The Issue Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.
Findings Of Fact Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient, G. C. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable nursing practice in the treatment of patient, G. C.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East Tallahassee, Florida 32312 Bonnie Fay Baker Palmer Route 2, Box 810 Waynesville, Georgia 31566 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
Findings Of Fact Respondent, a licensed practical nurse, worked the 7 to 3 shift on the south end of the eighth floor of University Hospital, Jacksonville, Florida. She and the nurses with whom she worked were divided into two teams, each of which took responsibility for certain patients. Respondent was on team one. The patient Lena Rogers, who was on eighth floor south on January 21, 1977, was assigned to team two. On the morning of January 21, 1977, respondent reported for work as usual. As a routine matter, the hospital pharmacy had earlier delivered to eighth floor south a box containing 25 ampules of Demerol. Each ampule contained 50 cc of Demerol. Accompanying the box of ampules were three sheets of different colored paper, each of which was stamped with the same number as the box. The green sheet was signed by a nurse on eighth floor south and returned to the pharmacy as its receipt for the Demerol. The yellow control sheet was lost in its entirety. While this is not an every day occurrence, such sheets are lost about once a month at University Hospital, and the evidence was devoid of any indication that the yellow control sheet had been intentionally mislaid. The white sheet, containing 25 shingled charge slips, remained with the box of Demerol. Nurses administering Demerol to patients were expected to fill out one of the slips each time an ampule of Demerol was used, indicating which patient should be billed for the drug. The accepted procedure is for nurses, after administering drugs to their patients, to note that fact on the patients' charts, in the nurse's notes, and on a medication graph. These records are supposed to be updated immediately after medicine is administered but, not infrequently, nurses wait until the end of their shifts to do record keeping. This departure from accepted practice is less frequent, however, in the case of controlled drugs like Demerol. When it is necessary for a nurse to waste drugs like Demerol, accepted practice requires that the wasting be witnessed by another nurse, after which both nurses are to sign the yellow control sheet. On January 21, 1977, respondent Morgan signed 16 charge slips, but crossed through her signature on one of them. The remaining charge slips signed by respondent indicated a patient named Williams should be billed for four ampules of Demerol; that a patient named Fowler should be billed for four ampules of Demerol; that a patient named Fisher should be billed for three ampules of Demerol; and that patients named Rogers and Richards should each be billed for two ampules of Demerol. About half past one on the afternoon of January 21, 1977, Jonti Lute, R.N., who also worked on eighth floor south, noticed that respondent appeared drowsy and as if she were in a daze. Ms. Karen Harris, the house supervisor for the 7 to 3 shift, was on eighth floor south on the afternoon of January 21, 1977, making her rounds. Ms. Harris observed respondent sitting at the nurses station, writing on charts, and occasionally nodding. Respondent's eyes were dry and she was continually wetting her lips with her tongue. When she stood up, she held on to a table for support. As she left the nurses' station, she tripped over her own feet and bumped into a partition. Her speech was slurred. Ms. Harris suggested that respondent accompany her to the hospital employees' clinic. Respondent protested and the director of nursing, Ms, Apol, was summoned. Before her shift ended, respondent went to the employees' clinic where she was examined by Dr. Lipkovich. As part of the examination, respondent gave a urine specimen, 50 cc of which was sent to a laboratory for chemical analysis. Mr. Bush, a chemist, testified that analysis disclosed the presence of Demerol in this sample in a quantity of "25 mg. per cent." By her own admission, respondent injected herself with the contents of one ampule of Demerol, while she was on duty. Respondent testified that she administered some of the remaining Demerol to the patients she had indicated on the charge slips should be billed for the medicine, and wasted the remainder by ejecting it from syringe(s) into a sink. None of the charts of the patients whom respondent indicated should be billed for Demerol on January 21, 1977, contained any indication that Demerol had been administered to the patients on that date. Respondent testified that nobody had witnessed her wasting Demerol on January 21, 1977.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's nursing license. DONE and ENTERED this 28th day of October, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Mr. Frederic A. Buttner, Esquire Barnett Bank Building Jacksonville, Florida 32202 =================================================================
Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed. DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Linda Sears Gibson 2003 Southwest Seventh Street Ocala, Florida Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Carolyn A. Keegan, is a licensed Practical nurse in the State of Maine and has been since October 10, 1947, when that State first began licensing nurses. Petitioner attended the Eastern Maine General School of Nursing between September, 1940, and June, 1942, but did not graduate. She has been employed as a nurse since that time. When the State of Maine began licensing nurses in 1947, Petitioner was grandfathered in as a licensed practical nurse without being required to take an examination or graduating from an accredited nursing program. On June 12, 1980, Petitioner applied for licensure as a licensed practical nurse in the State of Florida by endorsement. This application was denied by the Board of Nursing on July 11, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carolyn A. Keegan for licensure as a licensed practical nurse be denied. It is further RECOMMENDED that Petitioner be permitted to take the appropriate examination at the earliest practicable time. DONE and ENTERED this 8th day of January 8, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Carolyn A. Keegan 11839-108th Avenue, North Largo, Florida 33540 Linda A. Lawson, Esquire Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against because of her race (African-American) in not being selected for promotions and whether she was not selected because of her handicap (back injury).
