Findings Of Fact On December 9, 1980, Petitioner was working as a student nurse at University Community Hospital, Tampa, Florida. She was in her next to last quarter as a student in the Registered Nurse Program at Hillsborough Community College. Her supervisor had assigned Petitioner to provide exclusive care to a comatose patient who had both a tracheostomy and a gastrostomy. Attached to the trachea of this patient was a tube into which oxygen and water were added to help patient's respiration and to keep the proper moisture content in his lungs. The hole was covered by a mask which could be slipped aside by the nurse to suction fluids emerging from the lungs. This suctioning around the trachea was required every few minutes, hence the assignment of Petitioner to only one patient during this shift. Petitioner was informed she would get this assignment one or two days prior and had visited the patient's room, read his charts, and studied the nursing required before reporting for duty on 9 December 1980. She was fully aware of the tracheostomy, gastrostomy, and the purpose and function of each. Petitioner reported for work at 6:00 a.m. on December 9, 1980, and was assigned to the comatose patient as noted above. She spent most of the first two hours suctioning and cleaning around the tracheostomy and generally caring for the patient, which included turning the patient. From her observation and study Respondent was aware of the tube into the abdomen of this patient by which he was to be fed. Shortly after 8:00 a.m. on December 9, 1980, Petitioner prepared the bag for liquid feeding of the patient and hung it on the IV pole alongside the patient's bed. She then connected the tube from the feeding bag to the tracheostomy tube. Around 8:45 a.m. James Holly, a respiratory therapy technician, entered the room and saw Petitioner standing alongside the patient's bed with the feeding bag on the IV pole and the tube from the bag leading to the tracheostomy of the patient. He immediately yelled words to the effect that the feeding tube is connected to the treach and ran to the opposite side of the bed from which Petitioner was standing. Petitioner heard a noise, immediately realized what was happening and removed the feeding tube from the trachea. Holly testified the patient coughed once violently; Petitioner testified-the patient did not cough violently. In either, event the patient's lungs were checked immediately with a stethoscope, the supervising nurse was sent for and Petitioner's supervisor was called. The patient received very little, ,if, any, feeding fluid into his lungs and suffered no adverse effects from this incident. Petitioner's supervisor discussed the incident with Petitioner, assisted her in giving the patient his morning feeding and concluded Petitioner was capable of caring for the patient for the rest of the shift. Petitioner remained with the patient throughout the shift and gave the patient his twelve o'clock feeding without assistance or incident. Petitioner's supervisor reported the incident to the Director of Nursing at Hillsborough Community College, who called a meeting of the evaluating committee the following day. At the evaluation hearing Petitioner could give no explanation of why she had connected the feeding tube to the tracheostomy tube rather than the gastrostomy tube, nor could she explain at this hearing why she did it. In Petitioner's words, "If I knew why I did it, it wouldn't have happened." Following the meeting of the evaluating committee Petitioner was dismissed from nursing school and her subsequent application for readmission was denied. Her application to take the licensed practical nurse examination, for which her time as a student nurse qualified for the licensed practical nurse training requirements, was denied by Respondent and Petitioner requested this hearing. Prior to the incident of 9 December 1980 Petitioner was regarded by her supervisors as well motivated, good with patients, and well organized. Petitioner is 37 years old and has wanted to be a nurse for a long time. She readily acknowledges that she knew the patient was to be fed through the gastrostomy tube, that the patient could not be fed through the tracheostomy tube and that it would be very dangerous to attempt to do so. Her inability to give any explanation of why she attached the feeding tube to the tracheostomy was a major factor in the evaluation board's determination to dismiss Petitioner from nursing school. Transmitting liquid into a patient's lungs through a tracheostomy tube constitutes a very dangerous procedure which could prove fatal to the patient either from suffocation (if a sufficient quantity of fluid was injested) or through infection in the lungs from the unsterilized liquid. Committing such act constitutes a failure to conform to minimum standards of acceptable and prevailing nursing practices. Petitioner was sufficiently advanced in her training to know the proper procedures to be followed in such a case, and Petitioner readily acknowledges that she did know the proper procedures to follow and is unable to account for her deviation therefrom.
