Findings Of Fact At all times pertinent hereto, Respondent, Erin Gayle McCormick, was a registered nurse and licensed as such by the State of Florida under License No. 101652-2. On June 24, 1981, Respondent's nursing license was suspended because of charges relating to drug use and the forging of prescriptions and their subsequent issue while she was employed at Leesburg Nursing Center during August and September, 1980. Thereafter, on October 12, 1982, the suspension was lifted and Respondent's license was reinstated on one year's probation, subject to certain conditions, one of which was that she not violate any federal or state laws, or rules or orders of the Board of Nursing. Another condition of probation was that she not consume or otherwise self-medicate with any unprescribed controlled substances. Respondent has been a long-term patient of Dr. Paul F. Tumlin, her family physician for many years and who, during the period August through October, 1982, treated her several times for two separate types of headaches, cluster headaches and migraine headaches. Both generate great pain when an attack is ongoing. During the period in question, he treated Respondent with several types of pain killers, some of which are controlled and some of which are not. Among the drugs he used to treat Respondent are: Florinal, Zomax, Phenergan, Inderal, Ludiomil, Talwin and Nubain. Each of these drugs has some side effect. However, over prolonged use, a tolerance may develop in the patient so that the magnitude of the side effect is reduced. Several of them produce such side effects as drowsiness and blurred vision (Ludiomil and Talwin). Another (Inderal) produces depression and weakness. Phenergan is a drug which used in conjunction with others tends to accentuate or extend the effect of that drug. The side effects are of varying duration, and a nurse should not practice her profession when those side effects, such as drowsiness, unclear vision, unsteadiness and weakness, interfere with the full effective control of her facilities and the safe performance of her duties. However, reasonable use of any drug, consistent with a medically indicated purpose, does not constitute drug abuse. Dr. Tumlin cannot recall from memory or from his records any instance where Respondent abused medications prescribed for her by him. All of the drugs Dr. Tumlin prescribed for Respondent during this period are listed in her medical records. These records reflect that on October 14, 1982, Dr. Tumlin prescribed for the Respondent 36 tablets of Florinal #3, a pain killer which contains codeine, which he directed be taken either one or two at a time every four hours for pain. This prescription was authorized one refill. Pursuant to the terms of the October 12, 1982, Order, on October 18, 1982, less than one week after the reinstatement of Respondent's license, Nita Edington, an investigator for the Department of Professional Regulation (DPR), contacted Respondent and requested she provide a urine sample for testing. This was not done because of any report of drug abuse by Respondent and was less than a week after the Board of Nursing, in its October 12, 1982, Order, indicated receipt of good reports on her rehabilitation. This urine sample provided by Respondent was subsequently tested by DPR's contract laboratory and determined to be positive for codeine. However, this codeine residue was from the ingestion of Florinal #3, which had been previously prescribed for Respondent by her physician. Respondent was employed in a full-time position as a nurse at the Leesburg Nursing Center, Leesburg, Florida, during August and September, 1980. When she had indication her license was to be reinstated, on August 12, 1982, she applied for a position at the Lakeview Terrace Retirement Center (LVT). The application form filled out, signed and submitted by Respondent calls for "Former Employers and Experience (References)" and reflects that the position desired by the applicant was "sitter." Respondent, in listing former employers, listed the following: Shoe-Biz III 10/81-2/82 Belks 1/81-6/81 Tampa Critical Care 9/79-6/80 Nursing Pool Leesburg General-Hospital 6/78-11/78 11/78-7/78 This total period covered includes the months of August and September, 1980, but the application form fails to reflect the August and September, 1980, employment at Leesburg Nursing Center. On November 11, 1952, Respondent applied for a position as a registered nurse at Lake Community Hospital, Leesburg, Florida, and filled out and submitted an application form which called for the applicant to list the last four employers, starting with the last one first. On this form, Respondent listed: Lakeview Terrace Retirement Center 5/82-10/82 Tampa Med. Pool 11/79-10/80 Waterman Memorial Hospital 11/78-7/79 Leesburg General Hospital 6/78-11/78 Again, she failed to list her employment at Leesburg Nursing Center during August and September, 1980, including that period in the employment period at Tampa Med. Pool, which was untrue, nor did she reveal this employment when she was interviewed for the position. Had she done either, the reference would have been checked, and the information provided by this reference would have had a definite bearing on the decision to hire Respondent or not. Respondent was hired by Lakeview Terrace Retirement Center as a sitter on August 24, 1982, and her position was converted to that of a registered nurse on August 30, 1982, when a vacancy came about. On several occasions from that date until she resigned from employment on October 29, 1982, Charles W. Dick, at that time a food supervisor at the facility, now head baker and a former Baptist minister who, he says, has counseled 100 drug addicts over a 35-year ministry, observed Respondent when she came to the kitchen to pick up food for a resident/patient. On three particular occasions, he saw that her eyes were glassy; her speech was unclear, though understandable; and she appeared unsteady on her feet. Mr. Dick did not, however, report these incidents or discuss them with anyone other than his wife, also an employee of the facility. These symptoms, which are often indicative of drug ingestion, are, according to Dr. Tumlin, also consistent with the effects of severe migraine headaches. Laura Burley, a licensed practical nurse (LPN), worked with Respondent at Lakeview Terrace Retirement Center during August through October, 1982. Ms. Burley has had 10 years' experience with drug abuse patients and is familiar with the symptoms of drug abuse. In her opinion, she saw similar conduct on the part of Respondent during this period. She saw, for example, the Respondent frequently ingest white tablets while on duty, though she does not know what they were. She has heard Respondent complain of the cold and put on a lab coat when the witness, herself, was not cold. She has observed Respondent clutching her stomach and holding her head and has heard Respondent say she did not know if she would make it through the day. She observed Respondent to have radical mood shifts and to eat a lot of sugar or foods with heavy sugar content. She has seen Respondent frequently try to get into the drug carts or get the keys to the drug cart. Ms. Burley also keeps a notebook in which she records what she perceives as unusual conduct on the part of her coworkers. She does this because of her interpretation of a request by the facility administrator for her to report to him any significant occurrences. Doris Draper was also an LPN at LVT while Respondent worked there. A part of Ms. Draper's duties was to dispense drugs. On one occasion, while she was doing so, Respondent came to her and asked for the keys to the medication cart, as she needed to get some Tylenol for another nurse, Mrs. Dick. On a later discussion, Mrs. Dick denied having asked Respondent to get her Tylenol, but said she had wanted some other medicine for a patient. On the basis of this, the two nurses concluded that Respondent intended to substitute regular Tylenol for a patient's Tylenol #3 so as to convert the latter codeine-included medication to her own use. However, though