The Issue The issue for disposition in this proceeding is whether Petitioner, Ms. Fearon, is entitled to licensure by endorsement as a registered nurse in Florida. This requires a determination of whether her education is substantially equivalent to or more stringent than required in Florida, pursuant to Section 464.009, Florida Statutes, and Rule 64B9-3.008, Florida Administrative Code.
Findings Of Fact Petitioner Sylem May Fearon (Ms. Fearon) was born in Jamaica, approximately 68 years ago. After being educated in Jamaica she emigrated to England to pursue an education for the practice of professional nursing. Ms. Fearon took courses in geriatric nursing in England for two years, then proceeded to do a three-year general training program (1960-1963). After the general registered nursing education, she took courses in midwifery for two years, passed an examination, and was qualified as a certified nurse midwife in September 1965. Approximately 32 years ago, Ms. Fearon responded to nursing recruiters from the United States; she emigrated to the United States and commenced working as a staff nurse in a hospital in Washington, D.C. Since emigrating to the United States, Ms. Fearon has become a citizen. She took the examinations for nursing licensure in New York and Massachusetts and was successful in obtaining licensure in both states, as well as in Washington, D.C. She maintains current licensure as a registered nurse in Washington, D.C. Approximately two years ago, Ms. Fearon moved to Florida and commenced application for licensure by endorsement as a registered nurse in this state. Florida's and other states' nursing boards do not have reciprocity with each other in the sense that if you are licensed in one state you may also practice in others. Florida and other jurisdictions have licensure by endorsement which allows an applicant for licensure to demonstrate that he or she has passed an examination in another state and has the educational background that is substantially the same or more stringent than required by the state in which the applicant is seeking licensure. This allows an applicant to become licensed without having to take another examination but does not waive other requirements for licensure such as education. After Ms. Fearon applied for licensure by endorsement in Florida, nursing board staff determined that she met all of the requirements except for some areas of her education. The Board of Nursing in Florida has developed guidelines to implement its broad rules on what specific education is required. When staff determines those guidelines are not met, the individual case is brought to the Board which then makes the ultimate decision. In Ms. Fearon's case, the Board accepted the deficiencies identified by its staff and entered the order which Ms. Fearon has challenged in this proceeding. The staff and Board considered a transcript of Ms. Fearon's registered nursing education from the University of Sheffield School of Nursing and Midwifery, hereinafter referred to as the official transcript. Ms. Fearon also provided copies of a "Statement and Recommendation by Director of Nursing" dated July 20, 1967, hereinafter referred to as Petitioner's transcript, and a copy of correspondence from the Chesterfield School of Nursing dated May 2, 1968, which stated Ms. Fearon attended lectures in elementary psychology (8 hours), psychiatry (5 hours) and head injuries (2 hours), hereinafter referred to as the 1968 supplement. The official transcript includes coursework that is not listed on Petitioner's transcript, and there are discrepancies between the official transcript, Petitioner's transcript, and the 1968 supplement; however, these discrepancies did not prejudice Ms. Fearon, according to Dr. Stiehl, executive director of the Board. According to the official transcript, Ms. Fearon's education at the Royal Hospital of Chesterfield in Derbyshire, England, consisted of the following coursework in hours: Theory Hours Anatomy and Physiology 42 Personal and Communal Health 21 First Aid 15 Nutrition 8 History of Nursing 2 Elementary Psychology 8 Bacteriology and Principles of Asepsis 15 Theory of Nursing 66 Demonstration and Practical Classes 103 Bandaging 13 Principle of Surgery and Surgical Nursing 15 Principle of Medicine and Medical Nursing 19 Operating Theatre Technique 3 Gynecology and Introduction to Obstetrics 10 Diseases of Ear, Nose and Throat 5 Genito-Urinary Diseases 4 Diseases of the Eye 3 Lecture by Anesthetist 1 Orthopaedics 4 Pharmacology 4 Communicable Disease 6 Venereal Disease 4 Pediatrics and Nursing of Sick Children 8 Psychiatry 5 Social Services 4 Disease of the Skin 4 Radiography 2 Revision and Coaching Classes 10 Practical/Clinical Hours Childrens 375 Female Surgery 487.5 Male Surgery 637.5 Ear, Nose and Throat 150 Opthalmic 300 Female Orthopaedic 75 Male Orthopaedic 300 Male Medical 412.5 Female Medical 187.5 Gynecology 300 Theatre 412.5 Casualty 300 Private Patient Unit 150 Relief Night Duty 225 Preliminary Training School 450 Study Blocks 225 A nursing license is issued by the Board of Nursing for a general practitioner, i.e. the licensee can work in any area of nursing. Therefore, to practice safely, the licensee needs a basic theoretical underpinning in all the basic areas of nursing: medical, surgical, obstetric, pediatric, and psychiatric nursing. Hours spent in patient care is not equivalent to didactic study. Study of theory provides the proper theoretical base to make good clinical decisions. The Board's guidelines establish these minimum standards that must be demonstrated before its staff may approve an applicant (education in hours): Subject Theory Clinical Medical Nursing 35 150 Surgical Nursing 35 150 Obstetric Nursing 20 70 Pediatric Nursing 20 70 Psychiatric Nursing 20 70 Community Health Nursing NO SPECIFIED MINIMUM Ms. Fearon's official transcript met the minimum requirements in Medical Nursing (theory and clinical), Surgical Nursing (theory and clinical), Pediatric Nursing (clinical only), and Community Health Nursing. The official transcript documents only 5 hours of theory in Obstetric Nursing and no clinical hours. The official Transcript demonstrates 300 hours of clinical experience in "Gynecology"; however, gynecology cannot be substituted for obstetrics training. Gynecology and obstetrics training are not interchangeable. In gynecology the training looks at the female patient in totality and at a different set of disease processes than in obstetrics; in obstetrics the training focuses not only on the mother but the growth of the fetus and the health of the child. However, Dr. Stiehl reviewed Petitioner's Exhibit no. 3 (the midwife certificate) and determined that this documents the necessary training in obstetrics. The official transcript documents only 8 hours of theory in Pediatric Nursing and no clinical hours. Ms. Fearon testified that her midwifery training covered pediatrics; however, it does not meet the requirements for theory and clinical training in pediatrics. Midwifery training covers the child from birth to age one; pediatrics covers children from birth to age 18. The official transcript documents only 5 hours of theory in Psychiatric Nursing. The 1968 supplement demonstrates 5 hours in Psychiatric Nursing and 8 hours in Elementary Psychology. Psychology cannot be substituted for psychiatric training. Basic psychology training looks at normal behavior; psychiatric nursing training deals with comparing normal with abnormal and with disease processes such as manic depression. The course in head injuries is not identified as training in psychiatry. Petitioner's transcript documents 12 weeks of clinical training in psychiatry, and the Board staff reviewer gave her full credit for the needed hours. (See worksheet Respondent's Composite Exhibit no 1.) Although Ms. Fearon asserted that she had psychiatric training in her midwifery program, it would not provide the necessary minimum education in psychiatric theory. Ms. Fearon's documentation demonstrates deficiencies in psychiatric theory, pediatrics theory, and clinical training. Even if the information on Petitioner's transcript regarding psychiatric clinical experience is accepted, Petitioner still has not demonstrated sufficient theoretical education. Ms. Fearon testified that she completed two years of geriatric nursing training. No documentation has been provided of what the content of the course was. Education for a lower level of licensure would not be considered as meeting the requirements for licensure as a registered nurse. Ms. Fearon also testified that she completed courses in order to sit for her U.S. licensing examination. However, the courses were not identified, and no documentation of the courses has been submitted. Ms. Fearon did not document the requirements for licensure in New York in 1973, when she was first licensed in the United States. Instead she has responded to the staff's inquires with an effort to provide documentation of her education, most of which occurred over 35 years ago in a program which no longer exists.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Board of Nursing enter its Final Order denying Petitioner's application for licensure by endorsement without prejudice to her right to pursue her application as described above. DONE AND ENTERED this 22nd day of December, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1999. COPIES FURNISHED: Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Sylem May Fearon 7019 Hiawassee Oak Drive Orlando, Florida 32818 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issue is whether either respondent bore a relationship to Petitioner, as described in Section 760.10, Florida Statutes, that confers jurisdiction upon the Florida Commission on Human Relations to investigate Petitioner's claims of racial discrimination under the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner has been a registered nurse licensed in Florida for 14 years. Her specialty is intensive care. Seeking advancement within the profession of nursing, Petitioner decided to pursue certification as a Certified Registered Nurse Anesthetist (CRNA). A CRNA has advanced training and education in anesthesia and passes a national certification examination, which is administered by neither Respondent. Upon passing the examination and meeting other requirements, an applicant is entitled to certification from the Council on Certification of Nurse Anesthetists. After obtaining this certificate and completing other requirements, such as financial responsibility, the applicant is eligible for certification by the Florida Board of Nursing as an advanced registered nurse practitioner in anesthesiology, pursuant to Florida Administrative Code Rule 64B9-4.002. In Florida, a CRNA is authorized to administer anesthesia in in- and out-patient settings and bears significant responsibilities for the safety of anesthetized patients. Petitioner enrolled at Barry University to fulfill the educational requirements for certification. Barry University is a private institution headquartered in Miami Shores and is one of several institutions in Florida that offer a program to satisfy the educational requirements for CRNA certification. The 28-month program at Barry University leads to a master of science degree in anesthesiology. A major component of the educational program