Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact This cause comes on for hearing based upon the petition of Jeanne Fried, R.N. filed with the State of Florida, Department of Professional and Occupational Regulations, Board of Nursing, Respondent. This petition was received by the Respondent on October 4, 1978 and referred to the State of Florida, Division of Administrative Hearings for consideration in accordance with the provisions of Section 120.57(1), Florida Statutes. The Petitioner is a Registered Nurse licensed to practice in Florida. The Respondent is an Agency of the State Of Florida which has among its responsibilities the licensure, certification and regulation of certain individuals who wish to practice nursing in the State of Florida, to include the Petitioner. In 1968, the Petitioner received a Baccalaureate degree from the Medical College of Georgia. Her degree was in nursing and she became a Registered Nurse at that time. Since 1968, the Petitioner has worked in the field of nursing. In addition, she has received a Masters of Education degree from the University of Florida with a minor in nursing. This latter degree was earned in December, 1975. Subsequent to receiving the Masters of Education degree, Ms. Fried attended a course entitled Studies for Nurse Practitioners for Adult Care, and was awarded a certificate of completion in that course. That certificate was received in March, 1976 and a copy of the certificate may be found as the Petitioner's Exhibit Number One (1), admitted into evidence. After receiving that certificate, she worked in the capacity of an Advanced Registered Nurse Practitioner at the Lake Butler Reception and Medical Center, Lake Butler, Florida from April, 1976 through August, 1976. From August, 1976 to the present, the Petitioner has worked in a similar position in the Veterans Administration Hospital at Lake City, Florida. Until July 17, 1977, the Respondent had not recognized nor established guidelines for the position known as Advanced Registered Nurse Practitioner. On that date, the Respondent enacted an item entitled Appendix to Chapter 210-11, Guidelines for Advanced Registered Nurse Practitioner Programs of Study. This item appears as a rule set forth in the Florida Administrative Code. The authority for the passage of the rule is found in Subsection 464.051(3), Florida Statutes and it implements Subsections 464.021(2)(a), 4 and 464.051(3)(d) and (e), Florida Statutes. To receive the necessary certification to become an Advanced Registered Nurse Practitioner, an applicant must comply with the guidelines set forth in the aforementioned appendix. The only aspect of the guidelines which is in dispute between the parties is found in that section of the appendix entitled, "Curriculum" and specifically (3) which reads: The program shall be at least one (1) academic year in length (nine months full time) which shall include a minimum of one (1) academic quarter of theory in the biological, behavioral, nursing and medical sciences relevant to the area of advanced practice, in addition to clinical experience with a qualified preceptor . . . The petitioner does not disagree with the fact that the course that she was certified in from the University of Florida in March, 1976 does not constitute an academic year within the meaning of the appendix; however, she is of the persuasion that she is entitled to certification as an Advanced Registered Nurse Practitioner because individuals who also attended the University of Florida course, Studies for Nurse Practitioner for Adult Care, have been certified by the Respondent as Advanced Registered Nurse Practitioners. (This certification for the other individuals has occurred notwithstanding their failure to complete a full academic year as prescribed in the guidelines for the Advanced Registered Nurse Practitioners found in the Appendix to Chapter 210-11, Florida Administrative Code.) The basis for the certification of these other unnamed individuals transpired through an apparatus of the Respondent, in which, by meeting of its governing board, it was determined that individuals who did not meet the academic requirements of the Appendix to Chapter 210-11, Florida Administrative Code, nonetheless would be given an opportunity for certification as Advanced Registered Nurse Practitioners. This special dispensation on behalf of these unnamed parties was granted in the face of the clear requirements of the established rule, which is the Appendix to 210-11, Florida Administrative Code. By that, it is meant that the rule was passed