The Issue Whether Respondent's license to practice medicine should be revoked, or otherwise disciplined, on the ground that he, as alleged, violated the Medical Practice Act, Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979), by engaging in immoral, unprofessional con duct, incompetence, negligence, or willful misconduct, including failure to conform to the prevailing medical practice in the field of psychiatry.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I. The Doctor Respondent, Michael L. Solloway, M.D. ("SOLLOWAY") is licensed to practice medicine in Florida under License No. 11845, issued by the Board of Medical Examiners. He obtained his medical degree from the University of Miami, interned in the United States Air Force, was honorably discharged, and returned to Miami in 1968 to begin a three-year residency training program at Jackson Memorial Hospital. In 1971, he opened a private office at Suite 720, Dupont Plaza Center, Miami, Florida, and has continuously engaged in the practice of psychiatry at that location since that time. (P.E. 4.) II. The Patient On May 9, 1973, SOLLOWAY began treating, Sandra A. Lerner, a 19-year- old female. She continued receiving long-term dynamic psychotherapy from SOLLOWAY for over three (3) years--until May 16, 1977--the date when the complained-of sexual misconduct allegedly occurred. The only significant interruption of psychotherapy treatment occurred between September 30, 1974, and July 11, 1975, for reasons which are immaterial here. (Testimony of Lerner; P.E. 1, 4.) In 1973, Sandra Lerner was diagnosed by SOLLOWAY as suffering from a personality disorder--known as borderline personality. Her disorder manifested itself in poor impulse control, somatic symptoms (such as severe headaches), difficulty in relating to others and forming personal relationships, occasional hystrionic behavior, including severe rage reactions and depression when thwarted by others, and no-addictive dependence on drugs. Prior to her referral to SOLLOWAY, she had been hospitalized after an overdose of Quaaludes and received psychological testing from Gloria O. Greenberg, Ph.D., a psychologist. These tests indicated that Miss Lerner was an infantile, egocentric, hostile individual--one who had been lonely, withdrawn, and alienated for a long period of time. She had a conflicting relationship with her father which caused her serious sexual problems and an intense fear of male sexuality. Dr. Greenberg predicted that, in psychotheraphy, Miss Lerner could be expected to be childish, demanding, and manipulative. (Testimony of Lerner; P.E. 1, 2, 4.) III. The Psychiatrist-Patient Relationship During the course of her psychotherapy, Miss Lerner was a sick and troubled woman, erratic, unpredictable in behavior, and desperately needing to form and maintain a personal relationship. Her therapy sessions with SOLLOWAY, held once or twice a weak, allowed her to experience complex psychological phenomenon known as "transference". She began to feel sexual fantasies and form a personal attachment toward SOLLOWAY; she idealized him and saw him as a nurturing father figure. "Transference" is frequently experienced in psychotherapy; it can be a valuable therapeutic tool to help patients understand and overcome their illness. In this case, SOLLOWAY was aware that "transference" was taking place during his extended therapy sessions with Miss Lerner. However, instead of maintaining a professional detachment, SOLLOWAY began to experience personal and subjective feelings toward Miss Lerner, a form of "counter-transference". Prior to May 16, 1977--the date of his alleged sexual misconduct with Miss Lerner--SOLLOWAY had twice discussed with Miss Lerner that, if they engaged in dating and a social relationship, their psychotherapeutic, doctor-patient relationship must end. 2/ (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, 9.) IV. Sexual Activity During Therapy On May 16, 1977, at 5:00 or 6:00 p.m., Miss Lerner arrived at SOLLOWAY's office for her regular psychotherapy appointment. She was "high", having just taken one-half a Quaalude capsule. After entering his office, their conversation turned to the nature of their relationship. SOLLOWAY told her that he could be her boyfriend if she understood that he could never again be her doctor. 