02-001645PL Department Of Health, Board Of Nursing vs. Marie Darius, Cna Status: Closed Recommended Order on Monday, October 14, 2002.

Summary: Agency did not prove allegations of sexual misconduct and theft by Certified Nursing Assistant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Petitioner, )

) Case No. 02 - 1645PL

vs. )

)

MARIE DARIUS, C.N.A., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on Ju ly 15, 2002, in the Dade County Courthouse, 73 West

Flagler Street, Miami, Florida, before Florence Snyder Rivas,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo, Esquire

Department of Health

Bureau of Health Care Practitioner

Regulation – Legal

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For R espondent: Ron Cordon, Esquire

335 Northwest 54th Street

Miami, Florida 33127

STATEMENT OF THE ISSUE

The issue is whether the Respondent committed the acts

alleged in the Administrative Complaint dated June 11, 2002,

and, if s o, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against the

Respondent's certificate to practice as a certified nursing

assistant (CNA), alleging that the Respondent engaged in

sexual misconduct, specif ically that Respondent

inappropriately touched patient Mary Teel (Teel) while washing

her. Petitioner further alleged that Respondent exercised

influence on a patient for purpose of financial gain in that

she took $50 from Teel's purse.

Respondent dispu ted the factual allegations of the

complaint and timely requested a formal hearing.

At the hearing, Petitioner called four witnesses and

offered eleven exhibits into evidence; nine of the exhibits

were admitted. Respondent testified on her own behalf and

offered one exhibit into evidence.

All statutory references are to Florida Statutes (2000)

unless otherwise noted.

The transcript was filed on August 30, 2002. Petitioner

timely filed a Proposed Recommended Order, which has been

carefully considered. Res pondent waived her right to make a

post hearing submission.

FINDINGS OF FACT

1. Petitioner is the state agency charged with

regulating the practice of nursing pursuant to Chapters 20,

456 and 464, Florida Statutes.

2. Respondent is a certified nursing a ssistant. At the

time of the events giving rise to this case, she was employed

by Hallandale Rehabilitation Center located in Hallandale,

Florida.

3. Respondent has no prior disciplinary history, and was

considered by her employer to be a good worker.

4 . Teel, the alleged victim of the serious offenses

charged, was a resident of Hallandale Rehabilitation Center.

At all times relevant to this matter, Teel was ninety years

old and in need of 24 - hour supervision, including assistance

with all activities o f daily living.

5. On September 24, 2001, the Hallandale Rehabilitation

Center Administrator, Carol McGovern (McGovern), received a

call from Teel's daughter, Lorraine Perez (Perez). Perez told

McGovern that Teel had complained that "the nurse who gives

[Teel] morning care touches her in the wrong way and also

talks lewd to her." In addition, Perez reported to McGovern

that "during the night [the same individual] steals her

money."

6. The Hallandale Police Department was notified.

Department records i ndicate that the police investigator who

responded was told by McGovern that Teel had reported that $15

had been stolen from the dresser in her room, and further,

that several people had access to the room. The record is

silent as to whether any criminal prosecution was initiated.

7. At all times relevant to this case, a number of

caregivers are assigned to supervise and assist Teel and other

patients. The staffing as to each patient may vary from day

to day. No security was in place to control access to patient

rooms. Once a staff member or visitor is inside the

Hallandale Rehabilitation Center building, he or she is free

to come into contact with any patient.

8. In addition to the police investigation, various

Hallandale Rehabilitation Center staff ers interviewed Teel and

other patients in an attempt to establish the identity of the

CNA Teel was accusing of theft and improper conduct. Teel

told at least one person that the person she was accusing was

named "Marie." There was no evidence concerning how CNAs are

assigned, nor any testimony regarding how personal care was

delivered to Teel, and by whom, on a day - to - day basis. There

is no evidence to establish whether it is even possible to

determine who is working any given shift, let alone who was

w orking on September 24. There was no testimony regarding

whether CNAs are required to document whether and when

personal care services are provided.

9. A preponderance of evidence did establish that baths

are generally given by the day shift, and a less formal clean -

up is provided prior to bedtime.

10. Perez' report to McGovern suggested that a day shift

worker had committed the more serious offense of sexual

misconduct, and initially suspicion fell upon a day shift

worker named Marie Duvenger (Duvenge r).

11. Teel was shown Duvenger's picture ID and absolved

her of any wrongdoing.

12. As the investigation went forward, all CNAs were

interviewed and several expressed concerns that various of

their colleagues would leave their floors for reasons not

re lated to their job duties.

13. After Duvenger was eliminated as a suspect,

Respondent, the only other worker named Marie, became the

focus of the investigation.

14. At various times, people involved in the

investigation, including Teel, referred to th e alleged

wrongdoer as Mary. There is no evidence establishing whether

anyone named Mary worked at the Hallandale Rehabilitation

Center, and if so, whether any efforts were made to determine

whether such person(s) might have been involved in the

incidents alleged by Teel.

