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
Findings Of Fact The Petitioner desires to construct a 180-bed nursing home facility. The proposed facility was originally conceived by the Winter Haven Hospital. The hospital was seeking to construct the facility adjacent to its present location. The hospital planned to utilize Federal Economic Development Agency funds to finance the construction. Under Federal regulations, Economic Development Agency funds are not available to a private hospital, but are available to local governmental units. The Petitioner agreed to seek the certificate of need, to apply for Economic Development Agency funds, and to construct the facility. After construction it is the Petitioner's plan to contract with the Winter Haven Hospital to operate the facility. Petitioner's request for certificate of need was forwarded to the South Central Florida Health Systems Council, Inc., and to the Respondent. The Health Systems Council, by a seven to six vote, recommended to the Respondent against the issuance of a certificate of need. The Council's written recommendation to the Respondent was never forwarded to the Petitioner, or to the Winter Haven Hospital. The Respondent denied the request for issuance of certificate of need by letter dated December 30, 1976. The Respondent's denial was based upon a mechanical application of the Florida State Plan for Construction of Hospitals and Related Medical Facilities. The sole basis for the denial was that in accordance with population figures set out in the State Plan, and in accordance with the application of a Federally required formula to the population figures, there is no need for the additional nursing home beds proposed by the Petitioner. No independent determination was made by the Respondent as to actual needs for nursing home facilities that might exist in Polk County. In the Florida State Plan for Construction of Hospitals and Related Medical Facilities, it was determined that 252 additional long-term care beds were needed in Polk County. At the time that the plan was promulgated, Kennedy Center, a new nursing home facility located in Lakeland, Florida, was not actively under construction. Since the plan was adopted, active construction of the Kennedy Center has commenced. At the time of the hearing 120 beds had been opened and made available at the Kennedy Center, and an additional 120 beds were being constructed. When the Kennedy Center is considered, there remains a need of only 12 additional long-term care beds in Polk County. Obviously the Petitioner's proposed 180-bed facility would greatly exceed the need envisioned in the State Plan. Petitioner offered evidence in the form of a publication of the Bureau of Economic and Business Research at the College of Business Administration, University of Florida, which indicates that the population of Polk County is somewhat higher than that set out in the State Plan (Petitioner's Exhibit 3). If these population figures, rather than those set out in the State Plan were utilized, there would remain a need for 252 long-term care beds in Polk County, even after construction of the Kennedy Center (Petitioner's Exhibit 5). There is no means of determining from the evidence whether the population figures submitted by the Petitioner are more or less accurate than those set out in the State Plan. Petitioner offered evidence that it has had difficulty placing certain classes of patients in nursing home facilities. This difficulty in fact prompted the Petitioner to seek a certificate of need for a new nursing home facility. Petitioner takes the responsibility for placing indigent persons in need of nursing home care. The State Medicade Program contributes the bulk of the cost of the care. Three categories of nursing home care are identified for Medicade purposes. These are "skill care", "intermediate I" and "intermediate II" patients. Skill care patients are the most infirm, and intermediate II care patients are the least infirm. The Medicade program allots more money for skill care patients than it does for intermediate care patients. Because of this private nursing home facilities often reject intermediate care patients in favor of skill care patients. The Petitioner has accordingly experienced difficulty in placing indigent intermediate care patients. The Petitioner has had to place 86 patients in nursing home facilities outside of Polk County. The opening of the Kennedy Center will alleviate most of the placement difficulties that the Petitioner has experienced. Approximately 100 beds at the Kennedy Center will be available for "intermediate II" patients. In addition, the operator of the "Grovemont Home" in Winter Haven, Florida, appeared at the hearing and stated that his facility would accept Medicade intermediate care patients, and that they are not running at full capacity. The Petitioner had not previously been placing Medicade patients in the Grovemont Home.
The Issue Whether Petitioner is entitled to reinstatement of his license as a registered nurse in the State of Florida.
Findings Of Fact Petitioner is a nurse licensed by the Florida Board of Nursing, having nursing license number RN 2651872. On June 3, 1998, an Administrative Complaint was filed against Petitioner in Case No. 1998-00739, asserting that Petitioner engaged in unprofessional conduct in violation of Section 464.018(1)(8), Florida Statutes. The parties entered into a Settlement Agreement and on March 3, 2000, a Final Order was filed by the Board of Nursing approving the Settlement Agreement and imposing one year of probation. Pursuant to an Order to Show Cause, Petitioner appeared before the Board of Nursing in August 2000. By Order filed September 25, 2000, the Board of Nursing extended Petitioner's probation for six months and required him to obtain an evaluation coordinated by the Intervention Project for Nurses (IPN) within six months. On approximately March 29, 2002, an Administrative Complaint was filed against Petitioner in Case No. 2001-12091, alleging that Petitioner had engaged in unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, and violated the terms of the Final Order in Case No. 1998-00739, in violation of Section 456.072(1)(q), Florida Statutes. On October 28, 2003, the Board of Nursing entered a Final Order with respect to Case No. 2001-12091. The Final Order reprimanded Petitioner; suspended Petitioner's license for a period of three years; required him to undergo an evaluation coordinated by PRN; and imposed a $1,000.00 administrative fine. Specifically, the Final Order provided: The license of Hubert H. Herring is hereby reprimanded. The licensee, Hubert H. Herring, is suspended for three (3) years and thereafter until she/he personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing. That demonstration shall include at least an in-depth psychological evaluation coordinated through the Intervention Project for Nurses, with an MMPI or other appropriate testing from a psychiatrist, psychologist, or other licensed mental health counselor experienced in the treatment of addiction. The licensee shall supply a copy of this Order to the evaluator. The evaluation must contain evidence that the evaluator knows of the reason for referral. The evaluator must specifically advise this Board that the licensee is presently