The Issue The issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and Rules 64B9-8.005(2) and 64B9-8.005(12), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the regulatory and prosecutorial duties related to nursing practice in Florida. Respondent is a licensed practical nurse in Florida, holding license no. PN 0481631. From May 13, 1992, to April 11, 1997, she was employed by Southlake Nursing and Rehabilitation Center (Southlake). On April 9, 1997, Respondent worked as a nurse on the 3:00 p.m. to 11:00 p.m. shift on Southlake's A wing. T.C. was a patient of another nurse on that wing. Around 7:00 p.m., Respondent began administering medications to her patients. Melody Perez, the ward clerk, informed Respondent that T.C. needed assistance because he was in respiratory distress. T.C. was sitting in the hall, six to eight feet from Respondent. Respondent went over to T.C., checked to make sure that there was oxygen in his tank and that his nasal cannula was in place. Respondent saw no outward symptoms of T.C. being in acute respiratory distress such as rapid breathing or anxiety. Respondent told Ms. Perez that she could not help T.C. because he was not her patient. She told T.C. that his nurse, who was on break and had the keys to the other medication cart, would be back in a few minutes. Respondent thought that T.C. just wanted his medications. She did not perform a nursing assessment, as that term is commonly understood in the practice of nursing. She did not take T.C.'s vital signs, count his respirations, or listen to his chest. After telling him to wait for his nurse, she just walked away. On April 10, 1997, T.C. and another resident complained to Southlake's administrative staff about Respondent's failure to help T.C. Southlake initiated an investigation based on these complaints. Conchita Griffin, Southlake's Assistant Director of Nursing, conducted the investigation. As was the custom and procedure at Southlake, Ms. Griffin interviewed T.C., the second complaining resident, Ms. Perez, and two certified nursing assistants (CNAs) who were on duty during the incident. Ms. Griffin then compiled a written report of the incident and submitted it to Southlake's administration. Based on her investigation, and after considering Respondent's disciplinary history at Southlake, Ms. Griffin recommended that Southlake terminate Respondent. Southlake had written policies requiring a nurse to attend to any resident who needed help. The policies require a nurse to assess a patient complaining of respiratory distress by taking the patient's vital signs, listening to respirations and to the chest for congestion. According to the policies, a nurse should attend to any patient in distress, calling the patient's assigned nurse, facility management, or 911 if needed. There are no circumstances where the nurse should do nothing. On April 11, 1997, Respondent was called in and asked about her side of the incident. She admitted that she looked at T.C. and that he did not appear to be in distress. She acknowledged that she did nothing except tell T.C. that his nurse would be back soon. When informed that she was being terminated, Respondent refused to sign the disciplinary form. She was asked to leave the premises immediately. Sharon Wards-Brown, Southlake's nursing supervisor for the evening shift in question, accompanied Respondent to A wing to retrieve her belongings. When Respondent arrived on the A wing, she went into the medication room, picked up T.C.'s chart, removed some pages from the chart, and went to the fax machine just outside the medication room. Ms. Wards-Brown and Beverly Burstell, the nurse manager who was on the floor checking some charts, saw Respondent remove the pages from T.C.'s chart and go to the fax machine. Both of them told Respondent that she could not remove or copy anything from the resident's chart. Respondent told Ms. Wards-Brown and Ms. Burstell not to touch her. Each page of nurses' notes in the patients' charts have a front and back side. Respondent stood at the fax machine for only a couple of seconds, not long enough to copy both sides of one page of nurses' notes. She certainly did not have time to copy both sides of all of the pages that she had removed from T.C.'s chart. Respondent's testimony that she had time to copy some of the nurses' notes from T.C.'s chart is not persuasive. Her testimony that she left all of the original pages in the fax machine is not credible. After being prevented from copying all of the pages that she had removed from T.C.'s chart, Respondent ran into the bathroom. A few seconds later she came out of the bathroom with papers and her purse in her hand. Ms. Wards-Brown called Clara Corcoran, Southlake's administrator, and Ms. Griffen for assistance. All three of them followed Respondent out of the building, demanding that she return the documents that she had removed from T.C.'s chart. Respondent repeatedly told them not to touch her. Ms. Corcoran and Ms. Griffen followed Respondent into the parking lot. Respondent got in her car but Ms. Corcoran and Ms. Griffen blocked Respondent