Ms. Draper heard other nurses say they suspected Respondent was taking drugs, she never saw her do so. Nurse Donna Devoe also worked with Respondent at LVT during the period in question. At one point during Respondent's employment, at the request of Ms. Burley and Ms. Draper, she reviewed the charts on a patient, Mrs. Testerman, who, by her recollection, rarely received pain medication. Her review of these patient records revealed that the patient was recently being given pain medicine more frequently than usual by Respondent, whom she counseled about the situation. Ms. Devoe also discussed the situation with the Center administrator, but, because there was no evidence of drug diversion, nothing further was done about it. Her review of the records also revealed that all medications given to patients by the Respondent were given in accordance with a physician's orders, and there was no evidence that Respondent violated these orders. Based on all the above, if Respondent was under the influence of any medication, it was the medication prescribed for her by Dr. Tumlin and not non- prescribed substances. The symptoms described by Mr. Dick, certainly not a trained drug therapist, are equally pertinent to migraine headaches. The innuendos of Ms. Burley, Ms. Draper and Mrs. Dick are just that--innuendos--and not probative of any improper drug usage. Not one witness could conclusively state there was any instance where Respondent failed to properly treat patients or was incapable of doing so because of drugs, alcohol, or illness. Mr. Speener, to whom Ms. Devoe and Ms. Burley both admittedly reported, stated that he had no reports of poor or improper treatment. By his own admission, due to her prior involvement, for which she had been disciplined, Respondent was the subject of "preconceived concerns and misinformation, rumors, and etc.," and she found it difficult to function. In his letter to Ms. Keefe, Mr. Speener said that if there was any conclusive, provable evidence of incompetence, or if there was any substantiation of drug involvement, Respondent would be immediately terminated. Mr. Speener could find no evidence of such and neither can I. In fact, he found her to be a highly professional nurse. During the period of her employment, Respondent had responsibility for the care of, inter alia, Clifford Bryant and Arthur Everett. Arthur Everett was an elderly, paralyzed individual who, on the occasion in question, was administered treatment by Respondent for an impacted bowel. This procedure was inordinately messy and resulted in fecal material getting on both Mr. Everett's clothing and the bed clothes. Both had to be changed. When Respondent came to the patient's room to perform this procedure, she failed to bring a clean gown with her. As a result, by her own admission, Mr. Everett was left totally undressed and uncovered without the screen drawn for the period of time it took her to go get him a clean gown. While this was going on, Mr. Everett was one of two patients in a semiprivate room. The other was a blind, stroke patient. No one else was in the room at the time, but Ms. Burley came in for one brief period while Mr. Everett was unclothed. With regard to Mr. Bryant, at the time in question, he had just arrived at the facility by ambulance and was in wrist restraints because he had previously tried to pull out his catheter. Respondent was in the midst of completing an admission examination of the patient when Ms. Burley entered the patient's private room to find out what was taking so long. She observed the patient to be fully unclothed with the bed clothes pulled down to the foot of the bed. This was also observed by Mrs. Dick, who, when she entered the room, saw the patient nude and the Respondent there with a stethoscope in her hand. While Ms. Burley does not consider this to be patient abuse, she does consider it to be an abuse of his privacy, poor practice and a violation of the standards of LVT. This opinion is shared by several others employed there, such as Nurse Warren and Mary Willis, a registered nurse of long standing and vast experience who is currently Supervisor of Investigative Services for DPR. Respondent denies that Mr. Bryant was totally unclothed at any time she was with him. When he arrived at the facility, he was in pajamas, and she helped him from the wheelchair to the bed before she began the examination. In order to complete the examination, it was necessary for her to unbutton his pajama top to listen to his chest sounds and to observe his chest movement. She also had to lower his bottoms to examine that part of his body as well, but in each case, she asserts she replaced the clothing when she was finished. In light of the nature of Ms. Burley's and Mrs. Dick's testimony on other aspects of this case, nebulous and devoid of specifics as it was, the fact that both were in the room only briefly and the apparent animosity felt by these witnesses toward the Respondent, the evidence shows that Mr. Bryant was not left totally unclothed at any time. On October 29, 1982, Mrs. Catherine Devore was visiting her husband, Henry, in his private room at LVT when Respondent entered the room to give him his medication. Mr. Devore is blind and has had a stroke and generally is uncommunicative. Because of his resistance to taking his medicine, it is concealed in ice cream which is fed to him. Mrs. Devore indicates that at the time in question, her husband's head was forward with his chin on his chest, and Respondent lifted it up for the medicine by entwining her fingers in the hair at the top of his head and pulling it up. Respondent did not yank his head up, but lifted and held the head up by the hair while she administered the medication. When Respondent released the head, the hair where Respondent had been holding remained standing up. Mrs. Devore did not consider this to be abuse, nor did she feel her husband was hurt by this action. She did, however, consider it unusual and unnecessary and felt that if the Respondent would treat her husband that way with her there, she was uncertain of the treatment he would get if she were not there. As a result, when she got home, she called one of the owners of LVT, to whom she reported the incident and who suggested she report it to the administrator, Mr. Speener, which she did. Respondent indicates a somewhat different story. When she went in to give Mr. Devore his medicine, Mrs. Devore stated, "He's not going to like that," at which point Mr. Devore put his head on his chest. Respondent then put one hand on his head and began to rub it while at the same time placing her other hand on his chin. With this, Mr. Devore voluntarily raised his head. When Respondent moved the hand on top of the head, the hair where she had been rubbing remained standing. In light of the basic improbability that a nurse would, without provocation, grab a patient by the hair and pull his head up with the patient's wife standing by and the fact that the actions described by Respondent could readily be mistaken for pulling, it is clear that Respondent did not pull Mr. Devore's hair on October 29, 1982, and, therefore, her actions did not constitute abuse. No report of abuse was ever filed with the Department of Health and Rehabilitative Services regarding this incident. Because of Mrs. Devore's report, however, Respondent was shortly called to the office of Mr. Eugene K. Speener, administrator of the 20-bed skilled nursing facility at LVT. After some discussion of the incident and of some other discussions they had had relating to Respondent's alleged rigidity of personality, he suggested, and she agreed, that her immediate resignation would be appropriate and accepted. Respondent was not discharged from employment, and her departure had nothing to do with drugs. Unfortunately, however, because of the knowledge of her former difficulty and the continued gossip and insinuations by coworkers, there was always present the spectre of her earlier problem, and Mr. Speener admits telling Respondent he felt it was difficult for her to function as a nurse at that facility because of it. He also included