15. The staff Care Plan Coordinator Sharon Brown (Brown)

reviewed the nursing schedules in an effort to identify a

suspect. Even though Brown was available to testify and did

testify at the hearing, she failed to offer any meaningful

te stimony upon which an identification could be based. Brown

testified in a conclusory fashion that Teel "picked [Marie]

out." There was no contemporaneous documentation of this

identification.

16. Teel testified by deposition. She is sincere in her

beli ef that she was touched inappropriately. She also

believes that money was taken from her, although she did not

use the $50 figure in her testimony. Neither does her

testimony confirm Petitioner's allegation that the theft and

the abuse occurred on the sa me date.

17. Petitioner asserts that Teel is "alert, coherent,

oriented and knowledgeable. She does not suffer from any

cognitive deficiencies. She is aware of time and what is

going on around her."

18. A different picture emerges when viewing her

vi deotaped deposition. It is apparent to the viewer that

Teel's faculties in general and her memory in particular are

not sufficiently sound that a person of ordinary prudence

would rely upon her memory, standing alone, to establish that

events did or did n ot occur. In other words, Petitioner has

failed to provide clear and convincing evidence that the

offenses charged were committed by anyone.

19. For example, with regard to the theft charge,

Respondent is alleged to have taken $50 from Teel's purse. In

reference to the alleged theft, Teel was asked:

"Was there money in [your purse] before?"

Teel replied: "I had $20, and I saw $4.

But let's just say it was $2. I asked her

how many one's [sic] there were, but let's

say $3; $22"

Petitioner's counse l asked, "So you think

it was about $22?

Teel replied, "It might have been three,

but I don’t want to tell a lie.

20. The foregoing exchange completely undermines the

notion that Teel is capable of providing clear and convincing

evidence.

21. The Admin istrative Complaint suffers from a more

technical flaw with respect to the theft charge. Respondent

is charged with having exercised influence on Teel for the

purpose of financial gain. Yet, there was no testimony that

anyone exercised any influence on T eel. Rather, the crime

charged, if it occurred, was garden variety stealing.

22. At other points in the deposition, Petitioner's

counsel attempted to ask questions concerning the alleged

sexual assault. Often, Teel's responses related instead to

the al leged theft. On cross - examination Teel stated that she

does not know the names of everyone who assists her. She

volunteered, ". . . I have a poor memory of things, but I know

if they're nice. I know they're nice. All the other nurses

are nice but that one."

23. Asked how she knew the name of the person who

touched her, Teel stated, "Well, she told me" as she gestured

in the direction of Petitioner's attorney. On redirect the

attorney attempted to clarify this testimony and the following

exchange took place.

"Okay. Now, you also said that I told you

her name, right? Did I tell you her name

or did I just correct the name that you

said?

Well, I had a name, but you said it,

corrected it."

24. Teel's deposition concludes with the following

exchange:

Tee l: Are you going to meet me at 9

o'clock?

Petitioner's Counsel: Am I going to meet

you at 9 o'clock? Why would I meet you at 9

o'clock?"

Teel: Well the nurse said you're going to

meet me at 9 o'clock, no?

Petitioner's Counsel: No.

25. It goes witho ut saying that it is illegal and

despicable to harm a frail elderly person by bathing him or

her except in accordance with appropriate protocols for

personal care, and to steal from a person entrusted to one's

professional care. Such conduct, if proven, w arrants harsh

punishment.

26. Unfortunately, the complaint made on Teel's behalf

by her daughter did not receive the thorough investigation the

allegations warranted. The community of staff and residents

at Hallandale Rehabilitation Center are left to wo nder if Teel

was abused, and if so, by whom.

27. On the evidence presented, there is no basis to

impose discipline against Respondent. One would have to know

a great deal more about what was going on in and around Mary

Teel's room on September 24, 2001 , than was presented, in

order to conclude that the offenses charged were in fact

committed, and were committed by Respondent.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. Sect ion

120.57(1), Florida Statutes.

29. In this case, Petitioner must prove the material

allegations by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Department of Banking

and Finance, Division of Securities and Investor P rotection v.

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

30. Petitioner has failed to prove by clear and

convincing evidence that on or about September 24, 2001, the

Respondent inappropriately touched Teel while washing her, and

subsequently stole money from Teel.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the Board

of Nursing enter a final order of dismissal.

DONE AND ENTERED this 14th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________ ________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed w ith the Clerk of the

Division of Administrative Hearings

this 14th day of October, 2002.

COPIES FURNISHED:

Amy M. Pietrodangelo, Esquire

Department of Health

Bureau of Health Care Practitioner

Regula tion – Legal

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Ron Cordon, Esquire

335 Northwest 54th Street

Miami, Florida 33127

Dan Coble, R.N., Ph.D., CNAA C, B.C.

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypr ess Way, Bin C02

Tallahassee, Florida 32399 - 3252

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallaha ssee, 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.