Findings Of Fact In October 1978 Bonnie Ray Solomon Crawford, LPN was employed at the West Pasco Hospital, New Port Richey, Florida as a licensed practical nurse provided by Upjohn Company's rent-a-nurse program. On 7 October 1978 Respondent signed out at 10:00 a.m. and 2:00 p.m., and on 8 October 1973 at 8:00 a.m. and 1:00 p.m. for Demerol 75 mg for patient Kleinschmidt (Exhibit 2). Doctor's orders contained in Exhibit 4 shows that Demerol 50 mg was ordered by the doctor to be administered to patient Kleinschmidt as needed. Nurses Notes in Exhibit 4 for October 7, 1978 contains no entry of administration of Demerol at 10:00 a.m. and at 2:00 p.m. shows administration of 50 mg. and Phenergan 25 mg. Exhibit 3, Narcotic Record for Demerol 50 mg contains two entries at 8:15 a.m. on October 7, 1978 and one entry at 12:30 p.m. where Respondent signed out for Demerol 50 mg. for patients King, Zobrist and King in chronological order. Nurses Notes for King, Exhibit 6, and Zobrist, Exhibit 5, contain no entry that Demerol was administered to patient Zobrist at 8:15 a.m. or to patient King at 12:30 p.m. on 7 October 1978. In fact, the record for Zobrist shows that Zobrist was discharged from the hospital on October 5, 1978. Failure to chart the administration of narcotics constitutes a gross error in patient care and is not acceptable nursing practice. Similarly it is not acceptable nursing practice to withdraw narcotics not contained in doctors orders or administer medication not in doctors orders. When confronted by the Nursing Administrator at West Pasco Hospital with these discrepancies in the handling of Demerol, Respondent stated that she failed to check the identity of the patient before administering medication and that she didn't feel she should be giving medications any more. Following this confrontation with the hospital authorities, Respondent was fired for incompetency. No evidence was submitted regarding Respondent's 1975 disciplinary proceedings.
The Issue The issue is whether Respondent's license to practice nursing 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 Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed. DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Linda Sears Gibson 2003 Southwest Seventh Street Ocala, Florida Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only. RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT 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 18th day of December, 1981. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Henry C. Hunter, Esquire Suite 320 Lewis State Bank Building Tallahassee, Florida 32301 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, CASE NO.: 81-991 vs. MIRACLE HILL NURSING AND CONVALESCENT HOME, INC., Respondent. /
Findings Of Fact Respondent, Barbara Jiminez, is a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0812181. At the time of the incident involved in this case, Respondent was a LPN. In 1987, Respondent was employed as a licensed practical nurse by Holly Point Manor, a nursing home located in Orange Park, Florida. Respondent was also employed as a LPN by another nursing home in the area. She was scheduled to work the 3:00 p.m. to 11:00 p.m. shift at Holly Point Manor. Holly Point Manor was a new facility and had opened in November, 1987. Only one wing of the facility was open and in December, 1987, Holly Point Manor serviced approximately 50 patients. On December 21, 1987, Respondent presented a letter of resignation to Tom Burrell, Director of Nursing at Holly Point Manor. The resignation was effective December 20, 1987. The resignation was precipitated by a verbal altercation with Liz McClain, a certified nursing assistant (CNA) at Holly Point Manor. The verbal exchange occurred on December 20, 1987. However, difficulties between Respondent and Ms. McClain had been brewing for a period of time prior to the verbal exchange of the 20th. After discussing the letter with Burrell, Respondent agreed to work on an as-needed basis at the facility. Burrell indicated that he needed Respondent to work until the beginning of the year, and therefore scheduled the Respondent for the remainder of December. Respondent was scheduled to work her usual shift on December 23, 24, and 25, 1987. She was scheduled to work with Virginia Anderson. Ms. Anderson is also a LPN. On December 23, 1987, Respondent clocked in for work at approximately 2:40 p.m. EST and clocked out the same day at 3:40 p.m. EST. On December 23, 1987, the Respondent and Virginia Anderson began work before the 3:00 p.m. change-of-shift. At shift change, both nurses went into the medication room to "take report" from Nurse Jan Sturgeon, the LPN who had worked the previous shift. A "report" at the change of shift consists of the previous shift's nurse going down the list of each