is clinical practice. The clinical practice requires a student to perform clinical responsibilities, under supervision, with an anesthesiology group. At the time in question, Barry University maintained relationships with different anesthesiology groups in most major urban areas in Florida. Petitioner began the Barry University program in January 2005 and withdrew from the program in May 2006. She chose to take her clinical training in Orlando, where Wolverine Anesthesia Consultants accepted Barry University students for clinical practice. Wolverine Anesthesia Consultants served various hospitals forming part of the Orlando Regional Healthcare System. Petitioner began the clinical portion of the program in May 2005. No cash is exchanged between Barry University and Wolverine Anesthesia Consultants as part of the arrangement described above. The obvious benefit for Barry University, whose program is not inexpensive, is that Wolverine's supervision of its students in the clinical practice allows Barry to offer a comprehensive anesthesiology program that qualifies its students to sit for the CRNA examination. The obvious benefits to Wolverine Anesthesia Consultants are access to newly certified CRNAs, who are in high demand, and the ability to recruit the students likeliest to excel within the profession. It is less clear, from the present record, if Wolverine is able to bill for the services of more advanced students. From time to time, Wolverine provides Barry with financial support, such as a stipend so that a financially needy student may attend an out-of-town conference, as the tuition charged by Barry does not cover the cost of the program or incidental student costs. The economic relationship between the respondents is only of relevance, however, in providing the background from which to assess the economic relationship between the respondents, on the one hand, and Petitioner--and, more specifically, the value that flows to Petitioner from one or both respondents. Clearly, the educational and clinical programs provide educational value, and potential economic value, if and when certification is obtained, but, as explained in the Conclusions of Law, the key question is what, if any, economic value flows to Petitioner from either respondent during her relationship with each respondent. Neither respondent paid Petitioner any income, compensation, or other benefit, directly or indirectly. Neither respondent ever provided Petitioner with an IRS W-2 statement or Form 1099, as evidence of payments to an employee or independent contractor. She never received compensation of any type from either respondent, nor did she receive an IRS Form 1099, reflective of the payment of compensation to an independent contract. Petitioner never received any other employment- related benefits from either respondent, such as health insurance or retirement benefits. Neither respondent provided Petitioner with housing or a housing allowance. Wolverine did not insure Petitioner on its medical malpractice insurance policy. Neither respondent covered Petitioner under workers' compensation. Wolverine Anesthesia Consultants required Petitioner to sign her name on any anesthesia record pertaining to a case in which she was involved. When Petitioner was required, due to the needs of a particular patient, to work in excess of her scheduled time, she was entitled, from Barry University, to "comp time," which means only that she could receive credit for the additional time worked when setting a subsequent schedule. However, apart from a grant from Barry University as part of her financial-aid package, Petitioner never received any financial benefit from either respondent. In addition to the occasional stipend, which Petitioner does not appear to have received, Wolverine Anesthesia Consultants provided minor items, such as lunches for meetings of the interns, which Petitioner may not have attended, and $50 Christmas gift certificates to all interns, including Petitioner. In no way does the record support an interpretation of these minor acknowledgements or courtesies as compensation because Wolverine is under no obligation to provide them, no relationship exists between the recipient of the item and the amount of time worked, and no relationship exists between the value of the item or stipend and the amount of time worked by the student receiving the item or stipend. Although Barry University administers a comprehensive test to all candidates for a master's degree in anesthesiology, passage of which is required for a degree, Petitioner withdrew from the program prior to the administration of this test. She withdrew essentially due to reports from Wolverine to Barry University that she had failed to make adequate progress in the clinical program.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petitions of Petitioner in these two cases. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Andrea Bateman, Esquire 1999 West Colonial Drive Orlando, Florida 32804 Cecil Howard, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esq. Deborah L. La Fleur, Esq. GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801 John A. Walker, General Counsel Barry University Division of Legal Affairs and Human Resources LaVoie Hall, Office 209 11300 Northeast Second Avenue Miami Shores, Florida 33161
The Issue Whether Respondent's license to practice nursing in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Teresa Iva Smith Lobato (Lobato) was licensed as a Registered Nurse in the state of Florida, holding license number RN-1655102, and was employed by the Bayfront Medical Center (Bayfront) located in St. Petersburg, Florida as a Registered Nurse. On May 13, 1990 Lobato was to work the 7:00 a.m. to 3:00 p.m. shift, and upon arriving for work was told that she was being "floated" from the Coronary Care Unit (CCU) where she regularly worked to the Progressive Care Unit (PCU) where she had never worked. Bayfront had a policy whereby nurses were "floated" from one unit to another, and at the time Lobato was employed by Bayfront she was made aware of this "floating" policy. Floating means that a nurse is assigned temporarily to a unit other than the nurse's regularly assigned unit. On May 12, 1990 Lobato was aware that she was to be "floated" on May 13, 1990, but had informed the Acting Director of CCU that she would rather cancel her work assignment than be "floated". However, upon arriving for work on May 13, 1990, and being told that she was being "floated" to PCU she accepted the assignment on PCU although she was not pleased about the situation. Bayfront has a policy that requires the outgoing nurse to audiotape a report for the oncoming nurse regarding the condition of the patients and any events occurring during the outgoing nurse's shift or if no tape is made to give report verbally to oncoming nurse. Upon arriving at PCU Lobato, along with PCU Charge Nurse (CN), listened to the audiotaped reports from the outgoing nurse on the following patients D. L. L., A. S., E. H., C. L. S., and H. K. As the morning progressed, Lobato became more and more displeased with her assignment, and let her displeasure be known to the PCU Charge Nurse. However, Lobato did not ask to be relieved from her assignment, although there was testimony that she indicated to the CN that she wanted to go home. Although the record is not clear as to the time the following events occurred, the sequence of those events are as follows: Around 9:00 a.m. Lobato was offered help by the CN but declined; Around 9:30 Lobato went on break, and again was offered help but declined; While on break Lobato talked to the Assis- tant Director of Nursing (ADON) about her under- standing of not being required to "float", and became upset with the ADON's response; After returning from break Lobato was again offered help by the CN which she accepted. The CN brought Michelle Nance, Medical Surgical Technician, and two RNs whose first names were Jessica and Melinda to the unit to assist Lobato. Around 10:30 a.m. Lobato and the CN dis- cussed Lobato's patient assignments, and Lobato advised the CN that everything was done, in- cluding all a.m. medication, other than the missing vasotec doses, and that she had some charting to do. Also, the patient's baths had been completed. Shortly after Lobato and the CN discussed her patients' assignments, the ADON came to the unit to determine what was troubling Lobato. The ADON and Lobato met and there was a confrontation wherein Lobato advised the ADON that she was quitting and the ADON advised Lobato that she was fired. After Lobato's confrontation with the ADON, Lobato left the unit and Bayfront without completing the balance of charting her patients' notes, and without giving the CN a report of the patients even though the CN requested her to do so. Lobato's reasons for not giving the CN a report was that she had discussed the patients with the CN throughout the morning, and that the CN knew as much about the patients as did Lobato at that time, and therefore, she had made a verbal report. Lobato's reasons for not completing the charting of her patients' notes was that when the ADON fired her on the spot the ADON accepted full responsibility for the patients, and Lobato's responsibility to both Bayfront and to the patients assigned to her ceased at that time, notwithstanding her understanding of the importance of charting so that appropriate care could be given to the patients on the next shift. By her own admission, Lobato left Bayfront around 10:30 a.m. on May 13, 1991 before the end of her shift without completing the balance of charting her patients' notes and without giving a report to the CN, other than the ongoing report given during the morning. Earlier while Lobato was still on the unit working the CN had obtained two registered nurses (RN) and a medical surgical technician to assist Lobato. One of the nurses whose first name was Jessica (last name not given) was the RN assigned to Lobato's patients by the ADON when Lobato left and she received a report on the patients from Janice Ritchie, CN. (See Respondent's exhibit 1, and Petitioner's exhibit 1 and Janice Ritchies' rebuttal testimony.) Although Lobato's failure to chart the balance of her patients' notes and make a report to the CN before she left may have caused some problems, there was no showing that any patient failed to receive proper care or suffered any harm as a result of Lobato leaving. While some of the patients may not have received all their medication before Lobato left, the record is not clear as to whether the medication was made available to Lobato to administer or that she was shown where the medication was located in the floor stock. The patient is the nurse's primary responsibility, and the minimal standards of acceptable and prevailing nursing practice requires the nurse, even if fired (unless prevented by the employer from performing her duties), to perform those duties that will assure the patient adequate care provided for after her absence. In this case, the failure of Lobato to compete the charting of her patients' notes and the failure to make a report to the CN, notwithstanding her comments to the CN upon leaving, was unprofessional conduct in that such conduct was a departure from and a failure to conform to minimal standards of acceptable and prevailing nursing practice.