3/ After acknowledging such, she went to the door and locked it, as instructed by SOLLOWAY. At the time, she sensed what he was going to do, and felt he was testing her; she feared his rejection. He then told her to take her clothes off; after she complied, he did likewise, and both engaged in sexual intercourse. (Testimony of Lerner; P.E. 4, 9.) After that day, Miss Lerner no longer received psychotherapy treatment from SOLLOWAY. They began a stormy social relationship and briefly cohabited from June, 1978, to January, 1979, when SOLLOWAY moved out. His rejection made her hostile, angry, and vindictive. She began a campaign to harass and annoy SOLLOWAY at his home--resulting in the issuance of a temporary injunction to restrain her. Her harassment of SOLLOWAY was consistent with her personality disorder--a disorder with which she continued to be afflicted. (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, R.E. 1, 2.) V. Prescription of Drugs to Sandra Lerner: Inappropriate Medical Practice SOLLOWAY prescribed the following mood altering drugs for Sandra Lerner on the dates and in the amounts indicated: DATE DRUGS NO. OF PILLS 7/5/78 Sopor 7 7/12/78 Sopor 7 9/22/78 Quaalude or 15 Sopor 9/30/78 Quaalude or 7 Sopor 10/17/78 Quaalude or 7 Sopor 11/27/78 Quaalude or 7 Sopor 11/30/78 Quaalude or 3 Sopor 12/23/78 Quaalude or 14 Sopor 12/27/78 Percodan 30 1/2/79 Quaalude or 14 Sopor (Prehearing Stipulation of Respondent, Paragraph V, Testimony of Lerner.) Miss Lerner had a drug abuse history well known to SOLLOWAY, including Seconal and Quaalude overdoses in 1973 and a Quaalude overdose in January, 1977. By prescribing the drugs indicated in paragraph 7, supra, to Miss Lerner, a person known by him to abuse Quaaludes, SOLLOWAY engaged in an inappropriate medical practice; furthermore, the prescriptions of tranquilizers and mood altering drugs on December 27, 1978, and January 2, 1979, were excessive in quantity, irrespective of the patient's ailment which they were intended to remedy. (Testimony of Shellow.) SOLLOWAY prescribed the above drugs to Miss Lerner at a time when she was his close friend, not his patient. Such prescription of drugs to a non- patient does not constitute a deviation from an acceptable standard of medical practice, as long as the prescription is for the benefit of the individual. (Testimony of Lerner, Rose; P.E. 4.) Evidence was offered to show that SOLLOWAY used certain drugs for recreational purposes and that he prescribed drugs to others for such purposes. Such evidence, except insofar as it applies to prescriptions to Miss Lerner, is outside the scope of the DEPARTMENT's charges against him. To the extent the DEPARTMENT asserts that the prescription of drugs to Miss Lerner, as indicated above, was contrary to acceptable medical practice because she subsequently used them for recreational purposes, such assertion is unsupported by persuasive evidence. The only testimony offered to establish such a preposition was that of Miss Lerner; her credibility was impeached by her subjective demeanor, bias, evasiveness, and expressed hostility toward SOLLOWAY. (Testimony of Lerner.) VI. Medical Ethics: Sexual Activity Between Psychiatrist and Patient Prohibited Sexual activity between a psychiatrist and patient is unethical, and proscribed by the Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry (1978 Edition Revised) . The Annotations, supra, stress the paramount importance of the psychiatrist's duty to avoid gratifying of his own needs by exploiting a patient: This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psy- chiatrist. Further, the necessary intensity of the therapeutic relationship may tend to acti- vate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control . . . Section I, Paragraph 1 and 2, Principles with Annotations. VII. Investigation and Hearing by South Florida Psychiatric Society At all times material hereto, SOLLOWAY was a member of the South Florida Psychiatric Society, Inc., a district branch of the American Psychiatric Association. Membership in the Society is limited to psychiatrists practicing in the south Florida area. Miss Lerner filed with the Society a complaint charging SOLLOWAY with unethical conduct. On August 14, 1979, the Ethics Committee of the Society met to investigate the complaint and formulate a recommendation. (testimony of Holzberg; P.E. 10.) At the Ethics Committee hearing, SOLLOWAY was charged with violating Section 1, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry by (1) exploiting his patient and gratifying his own needs by engaging in sexual activity with Miss Lerner; and (2) prescribing drugs (Quaalude and Dexedrine) to Miss Lerner for non- therapeutic purposes. Miss Lerner testified, and was aided by Norma Hamilton, M.D., a psychiatrist assigned to assist in presenting her complaint. SOLLOWAY was accorded the right to confront his accuser, was represented by counsel, and was present throughout the hearing. He testified in his own behalf, and answered questions of the Committee members. At the conclusion of the hearing, the Committee unanimously sustained the charge that SOLLOWAY engaged in sexual intercourse with