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand. RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516 Petitioner: 1. Partially adopted in finding of fact 1. 2-4. Partially adopted in finding of fact 2. 5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 3. 9. Partially adopted in finding of fact 4. 10. Rejected as being hearsay. 11-16. Partially adopted in finding of fact 5. 17. Rejected as being hearsay. 18-20. Partially adopted in finding of fact 6. 21-25. COPIES Partially adopted FURNISHED: in finding of fact 8. Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ms. Susan H. T. Benson P. O. Box 143 Naples, FL 33939 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
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)
Findings Of Fact At all times pertinent to the matter in issue herein, the Respondent, University of South Florida, (University), was an entity of the State of Florida located in Tampa, and operated, among other services, a Student Health Services at which physicians and nurses were employed to provide health services to members of the student body. The Petitioner, Olympia Malone, was hired by the University as a registered nurse at the Student Health Service in January, 1986. At the time of her hiring, Ms. Malone had 3 years of college. She had received an Associate Degree from Hillsborough Community College, was licensed by the State of Florida as a registered nurse, and had been employed as such at St. Jospeh Hospital for 12 years. Over the years of her employment with the University, Ms. Malone received several performance evaluations which covered the period from July 25, 1986 through January 23, 1990. Prior to receipt of the last report on January 26, 1990, she received a commendation letter in May, 1989 from Ms. Sharon A. Berry, her immediate supervisor, and had been asked to transfer over to the physician area. Petitioner claims to have been told there was some problem in getting nurses to work in that area and she was asked to go there to get it organized. She was told she had the skills needed at the new section. She agreed to do this because she enjoyed it and saw it as a chance to keep her nursing skills up since the work related to direct patient care. While there she learned new skills and made suggestions for some of which she was commended. However, when she asked for a raise she was told by Ms. Allen, the Director of Nursing Services, that she had been transferred there because of personality conflicts. When a nursing supervisor position came open in the Student Health Service in 1989, Ms. Malone applied for it but the promotion was given to Ms. Hansen, another nurse, whom Petitioner feels was less qualified then she. Malone filed a grievance about this failure to select her for promotion but subsequently withdrew it because she felt she could not win and to carry it forward would polarize the work section. Ms. Allen selected Ms. Hansen for the position of supervisor because she felt, from the records, Hansen was best qualified. Though Ms. Malone indicates she has had supervisory experience as preceptor for licensed practical nurses, nursing assistants and students at St. Joseph Hospital, her application makes no reference to any supervisory experience as did Ms. Hansen's. Ms. Allen's selection was based on who had the most supervisory experience. She went strictly by what was on the applications. At no time prior to the rendering of the appraisal on January 26, 1990 was Ms. Malone given any indication there was any concern about her performance, nor was she counselled. Unknown to her, however, there were several memoranda concerning her performance, dating back to 1988 and 1989, which were being kept in a private file maintained by Ms. Allen. These memoranda, which were not being kept in Ms. Malone's official personnel record with the University, made repeated reference to personality conflicts involving her and other employees which were, apparently, causing some concern to the staff. An Addendum to Annual Performance Review relating to Ms. Malone, dated January 28, 1991 and covering the period from January 24, 1990 to January 23, 1991, refers to a counselling session with her conducted on January 24, 1991, one day after the expiration of the reporting period. At this session, Ms. Malone's non-written evaluation was discussed but she disagreed with it and left the meeting before the discussion could be completed. The use of a non-written evaluation was, at that time, a new, informal, fluid procedure whereby the rater, using the old rating form, discussed with the ratee that individual's strengths and weaknesses. The supervisor had the option of using the old formal