employment, Beaches Hospital, under the influence of alcohol to the extent that it affected her body coordination Further, it is contended that Respondent's supervisor; Joyce Strarnes, did not allow her to complete her work shift because she, Respondent was unable to function safely and to conform with minimal standards of acceptable nursing practice Based upon these allegations, the Respondent has purportedly violated Subsection 464018(1)(f), Florida Statutes (1979), for failure to conform to the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established. 3/
Findings Of Fact This case is presented for consideration based upon the aforementioned Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Nursing, against the Respondent, Rebecca Lael Calhoun. The Petitioner, agency, is a regulatory body which has been granted the authority by the State of Florida to license, regulate and discipline those persons who practice nursing in the State of Florida. The Respondent Rebecca Lael Calhoun has been issued a license to practice as a Registered Nurse in the State of' Florida and at all times pertinent to this Administrative Complaint, has held that license issued by the Petitioner. Calhoun was employed at St. Luke's Hospital, in Jacksonville, Florida, between the months of December, 1980, and March 10, 1981. Her position with that institution was that of Registered Nurse. On March 10, 1981, the Respondent worked at the St. Luke's Hospital on Ward 1-C. In that capacity, she had responsibility for the medication cart where controlled substances and other medications were kept for patient use. One of the patients who was on Ward 1-C on March 10,1981, and for whom controlled substances and other medications were made available by physician's orders was one Barbara L. DiFrancesco. On that date, DiFrancesco had an operative procedure known as dilatation and curettage performed and after the procedure, was brought to room 161, which was a room on the ward where the Respondent was on duty. It was 4:30 P.M. when the patient was placed in that room. After DiFrancesco returned to her room, between the hours of 4:30 P.M. and 8:00 P.M. on March 10, 1981, she did not receive any form of controlled substance, in particular, Demerol. The Demerol was in fact removed from the hospital inventory in DiFrancesco's name and Respondent knew that the patient did not receive the Demerol. Nonetheless, the Respondent documented that the patient DiFrancesco had the substance withdrawn for the patient's benefit and had received such a controlled substance. The false documentation was discovered by Kathleen Lawson, Assistant Director of Nursing at St. Luke's Hospital who was investigating possible "discrepancies" on the part of the Respondent in the recordation of entries on the controlled substance forms kept by the hospital. On the evening of March 10, 1981, Lawson checked the controlled substance form at approximately 7:00 P.M., which pertained to Ward 1-C where the Respondent was working. This controlled substance form may be found as a part of the Petitioner's Composite Exhibit No. 1, admitted into evidence. (The entries on that form pertain to the time of the sign-out, name of patient, room number, nurse's signature, dosage amount, amount of wastage, if any, and signature of a witness to wastage, and the description of the medication or controlled substance signed out by the practitioner) Lawson's review of the controlled substance form on March 10, 1981, at around `1:00 P.M. did not indicate that Demerol had been signed out for the benefit of DiFrancesco; however, when Lawson returned to Ward 1-C at approximately 7:15 P.M. on that same evening, she observed an entry on the controlled substance form which had been made by the Respondent. This entry indicated that Demerol in the amount of 50 mg. had been signed out for the benefit of DiFrancesco at approximately 5:30 P.M. When confronted with the discrepancy of having failed to make a timely entry of the sign-out of the controlled substance, Demerol, for the benefit of the patient DiFrancesco, that is to say the fact that the 7:00 P.M. check revealed no sign-out and a 7:15 P.M. check revealed a sign-out post-timed to 5:30 P.M.; the Respondent was than asked to perfect all necessary documentation to conform all records on the question of the administration of a controlled substance for the benefit of the patient DiFrancesco. In response to this request, the Respondent made an entry on the nurse's notes portion of the patient DiFrancesco's medical chart, to the effect that at 5:00 P.M. Demerol in the amount of 50 mg., IM, intramuscular, was administered to the patient DiFrancesco for "cramping." A copy of those nurse's notes may be found in Petitioner's Composite Exhibit No. 3, admitted into evidence. Some of the aforementioned "discrepancies' that officials at St. Luke's Hospital had been concerned about in terms of the Respondent's reporting procedures pertained to the controlled substance form, related to wastage of Schedule II controlled substances. St. Luke's Hospital had a written policy dealing with this subject as may be found in Petitioner's Exhibit No. 6, which is a copy of that policy related to unit doe drug distribution. That written policy was to the effect that when Schedule II controlled substances are wasted, or partially administered to the patient, the wastage or partial administration is recorded on the controlled substance form through the name of the patient; room number; the nurse who wasted material; the material; the amount injected and/or the amount wasted. The substance is shown to a witness in the process of recording the incident description as set forth herein. Pursuant to the written policy, there is also a line on the controlled substance form for the placement of . Off initials of that person who witnessed the accountability of the wasted Schedule II controlled substance, when the substance is only partially administered. In addition, the Respondent and other nurse practitioners in the hospital underwent an orientation which apprised the Respondent and others of the matters pertaining to wastage of Schedule II controlled substances as set forth in the written procedures and the utilization of the controlled substance form. Also, a customary practice within the hospital was established in which totally wasted narcotics were witnessed by initials placed by the witness on the controlled substance form, in the same fashion as partially wasted substances. Having been made aware of the requirements of that drug distribution handout, the utilization of the controlled substance form and custom, the Respondent did, in fact, on occasion have wastage which was recorded on the controlled substance form and initialed by another nurse practitioner as may be seen in a review of Petitioner's Composite Exhibit No. 1, which is a series of controlled substance forms for various dates. Notwithstanding her knowledge of procedures and customs within the hospital, there were a number of dates in which the Respondent failed to have a witness initial the wastage of Schedule II controlled substances Those occasions were as follows: Date: January 28, 1981 Patient: Pinkney Dose: 50 mg. Demerol Waste: 25 mg. Demerol Witness: No entry Date: February 16, 1981 Patient: Gression Dose: 100 mg Demerol Waste: 100 mg. Demerol Witness: No entry Date: February 22, 1981 Patient: Perry Dose: 50 mg. Demerol Waste: 50 mg. Demerol Witness: No entry Date: February 23, 1981 Patient: Fraser Dose: 100 mg. Demerol Waste: 100 mg. Demerol Witness: An entry made to the effect that a witness was unavailable Date: February 28, 1981 Patient: Bergdorf Dose: 1 mg. Dilaudid Waste: 1 mg. Dilaudid Witness: No entry There were no facts presented other than those related to the patient Fraser on the presence of a witness to the events of wastage and destruction of the Schedule II controlled substances. In addition to the incident with DiFrancesco, there were two other occasions in which the Respondent had signed out a controlled substance and indicated giving that controlled substance to a patient, when in fact the patient did not receive the controlled substance. This pertained to incidents on March 5, 1981, involving a patient on Ward 1-C, where the Respondent was employed as a Registered Nurse at St. Luke's Hospital. On the aforementioned date, i.e., March 5, 1981, the patient Theodora Durham was in the hospital for procedures related to curettage and packing of the uterus. She was assigned to Room 158 on Ward 1-C as her patient's room. The controlled substance sign-out form for March 5, 1981, which is found as part of Petitioner's Composite Exhibit No. 1, indicates that at 9:02 A.M. and 12:15 P.M., Demerol in the amount of 50 mg. on each occasion was signed out for the benefit of the patient Durham. The sign-out and other entries were made by the Respondent. The Demerol was in fact removed from the hospital inventory. The patient's chart, a copy of which may be found as Petitioner's Composite Exhibit No. 2, admitted into evidence, also indicates nurses notes authored by the Respondent stating that the 50 mg. amounts of Demerol were administered intramuscular to the patient Durham at 9:00 A.M. and 12:00 Noon. In fact, the patient Durham never received the Demerol on either of the occasions referred to herein. The Respondent knew the patient had not received the Demerol. Following her employment at St. Luke's Hospital, the Respondent received employment at Beaches Hospital in Jacksonville Beach, Florida. On April 12, 1981, she reported work as a Registered Nurse at Beaches Hospital for the 11:00 P.M. to 7:00 A.M. shift. During the transition from the prior shift into the shift of the Respondent, two (2) fellow employees noticed the aroma of what they felt to be alcohol on the breath of the Respondent. The employees having reported their observation to the nurse supervisor, the Respondent was summoned into the office of the nurse supervisor and under questioning admitted that she had been "drinking." This response was related to the issue of whether the Respondent had been consuming an alcoholic beverage. The nurse supervisor detected an unkempt appearance about the person of the Respondent and the fact that the Respondent's eyes were bloodshot Following this discussion, the Respondent was asked to leave the hospital because she could not afford patient care to those patients on her ward, due to the fact that she had been consuming an alcoholic beverage before coming on duty which was contrary to the policy of the hospital.
