01-001526PL Department Of Health, Board Of Nursing vs. Grace M. Hodgson, R.N. Status: Closed Recommended Order on Wednesday, October 3, 2001.

Summary: Respondent inappropriately handled a pediatric patient whose IV had come out and needed reinsertion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

)

Petitioner , )

)

vs. ) Case No. 01- 1526PL

)

GRACE M. HODGSON , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference in Tallahassee on August 14, 2001, with

the parties appearing from Miami, Florida, before J. D. Parrish,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Reginald D. Dixon, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39

Tallahassee, Florida 32317-4229

For Respondent : Peter Loblack, Esquire

Law Office of Peter Loblack, P. A.

Office Parks at the California Club

1031 Ives Dairy Road, Suite 132

Miami, Florida 33179

STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged in

the Amended Administrative Complaint and, if so, what penalty

should be imposed .

PRELIMINARY STATEMENT

On September 7, 1999, the Department of Health on behalf of

the Agency for Health Care Administration (Petitioner or

Department) filed an Administrative Complaint against the

Respondent, Grace M. Hodgson. Thereafter the Respondent timely

filed an Election of Rights and the matter was forwarded to the

Division of Administrative Hearings for formal proceedings on

April 23, 2001. The basis for the delay between the time the

complaint was entered and the date on the Respondent's request

for hearing (March 28, 2001) is not addressed by the record in

this cause.

On May 14, 2001, an order was entered to grant the

Petitioner's request to correct an error on the Administrative

Complaint. Thus the case proceeded to hearing on the Amended

Administrative Complaint with a corrected date.

At the hearing, the Petitioner presented testimony from

Lauren Center, the Director of Human Resources for North Shore

Medical Center; Tamy Ziaukas, a registered nurse formerly

employed at North Shore Medical Center; Sandia Mezadieu, a nurse

employed by North Shore Medical Center on September 29, 1998;

Raymond Santiago, a registered nurse employed by North Shore

Medical Center on September 29, 1998, as a nursing coordinator/

supervisor; Valerie Mallette , a former director of oncology and

medical surgical services for North Shore Medical Center; and

Joeann Moncur , former nurse manager on the pediatric medical

surgical floor at North Shore Medical Center. Petitioner's

Exhibits numbered 2, 3, 4, 5, and 8 were admitted into evidence.

The Respondent testified in her own behalf. Respondent's

Exhibit 1 was received in evidence.

The transcript in this case was filed with the Division of

Administrative Hearings on August 22, 2001. Thereafter the

Petitioner timely filed a Proposed Recommended Order that has

been considered in the preparation of this order. The

Respondent did not timely file a proposed order and did not

timely seek additional time to file a Proposed Recommended

Order. The Respondent's Motion to Waive Submission of All

Proposed Orders was denied.

FINDINGS OF FACT

1. The Department is the state agency charged with the

responsibility of regulating the practice of nursing in the

State of Florida.

2. At all times material the allegations of this case, the

Respondent was a licensed registered nurse, license number RN

3254372.

3. At all times material to the allegations of this case

the Respondent was employed at the North Shore Medical Center

located in Miami, Florida. The Respondent was assigned to the

pediatric floor and was to provide nursing services to patients

on that floor during her duty hours.

4. Tamy Ziaukas was also employed at North Shore and had

been there prior to the Respondent's employment. Ms. Ziaukas

was designated the senior nurse for the pediatric floor from

11:00 p.m. until 7:00 a.m. As such, she helped coordinate the

work for the nurses assigned to the floor. Although technically

not a supervisor, Ms. Ziaukas did perform duties as a charge

nurse for the floor.

5. The Respondent did not appreciate the manner in which

Ms. Ziaukas assumed and performed the duties of charge nurse for

the floor. Although their disagreement was little more than a

personality conflict, the Respondent maintains that such

disagreement fueled the allegations of the instant case. Such

contention is not supported by the persuasive evidence in this

case.

6. To the contrary, the weight of the credible evidence

supports the finding that the Respondent inappropriately handled

a pediatric patient on or about September 29, 1998.

7. The Respondent responded to a pediatric patient whose

I-V had come out. The patient was agitated and did not want the

line to be reinserted. Three nurses were present for the

procedure. Respondent was to insert the I-V while Ms. Ziaukas

and another nurse, Ms. Mezadieu, assisted. The patient

continued to be difficult. When the patient refused to

cooperate, the Respondent either slapped or pushed the patient

on his face to get him to submit to the procedure.

8. The force of the slap was not sufficient to leave a

mark on the patient's face. Nevertheless, Ms. Ziaukas reported

the incident to her supervisor; moreover, the Respondent

reported the incident to the patient's physician.