form or the new discussion/memorandum format. Once the discussion was completed, the employee had the right to request a memorandum of the evaluation. In this case, the process did not get that far since Ms. Malone got upset and departed the room before it was completed. It is this evaluation which she now considers to be racial discrimination and retaliation for her prior grievance which forms the basis for this hearing. Ms. Malone objected to the use of this new procedure because she felt it did not require the supervisor to identify specifics. In December, 1990, she had requested of Dr. Anderson, the Director of the Student Health Service, that (1) she get an evaluation by an impartial rater, and (2) her evaluation be in writing. In response, Dr. Anderson advised Ms. Malone that her immediate supervisor, Ms. Hansen, had to render the evaluation and that she would be given "something in writing." About a year before this latter evaluation, Ms. Malone, in January, 1990, received a written evaluation by Ms. Hansen which, though it reflected she achieved standards in every category, also reflected she had experienced some difficulty in working with others and with carrying out assigned additional responsibilities. On February 2, 1990, Ms. Malone filed a grievance because of that evaluation and in August, 1990, her supervisors and Mr. Carrington, the University's Assistant Personnel Director, met with her to discuss the areas of insubordination alleged by Ms. Hansen. Ms. Malone was told this meeting was not a counselling session. When she asked for permission to gather information on her own time to refute the allegations, it was granted and the information was thereafter sent to Mr. Carrington and Dr. Anderson, but she got no response. Ms. Malone's attorney filed a complaint about this with the EEO office in the summer of 1990. This grievance got lost and was not responded to. Also that summer, Ms. Malone filed a grievance with the campus employment office based on what she felt was a negative performance appraisal. This matter was referred to an arbitration committee made up of two Black and one White member which determined that no evidence of discrimination or retaliation was indicated. In January, 1991, she then got the counselling session on which she walked out. Several days later, the written addendum, which she considered to be much worse than the original evaluation, was prepared. In March, 1991, Ms. Malone, who is African American, filed the current EEO complaint but did not get a response for "quite a while." She claims that during all this time she was treated differently from the White nurses and harassed with acts of reprisal. For example, Dr. Kali Derasari called her to her office and told her to pull an appointment for a patient to refer to a nurse practitioner. When she advised the doctor of the requirements for record keeping, the doctor disagreed so she did what was asked of her. As a result, the nurse practitioner complained to Ms. Hansen who counselled Petitioner for not following proper procedure. When the doctor, at Ms. Malone's request, backed her up, she was still reprimanded. On another occasion, according to Petitioner, she applied for leave two weeks in advance to attend a work shop she wanted and agreed to use annual leave, if necessary. She got approval from Ms. Hansen for administrative leave on March 27, 1991, 4 days later. She went to the workshop as approved, but 3 weeks later, was called in by Ms. Hansen, told she should not have had administrative leave for a workshop, and directed to change her time sheet which had already been approved. When Ms. Malone called someone at the Personnel office about it, she was told that office had not suggested the change - that her supervisor could approve administrative leave. When she told Ms. Hansen that, it was then agreed she could leave it as it was. There were numerous unspecified other instances of harassment claimed by Petitioner. She recalls one occasion where Ms. Hansen physically provoked her by leaning over her and coming up close to her face, criticizing her about her work. This was ultimately made a part of her record. In addition, Ms. Malone is the only Black nurse in the section. The other nurse there is a White licensed practical nurse, yet Ms. Malone claims she has been instructed not to refer to herself as a registered nurse. She feels this deprecates her position in an attempt to curry favor with the White nurse who is of a lower professional status. She also cites several occasions where she felt information she needed to do her job was kept from her though others were advised. When she reported all this to Ms. Allen, Ms. Hansen's