Miss Lerner, his patient, and exploited her to gratify his own needs, it unanimously concluded, therefore, that he was guilty of unethical conduct in violation of Section I, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry and recommended (by 4-1 vote) that he be suspended from the Society for a period of 12 months. As to the other charge, the Committee concluded that insufficient evidence was presented to support the allegation that SOLLOWAY prescribed drugs for non-therapeutic purposes, and recommended that no action be taken. On August 14, 1979, the Executive Council of the Society considered, and adopted the Committee's recommendations; by letter dated August 24, 1979, the Council recommended to the American Psychiatric Association that SOLLOWAY be suspended from membership for 12 months. That suspension recommendation is still pending, and no final action by the Association has been taken. (Testimony of Holzberg, Hamilton; P.E. 9, 10.) VIII. Termination and Sexual Activity: Breach of Accepted Standard of Care The medical ethic which prohibits sexual activity between a psychiatrist and patient applies only if a psychiatrist-patient relationship exists. The essence of SOLLOWAY's defense is that the psychiatrist-patient relationship between he and Miss Lerner ended, by mutual agreement, during the beginning of the May 16, 1977, therapy session, and prior to any sexual activity: Q. (By Mr. Glass) Dr. Solloway, you indi- cated that, in your opinion, your pro- fessional relationship as a psychiatrist to Sandra Lerner as a patient was ter- minated on May 16 of 1977. In what fashion was it terminated, how was it terminated? A. (Dr. Solloway) I suggested that it be terminated, and she agreed. Q. (Mr. Glass) And in your opinion it was terminated on that date? A. (Dr. Solloway) Absolutely. (Deposition of Michael L. Solloway; Pg. 54, P.E. 4.) Under acceptable psychiatric practice, termination of the psychiatrist-patient relationship--the ending of the psychotherapeutic bond-- requires more than the consent or acquiescence of the patient, or the stopping of formal therapy sessions. In psychotherapy, termination refers to a psychological process which takes place between the doctor and patient. 4/ They work through this transitional process together. It does not occur at any particular moment of time; the manner and length of time required will depend on the circumstances of the case--such as the condition of the patient, and nature of the doctor-patient relationship. When a patient suggests ending the psychotherapeutic relationship, the psychiatrist's task is to be supportive and allow the patient to work through the process. Not infrequently, the desire to end psychotherapy is influenced by the patient's mental or emotional illness. (Testimony of Hamilton, Holzberg, Shellow.) Under the circumstances of this case, the manner in which SOLLOWAY attempted to abruptly terminate his psychiatrist- patient relationship with Miss Lerner deviated from and breached the prevailing and accepted psychiatric standard of care and practice in his community. SOLLOWAY recognized, prior to May 16, that he was losing his objectivity toward Miss Lerner and that he was experiencing subjective feelings toward her. He was reciprocating her "transference" with his own "counter-transference"; nonetheless, instead of working through with his patient an acceptable termination of their relationship, he used her consent to termination as an opportunity to act out his "counter-transference" --by engaging in sexual activity with her. SOLLOWAY has admitted that his attempt to terminate the relationship was ineffective: Dr. Nixon: "I can understand that at the time your judgement was clouded by the counter-trans- ference. As you look back on it do you believe now that treatment can--that a doctor-patient relationship can be terminated where there is such a transference and counter-transference in that fashion?" Dr. Solloway: "No, obviously not. " (Pg. 62, P.E. 9.) (Testimony of Hamilton, Shellow, Holzberg; P.E. 4, 9.) SOLLOWAY's attempted termination of his psychiatrist- patient relationship with Miss Lerner on May 16, 1977, deviated from the accepted standard, and was not effective. By his subsequent acting out of his own counter-transference toward Miss Lerner, he sexually exploited his patient to gratify his own needs. Such conduct by SOLLOWAY was unethical, unprofessional, and deviated from the prevailing and acceptable practice in the field of psychiatry. His actions caused Miss Lerner a lengthy period of anxiety, and it will be difficult for her to reestablish a relationship with another psychiatrist which is necessary for effective treatment. (Testimony of Hamilton, Holzberg, Shellow, Lerner; P.E. 4, 9.)