Recommendation Based upon the foregoing, it is recommended that the Respondent be found guilty of violating Section 464.018(1)(h), Florida Statutes, and that she be given a reprimand. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7828 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Findings of Fact 1 and 2. 3.-4. Adopted in Findings of Fact 3 and 4, respectively. 5.-6. Adopted in Finding of Fact 4 and 5. 7.-8. Adopted in Finding of Fact 5. 9. Adopted in Findings of Fact 6 and 7. 10. Adopted in Finding of Fact 7. 11.-12. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record. 18.-20. Adopted in Finding of Fact 9 and 12, as modified. Adopted in substance in Findings of Fact 9 and 12. Rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 10, 11, 13 and 14. Adopted in Finding of Fact 11. Rejected as not being supported by substantial competent evidence in the record. 25.-27. Adopted in Findings of Fact 3, 15 and 15, respectively. Paragraph 28 is ambiguous and, therefore, no response. Rejected as not being Finding of Fact but what weight is to be given to that testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Rejected as being argument rather than a Finding of Fact, but if considered a Finding of Fact since there was other evidence presented by other witnesses. The first sentence is rejected as not being supported by substantial competent evidence. The balance of paragraph 3 is neither material nor relevant. Neither material nor relevant, but see Findings of Fact 6, 7, and 8. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 6, 7, and 8. Neither material nor relevant since the Respondent assisted in selecting those items to be included in Respondent's exhibit 1. First sentence adopted in Finding of Fact 8. The balance of paragraph 7 is argument more so than a Finding of Fact, but see Findings of Fact 12 and 14. More of an argument than a Finding of Fact, but see Findings of Fact 7(c), 12 and 14. 9.-11. More of an argument as to the credibility of a witness rather than a Finding of Fact. More of an argument than a Finding of Fact but see Findings of Fact 7(d) and 13. More of a restatement of testimony than a Finding of Fact, but see Findings of Fact 8 and 9. More of an argument than a Finding of Fact, but see Finding of Fact 10. More of an argument than a Finding of Fact, but see Findings of Fact 7(e) and 9. Not necessary to the conclusions reached in the Recommended Order. 17.-19. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 9 and 12. 20. More of an argument as to the credibility of a witness rather than a Finding of Fact. 21.-23. More of an argument than a Finding of Fact. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399 Teresa Iva Smith Lobato 6870 38th Avenue North St. Petersburg, FL 33710 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastliinne Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue This case concerns the issue of whether the Respondent's license as a registered nurse should be suspended, revoked or otherwise disciplined for submitting employment applications which contained false information and for unprofessional conduct in the performance of her duties as a nurse. At the formal hearing the Petitioner called as witnesses Janet Brown, Wilma Green, E. Jean King, Susan Coffin Brennan, Mary Ann Cottrell, and Mary Sheffield. The Respondent testified on her own behalf and was the only witness called by the Respondent. The Petitioner offered and had admitted into evidence, ten exhibits and the Respondent offered and had admitted into evidence, seven exhibits. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are consistent with the findings made in this order, the proposed findings were adopted by the Hearing Officer. To the extent that the proposed findings and conclusions of law are not consistent with this order, they were considered by the Hearing Officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact The facts set-forth in paragraphs 1 through 4 below were stipulated to by the parties and are found as facts: At all times pertinent to this proceeding, Respondent was a licensed registered nurse in the State of Florida, having been issued license number 67142-2. Respondent filled out and filed the applications for licensure as a registered nurse, Petitioner's Exhibit No. 1. Respondent did fill out and file the applications for employment as a nurse, Petitioner's Exhibit Nos. 2 through 9. Respondent did falsify her date of birth, age, and date of graduation from nursing school on her applications for employment as a nurse, Petitioner's Exhibit Nos. 2 through 9. This was done by Respondent on the recommendation of an employment agency initially, and was done in order to obtain employment. On or about April 8, 1982, Respondent filled out and submitted an employment application for work as a nurse to Lakeview Nursing Center. (Petitioner s Exhibit No. 2). The application reflected that Respondent obtained her R.N. degree from Bellevue Hospital in 1948. That information is false. The Respondent received her R.N. degree in 1939. On or about March 11, 1983, Respondent filled out and submitted an employment application for work as a nurse to Leesburg General Hospital, Leesburg, Florida (Petitioner's Exhibit No. 3). That application reflects a date of birth of December 24, 1932 and the date June, 1948 as the year Respondent received her nursing degree. This information is false in that Respondent's date of birth is September 29, 1918, and the year she received her nursing degree was June, 1939. On or about January 25, 1982, Respondent filled out and submitted an application for employment as a registered nurse to Sanford Nursing and Convalescent Center, Inc., Sanford, Florida (Petitioner's Exhibit No. 4). That application reflected a date of birth of December 24, 1932 and the year 1948 as the year in which Respondent obtained her R.N. degree. The date of birth and year of graduation are false. On or about May 28, 1980, Respondent filled out and submitted an application for employment as Director of Nursing at Orlando Memorial Convalescent Center, Orlando, Florida (Petitioner's Exhibit No. 5). That application reflected that Respondent graduated from Bellevue Hospital School of Nursing in 1948. That information is false in that she graduated in 1939. On or about February 13, 1980, the Respondent filled out and submitted an application for employment as a nurse to Quality Care, a nursing service (Petitioner's Exhibit No. 6). That application contained a false date of birth of December 24, 1932 and a false year of graduation from Bellevue Hospital School of Nursing of 1948. On or about January 23, 1980, Respondent filled out and submitted to the Physician's Registry an application for employment as a nurse (Petitioner's Exhibit No. 7). That application reflected an age of 47 and date of birth of January 24, 1932. This information is false. On or about January 8, 1980, the Respondent filled out and submitted an application for employment as a nurse to Medox, Inc. That information reflected a birth date of December 24, 1932 and a year of graduation from Bellevue Hospital as 1948 (Petitioner's Exhibit No. 8). This birthdate and year of graduation are false. On or about January 19, 1978, Respondent filled out and submitted an application for employment as a nurse to Dr. P. Phillips Memorial Nursing Home, Orlando, Florida (Petitioner's Exhibit No. 9). That application reflected an incorrect birthdate of December 24, 1932 and reflected that Respondent attended Bellevue Hospital School of Nursing from 1945 to 1948. Respondent actually attended Bellevue Hospital from 1936 to 1939. During March, 1982, Respondent was employed as a registered nurse at Leesburg Regional Medical Center. Janet Gillespie Brown, also a registered nurse, was assigned to act as Respondent's preceptor during Respondent's orientation at Leesburg Regional Medical Center. As her preceptor Ms. Brown trained as well as supervised Respondent's work during her orientation period. During the time she was employed at Leesburg Regional Medical Center, the Respondent used improper procedures in attempting to insert a foley catheter into a female patient. in cleansing the meatus to remove bacteria the Respondent used a scrubbing technique rather than a wiping technique. This was improper antiseptic technique. The Respondent then attempted to insert the catheter by probing. This also was improper. Upon observing these improper techniques Janet Brown instructed Respondent to make no further attempts to insert the catheter and told her to wait whale she obtained a sterile foley kit which she would insert herself. Respondent did not do as she had been instructed and inserted the catheter after Nurse Brown left the patient's room to obtain the sterile foley kit. After Nurse Brown returned and discovered the catheter had been inserted against her instructions, she went outside the patient's room with Respondent and explained to her that the catheter she inserted was contaminated as a result of the probing. Respondent agreed and explained that she had not performed this procedure for awhile. The ability to properly insert such catheters is a basic nursing skill. No infection resulted from the improper insertion of the catheter by Respondent. Also while employed at Leesburg Regional Medical Center the Respondent failed to properly chart food intake of patients in that she charted each item of food consumed rather than charting percentages of food consumed as she had been instructed. Respondent also failed to properly chart the progress of a stroke patient by failing to chart that the patient had been making attempts to verbally communicate. The Respondent failed to properly organize her time, appeared unable to properly assess patient progress by asking appropriate questions and recording the patient's response, and failed to complete daily assignments such as bed baths and picking up food trays. Respondent did not feel capable of starting an IV (intravenous). Although starting an IV was not considered to be a skill required of Respondent by Leesburg Regional Medical Center, Respondent was unable to change the tubing on an IV and this was a skill expected of her. Respondent was also unable to give accurate counts of the remaining amount of solution in patients' IVs. On one occasion Respondent failed to properly chart the time of the doctor's visit and apparently "switched" the time. Respondent increased the IV flow for a patient as requested by the doctor, but charted the doctor's visit as having occurred later than the time at which she increased the IV. While working at Leesburg Regional Medical Center the Respondent failed to meet the minimal standards of acceptable and prevailing nursing practice. During the first part of February, 1982, Respondent was employed as a relief charge nurse at Sanford Nursing and Convalescent Center, Sanford, Florida. Ms. E. Jean King, R.N. was a charge nurse at Sanford Nursing and Convalescent Center and was assigned to assist in Respondent's orientation. While at Sanford Nursing and Convalescent Center, Respondent was observed by