these sentiments in a letter he sent to Ms. Keefe of the Board of Nursing, sometime between October 15 and October 29, 1982. When it was determined that Respondent would resign effective immediately, Mr., Speener called Ms. Burley, who was off duty at the time, and requested that she come in and replace Respondent at 5:00 p.m. Ms. Burley agreed. In the interim, Respondent remained in another office until her departure from LVT sometime between 5:00 p.m. and 7:00 p.m. on October 29, 1982. When Ms. Burley got to the ward that day, she discovered that Respondent had already made entries in various patients' records showing procedures taken, medications given, vital signs taken and patient condition noted, all as of 8:00 p.m., October 29, 1982. Respondent admitted to Ms. Burley before she left that day that she had advance-charted the 8:00 p.m. medications that had not been given, and at the hearing admitted the other advanced chartings. She contends, however, that she did so partially upon the previous written advice of Ms. Burley, who, early in Respondent's tenure at LVT, suggested to her that she lump together three hours' medication at one time. It is also common practice to chart activities at a time other than when the actual function is accomplished. To do otherwise would make it impossible for a person to do what was required and at the same time accomplish the attendant paperwork. It is, however, unacceptable practice within the nursing profession, according to Ms. Willis, to chart substantially in advance. This is because things may change which alter the patient's condition, so that a particular precharted drug, for example, is not actually given, or some procedure is not followed. Generally, a leeway of one half hour on each side of the procedure or drug is acceptable. Somewhat after the submission of her application to Lake Community Hospital, she was employed by that facility as a nurse and is still employed there. According to two former coworkers, Respondent has performed in an excellent manner and has been recommended for promotion. Respondent's drug therapist for the last few years is of the opinion that Respondent is not now, nor was she during the August through October, 1982, period, abusing medications. Respondent is involved in nursing and has continued to improve. In fact, her supervision was terminated as unneeded in March, 1982. It was only because supervision was made a part of the Order of Probation that she is back with Petitioner.
Recommendation Based on the above, it is, therefore, RECOMMENDED: That Respondent be reprimanded and that probation be continued one additional year until October 11, 1984. RECOMMENDED this 21st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Helen P. Keefe Executive Director Board of Nursing Department of Professional Regulation Room 504 111 Coastline Drive, East Jacksonville, Florida 32202
Findings Of Fact At all times relevant hereto Respondent was licensed as a practical nurse in the State of Florida. On June 6, 1990, Respondent was employed by Care Team, a home care and staffing agency and was assigned to work at Tampa Memorial Hospital on the 3 p.m. to 11 p.m. shift on the surgical floor. On this date, Respondent was observed by other nurses to laugh hysterically, without apparent cause; to look at a blank wall and appear to be reading something written across the wall; to appear to be plucking invisible objects out of the air; to appear lost and confused; to leave the nursing station to watch TV in the surgical waiting room; and to fail to provide nursing care to patients for which Respondent was responsible. Among these nursing duties not accomplished by Respondent on this date was the catheterization of patient M.H., the failure to release traction on another patient's foley catheter, and allow drainage bags on patients with continuous bladder irrigation bags to become completely full and the drips to run dry. As a result of these problems, Respondent was relieved of duty before the end of her shift and told to go home at 7 p.m. Respondent acknowledged in her testimony that she started her shift on June 6, 1990 with negative feelings and was relieved when told to go home. She denies any neglect of patients that evening and states another nurse had offered to change the drips, but failed to do so, thereby leaving Respondent at fault. Respondent had no recollection of the incident involving the catheterization of a patient. Respondent was involuntarily committed to the Pinellas Mental Health Center on October 31, 1989 on the basis of testimony from two psychiatrists who testified Respondent was depressed, had irrational thinking, impaired judgment, denies she has any problems and refuses treatment. (Exhibit 2) Respondent was released November 9, 1989 after a hearing in which the General Master found the evidence of impairment not clear and convincing, with a diagnosis of schizo-affective Disorder/Bipolar Type. Respondent prefers working in pediatrics and considers herself a very good pediatric nurse. She is also deeply in love with a pediatrician and hopes to become his wife. However, this doctor is married and denies any involvement with Respondent other than a professional one for a brief period only. Respondent does not believe she has any mental or emotional problems and rejects any suggestion that she needs mental health counseling.
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent for violation of statutory provisions regarding the practice of nursing. By Administrative Complaint the Respondent was charged with unprofessional conduct and with being unable to practice nursing with reasonable skill and safety to patients.
Findings Of Fact At all times material hereto, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0711261. Respondent was employed at Humana Hospital Cypress in Pompano Beach from on or about October 10, 1988, until on or about March 10, 1989. During her employment at Humana Hospital Cypress, Respondent was absent from her duties without giving notice on four occasions, was absent with notice on one occasion, and was on sick leave on five different occasions. These absences constitute an excessive number of absences. The pattern of the absences also raises concerns as to whether the absences are caused by behavioral problems. During her employment at Humana Hospital Cypress, Respondent was observed while on duty by several Charge Nurses (Dysen, Fabella, and Keough) to be extremely nervous; jumpy; on the verge of tears or crying when asked what was wrong; to be constantly complaining about being tired and hungry; to be frequently looking very tired, taking naps during lunch break, and not waking up in time for duty; to be frequently flailing her arms around, talking verbosely in high volumes, and speaking about subject matter inappropriate at a nurse's station; and exhibiting generally unpredictable and worrisome behavior. Lynn Whitehead, R.N., has been a staff nurse on the Substance Abuse floor of Humana Hospital Cypress for approximately six years. During February of 1989, Nurse Whitehead spoke to Respondent after Respondent had a hysterical crying reaction to learning that she failed the Telemetry Nursing course. During Nurse Whitehead's discussion with Respondent, Respondent admitted to Nurse Whitehead that Respondent used drugs and had been to some rehabilitation group meetings in the past. Respondent's behavior in her discussions with Nurse Whitehead - extreme anxiety, pacing, upset, complaints of hunger and exhaustion - along with Respondent's excessive absences, were consistent with drug abuse behavior based on Nurse Whitehead's knowledge and experience. On or about February 28, 1990, Respondent was asked by Nurse Fabella to submit to a urinalysis based on Fabella's observation of Respondent's erratic and unusual behavior which led Nurse Fabella to suspect that drug use might be involved. Respondent refused to submit to a urinalysis and stated the reason was because she knew marijuana would show in her urine. Nurse Fabella counseled Respondent about her erratic behavior, excessive absences, refusal to submit to a urinalysis, and unprofessional nursing conduct, on or about February 28, 1989. Subsequent to the counseling by Nurse Fabella, Respondent failed to keep an appointment with Nurse Cruickshank to discuss her situation and the decision was made to terminate Respondent. Amy Mursten, Investigative Specialist for the Department of Professional Regulation, interviewed Respondent for the purpose of conducting an investigation into her behavior and suspected drug abuse. Ms. Mursten discussed the Intervention Project for Nurses which could help rehabilitate the Respondent and save her nursing practice, but Respondent refused this help and denied having a problem. On at least two occasion, Respondent failed to act professionally or responsibly towards a patient and would have given inappropriate dosages or types of medications to the patients had someone not intervened. The Respondent's behavior patterns described above constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent's behavior patterns described above demonstrate an inability to practice nursing with reasonable skill and safety to patients by reason of use of drugs or narcotics or as a result of her mental condition.