Conclusions Conclusions: Respondent violated Sections 458.1201 (1)(m), Florida Statutes (1978), 458.331(1) Florida Statutes (1979), by attempting to terminate the psychiatrist-patient re- lationship with a female patient, and then sexually exploiting her for the purpose of gratifying his own needs. Insufficient evidence was presented to establish that his subsequent prescription of drugs to that patient violated the Medical Practice Act. Recommendation: Suspend Respondent's license to practice medicine for a period of one (1) year.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the DEPARTMENT suspend Respondent Michael L. Solloway's license to practice medicine, License No. 11845, for a period of one (1) year. DONE AND ENTERED this 12th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of November, 1980.
Findings Of Fact At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only. RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT 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 18th day of December, 1981. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Henry C. Hunter, Esquire Suite 320 Lewis State Bank Building Tallahassee, Florida 32301 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, CASE NO.: 81-991 vs. MIRACLE HILL NURSING AND CONVALESCENT HOME, INC., Respondent. /
The Issue Whether Respondent committed an unlawful employment practice against Petitioner by terminating her on the basis of her race.
Findings Of Fact Petitioner, an African-American female, was employed by Respondent in the position of Certified Nursing Assistant (CNA) from April 21, 2007, to February 21, 2008, when she was terminated. Respondent Employer is a provider of long-term and rehabilitative care to elderly patients and patients recovering from surgery. The majority of Respondent’s patients range from 60-to-90 years old. Upon hiring, Petitioner received a copy of the Employer’s Handbook. CNAs are responsible for patients’ basic needs, which include feeding, bathing, dressing, and turning. They are responsible for performing vital sign checks and providing reports to nurses on each patient’s health condition. CNAs are supervised by nurses, including Nurse Practitioners, Registered Nurses (RNs), and Licensed Practical Nurses (LPNs). The majority of nurses and CNAs employed by Respondent are African-American. At all times material, Petitioner regularly worked night shifts, beginning at 11:00 p.m. and ending at 7:00 a.m. the following day. Typically, fewer CNAs are scheduled to work the night shifts as compared to shifts scheduled between 7:00 a.m. and 11:00 p.m. The assignment of fewer CNAs to these shifts means that there is a greater need for those employees assigned to the night shifts to be alert and responsive to patients’ status, needs, and requests. Petitioner was scheduled to work a shift beginning at 3:00 p.m. on February 7, 2008, and then another shift from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. She admitted that she worked a double shift spanning February 7, 2008, and February 8, 2008. The Employer’s records show that she had been paid for the period of time from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. According to employee disciplinary reports admitted in evidence, Michelle Hatcher, LPN, an African-American female who was the night shift Charge Nurse, observed Petitioner and a Caucasian female CNA sleeping on the job on February 8, 2008. The two sleeping CNAs were not attending to patient call lights, which was an unsafe situation. Nurse Hatcher’s observation was confirmed by two separate, dated written statements provided by female African-American Nurse Felicia Rockett against each named CNA. “Discharge” was the proposed disciplinary action. Serious injury or death of a patient may result when a CNA fails to perform required job responsibilities. Respondent’s Employee Handbook describes “sleeping or inattention on the job” as a serious infraction which is subject to immediate discharge. Petitioner testified that she knew that sleeping on the job was a cause for immediate discharge and that it warrants termination “on the spot,” without prior warnings or progressive discipline. She denied ever sleeping on the job. Nurse Hatcher did not have authority to immediately terminate Petitioner and the sleeping Caucasian LPN “on the spot.” Nurse Hatcher was required to provide a written disciplinary report of the incident to the Director of Clinical Services, a/k/a the Director of Nursing, which she did. In turn, the Director of Clinical Services was responsible for reporting any termination of employment issue to Employer's Regional Director of Human Resources for review and a final decision on the appropriate course of action. Laura Register, a Caucasian female, had been appointed Acting Director of Clinical Services on or about February 7, 2008. She was new to the position, and there were many pending matters when she assumed the position, including disciplinary matters. Elaine Leslie, a Caucasian female and Respondent’s