The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Pursuant to its Administrative Complaint filed July 12, 1982, the Department of Professional Regulation, Board of Medical Examiners, seeks to revoke, suspend or take other disciplinary action against the Respondent as a licensed physician in the State of Florida. It was stipulated by the parties that the Respondent is a physician licensed by the State of Florida. The petitioner is an agency charged with the licensure and regulation of licensure status, professional practice and discipline of physicians licensed in Florida. The Respondent is licensed to practice medicine also in the states of Virginia and North Carolina. He graduated from medical school at the University of Virginia in 1949 and has been in active practice in Florida since 1959, when he began practice at Fernandina, Nassau County, Florida. The Respondent maintains an office at Fernandina, as well as one in Jacksonville. He is 63 years of age and practices in the area of family practice. He has been a member of the American Academy of Family practice since 1973. He is also a member of the Duval County Academy of Family Practice and has served as an officer of that organization and an active participant. The Respondent has been on probation pursuant to a stipulation entered into with the Board of Medical Examiners in December, 1981. The Respondent was placed on probation for a period of two years, effective January 4, 1982, after having admitted, by stipulation, that he issued a pre-signed prescription for Sultrin Creme for use by a nurse midwife in 1980; and that he prescribed Percocet and Percodan inappropriately to a patient in 1980. The Respondent's practice is primarily an office practice with practice at clinics around the state to which he devotes a certain number of days per month. The St. Augustine Maternity Clinic, Inc., apparently owned and operated by Carolle Baya (the evidence does not establish her precise relationship to the clinic) is one type of such clinic. Carolle Baya is a lay midwife, who at times pertinent hereto was not licensed to practice lay midwifery in the State of Florida. Because of her continuation in the practice of lay midwifery in St. Johns County, she was prosecuted in 1979 by the State Attorney for St. Johns County, which criminal charges were later dropped. She was then sued by the Department of Health and Rehabilitative Services in an attempt by that Department to enjoin her from practicing lay midwifery without a license. Carolle Baya obtained a favorable judgment in that civil action when the lay midwifery statute, then in effect, was declared unconstitutional by the Circuit Court in and for St. Johns County, Florida. Thus, Carolle Baya, at times pertinent hereto, was practicing lay midwifery, although without a license, under the legal aegis of the Circuit Court of the 7th Judicial Circuit, pursuant to that final judgment entered on October 10, 1979, in Case No. 79-313 (Respondent's Exhibit 4). Under the law as it existed at times pertinent to this case, the Department of Health and Rehabilitative Services required lay midwives to associate themselves with physicians, at least for purposes of providing examination of their patients prior to home births. (Rule 10D-36.25(a), Florida Administrative Code, "Supervision") Nevertheless, no physician in St. Johns County undertook to provide an association or "backup" to Carolle Baya for examination or backup care for her patients. Indeed, as established by Dr. Mussallem (for the Petitioner), the obstetricians in St. Johns County were responsible in general and Dr. Mussallem in particular, for the complaint lodged against Carolle Baya regarding her practice as a lay midwife. Thus, it was that Carolle Baya formed some sort of "backup" examination arrangement for her patients with the Respondent. On or about January 25, 1982, a newspaper advertisement was placed in the St. Augustine Record, stating that the Respondent was associated with the St. Augustine Maternity Center, Inc. The Respondent's name at the time of the filing of the Administrative Complaint on July 12, 1982, apparently appeared on the front of the St. Augustine Maternity Center, Inc., on a sign, although no evidence established that it was present on that facility at any earlier pertinent date. It was not established how the newspaper advertisement came to be published in the newspaper, and it was not shown for what purpose the Respondent's name appeared on the sign on the front of the St. Augustine Maternity Center, Inc. (either owned or operated by Carolle Baya) At the time the Administrative Complaint was filed, the Respondent was visiting that maternity clinic once a month for purposes of performing examinations of Carolle Baya's patients and general gynecological consultation and/or treatment. Dr. Mussallem, the only witness with any knowledge of the contents of the newspaper advertisement and the supposed sign, could not show whether or when the unintroduced newspaper advertisement was actually placed in a newspaper, nor the person responsible for its publishing, nor did he have any direct knowledge regarding whether the sign was actually displayed on the front of the clinic, nor who might have been responsible for doing so. His testimony in this regard is thus entirely hearsay and not creditable herein. Crystal Mull was a patient of Carolle Baya's throughout the entire term of her pregnancy, with a view toward having a midwife perform home delivery of her baby. Her entire prenatal care was under the direction of Carolle Baya. The Respondent, however, did examine Crystal Mull in approximately the eighth month of her pregnancy, October, 1981, with her mother present. Crystal Mull's mother, Mrs. Luellen McNairy, was of the belief that Dr. Britton was "like a sponsor or something like that." She admittedly was not sure what his relationship was with Carolle Baya, but that she "felt" that Carolle Baya referred to him for any medical questions she was unable to answer concerning a patient. The testimony of Mrs. McNairy and the testimony of Dr. Mussallem concerning what they "understood" the relationship between Britton and Baya to be (they admittedly had no direct knowledge), is the only testimony or evidence adduced by the Petitioner to show any sort of association of the Respondent with Carolle Baya's midwifery practice. The Respondent only went to Carolle Baya's clinic one day a month to perform gynecological examinations of her patients and was not present at the clinic supervising or advising Carolle Baya as to the care of her patients on a day-to-day or even a weekly basis, particularly the patients who are the subject of the Administrative Complaint. In any event, Carolle Baya wanted the doctor to meet her patient, Crystal Mull, to examine her so he could be familiar with her medical history. When he examined her he noted that the baby was quite large and he made a statement, according to Mrs. McNairy, to the effect that she might not be able to have the baby regularly and might have to be transported to the hospital. In the words of Mrs. McNairy, the Petitioner's witness herself, "It seemed to me that he was alerting us to the possibility that she might have to go to the hospital; there might be a