from closing the car door and continued to demand the return of the papers. Respondent finally drove forward over the cement bumper and the grass in order to leave with the papers. Meanwhile, Ms. Wards-Brown returned to the A wing to examine T.C.'s chart. Ms. Griffen also examined the chart within two to three minutes after Respondent left the floor. The chart was still open on the desk. Ms. Wards-Brown and Ms. Griffen discovered that T.C.'s nurses' notes for April 9, 1997, were missing. They knew the notes were missing because both of them had seen the notes in the chart the day before when they reviewed the chart as part of the investigation. Respondent's Exhibit 2 is a copy of the front and back of one page of T.C.'s nurses' notes. The last note is dated March 27, 1997. It is not plausible that T.C.'s chart had no nurses' notes from that time until after April 10, 1997. Even if Respondent did not remove any of T.C.'s original nurses' notes from the premises, she violated the acceptable standards of nursing care by copying the front and back of one page and removing the copies from the facility.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $1,000 and suspending her license for one year, followed by two years of probation with appropriate conditions. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 October, 2000. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Thomas A. Delegal, III, Esquire Randy Rogers, Esquire Delegal & Merritt, P.A. 424 East Monroe Street Jacksonville, Florida 32202-2837 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4042 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Ruthie Mae Owens Brooks (Brooks or respondent), was licensed as a practical nurse having been issued license number PN 0877941 by petitioner, Department of Professional Regulation, Board of Nursing (Board). She has been licensed as a practical nurse since 1987. There is no evidence that respondent has been the subject of disciplinary action prior to this occasion. When the events herein occurred, respondent was an agency nurse for Underhill Personnel Services, Inc., an agency that furnished nurses to various health care facilities, including Methodist Medical Center in Jacksonville, Florida. She was employed at all times as a licensed practical nurse. On November 17, 1990, respondent was scheduled to work the 11 p.m. - 7 a.m. shift at Methodist Medical Center. Although her duty shift began at 11:00 p.m., respondent arrived a few minutes late and reported directly to the medical-surgical- orthopedic wing instead of signing in at the nursing office as required by hospital rules. After reporting to her work area, respondent went to the assignment board to review her assignment for that evening. Her specific duties that evening were to care for five patients in the medical-surgical-orthopedic wing. While respondent was at the assignment board, a registered nurse, Lynn Ivie, came to the board to ascertain her assignment. At that time, Ivie reported that she smelled a "strong odor of alcohol" on respondent's breath. However, Ivie said nothing at that time since she wanted to give respondent the benefit of the doubt. Around midnight, one of respondent's patients awoke in his room with severe chest pains. Both Ivie and respondent immediately went to the room. Although Ivie instructed Brooks to get a vital signs machine (also known as the Dynamap), Brooks ignored the instruction and "wiped the patient's face with a wet cloth". Ivie then brought the machine into the room and respondent was instructed by Ivie to take the patient's vital signs (blood pressure, temperature and pulse). This merely required her to place an attachment around the patient's arm and push a button to start the machine. The operation of the machine is considered a basic nursing skill. According to Ivie, respondent could not focus on the machine and did not seem to remember how to operate it. After waiting a few moments with no response from Brooks, Ivie finally took the patient's vital signs herself. During this encounter, Ivie again smelled alcohol on respondent's breath and concluded that her inability to assist in the care of the patient and to operate the machine was due to alcohol. Within a few moments, the patient was transferred to the intensive care unit (ICU) on another floor. Before accompanying the patient to the ICU, Ivie instructed respondent to chart the incident and action taken in the nurse's notes and then meet her in the ICU with the completed notes. These notes should be completed in an expedited manner so that the nurses in the ICU wing can utilize them in providing follow-up care to the patient. However, respondent did not chart the incident nor bring the notes to the ICU. Indeed, she failed to chart the notes on any of the patients assigned to her that night. By failing to chart any notes that evening, respondent contravened the requirement that a nurse file a report or record (nursing notes). Around 1:30 a.m. on November 18, Ivie and Joyce Biddix, the nursing supervisor, went to the room of one of the patients assigned to respondent