01-000369PL Department Of Health, Board Of Nursing vs. Lillie Ferry Status: Closed Recommended Order on Friday, June 1, 2001.

Summary: Nurse with psychotic episode is unable to practice nursing in violation of statute and should have license suspended. Nurse neither surrendered license nor appeared at hearing and should be fined $250 for administrative costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 01- 0369PL

)

LILLIE FERRY, )

)

Respondent. )

_ )

RECOMMENDED ORDER

Adminis trative Law Judge Daniel Manry conducted the

administrative hearing of this case on April 4, 2001, in

St. Petersburg, Florida.

APPEARANCES

For Petitioner : Reginald D. Dixon, Esquire

Agency for Health Care Administration

Office of the General Counsel

Post Office Box 14229, Mail Stop No. 39

Tallahassee, Florida 32317-4229

For Respondent : No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

Section 464.018(1)(j), Florida Statutes (2000), by being

unable to practice nursing with reasonable skill and safety to

patients by reason of illness or as a result of any mental

condition, and, if so, what discipline should be imposed

pursuant to Florida Administrative Code Rule 64B9-8.006(3) and

(4). (All chapter and section references are to Florida

Statutes (2000), unless otherwise stated. Unless otherwise

stated, all references to rules are to rules promulgated in

the Florida Administrative Code in effect on the date of this

Recommended Order.)

PRELIMINARY STATEMENT

On November 21, 2000, Petitioner filed an Administrative

Complaint against Respondent's license to practice nursing.

Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of

eight witnesses and submitted nine exhibits for admission in

evidence. Respondent did not appear at the hearing and did

not submit any testimony or exhibits for admission in

evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the Transcript of the

hearing filed on April 26, 2001. Petitioner timely filed its

Proposed Recommended Order (PRO) on April 30, 2000.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of nursing pursuant to Chapters 20,

456, and 464. Respondent is licensed as a registered nurse in

the State of Florida pursuant to license number RN 3379152.

2. In April 2000, Respondent was employed by Advance

Nursing Solutions (" ANS"), a nurse-staffing agency. ANS

assigned Respondent to provide home health nursing care to

patient D.B.

3. D.B. was four years old and depended on two tubes for

oxygen and nourishment. A tracheotomy tube provided oxygen to

D.B., and a "G-tube" provided him with food.

4. D.B. required constant in-home monitoring by nurses.

Respondent worked the night shift at the patient's home.

5. On April 7, 2000, Judy Gonyea, L.P.N., observed

Respondent wearing several layers of clothing. The clothing

included pants, a wool skirt, a robe, a vest, and a blazer.

The weather outside was not cold, and it was warm inside the

patient's home.

6. On the same day, Respondent informed Nurse Gonyea

that D.B.'s pulse oximetry, or level of oxygen saturation, had

increased to 157 because D.B. had placed the oximetry probe on

the foot of a "shiver doll." The shiver doll was a vibrating

stuffed clown that sang "Happy Birthday."

7. The highest possible pulse oximetry level is 100.

The oximetry probe would not read any oximetry level on an

inanimate object such as a doll.

8. On April 8, 2000, Respondent appeared for her shift

dressed in ripped shorts and a T-shirt. She appeared to Nurse

Gonyea to be in disarray.

9. Respondent's behavior on April 8, 2000, prevented

Nurse Gonyea from apprising Respondent of the patient's

condition ("giving report"). Giving report is important

because the oncoming nurse needs to be aware of the patient's

condition so that the oncoming nurse knows what to watch for

during his or her shift.

10. Respondent refused to accept the report from Nurse

Gonyea on April 8, 2000. Respondent jumped around, blew

bubbles, and did not pay attention to Nurse Gonyea when Nurse

Gonyea attempted to give the report to Respondent.

11. Nurse Gonyea asked D.B.'s grandmother, if she wanted

Nurse Gonyea to stay until another nurse could be assigned.

The grandmother stated that would not be necessary. The

grandmother later found Respondent asleep on the floor of

D.B.'s room.

