The Issue By its Administrative Complaint, dated October 14, 1980, Use Petitioner seeks to impose an administrative fine in the amount of $1,500.00 upon the Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center for alleged violations of Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. Specifically, the Petitioner charges the Respondent with allegedly failing to provide patients in its nursing home with adequate care consistent with their right to receive adequate health care in accordance with the established and recognized practice standards in the community and with rules promulgated by the Department pursuant to Section 400.022 (1)(g), Florida Statutes. The Petitioner charges also that the Respondent failed to maintain its premises and equipment and conduct its operations in a safe and sanitary manner as required by Section 400.141(4), Florida Statutes. The Respondent is concomitantly charged with violations of Rules 10D-29.33(4) and 10D-29.38(1), and Rule 10D-29.52(4) Table (36), Florida Administrative Code, in the area of patient health care. A violation of Rule 10D-29.49(1), Florida Administrative Code is alleged on the ground that no effective maintenance plan was promulgated or implemented by the Respondent. The charges at issue relate to an August 22, 1980 complaint investigation and surveillance visit conducted by personnel from the Tampa Office of Licensure and Certification of Petitioner's Department. On that visit it is charged that the Petitioner's personnel observed a patient and her bed linens soiled with fecal material and another patient who had soil accumulations on the right hand and was in need of hand care. Additionally, the Petitioner's personnel allegedly observed nurse paging cords missing or not attached to beds in approximately twelve rooms and observed various fixtures and equipment in need of repair. The issues are thus whether the acts or omissions charged occurred, and whether they constitute violations of the above-cited legal authority and concomitantly, whether an administrative fine is appropriate pursuant to Section 400.102(c) and Section 400.121(2), Florida Statutes. Two witnesses were called by the petitioner and five by the Respondent. Ten exhibits were introduced into evidence. The Respondent moved to dismiss the Administrative Complaint. The Motion to Dismiss will be treated in the Conclusions of Law hereinbelow. The Respondent has filed 248 proposed findings of fact and has requested separate rulings upon each. In that regard, the Hearing Officer has considered all proposed findings of fact, conclusions and supporting arguments of the parties. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant, dispositive or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings and conclusions herein, it is not credited.
Findings Of Fact The Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center, operates a nursing home facility in Tampa, Florida. The Office of Licensure and Certification (OLC), of the Department of Health and Rehabilitative Services (HRS) is responsible for the investigation of complaints about the operation of nursing facilities such as that of the Respondent, which are licensed by HRS. On August 22, 1980 a complaint investigation and surveillance of the Respondent's facility was conducted by O.L.C. employees Joel Montgomery and Muriel Holzberger. These individuals performed an inspection tour of the Respondent's facility accompanied by staff members of the Respondent to generally observe the level of health care accorded patients and the effectiveness of maintenance and repair operations carried out by the Respondent on its facilities and equipment. Ms. Holzberger, a registered nurse and accepted as an expert in the area of proper nursing care standards, personally observed at least 90 percent of the 176 patients resident at the Respondent's facility. In that connection, witness Holzberger observed patient A. W. who was bedridden at the time. This witness observed a brown stain approximately the size of a half dollar on the top sheet of patient A. W.`s bed. The witness described the stain as appearing to be the color of fecal material and it apparently was dry. She did not touch it, but made a determination by its visual appearance only. The stain only consisted of a brown coloration and no fecal material was observed adhering to the stained area. The sheet of this patient was raised by Nurse Holzberger who thereupon observed wet excrement on the patient's buttocks and on a waterproof pad that had been placed under the patient. Ms. Holzberger opined that at this point and time at least, the patient had not been cleaned. No dried excrement material was observed on the patient or on the waterproof pad however. Patient A. W. had a medical history of constant fecal incontinence and other bowel problems consisting generally of frequent impactions, coupled with constant oozing of fecal matter. Proper nursing care for such a patient was established to consist of changing sheets and washing the patient frequently to avoid the danger of skin breakdown in the anal and coccyx area which can be caused by frequent contact with fecal material. This witness, however, was unable to testify that patient A. W. had not been cleaned frequently inasmuch as she had a constant oozing of fecal material due to her inability to achieve sphincter control. The witness was similarly unable to establish that the wet excrement observed on the patient's buttocks and the waterproof pad beneath her had not been disposited there immediately before her observation