able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained. The licensee must also submit prior to appearance before the Board a reentry plan, proof of continued treatment and counseling if recommended in the psychological evaluation, and demonstration of two years of documented continuous drug free/alcohol free living. The Board reserves the right to impose reasonable conditions of reinstatement at the time the licensee appears before the Board to demonstrate her/his present ability to engage in the safe practice of nursing. Petitioner appealed the Final Order and on January 28, 2005, the First District Court of Appeal affirmed the Final Order in Case No. 1D03-5084. The mandate of the district court issued February 15, 2005. See Herring v. Department of Health, 891 So. 2d 1167 (Fla. 1st DCA 2005). No stay of the penalty was sought during the pendency of the appeal. On November 18, 2004, the Department of Health filed an Administrative Complaint against Petitioner in Case No. 2004- 01520, alleging a violation of the Final Order in Case No. 2001- 12901. On or about June 29, 2005, the Board of Nursing filed a Final Order in Case No. 2004-01520, revoking Petitioner's license. Petitioner appealed this Final Order. The Department of Health requested the First District Court of Appeal to relinquish jurisdiction to the Board of Nursing because the penalty of revocation was outside the Board's disciplinary guidelines. The Court granted the Motion to Relinquish Jurisdiction and on January 10, 2006, the Board vacated the Final Order revoking Petitioner's license. On that same day, the Board issued a new Final Order in Case No. 2004- 01520, that reprimanded Petitioner's license; fined him $250 and imposed investigative costs of $1,592.21; and suspended Petitioner's license until he made payment of the fine and costs of the most recent Final Order and "demonstrates compliance with each and every term of the Final Order in Case No. 2001-12091 filed on October 28, 2003." On February 20, 2006, the First District Court of Appeal dismissed the appeal as moot in light of the vacation of the Final Order being appealed. Petitioner has not been authorized to practice nursing in the State of Florida since October 28, 2003, some four and a half years ago. No evidence was presented at hearing to show whether Petitioner has attended continuing education courses during this time or taken any steps to keep his nursing skills and knowledge up to date. Petitioner submitted the deposition of Dr. Bernard, a physician with whom he worked prior to the suspension of his license. He also presented the testimony of Karen Clark, the staffing coordinator at Tandem Rehabilitation Center. Ms. Clark served in that capacity from December 2002 through August 2004, and knew Mr. Herring during her employment there. According to her testimony, Mr. Herring was a nursing supervisor and was still employed at Tandem when she left in August 2004. She considered him a good, "team player" employee.1/ No testimony was presented, however, regarding his current ability to practice with reasonable skill and safety. Mr. Herring petitioned the Board for reinstatement of his license. His re-entry plan "is simple, to go back to work and provide for my family." He submitted information showing he had paid his fines, renewed his license, and sought evaluation from IPN providers. He stated, however, that he could not and would not be involved with IPN, both because of cost and what he considered to be "extreme prejudice" to him. Two evaluations from IPN providers were presented to the Board of Nursing. The first, prepared by Dr. Selah of the Center for Medicine and Psychiatry, Inc., indicates that in Dr. Selah's view, Petitioner was not safe to practice nursing with reasonable skill and safety. The second, prepared by Dr. Judy Rivenbark, stated that Petitioner would be safe to practice nursing only if he obtained therapy, entered into and complied with an IPN contract and demonstrated that he was current and up to date on his nursing skills. Although considered by the Board of Nursing, no testimony was presented at hearing from either professional. The Board considered his request and on December 27, 2006, entered an Order on Petition for Reinstatement denying his request.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request for reinstatement of his nursing license. DONE AND ENTERED this 22nd day of April, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of April, 2008.
Findings Of Fact At all times relevant to the issues, Respondent was licensed as a registered nurse in the State of Florida under license number 1262382 and was employed as a registered nurse at University Hospital of Jacksonville, Jacksonville, Florida. On the late afternoon or early evening of March 14, 1984, a female patient was brought into the emergency room at University Hospital suffering from an overdose of asthma medicine for which the prescribed treatment was dialysis to cleanse the blood of the drug. When the hospital personnel had determined that adequate dialysis had been accomplished the patient was removed from the dialysis machine. A patient is affixed to a dialysis machine through the insertion of tubes into a vein and artery which facilitates the removal and replacement of the blood being cleansed. When the catheters are removed, it is necessary that pressure be applied to the place of insertion for a period of time to allow clotting sufficient to stop bleeding from the vein or artery. Generally, the pressure is administered by a nurse physically applying pressure to the immediate area. This patient did not respond properly, however. As a result, Dr. Mendez-Vigo was called to examine her. He determined that because of her blood loss, a transfusion was appropriate, which he ordered, and then left the treatment area. Approximately ten minutes later, he was called again and advised that the patient's blood pressure was dropping and that the dialysis nurse, the nurse that was attending the patient at the time, needed him. Dr. Mendez-Vigo advised the nurse to start a saline solution and indicated he would come to the dialysis unit, where the patient was being treated, as soon as possible. The dialysis of this patient was accomplished in the dialysis room which is located contiguous to and immediately off the cardiac intensive care unit (ICU) in the hospital. Ordinarily, the dialysis room, which opens onto the ICU is not manned. It is however, generally fully equipped with its own supplies and equipment and when this patient was placed on the dialysis machine, she was moved to this dialysis unit and tended by a nurse, Ms. Domingo, whose sole job was in the dialysis unit. Ms. Domingo was called to come in from off-duty to attend to the patient in question and arrived at the dialysis unit at approximately 5:15 p.m. When she arrived, she found the patient stable, and the only treatment required at the time was pressure to the groin area as described above to promote clotting until the bleeding stopped. After Dr. Mendez-Vigo started the transfusion and left, as described above, the patient became restless and started sweating, which prompted Ms. Domingo to stop the flow of blood. This took place at approximately 6:00 p.m. Once she stopped the inflow of blood, she wanted to remove the needle through which