supervisor, she got no response. However, she claims, whenever anyone complained about her, she was called in and counselled. She admits that management could have called and counselled those about whom she complained without her knowing about it. Ms. Malone also appears to disregard the fact that Ms. Allen, the overall supervisor, is Black. In 1987 and 1988, Ms. Malone's supervisor was Sharon Berry. According to Ms. Allen, there was some mutual complaining between the two of them At first Ms. Allen was very protective of Petitioner because she had hired her and wanted her to succeed. However, when Petitioner did not improve as expected, Ms. Allen's attitude changed and when she had an altercation with Ms. Malone about where Malone's car was parked, she began to believe that maybe Malone had some problem with personal relationships. Contrary to what Ms. Malone related, the transfer into the physician's section in 1989 was the result of problems Ms. Malone was having with her supervisors and after the move, she appeared to be doing better. Ms. Malone was given the opportunity, along with other nurses, to work in other areas to get more experience, but she declined the opportunity unless she got more money. Ms. Berry was Petitioner's immediate supervisor just after she was hired and initially they got along well. When problems first began to arise, she went to Ms. Allen who advised her to show Petitioner more understanding. This is consistent with Allen's testimony regarding her initial efforts to protect Petitioner. Nonetheless, Petitioner's performance, monitored on a continuing basis, was "fine." She was a good nurse. Gradually, however, Petitioner's relationships with Ms. Berry and the other nurses began to deteriorate and her lateness began to be a problem. Ms. Berry supervised Petitioner until she transferred to the physician's area. Toward the end of their relationship, Berry claims, Petitioner became remote and withdrawn from other staff, indicating they were "5 faced" and "barracudas." Things got so bad between Berry and Petitioner that Petitioner would not speak to her unless spoken to and then would not make eye contact. Ms. Hansen has been Petitioner's supervisor in the physician's area since 1989. Two of the 3 individuals she supervises are Black. She evaluates Petitioner's performance formally once a year and informally on a continuing, routine basis. She has found that Petitioner works without supervision most of the time. This is all right. However, at times Petitioner does not come to her as a resource person but goes to someone outside the section for answers to job questions and this is not all right. She has observed that Petitioner often has some difficulty in her relationships with others. When it became clear Petitioner was having difficulty with another person in the section, Hansen investigated and initiated a new procedure. A part of the problem was Petitioner's attitude and often, even when she was technically correct, her abusive and abrasive approach to others diminished her effectiveness. She has had to reprimand Petitioner in the past. When Ms. Hansen called Petitioner in for the January, 1991 evaluation, she showed Petitioner what she intended to say and Petitioner got angry and left. The matters which would have been discussed with Petitioner had she not walked out, were subsequently formalized. When Ms. Malone complained to Ms. Allen she was told she was too loud, and that she acted like Whites expected her to act. Allen also reportedly alleged that Malone was hostile to her. Ms. Malone admits to being loud and believes her loud voice can cause people to think she is hostile. Nonetheless, Ms. Malone claims that because of all the above listed perceived discrimination and retaliation, she has developed unspecified physical and mental aliments and is taking medication for both even though in the last few months the pressure has let up somewhat. When she notified management of this, she was referred to the Employee Assistance Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing Olympia Malone's Petition for Relief from the unlawful employment practices of both racial discrimination and retaliation filed against the University of South Florida. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3914 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: None submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. COPIES FURNISHED: George Clark, III, Esquire 610 Horatio Street Tampa, Florida 33606 Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250 Tampa, Florida 33620-6250 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-4149
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.
