The Issue The issue is whether Respondent's license as a practical nurse should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), has alleged that Respondent, Sheila Key, a licensed practical nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a practical nurse at Florida Christian Health Center (FCHC), in Jacksonville, Florida, in the Fall of 1999. Respondent holds license number PN 0792331 issued by the Board. The allegations against Respondent arose as a result of a routine Agency for Health Care Administration (AHCA) licensure survey of the facility on October 1, 1999. On that date, an AHCA survey team found an elderly resident with a head injury whose nursing notes had not been properly charted; a resident in the recreation area with blood on her gown and requiring medical attention; and a third resident with unattended sores on his ankles. All were under the direct care of Respondent. As to the first resident, the Board charged Respondent with failing to document the resident's head injury or condition in her nursing notes. In the second case, she was charged with failing to notify a physician or other responsible party in a timely manner about the injury and applying "steri-strips without a physician's order." Finally, Respondent was charged with failing and refusing "to comply with the surveyors' request" that she "remove [the patient's] socks so the ankle area on his feet could be observed." Each of these charges will be discussed separately below. Around 5:15 p.m. on September 30, 1999, A. B., an eighty-seven-year-old male resident at FCHC, acidentally fell and sustained an injury to his head that required emergency room treatment. A. B. returned to FCHC from the emergency room sometime after 9:00 p.m. Respondent reported for duty at 7:00 p.m. that same evening. Although good nursing practice dictated that Respondent promptly perform a neurological check on A. B. after he returned from the hospital, she failed to do so and did not perform one until 7:00 a.m. the next day (October 1). Even then, she failed to document any of her findings in the resident's nursing notes. By failing to document "the fall or his condition" in the nursing notes until the morning following the injury, Respondent failed to conform to the minimal standards of acceptable prevailing nursing practice. Around 7:40 a.m. on October 1, 1999, M. C. suffered a laceration on her neck while being transferred from her bed to a wheelchair. Respondent applied steri-strips to the wound, but she did not have a physician's order to do so. Also, she failed to document the neck wound or her treatment of the wound until 10:45 a.m., or more than three hours later. Finally, M. C.'s physician was not notified about the injury until around 12:15 p.m. FCHC has a written policy entitled "Changes in a Resident's Condition Status," which requires that the nurse promptly notify the resident, the resident's physician, and the resident's family of changes in the resident's condition. Thus, a nurse must notify the resident's attending physician and family whenever the resident is involved in any accident or incident that results in an injury. If the injury is of an emergency nature, such notification is required within thirty minutes to an hour. The evidence establishes that M. C.'s injury was of a type that required notification within this short time period. By waiting for almost five hours to notify M. C.'s physician about the injury, Respondent failed to conform with minimally acceptable nursing practices. She also violated the same standard by applying steri-strips to the injury without a doctor's order. Finally, she failed to conform to minimally acceptable nursing practices by not charting the injury in the nursing notes until more than three hours had elapsed. During the October 1, 1999, inspection, a member of the survey team asked Respondent to remove the socks and dressings on J. R., a resident. The request was made since the team could see a brown discharge on the inner aspects of his socks. Respondent would not do so, and eventually an assistant director of nursing performed that task. After the socks were removed, the survey team found old dressings through which drainage had soaked. They also observed sores that had thick yellow or serosanguinous drainage. Even though the sores had been there for at least a week or so, dressings had been previously applied, and the soaked socks were clearly visible, Respondent had failed to check the resident and was therefore unaware of his condition. Despite this omission, however, Respondent was only charged with failing and refusing "to comply with the surveyors' request," and not with inappropriate conduct with respect to the care of the resident. By failing to respond to a reasonable and legitimate request to remove the resident's socks so that a suspicious area could be observed, Respondent failed to conform to minimally acceptable standards of prevailing nursing practice. Respondent failed to admit responsibility for any of the foregoing violations. As to the resident with the neck wound, Respondent contended that the wound was not serious. However, it was serious enough that the resident's physician believed emergency room treatment was necessary. Respondent also contended that the assistant director of nursing (Widhalm) advised her that she (Widhalm) would call M. C.'s physician, an assertion which Widhalm credibly denied. Respondent further contended that she failed to chart A. B.'s nursing notes because the chart was in the hands of the surveyors. Under those circumstances, however, acceptable protocol requires that the nurse request the return of the notes so that essential information can be timely recorded. Finally, Respondent contended that the surveyor had told her that she could finish her "medication pass" before removing the socks and could do so whenever she had time. This assertion is not deemed to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Respondent is guilty of the violations described in the Administrative Complaint. It is further recommended that Respondent be fined $1,000.00, given a reprimand, and placed on probation for two years subject to such conditions as the Board deems appropriate. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of November, 2000. COPIES FURNISHED: Ruth R. Stiehl, PhD., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Diane K. Kiesling, Esquire Agency for Health Care Administration Building 3, Room 3231A 2727 Mahan Drive Tallahassee, Florida 32308 Sheila Key 3651 Dignan Street Jacksonville, Florida 32254 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on July 28, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 0031639 on October 26, 1977. Respondent is board certified in general surgery and has worked and trained as a general and vascular surgeon. Respondent has practiced medicine in Tampa since 1988. Respondent offered testimony establishing that his peers respect his ability as a surgeon. Until 1996, Respondent had not been the subject of disciplinary action by the Board of Medicine or by any other licensing entity. On January 26, 1996, the Board of Medicine issued a final order in Division of Administrative Hearings Case No. 95-3925, imposing discipline on Respondent’s license to practice medicine. Case No. 95-3925 involved two separate incidents in which Respondent performed surgical procedures that had not been specifically consented to by the patients. In the first incident, Respondent removed the severely diseased left leg of the patient when the signed consent to surgery was for removal of the right leg. The patient was well known to Respondent, and it was understood between Respondent and the patient that both legs would eventually require amputation. In the second incident, Respondent removed a toe that had become dislocated during a debridement of the patient’s foot. The toe was connected only by ligament and necrotic tissue, and Respondent removed it during the debridement procedure rather than waiting to obtain specific consent for its removal. In the final order, the Board of Medicine concluded that Respondent had violated Sections 458.331(1)(p) and (t), Florida Statutes, by failing to obtain proper consent from a patient and by practicing medicine below the standard of care. Based on these conclusions, the Board of Medicine imposed the following relevant disciplinary measures: Respondent’s license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $10,000 to the Board of Medicine, within one year of the date this Final Order is filed. Respondent’s license to practice medicine in the State of Florida is SUSPENDED for a period of 6 months including the time served under the emergency suspension. Respondent shall submit a practice plan prior to reinstatement to be approved by the Board’s probation committee. Within 6 months of the effective date of this Final Order, Respondent shall have an independent, certified risk manager review Respondent’s practice. Specifically, this independent consultant shall review the Respondent’s practice concerning preoperative procedures including patient consent. This consultant will prepare a written report addressing Respondent’s practice. Such report, if necessary, will include suggested improvements of the quality assurance of Respondent’s practice. Respondent will submit this report to the Board’s Probation Committee with documentation that demonstrates compliance with the suggestions enumerated in the consultant’s report. Upon reinstatement, Respondent’s license to practice medicine in the State of Florida shall be placed on PROBATION for a period of two years, subject to the following terms and conditions: Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rules 59R, Florida Administrative Code. Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, quarterly, and at such other times requested by the committee. Respondent shall be noticed by the Board staff of the date, time and place of the Board’s Probation Committee whereat Respondent’s appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of this Probation, and shall subject the Respondent to disciplinary action. * * * 6. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 to be approved by the Board’s Probation Committee.... The responsibilities of a monitoring physician shall include: Submit quarterly reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer’s practice. Brief statement of probationer’s compliance with terms of probation. Brief description of probationer’s relationship with monitoring physician. Detail any problems which may have arisen with probationer. * * * Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probationary terms. Describe relationship with monitoring/supervising physician. Advise Board of any problems. * * * 11. Respondent understands that during this period of probation, semi-annual investigative reports will be compiled by the Agency for Health Care Administration concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. On January 31, 1996, Respondent submitted to the Board of Medicine the practice plan required by the final order. The practice plan named Joseph Diaco, M.D., as Respondent’s monitoring physician, and stated that Dr. Diaco would review twenty percent of Respondent’s patient charts. The practice plan stated that Respondent would comply specifically with all the terms and conditions of the final order, and with the recommendations of the certified risk manager. The practice plan further stated: ... Dr. Sanchez will have specific discussions with his surgical patients prior to any anesthesia being administered, wherein he will discuss the intended surgical procedure again, and will have the intended surgical site marked with indelible ink. The record does not document that the Board of Medicine’s Probation Committee formally approved Respondent’s practice plan, or addressed the terms of the practice plan in any way. Such approval is presumed from the fact that Respondent appeared before the Probation Committee on several occasions subsequent to filing the practice plan, and the record does not indicate that the Probation Committee registered any objection or suggested any modifications to the practice plan. Respondent made the required appearances before the Probation Committee. Respondent and Dr. Diaco submitted the required quarterly reports to the Board of Medicine, and Dr. Diaco fulfilled the monitoring requirements of the practice plan. Periodically during the probation period, Mr. Richard Hess, an investigator with the Agency for Health Care Administration, would contact Respondent and Dr. Diaco to inquire as to Respondent’s practice and compliance with the terms of probation. Mr. Hess would inquire regarding such matters as the submission of quarterly reports, the payment of the administrative fine, and the current locations at which Respondent was practicing. Mr. Hess would submit his reports to the Agency for Health Care Administration and to the Board of Medicine, and these reports were used to supplement the information submitted directly by Respondent and Dr. Diaco. Based upon the information he was provided by Respondent and Dr. Diaco, Mr. Hess never found Respondent out of compliance with the terms of his probation. On the morning of November 2, 1997, an order was entered at Vencor Hospital by the primary treating physician for placement of a central venous line for patient D.M., an 80 year- old female patient. A central venous line is most often placed for access to the circulatory system for the provision of medications and/or fluids when the peripheral venous system is not available for such use. A central venous line may be ordered if the patient has no veins remaining for the insertion of a peripheral catheter, or for extended access, such as when a patient requires a long-term cycle of antibiotics for a bone infection. Patient D.M. required the central line for antibiotics to treat infected ulcerations on her lower extremities. The placement of a central line may be performed by any licensed physician, though surgeons are often called in to perform the procedure for primary physicians. Two physicians who teach at the University of Miami testified that third-year residents are allowed to perform the procedure with only indirect supervision. Dr. Diaco testified that nurse practitioners may perform the procedure under the supervision of a physician. The procedure is performed at the patient’s bedside, not in an operating room. No general anesthesia is required. A local anesthetic is administered at the point of insertion. The entire procedure takes two to three minutes to perform. The central line may be placed in at least three locations in the body: the leg, the neck, or the collarbone. In the case of D.M., Respondent placed the line by way of the collarbone. A needle is inserted under the clavicle and into the vein that unites with the jugular vein to form the second largest vein in the human body, the superior vena cava. Using a guide wire, a catheter is threaded through the subclavian vein and placed inside the superior vena cava. Prior to performance of the procedure, the patient’s head is typically placed lower than her feet in what is called the Trendelenburg position. If the patient has a feeding tube, it is typically turned off prior to the procedure to prevent aspiration of tube material. Proper placement of the central line is confirmed by X- ray taken immediately after the procedure. Such confirmation of placement is necessary due to the risks associated with incorrect placement. The most immediate risk is pneumothorax, the puncturing of the patient’s lung. Other less common complications are blood loss, cardiac arrest, infection, and irregular heartbeat. The consensus of the experts who testified at hearing was that the procedure poses no greater risk of complication for elderly patients such as D.M., but that elderly patients who do suffer complications may have a harder time recovering than would younger, more robust patients. D.M. was an 80 year-old female patient who shared Room 218 at Vencor Hospital with J.P., an 89 year-old female patient. D.M. and J.P. were of the same general age, ethnic origin, and gender. They had similar medical problems, including bilateral lower extremity decubiti and ulcerations. D.M. was able to understand conversation and could verbally communicate with staff. D.M. signed on her own behalf the consent form for the insertion of the central venous line. The signature on the consent form was obtained by and witnessed by Elizabeth Rood, a registered nurse on duty during the day of November 2, 1997. Ms. Rood testified that she believed D.M. was rational enough to sign the form on her own behalf. Vencor Hospital policy dictated that informed consent be obtained from the patient by the surgeon who was to perform the procedure. The nursing employees of Vencor Hospital and Respondent all testified that, despite the stated policy, it was common practice at the time for nurses to obtain the signatures of patients on the consent forms. The express terms of Respondent’s practice plan also required Respondent to have “specific discussions with his surgical patients prior to any anesthesia being administered. ” J.P. suffered from organic brain syndrome and was generally unable to communicate verbally. J.P. was unable to give consent for surgical procedures on her own behalf. Ms. Rood obtained D.M.’s signature on the informed consent form at about 10:00 a.m. Shortly thereafter, hospital staff contacted Respondent to inform him of the order and request that he perform the placement of the central line. Respondent replied that he was unable to perform the procedure at that time because of a more urgent consultation at St. Joseph’s Hospital, but would come to Vencor Hospital later to perform the procedure. Shortly before the start of the nursing night shift, the central line cart with supplies for the procedure was brought by the day supervisor to the second floor of Vencor Hospital and placed outside Room 218. Lisa Cotroneo was the night charge nurse. When she arrived for her shift, she received report from the day charge nurse. That report indicated that D.M. was to receive a central line placement at some time during the evening. The nursing staff at Vencor was divided into teams of two or three nurses assigned to particular rooms on the floor. Team three was responsible for Room 218. At the start of the night shift, Nurse Cotroneo informed two of the three nurse on team three, Donna Maranto and Fortune Ndukwe, that a central line was to be placed on patient D.M. that evening. Nurse Cotroneo did not inform the third nurse, Mary Shogreen, because Nurse Shogreen was a pool nurse called in to work on short notice and had not yet arrived for her shift. Nurse Shogreen was the nurse on team three who was assigned primary care duties for the patients in Room 218. Nurse Shogreen was later informed by Nurse Ndukwe that one of her patients would be receiving a central line placement that evening. Nurse Shogreen testified that she intended to check with the charge nurse to confirm the order for a central line placement, but that she never did so. At around 8:00 p.m., Respondent telephoned the nursing unit to inform the charge nurse that he was on his way to perform the placement of the central line. Nurse Cotroneo conveyed this information to Nurses Maranto and Ndukwe, and told them to be sure everything was ready for Respondent’s arrival. Respondent arrived at Vencor Hospital shortly after 8:00 p.m. and proceeded to the second floor nursing station, where he asked for and received the chart for patient D.M. He reviewed the chart, which contained the signed consent form and the order for placement of the central line. After reviewing the chart, Respondent inquired as to the location of D.M. and the nurse who would assist him in the procedure. Respondent was told that D.M.’s nurse was down the hall. Respondent walked down the hall and approached a group of three or four nurses. Respondent did not know any of them. He informed the group that he was Dr. Sanchez and was there to perform the central line placement. One of the nurses, later identified as Mary Shogreen, told him she was ready for him. She led him down the hall toward Room 218. Respondent paused at