12. Later on April 8, 2000, the grandmothe r became

concerned that Respondent had been in the bathroom for quite a

while. The grandmother walked into the bathroom and observed

the Respondent dipping Respondent's stethoscope into the

toilet. Respondent explained that she was "fishing" in the

toilet. The grandmother observed the remains of feces in the

toilet.

13. In a later episode on April 8, 2000, the grandmother

found Respondent lying on top of D.B. The grandmother had to

physically remove Respondent from D.B.

14. Respondent resisted the grandmother's attempts to

remove her from D.B. Respondent claimed that D.B. did not

need oxygen or anything else.

15. The grandmother forced Respondent out of the house

onto the back porch. Respondent began beating on the back

door of the house with a mop. The grandmother called 911 for

help.

16. Two Pinellas County Sheriff's deputies responded to

the 911 call. They were Deputy Bernard Sinkiewicz and Deputy

Anthony Larusso.

17. Respondent did not recognize the deputies as law

enforcement officers even though both deputies were fully

uniformed. Respondent babbled, spoke in "baby talk," and

recited nursery rhymes.

18. Deputy Sinkiewicz contacted Respondent's husband and

asked him to assist the deputies in their attempt to calm

Respondent down and remove her from the residence.

Respondent's husband arrived at the patient's residence and

attempted to help the deputies. Respondent did not appear to

recognize her husband, referring to him as "Tricky Dicky I"

and "Tricky Dicky II."

19. Respondent re sisted the deputies' attempts to remove

her from the residence. The deputies had to physically

restrain Respondent with handcuffs.

20. Respondent was placed in the Pinellas Enrichment

Mental Health Services (" PEMHS"). On April 11, 2000,

Respondent telephoned Errol Dean, the Administrator for ANS.

21. The Respondent told Mr. Dean that "she didn't

understand what was going on, what was the problem, that she

figured it was a big misunderstanding by all parties

concerned. . . ." Respondent indicated that she was "fine"

and that "all that stuff was just being made up" and that "she

was trying to talk to D.B. in adult language, not baby

language" and that her ex-husband or "someone else had tapped

her phone line to listen to her conversation from across the

street."

22. On April 12, 2000, Respondent met with Mr. Dean at

the ANS office. Respondent re-iterated to Mr. Dean that the

events of April 8, 2000, were "a big misunderstanding, that

everyone knew the truth that she was a good nurse and that she

couldn't explain as to why the stories were being made up."

23. In September 2000, at Petitioner's request ,

Dr. David Myers, an expert in the treatment and monitoring of

health care practitioners, evaluated Respondent for fitness to

practice. Dr. Myers initially concluded that Respondent's

problems were psychiatric as opposed to chemically dependent

and referred Respondent to Drs. James E. Adams and Peter R.

Vagg for further evaluation.

24. On or about September 13, 2000, Dr. Adams, an expert

in the psychiatric treatment, monitoring, and care of health

care practitioners, evaluated Respondent for fitness to

practice. Respondent stated during the patient history

interview that she had been involuntarily committed pursuant

to the Baker Act on three separate occasions. Respondent did

not believe that she had any psychiatric illness and that

everything was a misunderstanding. Dr. Adams was concerned

with Respondent's lack of insight.

25. Dr. Adams concluded that Respondent had experienced

a psychotic episode. Dr. Adams opined that Respondent was not

in contact with reality in an appropriate way and was unable

to understand, had no insight, and was psychotic in her

thinking. Dr. Adams further concluded that it was not safe

for Respondent to practice nursing with reasonable skill and

safety.

26. On or about September 13, 2000, Dr. Vagg, an expert

in the psychological treatment and monitoring of health care

practitioners, evaluated Respondent for fitness to practice.

Dr. Vagg reviewed test results that had been performed by

Health Care Connection staff. Dr. Vagg found the test results

to be invalid based on the high incidence of responses that

were very socially desirable.

27. Dr. Vagg administered a revised Wexal Memory Scale

test to Respondent. The Wexal Memory Scale tests the level of

memory skills of Respondent and how well she remembered

material, both short-term and long-term.

28. Respondent scored well on the short-term memory

components of the Wexal Memory Scale but had difficulty with

the delayed recall portion of the test. Her score on the

delayed recall portion was such that Dr. Vagg had a concern

that Respondent would not be able to retain information for

very long, which could affect her ability to practice as a

nurse.