Findings Of Fact The Petitioner is a black female. At times pertinent hereto, she was employed by the State of Florida, Department of Health and Rehabilitative Services (now known as Department of Children and Family Services), at Florida State Hospital in Chattahoochee, Florida. She has a disability or handicap involving a back injury. She was first employed by the Respondent in July 1976, as a Registered Nurse II and initially supervised two or three wards. The Petitioner also worked for Apalachee Community Mental Health Service in Quincy as a Team Leader during 1977-1978. She was a part-time relief nursing supervisor at Tallahassee Memorial Hospital between 1978 and 1979. She became a Registered Nurse III in March 1978 at Florida State Hospital (FSH) and became a full-time nurse there in 1979. She supervised an entire unit after that time and worked in several different units of the Forensic/Corrections Department as a Senior Registered Nurse beginning in November 1982 and lasting until March 1987. Between March and December 1987, she served as a Senior Registered Nurse Supervisor until her current assignment. She has been employed since December 1987 as a Registered Nurse Specialist Coordinator and remained in that position until her resignation due to disability retirement on January 25, 1994. She has a good employment record, earning consistent above satisfactory or "exceeds" performance standards ratings during her career. The Petitioner earned her Bachelor of Science Degree in Nursing (BSN) from Florida A & M University in 1976. She has since earned 21 hours toward a Masters Degree and took continuing nursing education courses at a time when the continuing education course work was not yet required. She is licensed by the State of Florida as a Registered Nurse. Petitioner's Disability On August 25, 1992, the Petitioner suffered a job- related injury to her back. The Petitioner was absent from work for some months, apparently receiving worker's compensation during this time. On January 27, 1993, she was cleared to return to light duty work at the hospital by her treating physician. The Respondent provided her with an appropriate light duty job assignment at which she remained through the balance of her employment with FSH. On June 18, 1993, the Petitioner was determined to have reached maximum medical improvement by her treating physician. She was thereupon discharged from further medical care by Capital Health Plan. On July 26, 1993, she filed an application for 100 percent "line of duty" retirement from the Florida State Retirement System. The State Office of Worker's Compensation thereafter approved her application for "permanent total disability" worker's compensation benefits, effective June 16, 1993, resulting from the injuries suffered on August 25, 1992. The Petitioner was absent from employment from June 4, 1993 through January 27, 1994, inclusive, claiming 34 weeks of worker's compensation benefits for this time. Ultimately, and as part of her effort to obtain disability retirement, the Petitioner resigned from her employment with the Respondent on January 25, 1994. At the time of the Petitioner's resignation, the Department had an action pending to involuntarily terminate her from employment allegedly because of her inability to discharge her assigned job duties and responsibilities. Vacant Positions During the fall of 1992, a vacancy occurred in the position of Registered Nurse Supervisor, Forensic/Corrections at Florida State Hospital. This was in the facility known as the Corrections Mental Health Institute (CMHI). A career service system position description existed for this job which was developed by the State of Florida, Department of Administration. That position description required, among other things, that the incumbent hold a license as a registered nurse (RN) with the appropriate experience, education, licensure and nursing abilities. The position called for a minimum of 75 percent of the time expended in the job being involved with direct patient contact with forensic patients. The FSH advertised this position as position number 46392 in the HRS Job Bulletin. The application deadline was January 21, 1993. The minimum requirements for the job were licensure as an RN with three years of nursing experience. A bachelor's degree from an accredited college or university could substitute for one of the three years experience required. A bachelor's degree in nursing was not required for the job, however. For this and the other positions a "knowledge, skills and ability" instrument (KSA) was prepared, as required by applicable law, to provide for numbered items consisting of the knowledge, skills or competencies a person hired for each position would be expected to have. Position number 46392 included a KSA requirement of budget experience as being essential, since the position required the development, allocation and administration of that unit's nursing service budget. The job advertisement involving this position complied with existing HRS and FSH rules, policies and procedures. There was no evidence offered to show that it discriminated against any person as to race, national origin, or handicap and no person or class or persons was encouraged or discouraged from applying for the position. Neither employment with the Department nor FSH were prerequisites to application or acceptance of the position. Twenty-six applications were received for this position. The procedure for hiring a person in the state system and the FSH involves various tasks. First, the hiring authority must request the personnel office to fill the position. The hiring authority, from a class specification developed by the Department of Management Services (DMS), creates this specific position description which includes the specific duties of the position and the minimum qualifications established at DMS. The class specification contains generic KSAs and from the class specification and position description the hiring authority develops a KSA examination module. This module is created in three steps: (1) job analysis, where the position description is compared to the KSAs for choosing which KSAs will be searched- for when hiring the position; (2) development of a rating scale where the applicant's KSAs are compared against those developed for the position, to determine the applicant's relative qualifications; and (3) the development of KSA interview questions. According to the pertinent rule, KSAs must not reflect "easily learned" material or skills which can be rapidly learned on the job. The KSAs must also be job related. The scoring on the KSA application rankings form and on the interview questions, was 50 for a "superior level," 33 for "satisfactory level," and 17 for "acceptable level." The interview questions are the only ones which can be asked of applicants during the