02-002293PL Department Of Health, Board Of Nursing vs. Richard Carlton Fleet Status: Closed Recommended Order on Monday, November 4, 2002.

Summary: Registered nurse guilty of "unprofessional conduct" by mistreating (both physically and verbally) patients.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2293PL

)

RICHARD CARLTON FLEET, )

)

Re spondent. )

_________________________________)

RECOMMENDED ORDER

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

accordance with Section 120.57(1), Florida Statutes, on

August 23, 2002, by video teleconference at sites in Fort

Lauderdale an d Tallahassee, Florida, before Stuart M. Lerner, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo, Esquire

Rosanna Catalano, Esquire

Department of Health

4052 Ba ld Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Mary S. Lingerfeldt, Esquire

Bunnell, Woulfe, Kirschbaum, Keller,

McIntyre & Gregory, P.A.

888 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF T HE ISSUE

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint, and, if so, what disciplinary

action should be taken against him.

PRELIMINARY STATEMENT

On or about January 31, 2002, Petitioner issued a three -

count A dministrative Complaint against Respondent, a Florida -

licensed registered nurse. Through the submission of a

completed Election of Rights form, Respondent denied the

allegations of wrongdoing made in the Administrative Complaint

and requested "a hearing i nvolving disputed issues of material

fact, pursuant to Section 120.569, Florida Statutes, and Section

120.57(1), Florida Statutes, before an Administrative Law Judge

appointed by the Division of Administrative Hearings." On

June 10, 2002, the matter was r eferred to the Division of

Administrative Hearings for the assignment of an Administrative

Law Judge to conduct the hearing Respondent had requested.

On June 26, 2002, Respondent filed a Motion to Strike

paragraphs 11 and 13 of the Administrative Complaint . On

July 11, 2002, an Order was issued granting the motion "with

leave for Petitioner to file an Amended Administrative Complaint

with amended paragraphs 11 and 13 . . . ."

On July 23, 2002, Petitioner filed a Motion for Leave to

File an Amended Administ rative Complaint. The motion was

granted by Order issued July 29, 2002.

The Amended Administrative Complaint filed by Petitioner

alleges that, based upon the following facts, Respondent is

"subject to discipline pursuant to [S]ection 464.018(1)(h),

Flor ida Statutes, for unprofessional conduct by failing to

conform to the minimal acceptable standards of prevailing

nursing practice as defined in Rule 64B9 - 8.005(13), Florida

Administrative Code" (Count One); "for unprofessional conduct by

administration of treatments or medications in a negligent

manner, as defined in Rule 64B9 - 8.005, Florida Administrative

Code" (Count Two); and "for unprofessional conduct by practicing

beyond the scope of the licensee's license, educational

preparation or nursing experienc e as defined in Rule 64B9 -

8.005(15), Florida Administrative Code" (Count Three):

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 and has been at all times

material hereto, a licensed registered nurse

in the State of Florida, having been issued

license number 3109442.

3. Respondent's last known address

is . . . .

4. On or between September 11, 2000 and

March 28, 2001, the Respondent was employe d

by Imperial Point Medical Center, Fort

Lauderdale, Florida. Imperial Point Medical

Center is a hospital in the North Broward

Hospital District.

5. On or about March 18, 2001, Patient

F. L., 17 - year - old male overdose patient,

was admitted to the emerg ency department for

treatment of a drug overdose.

6. On or about March 18, 2001, Respondent

disrobed F. L. and did not clothe him in a

hospital gown.

7. On or about March 18, 2001, the

Respondent became violent with patient F. L.

while F. L. was confin ed in four point

restraints. The Respondent climbed onto the

stretcher with F. L., placed his knee

on . . . F. L.'s neck and placed his open

left hand on the patient's face.

8. The Respondent continued to use

excessive force in the patient F. L.'s care

by grabbing and twisting the patient's penis

and scrotum.

9. The Respondent's aggressive behavior

continued when he choked patient F. L. until

F. L. turned blue.

10. Patient F. L. became upset and asked

for his mother.

11. The Respondent retorted wi th

inappropriate comments about F. L.'s mother,

and told him, "I've got your mother here."

12. The Respondent requested a urine sample

from F. L., but the patient refused.

13. After F. L. refused to submit a urine

sample to the Respondent, the Responde nt hit

F. L. with a Foley catheter before inserting

it in a very aggressive manner.