the central line cart outside Room 218 to pick up a pair of surgical gloves and the kit used for the central line placement. When Respondent entered the room, he observed Nurse Shogreen already at the bedside. The room was dark, save for a single light over the bed of the patient where Nurse Shogreen was working. Respondent saw that Nurse Shogreen was turning off the feeding tube to the patient, a common precursor to performance of a central line placement. Respondent walked to the other side of the patient’s bed and addressed the patient by the name of D.M. He told her that he was Dr. Sanchez and that her physician had asked him to insert a central venous catheter in her. Respondent looked into the patient’s eyes and realized she was not comprehending what he said. Nurse Shogreen was standing directly across the bed and could hear Respondent’s efforts to talk to the patient, including his addressing that patient as “D.M.” Respondent asked Nurse Shogreen if the patient was “always like this,” i.e., unresponsive. Nurse Shogreen answered that she had never had the patient before, but believed that was the usual condition of the patient. It would not be unusual for an elderly patient such as D.M. to be communicative and able to understand and sign a consent form at 10:00 a.m., but then be uncommunicative in the evening. The medical community informally refers to this phenomenon as "sundown syndrome." Respondent told Nurse Shogreen to assist him in placing the patient in the Trendelenburg position, and to get a rolled towel to place between the patient’s shoulder blades. While Nurse Shogreen was getting the towel, Respondent examined the patient’s neck and chest. Nurse Shogreen returned with the towel, but was unable to adjust the bed into Trendelenburg position. Respondent told her to go get another nurse who knew how to work the bed. She brought in Nurse Ndukwe, who was also unable to get the bed into the proper position. At length, they found a certified nurse assistant who was able to place the bed into position. Neither Nurse Shogreen nor Nurse Ndukwe expressed any concern to Respondent regarding the identity of the patient. Nurse Ndukwe had received an explicit report concerning the fact that patient D.M. was to receive a central line placement. Nurse Shogreen had heard Respondent address the patient as D.M. Respondent completed the procedure, which took about one minute. He proceeded to the nurse’s station and ordered the standard X-ray to confirm the proper placement of the central line, completed the consult form, and dicated both his consultation report and operative report. Nurse Shogreen remained behind in the room to clean up after the procedure. She made notations in the bedside chart of patient J.P., the mistaken recipient of the central line. Even at this point, Nurse Shogreen did not realize that the wrong patient had received the central line. The findings as to events in Room 218 on the evening of November 2, 1997, were based on the testimony of Respondent. Nurse Shogreen testified that it was Respondent who led the way into the room, Respondent who proceeded to the wrong bed, and Respondent who prevented Nurse Shogreen from going out to get the patient’s chart to confirm her mental condition after questioning by Respondent. Nurse Shogreen agreed with Respondent’s version of the problems with getting the bed into proper position, but testified that Respondent was so angry and in such a hurry that he performed the central line placement before the staff was able to place the bed in the proper position. Based on both the substance of the testimony and the demeanor of the witnesses, it is found that Respondent’s version of events is more believable, and that Respondent is a more credible witness than Nurse Shogreen. The undersigned is unable to credit testimony that a physician of Respondent’s skill and experience would plunge ahead into the room and commence a procedure on a patient he had never seen, without doing anything to ascertain her identity. The undersigned finds it more plausible that Respondent followed Nurse Shogreen’s lead, observed the visual cues she was providing, and assumed that the patient to whom Nurse Shogreen attended was in fact patient D.M. Respondent's proffer of testimony regarding inconsistencies in Nurse Mary Shogreen's testimony before the Peer Review Committee was disregarded in formulating these findings of fact. Several physicians offered expert testimony as to whether it is within the standard of practice for a surgeon to rely on his assisting nurse for patient identification. Dr. David Shatz, an associate professor of surgery at the University of Miami, testified that any surgeon must be absolutely sure he is working on the right person. He testified that once Respondent was unable to get a verbal response from the patient, he should have asked the nurse if he was speaking to patient D.M. Dr. Shatz concluded that it is a deviation from the standard of care to perform a procedure on a noncommunicative patient without checking the patient’s identification bracelet. Dr. Stephen Michel agreed that Respondent failed to meet the standard of care by placing the central line in the wrong patient. Dr. Michel’s other conclusions regarding the events in question cannot be credited because he admitted he was assuming that Dr. Sanchez was not permitted by the terms of his probation to be working in Vencor Hospital at all. This assumption was incorrect, and colored the remainder of his conclusions. Dr. Enrique Ginzburg, also an associate professor of surgery at the University of Miami, testified that a surgeon is usually unfamiliar with the patient in a central line placement, and stated that he could not remember the last time he checked an identification bracelet when the nurses were in the room with him. He agreed that it would be easy to check the armband, but that physicians simply do not check the armband if nurses are present to identify the patients. Dr. Jerry Diehr, an anesthesiologist at St. Josephs Hospital in Tampa, testified that a reasonably prudent physician would do what Respondent did. He stated that he relies on nurse identifications in similar circumstances, and that it is common practice for physicians to do so. Dr. Diehr testified that physicians rely on nurses for all manner of patient identification. He noted that care is often dictated by telephone calls. When a nurse calls him and tells him about the condition of his patient, the underlying assumption is that the nurse has correctly identified the patient and adequately reported the condition. Physicians may base their entire course of treatment on such reports from nurses, and must be able to rely on the nurses for such identification and reporting. Dr. Diaco strongly opined that physicians must be able to rely on nurses for patient identification. It is the nurse’s responsibility to identify the correct patient when the physician does not know the patient. Dr. Diaco testified that if physicians cannot rely on nurses for such basic information as the identity of their patients, they may as well live in the hospital and administer their own medications. Peter Shute, an expert in general nursing practice, opined that the three nurses on duty at Vencor Hospital on the evening of November 2, 1997, were negligent in their duty to know the patients on their assigned unit. He testified that Nurse Shogreen was particularly negligent, because she had not received full report on her patients, found out that one of her patients was to receive a central line placement that evening, but did not immediately obtain a full report and take steps to ensure that all preparations had been made. The weight of the evidence is that it was within the standard of care under the conditions and circumstances for Respondent to rely on Nurse Shogreen’s identification of the patient. This finding does not minimize the fact that Respondent bears ultimate responsibility for the performance of an invasive procedure on a patient who did not give informed consent. After Respondent dictated his notes and left the hospital, David Vallejo, the X-ray technician, came to the floor to obtain the X-ray ordered by Respondent. He discovered that the patient who received the central line was J.P., not D.M. Mr. Vallejo went to the nurse’s station and informed Nurse Cotroneo, who called the nursing supervisor to come to the room with her. Nurse Cotroneo and the supervisor confirmed that both patients in Room 218 were wearing their identification bracelets. The nursing supervisor called J.P.’s primary physician, who ordered an X-ray, which confirmed that J.P. suffered no ill effects from the placement of the central line. He also ordered removal of the central line, which was accomplished without incident. Respondent was informed of the error by telephone. He came to Vencor Hospital the next day, November 3, 1997, and documented the error in the medical records of both D.M. and J.P. On that day, a different surgeon performed the central line placement on D.M. All of the expert witnesses agreed that Respondent’s charting and recording of the incident, both before and after he learned of the error, were adequate and indicated no effort to conceal the facts of the situation. The experts also agreed that marking the intended surgical site with indelible ink serves no purpose in a central line placement. Petitioner's own expert, Dr. Shatz, stated that marking the site of a central line placement would be "silly." On November 3, 1997, Vencor Hospital suspended Respondent’s hospital staff privileges pending an investigation of the incident. Respondent immediately contacted Dr. Diaco, his indirect supervisor, as soon as he learned of the error. Respondent fully informed Dr. Diaco of the facts of the situation. Dr. Diaco told Respondent that he did nothing wrong and that “the nurse is in big trouble.” Respondent also sought the counsel of his attorney, Michael Blazicek. Mr. Blazicek conferred with Dr. Diaco, and also concluded that this was a nursing problem, not a standard of care problem for Respondent. The results of the hospital’s internal Peer Review Committee review