Findings Of Fact At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only. RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1981. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Henry C. Hunter, Esquire Suite 320 Lewis State Bank Building Tallahassee, Florida 32301 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, CASE NO.: 81-991 vs. MIRACLE HILL NURSING AND CONVALESCENT HOME, INC., Respondent. /
Findings Of Fact Based on the admissions of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact. Respondent, Kimberly Bauzon, L.P.N., is a licensed practical nurse in the state of Florida, having been issued license number PN 0803361. Respondent has been so licensed at all times material to the allegations in the complaint. Between the dates of October 25, 1985, and December 2, 1985, the Respondent was employed as an LPN by the Care Unit of Jacksonville Beach. On various occasions during her employment as an LPN at the Care Unit of Jacksonville Beach, Respondent charted vital signs for patients that she had not, in fact, taken. On or about November 21, 1985, while employed as an LPN on duty at the Care Unit of Jacksonville Beach, without authority or authorization, Respondent left her unit within the Care Unit for at least thirty (30) minutes. During that period of at least thirty (30) minutes on November 21, 1985, during which Respondent was out of her unit, there was no nurse present in the unit to take care of patient needs. Also on or about November 21, 1985, while on duty at the Care Unit of Jacksonville Beach, Respondent was asleep for a period of at least two (2) hours. On one occasion during Respondent's employment at the Care Unit of Jacksonville Beach, Respondent pulled a male adolescent by the waistband at the front of his trousers in the course of directing the patient to provide a urine specimen. The manner in which Respondent pulled on the patient's clothing was inappropriate and unprofessional. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to be asleep while on duty. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to chart vital signs which she has not, in fact, taken. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to leave her unit for a period of thirty (30) minutes in the absence of a replacement nurse.
Recommendation In view of all of the foregoing, it is recommended that the Board of Nursing enter a final order in this case finding the Respondent guilty of one incident of violation of Section 464.018(1)(d), Florida Statutes, and four incidents of violation of Section 464.018(1)(f), Florida Statutes. And in view of the provisions of Rule 210-10.05(4)(d), Florida Administrative Code, it is recommended that the Board of Nursing impose a penalty consisting of a letter of reprimand and further consisting of a requirement that Respondent attend required specific continuing education courses, with an emphasis on the legal responsibilities of a nurse to the patients under her care. DONE AND ORDERED this 19th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH 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 19th day of March, 1987. COPIES FURNISHED: Lisa Bassett, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kimberly Bauzon, LPN 2968 Songbird Trail Atlantic Beach, Florida 32233 Kimberly Bauzon, LPN 216B Seagate Avenue, #B Neptune Beach, Florida 32233 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 =================================================================
The Issue Whether Petitioner, Mary E. Johnson, was discriminated against by her discharge from her position as a Certified Nurse Assistant by Respondent, Ormond Beach Memorial Hospital (Hospital), on November 21, 1991, because of her handicap, clinical depression, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner worked as an on-call Nurse Assistant for Respondent. On call employees were guaranteed no certain amount of hours and no benefits were provided to them. On call employees were called to work when patient census was high, and were the first to be cancelled when the census was low. Vodenicker, Tr. 29 (1. 20-25) - 30 (1. 1-19); Johnson, Tr. 31 (1. 4-5). On November 21, 1991, Respondent discharged Petitioner from her position as a Certified Nursing Assistant at the Hospital. Hearing Officer's Exhibit 1. Petitioner had been hospitalized the majority of May 1991 for clinical depression. She returned to work at the Hospital following her hospitalization and was not hospitalized again prior to her discharge, although she did continue to have problems with depression. Johnson, Tr. 33 (1. 