The Issue Whether respondent terminated petitioner's employment on account of her age, sex or national origin, in violation of the Human Rights Act of 1977?
Findings Of Fact A registered nurse since 1949, petitioner Bessie J. Armstrong, who was born October 1, 1923, moved to Florida after she retired from the United States Air Force with the rank of captain. The record does not reveal her national origin. Ms. Armstrong had worked as an emergency room nurse, a coronary care nurse, and a nursing supervisor in three large hospitals before she began working for respondent, John Knox Village of Central Florida, Inc., which operates a retirement community with 492 independent living units, 18 assisted living units and a 120-bed (up from 60 beds before 1986) skilled nursing facility, called the "Med-Center." Ms. Armstrong worked the graveyard shift at the Med-Center from October 11 or 12, 1981, until her termination. Andrea Naumovitz, who, as director of nursing at the Med-Center until January of 1986, supervised petitioner Armstrong, gave her consistently good evaluations, Petitioner's Exhibit No. 1, and spoke highly of her abilities and performance. While employed at the Med-Center, Ms. Armstrong went in Thursday mornings as a volunteer to teach residents crafts, using materials she purchased with her own money. In fact, she was coloring Easter baskets during one such session when her husband suffered his fatal heart attack. In September of 1986, Judith Osborne, who succeeded Ms. Naumovitz as director of nursing on January 9, 1986, received complaints, from nursing aides Ms. Armstrong supervised, to the effect that she left distribution of suppositories to them, that she had herself passed medicine out before the hour which residents' doctors had specified, that, on two occasions, she had fallen asleep at work, and that she had once banished a noisy resident to the shower room. After summoning Ms. Armstrong and confronting her with these accusations, Ms. Osborne decided, rightly or wrongly, that at least some of the allegations against Ms. Armstrong were true. Nurse's notes for September 13, 1985, signed by petitioner, reported that a resident had been "[p]ut in shower room for the night." Respondent's Exhibit No. 1. On September 24 or 25, 1986, she terminated Ms. Armstrong's employment. Although in theory, the nursing home administrator or respondent's executive director might have reversed the decision to terminate petitioner's employment, in practice the decision was Ms. Osborne's to make. As far as the evidence shows, neither respondent nor Ms. Osborne has any policy to terminate or harass employees on account of their age, sex or national origin. Because of a critical shortage of nurses in the geographical area, sexagenarians not uncommonly work as floor nurses at the Med Center. The nursing staff is overwhelmingly, if not exclusively, female. Respondent's Exhibit Nos. 4 and 5. On July 29, 1987, eleven of respondent's approximately 240 employees were older than petitioner. Respondent's Exhibit No. 5. On the same date, 54 employees had worked long enough to be eligible for three weeks' annual vacation. Reversing the determination of the claims adjudicator dated October 24, 1986, Appeals Referee Mildred C. Anderson concluded in a decision dated November 26, 1986, that Ms. Armstrong had not been guilty of "misconduct connected with work" within the contemplation of the unemployment compensation law. Docket No. 86-25342U.