difficult labor." Ultimately, Crystal Mull did have to be transported to the hospital for her delivery, although she had a normal, uneventful delivery and healthy baby. On the morning of her delivery, however, after progressing with her labor to a point, she failed to progress further and ceased to dilate. At approximately 1:30 or 2:00 on the morning of November 22, 1981, Ms. Baya came to the residence of Crystal Mull and her mother Luellen McNairy. Ms. Baya did a vaginal examination and periodically checked the fetal heart rate. The fetal heart rate was closely monitored to determine if any fetal distress was indicated by the baby's heartbeat. At approximately 10:00 the following morning, Carolle Baya called an unidentified person supposedly to consult with regarding doing something to relieve her patient's discomfort and pain, after she had been in labor for approximately 10 hours. Witness McNairy "believed" that Carolle Baya called Dr. Britton, however, the witness had no direct knowledge of who was on the other end of the telephone conversation with Carolle Baya and she is unaware of the substance of that conversation. A short time after the end of the telephone conversation, Mrs. McNairy observed Carolle Baya give Crystal Mull an injection in the hip and she seemed to relax some after that. Mrs. McNairy has no knowledge of the nature of the substance which was injected (although she surmised it might be Demerol). At about 12:30 pm on November 22, the membranes were ruptured, but the patient had not yet dilated as far as 8 centimeters. Thus, it was that Carolle Baya suggested that her patient and the patient's mother decide what they wished to do, that she did not want to make the final decision herself. Accordingly, the patient was admitted to the hospital at about 1:00 that afternoon. Ultimately, Crystal Mull experienced a normal delivery and she and her baby are currently in good health. On January 2, 1982, Dr. Anthony Mussallem saw Susan Thompson at around 6:30 or 7:00 in the evening. Her sister-in-law brought her in to see him at that time, at which she had reached in essence the full term of her pregnancy with her child being due on approximately January 7 or 8, 1982. The patient reported to Dr. Mussallem that Carolle Baya had been taking care of her prenatal course of care up until that point. While Carolle Baya was examining her that day in the St. Augustine Maternity Center, Inc., the patient's amniotic fluid began leaking and, inasmuch as labor usually begins within 24 hours of such an event, but in her case did not commence within 24 hours, the patient became worried and ultimately came in to see Dr. Mussallem. Dr. Mussallem did not speak with Carolle Baya concerning the condition of Susan Thompson nor did he see any medical records which had been maintained by Carolle Baya's maternity center concerning that patient. The doctor never talked to Dr. Britton concerning this patient. The patient informed him that she was given some tablets, supposedly to stimulate her labor and did not go into labor, but the doctor could not say what type of tablets were administered to the patient and, indeed, had no direct knowledge whether they were administered and, if so, who had administered them. Neither Dr. Mussallem nor Dr. Larroude have ever met the Respondent and neither could establish in any way the Respondent's connection, if any, with the maternity center owned or operated by Carolle Baya, nor with her practice as a lay midwife as any such relationship might have related to either patients Mull or Thompson. The most Dr. Mussallem, and indeed Dr. Larroude, could establish (in a "hearsay on hearsay" fashion), was that they "understood" that Dr. Britton provided "backup" to Carolle Baya in her midwifery practice. Dr. Mussallem could not say whether Pitocin or any other drug had actually been given Susan Thompson before he saw her as a patient on January 2. In any event, there was also no demonstration that the Respondent was aware at all that any medication had been prescribed either of the above-named patients or administered to them by Carolle Baya or anyone else. If indeed the patients were administered the drugs alleged in the Administrative Complaint, the Respondent did not support this activity nor have any knowledge of it. Susan Thompson was ultimately delivered of her baby on January 2, at 11:54 p.m., and both mother and child had a normal, uneventful birth. Susan Thompson could have been delivered of her baby by a trained midwife, inasmuch as she had a normal delivery, with no problems arising. In summary, the testimony of Drs. Mussallem and Larroude was predicated in all portions related to the charges in the Administrative Complaint on hearsay and those witnesses had no direct knowledge of the care given the patients in question at Carolle Baya's clinic by Carolle Baya and no knowledge of what type medication, if any, Carolle Baya or others unknown may have administered to those patients. Further, these witnesses do not know the Respondent, have no knowledge of the character and nature of his practice and have no direct knowledge regarding his professional relationships with Carolle Baya or her clinic, if any. These frailties render it impossible to accord significant weight to the testimony of these two witnesses. Ruth Hunter, Patricia Elaine Martin and Mary Ruth Ann Arick are all owners or supervisors of various women's health clinics. Dr. Britton is employed as a contract physician at each of these clinics and works at each clinic one or more times a month. The clinics are in Gainesville, Orlando and Holly Hill. The doctor is employed to perform first trimester abortions, vasectomies, insertion of IUDs, fitting of diaphragms and to provide miscellaneous gynecological care. All three of these witnesses established that the doctor is the best of any of the physicians employed by them, competently and professionally performing such procedures with a high degree of care and interest in the patient's condition. His practice at these clinics is characterized by his spending a great deal of time conversing with his patients and generally taking an interest in their condition and problems. They have all experienced that Dr. Britton has the lowest "complication rate," that is, problems arising after he performs various procedures, of any doctor who practices at their clinics. The testimony of these three witnesses was corroborated by that of Dr. John Freeman, a full-time physician with the Gainesville Women's Health Center, who established that the Respondent easily meets the appropriate standard of practice in all the work that he has performed for the Gainesville health center and excels above that standard of practice in most cases. Dr. Freeman was aware of the charges against Respondent in a general sense and established that injudicious use of drugs is totally out of character for the Respondent and that the Respondent is very conservative in prescribing any drugs, especially pain medications. Dr. Freeman is the staff physician at the clinic who reviews all procedures performed by other physicians. Ruth Hunter is a registered nurse, employed with the Gainesville Women's Health Center, who has worked with the Respondent in the vasectomy clinic at that facility. She