seemed to bear out the opinions of Dr. Diaco and Mr. Blazicek. On November 26, 1997, Respondent was restored to full privileges at Vencor Hospital. Nurse Shogreen received verbal counseling and a one-day suspension for failure to render proper treatment to the correct patient. Vencor Hospital’s “Root Cause Analysis Team” found that nursing protocols should be changed to prevent a recurrence of patient misidentification. Patients would henceforth be identified by bed letter designation. Identification of the patient and consent to treatment would be verified by two people, one of whom must be a hospital employee. On November 17, 1997, the quality review manager of Vencor Hospital submitted an Adverse or Untoward Incident Report (Code 15) regarding the incident, pursuant to Sections 395.0197(6) and 641.55(6), Florida Statutes. A Code 15 Report is a report of serious adverse incidents in licensed facilities. The Code 15 Report identifies the physicians and nurses involved by their license numbers, and identifies the patient and facility. It describes the nature of the incident and all actions taken by the hospital in response to the incident. The purpose of the Code 15 Report is to notify the Agency for Health Care Administration and the Department of Health within 15 days of a serious adverse incident so the Agency may review the incident and begin an investigation. Respondent appeared before his Probation Committee on November 13, 1997. At this time, Respondent knew that the hospital would be filing a Code 15 Report, though it had not actually done so. Respondent was still on summary suspension at Vencor Hospital, pending review. Prior to his Probation Committee appearance, Respondent conferred with his attorney, Mr. Blazicek, who counseled him to answer any questions forthrightly, but not to volunteer information about the incident to the Probation Committee. This advice was based on the facts that the incident was still under investigation, that there had been no finding of wrongdoing by Respondent, and that summary suspension was a standard procedure for such incidents indicating no conclusions as to ultimate responsibility. Mr. Blazicek testified that he knew Respondent still had one more written quarterly report to file in January 1998. He reasoned that if the hospital's investigation resulted in adverse findings, Respondent could report the incident in that later filing. The Probation Committee raised no questions as to the Vencor Hospital incident, and determined that Respondent’s probation would terminate as scheduled upon payment of the administrative fine. Respondent did not volunteer information about the incident or the summary suspension. Respondent and Dr. Diaco filed their final quarterly reports in January 1998. Neither of them reported the Vencor Hospital incident. Respondent reported that he was in full compliance with all probationary terms. By the time the final quarterly reports were received, the Department of Health was aware of the Code 15 Report. Nonetheless, the Department issued an Order of Termination on February 2, 1998, finding that Respondent had satisfactorily completed the term of his probation as of January 26, 1998.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine enter a final order determining that Rolando R. Sanchez has violated Section 458.331(1)(p), Florida Statutes, and suspending his license for a period of nine months from the date of the Order of Emergency Suspension of License, imposing a fine of $2,500.00 and placing Respondent on probation for a period of two years from the date the suspension expires. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Albert Peacock, Esquire John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, a registered nurse, committed the acts alleged in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to Chapters 20, 456, and 464, Florida Statutes. Respondent is a licensed registered nurse in the State of Florida, having been issued license number RN 832942. In the fall of 1997, Respondent enrolled in FAU's ARNP program, which she continued until the spring of 1999, when she was dismissed from the program. Respondent was dismissed from FAU's ARNP program after she received a failing grade (an F) in a required clinical course (NGR 6602L). All students in the FAU ARNP program are required to make a grade of B or higher in clinical courses to continue in the program. On May 7, 1999, Ellis Younkin, the Graduate Program Coordinator for FAU and an associate dean, advised Respondent in writing that she had been dismissed from the ARNP program. At all times pertinent to this proceeding, Respondent was advised of her right to seek permission to retake the clinical program she had failed and her right to appeal her dismissal from the ARNP program. Respondent attempted to gain permission to retake the clinical program and to appeal her dismissal from the ARNP program. In the spring of 2000, after her dismissal from the FAU ARNP program, Respondent asked Dr. Morris, a physician in private practice, to be her preceptor for the FAU clinical program she had failed (NGR 6602L). Respondent told Dr. Morris that she had failed the earlier clinical program (NGR 6602L), but she misled Dr. Morris into believing that she was nevertheless a student in good standing in the FAU ARNP program by her statements and by the papers she showed him, including an outdated preceptor request form, a cooperative agreement form, and a form cover letter. In the spring of 2000, when Respondent had the dealings with Dr. Morris described in this Recommended Order, Respondent knew or should have known that she had been dismissed from the FAU ARNP program and she knew or should have known that her actions to appeal that dismissal had not stayed her dismissal from the program. The preceptor arrangement was for Respondent to perform the clinical duties of an ARNP under Dr. Morris's supervision and responsibility for a total of 60 hours. Dr. Morris would thereafter evaluate her performance and submit that evaluation to the FAU ARNP program. Because of Respondent's deception, that arrangement was a sham. The FAU ARNP program requires that all preceptor arrangements and the physicians who are to serve as preceptors be approved before a preceptor program begins. When he agreed to the preceptor arrangement with Respondent, Dr. Morris was unaware that FAU required prior approval of a preceptor program, and he believed that Respondent would be responsible for any required paperwork. Respondent never requested the FAU ARNP program's approval of her preceptor arrangement with Dr. Morris, nor did she request authorization from FAU for Dr. Morris to serve as her preceptor. Between May 2 and May 26, 2002, pursuant to her arrangement with Dr. Morris, Respondent routinely talked to patients alone in the examination room about the reasons for the patient's visit, to obtain a medical history, and to ascertain the patient's current medication regime. Respondent would make a diagnosis and create a treatment plan, which could include the prescription of medication, for Dr. Morris's consideration. Dr. Morris would next come in and examine the patient. Respondent wrote patient notes in the medical records that were subsequently reviewed and co-signed by Dr. Morris. Respondent performed acts in Dr. Morris's office that were beyond the scope of her license as a registered nurse. Ms. Harriett Brinker testified, credibly, that as a registered nurse Respondent could not prescribe treatment plans for patients, nor could she prescribe medication. Respondent completed approximately 60 hours of clinical work with Dr. Morris under the guise of the preceptor arrangement. Dr. Morris would not have permitted Respondent to perform the work she performed in his office but for the sham preceptor arrangement. Respondent asked Dr. Morris to submit certain paperwork pertaining to the preceptor arrangement that had been completed, including an evaluation of her performance as an ARNP student, to FAU's School of Nursing. Thereafter, Dr. James Fisher, Associate Provost at FAU, contacted Dr. Morris about the paperwork he had submitted to FAU at Respondent's request. Dr. Morris learned from Dr. Fisher that Respondent was not a graduate nursing student at FAU. Until his conversation with Dr. Fisher, Dr. Morris believed that Respondent was a student in good standing in the FAU ARNP program. After working for Dr. Morris, Respondent provided FAU with her work evaluations from Dr. Morris, medical records from patients she had cared for, clinical encounter logs containing patient-specific information, and a taped recording containing a series of questions posed by Respondent to one of her patients and the patient's responses. The questions and answers pertained to the level of care Respondent provided the patient. Respondent did not have the permission of Dr. Morris or of any patient to provide these medical records to FAU. G.M. is a patient Respondent saw when she was serving as an ARNP student while she was enrolled in the FAU clinical course NGR 6602L. Dr. Archie McLean was Respondent's supervisor for that clinical course. Respondent hand-copied a portion of G.M.'s medical record and submitted it to FAU. Respondent did not have the permission of Dr. McLean or of G.M. to copy G.M.'s medical records or to submit the copied record to FAU at the time she did so. G.M. subsequently gave Respondent permission to use his copied medical record in the manner she did.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating the provisions of Sections 464.018(1)(h) and 456.072(1)(m), Florida Statutes, as set forth in this Recommended Order. For each violation, Respondent's license to practice nursing in the State of Florida should be reprimanded; she should be fined in the amount of $1,000.00 ($750 for the Count I violations and $250 for the Count II violation); she should be required to take continuing education classes on the topic of patient's rights and the topic of nursing ethics; and her license should be placed on probation for four years for the Count I violations and four years for the Count II violation, which should be served concurrently. DONE AND ENTERED this 10th day of July 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of July, 2003.