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
Findings Of Fact At all times material hereto, Petitioner, Joyce Lovasz, was employed as a nurse by Respondent, Boca Raton Community Hospital (Hospital). In 1987, after a medical leave of absence, the Hospital decided not to place Petitioner in the position she held prior to her leave. Petitioner was originally hired by the Respondent in 1970 as a staff nurse. She was promoted to a charge nurse position and then to supervisor of the home health unit. In 1974, she left the Hospital for a position at another hospital. Then, in 1979, Petitioner was asked to return to the Hospital by Tracy Reichert, then, the Director of Nursing Services Administration. Petitioner was selected as head nurse of the I.V. therapy team and began this service on February 12, 1979. In the summer of 1983, Ms. Reichert became aware that there was a significant amount of dissension within the I.V. team and considerable unhappiness on the part of the employees working under Petitioner's supervision with respect to their management by Petitioner. Also, beginning in the summer of 1983, members of the I.V. team met with Terrance Braun, the Hospital's Personnel Director, and discussed their problematic treatment by Petitioner. Their concerns continued, however. Around the same time, some of the I.V. team's members consulted Donna Hearn, who was, then, in charge of the Hospital's Employee Assistance Program. The team members sought Ms. Hearn's counsel because of their concern for Petitioner's well-being, as well as a concern for themselves and their job security. At the meeting with Ms. Hearn, the I.V. team members disclosed behavior of Petitioner which could be characterized as unprofessional. They also talked of Petitioner's favorable actions toward some members of the team. Petitioner's behavior was splitting the team and causing great dissension within it. Some of the Petitioner's actions which caused concern included Petitioner's tape recording of conversations with employees, maintaining a hidden tape recorder in her drawer, taking unexplained absences from the Hospital during scheduled work time, making abrupt scheduling changes, announcing changes in procedures in the middle of doing an I.V. application, and writing different memos to the favored and disfavored factions of the I.V. team concerning the same subject, including constructive memos to the favored team and curt, nonconstructive memos to the disfavored group. The problems persisted, and members of the I.V. team continued to seek counsel from Ms. Hearn throughout the remainder of 1983, and all of 1984 and 1985. Ms. Hearn, who was trained as a counselor, was convinced of the truthfulness of the reports she was receiving from the I.V. team members. As a result of her meetings with the I.V. team, Ms. Hearn discussed the Petitioner's behavior towards I.V. team members with Mr. Braun and Ms. Reichert. Ms. Reichert disclosed to Ms. Hearn that she had concerns about Petitioner's management style and that she would talk to Petitioner. During this period, Ms. Reichert began a dialogue with Petitioner about her management style and problems in supervising the I.V. team. At Ms. Reichert's encouragement, Petitioner visited with Ms. Hearn but was not willing to discuss topics that related to her management of the team. Ms. Reichert had numerous other discussions with Petitioner concerning their difference of opinion on Petitioner's management of her employees and the continuing dissension within the I.V. team. Petitioner grew increasingly critical of Ms. Reichert in front of I.V. team members and was frequently critical of nursing administration in general. In the summer of 1985, Ms. Reichert and Petitioner engaged in a lengthy conversation relating to Petitioner's management of her team. Petitioner asked Reichert if she wanted her to vacate the I.V. head nurse position. Reichert declined on the condition that Petitioner change her management style of supervising the unit. As a result of this meeting, Ms. Reichert decided to assign Ann Capron, Assistant Director of Nursing, to be the immediate supervisor of Petitioner to see if she could influence Petitioner to change her management style and alleviate the problems in the I.V. team. At that point, Ms. Reichert decided to give Ms. Capron six months to work with Petitioner closely and if the problems did not resolve, Ms. Reichert would recommend the termination of Petitioner. The problems continued, however. Ms. Reichert communicated her decision to terminate Petitioner to Normand Guilbault, then Vice President of the Hospital, Mr. Braun and Ms. Capron. However, before action could be taken to implement her decision to terminate Petitioner, Petitioner was diagnosed with ovarian cancer, and in February, 1986, she went on a medical leave of absence which was to last for nearly one year. During her leave of absence, Petitioner was replaced by Trish Hawkins, who had been her unofficial assistant. Under Ms. Hawkins's supervision, the problems which had persisted in the I.V. team for several years disappeared. Ms. Reichert determined that this was due to the absence of Petitioner and to the leadership of