has been an operating room nurse for approximately 15 years, and, based upon her experience with such duties and with physicians, she demonstrated that the Respondent is very capable in performing the procedures he was retained to perform for the clinic, with a very low complication rate and a very low incidence of prescribing any drugs at all during his practice at the clinic. Dr. Willard R. Gatling testified by deposition as an expert witness on behalf of the Respondent. He has known the Respondent professionally for approximately 15 years and the two of them have regularly attended educational and other meetings of the Duval County Academy of Family Practice on numerous occasions. Dr. Gatling has practiced medicine in the Jacksonville area for over 35 years as a family practitioner and obstetrician. He has seen the Respondent's patients on a number of occasions and the Respondent has seen Dr. Gatling's patients on a number of occasions since 1967. He is aware of the Respondent's current level of care for and treatment of his patients and based upon his experience with seeing patients who have previously seen Dr. Britton, his treatment of patients appears to be appropriate and proper and complies with the standard of care of a competent medical doctor as is accepted and practiced in northeast Florida. Dr. Gatling is aware of the Respondent's current probation and his past disputes with other physicians in Fernandina which resulted in those physicians voting him off the staff of the hospital there. Neither these problems nor the current charges have changed his opinion of the Respondent's competency. Raymond Michael Eichorn was director of the Nassau County Alcohol and Drug Abuse Council from November, 1975, to November, 1979. He became acquainted with the Respondent during that time because the Respondent was on the board of directors of that council until the council was disbanded two years ago. Dr. Britton was very active during those years in the council's work with the court and school systems in the area of drug education and combating drug abuse. He performed voluntary free physicals for alcoholics who were entering the antabuse treatment program. He performed this service despite the fact that he received no compensation and that the program provided him with no malpractice insurance coverage for this work. Since 1979, witness Eichorn has been employed in the personnel department of Container Corporation at its paper mill in Fernandina. He has continued to refer mill employees with alcohol problems to the Respondent for him to perform physicals for purposes of their entering the antabuse program. He has found the Respondent to be civic-minded and to continue to be interested in and working with the current drug abuse program in Nassau County. J. Chandler McLauchlan is, by training, a psychologist. He operates a cabinet making business and also works as a sculptor. He and Charles W. Howard and their families are patients of the Respondent. The Respondent, at all times, has proven to be a compassionate, conservative physician with regard to his care and prescription of drugs for these witnesses and their families. The Respondent frequently has charged substantially lower fees than other physicians for the same services and has generally shown himself to he a competent, caring physician, more concerned with patients' welfare than financial remuneration. He is strictly conservative regarding prescriptions of medicines and, in the words of Charles Howard, "he likes us to rough it."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses of the Respondent, who testified in person, as well as the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 18th day of November, 1983, 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 18th day of November, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stephen P. Smith, Esquire Smith and Smith, P.A. 2601 University Blvd., West Jacksonville, Florida 32217 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent is guilty of unprofessional conduct. Whether her license as a registered nurse, certificate no. 8829 should be suspended or revoked or whether Respondent should be put on probation.
Findings Of Fact The Respondent, Christine Richter, who holds license no. 88294-2 was employed as a registered nurse at Tallahassee Memorial Hospital, Tallahassee, Florida, during the month of February, 1977. She worked as a certified nurse and anesthetist under Ann Marie Connors, the chief nurse anesthetist. The chief nurse anesthetist reported to the Associate Executive Director April 11, 1977, that there were gross discrepancies in the narcotics record kept by the Respondent and at that time she presented him with some of the records. On April 12, 1977, Respondent was requested by the Associate Executive Director to report to his office for a conference. Nurse Connors, the chief nurse anesthetist, was also called to be present at that conference. At the conference the Associate Executive Director asked Respondent for an explanation as to the discrepancies between the narcotic and barbiturate administration record and the patient records. In reply the Respondent stated that she needed a hysterectomy and could not afford it. Upon the insistance of the Associate Executive Director that she give an explanation for the discrepancy in the hospital records, she indicated that she needed to improve her charting. She gave no explanation for discrepancies in the narcotics chart which she signed, and indicated that she would resign. The Director stated that he would accept her resignation and she left the conference. The Respondent mailed her written resignation to the Tallahassee Memorial Hospital the following day. The Accreditation Manual for Hospitals, 1976 edition, published by the Joint Commission on Accreditation of Hospitals "Anesthesia Services" pages 59 through 64 is used as the standard for anesthetic procedure. A department standard book approved by the American Hospital Association and the joint commission on the accreditation of hospitals is required to be read by each employee of the Tallahassee Memorial Hospital as it pertains to the department in which the work is to be performed. The instructions in the department standards book are the same as in the Accreditation Manual for Hospitals as far as anesthesia services is concerned. Medical records of eight patients were introduced into evidence together with Narcotic and Barbiturate Record no. 081291. This shows the date, time, patient's name, room number, doseage, attending physician and administering nurse. The doseage of drugs secured by and signed for by the Respondent, Christine Richter, was more than the records show was administered to the various patients. No accounting was made for the difference between the amounts of drugs secured and the amounts, if any, administered to the patients, although it is the duty of the nurse checking out drugs to account for its use in writing on a form provided for that purpose. The Respondent offered no verbal explanation for the missing drugs when given the opportunity to explain her actions by the Associate Executive Director at Tallahassee Memorial Hospital and her immediate supervisor, Ann Marie Connors, chief nurse anesthetist.