Findings Of Fact The Petitioner, Department of Professional Regulation, Board of Nursing, is an agency of the State of Florida having jurisdiction over the licensing, regulation of licensure status, and regulation of practice of professional nurses in the State of Florida. The Respondent, Patricia J. Canfield, is a licensed practical nurse, holding license No. 27935-1 authorizing the practice of practical nursing in the State of Florida. The Respondent has been so licensed at all times material to this proceeding. At all times material to this proceeding the Respondent has been employed as a licensed practical nurse in the infirmary at the Florida School for the Deaf and Blind located in St. Augustine, Florida. The Respondent was employed on November 29 and November 30, 1981, in the infirmary at the School for the Deaf and Blind when student Aaron Henderson was checked into the infirmary. Petitioner's Composite Exhibit 1 consists of the medication records by which nurse-employees obtained medication, as pertinent hereto Darvon, from the school infirmary dispensary. The Respondent, when she obtained Darvon from the dispensary, initialed this record with the initials "PC." On the dates in question the medication administration records in evidence established that the Respondent signed as having received into her possession one Darvon tablet, reputedly to be administered to patient Aaron Henderson on each of the days, November 29 and November 30. Aaron Henderson, testifying for the Petitioner, was shown a unit of Darvon established to be identical to that dispensed at the infirmary during the material time period in November, 1981. Witness Henderson stated he had never received such a pill from the Respondent, whom he identified as the nurse on duty in the infirmary when he was there on the two days in question. Witness Patty Grant was a patient in the infirmary on November 16, 1981. It was established that the Respondent signed the medication administration record as having received from the dispensary a Darvon tablet, reputedly to be administered to patient Grant on that date. Patient Grant received asthma medication from the Respondent on that date, but maintained that she had never received a Darvon tablet from the Respondent on that date after being shown a sample Darvon tablet established to be identical to that dispensed by the infirmary during November, 1981. Student-patient Stratton was a patient in the infirmary on October 22, 1981. On that date the Respondent signed the subject record indicating that she checked out a unit of Darvon from the dispensary on behalf of patient Stratton. Patient Stratton recalled receiving some medication from the Respondent on that date, but did not recall her administering to him a pill of the appearance of the Darvon tablet in use by the dispensary during the time in question. The Respondent initialed the Darvon medication chart for November 13, 1981, indicating that she had received from the dispensary a Darvon tablet to be administered to patient Diane Matthews. Patient Matthews testified that the Respondent had never given her a Darvon tablet on the date in question. Included as a part of Petitioner's Composite Exhibit 1 are the Nurses' Notes for the various patients named in the Administrative Complaint. With regard to patient Aaron Henderson, the medication administration records revealed that the Respondent signed for and obtained a unit of Phenaphen on December 8, 1981, for that patient, but the administration of the drug is not recorded in the nursing notes pertaining to patient Henderson. With regard to patient John Wise, the medication administration records revealed that on November 13, and November 16, 1981, the Respondent signed out Darvon tablets on behalf of that patient, but the Nurses' Notes pertaining to patient Wise made no reference whatever to the ultimate disposition of the Darvon. The medication administration records pertaining to patient Ray Jackson for November 4, 1981, established that the Respondent signed for a unit of Darvon for that patient, but the Nurses' Notes for that patient on that date do not reflect any notation regarding the administration or disposition of that unit of Darvon. The medication administration records for patient Duffy for the date of October 16, 1981, establish that Respondent obtained from the dispensary one unit of Darvon on behalf of that patient; however, her Nurses' Notes contain no indication of the ultimate disposition of that unit of Darvon. Expert testimony presented by the Petitioner establishes that the failure to document the administration of a drug on a patient's chart does not meet the minimum acceptable and prevailing standards of nursing practice, and that any licensed nurse knows or should know that documenting the administration of medication is a proper and required procedure. The Respondent testified on her own behalf and established that she has been licensed since 1969 in Michigan and Florida and has worked in St. Augustine at the subject school since 1975. Her duties involve general nursing duties and she customarily sees 50 to 100 student-patients per day on her shift. Frequently, she signs for medication which is obtained from the dispensary or secure area and another person on duty actually administers it, which would explain in part the students not remembering that she administered any Darvon. Often this procedure involves the Respondent working in the back room of the infirmary, obtaining the medication or signing for the medication, and the nurse on duty at the front desk actually giving it to the patient, with that nurse generally keeping the record slip made of the administering of the Darvon. The Respondent acknowledged, however, that Mrs. Harvey, the Head Nurse, had talked to her on one occasion about her neglecting to "chart medication." The Respondent also established that she was under Dr. Gurling's care in November and December of 1981 for a physical condition involving severe vascular headaches, for which she took Darvoset. She took Darvoset, containing Darvon and Tylenol (different from the Darvon tablets involved in this proceeding), because she has an allergy to aspirin and codeine. She filled her prescription for Darvoset in November, 1981, as Dr. Gurling directed and also filled a prescription for December, 1981, at the direction of her doctor. She maintains she never signed out for a drug and converted that drug to her own use and has never improperly taken drugs from the infirmary. She established that although she signed out for some Darvon orders, that they were requested by other nurses who would have been responsible for administering it to the particular students involved. She admits, however, that at times she either forgot to chart medication administered by her or lost the record slip which she normally uses for charting. In corroboration of her testimony regarding her own medical condition and the use of her own prescriptions for Darvon or Darvoset, Harold E. Waldron, a licensed pharmacist (testifying for the Petitioner), established that a large amount of Darvon had been obtained from his pharmacy by the Respondent in November of 1981 through prescriptions from her doctor. Mr. Waldron's recollection was that she received approximately 180 units of Darvon from his pharmacy in November of 1981. Although Mr. Waldron feels this may indicate some dependency on the drug, his testimony was not allowed on that theme because it was too speculative and non-expert in nature. Indeed, the fact that she received a large amount of Darvoset pursuant to legitimate prescriptions during November and December of 1981, militates in part against a finding that she converted drugs from the dispensary to her own use.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Petitioner imposing a one-year probationary term on the licensure status of the Respondent, Patricia J. Canfield, L.P.N., and that she be required to take a continuing education course designed to enhance her competency in the area of properly accounting for, recording and conducting transactions with medications, especially controlled substances. DONE and ENTERED this 2nd day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of December, 1982. COPIES FURNISHED: W. Douglas Moody, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Charles Pellicer, Esquire 28 Cordova Street St. Augustine, Florida 32084 Helen P. Keefe, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on July 28, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 0031639 on October 26, 1977. Respondent is board certified in general surgery and has worked and trained as a general and vascular surgeon. Respondent has practiced medicine in Tampa since 1988. Respondent offered testimony establishing that his peers respect his ability as a surgeon. Until 1996, Respondent had not been the subject of disciplinary action by the Board of Medicine or by any other licensing entity. On January 26, 1996, the Board of Medicine issued a final order in Division of Administrative Hearings Case No. 95-3925, imposing discipline on Respondent’s license to practice medicine. Case No. 95-3925 involved two separate incidents in which Respondent performed surgical procedures that had not been specifically consented to by the patients. In the first incident, Respondent removed the severely diseased left leg of the patient when the signed consent to surgery was for removal of the right leg. The patient was well known to Respondent, and it was understood between Respondent and the patient that both legs would eventually require amputation. In the second incident, Respondent removed a toe that had become dislocated during a debridement of the patient’s