effective July 17, 1977, but its application to these unnamed individuals who received certification as Advanced Registered Nurse Practitioners without complying to the terms and conditions of the rule, was withheld. The technique for withholding it was to extend the period of enforcement of the guidelines to become effective March 31, 1978 as opposed to the prescribed date of July 17, 1977. Any applicants who applied prior to that date would be considered on a basis which did not require strict compliance with the academic requirements of the "Curriculum" guideline, which could be and was waived in the instances of some of the applicants, to include applicants in a similar factual circumstance to the Petitioner in that they had attended the University of Florida, College of Nursing course, Studies for Nurse Practitioner for Adult Care. The way prospective applicants were notified of the "grace period" allowing noncompliance with the academic requirement for certification in the subject field, was through the publication of that information in the newsletter of the Respondent which is forwarded to hospitals, public health clinics, colleges of nursing in Florida and the Florida Nurses Association. In addition, the Florida Nurses Association attempted to make its members aware of the "grace period." Also, it was the policy of the Respondent to advise the prospective applicants for certification as Advanced Registered Nurse Practitioners of the opportunity for consideration during the "grace period." This information sheet was typically mailed to the applicant with the application form, once an inquiry on the question of application had been received from the applicant. The Petitioner did not receive notice of the "grace period" through any published newsletter or bulletin and did not receive a copy of the information sheet which would have apprised her of the fact of the "grace period." She inquired about making application in February, 1978 and began to execute her application form on March 13, 1978 and completed the form on June 14, 1978. This can be seen by an examination of the Petitioner's Exhibit Number Five (5) admitted in evidence, which is a copy of the application for certification as Advanced Registered Nurse Practitioner filed by the Petitioner with the Respondent. Due to the fact that the application was received subsequent to March 31, 1978, and the fact that the Petitioner did not meet the academic requirements established in the Appendix of Chapter 210-11, Florida Administrative Code, her application to be an Advanced Registered Nurse Practitioner was denied through correspondence dated September 13, 1978.
Recommendation It is recommended that the application by the Petitioner, Jeanne Fried, R.N., be denied by the Respondent, State of Florida, Department of Professional and Occupational Regulations, Board of Nursing. DONE and ENTERED this 30th day of January, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Ms. Jeanne Fried, R.N. Post Office Box 932 Alachua, Florida 32615 Geraldine Johnson, R.N. Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue Whether Respondent's license to practice nursing in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Teresa Iva Smith Lobato (Lobato) was licensed as a Registered Nurse in the state of Florida, holding license number RN-1655102, and was employed by the Bayfront Medical Center (Bayfront) located in St. Petersburg, Florida as a Registered Nurse. On May 13, 1990 Lobato was to work the 7:00 a.m. to 3:00 p.m. shift, and upon arriving for work was told that she was being "floated" from the Coronary Care Unit (CCU) where she regularly worked to the Progressive Care Unit (PCU) where she had never worked. Bayfront had a policy whereby nurses were "floated" from one unit to another, and at the time Lobato was employed by Bayfront she was made aware of this "floating" policy. Floating means that a nurse is assigned temporarily to a unit other than the nurse's regularly assigned unit. On May 12, 1990 Lobato was aware that she was to be "floated" on May 13, 1990, but had informed the Acting Director of CCU that she would rather cancel her work assignment than be "floated". However, upon arriving for work on May 13, 1990, and being told that she was being "floated" to PCU she accepted the assignment on PCU although she was not pleased about the situation. Bayfront has a policy that requires the outgoing nurse to audiotape a report for the oncoming nurse regarding the condition of the patients and any events occurring during the outgoing nurse's shift or if