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Nursing enter a final order in this case concluding that Respondent has violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct, and has violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients. It is further recommended that the Board's final order suspend Respondent's license until Respondent has demonstrated to the Board that Respondent is able to practice nursing with reasonable skill and safety to patients and, once Respondent has demonstrated her ability to so practice, place Respondent on probation for a period of one year subject to such requirements as may appear to the Board to be necessary to assure that Respondent continues to practice with reasonable skill and safety to patients. DONE and ENTERED in Tallahassee, Leon County, Florida, this 30 day of April 1990. MICHAEL M. PARRISH 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 30 day of April 1990.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Findings Of Fact The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m. The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004. Julia Woods was removed by the Nursing Director, Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she specifically instructed Ms. Wood to improve the quality of patient care. Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit. The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice. The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed. The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient. Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care. The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit. Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient. On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated. The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner. Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner. Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective Action in a 12-month period would result in termination. Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season. The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection. The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin. The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient. The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.” Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change. A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences. Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005. Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action. Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand. In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose. The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees. The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in Ms. Woods's office when discussing the Petitioner. The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American. The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m. Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all. The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director. Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and persuasiveness.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010. COPIES FURNISHED: Nancy Toman Baldwin, Esquire Law offices of Nancy Toman Baldwin 309 North East First Street Gainesville, Florida 32601 Marquis W. Heilig, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Nursing, was the state agency in Florida responsible for the licensing of registered nurses and the regulation of the nursing profession in this state. Respondent, Maria S. Melegrito was licensed as a registered nurse under license number RN 1138222. During the month of March, 1992, L.B. was a patient at HCA New Port Richey Hospital suffering from congestive heart failure and a decubitus ulcer on his coccyx. He was in and out of the hospital frequently during the month. During this period, Respondent called Mrs. B. on the phone and solicited being hired to care for him at home when he was released from the hospital. Respondent is alleged to have indicated she was L.B.'s favorite nurse. At first Mrs. B. declined, but on or about March 12, 1992, K.B., the patient's wife, after checking on Respondent's credentials with her husband's physician, contracted with the Respondent to provide home health care to L.B. upon his discharge from the hospital. The arrangements were made through Maximum Care, Inc., a home health nursing agency of which Respondent was a cofounder. In a telephone conversation with K.B. on March 12, 1992, the day prior to L.B.'s discharge from the hospital, Respondent assured K.B. that Respondent would supply cardiac trained registered nurses around the clock to care for L.B. K.B. understood from this conversation that a cardiac trained registered nurse would be waiting at the patient's home when he arrived there after discharge. No contract was signed between Respondent and L.B., his wife, or their daughters. That same day, March 12, 1992, Respondent, in a conversation with B.C., one of L.B.'s daughters, indicated that Respondent would be taking care of the patient; that she would relieve the family members of their responsibilities in caring for him. Respondent indicated she was a cardiac care specialist and that she would be present at the patient's home the following days, with all necessary medical equipment, when the patient arrived from the hospital. B.C. also understood Respondent to represent that she would provide certified nursing assistants, (CNA's), and that she was familiar with the patient's condition because she had been his personal nurse while he was in the hospital. In a conversation with G.P., the patient's other daughter, Respondent said she would provide private nurses around the clock; that home health aides and CNA's would be present to assist the family in caring for the patient; and that Respondent would personally be present at the home with the necessary oxygen equipment to greet the patient upon his arrival from the hospital. According to hospital records, L.B. was discharged to the care of his wife, K.B., and his daughter, B.C., at 10:20 AM on March 13, 1992, and the evidence indicates that the discharge form was signed by K.B. The party arrived at the home shortly thereafter, but Respondent was not present there when the party, including the patient, arrived. By the same token, the oxygen ordered by the patient's physician also was not there. Shortly after the patient and his family arrived home, Ms. B and one daughter went to the drug store. When they came back, they were met outside by K.B.'s grandson who kept K.B. outside while the daughter went in. It appears that while they were gone, L.B. suffered a cardiac episode. His daughter, B.C., laid him on the floor so that he would not aspirate his vomitus, but he appeared to have no pulse, no audible heartbeat, was not breathing, and appeared to turn blue from lack of oxygen. One of the