foot. The toe was connected only by ligament and necrotic tissue, and Respondent removed it during the debridement procedure rather than waiting to obtain specific consent for its removal. In the final order, the Board of Medicine concluded that Respondent had violated Sections 458.331(1)(p) and (t), Florida Statutes, by failing to obtain proper consent from a patient and by practicing medicine below the standard of care. Based on these conclusions, the Board of Medicine imposed the following relevant disciplinary measures: Respondent’s license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $10,000 to the Board of Medicine, within one year of the date this Final Order is filed. Respondent’s license to practice medicine in the State of Florida is SUSPENDED for a period of 6 months including the time served under the emergency suspension. Respondent shall submit a practice plan prior to reinstatement to be approved by the Board’s probation committee. Within 6 months of the effective date of this Final Order, Respondent shall have an independent, certified risk manager review Respondent’s practice. Specifically, this independent consultant shall review the Respondent’s practice concerning preoperative procedures including patient consent. This consultant will prepare a written report addressing Respondent’s practice. Such report, if necessary, will include suggested improvements of the quality assurance of Respondent’s practice. Respondent will submit this report to the Board’s Probation Committee with documentation that demonstrates compliance with the suggestions enumerated in the consultant’s report. Upon reinstatement, Respondent’s license to practice medicine in the State of Florida shall be placed on PROBATION for a period of two years, subject to the following terms and conditions: Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rules 59R, Florida Administrative Code. Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, quarterly, and at such other times requested by the committee. Respondent shall be noticed by the Board staff of the date, time and place of the Board’s Probation Committee whereat Respondent’s appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of this Probation, and shall subject the Respondent to disciplinary action. * * * 6. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 to be approved by the Board’s Probation Committee.... The responsibilities of a monitoring physician shall include: Submit quarterly reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer’s practice. Brief statement of probationer’s compliance with terms of probation. Brief description of probationer’s relationship with monitoring physician. Detail any problems which may have arisen with probationer. * * * Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probationary terms. Describe relationship with monitoring/supervising physician. Advise Board of any problems. * * * 11. Respondent understands that during this period of probation, semi-annual investigative reports will be compiled by the Agency for Health Care Administration concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. On January 31, 1996, Respondent submitted to the Board of Medicine the practice plan required by the final order. The practice plan named Joseph Diaco, M.D., as Respondent’s monitoring physician, and stated that Dr. Diaco would review twenty percent of Respondent’s patient charts. The practice plan stated that Respondent would comply specifically with all the terms and conditions of the final order, and with the recommendations of the certified risk manager. The practice plan further stated: ... Dr. Sanchez will have specific discussions with his surgical patients prior to any anesthesia being administered, wherein he will discuss the intended surgical procedure again, and will have the intended surgical site marked with indelible ink. The record does not document that the Board of Medicine’s Probation Committee formally approved Respondent’s practice plan, or addressed the terms of the practice plan in any way. Such approval is presumed from the fact that Respondent appeared before the Probation Committee on several occasions subsequent to filing the practice plan, and the record does not indicate that the Probation Committee registered any objection or suggested any modifications to the practice plan. Respondent made the required appearances before the Probation Committee. Respondent and Dr. Diaco submitted the required quarterly reports to the Board of Medicine, and Dr. Diaco fulfilled the monitoring requirements of the practice plan. Periodically during the probation period, Mr. Richard Hess, an investigator with the Agency for Health Care Administration, would contact Respondent and Dr. Diaco to inquire as to Respondent’s practice and compliance with the terms of probation. Mr. Hess would inquire regarding such matters as the submission of quarterly reports, the payment of the administrative fine, and the current locations at which Respondent was practicing. Mr. Hess would submit his reports to the Agency for Health Care Administration and to the Board of Medicine, and these reports were used to supplement the information submitted directly by Respondent and Dr. Diaco. Based upon the information he was provided by Respondent and Dr. Diaco, Mr. Hess never found Respondent out of compliance with the terms of his probation. On the morning of November 2, 1997, an order was entered at Vencor Hospital by the primary treating physician for placement of a central venous line for patient D.M., an 80 year- old female patient. A central venous line is most often placed for access to the circulatory system for the provision of medications and/or fluids when the peripheral venous system is not available for such use. A central venous line may be ordered if the patient has no veins remaining for the insertion of a peripheral catheter, or for extended access, such as when a patient requires a long-term cycle of antibiotics for a bone infection. Patient D.M. required the central line for antibiotics to treat infected ulcerations on her lower extremities. The placement of a central line may be performed by any licensed physician, though surgeons are often called in to perform the procedure for primary physicians. Two physicians who teach at the University of Miami testified that third-year residents are allowed to perform the procedure with only indirect supervision. Dr. Diaco testified that nurse practitioners may perform the procedure under the supervision of a physician. The procedure is performed at the patient’s bedside, not in an operating room. No general anesthesia is required. A local anesthetic is administered at the point of insertion. The entire procedure takes two to three minutes to perform. The central line may be placed in at least three locations in the body: the leg, the neck, or the collarbone. In the case of D.M., Respondent placed the line by way of the collarbone. A needle is inserted under the clavicle and into the vein that unites with the jugular vein to form the second largest vein in the human body, the superior vena cava. Using a guide wire, a catheter is threaded through the subclavian vein and placed inside the superior vena cava. Prior to performance of the procedure, the patient’s head is typically placed lower than her feet in what is called the Trendelenburg position. If the patient has a feeding tube, it is typically turned off prior to the procedure to prevent aspiration of tube material. Proper placement of the central line is confirmed by X- ray taken immediately after the procedure. Such confirmation of placement is necessary due to the risks associated with incorrect placement. The most immediate risk is pneumothorax, the puncturing of the patient’s lung. Other less common complications are blood loss, cardiac arrest, infection, and irregular heartbeat. The consensus of the experts who testified at hearing was that the procedure poses no greater risk of complication for elderly patients such as D.M., but that elderly patients who do suffer complications may have a harder time recovering than would younger, more robust patients. D.M. was an 80 year-old female patient who shared Room 218 at Vencor Hospital with J.P., an 89 year-old female patient. D.M. and J.P. were of the same general age, ethnic origin, and gender. They had similar medical problems, including bilateral lower extremity decubiti and ulcerations. D.M. was able to understand conversation and could verbally communicate with staff. D.M. signed on her own behalf the consent form for the insertion of the central venous line. The signature on the consent form was obtained by and witnessed by Elizabeth Rood, a registered nurse on duty during the day of November 2, 1997. Ms. Rood testified that she believed D.M. was rational enough to sign the form on her own behalf. Vencor Hospital policy dictated that informed consent be obtained from the patient by the surgeon who was to perform the procedure. The nursing employees of Vencor Hospital and Respondent all testified that, despite the stated policy, it was common practice at the time for nurses to obtain the signatures of patients on the consent forms. The express terms of Respondent’s practice plan also required Respondent to have “specific discussions with his surgical patients prior to any anesthesia being administered. ” J.P. suffered from organic brain syndrome and was generally unable to communicate verbally. J.P. was unable to give consent for surgical procedures on her own behalf. Ms. Rood obtained D.M.’s signature on the informed consent form at about 10:00 a.m. Shortly thereafter, hospital staff contacted Respondent to inform him of the order and request