14. The Respondent inserted the Foley

catheter [i]n patient F. L. without

physician[']s[] orders.

15. During the course of the attack, the

Respondent verbally harassed and insulted

the patient.

16. The Respondent exhibited aggressive and

physical behavior toward male patient F. L.

17. On or about February 23, 2001, K. N.

was admitted to the emergency room at

Imperial Point Medical Center with acute

intoxication.

18. Respondent disrobed K. N., an

unconscious female patient, and made

derogatory statements about the patient's

body.

19. Respondent stated, "Look at the tits on

this one," and "Wouldn't you like to get

some of that?" to another North Broward

Hospital Dis trict male employee about

patient K. N.

20. The Respondent was given a hospital

gown to cover K. N., but chose not to cover

her and continued to make offensive comments

about unclothed K. N.

21. The Respondent failed to respect the

privacy and dignity of female patient K. N.

22. The incidents involving male patient

F. L. and female patient K. N. are

demonstrative of the Respondent's number of

repetitions of offenses involving aggression

and disrespect toward patients.

Respondent filed an Answer to Am ended Administrative

Complaint, in which he admitted that he "is a licensed

registered nurse in the State of Florida" and "was employed by

Imperial Point Medical Center in 2001" and denied the remaining

allegations made in the Amended Administrative Compla int.

As noted above, the final hearing in this case was held on

August 23, 2002, as scheduled. Ten witnesses testified at the

final hearing: J. L., Robert Russo, Beverly Gilberti, Deborah

Fialk, Christie Jackson, Catherine Moses, Karlene Williams,

Dr. Michael Estep, Dr. Luis Maciera - Rodriguez, and Respondent.

In addition to the testimony of these ten witnesses, seven

exhibits (Petitioner's Exhibits 1 through 7) were offered and

received into evidence.

At Petitioner's request, and without objection, t he

evidentiary record was left open for 21 days to allow Petitioner

the opportunity to take the deposition of George Austin and to

provide the undersigned with the transcript of Mr. Austin's

deposition for consideration in lieu of Mr. Austin's live

testimo ny.

At the conclusion of the evidentiary portion of the hearing

on August 23, 2002, the undersigned established a deadline (30

days after the date of the undersigned's receipt of the complete

hearing transcript or 30 days from the date of the undersigned 's

receipt of the transcript of Mr. Austin's deposition, whichever

was later) for the filing of proposed recommended orders.

The undersigned received the transcript of Mr. Austin's

deposition on September 9, 2002. The complete hearing

transcript consist s of two volumes. The undersigned received

one of these two volumes on September 3, 2002, and the other on

September 30, 2002.

Petitioner and Respondent both filed their Proposed

Recommended Orders on October 30, 2002. The undersigned has

carefully con sidered these post - hearing submittals.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since October 17, 1996,

a Florida - licensed registered nurse. He holds license number

3109442.

2. From September 11, 2000, to March 28, 2001, Respondent

was employed as a registered nurse by the North Broward Hospital

District and assigned to the emergency room at Imperial Point

Medical Center (I PMC) in Broward County, Florida.

3. IPMC is a division of the North Broward Hospital

District.

4. It serves as a designated Baker Act receiving facility

where persons are "brought involuntary[ily] for psychiatric

evaluation" and referral.

5. Some of t hese persons are "dangerous and violent" and

have "cause[ed] injuries to the staff of the emergency room."

6. In early 2001, Respondent was involved in two separate

incidents in which he mistreated a patient in the emergency room

at IPMC.

7. The firs t incident occurred on or about February 23,

2001.

8. On that day, K. N., a 21 - year - old female, was admitted

to the emergency room suffering from "acute intoxication."

9. Pursuant to emergency room policy, upon her admittance

to the emergency room, K. N. was "completely undressed . . . to

make sure that [she was] not hiding any drugs, contraband,

weapons, [or other] things of that nature."

10. K. N. was lying, "passed out" and completely naked, on

a stretcher in an examining room with Respondent by her s ide,

when one of the hospital's emergency room technicians, Robert

Russo, walked into the room to assist Respondent.

11. Respondent greeted Mr. Russo by making the following

comments about K. N.: "Look at those tits. Wouldn't you like

to get a piece of that?"