of the patient. It was not shown that the patient had remained in a soiled condition for a significant period of time and indeed the witness acknowledged that allowing such a patient to remain in a soiled condition for a short period of time would not, on one or two occasions, affect that patient's health and safety. It is inferred that the soiling could just as likely have occurred immediately prior to Ms. Holzberger's observation inasmuch as it was described to be wet. Ms. Holzberger's observed no patients in the nursing home exhibiting skin breakdown or other ill effects caused by contact with excrement. Nurse Holzberger also observed patient C. M. who had severe contractures of the hands. Ms. Holzberger maintained that she observed soil accumulations in the right hand and the fingernails were in need of trimming. This witness described generally accepted hand care for contractured hands as consisting of washing or soaking in warm water at least daily and that if the contracture is severe, causing pain to open the hand, a washcloth should be wrapped on a tongue blade and inserted into the hand to clean it in that fashion. Drying is accomplished in a similar manner followed by insertion of a soft hand roll at least one inch in diameter to prevent indentation of the nails into the hand and to prevent build up of perspiration and to allow air to circulate. The nails should be trimmed as short as possible. Ms. Holzberger concluded, based primarily on the observance of the soil or stain in the hand, that it had been several days since hand care had been performed on this patient. Nurse Holzberger admitted that she knew nothing of the medical history of the patient C. M., a 97-year-old lady who suffers from severe degenerative arthritis and osteoporosis in both hands. The hand in question is so severely contractured as to be "in a ball." The witness acknowledged that no patient at the facility, including patient C. M., had any wounds caused by long nails, and that patient C. M. did have a gauze pad inserted into her hand. Witness Holzberger acknowledged that the brown stain on the patient's hand could have been due to the use of betadine which is a form of disinfectant medication and indeed Nurses Campanillo and Groves who testified for the Respondent, and were similarly accepted as experts, confirmed that the stain on patient C. M.`s hand was not caused by soil accumulation, but rather the betadine medication applied the day before in the course of regular hand care. Witness Holzberger testified that such hand care should be performed once a day and that she did not know whether it had been performed on the day of the inspection or not. The Respondent's witnesses confirmed that it had not been performed on that day at the time of her inspection shortly after 11:00 a.m., but that within the regular schedule of care for patients, it should be and was performed before 12:30 that day. Witness Holzberger admitted that there was no danger to the health and safety of the patient even if the hand was allowed to remain unclean for a reasonable period of time, which it was not. The Respondent thus demonstrated that the hand care was performed daily and that this patient could not tolerate a hand roll under her fingers to retard perspiration and indentation of the nails into the palm because it was extremely painful to even slide a tongue depresser with a washcloth under her fingers. Consequently, hand care was adequately accomplished on a daily basis by inserting a four inch gauze pad beneath her fingers and against her palm soaked with betadine solution and keeping her nails trimmed as short as possible. Witness Joel Montgomery was the hospital consultant on the Department's inspection team. Witness Montgomery observed a leaking air conditioner unit, a broken water closet tank cover, a leaking faucet in a janitor's closet, an inoperative water fountain and a missing baseboard in two of the rooms, as well as the allegation that nurse call cords were missing or not attached to the beds in approximately 12 rooms. The witness conceded that this is a large nursing home and such deficiencies are not unusual for a nursing home of this size and type, and that the staff of this nursing home had made sincere and continuing efforts to make repairs. He has seen improvements in maintenance over conditions existing at previous inspections. The witness was unable to state how many nurse paging cords were severed or missing, but that most of the 12 were simply not attached to the patients' beds. His testimony was not clear as to the existence of a requirement for attaching the paging cords to the beds, but the general tenor of his testimony was that that was the accepted procedure required by the Petitioner in regulating and overseeing patient care in nursing homes. The witness could not recall which, if any, beds were occupied in the rooms where he noticed the call cords were not attached to the beds. The witness also acknowledged that some of the cords were reattached to the beds in his presence, but he did not recall how many. The Respondent has a policy of detaching the cords from the beds when the patients are not in bed in order to change the linen, move the beds or to better allow ingress or egress by the patient from the bed. This witness did not establish that that policy conflicts with any Department policy or rule or constitutes an adverse influence on health care. The Respondent adduced evidence which established that only two call cords were actually inoperative during the inspection and that those were