that he perform the placement of the central line. Respondent replied that he was unable to perform the procedure at that time because of a more urgent consultation at St. Joseph’s Hospital, but would come to Vencor Hospital later to perform the procedure. Shortly before the start of the nursing night shift, the central line cart with supplies for the procedure was brought by the day supervisor to the second floor of Vencor Hospital and placed outside Room 218. Lisa Cotroneo was the night charge nurse. When she arrived for her shift, she received report from the day charge nurse. That report indicated that D.M. was to receive a central line placement at some time during the evening. The nursing staff at Vencor was divided into teams of two or three nurses assigned to particular rooms on the floor. Team three was responsible for Room 218. At the start of the night shift, Nurse Cotroneo informed two of the three nurse on team three, Donna Maranto and Fortune Ndukwe, that a central line was to be placed on patient D.M. that evening. Nurse Cotroneo did not inform the third nurse, Mary Shogreen, because Nurse Shogreen was a pool nurse called in to work on short notice and had not yet arrived for her shift. Nurse Shogreen was the nurse on team three who was assigned primary care duties for the patients in Room 218. Nurse Shogreen was later informed by Nurse Ndukwe that one of her patients would be receiving a central line placement that evening. Nurse Shogreen testified that she intended to check with the charge nurse to confirm the order for a central line placement, but that she never did so. At around 8:00 p.m., Respondent telephoned the nursing unit to inform the charge nurse that he was on his way to perform the placement of the central line. Nurse Cotroneo conveyed this information to Nurses Maranto and Ndukwe, and told them to be sure everything was ready for Respondent’s arrival. Respondent arrived at Vencor Hospital shortly after 8:00 p.m. and proceeded to the second floor nursing station, where he asked for and received the chart for patient D.M. He reviewed the chart, which contained the signed consent form and the order for placement of the central line. After reviewing the chart, Respondent inquired as to the location of D.M. and the nurse who would assist him in the procedure. Respondent was told that D.M.’s nurse was down the hall. Respondent walked down the hall and approached a group of three or four nurses. Respondent did not know any of them. He informed the group that he was Dr. Sanchez and was there to perform the central line placement. One of the nurses, later identified as Mary Shogreen, told him she was ready for him. She led him down the hall toward Room 218. Respondent paused at the central line cart outside Room 218 to pick up a pair of surgical gloves and the kit used for the central line placement. When Respondent entered the room, he observed Nurse Shogreen already at the bedside. The room was dark, save for a single light over the bed of the patient where Nurse Shogreen was working. Respondent saw that Nurse Shogreen was turning off the feeding tube to the patient, a common precursor to performance of a central line placement. Respondent walked to the other side of the patient’s bed and addressed the patient by the name of D.M. He told her that he was Dr. Sanchez and that her physician had asked him to insert a central venous catheter in her. Respondent looked into the patient’s eyes and realized she was not comprehending what he said. Nurse Shogreen was standing directly across the bed and could hear Respondent’s efforts to talk to the patient, including his addressing that patient as “D.M.” Respondent asked Nurse Shogreen if the patient was “always like this,” i.e., unresponsive. Nurse Shogreen answered that she had never had the patient before, but believed that was the usual condition of the patient. It would not be unusual for an elderly patient such as D.M. to be communicative and able to understand and sign a consent form at 10:00 a.m., but then be uncommunicative in the evening. The medical community informally refers to this phenomenon as "sundown syndrome." Respondent told Nurse Shogreen to assist him in placing the patient in the Trendelenburg position, and to get a rolled towel to place between the patient’s shoulder blades. While Nurse Shogreen was getting the towel, Respondent examined the patient’s neck and chest. Nurse Shogreen returned with the towel, but was unable to adjust the bed into Trendelenburg position. Respondent told her to go get another nurse who knew how to work the bed. She brought in Nurse Ndukwe, who was also unable to get the bed into the proper position. At length, they found a certified nurse assistant who was able to place the bed into position. Neither Nurse Shogreen nor Nurse Ndukwe expressed any concern to Respondent regarding the identity of the patient. Nurse Ndukwe had received an explicit report concerning the fact that patient D.M. was to receive a central line placement. Nurse Shogreen had heard Respondent address the patient as D.M. Respondent completed the procedure, which took about one minute. He proceeded to the nurse’s station and ordered the standard X-ray to confirm the proper placement of the central line, completed the consult form, and dicated both his consultation report and operative report. Nurse Shogreen remained behind in the room to clean up after the procedure. She made notations in the bedside chart of patient J.P., the mistaken recipient of the central line. Even at this point, Nurse Shogreen did not realize that the wrong patient had received the central line. The findings as to events in Room 218 on the evening of November 2, 1997, were based on the testimony of Respondent. Nurse Shogreen testified that it was Respondent who led the way into the room, Respondent who proceeded to the wrong bed, and Respondent who prevented Nurse Shogreen from going out to get the patient’s chart to confirm her mental condition after questioning by Respondent. Nurse Shogreen agreed with Respondent’s version of the problems with getting the bed into proper position, but testified that Respondent was so angry and in such a hurry that he performed the central line placement before the staff was able to place the bed in the proper position. Based on both the substance of the testimony and the demeanor of the witnesses, it is found that Respondent’s version of events is more believable, and that Respondent is a more credible witness than Nurse Shogreen. The undersigned is unable to credit testimony that a physician of Respondent’s skill and experience would plunge ahead into the room and commence a procedure on a patient he had never seen, without doing anything to ascertain her identity. The undersigned finds it more plausible that Respondent followed Nurse Shogreen’s lead, observed the visual cues she was providing, and assumed that the patient to whom Nurse Shogreen attended was in fact patient D.M. Respondent's proffer of testimony regarding inconsistencies in Nurse Mary Shogreen's testimony before the Peer Review Committee was disregarded in formulating these findings of fact. Several physicians offered expert testimony as to whether it is within the standard of practice for a surgeon to rely on his assisting nurse for patient identification. Dr. David Shatz, an associate professor of surgery at the University of Miami, testified that any surgeon must be absolutely sure he is working on the right person. He testified that once Respondent was unable to get a verbal response from the patient, he should have asked the nurse if he was speaking to patient D.M. Dr. Shatz concluded that it is a deviation from the standard of care to perform a procedure on a noncommunicative patient without checking the patient’s identification bracelet. Dr. Stephen Michel agreed that Respondent failed to meet the standard of care by placing the central line in the wrong patient. Dr. Michel’s other conclusions regarding the events in question cannot be credited because he admitted he was assuming that Dr. Sanchez was not permitted by the terms of his probation to be working in Vencor Hospital at all. This assumption was incorrect, and colored the remainder of his conclusions. Dr. Enrique Ginzburg, also an associate professor of surgery at the University of Miami, testified that a surgeon is usually unfamiliar with the patient in a central line placement, and stated that he could not remember the last time he checked an identification bracelet when the nurses were in the room with him. He agreed that it would be easy to check the armband, but that physicians simply do not check the armband if nurses are present to identify the patients. Dr. Jerry Diehr, an anesthesiologist at St. Josephs Hospital in Tampa, testified that a reasonably prudent physician would do what Respondent did. He stated that he relies on nurse identifications in similar circumstances, and that it is common practice for physicians to do so. Dr. Diehr testified that physicians rely on nurses for all manner of patient identification. He noted that care is often dictated by telephone calls. When a nurse calls him and tells him about the condition of his patient, the underlying assumption is that the nurse has correctly identified the patient and adequately reported the condition. Physicians may base their entire course of treatment on such reports from nurses, and must be able to rely on the nurses for such identification and reporting. Dr. Diaco strongly opined that physicians must be able to rely on nurses for patient identification. It is the nurse’s responsibility to identify the correct patient when the physician does not know the patient. Dr. Diaco testified that if