Hawkins. Petitioner was eligible for the Hospital's "30, 90, 365 day" leave of absence policy which provided that an employee is guaranteed the same job during the first 30 days of a leave of absence. After the first 30 days and prior to 90 days of a leave of absence, an employee is guaranteed a position with the Hospital at the same rate of pay. If an employee has been employed by the Hospital more than three years, the employee is eligible for long term disability benefits. These benefits guarantee the employee a position with the Hospital even after 90 days of leave of absence up to one year after the start of the leave but not necessarily at the same rate of pay. The Hospital's policy manual contains a second policy which relates to leaves of absence and which supplements the "30, 90, 365 day" policy and which Petitioner argues is somewhat inconsistent. The second policy states that the Hospital reserves the right to fill a vacancy created by a leave of absence but will make every effort to place an employee in a same or comparable position when he or she is able to return to work. The Hospital's experience in applying these policies to employees in comparable supervisory or management positions to Petitioner has been uniformly to bring those comparable employees, including Petitioner, back to a position in the Hospital other than the one they held prior to a leave of absence. Of the supervisory employees who have been on a leave of absence of more than 90 days, none has returned to the same position. This policy has been applied to employees with nonmedical leaves of absences as well as medical leaves. The Hospital has had numerous employees other than Petitioner take medical leaves of absence due to cancer conditions and return successfully from those leaves of absence to a position with the Hospital. At least one such person left the Hospital and came back to a higher position after a bout with cancer. Around January, 1987 and prior to the end of 365 days after her leave of absence began, Petitioner informed Ms. Reichert that she was released by her doctor, recovered from her cancer condition, was healthy and ready to return to work. However, the previous November, after consultation with Mr. Braun, Ms. Reichert had decided not to return Petitioner to the head nurse position of the I.V. team because of Petitioner's lack of success in managing the team. Instead, she decided to retain Ms. Hawkins on a permanent basis. Ms. Reichert did not make Ms. Hawkins appointment permanent until after Petitioner returned from her leave nor did Ms. Reichert tell Petitioner about her decision. Ms. Reichert felt that the announcement might cause a set back in Petitioner's recuperation. Ms. Reichert did tell Mr. Braun and Mr. Guilbault, however. Then, on January 19, 1987, Petitioner met with Ms. Reichert at the Hospital. They chatted for a while about the changes at the Hospital, but Ms. Reichert did not tell Petitioner about her decision not to return her to the I.V. team. She told Petitioner to show up ready for work in her lab coat on January 22, 1987, which Petitioner did. Ms. Reichert was convinced that Petitioner had fully recovered from her condition and was not suffering from a disability of any kind. Petitioner herself was convinced that she was fully recovered from her condition and was not suffering from any disability. On January 22, 1987, Ms. Reichert told Petitioner that she decided to replace her as head nurse because of her poor performance as manager which they had discussed on numerous occasions before Petitioner went out on her leave of absence. Instead, Ms. Reichert, being aware of the hospital's policy, offered Petitioner a staff nurse job at the same rate of pay as the head nurse position. Although a staff nurse is essential to patient care, appointment to a staff nurse position after having held a head nurse position was considered a demotion by Mr. Braun. Petitioner refused the position and met with Mr. Braun, who reviewed with her potential positions which the Petitioner was qualified to fill. Mr. Braun located three potential positions. Although the first two positions did not work out because of budget problems, Mr. Braun was acting in good faith in attempting to find a position for Petitioner. The third of the three options proposed by Mr. Braun, a home health I.V. position, showed more promise to Petitioner. Petitioner was asked to do a feasibility study on I.V. therapy as part of the home health agency. She began the study sometime in February, 1987 and worked on it for approximately two and one-half months until April, 1987. Numerous problems arose during the course of this feasibility study. In April, 1987, the Hospital determined that a home health I.V. therapy function was not economically feasible and decided not to pursue that matter further. At that point, the Hospital's top administrative staff and Mr. Braun met and made good faith review of all potential available positions for Petitioner. They were unable to locate a position for which the Petitioner was qualified other than a staff nurse position, for which there were numerous openings. Petitioner was re-offered a staff nurse position at