interview. The KSA examination module is transmitted to the personnel office, prior to the job being advertised. After the job announcement is disclosed, the applications are screened against the minimum qualifications for the position by the personnel office and those that are qualified are submitted to the hiring authority for screening against the developed KSAs for the position. This step is a paper review of the applications which is documented on the application review form filled out on each applicant. The application rankings are normally used to reduce the applicant pool to a smaller number, usually about five, who are then interviewed. The interview questions developed previously are asked of each interviewee, and their answers are rated against the 50-33-17 scale for their scores from each interviewer. The interview scores are aggregated, and the applicant with the highest interview score is selected for the job. A selection form is completed then which lists the top applicant, in the order of their scores, after the interview process. Each application for position 46392 was screened using the KSA instrument prepared in advanced, as required by applicable law, to determine which of the applicants was qualified for the job. The KSA criteria and the interview questions utilized were reviewed by the personnel office at FSH in advance of their use, to ensure compliance with HRS rules, regulations and policies, and EEOC guidelines. Points were then awarded to each of the applicants by the KSA examining committee. Applicant Z. Thompson, a white female nurse, was awarded a total of 233 points. The Petitioner, Jean Spear, was awarded a total of 165 points. Other black and white applicants ranked lower in point award amounts and some ranked higher, including black applicant Bethea, with 199 points. Based upon those scores, three applicants were selected to be interviewed for this position: Z. Thompson; D. Breeden, a white female Registered Nurse; and C. Bethea, an African-American female Registered Nurse. Applicants Thompson and Breeden had associate science degrees in nursing while applicant Bethea had a bachelor of science degree. The bachelor of science degree is a higher degree than an associate science degree and can offset a year of the experience requirement for this and the other positions. However, the bachelor of science degree does not automatically mean that the holder thereof has a higher level of qualification for the position when all the applicants' qualification attributes are weighed against the position requirements and considered together. The Petitioner was not selected for an interview for this position because she finished ninth in the overall KSA rankings for the position. The interview committee for this position consisted of three FSH employees: Joel Devolentine, the administrator in charge of the program; Alva Martin, the chief nursing consultant at FSH; and Harry Moody, Jr., an administrator at the Department of Corrections, Corrections Mental Health Institution (CMHI). Interviewers Devolentine and Martin are white and Mr. Moody is black. The interview were conducted on February 11, 1993. During the interview process, Mr. Devolentine asked the candidates questions which were prepared in advance. Each interviewed person was asked the same questions, in the same sequence. Each member of the interviewing committee scored the responses on forms provided using the scoring system designated and implemented for that purpose. Each member of the committee scored the interviewees independently and did not discuss the points awarded to those persons with the other members of the committee. Each made his or her entries on the interview form separate and apart from the other members of the interview committee, contemporaneously with the responses given by the applicants. Upon conclusion of the interviews, the score sheets were given to Mr. Devolentine by each member of the committee for tabulation. There is no evidence that points awarded were changed or modified in any way once they were awarded. The total numerical scores for each of the candidates interviewed, showed that Z. Thompson had the highest score. Black candidate C. Bethea had the next highest score, and white candidate D. Breeden had the lowest score. The preponderant evidence shows that the KSA's experience in budget issues and the KSA's requiring certification in behavior analysis were both directly related to the job in question and both KSA competencies or certifications were possessed by Z. Thompson and not by the other candidates interviewed nor by the Petitioner, who had not received enough qualification points for the position to be interviewed. Because she received the highest total number of points and met all the minimum requirements set forth in the position description in the HRS job bulletin, because she possessed more experience in budget issues and was certified in behavior analysis, Z. Thompson was selected to be awarded the job. The preponderant evidence shows that the hiring process as to this position was conducted in accordance with existing HRS and FSH rules, regulations, policies, and procedures. There was no persuasive evidence that any of the hiring and selection process was designed or used to favor one class of persons or one person over another by reason of race, ethnicity or handicap. Although there was testimony concerning comments made by various supervisory personnel at FSH to the effect that Z. Thompson should apply for this position or that it was intended in advance that she get this position, there was no persuasive evidence of such pre-selection of Z. Thompson by the hiring decision-maker. It is somewhat noteworthy that white interview committee member Alva Martin gave black candidate Bethea 380 points and white candidate Breeden 347 points, while black interview committee member Moody gave black candidate Bethea 448 points, and white and winning candidate Thompson 465 points. Committee member Devolentine gave winning candidate Thompson 516 points; next highest candidate D. Breedan, a white female, 482 points; and black candidate Bethea 448 points, the same number of points that black committee member Moody had given candidate Bethea. There is no definitive, persuasive evidence that race was a determining factor in the award of the job to candidate Thompson. There was no persuasive evidence as to this position that handicap was a factor in determining that the Petitioner did not get selected for an interview for the position nor selected for the position. Position number 34563 involved a vacancy occurring during 1992. The application deadline for the position was October 22, 1992. The minimum requirements for the job were licensure as a Registered Nurse and four years of nursing experience with one year of that experience