Ms. King to be very confused and very disorganized in her work. She could not remember patients' names and in passing out medications failed to medicate some patients. Then asked whether or not a particular patient had been given medication, Respondent became confused and indicated she could not remember whether or not the medication had been given. In taking a phone order from a doctor the Respondent wrote the wrong order on a sheet of paper and could not then remember what medication had in fact been ordered. This necessitated calling the doctor back and having the order repeated. Respondent also administered medications without first taking the pulse and blood pressure of the patient as required. Respondent required much more supervision than the other nurses under Ms. King's supervision. Respondent's performance and nursing practice at Sanford Nursing and Convalescent Center failed to meet the minimal standards of acceptable and prevailing nursing practice in Florida. On January 12 and January 27, 1980, Respondent as an employee of Medox, Inc., was assigned to Florida Hospital in Orlando, Florida. At the time she reported for work Respondent was informed by Ms. Ann Cottrell, R.N. (Head Nurse in Special Care at Florida Hospital) about what her responsibilities would be during her shift as team leader in the progressive care unit. The duties outlined to Respondent included responsibility for the administration of IV medications, antiequivalent drugs, insulin and any other specific procedures not within the job description of the licensed practical nurses. Respondent was also instructed that she was responsible for ordering IV medications that were to be administered for the next twenty-four (24) hours, that she was to make rounds with the physicians and observe and report the patients' conditions, and that at the end of the shift she was responsible for making certain that all charts were signed off, the doctor's orders were signed off, and any pertinent information included in the nurse's notes. During the course of the day Ms. Cottrell checked back with Respondent several times and asked if she understood her responsibilities and whether she was having any problems. Each time Respondent indicated that she knew what she was doing and had done it many times. During the course of the day the Respondent failed to make a complete report on the patients and as a result, the three to eleven shift was unable to determine what had happened during the day with regard to the patients for which Respondent was responsible. Medications had not been charted properly and many of the notes entered by Respondent were irrelevant to the patient's progress. Respondent also failed to insure that EKG strips for which she was responsible had been read. Ms. Cottrell, a registered nurse, was qualified to express an opinion as to the prevailing standards of nursing practice in Florida. She testified that in her opinion the Respondent was not qualified to work in an acute care area as a nurse and that her performance of her duties at Florida Hospital failed to meet the minimal standards of acceptable nursing practice in the State of Florida. This opinion is accepted by the Hearing Officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered nurse be suspended for a period of three (3) months. It is further RECOMMENDED that upon completion of the three-month suspension period, Respondent be placed on probation for a period of one (1) year working only under the supervision of another licensed nurse and upon such other conditions as the Board may specify. DONE and ENTERED this 29 day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of August, 1983. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Arthur Baron, Esquire Attorney at Law 14 East Washington, Ste. 623 Orlando, Florida 32801 Helen P. Keefe, Executive Director Florida Board of Nursing Room 504, 111 East Coast Line Drive Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of $2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.
Findings Of Fact The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine. The survey team believed it found a violation of 42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status " On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning, July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until 2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or psycho-social status during that night, such that an attending physician should have been called during the night. Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift). F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through 9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until 9:00 a.m. on the morning of July 2, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed. DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of December, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11 day of October, 1989.
Findings Of Fact At all times relevant to the issues, Respondent was licensed as a registered nurse in the State of Florida under license number 1262382 and was employed as a registered nurse at University Hospital of Jacksonville, Jacksonville, Florida. On the late afternoon or early evening of March 14, 1984, a female patient was brought into the emergency room at University Hospital suffering from an overdose of asthma medicine for which the prescribed treatment was dialysis to cleanse the blood of the drug. When the hospital personnel had determined that adequate dialysis had been accomplished the patient was removed from the dialysis machine. A patient is affixed to a dialysis machine through the insertion of tubes into a vein and artery which facilitates the removal and replacement of the blood being cleansed. When the catheters are removed, it is necessary that pressure be applied to the place of insertion for a period of time to allow clotting sufficient to stop bleeding from the vein or artery. Generally, the pressure is administered by a nurse physically applying pressure to the immediate area. This patient did not respond properly, however. As a result, Dr. Mendez-Vigo was called to examine her. He determined that because of her blood loss, a transfusion was appropriate, which he ordered, and then left the treatment area. Approximately ten minutes later, he was called again and advised that the patient's blood pressure was dropping and that the dialysis nurse, the nurse that was attending the patient at the time, needed him. Dr. Mendez-Vigo advised the nurse to start a saline solution and indicated he would come to the dialysis unit, where the patient was being treated, as soon as possible. The dialysis of this patient was accomplished in the dialysis room which is located contiguous to and immediately off the cardiac intensive care unit (ICU) in the hospital. Ordinarily, the dialysis room, which opens onto the ICU is not manned. It is however, generally fully equipped with its own supplies and equipment and when this patient was placed on the dialysis machine, she was moved to this dialysis unit and tended by a nurse, Ms. Domingo, whose sole job was in the dialysis unit. Ms. Domingo was called to come in from off-duty to attend to the patient in question and arrived at the dialysis unit at approximately 5:15 p.m. When she arrived, she found the patient stable, and the only treatment required at the time was pressure to the groin area as described above to promote clotting until the bleeding stopped. After Dr. Mendez-Vigo started the transfusion and left, as described above, the patient became restless and started sweating, which prompted Ms. Domingo to stop the flow of blood. This took place at approximately 6:00 p.m. Once she stopped the inflow of blood, she wanted to remove the needle through which the blood was being inserted, but because she was unable to remove the pressure from the patient's groin area and because she was alone in the dialysis unit, she called for help from those nurses assigned to the ICU. At first, no one responded, but shortly thereafter, after a second call for assistance, Nurse O'Brien did come in. Ms. O'Brien was, at the time, one of several nurses assigned to duty on the ICU and had worked there just a few days. She and Respondent, the nurse in charge of the unit, were the only two registered nurses on duty, along with several licensed practical nurses (LPN's). However, at the time in question, Respondent was off the unit at dinner and Ms. O'Brien is not sure where the LPN's were. When she heard the dialysis nurse call for help, she went into that room and saw the situation. Ms. Domingo told her that the patient looked to be in shock - sweating, with a high pulse rate, very low blood pressure, and in a semi-conscious state. At this point, Ms. O'Brien immediately opened up the IV point to put in a saline solution, then went outside the dialysis room to get equipment to start another intravenous line (IV), and to page Dr. Mendez-Vigo. When she brought back the equipment she needed and tried to start the second IV, she experienced difficulty because of the patient's low blood pressure. At this point, she asked another nurse from the ICU to speed the doctor up. At this time, in her opinion, the patient was extremely unstable and near critical. It was then that Ms. O'Brien first saw the Respondent. She told him she was going into the dialysis unit to help out. Respondent did not follow, but instead went to the nurse's station on the ICU from which he could see the door to the dialysis room and called to Ms. O'Brien telling her she was not to go into the dialysis unit since it was a separately staffed unit. Ms. O'Brien responded to the effect that while this might be the case, the patient was sick and needed help and she was going to give it. In response, Respondent told her several times that she was not to be in the dialysis room. Ms. O'Brien finally told Respondent that she was going to do what she had to do regardless of what he- said. She further contends that when Dr. Mendez-Vigo finally returned her call, Respondent took the call and spoke with the doctor but refused to tell Ms. O'Brien what the doctor said until she came out of the dialysis room to talk to him. To do so, she had to leave the patient with whom she was working to go to the nurse's station and get the message from the doctor which had been given to Respondent. When Dr. Mendez-Vigo arrived at the dialysis unit, he saw the Respondent and two other nurses in the ICU area. He went into the dialysis unit and observed the dialysis nurse still applying pressure to the artery and one other nurse, subsequently identified as O'Brien. At this point, Respondent and the other nurses in the ICU were standing around in that unit not assisting in the dialysis area. When he arrived, Dr. Mendez-Vigo found the patient to be nearly unconscious with a high pulse rate and low blood pressure. He suspected a transfusion reaction and because of that, started action to counteract that situation. Because both nurses in the dialysis room were totally occupied by the patient, he needed help to get other things ready for treating