her head nurse salary, even though under the Hospital policy, the Hospital was not required to continue to pay Petitioner her head nurse salary since she had been absent more than 90 days. Petitioner was also offered an orientation period and training to reacquaint her with floor nursing since she had been an administrative nurse for several years. Petitioner was unhappy with this offer. For the first time since she had been back to work, she complained of tingling and numbness in her hands as an excuse not to take the staff nurse position. Mr. Braun asked Petitioner for a doctor's report that she was capable of coming to work full-time, which she had obtained without any difficulty. Also, at the time that Ms. Reichert hired Petitioner in 1979, she was aware that Petitioner had suffered with back problems and had undergone one or more Pap smears. However, the proof failed to demonstrate any connection between these suggestions of problematic health and the employment decisions made by the Hospital concerning Petitioner. Consequently, the offer of a staff nurse position was renewed. The Petitioner declined the offer and declined to report to work on instructions from her attorney. Petitioner voluntarily left her employment at the Hospital. During the first years of her employment, Petitioner had received satisfactory to exemplary performance evaluations. Then, during her final full year, the year prior to her leave of absence, Petitioner received a less than satisfactory evaluation. However, the evaluation system at the hospital had changed during that time. The Hospital's evaluation system had undergone criticism because the assessments were too high and did not properly reflect an employee's performance. A new system was implemented. The system became more criteria based and resulted in lower evaluations throughout the Hospital. It was under this new system that Ms. Capron assessed Petitioner's performance during 1985, her last full year of employment. Unfortunately, due to Petitioner's illness and leave of absence, her evaluation for 1985 was not delivered to her or formalized until she returned from her illness in 1987. No credible evidence was offered at the hearing which suggested that Petitioner suffered from a handicap at the time the Hospital made the decision not to return her to the head nurse position in the I.V. therapy team. In fact, the decision was based on Petitioner's poor performance as a manager of the I.V. team.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Human Rights Commission issue a Final Order that Petitioner has failed to establish that Respondent discriminated against her on the basis of handicap in violation of the Human Rights Act of 1977, as amended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1990. JANE C. HAYMAN 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 27th day of April, 1990. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-4386 The following represents the rulings of the undersigned on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact. PETITIONER Adopted in findings 2 and 25. Adopted in findings 2 and 25. Adopted, in relevant part, in findings 11, 17 and 23. Adopted in finding 13. Adopted, in part, in findings 14 and 18; in part, rejected as conclusion of law. Adopted in finding 20. Adopted, in part, in findings 15 and 16; in part, rejected as not supported by competent substantial evidence. Adopted, in relevant part, in finding 25. Rejected as not supported by competent substantial evidence. Adopted in finding 25. Rejected as not supported by competent substantial evidence, RESPONDENT Adopted as subordinate to the findings of fact. Adopted in finding 2. Adopted in finding 23. Adopted in finding 3. Adopted in finding 4, Adopted in finding 5. Adopted, in relevant part, in finding 6. Adopted, in relevant part, in finding 6. Adopted in finding 7. Adopted in finding 8. Adopted in finding 9. Adopted, in part, in finding 9. Adopted, in part, in finding 9. Adopted in finding 10. Adopted in finding 10. Adopted in finding 11. Adopted in finding 12. Adopted in finding 12. Adopted in finding 13. Adopted in finding 14. Adopted in finding 15. Adopted in finding 16. Adopted in finding 17. Adopted in finding 18. Adopted in finding 18. Adopted in relevant part in finding 20. Adopted in relevant part in finding 19. Adopted in finding 21. Adopted, in part, in finding 21; in part, rejected as not supported by competent substantial evidence. Adopted in finding 21. Adopted in finding 22. Adopted in finding 22. Adopted in finding 22. Adopted in finding 23. Adopted in finding 24. COPIES FURNISHED: Glen J. Torcivia, Esquire One Clearlake Centre, Suite 1404 250 Australian Avenue South, West Palm Beach, Florida 33401 Michael D. Malfitano, Esquire MacFarlane, Ferguson, Allison Kelly P.O. Box 1531 Tampa, Florida 33601 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN 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 Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact At all times material to this proceeding, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0695621. Before 1987, the Respondent practiced nursing for approximately 30 years, including some time