Regional Director of Clinical Services, visited Respondent’s Tallahassee facility two or three days per week for awhile to help acclimate Ms. Register to her new position and to assist her with pending matters. Mesdames Leslie and Register triaged resident care issues ahead of disciplinary actions. Therefore, there was a delay in addressing the two CNAs' disciplinary action forms. To ensure consistency and protect against bias, discrimination, and personality problems, Robert Walker, Respondent’s Regional Director of Human Resources, reviews and makes the final decisions with respect to all termination actions. This process is designed to ensure that uniform policies are applied to one and all equally. Ms. Leslie and Ms. Register contacted Mr. Walker, a Caucasian male, to review the disciplinary reports related to the charges of sleeping on the job. The three executives then reviewed the disciplinary reports of Nurses Hatcher and Rockett and believed their reports of Petitioner’s and the Caucasian CNA’s sleeping-on-the-job to be credible. Mr. Walker made the final decision to terminate Petitioner and the Caucasian CNA. He held a termination meeting with Petitioner, rather than terminating her by telephone. Petitioner’s termination date reflects when the termination actually occurred, on February 21, 2008, not the date of the offense or when the offense was reported to management. Respondent offered evidence of Petitioner sleeping on the job as the sole motivating factor in terminating her employment.1/ Respondent has a firm anti-discriminatory policy, of which Petitioner was aware because she signed a copy thereof upon her date of hire. However, Petitioner never complained to Mr. Walker about perceived racial discrimination, before or after her termination. At hearing, she denied any discriminatory treatment or any racial slurs or comments by any of Respondent’s employees at any time before, during, or after the incidents previously related. On February 29, 2008, which was after Petitioner’s February 21, 2008, termination, Respondent hired three new CNAs: one Caucasian and two African-American. Ten of the eleven CNAs hired by the Employer from February 5, 2008, to March 26, 2008, were African-American females.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009.
Recommendation Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 218 East Forsyth Street Jacksonville, Florida 32202 Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what penalty should be imposed on his nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. Respondent, Cecil Harold Floyd, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued a license numbered PN 0960631. At all times material hereto, Respondent was employed as a licensed practical nurse by the North Shore Senior Adult Community in St. Petersburg, Florida. At all times material hereto, Respondent was assigned to care for Patient M.F., a patient in the skilled nursing section of the North Shore Senior Adult Community. On February 26-27, 1996, Respondent worked as the charge nurse on the 11:00 p.m. to 7:00 a.m. shift. On February 27, 1996, at approximately 6:00 a.m., Respondent wrote in the nurse's notes that Patient M.F. was lethargic and having difficulty swallowing; that the patient's bottom dentures were out; and that the patient's tongue was over to the right side. In this entry, Respondent also noted "will continue to monitor." After Respondent completed his shift on February 27, 1996, Conchita McClory, LPN, was the charge nurse in the skilled nursing facility at North Shore Senior Adult Community. At about 8:10 a.m., Nurse McClory was called by the CNA who was attempting to wake up Patient M.F. Upon Nurse McClory's entering Patient M.F.'s room, she observed that the patient was sleeping, incontinent, and restless and that the right side of the patient's face was dropping. Based on these observations, Nurse McClory believed that Patient M.F. may have suffered a stroke and she immediately called 911. Following the 911 call, Patent M.F. was taken to Saint Anthony's Hospital in Saint Petersburg, Florida. Prior to coming to this country, Conchita McClory had been trained and worked as a registered nurse in the Philippines. However, Ms. McClory is not licensed as a registered nurse in the State of Florida. Saint Anthony's Hospital's records regarding Patient M.F. indicate that the patient had a history of multiple strokes beginning in 1986. The Department’s Administrative Complaint against Respondent included the following factual allegations, all of which were alleged to have occurred on February 27, 1996: At approximately 6:00 a.m., Respondent recorded in the nurse’s notes that Patient M.F. was lethargic and having difficulty swallowing; the patient's bottom dentures were out; and the patient's tongue was over to the right side. Respondent also noted in the nurses' notes that Patient M.F. should continue to be monitored. Patient M.F.'s roommate told Respondent that she believed that M.F. had suffered a