The Issue At issue is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts The Petitioner is the State Agency charged with the regulation of the practice of nursing pursuant to Chapters 20,456 (formerly Chapter 455, Part II; see Chapter 2000-160, Laws of Florida) and 464, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is Cynthia Chance. Respondent is a Licensed Practical Nurse in the State of Florida, having been issued license No. PN 0855441. On or between March 1997-May 1997, Respondent was employed by Health Force, a nurse-staffing agency. In or about March 1997, Respondent was assigned to work various shifts at Baptist Medical Center-Beaches. In or about March 1997, Respondent submitted time slips to Health Force alleging that she had worked an eight-hour shift on March 18, 1997. In or about March 1997, Respondent submitted time-slips to Health Force alleging that she had worked an eight-hour shift on March 21, 1997. Findings of fact based on the evidence of record Missing Drugs On May 13, 1997, Health Force received a "late call" from Cathedral Gerontology Center (Cathedral) needing a "stat" nurse because one of their nurses had not come to work. Tresa Streeter (now Calfee), administrator for Health Force, called Respondent who reported to Cathedral at 6:50 p.m. Kim Harrell, R.N., a supervisor at Cathedral, was the nurse who stayed until Respondent arrived. Also at 6:50 p.m. on May 13, 1997, Barbara Kelley, R.N., received and signed for a delivery of medications for residents from American Pharmaceutical Services. Included in that delivery was an order of Alprazolam (Xanax) and an order of Diazepam (Valium) for two residents on the floor where Respondent was working that evening. The delivery came with a separate medication or narcotics card for each medication. There were two floors of residents at Cathedral. Each floor had its own medication cart and its own nurse assigned to the floor. Controlled medications have a separate box in the medication cart with a separate key. The nurse on each floor had a key to her own medication cart but did not have a key to the medication cart of the other floor. The Director of Nursing (DON) also had a key to both medication carts in the event of an emergency such as a lost key. After receiving and signing for these drugs, Nurse Kelley locked the medications that belonged to her medication cart in it and inserted the narcotic cards for those medications into the notebook that corresponded to her cart. She then gave the medications and control sheets that belonged to Respondent's medication cart to Respondent, placing them in Respondent's hand. Nurse Kelley told Respondent that these were controlled drugs and instructed Respondent to lock up the medications in Respondent's medicine cart. There is conflicting testimony as to what happened next. Respondent admits to receiving the medications and the control cards. However, Respondent maintains that she placed the medications in the locked drawer of the medication cart and inserted the cards into the notebook in front of Nurse Kelley, whereas Nurse Kelley maintains that she walked away immediately after giving the drugs and cards to Respondent and did not see her place the drugs in the controlled drug lock box or the cards in the notebook. It was a policy at Cathedral for the out-going nurse to count controlled drugs with the on-coming nurse. When Respondent arrived on the night in question, she counted the controlled medications with Nurse Harrell. The narcotics count for both narcotics cards and actual doses was 16. At the end of her shift, Respondent counted the controlled medications with the on- coming nurse, Pamela Schiesser. The number of narcotics cards and tablets or doses was 16, the same as when Respondent came on duty. Nurse Schiesser was scheduled to work a double shift, 11 to 7 and 7 to 3. During the 11 to 7 shift, Nurse Schiesser was the only nurse for both floors of residents and she, therefore, had the key to both medication carts. Sometime during the 7 to 3 shift on May 14, 1997, Nurse Schiesser called the pharmacy to find out about a medication order she had placed for two residents so they would not run out. She was informed by the pharmacy that the drugs had been delivered the evening before and that they had been signed for by Nurse Kelley. She checked the delivery sheets and confirmed that Nurse Kelley had signed for the medications. After determining that there were no cards for the missing drugs and the drugs were not in the cart, she then reported to her supervisor, Kim Harrell, that the medication had been delivered but could not be located. Nurse Schiesser and Nurse Harrell checked the entire medication cart, the medication cart for the other floor and the medication room but did not find the missing medications. Nurse Harrell then notified the Assistant Director of Nursing (ADON), Lu Apostol, and the Director of Nursing (DON), Fely Cunanan, regarding the missing medications. The ADON began an investigation and secured written statements from all of the nurses on her staff who had access to the drugs: Nurses Kelley, Harrell, and Schiesser. She called Nurse Kelley to confirm that she had received the medications from the pharmacy and confirmed that the two missing medications, Alprazolam (Xanax) and Diazepam (Valium), were given by Nurse Kelley to Respondent. The ADON also called Tresa Streeter (now Calfee), the administrator of Health Force for whom Respondent worked to notify her of the missing medications. On May 14, 1997, Ms. Streeter (Calfee) called Respondent and informed her about the missing drugs. On May 15,2000, Ms. Streeter and Respondent went to Cathedral for a meeting. They were informed that the two missing drugs had not been located and they were shown the written statements of the other nurses. Respondent admitted that the drugs had been given to her the night before by Nurse Kelley, but stated that she had locked the drugs in her cart. She denied any further knowledge about the drugs. At Ms. Streeter's suggestion, Respondent took a blood test on May 15, 2000.1 The drug test result was negative thus indicating that the drugs were not in her blood at the time of the test, which was two days after the drugs were missing. No competent evidence was presented as to how long it takes for these drugs to leave the bloodstream. Cathedral had a policy that required that all controlled substances be properly accounted for and secured by each nurse responsible for the drugs. This policy was verbally communicated from the off-going nurse to the oncoming nurse. When Nurse Kelley gave the drugs and drug cards in question to Respondent, she specifically instructed Respondent to lock up the drugs in the narcotics drawer. Respondent maintains that other people had keys to her medication cart and could have taken the drugs after she put them in the locked narcotics box. This testimony is not persuasive. Every witness from Cathedral testified unequivocally that there was only one key in the facility for each medication cart and that key was in the possession of the nurse assigned to that cart. The only other key, which was in the possession of the Director of Nursing, was not requested or given to anyone at anytime material to these events. The persuasive testimony is that Respondent was the only person during her shift with a key to her medication cart. That key was passed to Nurse Schiesser who discovered that the drugs and narcotics cards were not in the medication cart or notebook. The count of the drugs and the cards on hand did not show that anything was missing at the change of shift from Respondent to Nurse Schiesser as the count was 16, the same as when Respondent came on the shift. If Respondent had put the drugs and corresponding cards in the medication cart, the count should have been 18. The only logical inference is that Respondent did not put the drugs or cards in the cart. In the opinion of the two witnesses accepted as experts in nursing and nursing standards, Respondent's failure to properly secure the narcotics and to document the receipt of these controlled drugs constitutes practice below the minimal acceptable standards of nursing practice. Time-Slips While employed by Health Force as an agency nurse, Respondent was assigned at various times to work at Baptist Medical Center-Beaches (Beaches). Respondent submitted time cards or slips for each shift she worked to Health Force so that she would be paid for the work. Respondent submitted time-slips for working at Beaches on March 18 and 21, 1997. When Health Force billed Beaches for these two dates, Anne Hollander, the Executive Director of Patient Services, the person responsible for all operations at Beaches since 1989, determined that Respondent had not worked on either March 18 or 21, 1997. Ms. Hollander faxed the time-slips back to Health Force for verification. She advised Health Force that Respondent was not on the schedule as having worked on either of those dates. She also advised Health Force that the supervisor's signatures on the two time-slips did not match anyone who worked at Beaches. Ms. Hollander is intimately familiar with the signatures of all the supervisors who are authorized to sign time-slips at Beaches and none of them have a signature like the signatures on the two time-slips. Health Force did an investigation and ended up paying Respondent for the two days, but did not further invoice Beaches. Health Force was never able to determine whose signatures were on the time-slips. Health Force did have Respondent scheduled to work at Beaches on March 21, 1997, but not on March 18, 1997. Beaches keeps a staffing sheet for every day and every shift. The supervisors are responsible for completion of the staffing schedules to ensure that the necessary staff is scheduled to work on each shift. These staffing sheets are used for both scheduling and doing the payroll. According to Ms. Hollander, it is not possible that Respondent's name was just left off the staffing sheets. The staffing sheets are the working