for the United States Marine Corps, without any occasion for license discipline. During 1987, through August 2,1987, the Respondent was employed as a licensed practical nurse at Haines City Health Care Center. During 1987, the Respondent's performance at work at the nursing home was adversely affected by situational depression caused in part by the pain probably caused by an arthritic condition that involved the temporomandibular joint and in part by a reaction to the medication prescribed to alleviate the pain On many occasions while the Respondent was working at the Haines City Health Care Center in 1987, the Respondent experienced dramatic mood changes.. She would act normal, even very happy, one minute, and become very depressed, even crying, the next. In February, 1987, the Respondent signed the medication administration record indicating that she had performed a dressing change on a patient when she in fact had not performed the dressing change. On July 31, 1987, the Respondent charted in the medication administration record the administration of procardia to a patient when she in fact had not administered the medication. On August 2, 1987, the Respondent had the assignment, among other things, to clean out some medicine carts. She accumulated 14 assorted pills but could not dispose of them because another nurse was required to be there to verify the proper disposition of the pills. She put the pills in a souffle cup and covered them with a plastic cup, planning to dispose of them properly when another nurse was available to watch her. Time went by, and the Respondent got busy doing other things, and she forgot to dispose of the pills. She did not realize her error until she got home after her shift was over. She telephoned to ask the nurse on the next shift to dispose of the pills in the presence of another nurse. She also asked the nurse not to report her error to their supervisor. The incidents described in Findings 4 through 6, above, constitute unprofessional conduct which departs from, or fails to conform to , the minimal standards of acceptable and prevailing nursing practice. There was no evidence that any of the incidents described in Findings 3 through 6, above, resulted in any physical harm or injury to a patient (although failure to administer prescribed procardia could have endangered the health of the patient under some circumstances.) Thinking that the Respondent's performance deficiencies and mood changes may have been evidence of a chemical dependency of some kind, the staff at the Haines City Health Care Center recommended that the Respondent submit to an evaluation and treatment, if necessary, by the Intervention Project for Nurses (IPN). The Respondent agreed and enrolled on September 23, 1987. Testing convinced the professional working for the IPN that the Respondent had no chemical dependencies but indicated to them that she may benefit from psychiatric evaluation and treatment for depression. The Respondent considered some of the suggestion to be cost-prohibitive for her means, but she did see visit her medical doctor, who prescribed an antidepressant. Her doctor advised her to discontinue the medication when the Respondent noticed undesirable side- effects. By not completing the recommended psychiatric evaluation and treatment and not filing required status reports, the Respondent did not comply with the requirements of the IPN, and was dismissed from the program without having completed it. When the Respondent returned to the Haines City Health Care Center, she was not given back her job. She then sought and was given employment as an LPN at another facility, the Ridge Convalescent Center, Inc., and has been a satisfactory employee from February 15, 1988, through the date of the final hearing, December 9, 1988.
Recommendation Based on the foregoing Findings Of Fact and Conclusion Of Law, it is recommended that the Board of Nursing enter a final order finding the Respondent, Gloria A. Williams, guilty of three separate violations of Section 464.018(1)(f), Florida Statutes (1987), and placing her on probation for one year conditioned on her submission for reevaluation of her mental and emotional stability by a psychiatrist or psychologist approved by the IPN, on her completion of any recommended follow-up treatment, and on her submission of quarterly progress reports while on probation. RECOMMENDED this 13 day of January, Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13 day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-4411 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Accepted and incorporated. Rejected, but only because the Respondent's employment at Ridge Convalescent Center, In., between February 15 and at least December 9, 1988, is relevant to the alleged violation of Section 464.018(1)(h), Florida Statutes (1987); otherwise, accepted and incorporated. 3.-12. Accepted and incorporated to the extent necessary and not subordinate. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gloria A. Williams 2900 Powerline Road, Lot 88 Haines City, Florida 33844 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of $2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.