Recommendation Revoke the license of Christine Richter. DONE AND ENTERED this 12th day of December, 1977, in Tallahassee, Florida. DELPENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Rivers Buford, Jr., Esquire Post Office Box 647 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Oakwood was licensed by Petitioner as a skilled nursing facility. Oakwood operates a 120-bed nursing home located in Eustis, Florida. From June 19 through July 1, 2002, Dorothy Mueller, who at the time was employed by AHCA as a Registered Nurse Specialist, conducted a complaint investigation at Oakwood. She received the complaint from Florida Protective Services of the Department of Children and Family Services (DCFS). Ms. Mueller is Surveyor Minimum Qualification Test (SMQT) qualified. She is currently licensed as a registered nurse in Florida but retired from AHCA in December 2002. Ms. Mueller began the complaint investigation on June 19, 2002. She announced her visit to the facility's administrator, observed residents, interviewed staff, and reviewed records. She requested a sampling of residents' records. The sample she reviewed included the record of Resident D.R. During the course of the complaint investigation, Ms. Mueller did not interview Resident D.R. as she had already been discharged from the facility. Ms. Mueller examined Resident D.R.'s care plans, assessments, nursing notes, and wound care. Nurse Mueller was specifically looking for whether anyone at Respondent's facility was actually looking at the skin of Resident D.R.'s heels because Resident D.R. was wearing TED hose. Because Resident D.R. was at risk for developing pressure sores, Ms. Mueller was concerned that she found no specific preventative measures taken by the facility to help prevent the development of pressure sores on Resident D.R.'s heels.1/ In determining her findings, Ms. Mueller took into consideration the findings of the person from DCFS who had filed the complaint that caused AHCA to send Ms. Mueller to investigate. Additionally, Ms. Mueller also took into consideration notes from Resident D.R.'s family physician and statements he made to her regarding the condition of Resident D.R.'s heels two days after her discharge from Oakwood.2/ Based on Ms. Mueller's findings during this complaint investigation, federal tag F224 was cited against Oakwood. Resident D.R. was admitted to Oakwood on February 24, 2002, following a four-day hospitalization for hip surgery due to a fall at her home which resulted in a hip fracture. Resident D.R.'s hospital records reveal the development of a skin ulcer in her sacral area the morning of February 23, 2002, and that the ulcer worsened before Resident D.R.'s discharge from the hospital on February 24, 2002. Upon admission to Oakwood, Resident D.R. was assessed by Dorothy Gilbert, a Registered Nurse employed by Oakwood. Nurse Gilbert's full skin assessment of Resident D.R. noted two skin ulcers on Resident D.R.'s sacral area with no other skin breakdown. Nurse Gilbert noted that Resident D.R.'s heels were "soft nonreddened." According to Nurse Gilbert, that notation meant that the skin on Resident D.R.'s heels was normal, intact, nonreddened and showed no deterioration. The nurse's assessment form contains a diagram of a person showing front and back with the following instruction: "Skin: Indicate on diagram below all body marks such as old or recent scar, bruise, discoloration, laceration, amputation, decubitus ulcer, and any other questionable marking(s) considered other than normal." Nurse Gilbert made detailed notations and drawings on the diagram indicating any and all skin breakdown of Resident D.R. The foot area of the diagram contained no notation or drawing indicating any skin breakdown on Resident D.R.'s feet upon admission to Oakwood. Another page of the nurse's assessment form is entitled "Braden Scale-For Predicting Pressure Sore Risk." Nurse Gilbert gave Resident D.R. a score of 14 which identified her to be at moderate risk for pressure sores or ulcers. She was at risk for skin breakdown over her entire body, not just her heels, and her care plan accounted for this. Resident D.R. was wearing TED hose at the time of admission and wore them throughout her stay. TED hose are anti- embolism stockings typically used following surgery to enhance blood flow and prevent clotting. Resident D.R. was a petite, elderly woman weighing 83 pounds. Appropriate assessments and interdisciplinary care plans were developed for Resident D.R., including for her existing skin ulcers also referred to as sores or wounds. During Resident D.R.'s stay at Oakwood, one of her existing sacral skin wounds improved and the other wound healed. She received daily wound treatment by the nurses on duty and the wound care nurse measured her ulcers and assessed her skin each Thursday. Cynthia Burbey is an Licensed Practical Nurse employed by Oakwood. She observed Resident D.R.'s heel condition usually every day when she gave her treatment for wound care on her coccyx, and on her shower days which occurred twice a