00-002006 Department Of Health, Board Of Nursing vs. Shelba A. Schuman Stevens Status: Closed Recommended Order on Tuesday, October 10, 2000.

Summary: Respondent acted unprofessionally when she failed to assist a patient and removed pages from the patient`s chart.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-2006

)

SHELBA A. SCHUMAN STEVENS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 13,

2000, in Jacksonville, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Room 3231A

Tallahassee, Florida 32308

For Respondent: Thomas A. Delegal, III, Esquire

Randy Rogers, Esquire

Delegal & Merritt, P.A.

424 East Monroe Street

Jacksonville, Florida 32202-2837

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

On or about December 2, 1998, Petitioner Department of

Health, Board of Nursing (Petitioner) filed an Administrative

Complaint against Respondent Shelba A. Schuman Stevens

(Respondent). Said complaint alleged that Respondent was guilty

of violating Section 464.018(1)(h), Florida Statutes, and Rules

64B9-8.005(2) and 64B9-8.005(12), Florida Administrative Code.

On or about February 23, 2000, Respondent filed an Election

of Rights Form and an Answer to Administrative Complaint with

Petitioner. In these documents, Respondent denied the

allegations in the Administrative Complaint and requested a

formal administrative hearing.

Petitioner referred this matter t o the Division of

Administrative Hearings on May 11, 2000. On May 17, 2000, the

Division of Administrative Hearings issued an Initial Order.

The parties filed a Response to Initial Order on May 22, 2000.

The undersigned issued a Notice of Hearing dated May 30, 2000,

scheduling the case for formal hearing on July 13, 2000.

On June 7, 2000, the parties filed a Joint Motion to

Expedite Discovery. This motion was granted by Order dated

June 8, 2000.

On June 27, 2000, Respondent filed a Motion for Pr otective

Order. In this motion, Respondent asserted her right to refuse

to answer a request for admissions, interrogatories, and a

request for production on grounds that such responses might

incriminate her, citing State ex rel Vining v. Florida Real

Estate Commission , 281 So. 2d 487 (Fla. 1973) and Department of

Professional Regulation v. Echlov , 14 F.A.L.R. 3983 (1992).

Petitioner did not file a motion to enforce the pending

discovery requests.

On July 5, 2000, the parties filed a Joint Prehearing

Stipulation.

During the hearing, Petitioner presented the testimony of

six witnesses. One of Petitioner's witnesses, Dr. Stiehl, was

qualified and accepted as an expert in nursing and standards of

nursing practice. Petitioner's Exhibits P1-P5, P9-13, and a

portion of P14 were accepted into evidence. Petitioner's

Exhibits P6-P8 and the Florida Protective Service System Report

attached to P-14 are hereby accepted into evidence to the extent

that they do not violate Section 120.57(1)(c), Florida Statutes.

Respondent testified on her own behalf. She offered

Respondent's Exhibits R1 and R2, which are hereby accepted into

evidence to the extent they do not violate Section 120.57(1)(c),

Florida Statutes.

The court reporter did not file a copy of the tran script

until September 1, 2000. The parties filed their Proposed

Findings of Fact and Conclusions of Law on September 11, 2000.

FINDINGS OF FACT

1. Petitioner is the agency charged with the regulatory

and prosecutorial duties related to nursing practice in Florida.

2. 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).

3. On April 9, 1997, Respondent w orked 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. When informed that she was being terminated,

Respondent refused to sign the disciplinary form. She was asked

to leave the premises immediately.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

23. Section 464.018(1)(h), Florida Statutes, makes it a

violation of the Nurse Practice Act for a licensee to engage in

"unprofessional conduct, which shall include, but not be limited

to, any departure from, or the failure to conform to, the

minimal standards of acceptable and prevailing nursing

practice . . . ."

24. Rule 64B9-8.005, Florida Administrative Code, defines

unprofessional conduct in relevant part as follows:

(2) Administering medications or treatment

in a negligent manner; or

* * *

(12) Acts of negligence, gross negligence,

either by omission or commission . . . .

25. Petitioner has the burden of proving by clear and

convincing evidence that Respondent violated the above-

referenced statute and rules when she failed to assist a patient

who was asking for assistance and when she removed and/or copied

pages from a patient's chart. Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

26. In this case, Petitioner has met its burden.

Respondent had a duty to fully assess and assist T.C. even if he

was not in "acute" respiratory distress. Respondent's failure

to perform a proper assessment to determine why he felt he was

in distress was negligent. Her failure to properly assess how

well T.C. was breathing was grossly negligent. At the very

least, she should have recorded his vital signs and noted the

nature of his respirations by listening to his chest. Clear and

convincing evidence indicates that Respondent acted

unprofessionally in this regard.

27. Respondent violated acceptable nursing practice by

removing and/or copying pages from T.C.'s chart. The chart is a

legal document; it is a violation of patient confidentiality to

remove even a copy of a document from a chart without the

patient's consent. Respondent's conduct in this regard clearly

and convincingly constitutes unprofessional conduct.

28. Rule 64B9-8.006, Florida Administrative Code, details

Petitioner's disciplinary guidelines and sets forth the range of

penalties as well as the aggravating and mitigating

circumstances.

29. Rule 64B9-8.006(3)(i), Florida Administrative Code,

specifies the penalty for unprofessional conduct in the delivery

of nursing services to be a fine ranging from $250 to $1,000

plus from one year of probation to suspension of license until

proven safe to practice, followed by probation with conditions.

30. Multiple counts of violations of a statute and rules

are grounds for enhancement of penalties here. Rule 64B9-

8.006(2), Florida Administrative Code. Additionally, clear and

convincing evidence supports the aggravating circumstance of

Respondent's failure to make efforts at rehabilitation. Rule

64B9-8.006(4), Florida Administrative Code.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.