requirement offset if a candidate had a bachelor's degree from an accredited college or university. The position description indicates that approximately 75% of the time expended in the job required direct patient conduct with forensic clients. This is the position known as Executive Nursing Director, Forensic/Corrections at Florida State Hospital. The position was advertised in the HRS Job Bulletin. The advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures, and no person, or class of persons, was either encouraged to apply or discouraged from applying as to race, handicap or other status. Thirteen applications were received, and the screening and interview process described above was employed once again in accordance with HRS rules, regulations, and policies and EEOC guidelines. The screening used the KSA instrument prepared in advance for the position, as required by applicable law to determine which applicants were qualified for the job. That resulted in points being awarded and twelve out of the thirteen applicants being interviewed for the position. The interview committee consisted of four FSH employees: Robert Alcorn, the administrator in charge of the program; Alva Martin, chief nursing consultant at FSH; Richard Taylor, a unit director in the Forensic Services at FSH; and R. W. Myers, an administrator in the Forensic Services. Alcorn and Myers are white males. Ms. Martin is a white female and Mr. Taylor is an African-American male. The interviews were conducted on November 23, 1992, with interviewer Robert Alcorn asking all questions of all candidates. The questions were prepared in advance and the interview process included the private and independent deliberation and evaluation by each committee member, conducted as described above. There is no evidence that any points awarded were changed or modified in any way once they were assigned by each committee member. Upon conclusion of the interview process, Mr. Alcorn recommended the following persons for the position of Executive Nursing Director, Forensic/Corrections, as being most qualified for the job, by order of preference: (1) G. Cook with 82.1 points; (2) Z. Thompson with 80.6 points; (3) B. Weems with 74.6 points; (4) L. McMullian with 64.1 points; and (5) J. Spear, the Petitioner, with 61.0 points. Candidate Gwen Cook met all of the requirements of the position description in the HRS Job Bulletin and had more experience in forensic and emergency nursing than did the Petitioner. She received the highest total points and was offered and accepted the job. The KSA at issue as to this position required hospital emergency room experience, including certification in advanced cardiac life support. The position was executive nursing director in a medical-surgical psychiatric ward. Therefore, it was relevant to require, in a KSA for the position, that applicants have extensive knowledge of emergency medical procedures including management of airway obstructions, intubation defibrillator operation, etc., as well as the certification for advanced cardiac life support. It was a legitimate KSA requirement to specify hospital emergency room type experience, which Gwen Cook had in better degree than the Petitioner. The Petitioner did have psychiatric emergency care experience which was relevant, but the higher level of emergency and advanced cardiac life support experience possessed by Gwen Cook coupled with her additional forensic experience justified her selection for the position. The Petitioner was certainly qualified for the position, but Ms. Cook was more qualified, and there is no showing that the point rankings referenced above were improperly arrived at in violation of any rules, policies or statutes. There was no persuasive evidence that they were arrived at to the Petitioner's detriment for reasons of racial preference, ethnicity, or improper discriminatory consideration of the Petitioner's handicap. It was not persuasively demonstrated by the evidence that the advanced cardiac life support certification was a certificate that could be earned in a very short period of time, and thus it was not shown that it was an invalid KSA criterion. In 1992, a vacancy occurred in position number 04877. The FSH advertised this position in the HRS Job Bulletin. It was the position of Registered Nursing Consultant. The position application deadline was July 1, 1992. The position description for this position, which had been developed by the Department of Administration, required that the incumbent have appropriate knowledge, experience, education, and abilities in nursing principles, especially in the area of infection control. The description called for approximately 75 percent of the time expended by the holder of this position to be in direct patient contact with forensic clients. The minimum requirements for the job were licensure as a registered nurse with four years of nursing experience. A bachelors degree from an accredited college or university could substitute for one of the four years of experience required. Specific experience in infection control and epidemeology was essential. The job advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures. Employment with the Department or with the Florida State Hospital was not a prerequisite to attainment of the position. Fourteen applications were received and each application was screened using the KSA instrument prepared in advance for that purpose, as required by law. This was used to determine which of the applicants were qualified for the job. Both the KSA criteria and the interview questions used were prepared and reviewed in advance of their use to ensure compliance with relevant law, in the manner delineated more particularly above. Points were awarded to the persons who applied for the job by the KSA examining committee in such a manner that the Petitioner received 232 points, with only applicant, Nora Howell, who received 300 points, being ranked higher. The Petitioner, was tied for second place in point awards with black applicant C. Bethea and applicant S. Harris. The remainder of the fourteen applicants all scored lower. Based upon those scores determined by the KSA examining committee, the six highest ranking applicants were selected to be interviewed for the position, including the Petitioner. The interview committee consisted of two FSH nursing professional employees: Kathy Wheeler, the administrator in charge of the program and Sue Calloway, a practicing registered nurse at FSH. The interviews were conducted on July 9, 1992. During the interview process, committee member Kathy Wheeler asked the candidates questions, which had been prepared in advance. Each person interviewed was asked the same questions by the designated interviewer, Ms. Wheeler. They were asked in the same sequence. Each member of the interviewing