the blood was being inserted, but because she was unable to remove the pressure from the patient's groin area and because she was alone in the dialysis unit, she called for help from those nurses assigned to the ICU. At first, no one responded, but shortly thereafter, after a second call for assistance, Nurse O'Brien did come in. Ms. O'Brien was, at the time, one of several nurses assigned to duty on the ICU and had worked there just a few days. She and Respondent, the nurse in charge of the unit, were the only two registered nurses on duty, along with several licensed practical nurses (LPN's). However, at the time in question, Respondent was off the unit at dinner and Ms. O'Brien is not sure where the LPN's were. When she heard the dialysis nurse call for help, she went into that room and saw the situation. Ms. Domingo told her that the patient looked to be in shock - sweating, with a high pulse rate, very low blood pressure, and in a semi-conscious state. At this point, Ms. O'Brien immediately opened up the IV point to put in a saline solution, then went outside the dialysis room to get equipment to start another intravenous line (IV), and to page Dr. Mendez-Vigo. When she brought back the equipment she needed and tried to start the second IV, she experienced difficulty because of the patient's low blood pressure. At this point, she asked another nurse from the ICU to speed the doctor up. At this time, in her opinion, the patient was extremely unstable and near critical. It was then that Ms. O'Brien first saw the Respondent. She told him she was going into the dialysis unit to help out. Respondent did not follow, but instead went to the nurse's station on the ICU from which he could see the door to the dialysis room and called to Ms. O'Brien telling her she was not to go into the dialysis unit since it was a separately staffed unit. Ms. O'Brien responded to the effect that while this might be the case, the patient was sick and needed help and she was going to give it. In response, Respondent told her several times that she was not to be in the dialysis room. Ms. O'Brien finally told Respondent that she was going to do what she had to do regardless of what he- said. She further contends that when Dr. Mendez-Vigo finally returned her call, Respondent took the call and spoke with the doctor but refused to tell Ms. O'Brien what the doctor said until she came out of the dialysis room to talk to him. To do so, she had to leave the patient with whom she was working to go to the nurse's station and get the message from the doctor which had been given to Respondent. When Dr. Mendez-Vigo arrived at the dialysis unit, he saw the Respondent and two other nurses in the ICU area. He went into the dialysis unit and observed the dialysis nurse still applying pressure to the artery and one other nurse, subsequently identified as O'Brien. At this point, Respondent and the other nurses in the ICU were standing around in that unit not assisting in the dialysis area. When he arrived, Dr. Mendez-Vigo found the patient to be nearly unconscious with a high pulse rate and low blood pressure. He suspected a transfusion reaction and because of that, started action to counteract that situation. Because both nurses in the dialysis room were totally occupied by the patient, he needed help to get other things ready for treating the patient. For example, he needed to get additional equipment, additional IV lines had to be prepared; and solutions had to be mixed. Both Ms. Domingo and Ms. O'Brien seemed to him to be upset because it appeared Respondent had attempted to keep the other ICU nurses from helping in the dialysis room when they were needed because the patient was not an ICU patient. During the initial telephone conversation between Dr. Mendez-Vigo and Respondent, the doctor requested Respondent to secure certain supplies. When the doctor got to the dialysis unit and saw the condition of the patient, he took a blood sample, which he asked Respondent to take to the lab for identification for transfusions. Respondent failed to respond to any of the doctor's requests. Another resident, Dr. Curran, was called into the dialysis from by Dr. Mendez-Vigo when she came to the ICU that same evening. On at least one occasion, after she started to work on this particular patient, she walked out to the nursing station of the ICU and asked Respondent for help. At that point he refused, stating that he was busy and responsible for all the other patients and could not leave. As a result, Dr. Curran took the blood to the lab for what lab work was necessary. When she got back from the lab, she asked Respondent where she could get MAST trousers for the patient and if he would call the emergency room to inquire. Respondent refused to do this, requiring Dr. Curran to do it herself. When she was advised that the operating room might have them and started to place that call, at that point, Respondent did make the call to try to secure what she needed. During the course of his treatment of the patient, Dr. Mendez-Vigo had occasion to attempt to use the cardiac monitor that was a part of the equipment in the dialysis room. It is unclear whether the doctor did not know how to operate the equipment or whether it did not work. In any event, the doctor requested the Respondent to get a portable monitor that was a part of the ICU's equipment. Respondent refused this request initially on the basis that the patient was a dialysis patient rather than an ICU patient, and that his instructions were that ICU equipment could not be used for dialysis patients. Notwithstanding his initial refusal, Respondent ultimately did provide the requested monitor, however. Dr. Mendez-Vigo's recollection of the incident was that the Respondent's total response was that since the patient was not an ICU patient, he could not help out and do what was necessary since he was assigned to ICU, not dialysis. He reportedly stated that he could get into trouble if he did. According to the doctor, however, none of the other patients in the ICU needed immediate attention so that, in his opinion, Respondent or some other member of his staff could have assisted in the treatment of this critically ill patient. What was unknown to Respondent at the time was that the patient had been identified for admission to the ICU, and orders to that effect had been written by Dr. Mendez-Vigo though the formal process of admission had not taken place. As was stated, this information regarding proposed admission had not been communicated to Respondent or the other ICU nurses even though the information was contained on the patient's chart which was with her in the dialysis room during this period of time. If Respondent had gone in to help as requested and looked at the chart, he would have seen this. According to Ms. O'Brien, through all the period of requests for help prior to the arrival of the doctor, and even through the period of requests for assistance and equipment after the arrival of the doctors, Respondent did not come into the dialysis room to see the patient's condition for himself. It was only after Dr. Mendez-Vigo started the neck IV line that the Respondent came into the dialysis room, and when he saw the patient he said something to the effect of, "Oh, I didn't know she was so sick." This was 20 to 25 minutes after