resident/patient and reporting each patient's respective condition to the on-coming nurse. Part of the report includes counting the medications on the medication cart to ensure a correct count in the narcotic drawer of each cart. In this case, there were two medication carts, one for each of the on-coming nurses. These carts are locked and the nurse responsible for the cart maintains possession of the keys to that cart. Ms. Sturgeon "reported off" first to Ms. Anderson, and then to Respondent. Ms. Anderson began her rounds after receiving a report and keys to her cart from Ms. Sturgeon. Subsequently, Respondent received a report and keys to her cart from Ms. Sturgeon. At some time during Respondent's clocking in and taking report, a problem arose over the staffing assignments of the C.N.A.'s. Respondent was the nurse responsible for making the CNA assignments. However, Nurse Anderson had already created patient-care assignments for the CNAs after one C.N.A. had failed to report for work.1/ The Respondent was not satisfied with the assignments created by Anderson and either requested that they be changed or changed them herself. The request or change immediately caused a bad atmosphere between the employees on the wing. Around 3:30 p.m., Respondent telephoned Tom Burrell. Respondent told Burre11 that she couldn't take it anymore and that she was leaving. Burrell told Respondent that she was scheduled to work and if she left she would be reported for what was, in his opinion, a violation of the Nurse Practice Act. Burrell did not give Respondent permission to leave. Either before or after the call to Burrell, Nurse Eppert, the Assistant Director of Nursing, told the Respondent that in her opinion there was nothing wrong with the C.N.A. assignments. Respondent stated, "Here's my keys - - I'm leaving." Eppert informed Respondent that she had no replacement nurse and did not want her to leave. Respondent pointed out that Ms. Sturgeon was still present. Eppert reminded Respondent that Sturgeon was off duty. Eppert then told Respondent to give a report to Nurse Anderson. She refused and told Ms. Anderson to get the report from Ms. Sturgeon who had just given the report to Respondent. Since Respondent had not begun her rounds, Ms. Sturgeon's report was still valid and the narcotic count had not changed. Respondent left Holly Point Manor. The Respondent did not positively know at the time she left whether Nurse Sturgeon would remain to assist. The Respondent did not stay to determine whether Sturgeon would, in fact, cover the shift. However, the evidence did show that Ms. Sturgeon tacitly agreed to stay before Respondent left the facility. Nurse Sturgeon was not the type of person to decline to help when the need arose. After the Respondent left, Jan Sturgeon formally agreed to stay to assist with the 5 p.m. medication pass. She agreed because Ms. Eppert could not find anyone to work due to the closeness of the holidays. After the medication pass, Ms. Sturgeon left for the evening and Ms. Anderson handled the shift by herself. One nurse working the night shift alone was not an unusual event at Holly Point and occurred frequently. In fact, Ms. Anderson had worked the previous evening's shift by herself. One nurse to 50 patients meets HRS staffing requirements for nursing home facilities. However, the hardest part of the evening shift for a solo nurse was the 5:00 p.m. medication pass. Later, the facility was able to retain a replacement nurse for the 24th and 25th. It is not an acceptable nursing practice for a nurse to leave his or her employment until that nurse is sure that somebody else is going to take care of the patients the nurse is responsible for. In this case, Respondent failed to positively ensure someone would replace her. Reliance on tacit agreement by either of the other two nurses is not enough. Likewise, past practice of the facility is not enough. Reliance on tacit agreement or past practice is too amorphous to insure protection and the safety of the patients the nurse is responsible for. However, tacit agreement and past practice do go towards mitigation of any disciplinary penalty in this case. Respondent's actions by not ensuring her replacement or at least the need for such a replacement constitutes unprofessional conduct in the practice of nursing Likewise, it is not an acceptable nursing practice for an LPN to leave without giving another nurse a report on patients that that nurse would be assuming and before counting the medications on the medication cart. However, in this case, the evidence demonstrated that a replacement was there whose earlier report was still accurate and valid. Therefore, formal patient reporting and narcotics counting was not necessary or required. 2/ Respondent is not subject to discipline under this standard.