18-25) - 34 (1. 1-14). Ms. Vodenicker, Vice President of Nursing Services, became aware that Petitioner had been hospitalized for clinical depression during a counseling session on August 20, 1991. Ms. Sally Cole, Nurse Manager of Six North, was also present during this meeting. Johnson, Tr. 53 (1. 23-24); Vodenicker, Tr. 120 (1. 8-16), Tr. 121 (1. 9-17), Tr. 133 (1. 8-11). In early May, Diane McCall, Assistant Director of Nursing, was told by Dorothy Johnson, Petitioner's mother, that Petitioner was depressed and had been hospitalized. McCall, Tr. 78 (1. 23-25) - 79 (1. 1-8). Petitioner never discussed her clinical depression with Ms. McCall. McCall, Tr. 79 (1. 9-14); Johnson, Tr. 51 (1. 5-7). Petitioner's psychiatrist, Dr. Oh, had no conversations with anyone at the Hospital regarding Petitioner's clinical depression. Johnson, Tr. 38 (1. 13-15). As a physician practicing in the area, the nurses and staff were familiar with his specialty, and some of the Petitioner's supervisor's knew Dr. Oh was treating the Petitioner. Petitioner did not inform any members of the Hospital's nursing staff that she was suffering from clinical depression. Johnson, Tr. 50 (1. 19-22). Ms. Burns, one of Petitioner's supervisors, was not aware that Petitioner suffered from clinical depression. Johnson, Tr. 51 (1. 14-16); Burns, Tr. 182 (1. 16-19). Ms. Bowen, Nurse Manager of Six South, had no knowledge that Petitioner suffered from clinical depression. Johnson, Tr. 52 (1. 10-12); Bowen, Tr. 185 (1. 9-17). In her capacity as Team Leader and/or Charge Nurse, Ms. Canelli had occasion to supervise Ms. Johnson's work. Ms. Canelli described Petitioner's performance as "erratically efficient" because sometimes Petitioner was "very good at her job and at other times she was less than adequate". Canelli, Tr. 83 (1. 4-15). In early May 1991, Petitioner was counseled by Ms. Vodenicker regarding her personal interactions with a coworker, Brad Van Buren. Ms. Vodenicker cautioned Petitioner to keep her personal life separate from her business life at the Hospital. Johnson, Tr. 57 (1. 15-25) - 58 (1. 1-15). On July 20th, Ms. Canelli counseled Petitioner regarding the deficient level of care she had provided to a "total-care patient" (i.e., a patient who cannot feed, bathe or move themselves in bed) on July 2nd. Ms. Canelli discovered the patient "lying in a puddle of stool," and located Petitioner sitting at the nurses station holding her pocketbook and waiting to leave for the day, even though there was still 20-25 minutes left until the end of the shift. Ms. Canelli instructed Petitioner to clean up the patient. About ten minutes later, Ms. Canelli went back into the patient's room and discovered that the patient had apparently been wiped off with a dry cloth but had not been bathed. This was evident because there was still stool on the patient's pillow, dressings, and leg. Ms. Canelli summoned another Nurse Assistant, and they cleaned up the patient. Ms. Canelli counseled Petitioner regarding this incident on the next available opportunity she had to work with her, and she also documented the incident. Canelli, Tr. 83 (1. 21-25) - 84 (1. 1-17) - 85 (1. 4-25) -86 (1. 1-23); Respondent's Exhibits 6 and 7. On August 20th, Ms. Vodenicker had a second counseling session with Petitioner concerning Mr. Van Buren, following a complaint by Mr. Van Buren that Petitioner had been following him around in her car and that she had been seen in the Hospital parking lot watching him as he came on duty on the evening of August 19th. Vodenicker, Tr. 118 (1. 10-14). On October 27th, Ms. Canelli counseled Petitioner about Petitioner's absence from her assigned floor when she could not be located by the nursing staff, even after she was paged over the Hospital paging system. Ms. Canelli documented the events surrounding this counseling session on October 28th, to include several prior instances in which the nursing staff had been unable to locate Petitioner on her assigned floor. Canelli, Tr. 88 (1. 2-25) - 89 (1. 1- 8) - 102 (1. 1-25) - 103 (1. 1-3); Respondent's Exhibit 8. Ms. Vodenicker requested that Ms. Cole, Nurse Manager of Six North, escort Petitioner to Ms. Vodenicker's office in order to discuss the situation and to get Petitioner's side of the story. Ms. Cole sat in on the meeting as a witness. Ms. Vodenicker reminded Petitioner of their previous discussion regarding Mr. Van Buren and told Petitioner to keep her business and personal lives separate. Ms. Vodenicker also took this opportunity to discuss other problems with Petitioner's job performance. Vodenicker, Tr. 119 (1. 