and found the patient, a confused elderly male, sitting nude in a chair with the bed stripped of all linens. He had previously been tied to the bed to prevent him from falling. The linens were soiled with urine and were lying in a heap on the floor. Although respondent had taken the patient out of the bed, disrobed him, and removed the linens, she had left him unattended in the room and had not returned. Biddix called down the hall for someone to bring fresh linens and observed respondent "floating" down the hall saying "I can't find the linens" in a "singsong" voice. When she got closer to respondent, Biddix smelled alcohol on respondent's breath. It may reasonably be inferred from the evidence that respondent's conduct with this patient was unprofessional and constituted a departure from acceptable and prevailing nursing practice. After being confronted by Biddix regarding the alcohol, respondent told her she had drunk one beer with her meal around 10:30 p.m., or just before reporting to duty that evening. However, she denied she was intoxicated or unable to perform her duties. Respondent was then told to leave work immediately. The incident was later reported to Underhill Personnel Services, Inc. and that agency contacted the Board. After an investigation was conducted by the Board, an administrative complaint was filed. At hearing, respondent did not contest or deny the assertion that by reporting to work with alcohol on her breath, she was acting in an unprofessional manner and deviated from the standards of acceptable and prevailing nursing practice. In this regard, she acknowledged that she had drunk alcohol (which she claimed was only one tall beer) with her meal around 10:30 p.m., or just before reporting to duty. However, she contended that all of her previously scheduled shifts at the hospital had been cancel led and she assumed her shift that evening might also be cancelled. In response to the allegation that she could not operate the vital signs machine, respondent offered a different version of events and suggested that the machine in the patient's room was inoperative. Therefore, it was necessary for Ivie to bring a Dynamap into the room and Ivie took the vital signs without respondent's assistance. She justified leaving the elderly patient alone without clothes in his room on the grounds there was no clean gown, the patient was not combative, and she was only gone from the room for a few moments. Finally, she contended that she charted the notes for one of her patients but did not chart the others because the remaining patients were removed from her care by Ivie and Biddix when she was sent home at 1:30 a.m. However, these explanations are either deemed to be not credible or, if true, nonetheless do not justify her actions. Although there was no testimony concerning the specific issue of whether respondent is unable to practice nursing with reasonable skill and safety by reason of use of alcohol, taken as a whole respondent's conduct on the evening of November 17, 1990, supports a finding that her capacity was impaired that evening by virtue of alcohol. Accordingly, it is found that respondent was unable to practice nursing with reasonable skill and safety by reason of use of alcohol.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, RECOMMENDED that respondent be found guilty of violating Subsections 464.018(1)(f), (h), and (j), Florida Statutes (1989), and that her nursing license be suspended for six months but that such suspension be stayed upon respondent's entry into and successful completion of the Intervention Program for Nurses. Respondent's failure to remain in or successfully complete the program will result in the immediate lifting of the stay and imposition of the six-month suspension. Thereafter, said license shall not be reinstated until such time as respondent appears before the Board and can demonstrate that she can engage in the safe practice of nursing. DONE and ENTERED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-5033 Petitioner: Partially adopted in finding of fact 1. Partially adopted in finding of fact 3. Partially adopted in finding of fact 8. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. 7-10. Partially adopted in finding of fact 5. 11-14. Partially adopted in finding of fact 6. 15-16. Partially adopted in finding of fact 7. 