physicians cannot rely on nurses for such basic information as the identity of their patients, they may as well live in the hospital and administer their own medications. Peter Shute, an expert in general nursing practice, opined that the three nurses on duty at Vencor Hospital on the evening of November 2, 1997, were negligent in their duty to know the patients on their assigned unit. He testified that Nurse Shogreen was particularly negligent, because she had not received full report on her patients, found out that one of her patients was to receive a central line placement that evening, but did not immediately obtain a full report and take steps to ensure that all preparations had been made. The weight of the evidence is that it was within the standard of care under the conditions and circumstances for Respondent to rely on Nurse Shogreen’s identification of the patient. This finding does not minimize the fact that Respondent bears ultimate responsibility for the performance of an invasive procedure on a patient who did not give informed consent. After Respondent dictated his notes and left the hospital, David Vallejo, the X-ray technician, came to the floor to obtain the X-ray ordered by Respondent. He discovered that the patient who received the central line was J.P., not D.M. Mr. Vallejo went to the nurse’s station and informed Nurse Cotroneo, who called the nursing supervisor to come to the room with her. Nurse Cotroneo and the supervisor confirmed that both patients in Room 218 were wearing their identification bracelets. The nursing supervisor called J.P.’s primary physician, who ordered an X-ray, which confirmed that J.P. suffered no ill effects from the placement of the central line. He also ordered removal of the central line, which was accomplished without incident. Respondent was informed of the error by telephone. He came to Vencor Hospital the next day, November 3, 1997, and documented the error in the medical records of both D.M. and J.P. On that day, a different surgeon performed the central line placement on D.M. All of the expert witnesses agreed that Respondent’s charting and recording of the incident, both before and after he learned of the error, were adequate and indicated no effort to conceal the facts of the situation. The experts also agreed that marking the intended surgical site with indelible ink serves no purpose in a central line placement. Petitioner's own expert, Dr. Shatz, stated that marking the site of a central line placement would be "silly." On November 3, 1997, Vencor Hospital suspended Respondent’s hospital staff privileges pending an investigation of the incident. Respondent immediately contacted Dr. Diaco, his indirect supervisor, as soon as he learned of the error. Respondent fully informed Dr. Diaco of the facts of the situation. Dr. Diaco told Respondent that he did nothing wrong and that “the nurse is in big trouble.” Respondent also sought the counsel of his attorney, Michael Blazicek. Mr. Blazicek conferred with Dr. Diaco, and also concluded that this was a nursing problem, not a standard of care problem for Respondent. The results of the hospital’s internal Peer Review Committee review seemed to bear out the opinions of Dr. Diaco and Mr. Blazicek. On November 26, 1997, Respondent was restored to full privileges at Vencor Hospital. Nurse Shogreen received verbal counseling and a one-day suspension for failure to render proper treatment to the correct patient. Vencor Hospital’s “Root Cause Analysis Team” found that nursing protocols should be changed to prevent a recurrence of patient misidentification. Patients would henceforth be identified by bed letter designation. Identification of the patient and consent to treatment would be verified by two people, one of whom must be a hospital employee. On November 17, 1997, the quality review manager of Vencor Hospital submitted an Adverse or Untoward Incident Report (Code 15) regarding the incident, pursuant to Sections 395.0197(6) and 641.55(6), Florida Statutes. A Code 15 Report is a report of serious adverse incidents in licensed facilities. The Code 15 Report identifies the physicians and nurses involved by their license numbers, and identifies the patient and facility. It describes the nature of the incident and all actions taken by the hospital in response to the incident. The purpose of the Code 15 Report is to notify the Agency for Health Care Administration and the Department of Health within 15 days of a serious adverse incident so the Agency may review the incident and begin an investigation. Respondent appeared before his Probation Committee on November 13, 1997. At this time, Respondent knew that the hospital would be filing a Code 15 Report, though it had not actually done so. Respondent was still on summary suspension at Vencor Hospital, pending review. Prior to his Probation Committee appearance, Respondent conferred with his attorney, Mr. Blazicek, who counseled him to answer any questions forthrightly, but not to volunteer information about the incident to the Probation Committee. This advice was based on the facts that the incident was still under investigation, that there had been no finding of wrongdoing by Respondent, and that summary suspension was a standard procedure for such incidents indicating no conclusions as to ultimate responsibility. Mr. Blazicek testified that he knew Respondent still had one more written quarterly report to file in January 1998. He reasoned that if the hospital's investigation resulted in adverse findings, Respondent could report the incident in that later filing. The Probation Committee raised no questions as to the Vencor Hospital incident, and determined that Respondent’s probation would terminate as scheduled upon payment of the administrative fine. Respondent did not volunteer information about the incident or the summary suspension. Respondent and Dr. Diaco filed their final quarterly reports in January 1998. Neither of them reported the Vencor Hospital incident. Respondent reported that he was in full compliance with all probationary terms. By the time the final quarterly reports were received, the Department of Health was aware of the Code 15 Report. Nonetheless, the Department issued an Order of Termination on February 2, 1998, finding that Respondent had satisfactorily completed the term of his probation as of January 26, 1998.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine enter a final order determining that Rolando R. Sanchez has violated Section 458.331(1)(p), Florida Statutes, and suspending his license for a period of nine months from the date of the Order of Emergency Suspension of License, imposing a fine of $2,500.00 and placing Respondent on probation for a period of two years from the date the suspension expires. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 24th day of November, 1998. COPIES FURNISHED: Albert Peacock, Esquire John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all pertinent times, respondent Margie V. Gray Denomme worked the 3- to-11 shift as a licensed practical nurse on the orthopedic floor, 3 North, of West Florida Hospital, in Pensacola. On or about September 9, 1980, respondent was counseled for failing to record the administration of Stadol and Demerol, controlled substances, "on MAR." Petitioner's Exhibit No. 2. CHART NO. 670613 On December 19, 1980, Dr. Hooper ordered, inter alia, 10 to 12 milligrams of morphine sulfate for a patient (Chart No. 670613) "q 3-4 hrs prn pain." Petitioner's Exhibit No. 1. According to a Narcotics and Controlled Drug Administration Record, Petitioner's Exhibit No. 2, respondent administered 10 milligrams of a 15-milligram tubex of morphine (sulfate) to the patient at five o'clock on the afternoon of December 26, 1980, and wasted the other five milligrams, the wastage being witnessed by another licensed practical nurse, Ms. Grant. The December 26, 1980, patient progress notes for the patient, Petitioner's Exhibit No. 1, contain an entry reflecting administration of medication at five o'clock in the afternoon: [complaining] o[f] pain, medicated [with] M[orphine] S[ulfate] 10 mg IM . . . as stated by M. Denomme LPN." The entry is signed, "G. Grant LPN." The PRN medication administration record for this patient was signed by "G. Grant LPN" for the 3-to-11 shift on December 26, 1980. Petitioner's Exhibit No. 1. CHART NO. 667312 On December 17, 1980, Dr. Batson ordered morphine sulfate for this patient "1/4 to 1/6 IM q 34 PRN Pain." Petitioner's Exhibit No. 1. At quarter of seven on the evening of December 17, 1980, respondent administered 15 milligrams of morphine sulfate to the patient, using one 10-milligram tubex and half of another, the wastage being witnessed by another licensed practical nurse, Ms. Grant, all according to the Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. "v. Robertson, GPN" signed the patient's PRN medication administration record for the 3-to-11 shift on December 17, 1980. Petitioner's Exhibit No. 1. The nurses' notes contain this entry for 6:45 (pm.): "c/o pain-Medicated E MS 15 mg IM as stated by V. Robertson GPN-G. Grant GPN." CHART NO. 67194-3 For this patient, Dr. Batson ordered, among other things, "Morphine gr 1/6-gr 1/4 IM q 3-4 h prn pain. or Demerol 50-75-100 mg q 3-4 h IM prn pain. Tylenol #3 po T-TT q 3-4 h prn pain" on December 17, 1980, the date of his admission to West Florida Hospital's orthopedic ward. At half past six on the evening of December 17, 1980, the patient was given two tablets of Tylenol #3. Petitioner's Exhibit No. 1. He got another two tablets of Tylenol #3 about noon the following day. Petitioner's Exhibit No. 1. On December 19, 1980, Randy Godwin, a licensed practical nurse at West Florida