Recommendation Based upon the foregoing Proposed Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a Final Order reprimanding the Respondent's license, and requiring her to take courses in the Legal Aspects of Nursing and in Stress Management within a 6 month time period. DONE and ENTERED this 19 day of October, 1989, at Tallahassee, Florida. DIANE CLEAVINGER 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 19 day of October, 1989.
The Issue Respondent is charged under Section 464.018(1)(c), Florida Statutes, of being convicted, regardless of adjudication, of a crime which directly relates to the practice of nursing or the ability to practice nursing, and under Section 464.018(1)(d) 5, of being found guilty, regardless of adjudication, of a violation of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence.
Findings Of Fact The Respondent is, and at all times material hereto has been, a licensed registered nurse in the state of Florida, having been issued license number RN 1931082. She has been licensed in one or more states as a nurse for 25 years. She has been a critical care nurse and worked emergency rooms and ambulances. She has never before been the subject of Florida license discipline. On March 15, 1995, Respondent was charged with the crime of vehicular homicide, a second degree felony, pursuant to Section 782.071, Florida Statutes (1993). (See Exhibit R-5 showing the statutory year.) That statute provided in pertinent part, 782.071 Vehicular homicide. -- "Vehicular homicide" is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree, punishable as provided in s. 774.082, s. 775.083, or s. 775.084 Respondent pled "not guilty" to the charge of vehicular homicide. On May 30, 1996, Respondent was tried and found guilty by a jury of vehicular homicide, in the Circuit Court in and for Manatee County, Florida under Case No. 94-3739F. A charge against Respondent of leaving the scene of the accident was dropped at trial. On June 27, 1996, Respondent was sentenced to six-and- one-half years of imprisonment followed by eight years of probation. The Second District Court of Appeal affirmed the Respondent's conviction, but her sentence was recalculated in connection with the applicable sentencing guidelines. There have been no other appellate decisions regarding Respondent's conviction. Respondent was due for work release shortly after formal hearing. The Respondent testified that she considered it her obligation as a nurse to stop and render assistance if she knew she hit someone with a motor vehicle; however, Respondent maintained that she did not know that she had hit anyone. The Agency presented no testimony, expert or otherwise, to relate Respondent's second degree felony conviction of vehicular homicide to the practice of nursing or the ability to practice nursing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a Final Order finding Respondent not guilty of both counts of the Administrative Complaint and dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998.
The Issue The issue to be determined is whether Petitioner’s application for licensure by endorsement as a licensed practical nurse in the State of Florida should be granted or denied.