the patient. For example, he needed to get additional equipment, additional IV lines had to be prepared; and solutions had to be mixed. Both Ms. Domingo and Ms. O'Brien seemed to him to be upset because it appeared Respondent had attempted to keep the other ICU nurses from helping in the dialysis room when they were needed because the patient was not an ICU patient. During the initial telephone conversation between Dr. Mendez-Vigo and Respondent, the doctor requested Respondent to secure certain supplies. When the doctor got to the dialysis unit and saw the condition of the patient, he took a blood sample, which he asked Respondent to take to the lab for identification for transfusions. Respondent failed to respond to any of the doctor's requests. Another resident, Dr. Curran, was called into the dialysis from by Dr. Mendez-Vigo when she came to the ICU that same evening. On at least one occasion, after she started to work on this particular patient, she walked out to the nursing station of the ICU and asked Respondent for help. At that point he refused, stating that he was busy and responsible for all the other patients and could not leave. As a result, Dr. Curran took the blood to the lab for what lab work was necessary. When she got back from the lab, she asked Respondent where she could get MAST trousers for the patient and if he would call the emergency room to inquire. Respondent refused to do this, requiring Dr. Curran to do it herself. When she was advised that the operating room might have them and started to place that call, at that point, Respondent did make the call to try to secure what she needed. During the course of his treatment of the patient, Dr. Mendez-Vigo had occasion to attempt to use the cardiac monitor that was a part of the equipment in the dialysis room. It is unclear whether the doctor did not know how to operate the equipment or whether it did not work. In any event, the doctor requested the Respondent to get a portable monitor that was a part of the ICU's equipment. Respondent refused this request initially on the basis that the patient was a dialysis patient rather than an ICU patient, and that his instructions were that ICU equipment could not be used for dialysis patients. Notwithstanding his initial refusal, Respondent ultimately did provide the requested monitor, however. Dr. Mendez-Vigo's recollection of the incident was that the Respondent's total response was that since the patient was not an ICU patient, he could not help out and do what was necessary since he was assigned to ICU, not dialysis. He reportedly stated that he could get into trouble if he did. According to the doctor, however, none of the other patients in the ICU needed immediate attention so that, in his opinion, Respondent or some other member of his staff could have assisted in the treatment of this critically ill patient. What was unknown to Respondent at the time was that the patient had been identified for admission to the ICU, and orders to that effect had been written by Dr. Mendez-Vigo though the formal process of admission had not taken place. As was stated, this information regarding proposed admission had not been communicated to Respondent or the other ICU nurses even though the information was contained on the patient's chart which was with her in the dialysis room during this period of time. If Respondent had gone in to help as requested and looked at the chart, he would have seen this. According to Ms. O'Brien, through all the period of requests for help prior to the arrival of the doctor, and even through the period of requests for assistance and equipment after the arrival of the doctors, Respondent did not come into the dialysis room to see the patient's condition for himself. It was only after Dr. Mendez-Vigo started the neck IV line that the Respondent came into the dialysis room, and when he saw the patient he said something to the effect of, "Oh, I didn't know she was so sick." This was 20 to 25 minutes after the original call for help. Sometime after the incident, Respondent went to Ms. O'Brien and apologized to her for not responding more quickly and for trying to get her out of the dialysis room when he returned from dinner. At that time, he said his resistance was based on the fact that he did not want her to get into trouble. He also told her that if she intended to report the incident, he would just go ahead and submit his resignation because he had been in trouble previously and this would hurt him. Respondent's demands to Ms. O'Brien to come out of the room when she was in assisting Ms. Domingo, prior to the arrival of the doctor, were heard clearly by Ms. Domingo. Ms. Domingo also overheard the doctor ask Respondent to help hook the patient up to the monitor and overheard Respondent's initial refusal. What was most puzzling to Ms. Domingo was that though she had never dealt with Respondent prior to this time, whenever she had asked for help from the ICU nurses previously, she had always gotten it. According to another nurse on the ICU that evening, Ms. Bowers, who was on her break at the time of O'Brien's first confrontation with Respondent, emergency situations requiring help from the ICU personnel were not frequent and this was the first emergency situation she knew of involving Respondent. In this case, she was not aware of any "code" being announced, nor overheard the argument between Respondent and Ms. O'Brien. She had been in the ICU for an hour prior to this time and during that entire period, had received no request from Ms. Domingo for help. She had not previously been asked for assistance and until she became aware of the problem by overhearing the dispute referenced above, she had no idea there was an emergency situation in the dialysis room. Frank B. Bellamy works as a nurse manager at University Hospital for the ICU. As a part of his job, he oversees and evaluates nursing services in the ICU and was doing so at the time of the incident in question. To his knowledge, at that time, there was no written policy on support of the dialysis unit by the ICU. However, the oral instructions given to ICU personnel were that ICU equipment and supplies were not be used in routine cases in the dialysis unit - only in emergency cases. In an emergency case, anything could be used. The job description drafted for registered nurses in University Hospital does not delineate any separation for jobs between ICU and the dialysis unit, but it was generally followed at the time in question that ICU nurses did not help out in the dialysis room in routine situations. However, in an emergency situation, ICU nurses could and should help--out. In Mr. Bellamy's opinion, in the instant case, as the fact situation existed, extra help was needed and the ICU nurses, including Respondent, could have and should have helped out if this assistance could be provided without jeopardizing the patients in the ICU. In such a case, the ICU nurse would have called the nursing supervisor, reported the situation, and requested help. In his opinion, Respondent's conduct in this case was unprofessional misconduct. It was not negligence but willful misconduct in that the Respondent refused to render assistance in an emergency situation and attempted to prevent Ms. O'Brien from doing so as well. Both of these are evidence of willful misconduct. In addition, in an emergency situation, the Respondent's failure to provide the portable monitor in a timely fashion was both unprofessional and unsafe in that the ability of the physician to determine cardiac rhythm is crucial. Nurses are obliged to acknowledge physician's orders and, if considered safe, to follow them. In emergency situations, according to Mr. Bellamy, it is negligence and unprofessional conduct not to provide assistance and equipment to a doctor upon request. Here, in the professional opinion of Mr. Bellamy, the Respondent's failure to provide the requested assistance to the doctor was critical and constituted negligence and unprofessional misconduct. The mere fact that the Respondent delayed responding is negligence because in an emergency situation, as here, time can be and was of the essence. Respondent made much of the need for the charge nurse to oversee the patients on the ICU. In fact, these checks by the charge nurse, the job which Respondent was filling at the time, were done only every 10 or 15 minutes, and assuming that this was necessary and critical on a routine schedule, there was still ample time between the checks for the Respondent to respond to the dialysis unit. Here it is clear that Respondent was asked for help and either refused to give it all, or failed to respond in a timely fashion. It is also clear that Respondent refused to provide equipment and other supplies, even though under the guidelines in place at the time, and which, though oral, had been briefed to the ICU nurses, this situation was one where he could have properly done so. With regard to Respondent's contention that he had been told that he was not to go into the dialysis unit to help, Ms. Kamienski, the Director of Nursing who helped to interview Respondent when he was hired, advised him that the dialysis section was responsible for routine care but that it was placed where it was, contiguous to the ICU, so that ICU nurses could help out in an emergency. She categorically denies ever telling Respondent that dialysis was to get no help, nor that he was never to go in there. As Director of Nursing, Ms. Kamienski received the complaint about the Respondent in the incident in question, and on the basis of the complaint did some investigation. She determined from her interview of the physicians and nurses involved, that the allegations were true and Respondent's conduct was inappropriate. In her opinion, any registered nurse who has the knowledge and skills (and, as here, the resources) to render aid and assistance in a need situation, who does do so and who, as here, attempts to hinder aid, is guilty of negligence and should not practice nursing in the State of Florida. Ms. Kamienski is satisfied that Respondent used poor judgment in this assistance. He should have either helped out himself or assigned someone on the unit to assist and he did neither. Also, he could have contacted the house supervisor to get help either for his unit or for the dialysis unit and failed to do that. In her opinion, his conduct was unprofessional and insubordinate. He had the responsibility to help out in a life threatening situation and failed to do so. Admittedly, the dialysis unit had been requested to use its own equipment and supplies, but in a life threatening situation, they were to get anything they needed. This is now, and was the policy at University Hospital, and to the knowledge of Ms. Kamienski, a similar policy is found in almost any hospital. It is a general standard of practice in nursing to use whatever is needed from wherever located in an emergency situation. Here, Respondent's delaying tactics in making the telephone calls at the request of physicians, was unprofessional conduct because of the life threatening situation. Death