Hospital, signed a Narcotics and Controlled Drug Administration Record indicating he had administered 15 milligrams of morphine to the patient at 6:20 p.m. Petitioner's Exhibit No. 2. Attached to this Narcotics and Controlled Drug Administration Record is an interoffice memorandum to the hospital pharmacy from Cynthia Ayres, R.N., Assistant Director of Nursing. Ms. Ayres wrote, "I have met with Randy Godwin, LPN and discussed his specific narcotic errors. He was terminated from employment at WFH. I did not allow him to correct these errors." Petitioner's Exhibit No. 2. There is no indication on this patient's PRN medication administration record that he was given any morphine on December 19, 1980. Petitioner's Exhibit No. 1. No administration of morphine on December 19, 1980, was charted in the patient's progress notes. Petitioner's Exhibit No. 1. Respondent administered 75 milligrams of Demerol, the entire contents of a tubex, to this patient at half past seven on the evening of December 19, 1980, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. (Count II) At nine o'clock that night, the patient was watching television, and had no complaint of pain. JANUARY 24, 1981 As she administered narcotics to patients during the 3-to-11 shift on January 24, 1981, respondent dropped waste paper and other debris in the narcotics drawer of the medication cart she had charge of. Toward the end of the shift, she was in the process of cleaning out the narcotics drawer when she felt something wet. Exclaiming something like, "Oh God, look at this," (T. 156; Testimony of Peat), she retrieved a cardboard container soaked to the point of disintegration with a solution of morphine sulfate, in the presence of Sandra Jean Peat, Randy Godwin, and other nurses who were in the medical room on the orthopedic floor at the time. Respondent recorded these events in an incident report and took the five-tubex plastic sleeve to the hospital pharmacy, about quarter of eleven. She asked the hospital pharmacist, James Thomas Allred, "to swap them out for five good ones." (T. 88.) At Mr. Allred's request, respondent prepared a second incident report in which she stated: When I was cleaning the Narcotics drawer, I picked up some of the packages and felt moisture on my hands. I then took the cartridges out of the PCK & found solution in bottom of Plastic Jacket. Two cartridges had the stopper out & 1 cartridge was broken. The tabs were intact as wit- nessed by R. Godwin LPN. Petitioner's Exhibit No. 3. After the wet plastic sleeve had been exchanged for a new one, respondent returned to the floor to catch up on charting. By this time, Randy Godwin had left the hospital. Mr. Allred jotted down his own contemporaneous account on the Narcotics and Controlled Drug Administration Record: Replaced a packet of five morphine sulfate 15 mgs. for a packet of five returned by M. Denomme LPN. The packet returned had two syringes with their rubber plungers out. One of these two syringes was broken. All tabs were intact except for the broken syringe. The cart count will remain the same. Petitioner's Exhibit No. 2. When respondent noticed broken glass in the five-tubex plastic sleeve, after another nurse had seen the sleeve with all tabs intact but before respondent took it to the pharmacy, she opened a tab to fish out syringe shards. The evidence clearly and convincingly established that somebody tampered with more than one of the disposable syringes or tubexes inside the plastic sleeve. Although factory defects . . . do occur, this was not a case of defective manufacture; a needle had punctured the sleeve. As the medication nurse for the 3-to-11 shift, respondent had signed for the narcotics and controlled drugs in the medication cart and taken the keys at three o'clock on the afternoon of January 24, 1981. Petitioner's Exhibit No. When she counted narcotics, before assuming responsibility for them, respondent did not pick up each item. Looking down into the narcotics drawer, she would not necessarily have known whether the bottom of the cardboard container holding two plastic sleeves, each of which contained five 15-milligram tubexes of morphine sulfate, was wet. Respondent was the third person to sign the Narcotics and Controlled Drug Administration Record as "oncoming nurse." Petitioner's Exhibit No. 2. She had the keys to the medication cart during the entire 3-to-11 shift except when she went to supper or took a break. No patient on the orthopedic floor received any morphine sulfate during the whole 24-hour-period. CHART NO. 682231 Also on January 24, 1981, respondent administered two tablets of Tylenol #3 to this patient at 5:30 and another two tablets of Tylenol #3 at 9:35, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. This "patient had been medicated with Tylenol #3 since January 20th, and this medication had held her . . . for a period of at least four hours." (T. 55.) Respondent signed out for 75 milligrams of Demerol for this patient but wasted it, in the presence of Randy Godwin. Randy Godwin did not sign the Narcotics and Controlled Drug Administration Record as a witness, however. OTHER MATTERS There was absolutely no evidence that respondent acted strangely or as if under the influence of a controlled substance at any time between September, 1980, and February, 1981. No evidence was adduced regarding anything that happened on or about February 8, 1981. On or about January 30, 1981, Altha Steen Chandler, then a ward clerk on the 3-to-11 shift for the orthopedic floor, told Gail Price that, two weeks earlier, while cleaning in the conference room, she had knocked respondent's purse off a table; that the purse opened when it fell; and that she saw containers of codeine, Demerol, and Benadryl. On hearing this, Ms. Price promptly relayed it to Bonnie Ellen Ripstein, then departmental nursing supervisor over surgical floors. The truth of this allegation, repeated under oath at the hearing (T. 5), was not clearly and convincingly established, considering all the evidence. There was no proof that any codeine was ever missing or unaccounted for at West Florida Hospital at any time between September of 1980 and February of 1981. The only record keeping irregularity with which respondent has been charged regarding Demerol has to do with records kept on January 24, 1981, after the ward clerk claims to have seen a vial of Demerol in her purse. The substances themselves were not in evidence. Ms. Chandler's testimony about their packaging was contradictory: "The demerol and the codeine was in a plastic like container and had red writing on it. The benadryl was in a brown container, and it had yellow writing on it . . . . The benadryl was a glass vial, but the other two vials, seemed like they were plastic to me." (T. 16.) Respondent admits that she regularly carries a vial of Benadryl in her purse; she testified that she is allergic to bee stings. She denied that there was codeine or Demerol in her purse on or about January 16, 1981, and claimed to be allergic both to codeine and to Demerol. At some point,, Ms. Ripstein was given the assignment of auditing narcotics records with which respondent, Randy Godwin, Nancy Torch, and Debra Mann, now Rezzarday, had been involved. None of the four is now employed at West Florida Hospital. This audit turned up most of the charges made against respondent in these proceedings. STANDARDS AND CONDITIONS The nurses at West Florida Hospital were strongly encouraged to finish their duties before shift's end to avoid their employer's having to pay overtime wages. Once, when respondent stayed late to finish her charting, she was reprimanded even though she had clocked out. On the orthopedic floor, a nurse who was "caught up" with her work would chart for other nurses who were busy, indicating on the records that she was relying on oral representations of another nurse. This practice was against hospital policy and does not conform to minimal standards of acceptable and prevailing nursing practice. It is also a departure from minimal standards to waste a controlled substance like Demerol without a witness's signing the control sheet at the time the drug is wasted. It was not shown that any patient suffered any injury at respondent's hands or on her account. The written closing argument of respondent and petitioner's proposed recommended order have been considered in preparation of the foregoing findings of fact. Petitioner's proposed findings of fact have been adopted in substance, except where unsupported by clear and convincing evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for thirty days. DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 28th day of June, 1982. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Samuel R. Shorstein, Secretary 119 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation 130 North Monroe Street Allen W. Lindsay, Jr., Esquire Tallahassee, Florida 32301 Post Office Box 586 Milton, Florida 32570 Helen P. Keefe Executive Director Board of Nursing 111 East Coastline Drive Jacksonville, Florida 32202
Findings Of Fact Mary Louise Rahming was a licensed practical nurse, who held a license issued by the Florida State Board of Nursing until March 31, 1977. Rahming failed to renew her license by March 31, 1977, and her license was automatically terminated effective April 1, 1977. Rahming continued in her employment as a licensed practical nurse from April 1, 1977, until July 28, 1978, when she sought to renew her license. Since July, 1978, Rahming has not practiced nursing. Rahming's request for reinstatement of her license was denied by the Board of Nursing on August 25, 1978, because Rahming had practiced without a license after her license was terminated.