stroke because she could not swallow and her speech was slurred. At about 8:00 a.m., Patient M.F.'s roommate went to the nurses' station and requested that a certified nurse's assistant check on M.F. Patient M.F. was found paralyzed on her left side, soaked in urine and unable to speak. There was no evidence presented to support the factual allegations referenced in paragraph 9b and 9c above and included in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of October, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Allied Health - Medical Quality Assistance 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 Cecil Harold Floyd 1680 25th Avenue, North St. Petersburg, Florida 33713-4444 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to the issues contained herein, Respondent. ROYCE S. McCALL, was licensed by the State of Florida as a licensed practical nurse, the license initially issued on December 4, 1978 and renewed thereafter until the present. His license number is 0500981. On July 11, 1984, Respondent was employed as a licensed practical nurse with the Walton County Convalescent Center (WCCC) in DeFuniak Springs, Florida. Late that evening, at approximately 4 or 5 a.m., Respondent, as charge nurse on one of the Center's units, along with Rachiel Infinger and Corene Fondren, was about to change a bladder catheter on one of the Center's residents, a Mrs. Rourke. Before doing so, however, he discovered that Mrs. Rourke had fouled herself and he refused to do the procedure then instructing Mrs. Rourke's aides to clean her up. He then went to the room occupied by Mrs. Harper, an elderly, completely bedridden patient between 80 and 90 years old, who rarely talks and can hardly move her arms and legs. Mrs. Harper also required a bladder catheter change and Respondent, along with another nurse, was attempting to do it. Since apparently Mrs. Harper was resisting somewhat, Respondent asked Ms. Infinger to help. During the course of the procedure, Mrs. Harper brought her hand down into the area where Respondent was working in an attempt to stop him. It was obvious that the procedure was somewhat painful to her and in the opinion of Ms. Infinger, Respondent was being less than gentle. When Mrs. Harper brought her hand down, Respondent grabbed it and moved it out of the way telling her at the time to, "Move your damned hand." This comment was heard by both Ms. Infinger and Ms. Fondren. When Respondent moved Mrs. Harper's hand, it collided with the bed rail which broke the skin causing it to bleed. Ms. Infinger noticed this and mentioned it to Respondent. He said he would take care of it and Ms. Infinger went some place else to do something. When she came back some 30 to 45 minutes later, she found that Respondent had still not dressed the skin break on Mrs. Harper's hand. Ms. Infinger thinks Respondent was too rough with Mrs. Harper. She believes it was not necessary for him to throw the elderly woman's hand off as he did. There were two aides present who could have, had they been asked, moved the hand and held it out of the way. There is some divergence in the testimony of Ms. Infinger and Ms. Fondren as to whether Respondent threw Mrs. Harper's hand or pushed it with the former contending it was a throw and the latter contending it was merely a push. Even Ms. Fondren, however, who believes this rough action was a reflex action by Respondent who had been in a bad mood all evening, agrees that since someone was there to help him, he should have asked for help rather than reacting on his own. If either witness is to be believed, however, Respondent acted unprofessionally. On the other hand, however, Ms. Stubbs, Ms. Blocker, and Ms. Fields, all of whom had worked with Respondent for several months, knew him from their repeated observations of him at work never to be abusive or rough with his patients. He is generally very kind to his patients, taking the time to explain what he is doing and exhibiting patience and understanding. His patience is somewhat less with the aides who in his opinion, do not do what they should on duty. Mrs. Harper has had several other skin tears both before and after the one in issue here. She is an old woman who bruises easily and whose skin can be broken easily. While not a difficult patient, she is somewhat confused and tends to try to interfere at times with the ministrations of those trying to help her and her hands often get in the way. Here, it is obvious that Respondent was in a bad mood late at night when he went to treat Mrs. Harper. He had just come from another patient who had not been properly cared for by the aides responsible for her and he was clearly annoyed. No doubt Mrs. Harper, not through spite or even consciously, attempted to stop him from doing what was no doubt a painful procedure and he reacted unprofessionally. This is not to say he consciously intended to harm her, but his reaction was less than it should have been in this situation. When Ms. Infinger came back and found that Respondent had not