29. Dr. Vagg also administered the Rorschach test to

Respondent. The Rorschach test, commonly referred to as the

"inkblot test," tests how a person solves problems by having

the subject look at a series of inkblots and having the

subject identify what the inkblot looks like. The Rorschach

tests the subject's cognitive processes.

30. Respondent’s Rorschach score indicated that

Respondent is someone who sees the world very differently than

most people. The Respondent did not understand conventional

society and was not easily able to restrict herself to

behaving in normal ways. The Respondent has a lot of trouble

understanding what reality is and what fantasy is. Dr. Vagg

concluded that Respondent was unable to practice nursing

without psychotropic medications, counseling with a

psychiatrist, and supervision.

31. Dr. Myers concluded that Respondent cannot practice

nursing with reasonable skill and safety without monitoring.

Dr. Myers based his opinion on his initial evaluation and the

evaluations and reports from Drs. Adams and Vagg. Respondent

is not currently able to practice nursing with reasonable

skill and safety to patients.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding.

Sections 120.57(1) and 120.68(8), Florida Statutes (2000).

(All section references are to Florida Statutes (2000) unless

otherwise stated.) The parties received adequate notice of

the administrative hearing.

33. The burden of proof is on Petitioner. Petitioner

must prove the material allegations by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

34. Petitioner satisfied its burden of proof.

Petitioner showed by clear and convincing evidence that

Respondent violated Section 464.018(1)(j) by being unable to

practice nursing with reasonable skill and safety to patients

by reason of illness or as a result of any mental condition.

35. Section 464.018(1)(j), authorizes the Board of

Nursing to discipline Respondent for violating the statute.

Rule 64B9-8.006(3) and (4) prescribes the range of discipline.

36. Rule 64B9-8.006(3), provides the following penalty

range for violations of 464.018(1)(j):

"[f ] ine from $100 - $1000 plus referral to

IPN and stayed suspension under IPN or

probation with conditions. . . [n ] ot in

IPN . . . [s ] uspend for time certain to

show continuous sobriety and until proof of

safety to practice, fine from $250 - $1,000

prior to reinstatement followed by

probation with conditions or IPN

participation."

37. Rule 64B9- 8.006(4) provides that the Board of

Nursing may deviate from the disciplinary guidelines set forth

in Rule 64B9-8.006(3) based on aggravating or mitigating

circumstances. Several factors may be considered as

aggravating circumstances, including but not limited to, any

danger to the public.

38. Petitioner showed by clear and convincing evidence

that several aggravating circumstances are present in this

case .Respondent's conduct placed a very fragile patient in

danger. Respondent has no insight into her problem.

Respondent can be violent and abusive.

RECOMMENDATION

Based upon the foregoing findings of facts and

conclusions of law, it is

RECOMMENDED that the Board of Nursing enter a final order

finding Respondent guilty of violating Section 464.018(1)(j),

reprimanding Respondent, suspending Respondent's license for

one year, imposing a fine of $250, and imposing administrative

costs of $2,626.46. The final order should provide that,

prior to returning to the practice of nursing, Respondent

shall pay the fine and costs and shall submit to an evaluation

by a psychiatrist or psychologist approved by the Intervention

Project for Nurses ( IPN). That evaluation must specifically

state that the Respondent is able to practice nursing with

reasonable skill and safely to patients and in accordance with

the laws of Florida. If the evaluation indicates that

Respondent is able to practice nursing with reasonable skill

and safety to patients and in accordance with the laws of

Florida, the suspension shall be lifted and Respondent allowed

to practice nursing under the monitoring and supervision of

IPN. If IPN recommends further treatment, Respondent shall

comply with those recommendations prior to resuming the

practice of nursing in the State of Florida.

DONE AND ENTERED this 1st day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June, 2001.

COPIES FURNISHED :

Reginald D. Dixon, Esquire

Agency for Health Care Administration

Office of the General Counsel

Post Office Box 14229, Mail Stop No. 39

Tallahassee, Florida 32317-4229

Lillie Ferry

101 131st Avenue, East

Madeira Beach, Florida 33708

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

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.