to the patient could be imminent in a situation such as this, and Respondent had a duty to respond in a timely fashion. Respondent also makes much of the fact that none of the other nurses in the ICU offered assistance and that nothing was done to them. The fact is that none of the other nurses were asked for help, nor were they asked for supplies and equipment by physicians, nor did they interfere to tell Ms. O'Brien to come out. As to the monitor, Ms. Kamienski feels that while admittedly it is not Respondent's responsibility to ensure that the dialysis monitor was working, under the circumstances of this incident, when he was asked for a portable monitor in an emergency situation, he should have provided it and not argued about whether the dialysis monitor was working or not. In the opinion of Ms. Cayer, a professor of nursing at Jacksonville University, a registered nurse should respond to an emergency and provide whatever assistance is necessary in the situation in the geographical area of the nurse, even if the patient is not the nurse's patient. Having had an opportunity to review the extensive documentation which outlines the situation here and what Respondent did and failed to do, and which fairly reflects the facts in evidence, she concluded that the patient here was unstable and rapidly declining; this was very near or actually was a severe emergency, and there was a need for help. Ms. Cayer was made aware of a hypothetical situation which very closely parallels the factual situation in this case. Based on this hypothetical situation, she concludes that the Respondent in that case was negligent because: (1) when the nurse in question arrived on the scene, he should have gone into the dialysis unit, assessed the situation, and made staffing changes to help out and meet the situation, all of which he failed to do (he needed to gain the knowledge of what the needs were and to take action to meet those needs); (2) he improperly attempted to get the nurse (Ms. O'Brien) to come out of the dialysis room without assessing the situation and its needs (by the time he knew that the blood pressure was low and communicated this information to Dr. Mendez-Vigo, he surely must have known there was a problem); (3) while it would not have been proper for him to leave the floor to go to the blood bank himself, it was unprofessional of him not to arrange for someone else to go in light of the fact that he could have done so; (4) as to the monitor situation, he should have followed up on the request for an additional monitor to see why the request was made (If he had done so, it would have shown that the monitor was not working and he would have provided a replacement sooner. His failure to follow up on the request and his rejection of it without further inquiry was unprofessional); (5) his failure to communicate effectively in all these respects hindered the staff in their treatment of the patient and was unprofessional conduct. Much the same approach is taken by Dr. Eileen K. Austin, also an expert in the field of nursing, who indicated that nursing education generally teaches that first and foremost the interest of the patient takes precedence over policies and regulations which may be ignored if necessary. Also, the nurse must assess the situation and either provide the needed service or get someone else who can provide it. Emergency procedures care is taught as a part of several courses in nursing education. Nurses are also taught generally that if the need is there, the nurse acts regardless of where the patient is assigned and once in the picture, retains treatment status until relieved. As to the response to physicians, nurses are taught they are to respond promptly unless they suspect it is an improper order which would endanger the patient. Nursing assessment includes observing the patient for signs and condition, to take vital signs, to ensure there is an airway for breathing, and once having made an assessment, either provide or secure help. These basic concepts are universal to nursing training. The course title may vary among nursing schools and among nursing programs, but the subject matter is basically the same and these subjects are, in substance, on the nursing licensing examination. The primary difference between the two-year associate of arts program in nursing and the four-year bachelor program is in the other primarily non-nursing, non-scientific curriculum. Basic nursing material is the same in both. The requirements for the registered nursing license requires certain basic information be taught, and it does not matter through which program these requirements are met. Respondent's reputation is good among the people with whom he currently works. For example, Respondent has worked for JoAnn Hahn at Methodist Hospital as a staff nurse for one year and she has observed his work in both routine and emergency situations in the accomplishment of his duties which are equivalent to being the charge nurse on a particular shift. She finds Respondent to have a very good knowledge of critical care situations and to her knowledge, he has never mis-diagnosed a case. He anticipates medications correctly and has them ready, and he also knows what lines are needed and has them ready. In critical care his performance is above the standards she has observed in other hospitals. In responding to requests from supervisors or doctors, if he agrees with the request, he speaks out, somewhat abruptly sometimes, but this is what she wants her nurses to do. Above all, however, Respondent never lets the patient down, and Ms. Hahn has no reservations whatsoever about his training, ability or performance. When he is on duty, she feels quite safe. Ms. Hahn is aware of the incident in question here, having reviewed the statements regarding it and her knowledge is consistent with the facts in evidence. She has also reviewed the hypothetical situation and based on this, she feels that Respondent's actions in question were not a violation of the Nursing Practices Act. In Ms. Hahn's opinion, Respondent was not incorrect in calling Ms. O'Brien out of the dialysis room because the ICU was, in her opinion, under-manned in light of the serious condition of the patients on the floor, and Respondent did not have a report on the condition of the patient in the dialysis room. As to the monitor situation, she feels the patient should not have been put on the dialysis machine in this case without being put on a monitor as well from the very beginning. Also, the needed IV lines should have already been started prior to the dialysis in case of need. As to Dr. Mendez-Vigo's telephone request to the Respondent to start an IV line, since Ms. O'Brien was already trying to get it started and Respondent could see this, it was not necessary for him to go in and attempt the same thing. The fact that Ms. O'Brien could not accomplish the start and it was necessary for the doctor to start a sub-clavian line is immaterial since a registered nurse would not do that procedure anyway. In short, in light of the condition of the patients on the ICU, Ms. Hahn feels Respondent could not have properly left the unit. He also could not have gotten the blood because he did not have the patient's proper plates or bands as required by the lab. As for the portable monitor, he could have asked why they did not use the monitor they had, but, Ms. Hahn feels the delay based on his understanding of the monitor being in there was "just common sense." Cathy Carvery has known Respondent from the time she hired him at University Hospital. She observed him in his work there in the handling of patients and feels that his competence, training, and other skills are very good. He handled crisis situations very well and knew what he was doing. She, too, has reviewed all the background information on the situation and is familiar with the dialysis room and equipment at University Hospital. In light of the staffing in the ICU at the time, in her opinion, it was not at all improper for the Respondent to have refused to send any more of his staff to the dialysis room. Also, in her opinion, though he could have tried to get the blood as requested, he would not have been able to do so without more information on the patient, which was not available to him. In addition, even if he had tried to insert the IV line as requested by the doctor, the likelihood is great he would not have been able to get it started. What is overlooked by both Ms. Hahn and Ms. Carvery in their exulpatory comments regarding Respondent's failure to assist, failure to go for blood, and failure to attempt to start the IV line as requested, is that though what they say may well be true and that Respondent could not have accomplished anything, the fact is he did not even try. With regard to assisting or providing more help, a telephone call to the supervisor of nursing would have resolved that situation without either he or any more of his people being required. Though he called Ms. Lee, he did so to report what he considered to be Ms. O'Brien's improprieties and at no time requested any help. Though he most likely could not have accomplished getting the blood as requested because of the lack of plates, the fact is that though asked to do so, he did not even try and the same is true with regard to the IV line. It does not matter that the sub-clavian insertion was done by the doctor. Respondent was not asked to insert a sub-clavian catheter. He was asked to attempt an intravenous line and did not even try. It is impossible to say what he would have done if he had attempted to assess the situation and find out what the condition of the patient was as he should have done. He did not, and it this particular especially, he was deficient. With regard to the incident in question, when Respondent came back from dinner he was told by one of the LPN's on staff that Ms. O'Brien was in the dialysis room because a patient was bleeding from an arterial line. In his experience, this was not too serious and in light of the fact that Ms. O'Brien was off the ward, one nurse was out to dinner, another was on duty, and he did not know here the fourth was, he was miffed. As a result of this, he called Ms. O'Brien out of the dialysis room to talk to her and she did not respond to his request. This made him angry. He did not have any responsibility for dialysis patients and his understanding of support to be furnished to the dialysis unit was that he was not to take any equipment in there. In light of his previous chastisement for doing so, he was upset. Though he denies refusing to convey Dr. Mendez-Vigo's message to Ms. O'Brien unless she came out of the dialysis room to get it, it is clear that in light of his admittedly poor frame of mind at the time, he did just that. He also admits to first suggesting, when requested to get another monitor, that they use the one in the dialysis room. Nonetheless, he says he went and got the portable within just a few minutes and hooked the patient up to it. Since Dr. Mendez-Vigo did not ask for any further assistance or give him any additional orders