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what disciplinary action should be imposed on her nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed practical nurse in the State of Florida, holding license no. PN 0986101. Respondent has been so licensed since 1990. At all times relevant to this proceeding, Respondent was employed in the office of Dr. David Flick, M.D., an oncologist. On October 17, 1995, Dr. Flick wrote a prescription for Fiorinal for Katherine Filan, who on that date, was an employee of Dr. Flick. The prescription authorized one refill. On or about January 12, 1996, in response to an inquiry from a pharmacy, Respondent approved a refill of the prescription for Fiorinal for Katherine Filan, without first consulting Dr. Flick. According to Dr. Flick, at all times pertinent to this proceeding, the general policy in his office was that he approved all refills. This policy was unwritten and was not effectively communicated to employees. Respondent and one other licensed practical nurse, formerly employed as a nurse in Dr. Flick's office, provided credible testimony that nurses in Dr. Flick's office were allowed to refill prescriptions, except for narcotics. However, when nurses authorized such refills, the policy was that the refills were to be documented and charted. Respondent believed that her action of authorizing the refill of Ms. Filan's prescription was consistent with the practice and policy of Dr. Flick's office. Moreover, Respondent believed that her approval of the refill was permitted because Dr. Flick had expressly authorized one refill on the original prescription he had written. No evidence was presented that Ms. Filan had refilled the prescription prior to January 12, 1996. After Respondent authorized the refill of the prescription for Ms. Filan, she failed to record the refill authorization on the any medical records. Respondent maintains that her failure to document the refill was inadvertent and was the result of her being extremely busy that day. On the day that Respondent authorized the refill, she was the only chemotherapy nurse on duty, was taking care of patients, and taking incoming nurse's calls. Except for this proceeding, Respondent has never been the subject of a disciplinary proceeding related to her nursing license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is REOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of February, 1999. COPIES FURNISHED: Sam Power, Agency Clerk Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Howard M. Bernstein, Esquire Agency for Health Care Administration General Counsel's Office Medical Quality Assistance Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Michele L. Schrembs DeGrolier, pro se 1501 Carlos Avenue Clearwater, Florida 33755
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's application for reinstatement of her practical nursing license be DENIED. Done and Entered this 10th day of January, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Paul W. Ferrell, Esquire Legal Aid Society of St. Petersburg, Florida 440 Second Avenue North St. Petersburg, Florida 33701 Mrs. Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211
Findings Of Fact Respondent, Jean L. Hammer, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 0588011. In October 1986, respondent was employed by Pinewood Lodge, a treatment center for alcohol and drug rehabilitation, as a staff nurse on the midnight to 8:00 a.m. shift. Respondent was the only employee on duty during her shift, and was responsible for monitoring the patients for signs of distress, noting their progress on the medical records, and administering prescribed medications. For such services, respondent was paid $27,000 per annum; a salary consistent with that paid a registered nurse (R.N.) at the facility. In January 1987, respondent was offered and accepted the position of Supervisor of Nurses at Pinewood Lodge. The staffing of this position required the services of and provided an annual salary of $25,000 and other benefits. Respondent occupied this position until July 1987 when it was discovered that she was not a registered nurse and was discharged. The respondent's personnel file at Pinewood Lodge demonstrates that in seeking and gaining employment at the facility respondent represented herself to be a licensed registered nurse, the recipient of a Bachelor of Science degree from the University of Pittsburgh, and the recipient of an Associate in Science Nursing degree from Broward Community College. Such representations were false, and the documents submitted to support such representations were forgeries. The proof further demonstrates that respondent assumed the title of R.N., routinely signed documents in a manner that identified her as an R.N., and otherwise led the public and associates to believe that she was licensed as a registered nurse; all for pecuniary gain. While there was no showing that anything untoward occurred during the course of her tenure at Pinewood Lodge, respondent knew her actions were improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's license for one year, that following such suspension respondent be placed on probation for two years subject to such terms and conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX Petitioner's proposed findings of fact have been addressed as follows: Addressed in paragraph 1. Addressed in paragraph 4. 3-4. Addressed in paragraph 3. 5-6. Addressed in paragraph 4. 7-8. Addressed in paragraphs 3 and 5. 9. Addressed in paragraph 5. COPIES FURNISHED: E. Raymond Shope, Esquire John S. Cobb Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard Smith, Esquire 1258 South State Road 7 Fort Lauderdale, Florida 33317-5989 Judie Ritter, Executive Director Board of Professional Nursing 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