the original call for help. Sometime after the incident, Respondent went to Ms. O'Brien and apologized to her for not responding more quickly and for trying to get her out of the dialysis room when he returned from dinner. At that time, he said his resistance was based on the fact that he did not want her to get into trouble. He also told her that if she intended to report the incident, he would just go ahead and submit his resignation because he had been in trouble previously and this would hurt him. Respondent's demands to Ms. O'Brien to come out of the room when she was in assisting Ms. Domingo, prior to the arrival of the doctor, were heard clearly by Ms. Domingo. Ms. Domingo also overheard the doctor ask Respondent to help hook the patient up to the monitor and overheard Respondent's initial refusal. What was most puzzling to Ms. Domingo was that though she had never dealt with Respondent prior to this time, whenever she had asked for help from the ICU nurses previously, she had always gotten it. According to another nurse on the ICU that evening, Ms. Bowers, who was on her break at the time of O'Brien's first confrontation with Respondent, emergency situations requiring help from the ICU personnel were not frequent and this was the first emergency situation she knew of involving Respondent. In this case, she was not aware of any "code" being announced, nor overheard the argument between Respondent and Ms. O'Brien. She had been in the ICU for an hour prior to this time and during that entire period, had received no request from Ms. Domingo for help. She had not previously been asked for assistance and until she became aware of the problem by overhearing the dispute referenced above, she had no idea there was an emergency situation in the dialysis room. Frank B. Bellamy works as a nurse manager at University Hospital for the ICU. As a part of his job, he oversees and evaluates nursing services in the ICU and was doing so at the time of the incident in question. To his knowledge, at that time, there was no written policy on support of the dialysis unit by the ICU. However, the oral instructions given to ICU personnel were that ICU equipment and supplies were not be used in routine cases in the dialysis unit - only in emergency cases. In an emergency case, anything could be used. The job description drafted for registered nurses in University Hospital does not delineate any separation for jobs between ICU and the dialysis unit, but it was generally followed at the time in question that ICU nurses did not help out in the dialysis room in routine situations. However, in an emergency situation, ICU nurses could and should help--out. In Mr. Bellamy's opinion, in the instant case, as the fact situation existed, extra help was needed and the ICU nurses, including Respondent, could have and should have helped out if this assistance could be provided without jeopardizing the patients in the ICU. In such a case, the ICU nurse would have called the nursing supervisor, reported the situation, and requested help. In his opinion, Respondent's conduct in this case was unprofessional misconduct. It was not negligence but willful misconduct in that the Respondent refused to render assistance in an emergency situation and attempted to prevent Ms. O'Brien from doing so as well. Both of these are evidence of willful misconduct. In addition, in an emergency situation, the Respondent's failure to provide the portable monitor in a timely fashion was both unprofessional and unsafe in that the ability of the physician to determine cardiac rhythm is crucial. Nurses are obliged to acknowledge physician's orders and, if considered safe, to follow them. In emergency situations, according to Mr. Bellamy, it is negligence and unprofessional conduct not to provide assistance and equipment to a doctor upon request. Here, in the professional opinion of Mr. Bellamy, the Respondent's failure to provide the requested assistance to the doctor was critical and constituted negligence and unprofessional misconduct. The mere fact that the Respondent delayed responding is negligence because in an emergency situation, as here, time can be and was of the essence. Respondent made much of the need for the charge nurse to oversee the patients on the ICU. In fact, these checks by the charge nurse, the job which Respondent was filling at the time, were done only every 10 or 15 minutes, and assuming that this was necessary and critical on a routine schedule, there was still ample time between the checks for the Respondent to respond to the dialysis unit. Here it is clear that Respondent was asked for help and either refused to give it all, or failed to respond in a timely fashion. It is also clear that Respondent refused to provide equipment and other supplies, even though under the guidelines in place at the time, and which, though oral, had been briefed to the ICU nurses, this situation was one where he could have properly done so. With regard to Respondent's contention that he had been told that he was not to go into the dialysis unit to help, Ms. Kamienski, the Director of Nursing who helped to interview Respondent when he was hired, advised him that the dialysis section was responsible for routine care but that it was placed where it was, contiguous to the ICU, so that ICU nurses could help out in an emergency. She categorically denies ever telling Respondent that dialysis was to get no help, nor that he was never to go in there. As Director of Nursing, Ms. Kamienski received the complaint about the Respondent in the incident in question, and on the basis of the complaint did some investigation. She determined from her interview of the physicians and nurses involved, that the allegations were true and Respondent's conduct was inappropriate. In her opinion, any registered nurse who has the knowledge and skills (and, as here, the resources) to render aid and assistance in a need situation, who does do so and who, as here, attempts to hinder aid, is guilty of negligence and should not practice nursing in the State of Florida. Ms. Kamienski is satisfied that Respondent used poor judgment in this assistance. He should have either helped out himself or assigned someone on the unit to assist and he did neither. Also, he could have contacted the house supervisor to get help either for his unit or for the dialysis unit and failed to do that. In her opinion, his conduct was unprofessional and insubordinate. He had the responsibility to help out in a life threatening situation and failed to do so. Admittedly, the dialysis unit had been requested to use its own equipment and supplies, but in a life threatening situation, they were to get anything they needed. This is now, and was the policy at University Hospital, and to the knowledge of Ms. Kamienski, a similar policy is found in almost any hospital. It is a general standard of practice in nursing to use whatever is needed from wherever located in an emergency situation. Here, Respondent's delaying tactics in making the telephone calls at the request of physicians, was unprofessional conduct because of the life threatening situation. Death to the patient could be imminent in a situation such as this, and Respondent had a duty to respond in a timely fashion. Respondent also makes much of the fact that none of the other nurses in the