repaired during the inspection. The Respondent's witness to this effect Ann Killeen, the Administrator of the facility, made the inspection tour in the company of witness Montgomery for the Petitioner and corroborated the fact that the cords were clipped to the wall when patients are out of the beds or beds were being changed in order to prevent cords from breaking when the beds are moved, and that she was unaware that this violated any minimum standard promulgated by the Petitioner. The broken toilet tank cover was corrected while the inspector was on the premises, the leaking faucet in the janitor's closet sink was a slight drip causing no standing water inasmuch as the leaking water went down the drain. The leaking air conditioner drip pan was the only one of 89 air conditioners with such a problem. The testimony of this witness, as well as Respondent's witness Robert Cole, the employee of the facility in charge of maintenance, establishes that the inoperative call cords as well as the loose baseboards, the inoperative water fountain and broken water closet tank cover were repaired on the day of the inspection while the inspector was still on the premises with the exception of the air conditioner which was repaired within one week after the inspection and the baseboards which were repaired the day after the inspection. The water fountain was the subject of regular maintenance and had been repaired a number of times and the plumber was summoned to repair it once again after its deficiency was noted by Mr. Montgomery. None of the deficiencies with regard to the nurse call cords, the condensation dripping from the air conditioner, the broken water closet tank cover, the leaking faucet, the inoperative water fountain and the loose baseboards were shown to have been a recurring problem or problem existing for any significant period of time. The Petitioner did not show when these conditions occurred or how long they had been allowed to exist, nor did it show any resultant effect on the health or safety of the patients. The Respondent called Earnest H. Brown as an adverse witness. Mr. Brown is the Supervisor of the Tampa area Office of Licensure and Certification for the Petitioner. This witness admitted that he recommended a fine with regard to witness Holzberger's observance of patient A. W., who was fecally incontinent, because he believed fecal material had been found dried upon that patient's bed sheet. He relied on witness Holzberger's professional judgment in reporting to him. Witness Holzberger's testimony at the hearing, however, does not establish that any dried fecal material was found on patient A. W.`s bed sheet. With regard to his decision to recommend a fine concerning the deficient nurse calling cords, the witness admitted that this was predicated on the other observances of deficient call cords at the Respondent's facility on past inspections. The witness could not recall how many call cords, if any, had been observed to be inoperative or otherwise used improperly on past inspections. It should be noted parenthetically that the Administrative Complaint contains no allegation of such past deficiencies as a predicate to the charge regarding call cords in the Administrative Complaint stemming from the inspection of August 22, 1980 and in support of the fine which the Petitioner seeks to impose for this condition.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings of the parties, it is RECOMMENDED that the Administrative Complaint filed against the Respondent in this cause should be dismissed. DONE AND ENTERED this 27th of April, 1981, in Tallahassee, Leon County, 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 27th day of April, 1981. COPIES FURNISHED: Amelia M. Park, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Richard A. Gilbert, Esquire de la Parte & Butler, P.A. 403 Morgan Street, Suite 102 Tampa, Florida 33602 Steven R. Reininger, Esquire Tew, Critchlow, Sonberg, Traum & Friedbauer 10th Floor Flagship Center 777 Brickell Avenue Miami, Florida 33131
Findings Of Fact Respondent, Marty Johnsey (Johnsey), was at all times material hereto licensed as a registered nurse in the State of Florida, having been issued license number 1766782. From November 10, 1986, to November 25, 1986, Johnsey was employed as a certified registered nurse anesthetist at Broward General Medical Center, Fort Lauderdale, Florida. On November 24, 1986, while on duty at Broward General, Johnsey was observed by Dr. Alfredo Ferrari, an anesthesiologist, to be in a rigid and cyanotic condition. Dr. Ferrari immediately summoned assistance, and Johnsey was placed on a stretcher, given respiratory assistance, and taken to the emergency room. While in the emergency room, Johnsey was administered Naloxone, a specific narcotic antagonist used to reverse the effects of synthetic narcotics such as Sufentanil. Within minutes of being administered Naloxone, Johnsey began to breath normally, wake up, and relate to his environment. A urine sample taken from Johnsey on November 24, 1986, as well as a syringe found by Dr. Ferrari next to Johnsey when he first assisted him, were subsequently analyzed and found to contain Sufentanil. Sufentanil is a synthetic narcotic analgesic, and a Schedule II controlled substance listed in Section 893.03(2)(b), Florida Statutes. Under the circumstances, the proof demonstrates that on November 24, 1986, Johnsey, while on duty at Broward General, was under the influence of Sufentanil to such an extent that he was unable to practice nursing with reasonable skill and safety.