committee scored his or her responses to the questions on forms that had been provided using the scoring system designated and implemented for that purpose. There is no evidence that any member of the committee discussed the points he or she awarded to the interviewees with other members of the committee and no evidence that the entries on the interview forms were made other than separate and independently from each other member of the committee. There is no evidence that points awarded were changed or modified in any way once they were awarded. Upon conclusion of the interviews, all the scoring sheets were given to Ms. Wheeler for tabulation. The total numerical scoring for each of the applicants interviewed was: Nora Howell, 128.4 points; Jean Spear, 119.9 points; C. Bethea, 111.4 points; V. Ramsey, 122.9 points; J. Collins, 118.8 points; and S. Harris, 111.4 points. One of the KSAs applicable to this position called for the person to be hired to have significant expertise in the area of infection control and epidemiology for this nurse consultant position. While the Petitioner remonstrates that this is not a legitimate KSA requirement because it is not directed related to the job and is an area easily learned on the job, the preponderant evidence reveals that indeed, it is directly relevant to this position and it is of significant importance. It is not a field or area of expertise which can be rapidly learned after hiring. Thus, the preponderant evidence shows that this KSA item or criterion is a legitimate one. The preponderant evidence shows also that successful applicant Nora Howell possessed this expertise to a greater extent than did the Petitioner. Thus, although the Petitioner was well qualified for the job in most respects, the qualifications of Nora Howell in this area exceeded those of the Petitioners according to the preponderant, credible evidence. This justified her being awarded a higher level of points in the screening and interviewing process than the Petitioner. Since she met or exceeded all the other position criteria which had been duly and legally adopted, it was justifiable for her to be offered and to accept the position instead of the Petitioner on these qualification-related bases. The application, screening, and interview process and ranking and scoring of points followed the procedure delineated by statute and rules and described in more detail above. There is no credible evidence that the hiring decision as to this position was made for any reason motivated by racial discriminatory intent or discrimination because of any handicap of any applicant. There is no clear evidence that "pre- selection" occurred as the Petitioner contends, but even if Nora Howell had informally been pre-selected for this position, there is no credible evidence that it had anything to do with racial or handicap discrimination against the Petitioner. During the fall of 1992, Florida State Hospital advertised the position of Senior Registered Nurse Supervisor for the Forensic/Corrections Department, position number 09671, in the HRS Job Bulletin. The position application deadline was January 21, 1993. The minimum requirements for the job were licensure as a registered professional nurse and three years of nursing experience. Here again, a Bachelor's Degree from an accredited college or university could substitute for one of the three years experience required. Experience dealing with forensically-committed patients was essential. The evidence shows that the job advertisement complied in all respects with existing HRS and FSH rules, polices, and procedures. The advertisement did not discriminate against any person or group or class of persons on the basis of race, handicaps, or other reasons. No person, or class of persons, was either encouraged or discouraged from applying by the advertisement. Neither was employment with the Department nor the hospital a prerequisite. Twenty-four applications were received. Each application was screened using the KSA instrument prepared in advance for that purpose by the procedure delineated above. In the KSA screening or examining process, applicant Patricia Powell scored 266 points; William Dixon scored 250 points; and Jean Spear, the Petitioner, scored 249 points. Applicant Zilla Thompson scored 323 points, S. Peoples scored 232 points, and Betty Thames scored 233 points. These six top point winners in the KSA examining process were selected to be interviewed by the interview committee. The interview committee consisted of five employees: Steve Lacy, an administrator in charge of the program; Gwen Cook, a practicing Registered Nurse in the forensic services at FSH; Judy Wester, a direct care supervisor in forensic; Alva Martin, the chief nursing consultant at FSH; and Willie McLeroy, a forensic direct care supervisor at FSH. The interviews were conducted on February 1, 1993. During the interview process, interview committee member Alva Martin was designated to ask the candidates questions which were written, prepared, and approved in advance under the process already delineated above. Each person interviewed was asked the same questions by the same interviewer in the same sequence. Scoring was done independently by each member of the interview committee and the scores submitted to Steve Lacy of the committee for tabulation. There was no evidence that points awarded were changed or modified in any way once they were awarded by each member of the committee. Applicant Dixon was awarded 3127 points and Petitioner Spear was awarded 2276 points. That made the Petitioner rank fifth from the top point earner, Mr. Dixon. Mr. Dixon met all the minimum requirements set forth in the position description in the HRS Job Bulletin for the position. Mr. Dixon had more forensic nursing experience overall than did the Petitioner, having ten years versus the Petitioner's five years. The Petitioner offered no preponderant, persuasive evidence that the hiring decision for this job or for the other three jobs was racially motivated. The Respondent's position in response to the Petitioner's attempted prima facia showing of racial discrimination, to the effect that she is black and that the successful job applicants were all white, is that, in fact, the Respondent hired the persons it believed were most qualified for the job. In fact, the proof shows that as to three of the positions, already treated herein, the winning applicants were indeed the most qualified for the job. The proof shows that the Petitioner was most qualified for the job currently being discussed in the paragraphs next above, that is, position number 09671. Her denial of hiring for that position, however, was not shown to be due to any racially discriminatory intent given the proof culminating in the above findings concerning how the selection process