no tape is made to give report verbally to oncoming nurse. Upon arriving at PCU Lobato, along with PCU Charge Nurse (CN), listened to the audiotaped reports from the outgoing nurse on the following patients D. L. L., A. S., E. H., C. L. S., and H. K. As the morning progressed, Lobato became more and more displeased with her assignment, and let her displeasure be known to the PCU Charge Nurse. However, Lobato did not ask to be relieved from her assignment, although there was testimony that she indicated to the CN that she wanted to go home. Although the record is not clear as to the time the following events occurred, the sequence of those events are as follows: Around 9:00 a.m. Lobato was offered help by the CN but declined; Around 9:30 Lobato went on break, and again was offered help but declined; While on break Lobato talked to the Assis- tant Director of Nursing (ADON) about her under- standing of not being required to "float", and became upset with the ADON's response; After returning from break Lobato was again offered help by the CN which she accepted. The CN brought Michelle Nance, Medical Surgical Technician, and two RNs whose first names were Jessica and Melinda to the unit to assist Lobato. Around 10:30 a.m. Lobato and the CN dis- cussed Lobato's patient assignments, and Lobato advised the CN that everything was done, in- cluding all a.m. medication, other than the missing vasotec doses, and that she had some charting to do. Also, the patient's baths had been completed. Shortly after Lobato and the CN discussed her patients' assignments, the ADON came to the unit to determine what was troubling Lobato. The ADON and Lobato met and there was a confrontation wherein Lobato advised the ADON that she was quitting and the ADON advised Lobato that she was fired. After Lobato's confrontation with the ADON, Lobato left the unit and Bayfront without completing the balance of charting her patients' notes, and without giving the CN a report of the patients even though the CN requested her to do so. Lobato's reasons for not giving the CN a report was that she had discussed the patients with the CN throughout the morning, and that the CN knew as much about the patients as did Lobato at that time, and therefore, she had made a verbal report. Lobato's reasons for not completing the charting of her patients' notes was that when the ADON fired her on the spot the ADON accepted full responsibility for the patients, and Lobato's responsibility to both Bayfront and to the patients assigned to her ceased at that time, notwithstanding her understanding of the importance of charting so that appropriate care could be given to the patients on the next shift. By her own admission, Lobato left Bayfront around 10:30 a.m. on May 13, 1991 before the end of her shift without completing the balance of charting her patients' notes and without giving a report to the CN, other than the ongoing report given during the morning. Earlier while Lobato was still on the unit working the CN had obtained two registered nurses (RN) and a medical surgical technician to assist Lobato. One of the nurses whose first name was Jessica (last name not given) was the RN assigned to Lobato's patients by the ADON when Lobato left and she received a report on the patients from Janice Ritchie, CN. (See Respondent's exhibit 1, and Petitioner's exhibit 1 and Janice Ritchies' rebuttal testimony.) Although Lobato's failure to chart the balance of her patients' notes and make a report to the CN before she left may have caused some problems, there was no showing that any patient failed to receive proper care or suffered any harm as a result of Lobato leaving. While some of the patients may not have received all their medication before Lobato left, the record is not clear as to whether the medication was made available to Lobato to administer or that she was shown where the medication was located in the floor stock. The patient is the nurse's primary responsibility, and the minimal standards of acceptable and prevailing nursing practice requires the nurse, even if fired (unless prevented by the employer from performing her duties), to perform those duties that will assure the patient adequate care provided for after her absence. In this case, the failure of Lobato to compete the charting of her patients' notes and the failure to make a report to the CN, notwithstanding her comments to the CN upon leaving, was unprofessional conduct in that such conduct was a departure from and a failure to conform to minimal standards of acceptable and prevailing nursing practice.