tended to Mrs. Harpers wound, she immediately reported this fact to Barbara Jean Miller, a licensed practical nurse working on another unit that evening who quickly treated and dressed the skin tear. When she left duty the next morning, she reported what she had seen and done and what Ms. Infinger had told her to the Assistant Director of Nursing who she saw outside in the parking lot. This lady reported it to the Director of Nursing, Mrs. Harwell, who conducted her own investigation. Mrs. Harwell interviewed Respondent who after first denying that the incident had taken place, admitted that he did yank Mrs. Harper's arm but stated he did not know it had hit the bed rail. He also initially denied knowing there was an injury but then admitted he had been told there was and that he had said he would fix it. He admitted that he was upset that evening. In the catheter procedure that Respondent was accomplishing, it is never appropriate to handle a patient so forcefully that it results in an injury even though it may be necessary to restrain or move the patient in some fashion. In Mrs. Harwell's opinion, Respondent's handling of Mrs. Harper in this instance was below minimum standards for the nursing profession. After talking with all the witnesses and securing pictures of the injury, based on her investigation and her discussions with Respondent, she terminated his employment with WCCC that day not only because in this instance his performance was below standards and unprofessional but also because this was the second incident of substandard performance on his record. She had previously chastised him for speaking improperly to or about another patient several weeks previously. Consequently, it is clear that Respondent moved Mrs. Harper's hand in such a manner that resulted in injury to her which is unprofessional conduct on his part compounded by his failure to return to treat the wound once he was made aware of it.
Findings Of Fact At all times pertinent to the matters under consideration here, Respondent was licensed by the State of Florida as a practical nurse, under license #0692631. Cynthia J. Pagonis entered University Hospital in Jacksonville, Florida, on April 11, 1983, for a routine laparoscopy to be performed the following morning. Early on the morning of the day of her surgery, April 12, 1983, Respondent, who was one of her nurses, came into her room with two other nurses, one of whom gave her a shot. While this was done, Respondent stood back and observed. Somewhat later, he again came back into her room with a rolling table onto which he told her to climb so he could take her down to the operating room. By this time she was somewhat drowsy from the shot. She asked Respondent what was in it and he told her, whereupon he wheeled her to surgery. After the procedure, that afternoon, Ms. Pagonis recalls him entering her room several times. One time, he checked her I.V. bottle--other times, he did nothing for her and, sleepy as she was, this concerned her because she wanted to sleep and Respondent's visits disturbed her. During this period, other nurses also came in to check her blood pressure or do something else, but Respondent never did anything--just looked. On the final visit, he came in and said he wanted to check her bandage. With this, he lowered her blanket to below her waist to the extent that her pelvic area was exposed. She was wearing a short hospital gown and nothing else. By this time, several hours after surgery, the anesthetic had worn off so that she knew exactly what was happening. After looking at her bandage, in this case no more than a Band-Aid, he pulled the cover back up and, without warning, bent over and kissed her on the cheek. She was upset when he pulled the blanket down because she felt it was inappropriate for him to do it when her dressing had been checked by another nurse shortly before. She also did not think it was appropriate for a male to be in her room without a chaperone. When Respondent kissed Mrs. Pagonis, he told her he would be off for a few days and for her to take care of herself. Then he left. When Respondent kissed Mrs. Pagonis, she got angry. She had said nothing to him to lead him on. She had asked him what cologne he was wearing and when he told her, she said it smelled nice, but nothing more. Mr. Pagonis entered his wife's room on the morning of her surgery, both before and after the operation. When he was there before she was taken to the operating room, he saw Respondent in the room and Respondent asked him to leave so they could get his wife ready for the operation. When he came back later, after this incident, he found her nervous and upset. She looked to him as if she had been frightened. When she told him what had happened, that this "black male nurse had repeatedly come into her room and was doing nothing" for her, and that he had pulled down her covers and "got his eyes full," Mr. Pagonis became angry and went out to look for Respondent. He could not find Mills, however, and went through the