sheets. If a person works who is not originally on the staffing sheet, the supervisor writes that person's name into the correct column at the time they come to work. Ms. Hollander has been familiar with these staffing sheets for 12 years and does not recall any time when someone's name has been left off the staffing sheet when he or she had worked. The two supervisors who testified, Erlinda Serna and Carol Lee, are equally clear that in their many years of experience as supervisors at Beaches, no one has worked and not been on the staff schedules. Anybody who worked would show up on the schedule. Every shift and every day should be on the staffing schedules. Ms. Serna is unaware of any time in her 10 years at Beaches that someone's name was left completely off the schedules, but that person actually worked. Respondent's name was on the staffing schedule for March 21, 1997, but it was crossed out and marked as cancelled. When agency nurses are scheduled at Beaches, but are not needed, they are cancelled with the agency. If the agency fails to timely notify the nurse and the nurse shows up for work, the agency must pay her for two hours. If the hospital fails to notify the agency timely and the nurse shows up for work, then the hospital must pay the nurse for two hours. In no event is a nurse who is cancelled paid for more than two hours. There are times when a nurse is cancelled and shows up for work, but the hospital has a need for the nurse either as a nurse or in another capacity such as a Certified Nursing Assistant (CNA). If that happens, the nurse's name is again written into the nursing unit staffing schedule. For March 18, 1997, Respondent's name is not on the schedule for Beaches. She did not work in any capacity on March 18, 1997. For March 21, 1997, Respondent's name was on the schedule, but she was cancelled. Even if she had not been timely notified that she was cancelled and she showed up for work, the most she could have billed for was two hours. If she had stayed and worked in a different capacity, her name would have been rewritten into the staffing schedule. Beaches is very strict and follows a specific protocol. No one except the supervisors is allowed to sign time cards. The signatures on these two time cards do not belong to any supervisor at Beaches. Therefore, it can only be concluded that Respondent did not work on March 18 or 21, 1997, at Beaches and that she submitted false time-slips for work she did not do on March 18 and 21, 1997. In June 1997, Respondent was also working as an agency nurse for Maxim Healthcare Services (Maxim). On June 8, 1997, Respondent submitted a time ticket to Maxim and to Beaches indicating that she had worked eight-hour shifts at Beaches on June 2, 3, 4, and 5, 1997. All four days were on the same time ticket and purported to bear the initials and signature of Carol Lee. This time ticket was brought to Ms. Hollander's attention because Beaches had a strict policy that only one shift could appear on each time slip. Even if a nurse worked a double shift, she would have to complete two separate time tickets, one for each shift. Under Beaches policy, no time ticket would ever have more than one shift on it. The time tickets are submitted to Ms. Hollander's office daily with the staffing schedules that correspond. Therefore, a time ticket for a person who is not on the staffing schedule would immediately stand out. When Ms. Hollander was given the time ticket for June 2-5, 1997, she investigated and reviewed the staffing sheets for those days. Respondent was not listed on any of the staffing schedules. Ms. Hollander then showed the time ticket to Erlinda Serna, who was the nursing supervisor on the 3 to 11 shift. Nurse Serna verified that Respondent had not worked on the shift any of those days. Ms. Hollander then showed the time-slip to Carol Lee, the 11 to 7 nursing supervisor. Carol Lee verified that she had not initialed or signed the time ticket and that the initials and signature were a forgery. Nurse Lee would not have signed a time ticket with more than one shift per time ticket because she was well aware of the policy prohibiting more than one shift per time ticket. Nurse Lee verified that Respondent had not been scheduled to work any of those days and that Respondent had not worked on June 3, 4, or 5, 1997. These inquiries to Nurse Serna and Nurse Lee took place within a few days after the dates for which Respondent had submitted this time ticket. Therefore, the matter was fresh in the minds of both nursing supervisors. Both are certain that Respondent was neither scheduled nor worked on June 2-5, 1997. Only nursing supervisors at Beaches are authorized to sign time tickets. Maxim Healthcare has a policy of never working a nurse in excess of 40 hours in one week. The same policy was in effect in 1997. Susan Ranson, the records custodian who also staffs for Maxim on the weekends and assists in their billing, indicated that Respondent was paid by Maxim for working at another facility the same week as June 2-5, 1997. June 2-5, 1997, are a Monday through Thursday. Specifically, Respondent submitted a time ticket to Maxim for another facility showing that she worked 12 hours on Saturday, June 7, 1997, and 13 hours on Sunday, June 8, 1997. Maxim pays from Monday through Sunday. If Respondent had worked 32 hours at Beaches on Monday through Thursday and then 25 hours at another facility on Saturday and Sunday, she would have worked more than 40 hours in one week, which would have violated their policy and would have required Maxim to pay overtime. When Maxim gets a request for a nurse and has no one to send who would not exceed 40 hours in one week, rather than exceed 40 hours, the agency does not staff the job. In the disciplinary document from Health Force dated June 18, 1997, Health Force advised Respondent that it would not be scheduling her based on the complaints they received regarding false billing, the missing drugs at Cathedral, and another incident at Beaches that occurred during this same time. Taken in its totality, the testimony of Respondent is not credible. Respondent's explanation of the discrepancy in the count of drugs and corresponding cards is that during her shift "there was [sic] one or two cards that only had one or two pills on them, so you just throw them away. And that's what made it back to 16." This explanation is unpersuasive. If there had been any pills left in the drawer from cards that Respondent threw away, the count would have been off at the change of shift. Moreover, several witnesses testified as to the care that is taken to carefully account for all narcotics. Respondent's assertion that narcotic pills were simply thrown away is not credible. Nurse Schiesser clearly remembered that there were no cards for the medications in question and there were no medications from this delivery in the medication cart. Respondent has been previously disciplined by the Board of Nursing in the Board's case No. 98-20122.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, by failing to secure and document receipt of the drugs at Cathedral Gerontology Center; That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005(1), Florida Administrative Code, by falsifying employment and time records on multiple occasions; and That a penalty be imposed consisting of a fine of $1000 and payment of costs associated with probation, together with a reprimand and a three-year suspension of license to be followed by a two-year probation with conditions as deemed appropriate by the Board of Nursing. Reinstatement of Respondent's license after the term of the suspension shall require compliance with all terms and conditions of the previous Board Order and her appearance before the Board to demonstrate her present ability to engage in the safe practice of nursing, which shall include a demonstration of at least three years of documented compliance with the Intervention Project for Nurses. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000.
Findings Of Fact During an inspection of Respondent's facility on January 29-29, 1981, a review of patient records revealed that some did not have current doctor's orders in their records. Regulations require doctor's orders be signed by the physician every thirty days, even if no change in medication is ordered. The Respondent was advised of this deficiency. During a follow-up inspection on 5 March 1981 a review of patient records revealed some did not have current doctor's orders in their records. None of these patients were the same as the patients noted as not having current doctor's orders on the 28-29 January inspection. Nursing homes have no control over the doctors who treat patients at the nursing home. Many of the patients engage their own doctor and retain the sole right to change doctors. Respondent reviewed patients' records continuously and, for those patients whose medication needed renewal, prior to the 5 March visit mailed to the attending physician seven days before the expiration of the current order a new order for signature with a self-addressed return envelope. Despite these efforts all of the records did not contain current physician's orders. Respondent also presents physicians with prepared orders for their signatures when they visit the patients. Despite these efforts all doctors do not sign orders as required by the regulations and several records were lacking current doctor's orders upon the reinspection on 5 March 1981. On the 28-29 January visit it was noted that the intake and output records on some patients were incomplete and Respondent was notified of this deficiency. At the follow-up visit on 5 March 1981 the same deficiency was noted on different patients. On one patient 13 of the 20 days reviewed on the January 28-29 visit showed the patient's output of fluids to be less than 500 cc. The intake records also showed low intake, which led to the conclusion that all of the intake and output were not recorded in the patient's record. No obvious cases of dehydration were noted. However, unless a patient's output is close to 1500 cc per day the patient may not be receiving sufficient fluids. The decision to record intake and output of fluids is discretionary with the head nurse. Regulations do not require hydration records be maintained. At Respondent's facility there are three shifts, with one head nurse on each shift. One of these head nurses determined that the intake and output records should be maintained for patients on Foley catheter and, on her shift, these entries were recorded in the patients' records. For some patients the other 1head nurses did not agree that intake and output data were indicated and did not have this data recorded. Accordingly, those patients' records did not accurately reflect their intake and output for the 24-hour day, but for only one-third of the day.