ICU offered assistance and that nothing was done to them. The fact is that none of the other nurses were asked for help, nor were they asked for supplies and equipment by physicians, nor did they interfere to tell Ms. O'Brien to come out. As to the monitor, Ms. Kamienski feels that while admittedly it is not Respondent's responsibility to ensure that the dialysis monitor was working, under the circumstances of this incident, when he was asked for a portable monitor in an emergency situation, he should have provided it and not argued about whether the dialysis monitor was working or not. In the opinion of Ms. Cayer, a professor of nursing at Jacksonville University, a registered nurse should respond to an emergency and provide whatever assistance is necessary in the situation in the geographical area of the nurse, even if the patient is not the nurse's patient. Having had an opportunity to review the extensive documentation which outlines the situation here and what Respondent did and failed to do, and which fairly reflects the facts in evidence, she concluded that the patient here was unstable and rapidly declining; this was very near or actually was a severe emergency, and there was a need for help. Ms. Cayer was made aware of a hypothetical situation which very closely parallels the factual situation in this case. Based on this hypothetical situation, she concludes that the Respondent in that case was negligent because: (1) when the nurse in question arrived on the scene, he should have gone into the dialysis unit, assessed the situation, and made staffing changes to help out and meet the situation, all of which he failed to do (he needed to gain the knowledge of what the needs were and to take action to meet those needs); (2) he improperly attempted to get the nurse (Ms. O'Brien) to come out of the dialysis room without assessing the situation and its needs (by the time he knew that the blood pressure was low and communicated this information to Dr. Mendez-Vigo, he surely must have known there was a problem); (3) while it would not have been proper for him to leave the floor to go to the blood bank himself, it was unprofessional of him not to arrange for someone else to go in light of the fact that he could have done so; (4) as to the monitor situation, he should have followed up on the request for an additional monitor to see why the request was made (If he had done so, it would have shown that the monitor was not working and he would have provided a replacement sooner. His failure to follow up on the request and his rejection of it without further inquiry was unprofessional); (5) his failure to communicate effectively in all these respects hindered the staff in their treatment of the patient and was unprofessional conduct. Much the same approach is taken by Dr. Eileen K. Austin, also an expert in the field of nursing, who indicated that nursing education generally teaches that first and foremost the interest of the patient takes precedence over policies and regulations which may be ignored if necessary. Also, the nurse must assess the situation and either provide the needed service or get someone else who can provide it. Emergency procedures care is taught as a part of several courses in nursing education. Nurses are also taught generally that if the need is there, the nurse acts regardless of where the patient is assigned and once in the picture, retains treatment status until relieved. As to the response to physicians, nurses are taught they are to respond promptly unless they suspect it is an improper order which would endanger the patient. Nursing assessment includes observing the patient for signs and condition, to take vital signs, to ensure there is an airway for breathing, and once having made an assessment, either provide or secure help. These basic concepts are universal to nursing training. The course title may vary among nursing schools and among nursing programs, but the subject matter is basically the same and these subjects are, in substance, on the nursing licensing examination. The primary difference between the two-year associate of arts program in nursing and the four-year bachelor program is in the other primarily non-nursing, non-scientific curriculum. Basic nursing material is the same in both. The requirements for the registered nursing license requires certain basic information be taught, and it does not matter through which program these requirements are met. Respondent's reputation is good among the people with whom he currently works. For example, Respondent has worked for JoAnn Hahn at Methodist Hospital as a staff nurse for one year and she has observed his work in both routine and emergency situations in the accomplishment of his duties which are equivalent to being the charge nurse on a particular shift. She finds Respondent to have a very good knowledge of critical care situations and to her knowledge, he has never mis-diagnosed a case. He anticipates medications correctly and has them ready, and he also knows what lines are needed and has them ready. In critical care his performance is above the standards she has observed in other hospitals. In responding to requests from supervisors or doctors, if he agrees with the request, he speaks out, somewhat abruptly sometimes, but this is what she wants her nurses to do. Above all, however, Respondent never lets the patient down, and Ms. Hahn has no reservations whatsoever about his training, ability or performance. When he is on duty, she feels quite safe. Ms. Hahn is aware of the incident in question here, having reviewed the statements regarding it and her knowledge is consistent with the facts in evidence. She has also reviewed the hypothetical situation and based on this, she feels that Respondent's actions in question were not a violation of the Nursing Practices Act. In Ms. Hahn's opinion, Respondent was not incorrect in calling Ms. O'Brien out of the dialysis room because the ICU was, in her opinion, under-manned in light of the serious condition of the patients on the floor, and Respondent did not have a report on the condition of the patient in the dialysis room. As to the monitor situation, she feels the patient should not have been put on the dialysis machine in this case without being put on a monitor as well from the very beginning. Also, the needed IV lines should have already been started prior to the dialysis in case of need. As to Dr. Mendez-Vigo's telephone request to the Respondent to start an IV line, since Ms. O'Brien was already trying to get it started and Respondent could see this, it was not necessary for him to go in and attempt the same thing. The fact that Ms. O'Brien could not accomplish the start and it was necessary for the doctor to start a sub-clavian line is immaterial since a registered nurse would not do that procedure anyway. In short, in light of the condition of the patients on the ICU, Ms. Hahn feels Respondent could not have properly left the unit. He also could not have gotten the blood because he did not have the patient's proper plates or bands as required by the lab. As for the portable monitor, he could have asked why they did not use the monitor they had, but, Ms. Hahn feels the delay based on his understanding of the monitor being in there was "just common sense." Cathy Carvery has known Respondent from