97-004083 Board Of Nursing vs. Cecil Harold Floyd Status: Closed Recommended Order on Thursday, October 7, 1999.

Summary: The evidence failed to establish that Respondent`s actions of recording observation of patient and noting that patient should continue to be monitored constituted unprofessional conduct. Recommend dismissal of the complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4083

)

CECIL HAROLD FLOYD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on July 9, 1999, in Largo, Florida, before Carolyn S.

Holifield, a duly-designated Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Howard M. Bernstein, Esquire

Agency for Health Care Administration

Allied Health - Medical Qu ality Assistance

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308-5403

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent engaged in unprofessional conduct and, if

so, what penalty should be imposed on his nursing license.

PRELIMINARY STATEMENT

In a three-count Administrative Complaint dated June 26,

1997, the Department of Health, Board of Nursing (Department),

charged Respondent, Cecil Harold Floyd (Respondent), with

engaging in unprofessional conduct within the meaning of

specified statutes and rules governing the regulation of nursing.

Count I alleged that Respondent engaged in conduct that failed to

conform to the minimal acceptable standards of prevailing nursing

practice and, thus, is subject to disciplinary action pursuant to

Section 464.018(1)(h), Florida Statutes. Count II of the

Administrative Complaint alleged that Respondent administered

medications or treatment in a negligent manner and is subject to

disciplinary action pursuant to Rule 64B9-8.005(1)(e)2., Florida

Administrative Code. Finally, Count III alleged that Respondent

committed acts of negligence or gross negligence by omission or

commission and, therefore, is subject to disciplinary action

pursuant to Rule 64B9-8.005(1)(e)12., Florida Administrative

Code.

The Administrative Complaint claimed that the act which

constitutes the basis for the alleged violations was Respondent's

recording observations in the nurse’s notes about Patient M.F.,

but noting only that the patient should be monitored. Also, it

was alleged that the patient’s roommate had indicated that she

believed M.F. had suffered a stroke due to the fact that she

could not swallow and her speech was slurred.

Respondent challenged the allegations and timely requested a

formal hearing. The matter was forwarded to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge to conduct the hearing.

Pursuant to an Order issued May 22, 1998, Admissions 1-8 of

the Department's Request for Admissions were deemed admitted by

Respondent and, thus, required no proof of hearing.

At hearing, the Department called four witnesses: Katie

Appelgate; Mary Edwards; Donna Gondak; and Conchita McClory. The

Department offered and had four exhibits received into evidence.

Respondent failed to appear at hearing and no evidence or

testimony was presented on his behalf.

At the conclusion of the hearing, Petitioner requested that

the record remain open until July 29, 1999, to allow Petitioner

to take the deposition testimony of Patient E.M. and Diane Nora,

the Department's expert witness, and to late-file those

depositions and the Department's Exhibits 1, 2, 3 and 5.

Thereafter, the Department requested and was granted an

additional extension of time in which to file its late-filed

exhibits and proposed recommended order. The Department's

Exhibits 2 and 3 were filed on September 28, 1999, and the

Department's Exhibit 5 was filed on September 30, 1999. The

aforementioned depositions and the Department's Exhibit 1 were

not filed with the Division of Administrative Hearings, and,

therefore, are not a part of the record in this case.

A Transcript of the proceeding was filed on July 27, 1999.

Petitioner filed a Proposed Recommended Order which has been

considered in preparation of this Recommended Order. Respondent

did not file proposed findings of facts and conclusions of law.

FINDINGS OF FACT

1. The Department of Health is the state agency charged

with regulating the practice of nursing pursuant to Chapter 464,

Florida Statutes.

2. Respondent, Cecil Harold Floyd, was at all times

material hereto a licensed practical nurse in the State of

Florida, having been issued a license numbered PN 0960631.

3. At all times material hereto, Respondent was employed

as a licensed practical nurse by the North Shore Senior Adult

Community in St. Petersburg, Florida.

4. At all times material hereto, Respondent was assigned

to care for Patient M.F., a patient in the skilled nursing

section of the North Shore Senior Adult Community.

5. On February 26-27, 1996, Respondent worked as the

charge nurse on the 11:00 p.m. to 7:00 a.m. shift. On

February 27, 1996, at approximately 6:00 a.m., Respondent wrote

in the nurse's notes that Patient M.F. was lethargic and having

difficulty swallowing; that the patient's bottom dentures were

out; and that the patient's tongue was over to the right side.

In this entry, Respondent also noted "will continue to monitor."

6. After Respondent completed his shift on February 27,

1996, Conchita McClory, LPN, was the charge nurse in the skilled

nursing facility at North Shore Senior Adult Community. At about

8:10 a.m., Nurse McClory was called by the CNA who was attempting

to wake up Patient M.F. Upon Nurse McClory's entering Patient

M.F.'s room, she observed that the patient was sleeping,

incontinent, and restless and that the right side of the

patient's face was dropping. Based on these observations, Nurse

McClory believed that Patient M.F. may have suffered a stroke and

she immediately called 911. Following the 911 call, Patent M.F.

was taken to Saint Anthony's Hospital in Saint Petersburg,

Florida.