family members attempted to contact the Respondent but was unable to do so. Finally, the family called the patient's physician who in turn called the oxygen supply house and directed that oxygen be delivered to the patient's home. Though the discharge form reflects the physician ordered oxygen for the patient, no evidence was presented as to who was to arrange for it. At approximately 1:00 PM the same day, Respondent contacted the family indicating she would "be right there." When family members told Respondent the patient had suffered a cardiac episode, she instructed them to leave him on the floor. Notwithstanding her promise to be right there, Respondent, according to the family, did not arrive at the patient's home until sometime after 3:00 PM. When she arrived she did not have with her oxygen, a stethoscope or a blood pressure cuff. Using the equipment owned by C.P., the patient's other daughter, also a nurse, Respondent took the patient's blood pressure while he was laying prone on the floor. She found it to be 60 over 40. Respondent tells a different story. While not disputing the allegation of her pre-need solicitation of the patient's family for her services, she contends that she was not advised of the immediate need for them until she received a call from one of the daughters at approximately 12:30 PM on March 13, 1992, indicating that the patient was to be discharged. She claims she immediately asked if there was anything needed for the patient's care and was told all was taken care of. She also claims she was told the patient would be at his home within 10 to 15 minutes. On cross examination, Respondent indicated the verbal agreement she had with the patient's wife called for her to be called when the patient got home and she would come, assess the patient and then decide if she or her firm could provide the services required. It is her contention that her initial visit to the patient's home on March 13, 1992 was for the purpose of rendering a patient assessment, and she ended up staying for five hours until she could arrange for follow-on nursing care to be present. This assertion is rejected, however. She had already indicated she knew the patient and was his favorite nurse in the hospital. She would have already been familiar with his condition. Ms. Melegrito further claims she arrived at the patient's house at 1:25 PM to find the patient on the floor with a blood pressure cuff on his arm and oxygen being supplied. Respondent claims it is usually the discharge nurse or the social worker who makes the arrangements for oxygen to be delivered to the patient's home, and it was not her responsibility to do so. There was no direct evidence to contradict this assertion, but it was the physician who ultimately arranged for the delivery of the oxygen. 11 Notwithstanding the allegation that the Respondent did not arrive until after 3:00 PM, the initial visit nursing notes, dated March 13, 1992, reflect in one place she arrived at 2:00 PM; in another place, that she arrived at 1:24 PM; and in a third place that she arrived at 3:00 PM. In its totality, the best evidence suggests that Respondent arrived sometime between 1:00 and 3:00 PM, neither as late as the family claims nor as early as she claims. There is some substantial question as to whether Respondent performed a proper initial assessment of the patient or devised a care plan for him when she arrived. An initial visit nursing note, prepared by the Respondent and bearing date of March 13, 1992, lists the patient's temperature, his pulse rate and his blood pressure. It also discusses a history of the patient's condition and certain initial observations of him. The second page of the form indicates that certain items were covered including a description of the patient's grip, his cardio-pulmonary status, the condition of his skin, his abdomen, ENT status and comments regarding his diet and genito-urinary status. The third page of the form described the patient as being fearful, anxious, restless, confused and disoriented, suffering from headaches, vertigo and blackout spells. He is described as having irregular breath with pale, dry, pallid skin, dry mouth and several difficulties in the cardio-vascular area. The body drawing on the form reflects he has an open bed sore at the base of the spine, and the intervention portion of the form indicates that the patient was found on the floor upon the Respondent's arrival, unconscious. His pressure was down and there was no palpable pulse. Patient was cyanotic and had appeared to have suffered another syncope syndrome. Nonetheless, Respondent noted that the patient's vital signs came back enough for him to regain consciousness, but notwithstanding, he was in the terminal stage of a cardiac condition and the instructions given by the family were not to resuscitate him in the event he should again reach the stage of unconsciousness. The parties agree that the Respondent gave the patient a sponge bath even though, at the time, he may not have been soiled. The family claims he was clean, but Respondent contends she bathed the patient to clean fecal material, urine and sweat from him and the bed clothes. Notwithstanding the Respondent's notation that the patient was confused or disoriented, neither his wife nor his two daughters considered him to be so, and after the patient was placed back in bed and cleaned up, according to the family members, Respondent spent the remainder of the afternoon at the patient's home on the telephone, trying to find a nurse to cover the next shift. Initially, she was unable to do so, and B.C. claims Respondent approached her to work as an aide and deliver patient care to her father. B.C. refused to do so. Respondent admits to a discussion with B.C. about hiring her to care for the patient but claims the discussion was in response to a question by the daughter, not a solicitation by Respondent. Respondent was apparently successful in securing a relief nurse because she was relieved at 5:00 PM by Dorothy Reisebeck, a licensed practical nurse, (LPN), who was not a trained cardiac nurse. According to Ms. Riesebeck she had been told by Respondent that the patient had been discharged from the hospital after minor surgery, and that she, Riesebeck, need only monitor him, check his oxygen, and make him comfortable. Notwithstanding Respondent's claim that she prepared an assessment of the patient and gave an adequate report to her relief, Ms. Riesebeck claims that Respondent failed to provide her with a care plan, an assessment sheet for the patient, or a list of the patient's medications and proper dosages. She also indicates Respondent did not inform her that the patient was suffering from congestive heart failure and was terminally ill. When fully advised of the patient's true condition, Ms. Riesebeck did not feel adequately prepared to care for him. Nonetheless, she remained on the scene until she was relieved at 7:30 the following morning. In this regard, Ms. Riesebeck claims she had been led to believe by Respondent that she would be relieved at 10:00 PM the prior evening, March 13. When she was relieved it was by another LPN, Ms. Holloway, who also had no cardiac care experience. When Ms. Holloway arrived, she also looked for the assessment sheet on the patient which should have been there, but was told by Ms. Riesebeck that one did not exist. They tried without success to contact Respondent and while Ms. Riesebeck and Ms. Holloway were on the scene, the patient suffered another acute cardiac episode. The family understood that since Ms. Holloway, who arrived at 7:30 AM, had worked all the previous night at the hospital, she would be there for only three or four hours until relieved by someone that Respondent had found to do so. Her shift was to end at 11:00 AM, but she was not relieved until Respondent appeared at 3:00 PM on March 14, 1992. Respondent's arrival did not appear to be for the purpose of providing nursing care. She was, upon arrival, dressed in high heels, makeup, jewelry and a flowered dress. A man was waiting for her in the car outside the house, and it was obvious to everyone