Findings Of Fact Petitioner was licensed as a practical nurse by examination in the State of Ohio, having received her license in Ohio in August of 1994. She practiced in Ohio, generally in long-term care settings, from 1994 to approximately 2009. She was subsequently licensed by endorsement in Virginia on March 17, 2009, and in North Carolina on May 18, 2011. On February 23, 2011, Petitioner received a reprimand against her license in the State of Virginia. The reprimand was issued as a result of a Consent Order in which Petitioner neither admitted nor denied the findings of fact in the Virginia Board of Nursing’s Final Order. Petitioner applied for licensure in North Carolina a few months after the entry of the Virginia Final Order. Her testimony that she disclosed the reprimand in her application for licensure in North Carolina is undisputed and accepted. The application submitted in North Carolina was a paper application. On or about April 27, 2015, Petitioner submitted an electronic application for licensure by endorsement in Florida. The application contains the following question, which Petitioner answered “no”: Have you ever had disciplinary action taken against your license to practice a health care-related profession by the licensing authority in Florida, or any other state, jurisdiction or country? In submitting her application, Petitioner also checked an Affirmation Statement, which includes the following statement: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or a Licensed Practical Nurse in the State of Florida. Petitioner did not complete her on-line application in one sitting. She filled it out over several sessions on the computer, because she had to complete the continuing education required for Florida and had to wait for funds to pay the application fee. Because of the way she completed the application, she did not check her application as carefully as she should have and did not realize that she had answered the question regarding discipline in another state incorrectly. Petitioner had notified North Carolina of her previous discipline when applying in that state. There was no basis presented to indicate that she was affirmatively attempting to conceal her prior discipline, as opposed to being negligent in the completion of her application. Petitioner did not realize the error on her application until she inquired about the status of her application after the Board considered it at its June 2015 meeting. After her inquiry, but before receiving the Notice of Intent to Deny, Ms. Walker wrote to the Executive Director of the Board to inquire what she needed to do to correct her error, stating, “it was an honest mistake of marking the wrong box on the question. I had started and stopped the application several times while gathering all of the information needed.” She provided information regarding the Virginia discipline, and a printout of the documents on file with the Virginia Board of Nursing with respect to the reprimand. Petitioner has been a nurse for over 22 years. She loves her job. She was candid and forthright in acknowledging that it was her error and no one else’s with respect to the answers given on the application. While Petitioner clearly needed to be more careful in preparing her application, no deliberate attempt to deceive was demonstrated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Nursing enter a final order granting Petitioner’s application for licensure by endorsement as a licensed practical nurse. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2016. COPIES FURNISHED: Tara Danielle Walker 146 Smoky Crossing Way Seymour, Tennessee 37865 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Is Petitioner guilty of violating Section 455.227(1)(c) Florida Statutes, justifying imposition of conditional licensure as two years probation with terms listed in the Order filed September 20, 1996? The charge of violating Section 464.018(1)(b) Florida Statutes has been dropped by the Board.
Findings Of Fact On April 25, 1995, Petitioner pled nolo contendere to a first degree misdemeanor count of passing a worthless bank check in violation of Section 832.05(2)(a) Florida Statutes. Section 832.05(2)(a) Florida Statutes provides, in pertinent part, as follows: It is unlawful for any person, . . . to draw, make, utter, issue, or deliver to another any check, . . . knowing at the time of the drawing, making, uttering, issuing, or delivery such check or draft, . . . that the maker . . . has not sufficient funds on deposit . . . with such bank . . . with which to pay the same on presentation . . . nor does this section apply to any postdated check. As part of a court diversion program, adjudication was withheld and Petitioner was assigned to take the Florida Association for Corrective Training, Inc. (FACT) course on the criminal consequences of dishonored checks and how to avoid them. Petitioner completed the FACT course, and also paid restitution, diversion fees and court costs. This course was completed on September 12, 1995. A plea of nolo contendere is neither an admission of guilt nor a denial of charges. A plea of nolo contendere