Recommendation Based on the forgoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing an administrative fine of $250.00, suspending the license of respondent until such time as he can demonstrate that he can safely practice his profession, followed by a one year term of probation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0115 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph l. 2-3. Addressed in paragraph 2. 4-7. Addressed in paragraph 3. 8-10. To the extent pertinent, addressed in paragraph 4. 11-15. Addressed in paragraph 5. Otherwise rejected as subordinate. 16. Addressed in paragraph 7. COPIES FURNISHED: Michael A. Mone', Esquire Mr. Marty Johnsey Department of Professional 180 Skyline View Drive Regulation Collinsville, Illinois 62234 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director William O'Neil Department of Professional General Counsel Regulation Department of Professional Board of Nursing Regulation Room 504, 130 North Nonroe Street 111 East Coastline Drive Tallahassee, Florida 32399-0570 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent violated Section 464.018(1)(h), Florida Statutes (2000), covering unprofessional performance of nursing duties and failure to conform to minimal standards of nursing practice, and if so, what penalty should be imposed.
Findings Of Fact Respondent Jane Wickham is a Licensed Practical Nurse in the State of Florida, having been issued license number PM1227531. Petitioner is the State Agency charged with regulation of the practice of nursing, pursuant to Chapters 20, 456, and 464, Florida Statutes (2000). On June 6, 2001, Respondent was a nurse employed by and/or working at Daytona Health and Rehabilitation Center (DHRC), Daytona Beach, Florida. On June 6, 2001, Respondent was assigned to provide patient care to patient M. M., an 81-year-old female patient, who suffers from Alzheimer's Dementia and/or Alzheimer's Disease and dementia. M. M. had been recently admitted to DHRC on May 23, 2001. Her records indicate she was very combative. Respondent had worked with M. M. between May 23, 2001, and June 6, 2001. On June 6, 2001, Respondent attempted to administer oral medication to M. M.. M. M. said the medicine upset her stomach and refused it. She was heard repeatedly saying, "I don’t want it!" Respondent enlisted assistance from a Certified Nursing Assistant (CNA), who helped Respondent give M. M. a portion of the medicine, which M. M. then spat into Respondent's face. Some medicine struck Respondent. Respondent wiped herself off with a towel. She then grabbed M. M. forcibly by the arm, and briskly walked her into the dayroom and sat her on the couch. Lynn Peabody, Physical Therapy Assistant, observed M. M. and Respondent in the dayroom. M. M. attempted to get up from the couch and away from Respondent. M. M. and Respondent were swinging at each other, but Ms. Peabody was unable to see any "striking" by Respondent. M. M. swung the towel and knocked off Respondent's glasses. At that point, Respondent one again grabbed M. M. forcibly by her arm, wrenched her up from the couch, and briskly walked her to her room. Respondent used such force that M. M.'s slipper was pulled off as she tried to resist being pulled down the hall by Respondent. Respondent put patient M. M. in her room, shut the door, and held the door shut, trapping patient M. M. inside. While trapped in the room, M. M. was yelling, screaming, and trying to get out of the room. M. M. was upset and crying. Judy Kiziukiewicz, Marketing Director, was in the restroom across the hall from M. M.'s room. She heard screaming and banging from the altercation. She heard M. M. calling, "Help! help! help!" She also heard Respondent