week. While the Certified Nurses Assistants (CNAs) give showers to the residents, the nurses follow the bathing of the resident with a body check/body assessment. Nurse Burbey never saw any skin deterioration on Resident D.R.'s heels, including the day Resident D.R. was discharged. At the time of the discharge, Nurse Burbey did a body assessment from head to toe of Resident D.R. and did not observe any skin deterioration on Resident D.R.'s heels. The CNAs at Respondent's facility play a significant role in observing skin condition and are to report any change in skin condition to the nurses. In addition to their role in observing skin condition at bath time, the CNAs repositioned Resident D.R. every two hours and assisted her in and out of bed each day. She was completely dressed and undressed each day by her attending CNAs who would remove her TED hose and change them. Pressure on skin over bony areas is a primary cause of pressure ulcers or bed sores. Resident D.R. received a variety of services and devices during her stay at Oakwood aimed at reducing the likelihood of bed sores, including knee wedges for both her bed and wheelchair, calf pads for her wheelchair, a pressure reducing mattress, and physical therapy. Because of her petite size, the knee wedge used for her bed resulted in Resident D.R.'s heels being "floated" off her mattress. Resident D.R., also received physical therapy services including range of motion exercises while at Oakwood. The range of motion exercises for her lower extremities would have provided her therapists and restorative aids an opportunity to detect evidence of skin breakdown on her heels, because her heels were touched by the therapists or aides during these exercises. While Resident D.R. wore socks for these therapies, the therapists and aides saw no evidence of staining on her socks, which often happens from drainage from a heel wound, or any evidence that their touching her heels resulted in any pain to Resident D.R. The restorative aides provided Resident D.R. with range of motion exercises six days a week, including the day before her discharge from Respondent's facility. The initial nursing assessment indicating "heel soft, nonreddened" raised Ms. Mueller's concerns that there was no care specifically directed toward Resident D.R.'s heels. However, there is no competent evidence that Resident D.R. had heel wounds either upon admission or which developed during her stay at Oakwood. Accordingly, there was no reason for Oakwood to have a skin care plan specifically addressing Resident D.R.'s heels, particularly in light of the fact that Oakwood had a skin care plan in place for Resident D.R. which was followed. Further, during cross examination, when asked whether the phrase "heel soft nonreddened," was an indicator that Resident D.R. had a problem with her heel, she acknowledged, "I would have to answer yes and no to that." AHCA 's charge of failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers is based solely on hearsay evidence. AHCA's sole witness, the surveyor who conducted the complaint investigation, never observed Resident D.R. at any time, either in Respondent's facility or after her discharge. The evidence presented does not establish that Oakwood failed to have due diligence to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for bilateral pressure sores. There is no competent proof that any heel sore developed on Resident D.R.'s heels while a resident at Oakwood. Moreover, the evidence shows that the nursing staff appropriately addressed the skin care needs of Resident D.R.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Oakwood Center. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 21st day of March, 2003.
Findings Of Fact Petitioner attended a two year training program for physician's assistants at the State University of New York in Stonybrook. In the course of this program, petitioner spent ten weeks in an obstetrics rotation. During this ten week period, she delivered at least fifteen babies. She also attended mothers post partum. After moving to Florida, petitioner applied to respondent for a license as a lay midwife. Although she has approached more than ten obstetricians practicing in Florida, she found none willing to supervise her work as a midwife. In support of her second application for license as a lay midwife, petitioner attached a letter signed by Elspeth Reagan, M.D., and another, reciting that petitioner "performed approximately 15-20 normal, spontaneous deliveries under physician supervision and assisted with numerous others." Dr. Reagan's signature had been acknowledged before a notary public. Dr. Reagan is licensed as a physician in New York but is not licensed in Florida. Petitioner did not furnish respondent a list of the names, home addresses or delivery dates of any of the deliveries she performed. On December 4, 1978, respondent denied petitioner's second application on the grounds that it did "not conform to the requirements of . . . Chapter 10D-36.21(2) . . . . [or of] Chapter 10D-36.22(1)(a)2.