Recommendation Whether the statute is construed to entitle an individual whose license has been terminated for failure to renew to a license pending a hearing, or construed to entitle the applicant to a hearing on the grounds for denial after notice of the Board's initial determination, the facts in this case reveal that Rahming applied for licensure on July 26, 1978, and has not practiced since that date when she became aware she was in violation of the law. The period of the denial of the right to practice between the applicant's request for reinstatement and the Board's final action must be considered in weighing the penalty. In the instant case, this period of defacto suspension has been nearly nine months. Although many delays have occurred in this case which have resulted from Rahming's failure to keep the Board advised of her current address, this period of suspension should be considered in any penalty ultimately assessed. Based upon the foregoing Findings of Fact and the Conclusions of Law, and considering the matters in mitigation, the Hearing Officer recommends that the Board reissue the license of Mary Louise Rahming, considering the period she has not been able to practice during the pendency of this case as sufficient penalty for her violation of Section 464.151(2). DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Louise Rahming 5218 NW 5th Avenue Miami, Florida Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211
Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of March, 1982.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Joanne N. Dickey is licensed by Petitioner as a licensed practical nurse and holds license number 37835-1. During the period November 24 through November 28 Respondent was so licensed and was employed by Memorial Hospital, Hollywood, Florida on the 11:00 p.m. to 7:00 a.m. shift. Standard procedures established by Memorial Hospital regarding the accounting for controlled substances are for the nurse withdrawing medication for administering to a patient to record the withdrawal on the Narcotic Inventory Sheet on which a running inventory for a 24-hour period is kept, and, upon administering the medication to the patient, chart the medication on the medication administration record and in the nurses notes for the patient. Standard procedures established for accounting for excess drugs withdrawn (e.g., where doctor's orders call for 50 mg. and only 100 mg. ampules are available) prescribe that the excess drug withdrawn be disposed of in the presence of another witness and so recorded on the waste record. These procedures are presented to all nurses at Memorial Hospital during their compulsory training periods before they administer to patients at Memorial Hospital. On November 26, 1978, Respondent, at 1:15 a.m., signed out on the narcotic control record for 100 mg. meperidine for patient Cohen, but this medication was not entered on either the medication administration record or on the nurses notes for this patient. At 4:30 a.m., Respondent signed out for 75 mg. meperidine for patient Cohen and the administration of this medication was not entered on the patient's medication administration record or in the nurses notes. Doctor's orders for Cohen at this time authorized the administration of 50-75 mg. meperidine presumably not given to Cohen. No entry was made on the waste record. On November 27, 1978 at 12:30 a.m., Respondent signed out for 75 mg. meperidine and at 4:00 a.m. for 100 mg. meperidine for patient Cohen on the narcotic inventory sheet, but the entry of the administering of these medications to patient Cohen was not entered on the medication administration record or in the nurses notes. Again, no waste record was made for the excess over the 50-75 mg. authorized. Further, doctor's orders in effect on November 27, 1980 for patient Cohen did not authorize administration of meperidine. At 2:15 a.m. on November 27, 1978 Respondent signed out for 75 mg. meperidine and at 5:30 a.m. 50 mg. meperidine for patient Barkoski. No record of administering these medications was entered on the patient's medical administration record or in the nurses notes. Doctor's orders authorized administration of 50 mg. meperidine as necessary. No entry of disposal of the excess 25 mg. was entered in the waste record. At 4:20 a.m. November 24, 1978 Respondent signed out for 75 mg. Demerol for patient Giles. No entry was entered on the medical administration record or in nurses notes that this medication was administered to patient Giles. At 3:30 a.m. on November 24, 1978 Respondent signed out for 25 mg. Demerol for patient Evins but no entry was made on the patient's medical administration record or in the nurses notes that this medication was administered to the patient. At 12:50 a.m. on November 24, 1978 Respondent signed out for 100 mg. Demerol and at 4:30 a.m. signed out for 50 mg. Demerol for patient Demma. No entry was made in the medication administration record or nurses notes for Demma that this drug was administered. Doctor's orders in effect authorized administration of 50-75 mg. Demerol as needed. No entry was made on waste record for the overage withdrawn. On the 11-7 shift on November 27, 1978, Respondent's supervisor noticed Respondent acting strangely with dilated pupils and glassy eyes. She suggested Respondent go home repeatedly and sent her to the lounge but Respondent soon returned to the floor. Respondent was finally told if she didn't go home the supervisor would call Security. The supervisor had checked the narcotic inventory log at 4:50 and saw no entries thereon. By the time Respondent was finally sent home at 6:00 a.m., the entries on the Narcotic Control Record at 12:30, 1:15, 2:15, 4:30 and 5:30 were entered. Failure to chart the administration of narcotics to patients does not comply with acceptable and prevailing nursing practices. No evidence regarding the administering of hydromorphone was submitted.
The Issue Is Petitioner guilty of violating Section 455.227(1)(c) Florida Statutes, justifying imposition of conditional licensure as two years probation with terms listed in the Order filed September 20, 1996? The charge of violating Section 464.018(1)(b) Florida Statutes has been dropped by the Board.