saying, "I'll kill you! I'll kill you!" Ms. Kiziukiewicz exited the restroom and went to M. M.'s aid. M. M. was shaky, tearful, frightened, and holding her arm, which was very red. M. M. said to Ms. Kiziukiewicz, "She won't let me out." Ms. Peabody testified without refutation that she observed Respondent shut M. M. in her room and hold the door closed, while M. M. shouted "Let me out!" Ms. Peabody also heard Respondent say, "I've had enough of this shit." About 3:00 p.m. on June 7, 2001, Janice Ullery, Licensed Practical Nurse, documented in patient M. M.'s records that M. M.'s right thumb was swollen and noted bruising. On June 8, 2001, Thomas Mistrata, an Investigator for the Department of Children and Families, interviewed patient M. M. He did not testify, but his report was admitted, pursuant to Section 120.57(1)(c), as explaining or supplementing direct evidence. His report indicates bruising to M. M.'s right hand, along the thumb extending to the wrist, and small circular bruising to M. M.'s arm, which appeared to him to be a hand print. His report also indicates observation of bruising to the top of M. M.'s left hand that was circular and approximately four centimeters wide. He took photographs of the bruises. Ms. Kiziukiewicz, who did testify, observed that these photographs did not fully show the redness of M. M.'s arm on June 6, 2001, when she observed M. M.'s injuries immediately after M. M.'s altercation with Respondent. On June 9, 2001, M. M. was examined by James R. Shoemaker, D.O. Dr. Shoemaker observed and documented in M. M.'s DHRC medical records a bruise on M. M.'s right hand. Upon the expert testimony of Meiko Miles, Licensed Nurse Practioner and Registered Nurse, it is found that Respondent's conduct with regard to Alzheimer's Patient, M. M., was below prevailing standards of nursing, constituted negligence, and further constituted a failure to conform to the minimal standards of acceptable and prevailing nursing practice for elderly, fragile patients or for patients refusing medications. Even though Ms. Miles was not present for all of the witnesses' testimony concerning the actual altercation between Respondent and M. M., I accept Ms. Miles' testimony based upon her review of medical records, nursing notes, and medical administration reports, and given her answers in response to questions which conformed to the facts as related by the witnesses who had observed the actual event. I also accept the testimony of Ms. Miles and other witnesses to the effect that Respondent's training and experience had or should have provided her with less extreme methods upon which to rely in dealing with M. M.'s resistance and combativeness.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a final order which finds Respondent, Jane Wickham, guilty of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005 (12) and (13), Florida Administrative Code; and imposing a penalty as follows: Issues a reprimand; Assigns a fine of $300.00, plus the cost of investigation; Requires that Respondent complete a specified number of hours of continuing education course work in the subject areas of anger management and patient rights; Places Respondent on probation until such fine is paid and such course work is completed, the probation to be upon such conditions as the Board deems appropriate to protect the public health, safety and welfare; and Requires, after the fine is paid and the course work is completed, that Respondent appear before the Board to determine if she is safe to practice and to determine if any further probation is warranted, and if so, to determine the terms of that probation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July 2003.