that Respondent was neither dressed for nor prepared to perform a shift providing care for this patient. It was clear she had no intention of staying for that purpose. Before the Respondent left, however, she began arguing with Ms. Holloway, which culminated in Ms. Holloway leaving. Respondent then began arguing with both of the patient's daughters, and attempted by telephone to find someone else to cover the shift. Respondent appeared to be very disturbed. She was screaming at people on the telephone and reacting to her conversations by slamming the receiver down. Before the Respondent had arrived that day, because they were having problems getting the patient's medications and a morphine IV set up, the family called the patient's physician and requested that the Respondent be replaced by Hospice. Someone other than the Respondent, presumably the physician, was able to contact a pharmacy which sent IV equipment and morphine, saline, and demerol solutions to the patient's home. These medications had been ordered by the physician for the patient's pain after he was called by the patient's daughter. Respondent was present when the pharmacy order arrived and requested that the delivery person set up the IV. That individual refused, however, indicating she was not authorized to do so by the physician. Consistent with the family's request, somewhat later a representative of Hospice arrived, and upon the arrival of that individual, the patient's wife discharged the Respondent. With this, the Respondent became very angry and began screaming, banging on the table and slamming things around. All of this served to disturb and upset the patient. Because of this, it was necessary for family members to calm him down. After the argument with the family, Respondent took the bag containing the patient's medications, the medication record kept by the patient's wife over the prior year, and the patient's hospital prescriptions, and told one of the daughters that the medications were hers because she had paid for them. Respondent then departed the home with the gentleman in the car. The daughter called the police and reported the theft. Respondent did not return the morphine, the saline solution and a bottle of 100 Valium tablets. Ms. Sangster, A Registered Nurse Practitioner for 24 years, evaluated Respondent's performance in this matter for the Department. According to her, a home health nurse is supposed to go into the patient's home and assess his physical status to see what care is needed at home and to assess the ability of the nurse to provide those needs. This function also includes working with the patient's family and to help them in understanding the care required so that family members can administer medications when the nurse is not present. Ordinarily, patients retain a home health agency which has an arrangement with the hospital, on referral by a physician, or directly. Before the patient is discharged the agency should have contacted the patient, and upon discharge an agency representative should go to the patient's home as quickly as possible to meet with the patient and the family. The home health agency is responsible to the family, and the nurse on duty is also responsible to provide the needed care. If the nurse sees that the needs are greater than her skills, she must notify the agency to get some with the requisite credentials. The standard of care applicable to home health nurses requires the practitioner to: Report to provide care on time. Stay with the patient as long as required. Perform all tasks assigned. Perform all tasks needed. Do a complete physical assessment of the patient at the first visit. Administer proper medications on time. Perform all procedures required. Document all activities performed. Provide necessary information to the successor shift personnel either verbally or in writing. If the assigned nurse cannot report on time or stay as long as scheduled, then the home health agency is responsible to provide a substitute. The nurse must advise the home health agency in advance and leave a report for the replacement. The nurse on duty must not leave until the replacement arrives. The initial physical assessment establishes the starting point for future patient status. It is a part of the care plan. It must be done the first time the nurse goes into the home for the initial home visit. It is usually done by a registered nurse or, if a licensed practical nurse does it, a registered nurse must evaluate and approve it. Standard practice requires that all patient contact be documented to include what services are to be provided, and entries in the record should be made when a particular service is rendered or as soon thereafter as is possible. Ms. Sangster reviewed the investigative file in this case. All nurses providing treatment to this patient under the terms of the agreement were to be registered nurses who had cardiac training. This was not what Respondent provided. In addition, the physician's order sheet indicates oxygen was to be delivered to the patient's home and that Maximum Care was to provide the home health care. It is the home health agency's responsibility to insure that what is needed for the patient's care is available if not present on the arrival of the patient. Here, in Ms. Sangster's opinion, since Respondent was the first agent of the home health agency to arrive at the patient's home, it was her responsibility to call and arrange for the oxygen to be delivered. She failed to do this. Ms. Sangster examined all the patient's records with the home health agency. Ordinarily such documents will describe the patient's condition, appearance and level of activity. Much of this information is in the records prepared by Respondent. However, Ms. Sangster found many inconsistencies in the assessment. These related to how the patient was described by two different people who observed him. Respondent describes the patient as confused and disoriented, suffering from blackouts, swollen and pale, but with a good appetite and normal urine. She does not, however, indicate how that confusion should be handled. Another individual notes that the patient activity is normal and he is alert, with normal respiration, temperature and skin, a clear chest, and can speak and hear without difficulty. The family contends the patient was neither confused or disoriented. The Respondent's assessment notes reflect the decubitus on the patient but do not indicate how it will be treated or how any anticipated problem the patient might have should be handled. The form is a three page document. Only the first page reflects the patient's name. Ms. Sangster notes that many of the "yes" or "no" blocks checked on the second page do not have explanatory comments, and it is so found. Based on her evaluation of the entire care package provided to this patient by the Respondent, Ms. Sangster concluded that Respondent's actions in this case did not meet required standards because: There was a lack of documentation to support the actions taken, and that documen- tation present was both inconsistent and incorrect. She failed to provide that care contracted for 24 hours per day, that is, care by cardiac trained registered nurses. She left the patient alone with his family, which constituted - The abandonment of the patient and his family, She failed to insure the required equipment was on hand. She did an improper and inadequate patient assessment. She failed to place the assessment she did in the patient's file. She failed to conduct herself with professionalism in her relationship with the patient and his family. She failed to address safety issues, and As a result of all the above, she placed her patient in great harm. The allegation of abandonment is of great import. Abandonment, defined as either the nurse's failure to show up on time or to leave her patient before relief, is viewed as very serious in the nursing community. The home health nurse must, if she cannot provide coverage, make sure that her agency knows her limitations. Since in this case the Respondent was at least in part owner of the agency, she had a