15-25) - 120 (1. 1-7); Johnson, Tr. 58 (1. 18-25) - 59 (1. 1-10). Because Petitioner's actions were in violation of the directives that Ms. Vodenicker had previously discussed with Petitioner in May, Ms. Vodenicker a wrote a disciplinary report. Johnson, Tr. 121 (1. 20-24). On August 21st, Ms. McCall presented Petitioner with the disciplinary report in the presence of Ms. McCall. Petitioner refused to sign the document, and Ms. Vodenicker made a notation of this fact on the face of the document and forwarded the original to the Hospital's personnel department. Vodenicker, Tr. 121 (1. 25) - 122 (1. 1-23) - 146 (1. 10-25) - 147 (1. 1-3); McCall, Tr. 156 (1. 22-25) - 157 (1. 1-11); Johnson, Tr. 59 (1. 11-25) - 60 (1. 1-4); Respondent's Exhibit 3. Ms. Burns counseled Petitioner after the Petitioner failed to answer a page and could not be found when Ms. Burns undertook a personal search for Petitioner. Petitioner later stated that she had taken a patient to x-ray; however, when Ms. Burns called the x-ray department, no one remembered seeing Petitioner in that area. Ms. Burns counseled Petitioner regarding leaving her assigned floor without notifying proper personnel and documented the incident. Burns, Tr. 176 (1. 4-23) - 177 (1. 22-25) - 178 (1. 1-17) - 179 (1. 3-25) - 180 (1. 1-10) - 181 (1. 14-16) - 182 (1. 9-15). On October 26, 1991, Petitioner was working under Ms. Peterson's supervision. Ms. Peterson observed that, while on a supposed 15-minute break at 8:15 a.m., Petitioner did not return until nearly 9:15 a.m. Ms. Peterson documented the incident after consulting with her supervisor. No one at the Hospital had instructed Ms. Peterson to keep an eye on Petitioner. Peterson, Tr. 172 (1. 12-23) - 173 (1. 18-25) - 174 (1. 1-6) - 175 (1. 1-3); Respondent's Exhibit 17. On November 2, 1991, Ms. McCall counseled Petitioner regarding being absent from her assigned floor, and limiting her breaks to 15 minutes and lunch breaks to one-half hour. Ms. McCall instructed Petitioner not to leave the floor unless directed to do so by the Charge Nurse or Team Leader. Ms. McCall documented her counseling Petitioner in her personnel file. McCall, Tr. 149 (1. 19-25) - 150 (1. 1-18); Respondent's Exhibit 14. On November 10, 1991, Petitioner was assigned to assist patient Joan Cummings. Patient Cummings was an "NPO" patient, meaning that she could not receive any of her fluids and medications by mouth. Petitioner forgot to measure the patient's urine output prior to emptying her bedpan. Canelli, Tr. 92 (1. 18-25). Johnson, Tr. 40 (1. 2-8) - 66 (1. 23-25) - 67 (1. 1-5). After forgetting to measure patient Cummings' urine, Petitioner asked the patient how many times she had urinated. The patient informed her that she had voided three (3) times, and Petitioner multiplied that number by 200 cc's to arrive at a figure of 600 cc's. Petitioner recorded 600 cc's as patient output on the intake/output slip, and which was ultimately recorded on the patient's daily log form located on a clipboard outside the patient's door. The information was later transcribed onto the patient's chart. Johnson, Tr. 40 (1. 10-25) - 42 (1. 4-25) - 43 (1. 1-12). The Nurse Assistant assigned to the patient is responsible for an accurate intake and output measurement as recorded on the patient's intake/output slips and daily log sheets. The information recorded on these Hospital documents are relied upon as accurate by the entire nursing staff. The information is transferred onto the patient's graphic charts by the nurse, or nursing assistant or nursing team leader, depending on who has time. Canelli, Tr. 112 (1. 8-25) - 113 (1. 1-3); Bowen, Tr. 184 (1. 3-8). By substituting 200 cc's in the place of the BRP designation, Petitioner failed to follow the procedures as described to her by Ms. Canelli. Petitioner had never been instructed by anyone at the Hospital to substitute 200 cc's for actual measurement. Johnson, Tr. 44 (1. 21-25) - 45 (1. 1) - 47 (1. 15-25) - 48 (1. 1-19) - 49 (1. 1-6); Canelli, Tr. 99 (1. 2-8). It would not be proper for a nurse or nurse assistant to multiply the number of times a patient had voided by 200 cc's, and use that number as an accurate representation of the amount of urine output by the patient. Canelli, Tr. 91 (1. 9-14). Petitioner's "Nursing Skill Evaluation" form reveals that she received training on the use of intake/output sheets, including the accurate measuring of cleaning of these items, although she cannot recall what instructions she received. Johnson, Tr. 64 (1. 