operated in accordance with the rules and policies of the agency. The preponderant, persuasive evidence shows that the Petitioner was actually better qualified than Mr. Dixon, the nurse who was awarded the position. The expert testimony of Dr. Frank, corroborated by the testimony of witness Betty Thames, in particular, shows that the Petitioner was better qualified for this supervisory position number 09671 because of her more extensive educational and work-experience qualifications. She had more varied experience in the nursing profession in areas that were related to this job than Mr. Dixon had, in spite of his longer experience in the forensic department. The Petitioner was shown to have a superior ability in the area of implementing medications and psychiatric nursing treatment procedures because the Petitioner had demonstrated this ability in a broad variety of settings, with different kinds of patients, coupled with her three and three-quarter years of forensic supervisory experience. She is also superior in her skills and expertise regarding working as a contributing member of a multi-disciplinary team, functioning as a team leader and with consulting with families. She also has more experience as a liaison nursing person with jails and community health-related facilities or resources. Additionally, for position number 09671, KSA number one for that position indicated a desire for experience in a tardive dyskinesia clinic. Only Mr. Dixon had this experience of all the applicants for this position, so the Petitioner was not given credit for it in the screening and interview process. In fact, she had many of the same general skills and abilities. The specific emphasis on tardive dyskinesia experience was shown, however, through the testimony of Dr. Frank, as being unnecessary to this type of supervisory position. More importantly, in the interview for this Senior Registered Nurse Supervisor position (09671), there was a written interview question asked the Petitioner concerning her disability. That question was as follows: "6. Do you have any disabilities that would prevent you from lifting or working a 40-hour week or that would prevent you from performing this job? How many days have you missed in the past year due to illness? How many unscheduled absences did you have in the past year? Do you have any responsibilities commitments or activities that would prevent you from doubling on or changing your work days or weekends?" Witness Betty Thames for the Petitioner also stated that during the course of a telephone interview in which the interview committee chairman, Steve Lacy, questioned her, as the Petitioner's supervisor, concerning her attendance that he made a "nonprofessional remark" (in a negative vein) regarding the Petitioner's physical limitations to the effect that "It doesn't matter why she was out to me". This was related to a discussion between the two in the telephone interview concerning the Petitioner's work attendance history and her back injury. Lacy's statement was admitted into evidence as a "party admission exception" to the hearsay rule. He was clearly an agent of the Respondent and a key person in this hiring process. The Respondent was aware of the Petitioner's disability. She had injured her back on the job in August of 1992. She had been off work receiving worker's compensation benefits for the injury and, based upon her doctor's finding that she had reached maximum medical improvement, had been returned to work, apparently in early 1993, and given light duty involving work not requiring lifting more than 15 pounds, prolonged walking, stooping or bending. She reported this disability on her employment application for these positions. Her back injury clearly limited her in a "major life activity," such as lifting, walking, prolonged standing, or her level of mobility and strength in general. All of the positions for which she had applied were less strenuous than the position she had last held before going on retirement. This was testified to by the Petitioner as well as C. J. Brock, the Respondent's personnel director and Betty Thames, the Petitioner's immediate supervisor. Mr. Brock testified that her injuries would not normally be considered a negative factor for supervisory or consulting positions in nursing, which is the position at issue. In fact, after the Petitioner answered on all of her application forms "yes" to the question concerning whether she had a disabling or handicapping condition and had additionally written that her limitations involved lifting, bending, prolonged standing or walking, the personnel office still qualified her for the position at issue in this proceeding. In spite of that, the Respondent's agent in the hiring process still, at least as to position number 09671, formally asked her about her disability and handicap in the context of the above-quoted questions. The Petitioner maintains she was asked about this in each of her interviews for all four positions. Her testimony does not clearly show exactly what the nature of the questions were, if they were asked, and that self- serving testimony cannot serve as evidence of disability discrimination as to the other three positions, as it is not sufficiently preponderant credible and persuasive. The formal written questioning as to position number 09671, however, does show that the employer had a no doubt genuine, but for the reasons delineated below, illegal pre- occupation about the Petitioner's disability or handicap. There is no evidence of malicious intent in the above-quoted inquiry about the Petitioner's physical limitations or even in the statement attributed to Steve Lacy referenced above. The inquiring statement rather reflects a genuine but ill-advised concern by the Respondent about getting an employee in the subject position who might be absent from work excessively or be the source of other personnel problems due to her disability. The Petitioner has raised an issue concerning "pre- selection" by citing statements witnesses related at hearing, made by certain supervisory individuals involved to one degree or another in the hiring process for the four positions at issue. These statements purport that a certain person who ultimately got the job in question was the person the declarant involved wished to have apply for the job or a statement to the effect that the Petitioner need not apply because another person, such as, for instance, Nora Howell, was going to get the job. These statements were purportedly made before the hiring process started or was completed, and therefore were offered as evidence of illegal pre-selection, that is, illegal pre-selection in the context of the agency's rules. These statements were admitted as party admission exceptions to the hearsay rule. In terms of their credibility and