9. When the nurses were questioned about the incident

Ms. Ziaukas characterized the touch as a "slap." The Respondent

did not deny touching the child but said it was a "push" to get

the child to calm down. The third witness to the incident has

no current recollection of the event.

10. Statements taken from the witnesses at or near the

time of the incident confirmed that the Respondent touched the

child's face.

11. The use of a forceful push or slap to a pediatric

patient's face would not be medically necessary. A difficult

patient may be held down or subdued without inappropriately

touching the face.

12. Prior to this incident, the Respondent had performed

all aspects of her job in a satisfactory manner. The Respondent

was given the opportunity to attend an anger management class

but declined the employer's offer. Subsequently, the Respondent

left employment at North Shore Medical Center.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.57(1), Florida Statutes.

14. The Petitioner bears the burden of proof in this cause

to establish by clear and convincing evidence the allegations of

the Amended Administrative Complaint. Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987). It has met that burden.

15. Section 464.018(1)(h), Florida Statutes, provides:

(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.

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

forth the range of penalties for violations of Section 464.018,

Florida Statutes. Such rule provides, in pertinent part:

(1 ) The legislature created the Board to

assure protection of the public from nurses

who do not meet minimum requirements for

safe practice or who pose a danger to the

public. Among the suspensions, restrictions

of practice, and conditions of probation

used by the Board in discharging its duties

under Section 464.018, F.S., are:

(a ) Suspension until appearance before the

Board or for a definite time period and

demonstration of ability to practice safely.

(b ) Suspension until appearance before the

Board, or for a definite time period, and

submission of mental or physical

examinations from professionals specializing

in the diagnosis or treatment of the

suspected condition, completion of

counseling, completion of continuing

education, demonstration of sobriety and

ability to practice safely.

(c ) Suspension until fees and fines paid or

until proof of continuing education

completion submitted.

(d ) Suspension until evaluation by and

treatment in the Intervention Project for

Nurses. In cases involving substance abuse,

chemical dependency, sexual misconduct,

physical or mental conditions which may

hinder the ability to practice safely, the

Board finds participation in the IPN under a

stayed suspension to be the preferred and

most successful discipline.

(e ) Suspension stayed so long as the

licensee complies with probationary

conditions.

(f ) Probation with the minimum conditions

of not violating laws, rules, or orders

related to the ability to practice nursing

safely, keeping the Board advised of the

nurse's address and employment, and

supplying both timely and satisfactory

probation and employer/supervisor reports.

(g ) Probation with specified continuing

education courses in addition to the minimum

conditions. In those cases involving

unprofessional conduct or substandard

practice, including recordkeeping, the Board

finds continuing education directed to the

practice deficiency to be the preferred

punishment.

(h ) Probation with added conditions of

random drug screens, abstention from alcohol

and drugs, participation in narcotics or

alcoholics anonymous, psychological

counseling, the prohibition on agency work,

or the requirement that work must be under

direct supervision on a regularly assigned

unit.

( i ) Personal appearances before the Board

to monitor compliance with the Board's

order.

(j ) Administrative fine and payment of

costs associated with probation or

professional treatment.

17. As it relates to the violation in this case, the

disciplinary guidelines set forth by rule provide for a penalty

ranging from a fine ($250-$1,000) with a probation to suspension

of the license. Further, conditions to a suspension may include

the completion of continuing education courses.

18. In this case the Petitioner has established by clear

and convincing evidence that the Respondent inappropriately

touched the minor child on his face. Whether the touch is

characterized as a slap or a push, is immaterial to the

conclusion reached herein; such a touch is not medically

necessary to subdue a child in order to insert an I-V line. The

weight of the credible evidence supports the conclusion that the

Respondent was impatient with the child, was defensive toward

her colleague, and was determined to insert the I-V. Instead of

working with the child to alleviate his fears, the Respondent

acted impulsively and inappropriately. That she failed to

thereafter take full responsibility for the momentary lack of

judgment is troubling. It is concluded that the Petitioner has

established by clear and convincing evidence a violation of

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

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 in

the amount of $250, requiring the Respondent to remit the

agency's costs in prosecuting this case, requiring the

Respondent to complete an anger management course, and placing

the Respondent on probation for a period of three years.

DONE AND ENTERED this 3rd day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 3rd day of October, 2001.

COPIES FURNISHED:

Reginald D. Dixon, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39

Tallahassee, Florida 32317-4229

Peter Loblack, Esquire

Law Office of Peter Loblack, P.A.

Office Parks at California Club

1030 Ives Dairy Road, Suite 132

Miami, Florida 33179

Lawrence Allen Schwartz, Esquire

8005 Northwest 155th Street

Miami, Florida 33016

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

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

Board of Nursing

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

10 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.