01-001282PL Department Of Health, Board Of Nursing vs. Beverly Cooper Status: Closed Recommended Order on Monday, August 27, 2001.

Summary: Discipline required when nurse hits patient.

OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 01-1282PL

)

BEVERLY COOPER, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 29, 2001, a formal administrative hearing in this

case was held by videoconference in Tallahassee and Tampa,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner : Michael J. Kapperman, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent : No Appearance

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations set forth

in the Administrative Complaint filed against the Respondent are

correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 24, 2001, the Department of Health, Board of

Nursing (Petitioner) filed an Administrative Complaint against

Beverly Cooper (Respondent) alleging that while working at a

nursing home, the Respondent struck a resident at the facility

with a closed fist. The Respondent filed a request for formal

hearing. The request was forwarded to the Division of

Administrative Hearings, which scheduled the proceeding.

During the hearing, the Petitioner presented the testimony

of four witnesses and had Exhibits numbered 1-4 admitted into

evidence. The Respondent did not attend the hearing.

A Transcript of the hearing was filed on July 11, 2001.

The Petitioner filed a Proposed Recommended Order that was

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility for regulation and discipline of nursing practice

within the State of Florida.

2. The Respondent is a registered nurse holding Florida

license number 2551692.

3. On June 1, 2000, the Respondent was employed as a

registered nurse at Harborside Healthcare Nursing Home.

4. The Respondent was assigned to provide patient care

including administration of medications to residents.

5. L. M. was a resident of Harborside Healthcare. L. M.

was a diabetic and required insulin injection as a part of her

treatment for the diabetes.

6. On June 1, 2000, the Respondent attempted to administer

an insulin injection to L. M. Two Certified Nursing Assistants

were present in L. M.'s room at the time of the injection.

7. When the Respondent began the injection, L. M. "jumped"

or "jerked," and the Respondent struck L. M.'s arm with the

Respondent's closed fist.

8. Both of the nursing assistants reported the incident to

the facility's Director of Nursing. The Director of Nursing

investigated the incident and discussed it with the Respondent,

who initially admitted the striking although she later denied

the event.

9. The Respondent was immediately suspended from her

employment and was subsequently terminated.

10. Minimal standards of professional nursing practice

prohibit the striking of a patient.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

12. The Petitioner has the burden of proving by clear and

convincing evidence the allegations against the Respondent.

Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case,

the burden has been met.

13. The evidence establishes that on June 1, 2000, the

Respondent struck a patient under her care. There was no

evidence presented which could offer an explanation or

justification for the Respondent's action.

14. Section 464.018, Florida Statutes, sets forth the

grounds for disciplinary action by the Board of Nursing against

a licensed registered nurse.

15. Section 464.018(1)(h), Florida Statutes, prohibits

"[u ]nprofessional 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."

16. Rule 64B9-8.005(13), Florida Administrative Code,

prohibits "[f ]ailure to conform to the minimal standards of

acceptable prevailing nursing practice, regardless of whether or

not actual injury to a patient was sustained."

17. In striking the patient, the Respondent departed from

minimal standards of acceptable and prevailing nursing practice.

18. Rule 64B9-8.006, Florida Administrative Code, provides

guidelines for the determination of appropriate discipline

imposed upon a violation of the disciplinary statute.

19. For a violation of Section 464.018(1)(h), Florida

Statutes, the rule provides a penalty range from reprimand to

suspension until proof of safety to practice, followed by

probation with conditions and appropriate continuing education

courses, and an administrative fine of $250 to $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Health, Board of

Nursing, enter a Final Order imposing an administrative fine of

$1,000, and suspending the Respondent's licensure until such time

as the Respondent provides to the Board proof of her ability to

practice nursing safely, after which the Respondent shall be

placed on probation for a one-year period under such conditions

as the Board deems appropriate.

DONE AND ENTERED this 27th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 27th day of August, 2001.

COPIES FURNISHED :

Beverly Cooper

2801 Belle Chase Circle

Tampa, Florida 33634

Michael J. Kapperman, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

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

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

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

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.