Findings Of Fact The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine. The survey team believed it found a violation of 42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status " On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning, July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until 2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or psycho-social status during that night, such that an attending physician should have been called during the night. Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift). F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through 9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until 9:00 a.m. on the morning of July 2, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed. DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of December, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Respondent is licensed by Petitioner as a licensed practical nurse, License Number 21725-1 and was so licensed during the years 1974 and 1975. Respondent was first employed by Okaloosa Memorial Hospital Crestview Florida in 1965 as a nurse's aide and remained in this capacity until 1968 when she took a leave of absence to attend classes to obtain her license as & practical nurse. She was employed as a licensed practical nurse at the hospital from September 1969 until August 27, 1975. Her primary duty as an LPN was medication nurse on the 7-3 shift. (Respondent's Composite Exhibit 1) On September 27, 1974, Respondent signed out for 100 mg. of "meperidine inj" at 2:15 P.M. on a hospital Narcotic Administration Record for that drug for Station Number 1. The record reflects that the drug was drawn from hospital stock to be administered to patient Tommy Davis. Demerol is the trade name for meperidine and it is a controlled narcotic analgesic drug. Although the Nurses Bedside Record for the patient for that day should have reflected administration of the drug to the patient by the initials of the Respondent, the record does not show such an entry by her or anyone else. Hospital practice also requires that administration of medication be shown on the nurses progress notes for the patient, but there is no record in such notes for the date in question regarding patient Davis having received the medication in question. (Testimony of Bronson, Mitchell, Petitioner's Exhibits 2, 5). A hospital Narcotic Administration Record for "meperidine, 100 mg., inj." for Station Number 1 reflects that on February 8, 1975 at 2:00 P.M. Respondent withdrew 100 mg. of the drug for patient Roy Bringhurst. However, neither the Nurses Bedside Record nor the nurses progress notes reflect that the drug was administered to the patient by Respondent or anyone else at that time. (Testimony of Bronson, Mitchell; Petitioner's Exhibits 3, 6). A hospital Narcotic Administration Record for "meperidine 75 mg. inj." for Station Number 1 shows that on February 23, 1975, at 1:00 P.M., Respondent signed out for 75 mg. of the drug for patient Mary Corbin. Neither the Nurses Bedside Record nor nurses progress notes for the patient reflect that the drug was administered at that time by Respondent or anyone else. (Testimony of Bronson, Mitchell; Petitioner's Exhibits 1, 4). In early August, 1975, personnel of the hospital pharmacy brought to the attention of the hospital administrator the fact that a large quantity of the drug, Thorazine, was being used at Station 1 in the hospital. Medical records reflected that the drug had been used only four times during a five day period when ten vials had been issued. Each vial would provide about five to ten normal injections. It was further noted that after Respondent went on a ten day leave of absence, no Thorazine was used during that period at Station 1. When Respondent returned on August 19th, she requisitioned two bottles of Thorazine for Station Number 1 from the pharmacy and these bottles were given to her by pharmacy personnel on that date. During Respondent's noon hour absence, the hospital Administrator and Director of Nursing went to the medication room of Station 1 and observed a partially full bottle of Thorazine which had been there for some time and had been issued to the station on August 8th. The bottle also had been observed in the medication room by the Director of Nursing at 6:30 A.M. on August 19th before Respondent started her shift. At that time, it also was noted that the trash can in the medicine room was empty. During the noon hour investigation, it was discovered that an empty bottle of Thorazine was in the trash can and another empty bottle was found in general trash outside the hospital. When Respondent returned from lunch, she was asked to step into the medicine room and there the Administrator asked her what had happened to the two bottles of thorazine. Respondent stated that she had administered one injection to patient Barnes and another to patient Nelson and that a third injection had been given to her son. She was unable to account for the remaining amount that had been drawn earlier that day. She consented to the Administrator examining her handbag and therein was found twelve Thorazine tablets in a medicine