The Issue Whether Respondent's license to practice nursing in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Teresa Iva Smith Lobato (Lobato) was licensed as a Registered Nurse in the state of Florida, holding license number RN-1655102, and was employed by the Bayfront Medical Center (Bayfront) located in St. Petersburg, Florida as a Registered Nurse. On May 13, 1990 Lobato was to work the 7:00 a.m. to 3:00 p.m. shift, and upon arriving for work was told that she was being "floated" from the Coronary Care Unit (CCU) where she regularly worked to the Progressive Care Unit (PCU) where she had never worked. Bayfront had a policy whereby nurses were "floated" from one unit to another, and at the time Lobato was employed by Bayfront she was made aware of this "floating" policy. Floating means that a nurse is assigned temporarily to a unit other than the nurse's regularly assigned unit. On May 12, 1990 Lobato was aware that she was to be "floated" on May 13, 1990, but had informed the Acting Director of CCU that she would rather cancel her work assignment than be "floated". However, upon arriving for work on May 13, 1990, and being told that she was being "floated" to PCU she accepted the assignment on PCU although she was not pleased about the situation. Bayfront has a policy that requires the outgoing nurse to audiotape a report for the oncoming nurse regarding the condition of the patients and any events occurring during the outgoing nurse's shift or if no tape is made to give report verbally to oncoming nurse. Upon arriving at PCU Lobato, along with PCU Charge Nurse (CN), listened to the audiotaped reports from the outgoing nurse on the following patients D. L. L., A. S., E. H., C. L. S., and H. K. As the morning progressed, Lobato became more and more displeased with her assignment, and let her displeasure be known to the PCU Charge Nurse. However, Lobato did not ask to be relieved from her assignment, although there was testimony that she indicated to the CN that she wanted to go home. Although the record is not clear as to the time the following events occurred, the sequence of those events are as follows: Around 9:00 a.m. Lobato was offered help by the CN but declined; Around 9:30 Lobato went on break, and again was offered help but declined; While on break Lobato talked to the Assis- tant Director of Nursing (ADON) about her under- standing of not being required to "float", and became upset with the ADON's response; After returning from break Lobato was again offered help by the CN which she accepted. The CN brought Michelle Nance, Medical Surgical Technician, and two RNs whose first names were Jessica and Melinda to the unit to assist Lobato. Around 10:30 a.m. Lobato and the CN dis- cussed Lobato's patient assignments, and Lobato advised the CN that everything was done, in- cluding all a.m. medication, other than the missing vasotec doses, and that she had some charting to do. Also, the patient's baths had been completed. Shortly after Lobato and the CN discussed her patients' assignments, the ADON came to the unit to determine what was troubling Lobato. The ADON and Lobato met and there was a confrontation wherein Lobato advised the ADON that she was quitting and the ADON advised Lobato that she was fired. After Lobato's confrontation with the ADON, Lobato left the unit and Bayfront without completing the balance of charting her patients' notes, and without giving the CN a report of the patients even though the CN requested her to do so. Lobato's reasons for not giving the CN a report was that she had discussed the patients with the CN throughout the morning, and that the CN knew as much about the patients as did Lobato at that time, and therefore, she had made a verbal report. Lobato's reasons for not completing the charting of her patients' notes was that when the ADON fired her on the spot the ADON accepted full responsibility for the patients, and Lobato's responsibility to both Bayfront and to the patients assigned to her ceased at that time, notwithstanding her understanding of the importance of charting so that appropriate care could be given to the patients on the next shift. By her own admission, Lobato left Bayfront around 10:30 a.m. on May 13, 1991 before the end of her shift without completing the balance of charting her patients' notes and without giving a report to the CN, other than the ongoing report given during the morning. Earlier while Lobato was still on the unit working the CN had obtained two registered nurses (RN) and a medical surgical technician to assist Lobato. One of the nurses whose first name was Jessica (last name not given) was the RN assigned to Lobato's patients by the ADON when Lobato left and she received a report on the patients from Janice Ritchie, CN. (See Respondent's exhibit 1, and Petitioner's exhibit 1 and Janice Ritchies' rebuttal testimony.) Although Lobato's failure to chart the balance of her patients' notes and make a report to the CN before she left may have caused some problems, there was no showing that any patient failed to receive proper care or suffered any harm as a result of Lobato leaving. While some of the patients may not have received all their medication before Lobato left, the record is not clear as to whether the medication was made available to Lobato to administer or that she was shown where the medication was located in the floor stock. The patient is the nurse's primary responsibility, and the minimal standards of acceptable and prevailing nursing practice requires the nurse, even if fired (unless prevented by the employer from performing her duties), to perform those duties that will assure the patient adequate care provided for after her absence. In this case, the failure of Lobato to compete the charting of her patients' notes and the failure to make a report to the CN, notwithstanding her comments to the CN upon leaving, was unprofessional conduct in that such conduct was a departure from and a failure to conform to minimal standards of acceptable and prevailing nursing practice.