7-25) - 65 (1. 1), (1. 14-17); Respondent's Exhibit 4. An accompanying self-evaluation form also reveals that Petitioner indicated that she felt comfortable with charting elimination of bedpan fluids and with the accurate measuring and cleaning of the graduated pitcher. Johnson, Tr. 67 (1. 12-25) - 68 (1. 1-12); Respondent's Exhibit 5. Ms. Canelli instructed her Nurse Assistants to inform the Team Leader, whenever they had forgotten to measure a patient's urine output and to let their Team Leader know the number of times the patient had voided so that the staff would have some idea that the patient had voided and chart that the urine had not measured. Canelli, Tr. 91 (1. 17-25). Petitioner's substitution of her estimate of urine output was contrary to acceptable charting practice. Petitioner had been instructed by Ms. Canelli, who regularly performed Team Leader and Charge Nurse duties, to document instances in which she had forgotten to measure a patient's output by writing the number of times the patient had voided beside the designation "BRP" (bathroom privileges). Johnson, Tr. 43 (1. 25) - 44 (1. 1-20). On November 10, 1991, patient Cummings reported to Ms. Canelli that Petitioner had dumped her bedpan without measuring the urine output after the Petitioner had left at the end of her shift. Ms. Canelli documented the facts related to her by the patient in a report to her team leader, Ms. Bowen. Canelli, Tr. 94 (1. 22-25) - 95 (1. 1-3); Respondent's Exhibit 9. Petitioner admits that the nurses rely on the information recorded on the intake/output slips and daily logs as being accurate representations of the actual amount of fluids measured by the Nurse Assistants. Johnson, Tr. 43 (1. 13-15). Nurse Bowen was the Team Leader on Six North on November 10, 1991. Ms. Bowen spoke with Ms. Cummings, who advised her that Petitioner had failed to measure her urine output before emptying the bedpan. Ms. Bowen also documented the patient's complaint in a report. Bowen, Tr. 184 (1. 9-19). Nurse McCall was advised of the Cummings incident when she returned to work after the weekend. Ms. McCall brought the incident involving patient Cummings to the attention of Ms. Vodenicker. In reviewing patient Cummings' medical file, Ms. Vodenicker was very concerned about Petitioner's inaccurate recording of patient information. Ms. Vodenicker opined that it was very important that the Hospital be able to trust what its health-care employees tell them and have confidence that the employees have done what they say they have done. Vodenicker, Tr. 123 (1. 9-20) - 124 (1. 7-16). Ms. Vodenicker was already aware of Petitioner's performance, as well as the prior written corrective action which she had given Petitioner. She reviewed Petitioner's personnel file, performance appraisals, and met with Nurse McCall, Petitioner's immediate supervisor, in order to analyze this matter further. Ms. Vodenicker decided in view of the decline in Petitioner's performance, the verbal and written counseling she had received from the supervisory staff, the prior corrective action which had been issued, and the recent incident involving patient Cummings that a decision was required regarding Petitioner's further employment. Vodenicker, Tr. 124 (1. 20-25) - 125 (1. 1-3). Ms. Vodenicker discussed the matter with Nurse McCall and asked that she provide her with a recommendation. Nurse McCall recommended Petitioner's discharge based upon the incident involving patient Cummings and Petitioner's declining work performance. Vodenicker, Tr. 125 (1. 8-18); McCall, Tr. 153 (1. 10-25) - 154 (1. 1-11) - 157 (1. 24-25) - 158 (1. 1); Respondent's Exhibit 13. Petitioner's annual performance evaluation reflected that there had been a demonstrable demise in her overall performance over the course of her first year of employment. McCall, Tr. 155 (1. 4-21). The decision to discharge Petitioner was not communicated to Petitioner until November 21st, mainly because of the time that it took Ms. Vodenicker to conduct her review of the situation and discuss the proposed disciplinary action with her superiors. Petitioner was not called to work due to low patient census on November 15, 18, and 20, 1991. Vodenicker, Tr. 125 (1. 23-25) - 126 (1. 1-18) - 144 (1. 1-6). On November 21, 1991, Ms. Vodenicker met with the Petitioner and reviewed the incident involving patient Cummings with Petitioner. Petitioner admitted to Ms. Vodenicker that she had forgotten to measure the patient's urine output and had documented the output as 600 cc's. Ms. Vodenicker expressed her concern over Petitioner's failure to properly chart patient information, and Petitioner's declining work performance. Ms. Vodenicker then terminated the Petitioner. Vodenicker, Tr. 126 (1. 