Findings Of Fact The Respondent is a registered nurse who began her employment at South Lake Memorial Hospital on August 29, 1977, and was terminated on April 23, 1980. During her employment, the Respondent received four poor evaluations and/or warnings for her nursing practice. The first warning occurred on August 1, 1979. This warning involved allegations of poor nursing performance by the Respondent. These allegations included the Respondent leaving her unit, failing to properly organize her work, failing to properly restrain a patient, wasting time by running too many EGG strips instead of performing her assigned functions, failing to take vital signs timely when coming onto shift, becoming hostile with the Director of Nursing, and failing to obey the direct order of the Director of Nursing to leave the hospital and go home after an argument on July 12, 1979. Although there was no direct evidence as to most of the allegations, the Respondent admitted to late charting, failing to timely take vital signs, spending time working with ECG strips, and failing to obey a direct order to-go home given by the Director of Nursing. The next evaluation occurred on November 26, 1979. The deficiencies in Respondent's practice as alleged by the Director of Nursing were that the Respondent gave a patient whole blood instead of packed cells as ordered by the physician, failed to verify an error in transcription by the ward clerk which resulted in a patient's x-rays being delayed for a day, and improperly charting when the Respondent noted on the nursing notes that at 9:00 p.m. there was no significant change in a patient's condition, when in fact the patient had left the hospital at 8:30 p.m. The lack of direct evidence of these allegations was compensated for by the Respondent's admissions as she testified concerning the circumstances surrounding why the incidents occurred. The third warning occurred on March 19, 1980. The allegations in the warning concerned the Respondent having shouted at a supervisor, abandoning her patients, allowing two I.V.s to run dry, failing to carry out a doctor's orders, and failing to chart. Again, there was no direct evidence of the allegations, however, the Respondent admitted that she left her duty station because of sickness prior to relief arriving in the unit, failed to properly follow doctor's orders, and failed to chart for the time she was present in the unit prior to her reporting to the emergency room. The fourth and final warning, which resulted in termination, occurred on April 23, 1980. The allegations by the Director of Nursing were that the Respondent hung one-fourth percent normal saline solution rather than the one- half percent normal saline solution ordered by the physician, and that the Respondent failed to administer the 5:00 p.m. medication. Again, the allegations were admitted by the Respondent as she attempted to explain why they occurred. The Director of Nursing testified that during each of these warnings, the Respondent's attitude was that she had done nothing wrong and, therefore, could not improve on her performance. The testimony of the Department's nurse investigator was to the effect that the Respondent's actions failed to meet the minimal standard of acceptable and prevailing nursing practice. The investigator also testified that, in her opinion, a nurse with Respondent's poor attitude could be extremely dangerous in a hospital setting. After many years of difficult and stressful work, many nurses suffer from what is commonly referred to as "burn out" and are no longer useful, and can be dangerous in a high stress area of nursing. Respondent testified in her own behalf and offered an explanation for each allegation presented by Petitioner. Respondent testified that relative to the first warning, even though she only had two patients, she did not have adequate time to do her charting during her shift and, therefore, had to stay two hours late. Respondent further testified that on one occasion she had not timely taken her vital signs because the Director of Nursing had delayed her with a needless confrontation. Respondent testified that she did not leave the facility as ordered on August 12, 1979, because she was afraid that she would be abandoning her patients, and could lose her vacation and sick leave benefits. With respect to the November 26, 1979 evaluation, the Respondent testified that she gave whole blood instead of packed cells because the whole blood was incorrectly labeled as packed cells. Respondent further testified that she became aware of the error after the solution had infused, and that had she looked at the solution earlier she would have been able to see that it was an incorrect blood product, and would have been able to correct the problem. As to the incorrect transcription resulting in a patient's x-rays being delayed, the Respondent stated that it was the ward clerk's responsibility, not hers, to transcribe the doctor's orders. With respect to the 9:00 p.m. nursing notes when the patient had left the facility at 8:30 p.m., the Respondent's response was that she had been aware that the patient was gone, but was summarizing the patient's condition during the entire shift up to the point the patient left. Respondent acknowledge that the nursing notes may have been misleading. As to thee warning of termination on March 19, 1980, the Respondent admitted leaving her unit prior to relief arriving. Her explanation gas that she had been attempting for one hour to get assistance, to no avail. Upon questioning, she admitted that she was-only "a little dizzy" and had diarrhea. On that day she did not chart any nursing care given by her while on duty. The Respondent was caring for twelve patients at that time. With respect to the April 23, 1980 termination, Respondent admitted that she hung the incorrect percentage saline solution, but that she did so because a prior nurse obtained the incorrect solution from a supply room. The Respondent then also admitted failing to give out the 5:00 p.m. medication as ordered, but stated the reason for her failure to administer the medication was her inability to obtain help from her supervisor which was necessary because she was overworked. Respondent also testified that during this time period, she went on rounds with a doctor, and also went to dinner. The Respondent testified that she felt she was a good and qualified nurse. Respondent also testified that she had been fired previously from Leesburg General Hospital. The Respondent believes her attitude to be good and indicated that the hospital was overreacting to a few isolated incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license to practice nursing in the State of Florida, license number 39108-2, be suspended indefinitely. If the Respondent seeks reinstatement, it will be her responsibility to undergo counseling with a psychologist or psychiatrist, for an in-depth evaluation and treatment, the results of which shall be submitted to the Board of Nursing if and when the Respondent wishes to apply for reinstatement of her nursing license. If the Respondent applies for reinstatement of her license, it shall be her responsibility to demonstrate to the Board that she is able to engage in the practice of nursing in a safe, professional, proficient and legal manner. This demonstration shall include but not be limited to a report by her psychologist or psychiatrist, along with a recommendation from him that she be reinstated to the practice of nursing. 1/ DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982.
The Issue Is proposed rule 64B9-4.009 of the Board of Nursing an invalid exercise of delegated legislative authority? Section 120.52(8), Florida Statutes.