persuasiveness, however, it is pointed out that they were not subject to cross- examination. Moreover, whether they are credible or not, they did not stand as probative of racial discrimination or disability discrimination because the statements could just as easily have been reflections of preferences based on friendship, which might be distasteful, ill-advised, or even illegal in another context but does not itself show racial animus or intent to discriminate based upon the Petitioner's disability. The statements might equally reflect an innocent statement or statements by these individuals which reflect their genuinely-held belief that the persons they purportedly favored were actually the best qualified for those jobs. It is thus found that these statements, as evidence of pre-selection, are largely immaterial to resolution to the issues in this case because they do not have any significant probative value in fact-finding as to the issues of racial or disability discrimination. The Petitioner was paid $1,544.68 bi-weekly through January 25, 1994, the date she retired. She was making $1,499.69 on a bi-weekly basis prior to September 30, 1993, back through the relevant period at issue. Her salary would have been increased a minimum of 10 percent if she had been hired at any of the four positions involved in this case. Because of the above findings of fact, she should have been hired in position number 09761. Thus, she should have had her pay increased by 10 percent from the hiring date for that position forward to the time when she retired. That hiring date would be shortly after the interview date for that position, of February 1, 1993, so her salary should have been increased 10 percent forward from that time with a cost of living increase of 3 percent beginning October 1, 1993, with such back pay and attendant upward adjustment in retirement benefits being awarded through her retirement date of January 25, 1994. There is no proof of compensatory pay, front pay or attorney's fees and costs in this proceeding.
Recommendation Accordingly, in consideration of the preponderant evidence of record and for the reasons delineated in the above findings of fact and conclusions of law, the Petitioner was the victim of discrimination because of her handicap as to position number 9671. Because the Petitioner is unable, due to her total and permanent disability to return to work, her remedy is back pay. She should therefore be awarded back pay represented by the salary she would have earned in position number 9671 from the hiring date of that position which occurred shortly after February 1993, the interview date. She should have her attendant retirement benefits adjusted upward by virtue of being denied that job, with an attendant cost of living increase of 3 percent which she would have earned beginning October 1, 1993, with such increased salary and benefits to be awarded terminating as of January 25, 1994, her retirement date. Jurisdiction is reserved on the issue of attorneys' fees and costs. DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1997. COPIES FURNISHED: Lawrence F. Kranert, Esquires Florida State Hospital, Building 249 Post Office Box 1000 Chattahoochee, Florida 32324 Jack McLean, Esquire 100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909 Larry K. White, Esquire John W. Hedrick, Esquire 1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Respondent, Jean L. Hammer, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 0588011. In October 1986, respondent was employed by Pinewood Lodge, a treatment center for alcohol and drug rehabilitation, as a staff nurse on the midnight to 8:00 a.m. shift. Respondent was the only employee on duty during her shift, and was responsible for monitoring the patients for signs of distress, noting their progress on the medical records, and administering prescribed medications. For such services, respondent was paid $27,000 per annum; a salary consistent with that paid a registered nurse (R.N.) at the facility. In January 1987, respondent was offered and accepted the position of Supervisor of Nurses at Pinewood Lodge. The staffing of this position required the services of and provided an annual salary of $25,000 and other benefits. Respondent occupied this position until July 1987 when it was discovered that she was not a registered nurse and was discharged. The respondent's personnel file at Pinewood Lodge demonstrates that in seeking and gaining employment at the facility respondent represented herself to be a licensed registered nurse, the recipient of a Bachelor of Science degree from the University of Pittsburgh, and the recipient of an Associate in Science Nursing degree from Broward Community College. Such representations were false, and the documents submitted to support such representations were forgeries. The proof further demonstrates that respondent assumed the title of R.N., routinely signed documents in a manner that identified her as an R.N., and otherwise led the public and associates to believe that she was licensed as a registered nurse; all for pecuniary gain. While there was no showing that anything untoward occurred during the course of her tenure at Pinewood Lodge, respondent knew her actions were improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's license for one year, that following such suspension respondent be placed on probation for two years subject to such terms and conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX Petitioner's proposed findings of fact have been addressed as follows: Addressed in paragraph 1. Addressed in paragraph 4. 3-4. Addressed in paragraph 3. 5-6. Addressed in paragraph 4. 7-8. Addressed in paragraphs 3 and 5. 9. Addressed in paragraph 5. COPIES FURNISHED: E. Raymond Shope, Esquire John S. Cobb Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard Smith, Esquire 1258 South State Road 7 Fort Lauderdale, Florida 33317-5989 Judie Ritter, Executive Director Board of Professional Nursing 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Should discipline be imposed by Petitioner against Respondent's certificate to practice as a Certified Nursing Assistant?