Recommendation Based upon the foregoing, it is recommended that the Respondent be found guilty of violating Section 464.018(1)(h), Florida Statutes, and that she be given a reprimand. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7828 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Findings of Fact 1 and 2. 3.-4. Adopted in Findings of Fact 3 and 4, respectively. 5.-6. Adopted in Finding of Fact 4 and 5. 7.-8. Adopted in Finding of Fact 5. 9. Adopted in Findings of Fact 6 and 7. 10. Adopted in Finding of Fact 7. 11.-12. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record. 18.-20. Adopted in Finding of Fact 9 and 12, as modified. Adopted in substance in Findings of Fact 9 and 12. Rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 10, 11, 13 and 14. Adopted in Finding of Fact 11. Rejected as not being supported by substantial competent evidence in the record. 25.-27. Adopted in Findings of Fact 3, 15 and 15, respectively. Paragraph 28 is ambiguous and, therefore, no response. Rejected as not being Finding of Fact but what weight is to be given to that testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Rejected as being argument rather than a Finding of Fact, but if considered a Finding of Fact since there was other evidence presented by other witnesses. The first sentence is rejected as not being supported by substantial competent evidence. The balance of paragraph 3 is neither material nor relevant. Neither material nor relevant, but see Findings of Fact 6, 7, and 8. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 6, 7, and 8. Neither material nor relevant since the Respondent assisted in selecting those items to be included in Respondent's exhibit 1. First sentence adopted in Finding of Fact 8. The balance of paragraph 7 is argument more so than a Finding of Fact, but see Findings of Fact 12 and 14. More of an argument than a Finding of Fact, but see Findings of Fact 7(c), 12 and 14. 9.-11. More of an argument as to the credibility of a witness rather than a Finding of Fact. More of an argument than a Finding of Fact but see Findings of Fact 7(d) and 13. More of a restatement of testimony than a Finding of Fact, but see Findings of Fact 8 and 9. More of an argument than a Finding of Fact, but see Finding of Fact 10. More of an argument than a Finding of Fact, but see Findings of Fact 7(e) and 9. Not necessary to the conclusions reached in the Recommended Order. 17.-19. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 9 and 12. 20. More of an argument as to the credibility of a witness rather than a Finding of Fact. 21.-23. More of an argument than a Finding of Fact. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399 Teresa Iva Smith Lobato 6870 38th Avenue North St. Petersburg, FL 33710 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastliinne Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.
Findings Of Fact In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent. ENTERED on December 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant. 6-12 (first sentence): adopted or adopted in substance. 12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate. 16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance. 19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate. 24: rejected as subordinate. 25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance. 29: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-3 (first sentence): adopted or adopted in substance. 3 (first sentence)-4: rejected as subordinate and irrelevant. 5-6: adopted or adopted in substance, although not as to the identify of the other nurse. 7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence. 8-14: rejected as subordinate. 15-18: adopted or adopted in substance. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Robert E. Tardif, Jr. Duncan & Tardif, P.A. P.O. Drawer 249 Ft. Myers, FL 33902 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of October, 1989.
The Issue Whether Respondent violated Section 464.018(1)(h), Florida Statutes, as alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since June 18, 1993, licensed as a practical nurse in the State of Florida. Her license number is PN 1113121. Respondent trained to be a practical nurse at the Sheridan Vocational School (hereinafter referred to as "Sheridan") in Hollywood, Florida. She graduated from Sheridan in January of 1993, the recipient of the Jeanette Lindsey Shirley Nursing Service Award. Respondent was employed by Aventura Hospital and Medical Center (hereinafter referred to as "Aventura") from approximately March of 1993, to January of 1994, when she was terminated as a result of the incident which led to the issuance of the Administrative Complaint that is the subject of the instant case. For the first three months of her employment at Aventura Respondent worked as a GPN (Graduate Practical Nurse). After receiving her nursing license in June of 1993, Respondent was promoted to an LPN (Licensed Practical Nurse) position. She held this LPN position until her termination in January of 1994. Throughout the period of her employment, Respondent