with adjudication of guilt withheld does not constitute a conviction. Petitioner made her plea as a matter of convenience. Petitioner has never been found guilty or convicted of passing a worthless bank check. The check which gave rise to Petitioner's April 25, 1995 plea of nolo contendere to a misdemeanor under Section 832.05(2)(a) Florida Statutes was written to Florida State University (FSU) on September 2, 1994 for tuition fees for courses in which Petitioner had enrolled as a nursing student. Petitioner made an error in the calculations of her check register. The check was returned to FSU as "without sufficient funds". FSU redeposited the check, which was then returned a second time to FSU as "without sufficient funds". Upon learning that the check had been returned, Petitioner contacted the FSU registrar's office. She was told that she had contacted FSU soon enough, so that she could withdraw from classes without penalty, and therefore she need not be concerned about the check. Petitioner did withdraw from classes and thought the problem was solved. However, FSU subsequently pressed criminal charges for the check with the Leon County State Attorney's Office. On March 28, 1996, Petitioner applied for a practical nursing license (L.P.N.). On her application, Petitioner answered in the affirmative the question as to whether she had ever been convicted or entered a nolo contendere or guilty plea regardless of adjudication, for any offense other than a minor traffic violation. She also provided a written explanation for the April 25, 1995 nolo contendere misdemeanor plea. Additionally, in an effort to be candid and forthcoming, Petitioner provided a written explanation for each of five other charges for passing worthless bank checks brought against her. As a result, Petitioner was invited to appear, and chose to appear, before the Board of Nursing's Credentials Committee to explain the circumstances surrounding her April 25, 1995 nolo contendere plea and the other worthless check charges she had disclosed. According to Petitioner, this meeting lasted less than five minutes and she was asked no questions. Pursuant to Section 464.002 Florida Statutes, the Board of Nursing voted to grant Petitioner an L.P.N. license subject to two years' probation with terms described in its September 20, 1996 Order based upon the Board's "finding of fact" that Petitioner "was found guilty or pled nolo contendere on various charges of passing worthless bank checks" and that there were aggravating circumstances surrounding the plea. The Board's Order concluded that Petitioner is guilty of violating Section 455.227(1)(c) Florida Statutes. Section 455.227(1)(c) Florida Statutes provides that a license may be disciplined for: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession. The Board of Nursing does not have a disciplinary guideline, a range of penalties, or a rule addressing mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c) Florida Statutes.1 The Board of Nursing issued license number 1250541 to Petitioner effective October 9, 1996 and subject to two years' probation, as described in its September 20, 1996 Order. Petitioner had an opportunity at formal hearing to present evidence concerning her nolo contendere plea and the five other charges she voluntarily reported to the Board. A "no information" is the method of dismissing a misdemeanor criminal charge. A "nolle prosequi" is the method of dismissing a felony criminal charge. The first charge occurred in 1991 or 1992. It involved a dishonored check for a mere $5.64 to Winn-Dixie. The court diversion program at that time was not very elaborate, but Petitioner attended a single February 25, 1992 lecture on the passing of bad checks, and paid restitution plus $20.00 in costs. A nolle prosequi was entered. Petitioner's check to FSU on September 2, 1994 for $199.79 resulted in two service charges being imposed on her checking account by her bank. (See Finding of Fact 5) These unilateral debits by the bank resulted in a check written September 15, 1994 by Petitioner for $56.59 to Winn-Dixie being dishonored for insufficient funds. Petitioner wrote a letter of explanation, paid restitution, and a "no information" was filed. A $49.19 check written to Wal-Mart on March 31, 1995 and a $150.48 check written to Winn-Dixie on April 5, 1995 were dishonored because Petitioner relied upon her ex-fiancé to deposit money he owed her directly into her checking account instead of Petitioner receiving payment from him in person. Petitioner did not see her ex-fiancé in person or return to their joint residence to pick up her bank statements because he had been abusive and she was fearful of him. He did not, in fact, make the deposit to her account. Petitioner paid restitution and costs for both cases. The Wal-Mart check situation resulted in a "no information." The Winn-Dixie check situation resulted in a nolle prosequi. A $99.20 check Petitioner had written to Publix on September 4, 1995 was dishonored because a car repair shop which had repaired her car did not honor an oral agreement Petitioner understood would prevent her check to the