Findings Of Fact Mark Hegedus, Respondent, is registered with the Florida State Board of Nursing and holds license No. 85729-2. He worked at the Sarasota Memorial Hospital (SMH) for approximately three years immediately preceding May 15, 1978. During the period between April 1, 1978 and May 15, 1978 Respondent was working on the cancer ward at SMH and was Charge Team Leader at the hospital. An audit conducted of the narcotics and barbiturates administration records at SMH for the period 1 April through 15 May 1978 disclosed that of 14 patients records selected who had been administered Demerol by Respondent, evidence of irregularity was discovered in 30 entries on 9 of the 14 patient medical records audited. These errors included signing out for 50 mg ampules of Demerol 11 times, for 75 mg ampules 11 times, and for 100 mg ampules 8 times in the narcotic record with no entry made on the Nurses Notes or on Medication and Treatment record. These errors involved patients Daryl C. Iverson, Edna Jurgenson, Clinton Jelmberg, John Lally, Genevieve Belt, Arleigh Updike, Michael Wujtowicz, Joan Slater, and Arda Miller. Hospital procedures and accepted nursing practice require the nurse administering narcotics to sign for the narcotic when it is removed from the narcotics locker and then make an entry in the Nurse Notes and patient Medication and Treatment record when the narcotic is administered to the patient. Medication and Treatment records are used by the doctors to see how frequently patients need narcotics prescribed on an as needed basis, whether the drugs prescribed have been administered, and by other medical personnel to ascertain when the patient last received and how much medication so as to preclude giving the patient an overdose. Respondent was discharged from his position at the hospital on 15 May 1978 because of the narcotics irregularities. At the time of his discharge, Respondent acknowledged that he had taken Demerol and had disposed of the ampules but that he did not use them himself or sell them. The audit disclosed a few errors in charting narcotics were committed by other nurses as well as Respondent. During the three years Respondent worked at SMH and, up until about 1 April 1978, he was a capable and competent registered nurse, well-liked by both patients and co-workers. He was promoted to First Team Leader after about one year at SMH and to Charge Team Leader approximately one year thereafter. These promotions were more rapid than the time required by the average nurse. All witnesses who had worked with Respondent spoke highly of his qualifications and dedication as a registered nurse.
Recommendation Revoke the license of Respondent Mary Katherine Mitchell. DONE and ORDERED this 31st day of January 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Life Building Jacksonville, Florida 32202 Mary Katherine Mitchell, L.P.N. Route 7, Box 314 Milton, Florida 32570
Findings Of Fact At all times relevant to the issues involved in this hearing, the Respondent was licensed as a registered nurse, having been licensed on September 1, 1967, by examination, with license number 41856-2. At all times pertinent to the issues involved in this hearing, Respondent was employed as a registered nurse at Gulf Coast Community Hospital (GCCH), Panama City, Florida. On August 4, 1983, Dr. David W. Scott, an orthopedic surgeon with practice privileges at GCCH, treated Arthur Collins in the emergency room of that hospital. After taking a history from the patient and examining him, he concluded that Mr. Collins was a drug addict who had the ability to manipulate physicians for the purpose of obtaining narcotics. As a part of his treatment of this individual, Dr. Scott prescribed 100 mg of Demerol four times a day which was obviously insufficient for Mr. Collins who had developed a drug tolerance. As a result, Dr. Scott added an additional drug, Vistoril, to augment the Demerol. Before leaving the hospital that night, and because Mr. Collins was obviously addicted to narcotics, Dr. Scott left an oral order with the nurse on duty at the nurses' station, subsequently identified as Ms. Habersham, not to increase the dosage prescribed for the patient, not to give additional narcotics, and not to call the on-call physician in the event Mr. Collins complained of pain. The reason for this last instruction concerning the physician was to prevent the on call physician, who might not know the patient's history and of his drug addiction, from prescribing additional narcotics. Ms. Habersham worked as a charge nurse on the day shift during this period and recalls patient Collins. When she was relieved by the Respondent at the end of her shift, she passed Dr. Scott's orders on to her. Consequently, it is clear that Respondent was aware of Dr. Scott's order not to increase Collins' dose and not to contact the on-duty physician in the event Collins asked for more medicine. Nonetheless, Respondent admits giving Mr. Collins an injection of 125 mg of Demerol even though the doctor's order called for a 100 mg dose. She justifies this on the basis that the patient had said he was in great pain and constantly kept coming to the nurses station begging for more medication. She observed him to be sweating and grabbing at his stomach. Based on her experience in the Army Nurse Corps and the Army Surgeon General's recommendation for a 125 mg dose of Demerol in situations such as this, and because she did not want to wake up Dr. Rohan, the on-call physician, she gave the additional dose on her own authority feeling she could get Dr. Rohan's approval later on. Dr. Rohan recalls only an incident in August of 1983 where he got a call from a nurse whose name he cannot remember for a "cover order" for a medication. As he recalls it, the nurse in question called to notify him that she had administered more of a drug than was called for in the doctor's order. It was his understanding, however, that the nurse had given too much by accident and was telling him about it after-the-fact, not in advance, to authorize a higher dose. It is clear from the above, therefore, that Respondent called Dr. Rohan after she had administered the higher dosage to Mr. Collins on her own authority. Respondent indicates, however, that Ms. Habersham had told her that if this particular patient needed more medication he was to get it and that the nurse should secure the authorization by phone. Respondent presented no evidence to support this, however, and though she contended she had a witness to this conversation, the witness was not presented. Respondent contends that she could change the amount of medication prescribed by the physician if it was necessary. She claims that nurse-practitioners can do this within the protocols set down by a physician. Respondent was not then nor is she now a nurse practitioner. During the month of February, 1984, Linda Marie Jones was unit coordinator for three units at GCCH, including Respondent's. Part of her job involved the monitoring of and investigation of drug discrepancies. During this time, Mr. Jones was conducting an audit of drug accountability in Respondent's unit. This audit, while not based on any suspicion of misconduct by any employee, resulted in a determination that one Nembutal tablet was missing from the unit. A check of the records reflected that this medicine had not been ordered for any patient on the unit that day. She then checked the patients' charts to see if a Demerol 100, a similar drug, had been used, and as a part of this procedure, she found that in the case of some patients, two different records dealing with a specific administration of medication did not agree. Her check of all records on the unit revealed that only the Respondent had any discrepancies. All other nurses' records were satisfactory. Her investigation included a comparison of the medication administration record (MAR) with the nurses notes on which the same administration was to be noted. In the course of her investigation, she checked six patient records, including those of patient Haire, patient Oakley, and patient Crosby. At the conclusion of her investigation, she prepared a summary of her findings which she presented to Ms. Flemister, the Director of Nursing. Ms. Flemister met with Respondent and showed her a copy of the report. At that point, Respondent denied having taken any of the medications and said that she could not figure out why the discrepancies existed. As to the Nembutal, which prompted the investigation initially, Respondent remembered cleaning out the narcotic box the first time, but did not identify a shortage at the time. As a result, the missing Nembutal was attributed to "wastage" and when that happens, the wastage must be recorded on the narcotics sheet. This Nembutal wastage was not recorded by Respondent or any other nurse. Ms. Jones admits, however, that there is no evidence to connect Respondent with the wastage of the Nembutal any more than any other nurse assigned to that floor. With regard to an administration of Morphine Sulfate to patient Haire at 9:00 P.M., on February 6, 1984, the narcotics control sheet fails to show that morphine sulfate was administered to this patient on that occasion. With regard to the 8:30 P.M. administration of Morphine Sulfate to patient Haire on February 5, 1984, the narcotics control sheet reflects that Respondent recorded the administration of this medicine but does not reflect the date in question. The entry