was assigned to the hospital's mental health unit. Respondent was a dedicated and loyal employee who, as general rule, got along well with the patients under her care, as well as her coworkers. Not infrequently, she would voluntarily remain on the unit after the end of her shift to make sure that her patients received the care and attention their physicians had ordered. Prior to the incident that resulted in the termination of her employment, Respondent had an unblemished employment record at Aventura. The incident in question occurred on or about January 17, 1994. On the day of the incident Respondent was working the 12 midnight to 8:00 a.m. shift at the hospital. One of the patients under her care that day was B.H. B.H. was an elderly woman receiving treatment for depression. She required the nursing staff's assistance with Activities of Daily Living (ADLs), including dressing. B.H. was a "very difficult" patient. She was generally uncooperative and frequently resisted, with physical force and violence, the nursing staff's efforts to provide her the help and assistance she needed with her ADLs. On the day in question B.H. had a scheduled, early morning appointment to see her attending physician, Dr. Greener. Dr. Greener had given explicit instructions to the nursing staff that B.H. be awakened and dressed before the scheduled appointment. Toward the end of her shift, Respondent went into B.H.'s room to get her ready for Dr. Greener. Respondent was able to awaken B.H., but B.H. refused to get out of bed. Respondent decided to leave B.H. and take care of the other tasks she needed to complete before the end of her shift. When Respondent returned to B.H.'s room it was after 8:00 a.m. Although her shift had ended, Respondent felt an obligation to remain at the hospital and follow through with her efforts to fully comply with the instructions that Dr. Greener had given concerning B.H. Dr. Greener had already arrived at the hospital and was ready to see Respondent. Respondent pleaded with B.H. to cooperate with her. B.H., however, ignored Respondent's pleas and remained in bed. Dr. Greener was a demanding physician who expected the nursing staff to timely comply with his every instruction. He expressed, in no uncertain terms, his disappointment when these expectations were not met. Respondent did not want to disappoint Dr. Greener. She therefore attempted to dress B.H. even though B.H. would not get out of bed. B.H. responded to Respondent's efforts to dress her by kicking, swinging her arms and spitting at Respondent. Despite receiving such resistance, Respondent continued to try to dress B.H. She did call for assistance, however. Todd Sussman, who was employed as a Mental Health Technician at the hospital, was on the unit that morning and responded to Respondent's call for help. When Sussman discovered the nature of the assistance Respondent required, he left B.H.'s room to obtain surgical gloves. Shortly thereafter, he returned to the room wearing such gloves. As Sussman walked back into the room, he saw Respondent, who was still struggling with B.H., slap B.H. in the face and pinch B.H.'s lips together in an effort to prevent B.H. from spitting at her. Sussman helped Respondent attempt to dress B.H. by holding B.H. by the arm. At one point, he let go of B.H. to allow Respondent to remove B.H.'s night shirt. Once her arm was free, B.H. swung it in Respondent's direction and hit Respondent in the face. Respondent reacted by slapping B.H. "fairly hard" on or slightly above the wrist, a reaction that was witnessed by Sussman, as well as another employee of the hospital, Barry Butler, an LPN who had entered the room shortly before B.H. had struck Respondent in the face. Both Sussman and Butler reported to their supervisor what they had observed take place in B.H.'s room that morning. Respondent's employment with the hospital was subsequently terminated based on the information Sussman and Butler had provided. At no time while struggling to dress B.H. on or about January 17, 1994, did Respondent intend to, nor did she actually, harm or injure B.H. Nonetheless, during the struggle (specifically when she purposefully slapped B.H. in the face and on or slightly above the wrist and pinched B.H.'s lips together), 2/ Respondent acted in an unprofessional manner that did not conform with the minimal standards of acceptable and prevailing nursing practice. 3/ The use of such physical force against B.H. was unnecessary and therefore inappropriate. 4/ There were other, safer (and therefore more appropriate) options (of which Respondent should have been aware in light of her training) that were available to Respondent to deal with the difficult situation she faced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed this violation by fining her $250.00 and placing her on probation (of the type specified in subsection (1)(g) of Rule 59S-8.006, Florida Administrative Code: "[p]robation with specified continuing education courses in addition to the minimum conditions") for a period of eighteen months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1996.