repair shop from being presented to the bank until after she had made a sufficient deposit from an insurance claim for the car repairs. This resulted in a "no information." Due to the uncertainty of the State Attorney's computer records (TR 96-98) and Petitioner's clear testimony, it is found that Petitioner was not required to undergo the diversion program for the September 15, 1994, March 31, 1995, April 5, 1995, and September 4, 1995 checks. However, it is abundantly clear she has now had two courses concerning this subject: one in 1992 and one in 1995. (See Findings of Fact 3 and 16) It is also clear she wrote her last bad check before completing the second FACT course on September 12, 1995. Two of Petitioner's bank check problems arose while she was a nursing student. Petitioner was employed as a patient care technician at Vivra Renal Care from July 1995 through October 1996. One of Petitioner's bank check problems arose while she was employed in the care of critically ill people. Dr. Evelyn Singer, Dean of the School of Nursing at FSU testified as an expert in nursing education and the practice of nursing. She opined that practical nurses are responsible for observing and documenting vital patient information and routine patient care. Other health care professionals rely upon the accuracy of practical nurses' observations and documentation. Nursing instructors stress the importance of accuracy and honesty when a practical nurse handles vital patient information. A documentation mistake by a practical nurse has the potential for resulting in a patient's death. Dr. Singer further opined that passing worthless bank checks is a crime related to the practice of nursing because the skills called into question for passing worthless bank checks are the same skills required to be an effective nurse, ie., making accurate observations, accurately recording observations and events, making accurate calculations, accurately measuring medication doses, accurately measuring and noting blood pressure and temperature of patients, appropriately changing dressings, accurately measuring and reporting patient observations, being cognizant of details, and addressing errors or omissions honestly and promptly. However, Dr. Singer further testified that if those things are accurately performed, then a nurse's ability is not affected by even a felony bad check arrest and plea. Dr. Singer believes that an inaccurate nurse is an untrustworthy nurse. In Dr. Singer's expert opinion, practical nurses should notify their nursing units if they have been arrested and convicted of writing worthless checks so as to constitute a felony (TR 124-126), so that the registered nurse under whose license they practice can be on the alert for documentation mistakes. What significance a felony arrest or conviction has as opposed to a misdemeanor arrest or conviction was not explained by Dr. Singer, but she viewed the probation imposed on Petitioner not as a judgment of personal guilt or dishonesty but as an opportunity for Petitioner's employer to be on the lookout for inaccuracies. At Petitioner's request, Judith G. Hankin, Director, School of Practical Nursing, Lively Technical Center, wrote a letter dated March 15, 1996 to the Board of Nursing. She wrote, [Petitioner] entered the Practical Nursing Program on August 23, 1993. On March 14, 1996 [Petitioner] informed me that she had an arrest record for series of worthless bank checks. . . . Her overall behavior during the time she was enrolled in school was acceptable. I feel that [Petitioner] is capable of assuming the responsibilities of a graduate practical nurse. Petitioner has worked as a licensed practical nurse at Vivra Renal Care, Tallahassee, Florida since her licensure on October 9, 1996. Her duties include assisting patients receiving kidney dialysis by setting up dialysis machines, preparation of dializers, assisting patients, and initiating treatment and discharge of patients. Charles E. Brown, R.N., is the head nurse at Vivra Renal Care. He has supervised and been involved in the evaluation of Petitioner since she began work at Vivra Renal Care in July 1995. (See Findings of Fact 22 and 29) Nurse Brown also was accepted as an expert in clinical nursing. He opined that inadvertently writing a worthless check or pleading nolo contendere does not relate to the practice of nursing or the ability to practice nursing. Mr. Brown has consistently observed, over a period of approximately 18 months, that Petitioner accurately measures medication doses, accurately measures and notes blood pressure and temperature of patients, appropriately changes dressings, accurately measures and reports patient observations and is cognizant of details. Nurse Brown described Petitioner's nursing abilities as "good" and the opposite of careless to the point that she is more than meticulous.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing rescind its September 20, 1996 Order and enter a Final Order granting Petitioner an unrestricted L.P.N. license, without any probationary period. RECOMMENDED this 1st day of MAY, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