7. Prior to coming to this country, Conchita McClory had

been trained and worked as a registered nurse in the Philippines.

However, Ms. McClory is not licensed as a registered nurse in the

State of Florida.

8. Saint Anthony's Hospital's records regarding Patient

M.F. indicate that the patient had a history of multiple strokes

beginning in 1986.

9. The Department’s Administrative Complaint against

Respondent included the following factual allegations, all of

which were alleged to have occurred on February 27, 1996:

a. At approximately 6:00 a.m., Respondent

recorded in the nurse’s notes that Patient

M.F. was lethargic and having difficulty

swallowing; the patient's bottom dentures

were out; and the patient's tongue was over

to the right side. Respondent also noted in

the nurses' notes that Patient M.F. should

continue to be monitored.

b. Patient M.F.'s roommate told Respondent

that she believed that M.F. had suffered a

stroke because she could not swallow and her

speech was slurred.

c. At about 8:00 a.m., Patient M.F.'s

roommate went to the nurses' station and

requested that a certified nurse's assistant

check on M.F. Patient M.F. was found

paralyzed on her left side, soaked in urine

and unable to speak.

10. There was no evidence presented to support the factual

allegations referenced in paragraph 9b and 9c above and included

in the Administrative Complaint.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

12. Section 464.018(2), Florida Statutes, empowers the

Board of Nursing to revoke, suspend, or otherwise discipline the

license of a nurse who is found guilty of any one of the acts

enumerated in Section 464.018(1), Florida Statutes.

13. Count I of the Administrative Complaint alleges that

Respondent engaged in conduct that failed to conform to the

minimal acceptable standard of prevailing nursing practice and,

therefore, is subject to disciplinary action pursuant to Section

464.018(1)(h), Florida Statutes. That section states:

(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 actual

injury need not be established.

14. Count II of the Administrative Complaint alleges that

Respondent administered medication or treatments in a negligent

manner and that, as a result thereof, he is subject to

disciplinary action pursuant to Rule 59S-8.005(1)(e)2., Florida

Administrative Code (1997). That rule has subsequently been

renumbered as Rule 64B9-8.005(1)(e)2., Florida Administrative

Code.

15. Count III of the Administrative Complaint alleges that

Respondent committed acts of negligence or gross negligence by

omission or commission and is, therefore, subject to discipline

pursuant to Rule 59S-8.005(1)(e)12., Florida Administrative Code.

As noted in paragraph 14, that rule has been renumbered as

Rule 64B9-8.005(1)(e)12., Florida Administrative Code.

16. The relevant provisions of Rule 64B9-8.005(1)(e),

Florida Administrative Code, provide the following:

(1) The Board of Nursing shall impose

disciplinary penalties upon a determination

that a license:

* * *

(e) Is guilty of unprofessional conduct

which shall include, but not be limited to:

* * *

2. Administering medications or treatments

in a negligent manner; or

* * *

12. Acts of negligence, gross negligence,

either by omission or commission;

17. In a license disciplinary proceeding such as this, the

burden is on the regulatory agency to establish the facts upon

which its allegations are based by clear and convincing evidence.

Ferris v. Turlington , 510 So. 2d 392 (Fla. 1987).

18. In this case, the Department has failed to meet its

burden of proof.

19. The evidence established that near the end of

Respondent's shift, he checked on Patient M.F. and recorded in

the nurse's notes that the patient was lethargic and having

difficulty swallowing; that her bottom dentures were out; that

her tongue was over to the right side; and that the patient

should continue to be monitored.

20. No evidence was presented to establish Patient M.F.'s

roommate told Respondent that she believed that Patient M.F. had

suffered a stroke because she could not swallow and her speech

was slurred. Furthermore, there was no evidence that when

Patient M.F. was checked at approximately 8:00 a.m. on

February 27, 1999, she was found paralyzed on her left side,

soaked in urine, and unable to speak. The record lacks any

evidence that Respondent’s conduct as described in paragraph 5

above, without more, constitutes unprofessional conduct.

Accordingly, the Department has failed to prove by clear and

convincing evidence that Respondent is guilty of the alleged

violations contained in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of Nursing,

enter a final order dismissing the Administrative Complaint

against Respondent.

DONE AND ENTERED this 6th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 6th day of October, 1999.

COPIES FURNISHED:

Howard M. Bernstein, Esquire

Agency for Health Care Administration

Allied Health - Medical Quality Assistance

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308-5403

Cecil Harold Floyd

1680 25th Avenue, North

St. Petersburg, Florida 33713-4444

Ruth Stiehl, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast, Bin A02

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast, 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.