thereafter, he went back to work. When Dr. Curran asked him for the blood from the lab, he asked for a charge plate and was told it was in the dialysis room. He found, however, that the patient had not been admitted and did not have a charge plate, and he would therefore be unable to get the blood requested. He then started the admission process because he felt that when that was accomplished, within a 30-minute period or so, he could then get the blood as requested. As for the MAST trousers, when asked by Dr. Curran to get them, he, because of other duties, could not respond immediately, but did so several minutes later, at which time the request was refused. Dr. Curran, parenthetically, also was refused when she requested the trousers. When, as stated before, Respondent called Ms. Lee, the 3:00 p.m. to 11:00 p.m. supervisor, to report Ms. O'Brien, he was told to let her stay there. No request for assistance, equipment or supplies was made. On the basis of the investigation by Ms. Kamienski and after consultation with Mr. Bellamy, a recommendation of termination was prepared and delivered to the Respondent. In accordance with the procedures that were in effect at the time, he requested a hearing and one was afforded him. Respondent contends that the hearing was a farce and he was not given the opportunity to confront any of the witnesses or evidence against him. After the hearing was over, he was offered the opportunity to resign in lieu of termination and did so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED, that Respondent's license as a registered nurse in the State of Florida be suspended for one year and that upon completion of the period of suspension, he be reinstated and placed on probation for a period of three years under such terms and conditions as prescribed by the Board of Nursing. RECOMMENDED in Tallahassee, Florida this 27th day of September, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 L. Haldane Taylor, Esq. 331 East Union Street Jacksonville, Florida 32202 Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct which will he set forth hereinafter in detail, engaged in acts and/conduct violative of Subsection 464.21(1)(d) and (g), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Michael Ray Hernicz, R.N., is a licensed registered nurse who holds license No. 0985972. Additionally, the Respondent has been certified as a Certified Registered Nurse Anesthetist (CRNA) and an Advanced Registered Nurse Practitioner (APNP). By its eight-count Administrative Complaint filed March 14, 1979, the Petitioner, Florida State Board of Nursing, seeks to place on probation, suspend or revoke the Respondent's license to practice nursing based on allegations that: During the week of January 15, 1979, Respondent caused to be advertised in the DeLand Sun News, a newspaper of general circulation the opening of an office in the 4 Towns Shopping Center, Orange City, Florida, for the general practice of medicine and used in connection with his name designation, "M.D." to imply or designate himself as a medical practitioner while not licensed, in violation of Florida Statutes Sec. 458.152(a), (b) and (c). On or about February 9, 1979, in Orange City, Florida, Respondent administered medical treatment to Steven H. Gaffney which action was not within the purview of the Nurse Practice Act, Florida Statutes Chapter 464. On or about February 9, 1979, Respondent practiced medicine as defined by Florida Statutes Sec. 458.13, in that he diagnosed, treated and prescribed medication for Steven Gaffney although not licensed to practice medicine in Florida and without the responsible supervisory control of a licensed physician, in violation of Chapter 453 and the Nurse Practices Act, Chapter 464, Florida Statutes. On or about February 16, 1979, Respondent was arrested by law enforcement officers of the Volusia County Narcotics Task Force at his office in Orange City, Florida, and was found to be in unlawful possession of controlled substances as set forth in Florida Statutes Chapter 893. On or about February, 1979, Respondent, for a fee, treated and prescribed medication for patient, Gladys M. Mossman, which treatments and medications were not prescribed or authorized by a person licensed to practice medicine in Florida. Respondent, for a fee, also treated and administered medications to cardiac patient, Nils Ljunberg, which treatment and medications were not prescribed or authorized by a person licensed in the State to prescribe medications or treatment, in violations of Florida Statutes Chapters 458 and 464. On numerous occasions from January 15, 1979, through February 9, 1979, Respondent unlawfully practiced medicine in violation of Chapter 458 by prescribing medications for various patients and treating said patients when he was not licensed to do so and while he was not acting under the responsible supervisory control of a licensed physician or without the purview of the Nurse Practices Act, Florida Statutes Chapter 464. In conclusory fashion, it is alleged that the Respondent is therefore guilty of engaging in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, in violation of Florida Statutes 464.21(1)(d) and (g). The facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute. What is in dispute, however, is the nature and scope of treatment authorized by nurse practitioners, such as Respondent, in view of the additional acts apparently approved by the Joint Advisory Committee on Advanced Nursing Practices. Section 464.021, Florida Statutes. Respecting the allegations that the Respondent caused to be advertised in the DeLand Sun News, an advertisement to the effect that he was opening an office for the general practice of medicine, Steve Blais, an advertising official of the Deland Sun News, appeared and testified that the day following the advertisement which appeared in the local paper, Respondent telephoned his office to alert the paper's advertising staff that a mistake had been made and that the initials "M.D." should not have followed the designation in his ad as he was not a licensed medical doctor in Florida. Mr. Steve Blais offered Respondent a letter of correction such that he could show to customers or anyone who needed documentation. Mr. Blais testified that the ad with the M.D. format ran on January 13, 14 and 17, and that the change was made on or about January 24 to delete the designation "M.D." from the ad. As stated, the facts surrounding the treatment aspect of the allegations are undisputed. However, Respondent contends that based on the supervisory arrangements and the written protocol that he had with Dr. Randal Whitney, M.D., and the working relationship that he had with Dr. Jeffrey Rudell, he was authorized to do the acts which he is here charged with as being violative of the Nurse Practice Act and Chapters 458 and 893, Florida Statutes. As originally conceived, the Respondent planned to practice with Dr. Jeffrey Rudell, who was then licensed in Alabama and who had applied for licensure by endorsement in Florida. This application by Dr. Rudell for licensure by endorsement was denied and Respondent entered into a supervisory relationship with Dr. Randal Whitney of Daytona Beach, Florida. Dr. Whitney appeared and testified that he had in fact entered into a supervisory relationship with Respondent and that he was consulted by Respondent on the treatment of several patients. Dr. Whitney's testimony is that of these patients about when Respondent consulted with him, he concurred with the method of treatment outlined and/or prescribed by Respondent. Respondent testified that he reached a decision that he could properly treat patients while working under the supervision and control of a licensed medical doctor or other specialized practitioner after considerable reflection on the latitude granted Advanced Registered Nurse Practitioners. In support of this decision, Respondent points to the fact that the Joint Committee, by its official Minutes, pointed out in Section 210-11.03, acts which were proper to be performed by an Advanced Registered Nurse Practitioner. Therein, the Board authorized various categories of functions that Advanced Registered Nurse Practitioners may perform at advanced and special levels which are recognized by the nursing profession and which are currently included in the curricula of advanced nursing education programs by the Board (Petitioner). Additionally, the Board authorized Advanced Registered Nurse Practitioners to perform such additional acts as was recognized by the Advisory Committee created by Florida Statutes Subsection 464.021(2)(a)(4) as proper to be performed by an Advanced Registered Nurse Practitioner. Petitioner requested the minutes from numerous meetings of the Board from 1977 through 1978 and noted that Board Member Charles D. MacIntosh during a meeting with the Board of Nursing advised that the Board of Medical Examiners had met on April 2, 1978, and ratified a new appendix D regarding Advanced Registered Nurse Practitioners. Dr. MacIntosh urged the Board that in light of the ratification by the Board of Medical Examiners, the Joint Advisory Committee should jointly meet to work out a proposed formulary of drugs that would he available to Advanced Registered Nurse Practitioners. The Board thanked Dr. MacIntosh for apprising them of the medical board's actions and Petitioner's counsel stated his opinion that, based upon the interpretations of subject Section 465.031, no conflict would result if the Joint Advisory Committee agreed that prescriptions and medications would be an additional act defined by Florida Statutes 464.021. Page 4 of the minutes indicate that with respect to Advanced Registered Nurse Practitioners, they are authorized to perform those additional acts which are performed within protocols which are jointly established by the Advanced Registered Nurse Practitioner and the M.D., D.O., or D.D.S., or the appropriate medical staff of a healthcare facility. Respondent entered into an arrangement with Dr. Whitney and explained to him the manner in which he expected to treat patients coming to his office and Dr. Whitney agreed to allow him the latitude he envisioned. (TR 259 through 261.) Accordingly, Respondent perceived his actions as falling within the purview of the regulation authorized by the joint committee. (TR 263 through 264.) Additionally, Respondent denied that he represented to anyone in this State that he was a licensed medical doctor. Respondent reiterated his position that he immediately notified the paper and asked them to change the designation to reflect that he was not a medical doctor. (Respondent's Exhibit 17.) On February 16, 1979, Respondent's office was searched by the law enforcement officers of Volusia County Narcotics Task Force in Orange City, Florida, and Respondent was given a list of drugs taken from his office by the law enforcement officers. (Petitioner's Exhibit 5.) No evidence was offered to establish that the Respondent has been found guilty of the unlawful possession of controlled substances as set forth and defined in Florida Statutes Chapter 893.