the time she hired him at University Hospital. She observed him in his work there in the handling of patients and feels that his competence, training, and other skills are very good. He handled crisis situations very well and knew what he was doing. She, too, has reviewed all the background information on the situation and is familiar with the dialysis room and equipment at University Hospital. In light of the staffing in the ICU at the time, in her opinion, it was not at all improper for the Respondent to have refused to send any more of his staff to the dialysis room. Also, in her opinion, though he could have tried to get the blood as requested, he would not have been able to do so without more information on the patient, which was not available to him. In addition, even if he had tried to insert the IV line as requested by the doctor, the likelihood is great he would not have been able to get it started. What is overlooked by both Ms. Hahn and Ms. Carvery in their exulpatory comments regarding Respondent's failure to assist, failure to go for blood, and failure to attempt to start the IV line as requested, is that though what they say may well be true and that Respondent could not have accomplished anything, the fact is he did not even try. With regard to assisting or providing more help, a telephone call to the supervisor of nursing would have resolved that situation without either he or any more of his people being required. Though he called Ms. Lee, he did so to report what he considered to be Ms. O'Brien's improprieties and at no time requested any help. Though he most likely could not have accomplished getting the blood as requested because of the lack of plates, the fact is that though asked to do so, he did not even try and the same is true with regard to the IV line. It does not matter that the sub-clavian insertion was done by the doctor. Respondent was not asked to insert a sub-clavian catheter. He was asked to attempt an intravenous line and did not even try. It is impossible to say what he would have done if he had attempted to assess the situation and find out what the condition of the patient was as he should have done. He did not, and it this particular especially, he was deficient. With regard to the incident in question, when Respondent came back from dinner he was told by one of the LPN's on staff that Ms. O'Brien was in the dialysis room because a patient was bleeding from an arterial line. In his experience, this was not too serious and in light of the fact that Ms. O'Brien was off the ward, one nurse was out to dinner, another was on duty, and he did not know here the fourth was, he was miffed. As a result of this, he called Ms. O'Brien out of the dialysis room to talk to her and she did not respond to his request. This made him angry. He did not have any responsibility for dialysis patients and his understanding of support to be furnished to the dialysis unit was that he was not to take any equipment in there. In light of his previous chastisement for doing so, he was upset. Though he denies refusing to convey Dr. Mendez-Vigo's message to Ms. O'Brien unless she came out of the dialysis room to get it, it is clear that in light of his admittedly poor frame of mind at the time, he did just that. He also admits to first suggesting, when requested to get another monitor, that they use the one in the dialysis room. Nonetheless, he says he went and got the portable within just a few minutes and hooked the patient up to it. Since Dr. Mendez-Vigo did not ask for any further assistance or give him any additional orders thereafter, he went back to work. When Dr. Curran asked him for the blood from the lab, he asked for a charge plate and was told it was in the dialysis room. He found, however, that the patient had not been admitted and did not have a charge plate, and he would therefore be unable to get the blood requested. He then started the admission process because he felt that when that was accomplished, within a 30-minute period or so, he could then get the blood as requested. As for the MAST trousers, when asked by Dr. Curran to get them, he, because of other duties, could not respond immediately, but did so several minutes later, at which time the request was refused. Dr. Curran, parenthetically, also was refused when she requested the trousers. When, as stated before, Respondent called Ms. Lee, the 3:00 p.m. to 11:00 p.m. supervisor, to report Ms. O'Brien, he was told to let her stay there. No request for assistance, equipment or supplies was made. On the basis of the investigation by Ms. Kamienski and after consultation with Mr. Bellamy, a recommendation of termination was prepared and delivered to the Respondent. In accordance with the procedures that were in effect at the time, he requested a hearing and one was afforded him. Respondent contends that the hearing was a farce and he was not given the opportunity to confront any of the witnesses or evidence against him. After the hearing was over, he was offered the opportunity to resign in lieu of termination and did so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED, that Respondent's license as a registered nurse in the State of Florida be suspended for one year and that upon completion of the period of suspension, he be reinstated and placed on probation for a period of three years under such terms and conditions as prescribed by the Board of Nursing. RECOMMENDED in Tallahassee, Florida this 27th day of September, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 L. Haldane Taylor, Esq. 331 East Union Street Jacksonville, Florida 32202 Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner has been registered with respondent as a licensed practical nurse since September 25, 1951. She worked as a licensed practical nurse until 1972, which was the last year she paid any annual renewal fee. She assumed that her license was in an inactive status after 1972, although she never made a written request that it be placed on the inactive list. She was unaware of any requirement to pay annual renewal fees after 1972. Petitioner applied for reinstatement of her license in February of 1979. Respondent denied this application on the ground that petitioner "did not complete a program approved by the Board for the preparation of Licensed Practical Nurse." Petitioner's exhibit No. 1. Petitioner has completed an approved 4-year high school course of study. Petitioner's exhibit No. 2. In addition, petitioner has, since early February of 1979, completed 46 1/2 hours of continuing education in a wide range of nursing subjects. Petitioner's exhibit No. 3. Petitioner enjoys the confidence of physicians in her community, one of whom described her as "industrious, conscientious and reliable." Petitioner's exhibit No. 2.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's request for re-registration as a licensed practical nurse. DONE AND ENTERED this 14th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Cecil G. Costin, Jr., Esquire 413 Williams Avenue Port St. Joe, Florida 32456 Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202
The Issue Whether Mary Frances Bland Orfanakos had obtained prescription drugs by presenting a forged prescription, and whether said conduct is a violation of Section 464.21(1)(b), Florida Statutes, as unprofessional conduct.