Recommendation Based upon the foregoing, it is recommended that the Respondent be found guilty of violating Section 464.018(1)(h), Florida Statutes, and that she be given a reprimand. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7828 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Findings of Fact 1 and 2. 3.-4. Adopted in Findings of Fact 3 and 4, respectively. 5.-6. Adopted in Finding of Fact 4 and 5. 7.-8. Adopted in Finding of Fact 5. 9. Adopted in Findings of Fact 6 and 7. 10. Adopted in Finding of Fact 7. 11.-12. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record. 18.-20. Adopted in Finding of Fact 9 and 12, as modified. Adopted in substance in Findings of Fact 9 and 12. Rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 10, 11, 13 and 14. Adopted in Finding of Fact 11. Rejected as not being supported by substantial competent evidence in the record. 25.-27. Adopted in Findings of Fact 3, 15 and 15, respectively. Paragraph 28 is ambiguous and, therefore, no response. Rejected as not being Finding of Fact but what weight is to be given to that testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Rejected as being argument rather than a Finding of Fact, but if considered a Finding of Fact since there was other evidence presented by other witnesses. The first sentence is rejected as not being supported by substantial competent evidence. The balance of paragraph 3 is neither material nor relevant. Neither material nor relevant, but see Findings of Fact 6, 7, and 8. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 6, 7, and 8. Neither material nor relevant since the Respondent assisted in selecting those items to be included in Respondent's exhibit 1. First sentence adopted in Finding of Fact 8. The balance of paragraph 7 is argument more so than a Finding of Fact, but see Findings of Fact 12 and 14. More of an argument than a Finding of Fact, but see Findings of Fact 7(c), 12 and 14. 9.-11. More of an argument as to the credibility of a witness rather than a Finding of Fact. More of an argument than a Finding of Fact but see Findings of Fact 7(d) and 13. More of a restatement of testimony than a Finding of Fact, but see Findings of Fact 8 and 9. More of an argument than a Finding of Fact, but see Finding of Fact 10. More of an argument than a Finding of Fact, but see Findings of Fact 7(e) and 9. Not necessary to the conclusions reached in the Recommended Order. 17.-19. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 9 and 12. 20. More of an argument as to the credibility of a witness rather than a Finding of Fact. 21.-23. More of an argument than a Finding of Fact. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399 Teresa Iva Smith Lobato 6870 38th Avenue North St. Petersburg, FL 33710 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastliinne Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Department is the state agency charged with the responsibility of regulating the profession of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times material to this case, Respondent has been licensed by the Department, license nos. RN 1672492 and 167249A. Respondent holds dual licensure since he is listed as a registered nurse (RN) and an advanced practice RN with specialty (ARNP). In Respondent's case, the advanced specialty practice is in the area of anesthesia. To become licensed as an ARNP, Respondent submitted an application, a fee, and copies of a certification from the Council on Recertification of Nurse Anesthetists (CRNA) which included an identification card specifying Respondent's CRNA number to be 24936. Respondent represented, under oath, that the copies were true and correct duplicates of the originals. Based upon this documentation, the Department issued the ARNP license. On or about March 25, 1986, Respondent was employed by the Hialeah Anesthesia Group (HAG). Respondent's supervisor was Manuel B. Torres, M. D., president of HAG. On or about November 30, 1987, Dr. Torres notified Respondent that his employment and privileges at Hialeah Hospital were being suspended. According to Dr. Torres, this suspension was to continue until confirmation was given by the Impaired Nurse Program at South Miami Hospital that Respondent's problem had been corrected. At the same time, Dr. Torres notified the CRNA that Respondent had voluntarily entered an impaired nurse program. Subsequently, Dr. Torres received a letter from Susan Caulk, staff secretary for CRNA, which notified him that, according to CRNA files, Respondent had not passed the certification examination, was not a member of the American Association of Nurse Anesthetists, and that Respondent's CRNA recertification number was not valid. Dr. Torres then notified the Department regarding the certification issue. Later, after Respondent had completed a controlled substance addiction program at Mount Sinai Medical Center, Dr. Torres advised him that, if he could prove his CRNA certification, he could be rehired at Hialeah Hospital. Respondent never returned to demonstrate his certification. An individual who represents himself to be certified as an ARNP when he has not qualified to be so certified has exhibited conduct which falls below the standard of care of the nursing practice. Further, such an individual, by practicing as an advanced practitioner without the educational background, compromises the safety of patient care.