19-25) - 127 (1. 1-8); Johnson, Tr. 189 (1. 22-25) - 190 (1. 1-19); Hearing Officer Exhibit 1. Petitioner states she does not wish to return to the Hospital as a Nurse Assistant at this time for health reasons. Johnson, Tr. 50 (1. 3-13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations issue a Final Order finding that Petitioner has failed to prove a violation of Section 760.10, Florida Statutes. DONE AND ENTERED this 17th day of September, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 17th day of September, 1993 APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1556 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Respondent's PFOF: 1-7 Adopted. 8-9 Irrelevant. 10-17 Adopted. 18-19 Irrelevant. 20-27 Adopted. 28 Irrelevant. 29-32 Adopted. 33 Rejected as contrary to the best evidence. 34-42 Adopted. 43-44 Subsumed in 24 and other paragraphs. 45-50 Adopted. 51-56 Subsumed in 41. 57 Adopted. Petitioner's PFOF: 1-End Rejected and contrary to the best evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Mary E. Johnson c/o Ms. Dorothy Johnson 1807 Golfview Boulevard South Daytona, Florida 32119 Gary E. Thomas, Esquire FISHER & PHILLIPS 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326
Findings Of Fact The Respondent, Daniel E. Gallagher, is a licensed practical nurse, holding license number 41727-1 issued by the Department of Professional Regulation on June 1, 1985. From May 28, 1985, to August 29, 1985, the Respondent was employed at Care Unit of Jacksonville Beach, Florida, as a licensed practical nurse. During this employment, the Respondent appeared for work frequently with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition. He frequently used mouth wash and mints. The odor of alcohol was smelled by other employees and by patients. This behavior started shortly after the Respondent began working at Care Unit, and it became progressively more evident until August, 1985, when the Respondent was terminated from his employment. Coming to work as a licensed practical nurse in the condition described above is unprofessional conduct which departs from the minimal standards of acceptable and prevailing nursing practice. A licensed practical nurse who assumes the duties of his employment under the effects of the use of alcohol, with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition, is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 41727-1, held by the Respondent, Daniel E. Gallagher, be suspended for 30 days; and that following this period of suspension the Respondent be placed on probation for one year, subject to such conditions as the Board may specify. THIS RECOMMENDED ORDER entered this 11th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 11th day of September, 1986. COPIES FURNISHED: William M. Furlow, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Daniel E. Gallagher 379 East 5th Street Mount Vernon, N.Y. 10550 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Judie Ritter Executive Director Department of Professional Regulation 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 =================================================================
Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand. RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516 Petitioner: 1. Partially adopted in finding of fact 1. 2-4. Partially adopted in finding of fact 2. 5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 3. 9. Partially adopted in finding of fact 4. 10. Rejected as being hearsay. 11-16. Partially adopted in finding of fact 5. 17. Rejected as being hearsay. 18-20. Partially adopted in finding of fact 6. 21-25. COPIES Partially adopted FURNISHED: in finding of fact 8. Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ms. Susan H. T. Benson P. O. Box 143 Naples, FL 33939 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The issues in this case are whether, before applying for licensure as a registered nurse in Florida, Petitioner had suffered the denial of an application for licensure as a practical nurse in the state of Virginia, and, if so, whether Petitioner's failure to disclose that fact in her Florida application was a knowing misrepresentation; finally, if either or both of the forgoing questions are answered in the affirmative, whether Respondent has grounds to deny Petitioner's pending application for a nursing license.