Findings Of Fact On April 25, 1995, Petitioner pled nolo contendere to a first degree misdemeanor count of passing a worthless bank check in violation of Section 832.05(2)(a) Florida Statutes. Section 832.05(2)(a) Florida Statutes provides, in pertinent part, as follows: It is unlawful for any person, . . . to draw, make, utter, issue, or deliver to another any check, . . . knowing at the time of the drawing, making, uttering, issuing, or delivery such check or draft, . . . that the maker . . . has not sufficient funds on deposit . . . with such bank . . . with which to pay the same on presentation . . . nor does this section apply to any postdated check. As part of a court diversion program, adjudication was withheld and Petitioner was assigned to take the Florida Association for Corrective Training, Inc. (FACT) course on the criminal consequences of dishonored checks and how to avoid them. Petitioner completed the FACT course, and also paid restitution, diversion fees and court costs. This course was completed on September 12, 1995. A plea of nolo contendere is neither an admission of guilt nor a denial of charges. A plea of nolo contendere with adjudication of guilt withheld does not constitute a conviction. Petitioner made her plea as a matter of convenience. Petitioner has never been found guilty or convicted of passing a worthless bank check. The check which gave rise to Petitioner's April 25, 1995 plea of nolo contendere to a misdemeanor under Section 832.05(2)(a) Florida Statutes was written to Florida State University (FSU) on September 2, 1994 for tuition fees for courses in which Petitioner had enrolled as a nursing student. Petitioner made an error in the calculations of her check register. The check was returned to FSU as "without sufficient funds". FSU redeposited the check, which was then returned a second time to FSU as "without sufficient funds". Upon learning that the check had been returned, Petitioner contacted the FSU registrar's office. She was told that she had contacted FSU soon enough, so that she could withdraw from classes without penalty, and therefore she need not be concerned about the check. Petitioner did withdraw from classes and thought the problem was solved. However, FSU subsequently pressed criminal charges for the check with the Leon County State Attorney's Office. On March 28, 1996, Petitioner applied for a practical nursing license (L.P.N.). On her application, Petitioner answered in the affirmative the question as to whether she had ever been convicted or entered a nolo contendere or guilty plea regardless of adjudication, for any offense other than a minor traffic violation. She also provided a written explanation for the April 25, 1995 nolo contendere misdemeanor plea. Additionally, in an effort to be candid and forthcoming, Petitioner provided a written explanation for each of five other charges for passing worthless bank checks brought against her. As a result, Petitioner was invited to appear, and chose to appear, before the Board of Nursing's Credentials Committee to explain the circumstances surrounding her April 25, 1995 nolo contendere plea and the other worthless check charges she had disclosed. According to Petitioner, this meeting lasted less than five minutes and she was asked no questions. Pursuant to Section 464.002 Florida Statutes, the Board of Nursing voted to grant Petitioner an L.P.N. license subject to two years' probation with terms described in its September 20, 1996 Order based upon the Board's "finding of fact" that Petitioner "was found guilty or pled nolo contendere on various charges of passing worthless bank checks" and that there were aggravating circumstances surrounding the plea. The Board's Order concluded that Petitioner is guilty of violating Section 455.227(1)(c) Florida Statutes. Section 455.227(1)(c) Florida Statutes provides that a license may be disciplined for: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession. The Board of Nursing does not have a disciplinary guideline, a range of penalties, or a rule addressing mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c) Florida Statutes.1 The Board of Nursing issued license number 1250541 to Petitioner effective October 9, 1996 and subject to two years' probation, as described in its September 20, 1996 Order. Petitioner had an opportunity at formal hearing to present evidence concerning her nolo contendere plea and the five other charges she voluntarily reported to the Board. A "no information" is the method of dismissing a misdemeanor criminal charge. A "nolle prosequi" is the method of dismissing a felony criminal charge. The first charge occurred in 1991 or 1992. It involved a dishonored check for a mere $5.64 to Winn-Dixie. The court diversion program at that time was not very elaborate, but Petitioner attended a single February 25, 1992 lecture on the passing of bad checks, and paid restitution plus $20.00 in costs. A nolle prosequi was entered. Petitioner's check to FSU on September 2, 1994 for $199.79 resulted in two service charges being imposed on her checking account by her bank. (See Finding of Fact 5) These unilateral debits by the bank resulted in a check written September 15, 1994 by Petitioner for $56.59 to Winn-Dixie being dishonored for insufficient funds. Petitioner wrote a letter of explanation, paid restitution, and a "no information" was filed. A $49.19 check written to Wal-Mart on March 31, 1995 and a $150.48 check written to Winn-Dixie on April 5, 1995 were dishonored because Petitioner relied upon her ex-fiancé to deposit money he owed her directly into her checking account instead of Petitioner receiving payment from him in person. Petitioner did not see her ex-fiancé in person or return to their joint residence to pick up her bank statements because he had been abusive and she was fearful of him. He did not, in fact, make the deposit to her account. Petitioner paid restitution and costs for both cases. The Wal-Mart check situation resulted in a "no information." The Winn-Dixie check situation resulted in a nolle prosequi. A $99.20 check Petitioner had written to Publix on September 4, 1995 was dishonored because a car repair shop which had repaired her car did not honor an oral agreement Petitioner understood would prevent her check to the repair shop from being presented to the bank until after she had made a sufficient deposit from an insurance claim for the car repairs. This resulted in a "no information." Due to the uncertainty of the State Attorney's computer records (TR 96-98) and Petitioner's clear testimony, it is found that Petitioner was not required to undergo the diversion program for the September 15, 1994, March 31, 1995, April 5, 1995, and September 4, 1995 checks. However, it is abundantly clear she has now had two courses concerning this subject: one in 1992 and one in 1995. (See Findings of Fact 3 and 16) It is also clear she wrote her last bad check before completing the second FACT course on September 12, 1995. Two of Petitioner's bank check problems arose while she was a nursing student. Petitioner was employed as a patient care technician at Vivra Renal Care from July 1995 through October 1996. One of Petitioner's bank check problems arose while she was employed in the care of critically ill people. Dr. Evelyn Singer, Dean of the School of Nursing at FSU testified as an expert in nursing education and the practice of nursing. She opined that practical nurses are responsible for observing and documenting vital patient information and routine patient care. Other health care professionals rely upon the accuracy of practical nurses' observations and documentation. Nursing instructors stress the importance of accuracy and honesty when a practical nurse handles vital patient information. A documentation mistake by a practical nurse has the potential for resulting in a patient's death. Dr. Singer further opined that passing worthless bank checks is a crime related to the practice of nursing because the skills called into question for passing worthless bank checks are the same skills required to be an effective nurse, ie., making accurate observations, accurately recording observations and events, making accurate calculations, accurately measuring medication doses, accurately measuring and noting blood pressure and temperature of patients, appropriately changing dressings, accurately measuring and reporting patient observations, being cognizant of details, and addressing errors or omissions honestly and promptly. However, Dr. Singer further testified that if those things are accurately performed, then a nurse's ability is not affected by even a felony bad check arrest and plea. Dr. Singer believes that an inaccurate nurse is an untrustworthy nurse. In Dr. Singer's expert opinion, practical nurses should notify their nursing units if they have been arrested and convicted of writing worthless checks so as to constitute a felony (TR 124-126), so that the registered nurse under whose license they practice can be on the alert for documentation mistakes. What significance a felony arrest or conviction has as opposed to a misdemeanor arrest or conviction was not explained by Dr. Singer, but she viewed the probation imposed on Petitioner not as a judgment of personal guilt or dishonesty but as an opportunity for Petitioner's employer to be on the lookout for inaccuracies. At Petitioner's request, Judith G. Hankin, Director, School of Practical Nursing, Lively Technical Center, wrote a letter dated March 15, 1996 to the Board of Nursing. She wrote, [Petitioner] entered the Practical Nursing Program on August 23, 1993. On March 14, 1996 [Petitioner] informed me that she had an arrest record for series of worthless bank checks. . . . Her overall behavior during the time she was enrolled in school was acceptable. I feel that [Petitioner] is capable of assuming the responsibilities of a graduate practical nurse. Petitioner has worked as a licensed practical nurse at Vivra Renal Care, Tallahassee, Florida since her licensure on October 9, 1996. Her duties include assisting patients receiving kidney dialysis by setting up dialysis machines, preparation of dializers, assisting patients, and initiating treatment and discharge of patients. Charles E. Brown, R.N., is the head nurse at Vivra Renal Care. He has supervised and been involved in the evaluation of Petitioner since she began work at Vivra Renal Care in July 1995. (See Findings of Fact 22 and 29) Nurse Brown also was accepted as an expert in clinical nursing. He opined that inadvertently writing a worthless check or pleading nolo contendere does not relate to the practice of nursing or the ability to practice nursing. Mr. Brown has consistently observed, over a period of approximately 18 months, that Petitioner accurately measures medication doses, accurately measures and notes blood pressure and temperature of patients, appropriately changes dressings, accurately measures and reports patient observations and is cognizant of details. Nurse Brown described Petitioner's nursing abilities as "good" and the opposite of careless to the point that she is more than meticulous.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing rescind its September 20, 1996 Order and enter a Final Order granting Petitioner an unrestricted L.P.N. license, without any probationary period. RECOMMENDED this 1st day of MAY, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