12. Mr. Russo left the room to get a hospital gown for

Respondent to put on K. N., as Respondent was required to do, in

accordance with hospital policy, so as "to preserve [K. N.'s]

dignity."

13. Mr. Russo returned with a gown and gave it to

Respondent, but Respondent did not put it on K. N. or otherwise

use it to try to cover K. N.

14. Respondent, though, did continue making comments about

K. N.'s body. Referring to K. N.'s genitals, he remarked to

Mr. Russo, "That's sweet," or words to t hat effect.

15. Feeling "uncomfortable," Mr. Russo left the room.

16. By allowing K. N. to remain completely naked and by

making the remarks he did to Mr. Russo about K. N.'s body,

Respondent failed to conform to the minimal acceptable standards

of preva iling nursing practice.

17. The following month, Respondent was involved in

another incident in which he acted inappropriately toward an

IPMC emergency room patient.

18. This second incident occurred on March 18, 2001.

19. The patient Respondent mistr eated on this day was

F. L., a 17 - year - old male with a history of drug abuse.

20. F. L. was brought to the IPMC emergency room by the

City of Pompano Beach Fire/Rescue at the request of F. L.'s

mother, J. L., who accompanied him to the emergency room a nd

remained there for the duration of F. L.'s stay.

21. J. L. had "called 911" after F. L. had come home from

a night of drinking and, in her presence, had had a seizure.

22. By the time fire/rescue arrived at their home, F. L.

was conscious, and he remained conscious during the ambulance

ride to IPMC.

23. J. L. wanted F. L. to be involuntarily committed under

the Baker Act. She did not think she would be able to handle

his coming back home because he "was on drugs at the time" and

she thought that he would "go crazy" if he did not receive

treatment.

24. F. L. was aware of his mother's desire. In the past,

he had attempted to "fight" (verbally, but not physically)

efforts to have him "Baker Acted."

25. F. L. was admitted to the IPMC emergency ro om at

3:49 a.m. on March 18, 2001.

26. At the time of his admittance, F. L. was conscious,

"somewhat calm," and able to stand up and walk "with a wobble"

and to speak coherently (although his speech was slurred).

27. He was asked to give a urine sample for a "urine

screen," and with the help of his mother, who accompanied him to

bathroom "[s]o he wouldn't fall or miss the cup," he complied.

28. F. L. soon became upset and "verbally abusive to the

staff" on duty, including Respondent.

29. Respondent d ecided that F. L. needed to be restrained.

30. With the help of others, including Mr. Russo,

Respondent restrained F. L. "with Velcro restraints on the

wrists and the ankles."

31. Respondent then requested that F. L. give another

urine sample. F. L., in turn, "asked for a urine bottle."

Respondent refused F. L.'s request. Instead, he took out a

Foley catheter.

32. A Foley catheter is a thin, flexible rubber tube that

is threaded through the urethra and into the bladder. It is

used to drain urine fr om the bladder. It should be sterile and

lubricated when inserted.

33. F. L. went "totally beserk" when he saw the catheter,

letting it be known in no uncertain terms that he did not want

to be catherized and again requesting that he be given a "urine

bo ttle."

34. Respondent responded, inappropriately, by "hit[ting]

[F. L.] in the face with the catheter numerous times," while

telling F. L. two or three times, "I'm going to shove this hose

down your dick."

35. This caused F. L., understandably, to beco me even more

loud and boisterous.

36. Respondent enlisted the assistance of three or four

others, including Mr. Russo and George Austin, a Wackenhut

security officer on patrol at the hospital, to place F. L. in

four - point leather restraints (one for each ankle and wrist) on

a stretcher in Room 6. 1/

37. F. L. resisted, but was eventually subdued and

restrained on the stretcher.

38. Given F. L.'s out - of - control behavior, placing him in

four - point restraints was warranted.

39. After F. L. was restrained on the stretcher,

Respondent, against F. L.'s will, inserted the Foley catheter

(that he had used to hit F. L. and that was therefore not

sterile) in F. L. 2/ Respondent did so in a rough and

negligent manner, without using lubricating jelly or any othe r

type of lubrication.