Findings Of Fact On October 15, 2012, Petitioner Yolette Tema ("Tema") signed an application for licensure as a registered nurse, which she mailed to the Department of Health for review by Respondent Board of Nursing (the "Board"). Item No. 9 of the application sought information about the applicant's disciplinary history. Four subparts (lettered A through D) asked questions that called for a "yes" or "no" answer, which the applicant was to give by marking the applicable check box. The first question ("9A") was: Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country? Tema answered, "No." In Item No. 10 of the application, there appeared above the signature line the following declarations: I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. Tema's signature manifested her agreement with the foregoing declarations. Despite having acknowledged the hard consequences of deceit, Tema's negative answer to the question of whether she ever had suffered the denial of an application for licensure was false. In fact, in June 2011, the Virginia Board of Nursing had denied Tema's application for licensure as a practical nurse, on the ground that she had provided false information in an effort to obtain a license by fraud, deceit, or material omission. Tema had received timely, contemporaneous notice of the Virginia Board of Nursing's final decision, and she was fully aware of that disposition at all times relevant to this case. When she completed the Florida application in October 2012, therefore, Tema knew that her response to question 9A was false. Because the information Tema failed to disclose obviously would have hurt her chances of obtaining a license in Florida, the undersigned disbelieves Tema's explanation for the material omission, which was that she simply made a mistake.1/ Instead, the undersigned infers that Tema intentionally omitted the damaging fact of the Virginia denial in hopes that the Board would not discover it.2/ The Board did, however, discover the Virginia decision while reviewing Tema's application. Based on that past denial and Tema's present failure to disclose it, the Board determined that Tema's Florida application should be denied. The Board's preliminary decision was communicated to Tema through a Notice of Intent to Deny dated February 11, 2014. Determinations of Ultimate Fact Tema is guilty of having an application for a license to practice nursing denied by the licensing authority of another state, which is a disciplinable offense under section 464.018(1)(b), Florida Statutes.3/ Tema is guilty of attempting to procure a license to practice nursing by knowing misrepresentation, which is a disciplinable offense under section 464.018(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying Tema's application for licensure as a registered nurse. DONE AND ENTERED this 10th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 10th day of September, 2014.