Findings Of Fact Respondent, Marty Johnsey (Johnsey), was at all times material hereto licensed as a registered nurse in the State of Florida, having been issued license number 1766782. From November 10, 1986, to November 25, 1986, Johnsey was employed as a certified registered nurse anesthetist at Broward General Medical Center, Fort Lauderdale, Florida. On November 24, 1986, while on duty at Broward General, Johnsey was observed by Dr. Alfredo Ferrari, an anesthesiologist, to be in a rigid and cyanotic condition. Dr. Ferrari immediately summoned assistance, and Johnsey was placed on a stretcher, given respiratory assistance, and taken to the emergency room. While in the emergency room, Johnsey was administered Naloxone, a specific narcotic antagonist used to reverse the effects of synthetic narcotics such as Sufentanil. Within minutes of being administered Naloxone, Johnsey began to breath normally, wake up, and relate to his environment. A urine sample taken from Johnsey on November 24, 1986, as well as a syringe found by Dr. Ferrari next to Johnsey when he first assisted him, were subsequently analyzed and found to contain Sufentanil. Sufentanil is a synthetic narcotic analgesic, and a Schedule II controlled substance listed in Section 893.03(2)(b), Florida Statutes. Under the circumstances, the proof demonstrates that on November 24, 1986, Johnsey, while on duty at Broward General, was under the influence of Sufentanil to such an extent that he was unable to practice nursing with reasonable skill and safety.
Recommendation Based on the forgoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing an administrative fine of $250.00, suspending the license of respondent until such time as he can demonstrate that he can safely practice his profession, followed by a one year term of probation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0115 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph l. 2-3. Addressed in paragraph 2. 4-7. Addressed in paragraph 3. 8-10. To the extent pertinent, addressed in paragraph 4. 11-15. Addressed in paragraph 5. Otherwise rejected as subordinate. 16. Addressed in paragraph 7. COPIES FURNISHED: Michael A. Mone', Esquire Mr. Marty Johnsey Department of Professional 180 Skyline View Drive Regulation Collinsville, Illinois 62234 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director William O'Neil Department of Professional General Counsel Regulation Department of Professional Board of Nursing Regulation Room 504, 130 North Nonroe Street 111 East Coastline Drive Tallahassee, Florida 32399-0570 Jacksonville, Florida 32201 =================================================================
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 1984, 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 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On or about January 25, 1979, Respondent, while employed as a registered nurse at Coral Reef General Hospital in South Miami, Florida, was assigned as a scrub nurse for Dr. Firth Spiegel. The physician was preparing to perform surgery on a boy, age 10 or 11, for an umbilical hernia. While Dr. Spiegel was scrubbing-up in the room adjacent to the operating room, he relayed an order to Respondent through the circulating nurse, to begin the procedure. Respondent began the procedure by making a U-shape skin incision in the patient's abdomen approximately five centimeters in length. At this point, the physician came into the room, remarked that the incision was a little low, and told the Respondent to continue with the procedure. The Respondent refused to continue and the physician completed the surgery. Nothing unusual was noted in the surgical notes. The patient died shortly thereafter. Approximately one month later, Respondent was terminated from Coral Reef General Hospital over this incident. Respondent had received on the job training as a surgical "first assistant," but had no license or certificate of training in this regard. Respondent had performed surgical tasks numerous times prior to this incident and had observed her direct supervisor also acting as a "first assistant." There was an "unwritten policy" at Coral Reef General Hospital that it was acceptable for scrub nurses to act as surgical first assistants. Respondent had had no other complaints made against her at this hospital prior to being terminated over this incident. Respondent did not continue with the surgical procedure as requested by the physician only because she did not feel it was necessary, although she testified that the doctor is the "captain of the ship," and she would do anything he asked as long as it wasn't a ridiculous order. At all times material to the administrative complaint, the Respondent was a registered nurse, licensed in the State of Florida, license number 56881- 2. Petitioner's expert witness, a registered nurse with extensive operating room experience, believes that the making of surgical incisions is beyond the scope of nursing practice. Her testimony established that the registered nurse is responsible for her actions and may properly refuse to perform procedures for which she is not qualified.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of unprofessional conduct in violation of Subsection 464.018(1)(f), F.S., and issuing a reprimand as provided by Subsection 464.018(2)(d), F.S. DONE and ENTERED this 31st day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982. COPIES FURNISHED: William Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 3202 Harvey D. Rogers, Esquire 1401 Northwest 17th Avenue Miami, Florida 33125 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 for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
