99-003604 Department Of Health, Board Of Nursing vs. Erma Onita Webster Solomon Status: Closed Recommended Order on Friday, January 14, 2000.

Summary: Licensee who prepared the wrong patient for chemotherapy and administered chemotherapy to the wrong patient was guilty of unprofessional conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 99-3604

)

ERMA ONITA WEBSTER SOLOMON, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

November 12, 1999, by video teleconference, with sites in

Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration

Building 3, Room 3231A

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: No appearance at hearing

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 29, 1999, Petitioner filed an Administrative

Complaint against Respondent, a licensed registered nurse, which

charged that Respondent violated the provisions of Section

464.018(1)(h), Florida Statutes, by failing to conform to the

minimal standards of acceptable and prevailing nursing practice.

The gravamen of such charge was Petitioner's contention that in

1994, Respondent prepared the wrong patient for chemotherapy and

failed to appropriately check the R ed C art used for

cardiopulmonary resuscitation; in 1995, Respondent administered

the wrong chemotherapy to a patient; and on or about March 14,

1997, and March 27, 1997, Respondent failed to properly dispose

of finished chemotherapy bags.

Respondent filed an election-of-rights wherein she disputed

the allegations of fact contained in the Administrative Complaint

and requested a formal hearing. Consequently, Petitioner

referred the matter to the Division of Administrative Hearings

for the assignment of an administrative law judge to conduct a

formal hearing pursuant to Sections 120.569, 120.57(1), and

120.60(5), Florida Statutes.

At hearing, Petitioner called Jane Welt, Mireya Guzman,

Myrtle Perdue, Wyrlane Williams, Shirley Chandler, Lavette

Tookes, Esmie Bonitto, James Keith Buehner, Nancy Harvey, and

David Rosenberg as witnesses, and Petitioner's Exhibits

numbered 1-8 were received into evidence. 1 Neither Respondent

nor anyone on her behalf appeared at hearing, and no evidence was

otherwise offered on her behalf.

The hearing transcript was filed December 16, 1999, and the

parties were accorded ten days from that date to file proposed

recommended orders. Petitioner elected to file such a proposal

and it has been duly-considered.

FINDINGS OF FACT

1. Respondent, Erma Onita Webster Solomon, is, and was at

all times material hereto, a licensed registered nurse (RN) in

the State of Florida, having been issued license number RN

0984482, and was employed by the Public Health Trust, Jackson

Memorial Hospital (JMH), 1611 Northwest 12th Avenue, Miami,

Florida, as a Nurse II, in the Special Immunology Clinic,

Ambulatory Services Division.

2. Here, the proof demonstrated, as alleged in the

Administrative Complaint that in 1994, Respondent (while employed

at JMH) failed to appropriately check the R ed C art used for

cardiopulmonary resuscitation and prepared the wrong patient for

chemotherapy. More particularly, the proof demonstrated that for

the week of March 21, 1994, through March 25, 1994, Respondent

was responsible for assuring that all emergency equipment on the

R ed C art used for cardiopulmonary resuscitation was current.

Respondent failed in such duty in that an audit on March 24,

1994, revealed that a pediatric ventilation tray had expired on

March 20, 1994. Dated (noncurrent) equipment could jeopardize

patient care and, consequently, Respondent's conduct (in failing

to assure the presence of current emergency equipment) was

unprofessional and constituted a departure from, or failure to

conform to, the minimal standards of acceptable and prevailing

nursing practice. With regard to the contention that Respondent

prepared the wrong patient for chemotherapy treatment the proof

demonstrated that on July 20, 1994, Respondent initiated an

intravenous for administration of chemotherapy and brought a bag

of chemotherapy to administer; however, it was not administered,

when the patient recognized the chemotherapy was not hers. By

failing to appropriately identify the patient against standard

identification, Respondent failed to utilize appropriate nursing

protocols essential to minimize patient risk and, consequently,

her failure constituted a departure from, or failure to conform

to, the minimal standards of acceptable and prevailing nursing

practice.

3. The proof further demonstrated, consistent with the

allegations of the Administrative Complaint, that in 1995

Respondent administered the wrong chemotherapy to a patient.

More particularly, the proof demonstrated that on October 5,

1995, Respondent administered the wrong chemotherapy to her

patient because she failed to appropriately identify (correlate)

the patient with the patient number and dosage on the bag of

chemotherapy she administered. More specifically, Respondent

administered a bag of Doxil 32 mg to her patient (#2201315), that

had been ordered for another patient (#520384). Consequently, an

additional order for Doxil 10 mg was required for Respondent's

patient (#2201315) to receive the correct dosage prescribed, and

a new bag of Doxil 32 mg had to be prepared for the other patient

(#520384). While there were no apparent side effects,

Respondent's failure to appropriately identify the patient

against standard identification represented a failure to utilize

appropriate nursing protocols essential to minimize patient risk

and, consequently, Respondent's conduct constituted a departure

from, or failure to conform to, the minimal standards of

acceptable and prevailing nursing practice.