Findings Of Fact Facts Admitted: Petitioner is the state department charged with regulating the practice of nursing pursuant to Chapter 20.43, Florida Statutes, Chapter 456, Florida Statutes; and Chapter 464, Florida Statutes. Respondent is Andrea Tyson. Respondent is a Certified Nursing Assistant (C.N.A.) in the State of Florida having been issued certificate number 0898- 262792261. Respondent's current address of record (address listed for C.N.A. certificate with Department of Health) is P.O. Box 999, Cross City, Florida 32628. On or about August 23, 2001, Respondent was employed at Tri-County Nursing Home (Tri-County) in Trenton, Florida. During the time Respondent worked at Tri-County, W.H. (resident referred to in Petitioner's Administrative Complaint) was a resident at Tri-County. Respondent knew W.H. prior to working at Tri-County. Respondent regularly cared for W.H. at Tri-County. On or about August 23, 2001, Respondent assisted W.H. in taking a shower. On or about August 23, 2001, while in the shower with W.H., Respondent jerked W.H.'s hand from the shower grab bar. On or about August 23, 2001, while in the shower with W.H., Respondent sprayed W.H.'s face with cold water. On or about August 23, 2001, after Respondent finished showering W.H., Respondent partially dried W.H. and put on only his pants. On or about August 23, 2001, after Respondent finished showering W.H., Respondent refused to assist W.H. with putting on his shirt. On or about August 23, 2001, W.H. had to seek the assistance of another person at Tri-County, in putting on his shirt following his shower with Respondent. Additional Facts: W.H. had suffered a stroke in 1992. W.H. came to be a resident at Tri-County on March 8, 1999. On August 23, 2001, Respondent told W.H. to go to the bathroom to get ready for his shower. W.H. required assistance to shower. Respondent had given showers to W.H. before the date in question. On August 23, 2001, it was necessary for W.H. to support himself by holding on to the shower grab bar. W.H. explained that he uses the shower bar because he feels better that way, more secure. When Respondent jerked W.H.'s hand away from the shower grab bar, she did so without warning. This made W.H. feel bad. It also made him feel mad at Respondent. On the date in question while in the shower, W.H. told the Respondent that the water was too hot. Her response was to reach over with her hand and turned the lever to the cold setting and rinsed W.H. off with cold water. The water was really cold. W.H. did not complain about the cold water. He just wanted to get out of the shower. W.H. was left with the impression that if Respondent was going to be mean to him, he did not want to be around her. The incident made him feel abused. W.H. felt intimidated by the Respondent given her actions. As part of the process of showering that took place on August 23, 2001, in addition to spraying cold water in W.H.'s face, the cold water got into his ears. He did not like water in his ears. After the shower, Respondent dried W.H. off and put on his underclothes and pants and shoes but not his shirt. W.H. was left with only his T-shirt above the waist. W.H. took his outer shirt and went into the hall and got another C.N.A. to assist him in putting it on. To W.H.'s knowledge he had never done anything or said anything to provoke Respondent before the incident in the shower. W.H. reported the incident to a nurse at Tri-County about a day after the event. The expectation at Tri-County was that Respondent as a C.N.A. would perform her duties in the facility consistent with the Florida standards of care incumbent upon C.N.A. certificate holders. Tri-County is a skilled nursing facility. C.N.A.s who are employed at that facility, such as Respondent, undergo orientation in addition to the training received when earning a certificate to practice in Florida. The orientation includes issues such as fire safety, resident rights,1/ infection control, and body lifting of residents. What is described as the "paper part" of the orientation takes a day. In addition, the new employee is paired with an experienced C.N.A. on the same shift where the new employee will work, and the new employee and the experienced employee work together for a couple of weeks at the nursing home as training. While working with the experienced C.N.A., that employee uses a check-list to verify that the new employee can master the skills required to assist the residents. Within Tri-County the expectation for resident rights are in association with the right to dignity, among other rights. C.N.A.s at Tri-County are responsible for feeding, hydration, bathing, toileting, and skin care in relation to residents they are responsible for. Margo Chancey, R.N.C. was the Director of Nurses at Tri-County on August 23, 2001. She continues to hold that position. Ms. Chancey is a licensed nurse in Florida. By virtue of her formal training and work experience, Ms. Chancey is sufficiently familiar with the expected standard of care to be provided by C.N.A.s to offer expert opinion testimony concerning Respondent's treatment of W.H. on August 23, 2001. Nurse Chancey explained W.H.'s condition in August 2001 as being a circumstance in which W.H. had had a couple of strokes over a period of years. Nonetheless, W.H. remained alert and oriented and continued to be alert and oriented in more recent times including the present. W.H. gets around in a wheelchair. He is on an oxygen concentrator P.R.N. W.H. suffers with chronic pulmonary disease. W.H. was more ambulatory in August 2001 than he is today. Ms. Chancey is sufficiently familiar with the events on August 23, 2001, concerning Respondent's provision of care to W.H. while providing him a shower, to offer an opinion on whether that performance was within the minimal standards expected of a C.N.A. Ms. Chancey established that the manner of care provided from Respondent to W.H. was inhumane and abusive and below minimal standards. More particularly, Ms. Chancey commented that Respondent gave W.H. no choices. She demanded things of the resident. She sprayed cold water in his face, which is unacceptable. She was rough and rude with W.H. when removing his arm from the grab bar, which is unacceptable. W.H.'s patient's rights were violated pertaining to matters of human dignity and he was not treated safely. As Ms. Chancey correctly explained, for Respondent to perform her duties in giving the bath to W.H. she would have had bathing equipment ready when he came into the room and she should have been in the room when W.H. started to get undressed and would not have removed his arm from the grab bar. W.H. had the right to complain that the water was too hot. Respondent should have tested the water before she sprayed what was revealed to be cold water on W.H. Respondent should have totally dressed W.H. before she left the room given his condition, chronic obstructive pulmonary disease. The risk was that his condition could worsen when left partially dressed. This might lead to his contracting pneumonia.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Sections 464.204(1)(b), 464.018(1)(h), Florida Statutes (2001), and Florida Administrative Code Rule 64B9- 8.005(13)(2001), placing Respondent on probation for a period on one year subject to terms established by the Board of Nursing, imposing a $150.00 fine and requiring that Respondent attend a continuing education class on the care of the elderly. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2003.