The Issue The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Tracie Ann Johnson, was licensed as a practical nurse in Florida under license number NI20852451. The Board of Nursing was and is the state agency responsible for the licensing of practical nurses in Florida. On March 28, 1987, Deborah W. Murphy was a licensed practical nurse and charge nurse at the Hillsborough County Development Center assigned to the 3 - 11 PM shift. As a part of her duties that evening she was assigned to conduct an orientation of the Respondent, Tracie A. Johnson, who had recently been employed by the facility. As a part of her routine duties, Ms. Murphy conducted a count of all controlled drugs at the beginning of her shift, when medications were passed, and again at the end of her shift. The initial count, less the drugs passed, should have resulted in the number present at the end of shift count. On the night in question, Ms. Murphy, along with the Respondent, went to each individual house at the facility to pass medications. Drugs are kept in a locked cabinet in a locked storage room in each house. In order to get to the drugs, it takes two separate keys - one for the room and one for the drug cabinet. Both keys were kept within the personal control of the charge nurse on duty, and on the night in question, Ms. Murphy, as the sole nurse on duty, had the only keys. When Ms. Murphy was out of the drug room passing medicines, she would leave the room unoccupied save for Respondent for a few moments. During this period, the drug cabinet was unlocked as well. On the night in question, no one else, other than Ms. Murphy or Respondent, was present or had access to the drug room and cabinet. When Ms. Murphy finished passing medicines in the house where the shortage in question here was noted, she and Respondent were to go to another house to pass medicines. However, prior to leaving, Ms. Johnson indicated she had to go to the bathroom and they agreed that she would meet Ms. Murphy at the next house. Ms. Johnson did not show up and Ms. Murphy went back to find her. When she did, she found that Respondent was still in the bathroom. When Respondent came out of the bathroom, she was pale and sweaty, and her eyes appeared glassy. She said at that point that the "Doritos" must have made her sick. The two nurses went back to the nurse's station but Respondent was unable to stay awake to continue the orientation. In Ms. Murphy's opinion, Respondent was under the influence of some substance, either alcohol or a drug. When Ms. Murphy conducted the 11 PM count of drugs at the end of her shift, she found that one 100 mg phenobarbital capsule was missing from one of the drug cabinets in the room where she had left Respondent unaccompanied. Both Ms. Murphy and her replacement night nurse searched thoroughly for the pill but could not find it. As a result, Ms. Murphy called Ms. Cottrell, the assistant director of nursing, who advised her to fill out an incident report which all parties involved were to sign. When asked to sign this report, Respondent refused, stating that she was not present during the search and therefore could not vouch for its effectiveness. Ms. Murphy indicates that even before the medicines were passed, Respondent disappeared with her purse often and her conversation seemed to be somewhat inappropriate. She was highly talkative and after the passing of medicines, it appeared that her demeanor changed. She was much quieter and did not go with Ms. Murphy on any of the other medicine passes that evening. Ms. Cottrell, herself a recovered impaired nurse, was called by Ms. Murphy when the shortage was noticed. In a meeting the next morning, Ms. Murphy reported that Respondent's performance and demeanor had been inappropriate and Ms. Cottrell had heard from other nurses as well that Respondent appeared to be under the influence of some substance. When Ms. Murphy attempted to question Respondent about her familiarity with a venous puncture, she reportedly stated she did not have to observe that as she had experience in sticking needles in her own veins. After receiving a complete report from Ms. Murphy, Ms. Cottrell called Respondent in at which time Respondent indicated strong signs of impairment. These included repeated absences to go to the bathroom, drowsiness, sweating, and paleness. During their conversation, Respondent appeared to be bored and angry at having to come in early to talk. Ms. Cottrell spoke of her concerns about Respondent's behavior and condition, and Respondent's refusal to sign the incident report, and asked Respondent to be evaluated by an addiction counselor rather than to be reported to the Board. At this point, Respondent, already angry, got angrier. She denied taking drugs, made a few more inappropriate comments, and stomped out of the room. This type of conduct is consistent with a drug dependance denial but is also consistent with innocence. After the interview, during which Respondent declined to be evaluated by an addiction counselor, Ms. Cottrell felt she had no choice but to discharge Respondent from employment with the Center. In her opinion, based on her personal experience and her training in drug addiction, Respondent was under the influence of something at the time. Her symptoms are not consistent with food poisoning but with a drug high. She is satisfied that Ms. Murphy is not responsible for the loss of the pill and Ms. Murphy denied having taken it. She is further satisfied that none of the patients assigned to the residence from which the pill was missing was capable of taking it. It is found, therefore, that Respondent took the phenobarbital from the drug room while Mrs. Murphy was out of the room and ingested it. It is also found that her symptoms, as described by the three nurses who observed her, are consistent with drug ingestion and that she was under the influence of drugs whale on duty with Ms. Murphy on March 28, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a practical nurse in Florida be suspended for three years or until such time as she proves to the satisfaction of the Board of Nursing that she is capable of safely engaging in the functions of the profession of nursing. RECOMMENDED this 15th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of November, 1988. COPIES FURNISHED: John Cobb, Law Clerk Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tracie Johnson 1906 East Hamilton Tampa, Florida 33610 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director DPR, Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