17-18. Partially adopted in finding of fact 8. COPIES FURNISHED: Roberta L. Fenner, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Ruthie Mae Owens Brooks 1604 S.W. 40th Terrace, #A Gainesville, Florida 32607 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 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 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 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 Bonnie Isaac, R.N., held License No. 52845-2 as a Registered Nurse. Said license having been suspended for a period of ninety (90) days pursuant to the lawful order of the Board signed February 18, 1976. Said order of suspension was transmitted to and received by Bonnie Isaac on February 27, 1976. Subsequent to the receipt of said order, Bonnie Isaac continued to perform duties which can only be performed by licensed nurses in the course of her employment at Jackson Memorial Hospital, Dade City, Florida. Bonnie Isaac did not return her certificate of licensure and renewal certificate to the Board, but said renewal expired on March 31, 1976 pursuant to law. The license of Bonnie Isaac was not reinstated at the end of ninety (90) days although she requested that her license be returned to her by her letter of June 25, 1976 to the Florida State Board of Nursing. The license of Bonnie Isaac, suspended by lawful order of the Board effective February 27, 1976, had not been reinstated as of the date of hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the probation of Bonnie Isaac expressed in Board's order dated February 18, 1976 for nine (9) months following the ninety (90) day suspension of Respondent's license be set aside and the license of Respondent be suspended for one year from the initial date of suspension, February 27, 1976, said license to be reinstated with the full benefits and privileges thereof on February 26, 1977. DONE and ORDERED this 16th day of December, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Julius Finegold, Esquire 218 E. Forsyth Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. State Board of Nursing 6501 Arlington Expressway Bldg B Jacksonville, Florida 32211 Bonnie C. Isaac, R.N. Route 11, Box 735 A Lakeland, Florida 33801
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
The Issue Whether Petitioner should be denied certification as a certified nursing assistant for failure to disclose prior criminal history on her application, as alleged in the Notice of Intent to Deny.
Findings Of Fact Petitioner Stephaney Christie ("Christie") wants to become a certified nursing assistant ("CNA"). Because she is not currently certified in another state, to accomplish this goal, Christie must submit an application for certification by examination to Respondent Board of Nursing (the "Board"). The Board is responsible for reviewing such applications and determining whether applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination. On October 31, 2014, Petitioner filed an application, again seeking to be certified as a CNA by examination. The application included a question which sought information about the applicant's criminal convictions, if any. It provided as follows: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? . . . *If you answered YES, please be prepared to create a typed or printed letter with arrest dates, city, state, charges and final dispositions and be prepared to send it to the Board Office upon request. (Do not send this information with your application for examination.) Christie's application erroneously indicated "No" in response to this question. In 1999, Christie was involved in a neighborhood altercation to which law enforcement was called. Christie pulled away when an officer attempted to touch her arm. She was found guilty of a misdemeanor charge of obstructing an officer without violence. She received and completed a sentence of community service. In 2000, Christie left her young child in the care of a neighbor. When Christie returned home, she found her child had a black eye. She became involved in a heated discussion with the caregiver and as the argument escalated, threw a glass at the caregiver, which cut the caregiver's face. As a result of this altercation, Christie was charged with aggravated battery with a deadly weapon causing great bodily harm to which she pled guilty, and adjudication was withheld. Christie successfully completed a three-year probationary sentence and paid restitution to cover the victim's medical costs. On January 27, 2015, Respondent notified Christie that her application was incomplete pending Respondent's receipt of information regarding judicial disposition of her arrests, sentence completion status for each offense, and a typewritten explanation addressing each offense. On February 23, 2015, Christie provided the requested information, including a lengthy explanation of the circumstances surrounding each of her criminal offenses. At that time, Christie also provided character letters, including one from Assisting Hands home health care entity attesting to Christie's diligence and compassion in performing her job-related duties with its clients. On June 30, 2015, Respondent issued the Notice of Intent to Deny ("Notice") Petitioner's application for certification as a CNA by examination. The Notice explained Christie's application was being denied due to her "attempting to obtain a nursing license by bribery, misrepresentation, or deceit," by having incorrectly answered "No" to an application question. At the hearing, Christie testified that the incorrect answer regarding previous misdemeanors and felonies was a mistake. She explained that her application was prepared by personnel running the CNA training program from which she had taken classes to prepare for the CNA certification examination. Training personnel filled out and submitted the computerized application