Findings Of Fact Mary Frances Bland Smith Orfanakos is a Registered Nurse holding License Number 82216-2 issued by the Florida State Board of Nursing. The Parties stipulated to the facts alleged in paragraphs 1, 2 and 3 of the Administrative Complaint. The Respondent specifically denied the allegations contained in paragraphs 4 and 6 of said Administrative Complaint. The Petitioner withdrew the allegations of paragraph 5 of the Administrative Complaint. The Respondent met William Orfanakos in Dallas, Texas prior to October 1975. In October 1975 the Respondent returned from Dallas, where she was employed as a Registered Nurse at Methodist Hospital, to Pensacola, Florida where she assisted in taking care of her father who is terminally ill. On November 21, 1975, she married William Orfanakos in Pensacola, Florida. Shortly after their marriage, she became aware that her husband was a user of Talwin, a drug restricted to use by prescription only. After their marriage, William Orfanakos repeatedly requested the Respondent to obtain blank prescription forms for him. Giving in to his continued requests, the Respondent obtained two blank prescription forms which she subsequently presented to A & E Drugs to be filled, knowing that they were forged. The first of these was presented on February 27, 1976 and the second on March 12, 1976. Mary Orfanakos is a white female in her late twenties. She was first married at age sixteen (16) and, having had a child, worked her way through nursing school. She received her initial nursing training at Springhill College and Providence Hospital in Mobile, Alabama. She graduated in 1973 and was employed at Providence Hospital for one and a half years in delivery and OBGYN before moving to Dallas, Texas. There she worked at Methodist Hospital in cardiac care unit until returning to Pensacola to tend her sick father. She worked at Baptist Hospital in Pensacola, Florida from January 1976 until June 1976. Her work was judged by her supervisors, co-workers and physicians as good. She returned to Texas in June 1976 and is currently employed by United Biologies Houston, Texas. The Respondent acknowledged her acts and is very remorseful over having committed them. After returning to Texas in June 1976 she separated from her husband, William, because of the conflicting obligations which felt to her profession and to her estranged husband, who had urged her to obtain drugs for him. Although the Respondent would like to reconcile her relationship with her husband, she is afraid and remorseful over that relationship with him which caused her to act in a manner which she very apparently views as dishonorable, degrading and unprofessional even though her husband has been successfully treated for his drug-use problem. The Respondent is a knowledgeable, well-trained nurse with considerable professional experience for her years. She resolved to become a nurse while in high school and overcame the problems of a youthful marriage and caring for a young child to obtain her nursing training. The depth of Respondent's character and its generally good quality are apparent in her having overcome many difficulties to obtain her nursing training and her understanding of the nature of her acts and feeling of remorse which she has over them.
Recommendation The Hearing Officer finds that the Respondent, while having violated the standards of her profession, did so at the continued insistence of her husband who she had recently married. But for the close, constant, and personal influence of her husband, the Respondent would not have violated her responsibilities as a Registered Nurse. Although the Respondent did and still does have a great deal of affection for her husband, the remorse which she feels for her actions and her fear of that relationship which caused her to act in a manner which she views as dishonorable and degrading have resulted in her separation from him. Based on the foregoing, the Hearing Officer would recommend that the Florida State Board of Nursing not revoke or suspend the license of Respondent but place her on probation for the maximum period allowed by law under such conditions as the Board, upon review of the record, deems appropriate. DONE and ORDERED this 6th 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 1130 American Heritage Building Jacksonville, Florida Artis L. McGraw, Esquire 26 East Garden Street Pensacola, Florida 32501 Geraldine Johnson, R.N. State Board of Nursing Suite 201 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The issue is whether Respondent may rescind its approval of Petitioner's program to operate a practical-nurse education program.