Findings Of Fact The Stipulated Facts The Joint Practice Committee (the Committee) was created by Section 464.003(3)(c), Florida Statutes. The statute charges the Committee to approve those acts of medical diagnosis and treatment, prescription, and operation that may be performed by Advance Registered Nurse Practitioners (ARNPs) under the general supervision of a practitioner licensed under Chapters 458, 459 or 466, Florida Statutes, within the framework of standing protocols. On October 24, 1998, the Committee met to consider whether prescription of controlled substances was an appropriate medical act to be approved for ARNPs under proper protocol. [See minutes of meeting, Exhibit A.] The Committee was asked to review the report by the Statewide Task Force Committee (a separate committee) mandated by the 1996 legislature. Members of the Committee requested additional information before voting on the issues, including the following: A summary of votes taken at the Statewide Task Force meetings Testimony by physician members of the Task Force Committee on the safety of prescription of controlled substances by ARNPs. ARNPs protocols, including samples from practicing Florida ARNPs and protocol requirements from other states. National information on ARNP prescriptive practice for controlled substances, including the annual report from the Nurse Practitioner Journal, information on prescriptive practice from the National Council of State Boards of Nursing, and a state-by-state summary of prescriptive practices. Pharmacology syllabi from medical schools and ARNP programs. National Practitioner Data Bank information on safe practice. Copy of correspondence from the state pharmacy association. DEA Handbook for Mid-Level Providers. On December 8, 1998, the Committee met to consider the prescriptive authority and to review information requested at the October 24, 1998 meeting. [See Exhibit C, minutes of the December 8, 1998 meeting and Composite Exhibit D, materials provided to the Committee]. The Committee also took testimony from persons attending the Committee meeting. After review of the material and consideration of the testimony, the Committee voted as follows: To request the Department of Health to seek a written opinion from the Attorney General on the question: Can the prescribing of controlled substances by Nurse Practitioners under protocol be authorized by rule or must there be a legislative change. To authorize prescription of schedule II-V controlled substances by ARNPs under protocol. To require continuing education on prescribing, record-keeping, discouraging diversion of dangerous drugs approved by the Board of Nursing prior to prescribing controlled substances under protocol. On January 25, 1999, the Department of Health requested an opinion from the Attorney General on the following questions: Whether the Board may adopt a rule pursuant to section 464.003(3), Florida Statutes, authorizing the prescription of controlled substances by Advanced Registered Nurse Practitioners without conflicting with the prescribing requirements found in chapter 893, Florida Statutes. Whether it is necessary to obtain a legislative change to add Advanced Registered Nurse Practitioners to the list of 'practitioners' authorized to prescribe controlled substances under chapter 893, Florida Statutes, prior to adoption of a rule that would allow prescriptions of controlled substances by Advanced Registered Nurse Practitioners? At its regularly scheduled Board meeting on April 14, 1999, the Board voted to proceed with promulgation of a rule to implement the decision by the Committee. On May 17, 1999, the Attorney General's Office responded to the Department of Health by stating that a formal opinion would not be given. In Volume 25, Number 21 of the Florida Administrative Weekly, which was issued May 28, 1999, the Board published its notice of development of proposed rule 64B9-4.009. No rule development hearing was requested. The Board set a rule workshop for June 26, 1999, to discuss changes to Chapter 64B9-4, Florida Administrative Code. At the rule workshop, the Board received a letter dated June 14, 1999, from the FMA, presented to the Board, containing written objections to proposed rule 64B9-4.009. On June 25, 1999, the Secretary for the Department of Health advised the Board that the Department's General Counsel would be preparing a legal opinion on whether current law would allow the rule to be adopted. On July 23, 1999, General Counsel for the Department of Health issued his legal opinion to the Secretary that absent amendment to Chapter 893, Florida Statutes, neither the Joint Practice Committee nor the Board of Nursing can authorize ARNPs to prescribe controlled substances. In Volume 25, Number 29 of the Florida Administrative Weekly, which was issued July 23, 1999, the Board published its notice of proposed rule 64B9-4.009. The rule hearing was set for October 12, 1999. As voted by the Committee, the rule provides that an ARNPs' prescriptive authority includes the prescription of Schedule II, III, IV, and V controlled substances after appropriate continuing education. On August 17, 1999, the Joint Administrative Procedures Committee issued a letter to the attorney for the Board commenting that the proposed rule appears to contravene Section 893.05, Florida Statutes. On September 25, 1999, the Committee held a telephone conference. (See Exhibit F, Joint Committee Minutes, Conference call September 25, 1999.) The Committee declined to reconsider the decisions made at the December 1998 meeting. On October 12, 1999, a public hearing requested by FMA was held, at which the Board accepted written and oral testimony. (See Exhibit G, the transcript of the public hearing and Composite Exhibit H, the written comments provided on or before the date of the public hearing including a letter dated October 11, 1999, from the FMA and numerous specialty medical societies presenting written objections to the rule.) On December 8, 1999, the Board held an additional public hearing to consider the transcript of rule hearing on the proposed rule. The Board voted to proceed with promulgation of the proposed rule. Other Facts Agreed Upon The Board admits for purposes of consideration of this case that FMA et al. have standing to bring this rule challenge. The only state agency affected is the Board, 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Board is responsible for the administration of Chapter 464, Florida Statutes, and has implemented its provisions, in part, through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. Facts Related to Standing The respective parties have not contested the veracity of the factual statements pled concerning standing of the respective parties. Therefore, it is accepted that the factual information concerning the organizations and their purposes, as pled, are accurate for fact-finding purposes. Those facts as pled are as follows: The only state agency affected is Respondent, State of Florida, Department of Health, Florida Board of Nursing ("the Board"), 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Department and the Board are responsible for the administration of Chapter 464, and have implemented its provisions in part through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. The address of the Florida Medical Association (FMA) is 113 East College Avenue, Tallahassee, Florida 32301. The FMA