form on Christie's behalf without verifying with Christie the accuracy of the information or showing the application to Christie. In fact, Christie did not see the application until she was provided a copy by Respondent when notified her application was incomplete. Christie credibly testified that she had no intention of hiding her past criminal record. She was aware that any background check required to obtain a professional license would reveal her prior charges and disposition. No evidence was presented by Respondent correlating the crimes committed by Christie more than 15 years ago to the practice or ability to practice the profession of a CNA. Determinations of Ultimate Fact Christie is not guilty of attempting to procure a CNA license by misrepresentation or deceit, which is a disciplinable offense and grounds for denial of licensure under section 464.204(1)(a), Florida Statutes. Christie was not previously found guilty of a crime related to the practice, or ability to practice, the profession of a CNA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Health, Board of Nursing, enter a final order granting Petitioner's application for certification as a CNA by examination. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016. COPIES FURNISHED: Stephaney Christie Apartment No. 301 4759 Via Palm Lakes West Palm Beach, Florida 33417 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Jody Bryant Newman, EdD, EdS, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact Respondent, Barbara Jiminez, is a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0812181. At the time of the incident involved in this case, Respondent was a LPN. In 1987, Respondent was employed as a licensed practical nurse by Holly Point Manor, a nursing home located in Orange Park, Florida. Respondent was also employed as a LPN by another nursing home in the area. She was scheduled to work the 3:00 p.m. to 11:00 p.m. shift at Holly Point Manor. Holly Point Manor was a new facility and had opened in November, 1987. Only one wing of the facility was open and in December, 1987, Holly Point Manor serviced approximately 50 patients. On December 21, 1987, Respondent presented a letter of resignation to Tom Burrell, Director of Nursing at Holly Point Manor. The resignation was effective December 20, 1987. The resignation was precipitated by a verbal altercation with Liz McClain, a certified nursing assistant (CNA) at Holly Point Manor. The verbal exchange occurred on December 20, 1987. However, difficulties between Respondent and Ms. McClain had been brewing for a period of time prior to the verbal exchange of the 20th. After discussing the letter with Burrell, Respondent agreed to work on an as-needed basis at the facility. Burrell indicated that he needed Respondent to work until the beginning of the year, and therefore scheduled the Respondent for the remainder of December. Respondent was scheduled to work her usual shift on December 23, 24, and 25, 1987. She was scheduled to work with Virginia Anderson. Ms. Anderson is also a LPN. On December 23, 1987, Respondent clocked in for work at approximately 2:40 p.m. EST and clocked out the same day at 3:40 p.m. EST. On December 23, 1987, the Respondent and Virginia Anderson began work before the 3:00 p.m. change-of-shift. At shift change, both nurses went into the medication room to "take report" from Nurse Jan Sturgeon, the LPN who had worked the previous shift. A "report" at the change of shift consists of the previous shift's nurse going down the list of each resident/patient and reporting each patient's respective condition to the on-coming nurse. Part of the report includes counting the medications on the medication cart to ensure a correct count in the narcotic drawer of each cart. In this case, there were two medication carts, one for each of the on-coming nurses. These carts are locked and the nurse responsible for the cart maintains possession of the keys to that cart. Ms. Sturgeon "reported off" first to Ms. Anderson, and then to Respondent. Ms. Anderson began her rounds after receiving a report and keys to her cart from Ms. Sturgeon. Subsequently, Respondent received a report and keys to her cart from Ms. Sturgeon. At some time during Respondent's clocking in and taking report, a problem arose over the staffing assignments of the C.N.A.'s. Respondent was the nurse responsible for making the CNA assignments. However, Nurse Anderson had already created patient-care assignments for the CNAs after one C.N.A. had failed to report for work.1/ The Respondent was not satisfied with the assignments created by Anderson and either requested that they be changed or changed them herself. The request or change immediately caused a bad atmosphere between the employees on the wing. Around 3:30 p.m., Respondent telephoned Tom Burrell. Respondent told Burre11 that she couldn't take it anymore and that she was leaving. Burrell told Respondent that she was scheduled to work and if she left she would be reported for what was, in his opinion, a violation of the Nurse Practice Act. Burrell did not give Respondent