multiple responsibility. She should have arranged for someone to be present at the patient's home when he arrived; insured the necessary oxygen equipment was present; and done an immediate assessment of the patient, while he was on the floor, and communicated the patient's status to his physician. Ms. Melegrito claims she did all that was necessary for this patient considering he was a terminal patient with a "do not resuscitate" order on record. She insists he was never neglected. The wife was briefed on the patient's medications because, Respondent claims, she wanted to administer the medications herself. Respondent got the impression that the patient's wife was resistant to her caring for the patient. Respondent claims the action taken against her is racially motivated based on the fact she is the only brown skinned person being charged. Aside from the fact there is no evidence to support this assertion, she overlooks the fact she was the most qualified person involved and her credentials placed upon her a higher standard of performance than that placed on the other two nurses. Her contention is without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Maria C. Melegrito's license as a registered nurse in Florida be suspended for three years, following the expiration of which it be placed on probation for an additional period of three years, under such terms and conditions as may be prescribed by the Board of Nursing, and that she pay an administrative fine of $1,000. RECOMMENDED this 28th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28th day of November, 1995. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Maria C. Melegrito Federal I.D. number 08343-018 Federal Prison Camp Pembroke Station Danbury, Connecticut 06180 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Judie Ritter Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202
The Issue Whether Respondent violated Section 464.018(1)(h), Florida Statutes (2000), covering unprofessional performance of nursing duties and failure to conform to minimal standards of nursing practice, and if so, what penalty should be imposed.
Findings Of Fact Respondent Jane Wickham is a Licensed Practical Nurse in the State of Florida, having been issued license number PM1227531. Petitioner is the State Agency charged with regulation of the practice of nursing, pursuant to Chapters 20, 456, and 464, Florida Statutes (2000). On June 6, 2001, Respondent was a nurse employed by and/or working at Daytona Health and Rehabilitation Center (DHRC), Daytona Beach, Florida. On June 6, 2001, Respondent was assigned to provide patient care to patient M. M., an 81-year-old female patient, who suffers from Alzheimer's Dementia and/or Alzheimer's Disease and dementia. M. M. had been recently admitted to DHRC on May 23, 2001. Her records indicate she was very combative. Respondent had worked with M. M. between May 23, 2001, and June 6, 2001. On June 6, 2001, Respondent attempted to administer oral medication to M. M.. M. M. said the medicine upset her stomach and refused it. She was heard repeatedly saying, "I don’t want it!" Respondent enlisted assistance from a Certified Nursing Assistant (CNA), who helped Respondent give M. M. a portion of the medicine, which M. M. then spat into Respondent's face. Some medicine struck Respondent. Respondent wiped herself off with a towel. She then grabbed M. M. forcibly by the arm, and briskly walked her into the dayroom and sat her on the couch. Lynn Peabody, Physical Therapy Assistant, observed M. M. and Respondent in the dayroom. M. M. attempted to get up from the couch and away from Respondent. M. M. and Respondent were swinging at each other, but Ms. Peabody was unable to see any "striking" by Respondent. M. M. swung the towel and knocked off Respondent's glasses. At that point, Respondent one again grabbed M. M. forcibly by her arm, wrenched her up from the couch, and briskly walked her to her room. Respondent used such force that M. M.'s slipper was pulled off as she tried to resist being pulled down the hall by Respondent. Respondent put patient M. M. in her room, shut the door, and held the door shut, trapping patient M. M. inside. While trapped in the room, M. M. was yelling, screaming, and trying to get out of the room. M. M. was upset and crying. Judy Kiziukiewicz, Marketing Director, was in the restroom across the hall from M. M.'s room. She heard screaming and banging from the altercation. She heard M. M. calling, "Help! help! help!" She also heard Respondent saying, "I'll kill you! I'll kill you!" Ms. Kiziukiewicz exited the restroom and went to M. M.'s aid. M. M. was shaky, tearful, frightened, and holding her arm, which was very red. M. M. said to Ms. Kiziukiewicz, "She won't let me out." Ms. Peabody testified without refutation that she observed Respondent shut M. M. in her room and hold the door closed, while M. M. shouted "Let me out!" Ms. Peabody also heard Respondent say, "I've had enough of this shit." About 3:00 p.m. on June 7, 2001, Janice Ullery, Licensed Practical Nurse, documented in patient M. M.'s records that M. M.'s right thumb was swollen and noted bruising. On June 8, 2001, Thomas Mistrata, an Investigator for the Department of Children and Families, interviewed patient M. M. He did not testify, but his report was admitted, pursuant to Section 120.57(1)(c), as explaining or supplementing direct evidence. His report indicates bruising to M. M.'s right hand, along the thumb extending to the wrist, and small circular bruising to M. M.'s arm, which appeared to him to be a hand print. His report also indicates observation of bruising to the top of M. M.'s left hand that was circular and approximately four centimeters wide. He took photographs of the bruises. Ms. Kiziukiewicz, who did testify, observed that these photographs did not fully show the redness of M. M.'s arm on June 6, 2001, when she observed M. M.'s injuries immediately after M. M.'s altercation with Respondent. On June 9, 2001, M. M. was examined by James R. Shoemaker, D.O. Dr. Shoemaker observed and documented in M. M.'s DHRC medical records a bruise on M. M.'s right hand. Upon the expert testimony of Meiko Miles, Licensed Nurse Practioner and Registered Nurse, it is found that Respondent's conduct with regard to Alzheimer's Patient, M. M., was below prevailing standards of nursing, constituted negligence, and further constituted a failure to conform to the minimal standards of acceptable and prevailing nursing practice for elderly, fragile patients or for patients refusing medications. Even though Ms. Miles was not present for all of the witnesses' testimony concerning the actual altercation between Respondent and M. M., I accept Ms. Miles' testimony based upon her review of medical records, nursing notes, and medical administration reports, and given her answers in response to questions which conformed to the facts as related by the witnesses who had observed the actual event. I also accept the testimony of Ms. Miles and other witnesses to the effect that Respondent's training and experience had or should have provided her with less extreme methods upon which to rely in dealing with M. M.'s resistance and combativeness.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a final order which finds Respondent, Jane Wickham, guilty of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005 (12) and (13), Florida Administrative Code; and imposing a penalty as follows: Issues a reprimand; Assigns a fine of $300.00, plus the cost of investigation; Requires that Respondent complete a specified number of hours of continuing education course work in the subject areas of anger management and patient rights; Places Respondent on probation until such fine is paid and such course work is completed, the probation to be upon such conditions as the Board deems appropriate to protect the public health, safety and welfare; and Requires, after the fine is paid and the course work is completed, that Respondent appear before the Board to determine if she is safe to practice and to determine if any further probation is warranted, and if so, to determine the terms of that probation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July 2003.