made reflects the patient's room rather than the date. As a result, it is impossible to tell if the administration was done on February 4 or February 5. However, the Respondent did reflect this administration on the nurses' notes although in the wrong place. As to the issue of Respondent's signing out Morphine Sulfate for patient Haire at 7:00 A.M. on February 5, the evidence establishes that she did sign out both Morphine Sulfate 100 and Demerol 100 as alleged. The MAR reflects some entry but it is impossible to determine what the entry is or to what drug it refers and Respondent's nurse's notes for that date are silent. The medical records pertaining to patient Oakley for February 5, 1984, reflect that, as to the nurses' notes, the patient was given medication for pain but the notes fail to show what type of medication was administered. It could have been aspirin or tylenol and the note should have said what medicine was administered. This administration was not listed on either the narcotics control sheet or the MAR. If the substance given was not Demerol or Morphine Sulfate, it need not appear on the narcotics control sheet, but whatever it was, it should have been listed on the MAR and it was not. The records regarding patient Crosby reflect that on February 5, 1984, Respondent signed out 75 mg Demerol for the patient as alleged. The notes do not, however, reflect that she administered Demerol specifically. They reflect only that she administered some medication. As to the 9:30 P.M. dose of Demerol on February 5, 1984, Respondent did sign out Demerol at that time but the nurses' notes do not reflect what the substance administered was. Patient Haire's records reflect that on February 4, 1984, Respondent signed out Morphine Sulfate for the patient. The nurses' notes reflect that at 8:00 P.M. on that date, she administered a "pain medication" to the patient without defining what that medication was. The record does not indicate that Morphine Sulfate was administered. The narcotics control sheet for this period is not dated so it is impossible to determine whether Morphine Sulfate was listed on its document or not. However, the MAR reflects that Respondent administered Morphine Sulfate to this patient at 6:00 A.M. On February 4, 1984, Respondent signed out Demerol for patient Oakley and properly noted this on the narcotics control sheet but the nurses' notes fail to show that the substance was administered as required. Later on, at 8:30 P.M. the same day, Respondent again signed out Demerol for Patient Crosby listing on the narcotics control sheet the patient's room number but not the date. Other dates on the sheet lead to the conclusion that it was February 4, however Respondent thereafter failed to record the drug's administration on the nurses' notes. She also signed Demerol out for Patient Crosby at 7:30 P.M. on February 4 though the narcotics control sheet fails to reflect the date - only the room number. This administration is in the MAR at 8:30 P.M. rather than at 7:30 P.M. but is not in the nurses' notes at all. On February 3, 1984, Respondent recorded in her nurse's notes that she administered Demerol to patient Crosby at 8:00 P.M. The narcotics disposition record (narcotics control sheet) shows that she signed the medication out between 8:00 and 9:00 P.M., but it is impossible to tell with certainty the exact time. It is obvious that Respondent's handwriting is poor. This fact adds to the difficulties encountered from the way in which Respondent kept her records. In the opinion of Ms. Jones, who has been doing quality assurance checks for a number of years, Respondent's records are inaccurate, inconsistent, incomplete and totally insufficient for a nurse on the next shift to know what medications have been given and what must be done. In this area alone, Ms. Jones was of the opinion that Respondent's charts are below the minimum standards for nursing practice in the area and even though her own report was erroneous in some respects, there are still enough verified errors by the Respondent to support her opinion that Respondent's performance is less than acceptable. Respondent admits that some but not all of the charges against her are true. Though she may have mischarted her administration of drugs she never took the drugs herself. The patient always got the drug that he or she was supposed to get and her errors were errors only as to the recordation of time. They were administrative errors, not substantive errors. She contends that in February, 1984, because the floor on which she had been charge nurse since December, 1981 had been closed, she was forced into a staff nurse position. This was not a good situation and as a result of the closing of that floor, several nurses quit. This loss of nurses resulted in more patients per nurse to the point where Respondent felt that patient safety was in danger. She contends she tried to tell Ms. Jones about this but Ms. Jones would not see her. All of a sudden, she found herself called in front of Ms. Flemister and Ms. Jones and terminated based on the alleged inaccuracies in her records. Respondent contends she received no information about this other than that contained in Ms. Jones' summary and in that regard she says, Ms. Jones assured her that her summary was correct and in no way tried to explain the inaccuracy of the records. Respondent contends that she had frequently asked her supervisors for extra help but never got any. She contends she had as many as 18 patients to handle by herself and at the time involved in the records discrepancies here, she had 8 patients on the floor. She contends that the errors to which she admits were due to her hectic schedule. As a single parent, she was working, she says, between 60 to 80 hours per week on two jobs and had a sick child at home. Ms. Flemister, on the other hand, says that Respondent had plenty of help. At the time, Respondent was working the night shift from 7:00 P.M. to 7:00 A.M. The shift was staffed by 4 registered nurses, 2 licensed practical nurses, and a secretary, and in her opinion, this staff was well within the normal range of staff-patient ratio. Ms. Flemister contends that while Respondent was on duty, she had between 5 and 6 patients to take care of. She was the charge nurse for the shift and therefore had less patients than a regular floor nurse. She admits that Respondent did complain about being shorthanded, but these complaints were neither constant nor repeated and were never submitted through proper channels. Ms. Flemister contends that prior to this time Respondent had been counseled about her writing and documentation, but there has been no evidence of any discrepancies other than those involved in this case. There are certain procedures followed at GCCH and a part of Ms. Flemister's job is to oversee the standards of the hospital, the Board of Nursing, and the Joint Committee on Hospital Accreditation as they are applicable at this hospital. On the first day of duty, all new nurses are given an orientation which includes records management and how to use a medication cart. A medications test is given and a model cart is used in this training. On the cart, each patient has his or her own area. Narcotics and barbiturates are kept together. Medication administration records, including a page for every patient, are kept with the cart. Each administration of medication is supposed to be recorded and each use of narcotics is supposed to be listed on the narcotics sheet with the name of the patient, the date, the drug, and the nurse administering it. Medications are first called for in the doctor's orders and are checked by the secretary and the nurse who checks and signs it initially. The doctor's orders are then used to give medications. When a nurse gives a medication she checks the doctor's order against the medical records and then prepares the medicine, administers it, charts it and signs it off. The entry is recorded on the medical administration record and it and the charting register are both on the cart. The nurse goes back to the nurses' station to record the administration of the medicine in the nurses' notes which are kept in the patient record. This method of documentation is set out in the hospital policy and procedures which are given to all nurses. Accurate medication records are important so that nurses on subsequent shifts do not administer a drug too soon after the last dose was given and thereby create an overdose. Therefore, medications are logged in several different locations because state law requires it to promote agency oversight by the pharmacy and the Department of Nursing, and because the record is used at shift change to insure an accurate count of narcotics on hand on the medicine cart. Failure of employees to follow the hospital procedures results in the following sequence of events: reprimand; counseling; a written reprimand; and discharge; all depending, of course, on the seriousness of the offense. However, after the discussion with Ms. Flemister and Ms. Jones Respondent was terminated because of the discrepancies between the narcotic record and the poor and illegible documentation in the nurses' records and elsewhere. Respondent, on the other hand, claims that though she has been licensed in the State of Florida since 1967 and has worked at GCCH since 1981, there has never been any prior disciplinary action taken against her nor has she received any prior complaints about her method of charting or administration of drugs and she was doing it as she usually does in February, 1984. Notwithstanding her protestations of no prior disciplinary action, however, the records reveal that Respondent was given a two-day suspension for the incident involving the over administration of Demerol to Mr. Collins and advised that a repeat discrepancy would result in her discharge. It is important to note that as a part of the investigation into Respondent's alleged misconduct, she was requested to provide a urine sample for urinalysis. This routine drug screen revealed no use of controlled substances within the seven days prior to the test which was accomplished on February 20, 1984.