is organized and maintained for the benefit of the approximately 16,000 licensed Florida physicians who comprise its membership. One of the primary purposes of the FMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Osteopathic Medical Association (FOMA) is 2007 Apalachee Parkway, Tallahassee, Florida. The FOMA is organized and maintained for the benefit of the approximately 1,800 licensed Florida osteopathic physicians who comprise its membership. One of the primary purposes of the FOMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Family Physicians (FAFP) is 6720 Atlantic Boulevard, Jacksonville, Florida 32211. FAFP is organized and maintained for the benefit of the approximately 3,800 licensed Florida family physicians who comprise its membership. One of the primary purposes of the FAFP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Physicians - American Society of Internal Medicine (FCACP-ASIM) is 2589 Park Street, Jacksonville, Florida 32204. FCACP-ASIM is organized and maintained for the benefit of the approximately 4,500 licensed Florida internists who comprise its membership. One of the primary purposes of the FCACP-ASIM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Surgeons (FC-ACS) is 2589 Park Street, Jacksonville, Florida 32204. FC-ACS is organized and maintained for the benefit of the approximately l,000 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FC-ACS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Surgical Society (FSS) is Post Office Box 536544, Orlando, Florida 32853. FSS is organized and maintained for the benefit of the approximately 200 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FSS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Psychiatric Society (FPS) is 524 East Park Avenue, Tallahassee, Florida 32301. The FPS is organized and maintained for the benefit of the approximately 800 licensed Florida psychiatrists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Pain Medicine (FAPM) is 335 Beard Street, Tallahassee, Florida 32303. The FAPM is organized and maintained for the benefit of the approximately 100 licensed Florida pain management physicians who comprise its membership. One of the primary purposes of the FAPM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Anesthesiologists (FSA) is 355 Beard Street, Tallahassee, Florida 32301. The FSA is organized and maintained for the benefit of the approximately 1,800 licensed Florida anesthesiologists who comprise its membership. One of the primary purposes of the FSA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Ophthalmology (FSO) is 1133 West Morse Boulevard, Suite 201, Winter Park, Florida 32789. The FSO is organized and maintained for the benefit of the approximately 400 licensed Florida ophthalmologists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Ob-Gyn Society (FOGS) is 355 Beard Street, Tallahassee, Florida 32303. The FOGS is organized and maintained for the benefit of the approximately 700 licensed Florida ob-gyns who comprise its membership. One of the primary purposes of the FOGS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida College of Emergency Physicians (FCEP) is 3717 South Conway Road, Orlando, Florida 32812. The FCEP is organized and maintained for the benefit of the approximately 800 licensed Florida emergency medicine physicians who comprise its membership. One of the primary purposes of the FCEP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. Intervenor, Florida Nurses Association (FNA), is a professional association located at 1235 East Concord Street, Orlando, Florida 32803-5403 representing over 7,000 Registered nurses (RNs) licensed by the State of Florida, of which more than 1,000 are certified as Advanced Registered Nurse Practitioners (ARNPs). FNA's members are directly regulated by the Respondent and substantially affected by proposed rule 64B9-4.009, which grants additional prescriptive authority to certain ARNPs under protocol with licensed physicians. On behalf of its members, FNA serves as a professional advocate before several governmental bodies, including the Board, and actively participated in support of the rule- making process which produced proposed rule 64B9-4009. Intervenor, Florida Association of Nurse Anesthetists, is a Florida nonprofit corporation and professional organization representing the legal, legislative, and professional practice interests of more than 1500 Certified Registered Nurse Anesthetists (CRNAs) practicing throughout Florida, all of whom are Advanced Registered Nurse Practitioners (ARNPs). The address of the Florida Association of Nurse Anesthetists is Post Office Box 150127, Altamonte Springs, Florida 32715-0127. CRNAs are expressly authorized by Florida law to order and administer anesthetic agents. Nearly all the anesthetic agents utilized by CRNAs are controlled substances. Under current law, Florida CRNAs cannot prescribe controlled substances, and are unable to obtain a registration number from the United States Drug Enforcement Administration (DEA). A DEA registration number is a prerequisite to prescribing controlled substances. The proposed rule would permit Florida CRNAs to prescribe controlled substances, and obtain a DEA registration number. The ability to prescribe controlled substances would have a direct impact on the practice of Florida CRNAs, in that it would allow CRNAs to prescribe anesthetic agents and post- operative medications for patients. The Proposed Rule 64B9-4.009 Functions of the Advanced Registered Nurse. All categories of Advanced Registered Nurse Practitioner may perform functions listed in Section 464.012(3), Florida Statutes. The scope of practice for all categories of ARNPs shall include those functions which the ARNP has been educated to perform including the monitoring and altering of drug therapies, and initiation of appropriate therapies, according to the established protocol and consistent with the practice settings. Advanced Registered Nurse Practitioners' prescriptive authority includes the prescription of Schedule II, III, IV and V controlled substances under appropriate protocol. Advanced Registered Nurse Practitioners may prescribe controlled substances only after the Advanced Registered Nurse Practitioner demonstrates completion of a Board-approved course in prescribing controlled substances. The Board approves 'Clinical, Legal, & Ethical Issues in Prescribing Abusable Drugs,' sponsored by the University of South Florida College of Medicine, Courses meeting the following criteria will also be approved: The course must consist of 22 contact hours of formal classroom instruction; The course must include the following education objectives; understand basic pharmacokinetic principles relating to pharmacological agents. describe basic pharmacology of drugs subject to abuse, including opiates, sedative-hypnotics, psychotropic agents, steroids and stimulants. assess the need for and proper use of drugs subject to abuse in managing both acute and/or chronic pain or mood disorders. achieve an improved understanding of drug abuse, drug dependence and addiction. identify the legal basis of ration and state drug control policies. discuss record keeping, enforcement agency practices and problem avoidance. Specific Authority 464.003, 464.006, 464.012, Florida Statutes. Law implemented 464.003, 464.012, Florida Statutes.
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.