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent is now, and has been at all times material hereto, a licensed practical nurse in the State of Florida holding license number PN 0626161. At all times material hereto, Dr. Vladimir Rosenthal owned three clinics in Dade and Broward Counties at which he performed abortions. The clinics were located in Coral Gables (hereinafter referred to as the "Coral Gables clinic"), North Miami (hereinafter referred to as the "North Miami clinic") and Plantation (hereinafter referred to as the "Broward clinic"). All three clinics were licensed under Chapter 390, Florida Statutes. In September and October, 1989, Respondent was employed by Rosenthal and worked full-time as a licensed practical nurse in the North Miami clinic. During this period of time, she had no responsibilities with regard to the other two clinics owned by Rosenthal. Among Respondent's duties at the North Miami clinic during this time period was to prepare, under Rosenthal's direct supervision, packages of medications that Rosenthal gave to his patients, free of charge, to take home with them upon their discharge, a practice that Rosenthal has since discontinued. 6/ On September 30, 1989, the Department of Health and Rehabilitative Services (HRS) conducted an on-site inspection at the Coral Gables clinic. Respondent was not present at the clinic during the inspection. Nor were there any patients at the clinic at the time. Approximately 50 small manilla envelopes containing multiple doses of medications were found in a drawer of a desk in the clinic. The envelopes were labeled to the extent that they indicated the name of the drugs they contained, but they did not provide any information regarding the lot number, expiration date or the name of the manufacturer of the drugs. Carmen Penaloza, one of the clinic workers who was present during the inspection, was asked to demonstrate how these packages were prepared. Penaloza proceeded to take an empty manilla envelope like the ones that had been found in the desk drawer and fill it with medication that came from a large container. In performing this demonstration, she did not use gloves and her bare hands came in contact with the medication. Carlos Arias, a licensed pharmacist and one of the HRS employees who participated in the inspection, advised Penaloza that the technique she had employed was unsanitary and recommended that in the future she use a tray and spatula like pharmacists do to perform such a task. The HRS inspection also revealed that medical devices were being stored in a refrigerator that also contained food items. On October 26, 1989, HRS conducted an on-site inspection of the North Miami clinic. Arias was among the various HRS employees who were on the inspection team. Diane Robie, a medical quality assurance investigator with the Department, accompanied the team members on their inspection. Approximately 30 envelopes containing medications were found during the inspection. They were similar to the packages that had been discovered the month before at the Coral Gables clinic. Respondent was at the clinic when the inspection was conducted. Penaloza was also there. No patients were present, however. Respondent was asked to demonstrate how the packages were prepared. Penaloza was nearby at the time the request was made. She saw Respondent nervously looking around and concluded that Respondent was unable to locate any sterile gloves to use. She therefore told Respondent where such gloves could be found. Respondent then donned the gloves, laid a clean piece of paper on top of the desk where she was situated, placed tablets from a large container onto the paper and pushed each tablet with a tongue blade into a small manilla envelope. 7/ The technique that Respondent used during her demonstration, while it may have been unconventional from the perspective of a pharmacist like Arias, nonetheless was antiseptic and therefore acceptable. Sometime during the inspection Respondent made a statement that led Robie to erroneously believe that Respondent was responsible for packaging medications, not just at the North Miami clinic, but at the Coral Gables clinic as well. A finding of probable cause was initially made in this case on May 14, 1990. An Administrative Complaint was thereafter issued and the matter was referred to the Division of Administrative Hearings. The Department received the following letter, dated September 4, 1990, from counsel for Respondent concerning settlement of the case: This will confirm our understanding that you will file a notice of dismissal with DOAH of the case now pending against my client and, providing the dismissal is confirmed as a final dismissal and closing order entered by the probable cause panel, that Ms. Echlov will agree not to seek fees against your agency under the Florida Equal Access to Justice Act. In the event the panel does not approve a final dismissal and instructs you to refile the case, neither party will be prejudiced by the present agreement and each party will retain all rights otherwise available to them, including my client's rights to seek fees should the case be refiled. If this does not reflect our understanding, please notify me at once. Otherwise, please fax me a copy of your notice of dismissal so that I can take the final hearing off my calendar. Thank you for your efforts to resolve this matter amicably. Counsel for Respondent sent to the Department, and the Department received, the following follow-up letter, dated November 6, 1990: You may recall that we reached an agreement in the above-referenced case providing for a voluntary dismissal on your part and promise on mine that my client would not seek attorney's fees under the Equal Access to Justice Act. You had to take the case back before the Probable Cause Panel and ask them to close it. In order that I can close my file and know that this matter is, in fact, concluded, please let me know whether you have taken the case back before the Probable Cause Panel and, if so, the outcome. If there are documents reflecting same, please, please send me a copy. If the case has not been taken back before the Panel, please let me know when this will be done. Thanks. I'll be looking forward to hearing from you. Counsel for Respondent sent to the Department, and the Department received, a third letter, dated January 14, 1991, the body of which read, as follows: It has now been over four months since we reached our "understanding" that DPR would dismiss the case pending before DOAH (which you did) and that my client would forego her right to seek fees under the EAJA, providing (to quote from my September 4, 1990 letter to you) "that the dismissal is confirmed as a final dismissal and a closing order [is] entered by the probable cause panel." The final part of the bargain has never been performed so far as I know (and, if it was performed, the action was illegal since I requested notification of the date when the matter would be presented to the panel so that I might attend or send a court reporter but never received any). I have not, of course, received any final order of dismissal from the probable cause panel. If, within ten days of the date of this letter, I have not received either: an order of closure from the probable cause panel, or the time, date and place when our agreement will be presented to the panel, I will consider that DPR is in breach of the agreement and pursue all remedies available to my client, including attorneys' fees. I look forward to hearing from you at your earliest convenience. The probable cause panel met a second time, at which it determined not to reconsider its initial finding of probable cause. 8/ Neither Respondent nor her attorney were notified of this second meeting of the probable cause panel. Following this meeting, an Amended Administrative Complaint was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the Second Amended Administrative Complaint, and (2) dismissing said complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992.