nursing chain of command until he got to Mrs. Davis, the Director of Medical Nursing, to whom he told the story. Mrs. Davis found Mr. Pagonis to be upset, but rational and controlled. He was, in her words, restrained, gentlemanly, and "quite heroic" about the whole situation. Mrs. Davis was first contacted about the incident, while in her office, by a call from the floor nurse on Mrs. Pagonis' floor. The nurse alerted her that Respondent had made advances to a patient. She immediately went up to that floor and met with Mr. Pagonis, whom she then took downstairs to her office where he told her what his wife had related. She then went back up to Mrs. Pagonis' room, in an effort to be fair to everyone, to see how alert Mrs. Pagonis was and how accurate her observations were. Mrs. Davis found her alert, and a clearheaded woman who, in her opinion, had been free of the effects of anesthesia for quite awhile. Mrs. Pagonis told her what had happened, that Respondent had made an unnecessary check of her I.V., since another nurse had just checked her, and then checked her dressing, as described. Mrs. Davis verified that another nurse had recently checked on Mrs. Pagonis and, after checking the incision, concluded that because it was so minor, there was no legitimate need for Respondent to have done so also. In her professional opinion, based on service as a licensed practical nurse since 1971 and as a registered nurse since 1974, the way in which Respondent checked Mrs. Pagonis was inappropriate. The incision and dressing here were so small, it was not necessary to expose the patient all the way to the mons pubis, as Respondent did. In addition, a male nurse should always have a witness present in a situation such as this. As for the kiss, it is a rare situation when it is appropriate for a nurse to kiss a patient. This may be done only in the care of a very old, very young, very sick, long-term patient, where the parties had a long-standing relationship, and the action would be therapeutic. Under the circumstances here, Respondent's kiss of Mrs. Pagonis was inappropriate and unprofessional, notwithstanding Respondent's claim he did it, "but only as a friendly gesture." Mrs. Davis requested Mr. Pagonis to make a written statement. When this was done and signed, Mrs. Davis called for Respondent, who, she found, had signed off his regular shift, but was working overtime. She located him and took him back to her office, where she questioned him about the incident. At first he denied it, but subsequently admitted he had kissed Mrs. Pagonis and pulled down her covers, although he claimed he did this in an appropriate manner. She then sent him back to work and thought about the situation for a while. Having made her decision to discharge the Respondent, she prepared the appropriate paperwork, called him back to her office, and did so. The next day, Mills called her and told her he understood why she had done what she did, told her he loved her, and thanked her. During the period he worked at that hospital, she never had any other difficulty with Respondent. He was cooperative and would come in for extra duty when called. She bad received no direct complaints about his relationship with other patients; and though she was not his immediate supervisor, she understood that his performance of his nursing duties was satisfactory. Somewhat later in the year, in June 1983, Respondent was employed as a Float Nurse at the Jacksonville Convalescent Center, specifically on June 19 and 20, 1983. On those days it was, according to Carol R. Hadnot, Director of Nursing at the Center, his responsibility to change the dressings on certain patients. Respondent was present for duty on those dates. During this period, Fay K.F. Bennett, also a nurse at the Center, as a part of her duties, checked the dressing on several of the patients whose dressings were due to be changed. She found that the dressings had not been changed and that the Patients' charts bore initials and date for the last change, a day or two before. The initials on the charts were D.M., which could have been Respondent or Doris Minard. That initial is not significant, however. What is significant is that there was no note on the chart showing that Respondent had changed the dressings during his duty period as he was required to do. This information was reported to Mrs. Hadnot. It is the general policy at Jacksonville Convalescent Center to counsel an employee before taking discharge action here. This was not done here because before Respondent could be counseled, allegations that Respondent had made sexual advances to three nurses' aids were reported to her. She then discussed the situation with the faculty administrator. They decided that because he was still a probationary employee, the allegations described were sufficient to discharge Respondent without counseling, and this was done.
Recommendation That Respondent's license as a licensed practical nurse be revoked.
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
