00-003430PL Department Of Health, Board Of Nursing vs. Fannie Mae Minson Hudson, R.N. Status: Closed Recommended Order on Wednesday, January 17, 2001.

Summary: Respondent acted unprofessionally when she directed subordinate nurse to write telephone orders discontinuing prescription medicines without prior approval from the doctor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-3430PL

)

FANNIE MAE MINSON HUDSON, R.N., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

This cause came on for formal hearing on December 7, 2000,

in Daytona Beach, Florida, before the Division of Administrative

Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holtz, Esquire

Williams and Holtz, P.A.

211 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Reginald Moore, Esquire

559 Dr. Mary McLeod Bethune Boulevard

Suite 1

Daytona Beach, Florida 32115

STATEMENT OF THE ISSUES

This issues are whether Respondent violated Section

464.018(1)(h), Florida Statutes, and if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On or about October 4, 1999, Petitioner Department of

Health, Board of Nursing (Petitioner), filed an Administrative

Complaint against Respondent Fannie Mae Minson Hudson, R.N.

(Respondent). Said complaint alleged that Respondent had

violated Section 464.018(l)(h), Florida Statutes, by directing a

change in medical treatment for two patients without prior

approval of a physician.

On November 23, 1999, Respondent requested a formal hearing

to contest allegations set forth in the above-referenced

complaint. Petitioner referred this request to the Division of

Administrative Hearings on August 14, 2000.

The parties filed a Joint Response to Revised Initial Order

on August 21, 2000. A Notice of Hearing dated August 21, 2000,

scheduled a hearing for October 23 through 24, 2000.

O n September 11, 2000, Petitioner filed an unopposed Motion

for Continuance and for Rescheduling of Final Hearing. An order

dated September 14, 2000, granted this motion and rescheduled

the hearing for November 14 through 15, 2000.

On October 25, 2000, Re spondent filed an unopposed Motion

for Continuance and for Rescheduling of Final Hearing. An order

dated October 26, 2000, granted this motion and rescheduled the

hearing for December 7 through 8, 2000.

During the hearing, Petitioner presented the testim ony of

seven witnesses and offered Petitioner's Exhibits P1-P8 and

P 11, which were accepted into evidence. After reviewing the

record, Petitioner's Exhibits P9 and P10 are hereby accepted

into the record.

Respondent testified on her own behalf and p resented the

testimony of five additional witnesses. Respondent's Exhibits

R1-R3 were accepted into evidence.

The Transcript of the proceeding was filed on December 26,

2000. Petitioner filed its Proposed Recommended Order on

January 5, 2001. Respondent did not file proposed findings of

fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner is the agency charged with regulating the

practice of nursing pursuant to Section 20.43(m), Florida

Statutes, and Chapters 455 and 464, Florida Statutes.

2. Respondent is, and at all times material hereto, a

licensed registered nurse in the state of Florida. Her license

number is RN 1948882.

3. Emory L. Bennet Veterans Nursing Home (the facility) is

located in Daytona Beach, Florida. At all times relevant here,

the facility employed Respondent as its Executive Director of

Nursing.

4. At all times material to this case, the facility had a

written policy regarding the recording and implementation of

verbal orders given by doctors over the telephone. The policy

sets forth the following procedures:

Verbal orders, including telephone orders,

for medications and treatments are taken

only by a registered nurse or other licensed

or registered healthcare specialists in

their own area of specialty and are

immediately recorded, dated, and signed by

the person receiving the order.

Telephone and verbal orders are written in

triplicate:

1. Original copy to nursing office where it

is promptly faxed, mailed or hand carried to

physician for signature.

2. Second copy remains on chart in

designated area until signed copy is

returned.

3. Third copy is sent to pharmacy for

inclusion in the following months [sic]

printed doctor's orders.

*All telephone and verbal orders are to be

written on physician's order sheet by person

receiving order.

*All telephone and verbal orders by

consulting physicians must be countersigned

by attending physician.

*After receiving telephone or verbal order,

that order is to be noted.

*All telephone and verbal orders are signed

by the ordering physician within 48 hours.

5. The facility's telephone/verbal order form, in

triplicate, includes space for the following information:

(a) facility name and address; (b) patient name, admission

number and room number; (c) attending physician name; (d) date

and time of order; (e) date order discontinued; (f) order;

(g) signature of nurse receiving order; (h) signature of

physician; (i) date of physician signature; (j) initials of

nurse notating orders on various documents in patient's medical

chart, including but not limited to, nurse's notes, patient care

plan, doctor's order sheet, and medication administration

record; (k) initials of nurse sending copy of order to pharmacy;

and (l) date, time and signature of nurse communicating or

following through with order.