Conclusions In summation, the Respondent established that he, in addition to being a Registered Nurse, has been further certified as an Advanced Registered Nurse Anesthetist. Dr. Randal Whitney established that he entered a relationship with Respondent under the laws of the State of Florida to be his supervisory or sponsoring physician, to consult with him in the practice, and to call or talk personally with Respondent about problems or cases that might be a potential problem or possibly outside his field of expertise as to what to do about them. A similar arrangement was shown to exist between the Respondent and Dr. Paul Andrews, Additionally, Dr. Rene Almiron, M.D., testified that he agreed to read and interpret EKG's for Respondent. Subsection 464.021(2)(a), Florida Statutes, provides that performance of assessment, diagnosis, counselling and health teaching of the ill are within the definition of professional nursing. It thus appears that all of the acts and/or conduct engaged in by Respondent were permissible acts within the responsible supervisory control of Dr. Randal Whitney or were for medications within the approved formulary for Advanced Registered Nurse Practitioners. Respondent credibly testified that he consulted with Dr. Whitney, who supervised him in the treatment of all of his patients. (TR 261.) Finally, although it was alleged in Count IV of the Administrative Complaint that Respondent was found to be in the unlawful possession of controlled substances in violation of Florida Statutes Chapter 893, the Respondent denies this, and no evidence was offered by Petitioner to counter Respondent's assertion. The record herein reflects that while some of Respondent's acts and/or practices may have been questionable based on the conflicting directions embarked upon by the various joint committees, in view of the latitude granted to Advanced Registered Nurse Practitioners by the Nurse Practices Act and the established working relationship entered into between Respondent and Dr. Randal Whitney, the undersigned concludes that Respondent acted within his authority in his treatment of patients referred to herein. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 4th day of December, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent violated Section 464.018(1)(h), Florida Statutes, as alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since June 18, 1993, licensed as a practical nurse in the State of Florida. Her license number is PN 1113121. Respondent trained to be a practical nurse at the Sheridan Vocational School (hereinafter referred to as "Sheridan") in Hollywood, Florida. She graduated from Sheridan in January of 1993, the recipient of the Jeanette Lindsey Shirley Nursing Service Award. Respondent was employed by Aventura Hospital and Medical Center (hereinafter referred to as "Aventura") from approximately March of 1993, to January of 1994, when she was terminated as a result of the incident which led to the issuance of the Administrative Complaint that is the subject of the instant case. For the first three months of her employment at Aventura Respondent worked as a GPN (Graduate Practical Nurse). After receiving her nursing license in June of 1993, Respondent was promoted to an LPN (Licensed Practical Nurse) position. She held this LPN position until her termination in January of 1994. Throughout the period of her employment, Respondent was assigned to the hospital's mental health unit. Respondent was a dedicated and loyal employee who, as general rule, got along well with the patients under her care, as well as her coworkers. Not infrequently, she would voluntarily remain on the unit after the end of her shift to make sure that her patients received the care and attention their physicians had ordered. Prior to the incident that resulted in the termination of her employment, Respondent had an unblemished employment record at Aventura. The incident in question occurred on or about January 17, 1994. On the day of the incident Respondent was working the 12 midnight to 8:00 a.m. shift at the hospital. One of the patients under her care that day was B.H. B.H. was an elderly woman receiving treatment for depression. She required the nursing staff's assistance with Activities of Daily Living (ADLs), including dressing. B.H. was a "very difficult" patient. She was generally uncooperative and frequently resisted, with physical force and violence, the nursing staff's efforts to provide her the help and assistance she needed with her ADLs. On the day in question B.H. had a scheduled, early morning appointment to see her attending physician, Dr. Greener. Dr. Greener had given explicit instructions to the nursing staff that B.H. be awakened and dressed before the scheduled appointment. Toward the end of her shift, Respondent went into B.H.'s room to get her ready for Dr. Greener. Respondent was able to awaken B.H., but B.H. refused to get out of bed. Respondent decided to leave B.H. and take care of the other tasks she needed to complete before the end of her shift. When Respondent returned to B.H.'s room it was after 8:00 a.m. Although her shift had ended, Respondent felt an obligation to remain at the hospital and follow through with her efforts to fully comply with the instructions that Dr. Greener had given concerning B.H. Dr. Greener had already arrived at the hospital and was ready to see Respondent. Respondent pleaded with B.H. to cooperate with her. B.H., however, ignored Respondent's pleas and remained in bed. Dr. Greener was a demanding physician who expected the nursing staff to timely comply with his every instruction. He expressed, in no uncertain terms, his disappointment when these expectations were not met. Respondent did not want to disappoint Dr. Greener. She therefore attempted to dress B.H. even though B.H. would not get out of bed. B.H. responded to Respondent's efforts to dress her by kicking, swinging her arms and spitting at Respondent. Despite receiving such resistance, Respondent continued to try to dress B.H. She did call for assistance, however. Todd Sussman, who was employed as a Mental Health Technician at the hospital, was on the unit that morning and responded to Respondent's call for help. When Sussman discovered the nature of the assistance Respondent required, he left B.H.'s room to obtain surgical gloves. Shortly thereafter, he returned to the room wearing such gloves. As Sussman walked back into the room, he saw Respondent, who was still struggling with B.H., slap B.H. in the face and pinch B.H.'s lips together in an effort to prevent B.H. from spitting at her. Sussman helped Respondent attempt to dress B.H. by holding B.H. by the arm. At one point, he let go of B.H. to allow Respondent to remove B.H.'s night shirt. Once her arm was free, B.H. swung it in Respondent's direction and hit Respondent in the face. Respondent reacted by slapping B.H. "fairly hard" on or slightly above the wrist, a reaction that was witnessed by Sussman, as well as another employee of the hospital, Barry Butler, an LPN who had entered the room shortly before B.H. had struck Respondent in the face. Both Sussman and Butler reported to their supervisor what they had observed take place in B.H.'s room that morning. Respondent's employment with the hospital was subsequently terminated based on the information Sussman and Butler had provided. At no time while struggling to dress B.H. on or about January 17, 1994, did Respondent intend to, nor did she actually, harm or injure B.H. Nonetheless, during the struggle (specifically when she purposefully slapped B.H. in the face and on or slightly above the wrist and pinched B.H.'s lips together), 2/ Respondent acted in an unprofessional manner that did not conform with the minimal standards of acceptable and prevailing nursing practice. 3/ The use of such physical force against B.H. was unnecessary and therefore inappropriate. 4/ There were other, safer (and therefore more appropriate) options (of which Respondent should have been aware in light of her training) that were available to Respondent to deal with the difficult situation she faced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed this violation by fining her $250.00 and placing her on probation (of the type specified in subsection (1)(g) of Rule 59S-8.006, Florida Administrative Code: "[p]robation with specified continuing education courses in addition to the minimum conditions") for a period of eighteen months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1996.
The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