Findings Of Fact For the past 13 years, Petitioner has operated an unaccredited education program for persons seeking licensure as practical nurses. During this period, Beverly Pryce has been the Program Director. Ms. Pryce is a registered nurse in Florida and has 27 years of clinical experience comprising 10 years as a licensed practical nurse and 17 years as a registered nurse. For the 2002-03 and 2003-04 school years, Petitioner has admitted 24 students annually from a pool of 35-40 applicants. Nineteen students graduated from the 2002-03 class, and 22 students graduated from the following year's class. In both years, Petitioner retained four faculty members--two full time and two part time. In both years, Petitioner had one faculty position vacant. In February 2003, Petitioner relocated its operations from a building in Hallandale to a building in Hollywood. Petitioner made this move without prior notification to, or consent from, Respondent. Ms. Pryce testified that, subsequent to the move, Petitioner communicated to Respondent, using Petitioner's new address, about several items, such as the names of upcoming graduates. These contacts do not represent a formal notification of a change of address, and Ms. Pryce conceded that she had not known of any requirement of notice prior to making such a move. Petitioner's formal notification of the change of address took place over one year after it had relocated its operations. The omission of prior notice denied Respondent the opportunity to inspect the proposed new facility, including classrooms, laboratories, computers, and library resources, to ensure that it met all applicable requirements for a school educating persons seeking licensure as licensed practice nurses. By letter dated May 10, 2004, Respondent advised Petitioner that the failure to notify Respondent of the change of address violated "64B-9." The notification issue arose when Respondent mailed a letter to Petitioner warning that its license would expire on June 30, 2004, and requesting a Program Evaluation Report by September 2, 2004. The postal service returned the letter as undeliverable because it was addressed to Petitioner's former address. After obtaining the new address, Respondent re-mailed the letter, on June 16, 2004, again requesting a Program Evaluation Report by September 2. Petitioner failed to provide Respondent with a Program Evaluation Report by the deadline set forth in the June 16 letter from Respondent. Thus, on September 21, 2004, Respondent sent another letter, advising Petitioner that Respondent would review Petitioner's approval status at its meeting on October 14, 2004. This letter notes that Respondent had not received any response to the request for a Program Evaluation Report, and Respondent would not accept additional documents for consideration at its October 14 meeting. Ms. Pryce claims that hurricane season and her unfamiliarity with computers delayed the timely delivery of the Program Evaluation Report, but these claims do not justify the length of time, past the deadline, before Ms. Pryce filed the report. Based on its consideration of the matter at the October meeting, Respondent issued, on November 2, 2004, an Order determining that Petitioner was not in compliance with Board rules due to the above-described relocation and failure to file a Program Evaluation Report. The Order notes that Petitioner's approval has expired and is not renewed until Petitioner timely files a Program Evaluation Report, undergoes a site visit by the Executive Director of the Board, and appears at the Board's December 2, 2004, meeting. Until then, the Order prohibits Respondent from admitting additional students, although it may continue to educate existing students, who will be eligible to take the licensure examination, upon graduation. The November 2 Order memorializes the decision of the Board--and agreed to by Ms. Pryce--to extend the deadline for filing the Program Evaluation Report to November 1, 2004. The Order requires the Program Evaluation Report to demonstrate compliance with Florida Administrative Code Rules 64B9-2.002(2) and (6) and Petitioner to demonstrate compliance with Florida Administrative Code Rule 64B9-2.015, during the site visit. On November 12, 2004--11 days after the extended deadline to which she had agreed--Ms. Pryce filed the Program Evaluation Report. Two days later, Respondent's Executive Director conducted a site visit. On his site visit, the Executive Director found that the passing rate of Petitioner's students, on the practice nursing licensure exam, for the 2002-03 school year was 63.2 percent, while the national and Florida averages were 86.5 percent, and the passing rate of Petitioner's students for the 2003-04 school year was 59.1 percent, while the national average was 88.7 percent and the Florida average was 83.6 percent. Since at least 1997, the passing rate of Petitioner's students has been at least 10 percent below the national average passing rate. The Executive Director also issued a report, dated November 17, 2004, setting forth various recommendations to the Board for consideration to improve the quality of Petitioner's program. At Ms. Pryce's request, the Board continued consideration of Petitioner's case from the December meeting to the February meeting. The December 7, 2004, letter continuing the matter also warns Petitioner to provide to Respondent any additional materials that Petitioner wants the Board to consider prior to January 3, 2005. At the February, 10, 2005, meeting, the Board asked Ms. Pryce if she had yet obtained a consultant's report with specific recommendations to improve the quality of Petitioner's nurse-education program. Ms. Pryce responded that she had a consultant in mind, but had not retained anyone yet. On February 16, 2005, Respondent issued a second Order. The Order outlines the above-stated facts and revokes Petitioner's approval, effective June 30, 2005, but allows currently enrolled students to complete the program by June 30, 2005. On March 6, 2005, a consultant issued a detailed report, recommending that Petitioner raise its admission standards and provide tutoring for students, form an advisory committee for curriculum, and increase faculty involvement and raise faculty standards.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order rescinding Petitioner's approval to operate a nurse-education program. DONE AND ENTERED this 21st day of November, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 21st day of November, 2005. COPIES FURNISHED: Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Mark J. Berkowitz Mark J. Berkowitz, P. A. 524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301 Lee Ann Gustafson Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Findings Of Fact Petitioner, Carolyn A. Keegan, is a licensed Practical nurse in the State of Maine and has been since October 10, 1947, when that State first began licensing nurses. Petitioner attended the Eastern Maine General School of Nursing between September, 1940, and June, 1942, but did not graduate. She has been employed as a nurse since that time. When the State of Maine began licensing nurses in 1947, Petitioner was grandfathered in as a licensed practical nurse without being required to take an examination or graduating from an accredited nursing program. On June 12, 1980, Petitioner applied for licensure as a licensed practical nurse in the State of Florida by endorsement. This application was denied by the Board of Nursing on July 11, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carolyn A. Keegan for licensure as a licensed practical nurse be denied. It is further RECOMMENDED that Petitioner be permitted to take the appropriate examination at the earliest practicable time. DONE and ENTERED this 8th day of January 8, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Carolyn A. Keegan 11839-108th Avenue, North Largo, Florida 33540 Linda A. Lawson, Esquire Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's application for reinstatement of her practical nursing license be DENIED. Done and Entered this 10th day of January, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Paul W. Ferrell, Esquire Legal Aid Society of St. Petersburg, Florida 440 Second Avenue North St. Petersburg, Florida 33701 Mrs. Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.
Recommendation Having considered the foregoing Findings of Fact and 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 entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed. DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Linda Sears Gibson 2003 Southwest Seventh Street Ocala, Florida Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