6. At all times material here, the facility had an "at-

risk committee" (committee) that met at least once a week. The

purpose of the committee was to review and make recommendations

on patient care issues, including but not limited to, weight

loss, bedsores, and falls.

7. For patients considered to be "at risk," the

committee's recommendations were supposed to be recorded on a

"Residents at Risk" form. This form listed the following: (a)

patient's room number; (b) patient's name; (c) problem/concern;

(d) recommended intervention; (e) person responsible; (f) date;

and (g) follow-up.

8. After the committee made a recommendation that required

physician approval, the nurse following through with the

recommendation was supposed to contact the doctor by telephone

or facsimile transmission, seeking his or her approval. Changes

in medication could not be implemented without prior approval

from the doctor. If the nurse received a physician's approval

in a verbal order, the nurse was supposed to fill out and sign a

telephone/verbal order form. The nurse would then implement the

order herself or delegate that responsibility to a floor nurse.

If a second nurse implemented the verbal order, she would add

her initials and signature in the appropriate places, indicating

the date and time of each action taken. The doctor would sign

the telephone/verbal order form on his next visit to the

facility.

9. Respondent was the chairperson of the committee at all

times relevant here. Other members of the committee included

the following: nursing supervisor for the seven a.m. to three

p.m. shift, consultant dietitian, food service director,

rehabilitative/restorative supervisor and therapist, care plan

coordinator, infection control nurse, and social service

director. Occasionally, the facility's pharmacist and

administrator participated in the committee meetings.

10. Pursuant to the facility's policy, a telephone order

form was to be filled out immediately after and not before

receipt of a verbal order from the doctor. Despite this policy,

the committee, before and during Respondent's tenure as

Executive Director of Nursing, routinely recorded its

recommendations for at-risk patients on a telephone/verbal order

form as well as the "Residents at Risk" form.

11. On March 23, 1999, Respondent conducted a committee

meeting. In addition to Respondent, the following people

attended the meeting: (a) Joan Locke, nursing supervisor of the

seven a.m. to three p.m. shift; (b) Lee O'Malley, therapist; (c)

Sandra F. Law, infection control nurse; (d) Gersom Marchena,

social services director; and (e) Debra Weaver, listed as other.

12. During the meeting, Respondent filled out the

"Residents at Risk" form for seven patients, including C.K. She

did not list W.A. as an at-risk patient.

13. The committee discussed, among other things, standing

physician orders for Ativan to be administered to C.K. and for

Vistaril to be administered to W.A., both prescriptions on an as

needed basis. The committee was concerned due to C.K.'s history

of falls and because W.A. appeared to be overly sedated.

14. Ativan and Vistaril are psychotropic medications.

Respondent expressed her opinion that the three p.m. to eleven

p.m. nursing staff was lazy and using the medicines as chemical

restraints for C.K. and W.A. Respondent then directed her

subordinate nursing supervisor, Joan Locke, to fill out

telephone/verbal order forms discontinuing Ativan for C.K. and

Vistaril for W.A. Respondent knew or should have known that the

telephone/verbal order forms should not have been completed

until after the doctor verbally approved the committee's

recommendations.

15. Following Respondent's instructions, Ms. Locke filled

out the telephone/verbal order forms to discontinue the above-

reference medicines for C.K. and W.A. She did not sign the

forms as having received the orders from the doctor. Instead,

Ms. Locke gave the telephone/verbal order forms to her

subordinate, Barbara Majors, a licensed practical nurse. Ms.

Locke instructed Ms. Majors to follow through with the orders.

16. Ms. Majors incorrectly assumed that a doctor had

verbally approved the changes in medication for C.K. and W.A.

Ms. Majors then signed the forms on the lines for the signature

of the nurse receiving the orders. Ms. Majors proceeded to make

the proper notations in the patients' charts, to send copies of

the orders to the pharmacy, and to remove the medicines from the

patients' respective drawers in the medication cart.

17. When the shift changed at three p.m. on March 23,

1999, the nursing supervisor for the three p.m. to eleven p.m.

shift was Mary Lou McMaster, R.N. Ms. McMaster questioned the

change in medication for C.K. and W.A. Ms. McMaster was

unsuccessful in her attempt to contact Dr. Timothy Johnston, the

facility's medical director, to verify the orders. Because she

was unable to contact Dr. Johnston, Ms. McMaster contacted the

facility's pharmacist, Rhomell Calara.

18. Later in the evening of March 23, 1999, Mr. Calara

contacted Dr. Johnston by telephone. During the conversation,

Dr. Johnston made it clear that he had not approved orders to

discontinue medicines for C.K. and W.A. and did not intend to do

so. As a result of this telephone call, the medicines were not

discontinued.