permission to leave. Either before or after the call to Burrell, Nurse Eppert, the Assistant Director of Nursing, told the Respondent that in her opinion there was nothing wrong with the C.N.A. assignments. Respondent stated, "Here's my keys - - I'm leaving." Eppert informed Respondent that she had no replacement nurse and did not want her to leave. Respondent pointed out that Ms. Sturgeon was still present. Eppert reminded Respondent that Sturgeon was off duty. Eppert then told Respondent to give a report to Nurse Anderson. She refused and told Ms. Anderson to get the report from Ms. Sturgeon who had just given the report to Respondent. Since Respondent had not begun her rounds, Ms. Sturgeon's report was still valid and the narcotic count had not changed. Respondent left Holly Point Manor. The Respondent did not positively know at the time she left whether Nurse Sturgeon would remain to assist. The Respondent did not stay to determine whether Sturgeon would, in fact, cover the shift. However, the evidence did show that Ms. Sturgeon tacitly agreed to stay before Respondent left the facility. Nurse Sturgeon was not the type of person to decline to help when the need arose. After the Respondent left, Jan Sturgeon formally agreed to stay to assist with the 5 p.m. medication pass. She agreed because Ms. Eppert could not find anyone to work due to the closeness of the holidays. After the medication pass, Ms. Sturgeon left for the evening and Ms. Anderson handled the shift by herself. One nurse working the night shift alone was not an unusual event at Holly Point and occurred frequently. In fact, Ms. Anderson had worked the previous evening's shift by herself. One nurse to 50 patients meets HRS staffing requirements for nursing home facilities. However, the hardest part of the evening shift for a solo nurse was the 5:00 p.m. medication pass. Later, the facility was able to retain a replacement nurse for the 24th and 25th. It is not an acceptable nursing practice for a nurse to leave his or her employment until that nurse is sure that somebody else is going to take care of the patients the nurse is responsible for. In this case, Respondent failed to positively ensure someone would replace her. Reliance on tacit agreement by either of the other two nurses is not enough. Likewise, past practice of the facility is not enough. Reliance on tacit agreement or past practice is too amorphous to insure protection and the safety of the patients the nurse is responsible for. However, tacit agreement and past practice do go towards mitigation of any disciplinary penalty in this case. Respondent's actions by not ensuring her replacement or at least the need for such a replacement constitutes unprofessional conduct in the practice of nursing Likewise, it is not an acceptable nursing practice for an LPN to leave without giving another nurse a report on patients that that nurse would be assuming and before counting the medications on the medication cart. However, in this case, the evidence demonstrated that a replacement was there whose earlier report was still accurate and valid. Therefore, formal patient reporting and narcotics counting was not necessary or required. 2/ Respondent is not subject to discipline under this standard.
Recommendation Based upon the foregoing Proposed Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a Final Order reprimanding the Respondent's license, and requiring her to take courses in the Legal Aspects of Nursing and in Stress Management within a 6 month time period. DONE and ENTERED this 19 day of October, 1989, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of October, 1989.
The Issue Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
Findings Of Fact Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined: Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock) Injury to and Standard of Care Provided Myrtle White On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer) After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White) Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer) At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock) Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White) Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez) Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer) Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White) At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White) It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White. Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue. As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah) Shortage of One Nurse on Night Shift During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah) During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2) The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook) The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook) Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock) The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock) The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED. DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