4. Finally, the proof demonstrated, consistent with the

allegations of the Administrative Complaint, that on March 14,

1997, and again on March 25, 1997, Respondent failed to properly

dispose of finished chemotherapy bags. More particularly, the

proof demonstrated that on March 14, 1997, after having

administered a chemotherapy treatment to a patient, Respondent,

contrary to accepted protocol which required immediate double

bagging of the chemotherapy waste materials to avoid

contamination (since such agents aerosolize easily and pose a

significant health risk to others), left the Doxil, with the

tubing hanging in a downward position and the tip uncapped and

open to the air. Again, on March 25, 1997, Respondent failed to

immediately remove or double bag the chemotherapy waste after

administration of the chemotherapeutic agent. Rather, again,

Respondent left a spent chemotherapy bag (Doxil) and attached IV

tubing hanging from an IV pole, with the tip uncapped and

dripping the chemotherapy agent into a waste basket.

Respondent's failure to appropriately dispose of chemotherapy

waste violated appropriate nursing protocols essential to

minimize public health risk, and constituted a departure from, or

failure to conform to, the minimal standards of acceptable and

prevailing nursing practice.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Section 120.569, 120.57(1), and 120.60(5), Florida

Statutes.

6. Where, as here, the Department proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

That standard requires that "the evidence must be found to be

credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit

and the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983).

7. Regardless of the disciplinary action sought to be

taken, it may be based only upon the offenses specifically

alleged in the administrative complaint. See Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

Hunter v. Department of Professional Regulation , 458 So. 2d 844

(Fla. 2d DCA 1984). Moreover, in determining whether Respondent

violated the provisions of Section 464.018, as alleged in the

Amended Administrative Complaint, one "must bear in mind that it

is, in effect, a penal statute. . . . This being true, the

statute must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it." Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

8. Pertinent to this case, Section 464.018, 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.

Also pertinent to this case, Rule 64B9-8.005, Florida

Administrative Code, defines "unprofessional conduct" to include:

(2) Administering medications or

treatments in negligent manner; or

* * *

(12) Acts of negligence, gross negligence,

either by omission or commission; or

(13) Failure to conform to the minimal

standards of acceptable prevailing nursing

practice, regardless of whether or not actual

injury to a patient was sustained. . . .

9. Here, as observed in the Findings of Fact, Petitioner

demonstrated with the requisite degree of certainty that

Respondent committed multiple violations of Section

464.018(1)(h), Florida Statutes, as alleged in the Administrative

Complaint. Consequently, it remains to resolve the appropriate

penalty that should be imposed.

10. As a penalty for Respondent's violations, Petitioner

suggests that an administrative fine be imposed in the amount of

$1,000; that Respondent's license be suspended until such time as

the Board of Nursing (Board) is satisfied that she is capable of

safely engaging in the practice of nursing; and that upon

reinstatement Respondent be placed on a term of probation for a

period of time and subject to such reasonable conditions as the

Board may specify. Such proposal is consistent with the

provisions of Section 464.018(2) and (3), Florida Statutes, and

the Board's penalty guidelines (Rule 64B9-8.006, Florida

Administrative Code). Consequently, there being no apparent

reason to deviate from Petitioner's recommendation, its proposed

penalty is accepted as appropriate. Walker v. Department of

Business and Professional Regulation , 23 Fla. L. Weekly D292

(Fla. 5th DCA 1998)(Penalty imposed was within Florida Real

Estate Commission's statutory authority and would not be

disturbed.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which finds

Respondent guilty of the multiple violations of Section

464.018(1)(h), Florida Statutes, as alleged in the Administrative

Complaint and that, as a penalty for such violations, imposes an

administrative fine in the amount of $1,000; suspends

Respondent's license until such time as the Board is satisfied

that she is capable of safely engaging in the practice of

nursing; and upon reinstatement places Respondent on a term of

probation for a period of time and subject to such reasonable

conditions as the Board may specify.

DONE AND ENTERED this 14th day of January, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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 14th day of January, 2000.

ENDNOTE

1/ Also, Petitioner's request that, by virtue of Respondent's

failure to respond, the matters set forth in Petitioner's Request

for Admissions served October 1, 1999, be deemed admitted was

granted.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

Agency for Health Care Administration

Building 3, Room 3231A

2727 Mahan Drive,

Tallahassee, Florida 32308

Erma Onita Webster Solomon

1520 Northwest 175th Street

Miami, Florida 33169-4663

Ruth Stiehl, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1703

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.