cup. When asked about them, Respondent admitted that they came from hospital stock supplies and that she had planned to take them home for use by her husband who suffered from heart trouble. Later that day, patient Nelson told the Director of Nursing that he had not received an injection since early in the morning of August 19th and patient Barnes denied having received any injection of the drug that day. Subsequent to August 19, Respondent provided a written statement to hospital authorities in which she said that she gave Thorazine intramuscularly rather than orally to patient Nelson by mistake and that she gave a Thorazine injection to patient Barnes due to her negligence in not ascertaining that such medication had not been ordered for him. Contrary to the statement she had made concerning her son, in fact, the shot which she administered to him at the hospital on August 19 was penicillin which he had brought from home to the hospital on that day. He was then suffering from a cold. The penicillin had been purchased at a pharmacy by Respondent in June, 1975, for possible future use. (Testimony of Mitchell, Howard, Helms, Carl Godwin, Petitioner's Composite Exhibit 7, Petitioner's Exhibit 8, Respondent's Exhibit 2). Respondent testified as a witness and admitted taking the 12 Thorazine tablets from hospital supplies on August 19, 1975, because her husband was not feeling well and she thought the medication would help him. She conceded that it was wrong for her to take the tablets and offered no other excuse for her action. Although she admitted requisitioning the two bottles of Thorazine on August 19th, she testified that these were not delivered to her but that she saw them in a basket in the medicine room about 10:00 A.M. She further testified that it was entirely possible that she could have made the charting errors, as alleged, due to the fact that frequently she had a large number of patients asking for medication at the same time and she was not able to chart such medication until after her shift had finished. At such times she might have forgotten a particular dosage administered to a patient. She stated that she had ordered the two bottles of Thorazine on August 19th because the Director of Nursing had previously required that two bottles be in stock at Station Number 1 at all times. (Testimony of Respondent). In 1975, it was not uncommon for the hospital's nurses to chart their medication at the end of their shift rather than at the time of administration. Although hospital employees were routinely provided such medications as aspirin or antacid from hospital supplies, there was no authorization for them to take or receive other drugs without a doctor's orders. Although several witnesses testified that there were rather loose practices in the hospital regarding employees receiving medication, no specific instances were cited to establish that taking drugs without permission was the norm. (Testimony of Howard, McLaughlin, Downes, Deaton). In view of the foregoing findings the, following further findings are made: On three separate occasions in 1974 and 1975, while on duty as a medication nurse at the Okaloosa Memorial Hospital, Crestview, Florida, Respondent drew quantities of meperidine (demerol) from hospital supplies for specified patients and failed to chart the administration of such drugs in patient records. On August 19, 1975, Respondent wrongfully took twelve Thorazine tablets from Okaloosa Memorial Hospital supplies for personal use. On August 19, 1975, Respondent received two bottles of Thorazine from the Okaloosa Memorial Hospital pharmacy ostensibly for patient use, but wrongfully disposed of the same in an unknown manner. Respondent enjoys a good reputation as a licensed practical nurse. In fact, the hospital Administrator is of the opinion that she was the best medication nurse in the hospital before she became ill in 1974. Her coworkers attest to her loyalty, honesty, and conscientious work. She enjoys a good reputation in her community where she has lived for a lifetime, and a number of her former patients submitted statements concerning her excellent work while under her care. She has been employed at the Crestview Nursing Convalescent Home, Crestview, Florida, since September 30, 1975 and has performed her duties there in a very commendable manner. Her employer wishes to retain her as a licensed practical nurse due to the fact that she is particularly qualified to handle elderly patients and competent nurses for this type of work are difficult to find. (Testimony of Howard, McLaughlin, Sanford, Downes, Deaton, Baldwin, Respondent's Composite Exhibit 1).
Recommendation That Respondent's license as a licensed practical nurse be suspended for a period of six months, but that the enforcement thereof be suspended for a like period during which time Respondent should be placed on probation. DONE and ENTERED this 24th day of January, 1977, in Tallahassee Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville Florida 32202 Ernest L. Cotton & Woodburn S. Wesley, Jr., Esquires 88 Eglin Parkway Fort Walton Beach Florida
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.