19. The next morning, March 24, 1999, in a meeting of

department heads, Mr. Calara questioned Respondent about the

telephone/verbal orders. Respondent did not attempt to explain

that the telephone/verbal orders were written as the committee's

recommendation. Instead, Respondent stated that she was going

to have the medications discontinued again because the afternoon

shift was using them as chemical restraints and the patients

were too sedated during the day.

20. On the morning of March 25, 1999, Dr. Johnston

attended the facility's meeting of department heads. During the

meeting, Dr. Johnston questioned Respondent regarding the

committee's procedures for implementing physician orders. When

Dr. Johnston asked Respondent if she had given a direct order to

discontinue the medications or a recommendation to discontinue

them, Respondent got up and left the meeting. Respondent did

not attempt to explain that the committee's recommendations were

written as telephone/verbal orders as a result of

miscommunication or other inadvertent mistake.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 455.621, Florida

Statutes.

22. Petitioner has the burden of proving that Respondent

violated Section 464.018(1)(h), Florida Statutes, by clear and

convincing evidence. Ferris v. Turlington 510 So. 2d 292 (Fla.

1st DCA 1987).

23. Section 464.018, Florida Statutes, provides as follows

in pertinent part:

(1) The following acts shall be grounds

for disciplinary action set forth in this

section:

* * *

(h) 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, in which case

actual injury need not be established.

24. Nurses may not change a doctor's prescribed

medications for patients without the doctor's prior approval.

Writing telephone/verbal orders to discontinue prescriptions

without that approval presents a serious risk to patient safety.

25. The nursing profession recognizes the inherent danger

in telephone/verbal orders because nurses routinely execute the

orders before the doctor signs them. Where one nurse implements

a telephone/verbal order written by another nurse, there is no

built-in mechanism for the doctor to see the order and prevent

the implementing nurse from carrying out an improper and

possibly dangerous order. Accordingly, the nursing profession

mandates that nurses never write "draft" or "proposed"

telephone/verbal orders. In other words, no order should be

written until the doctor has spoken.

26. The facility's policy required the nursing staff to

secure the attending physician's verbal approval before writing

a telephone/verbal order. In light of that policy, it is

understandable how a subordinate nurse like Ms. Majors would

assume that Dr. Johnson had given his approval before the orders

were written and before she began implementing them.

27. There is clear and convincing evidence that

Respondent's actions constituted a departure from the minimal

standards of acceptable and prevailing nursing practice.

Respondent knew or should have known about the facility's policy

regarding telephone/verbal orders. She knew or should have

known that her direction to Joan Locke to write the orders for

C.K. and W.A. without prior approval from Dr. Johnston was

contrary to that policy. As the Executive Director of Nursing,

Respondent was responsible for enforcing the facility's written

policy and the standards of her profession. This is true

regardless of the common practice of the committee before and

during Respondent's tenure as chairman of the committee.

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

forth the disciplinary guidelines, including aggravating and

mitigating circumstances. The suggested penalty for violation

of Section 464.018(1)(h), Florida Statutes, where such violation

involves administrative duties such as charting or supervision

of others, is as follows: (a) a fine ranging between $250 and

$1,000; (b) probation ranging between six months and two years

under conditions specified by Petitioner; and (c) required

continuing education courses as determined by Petitioner. Rule

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

29. Rule 64B9-8.006(4)(b), Florida Administrative Codes,

states as follows:

(b) Circumstances which may be considered

for purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

1. The severity of the offense.

2. The danger to the public.

3. The number of repetitions of offenses.

4. Previous disciplinary action against the

licensee in this or any other jurisdiction.

5. The length of time the licensee has

practiced.

6. The actual damage, physical or

otherwise, caused by the violation.

7. The deterrent effect of the penalty

imposed.

8. Any efforts at rehabilitation.

9. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations.

10. Cost of treatment.

11. Cost of disciplinary proceedings.

30. Respondent's actions created a danger to the public.

However, her actions did not cause any actual damage, physical

or otherwise.

31. Respondent repeatedly violated Section 464.018(1)(h),

Florida Statues. She made no effort to correct the situation

when given an opportunity to do so.

32. Respondent has practiced nursing under a Florida

license since 1988. She has no prior disciplinary history.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order fining Respondent $500,

placing her on one year's probation with conditions, and

requiring her to take appropriate continuing education courses.

DONE AND ENTERED this 17th day of January, 2001, 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 17th day of January, 2001.

COPIES FURNISHED:

John O. Williams, Esquire

Maureen L. Holz, Esquire

Williams and Holz, P.A.

211 East Virginia Street

Tallahassee, Florida 32301

Reginald Moore, Esquire

559 Dr. Mary McLeod Bethune Boulevard

Suite 1

Daytona Beach, Florida 32115

Ruth R. Stiehl, Ph.D., R.N., Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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.