40. Subsequently, while F. L. was still in four - point

restraints on the stretcher, he became "more upset, more

verbally abusive," and "tried to sit up." Respondent responded,

inappropriately, by "grabb[ing] [F. L.] by the neck,"

"s lapp[ing] him back down onto the stretcher," and "choking

[F. L.] until [F. L.] was almost blue." Respondent "let go" of

F. L. only after an observer intervened.

41. After Respondent stopped choking him, F. L. "asked for

his mother." 3/ Respondent r esponded, again inappropriately,

by telling F. L. three times, "I got your mother right here," as

he "grabbed his own testicles." 4/

42. As could be expected, this "further upset" F. L., and

he again tried to sit up. Respondent's response was, again, a n

inappropriate one. He "climbed up on the stretcher," "put his

right knee on [F. L.'s] chest," "cover[ed] F. L.'s face" with

his left hand, and with his right hand "grabbed" F. L.'s penis

and scrotum and "squeeze[d] and twist[ed]."

43. Respondent, wit hout any justification, "squeeze[d] and

twist[ed]" F. L.'s penis and scrotum "two or three times" while

F. L. was in four - point restraints on the stretcher. On one of

these occasions, he told F. L. (as he was "squeeze[ing] and

twist[ing]") "something like ," "What are you going to do now?"

44. During his encounter with F. L. on March 18, 2001,

Respondent used more force against F. L. than was reasonably

necessary to properly discharge his nursing duties and to

protect himself and those around him. 5/

45 . By physically, and also verbally, abusing F. L.,

Respondent failed to conform to the minimal acceptable standards

of prevailing nursing practice. 6/

46. When J. L. was finally reunited with her son, she

noticed that he had red marks on his face and "b ruise[s]" on his

extremities.

47. The IPMC emergency room physician who evaluated F. L.

determined that there was reason to believe that F. L. was

"mentally ill as defined in Section 394.455(18), Florida

Statutes" (based upon an "initial diagnosis" of "ac ute

agitation"), and that F. L. otherwise met the "criteria for

involuntary examination" under the Baker Act.

48. At approximately 2:45 p.m. on March 18, 2001, F. L.

was discharged from IPMC and transferred to Florida Medical

Center.

49. Sometime after t he March 18, 2001, incident involving

F. L., a security officer and nurse working at IPMC expressed to

Beverly Gilberti, the nurse/manger of IPMC's emergency room,

their "concerns" regarding Respondent's "practice."

50. On March 26, 2001, Ms. Gilberti con tacted Gayle Adams,

IPMC's human resources specialist, and told her about the

security officer's and nurse's "concerns."

51. Ms. Adams began an investigation into the matter.

52. Ms. Gilberti telephoned Respondent and advised him

that he was being suspen ded pending the outcome of an

investigation into alleged wrongdoing on his part.

53. Respondent was given "very little information as to

what type of complaint[s]" were being investigated.

54. On March 28, 2001, before the investigation had been

comple ted, Respondent telephoned Ms. Adams and "verbally

resigned over the phone."

CONCLUSIONS OF LAW

55. The Board of Nursing (Board) is now, and has been at

all times material to the instant case, statutorily empowered to

take punitive action against a Fl orida - licensed registered nurse

based upon any of the grounds enumerated in Subsection (1) of

Section 464.018, Florida Statutes.

56. The penalties that the Board was statutorily

authorized to impose at the time of the alleged violations in

the instant cas e were found in Subsection (2) of Section

464.018, Florida Statutes (2000), which provided as follows:

When the board finds any person guilty of

any grounds set forth in subsection (1), it

may enter an order imposing one or more of

the following penalties:

(a) Refusal to certify to the department an

applicant for licensure.

(b) Revocation or suspension of a license

with reinstatement subject to the provisions

of subsection (3).[7/]

(c) Permanent revocation of a license.

(d) Restriction of practice.

(e) Imposition of an administrative fine

not to exceed $1,000 for each count or

separate offense.

(f) Issuance of a reprimand.

(g) Placement of the nurse on probation for

a period of time and subject to such

conditions as the board may specify,

inclu ding requiring the nurse to submit to

treatment, to attend continuing education

courses, to take an examination, or to work

under the supervision of another nurse.

See Childers v. Department of Environmental Protection

696 So. 2d 962, 964 (Fla. 1st DCA 19 97)("The version of a

statute in effect at the time grounds for disciplinary action

arise controls."); and Willner v. Department of Professional

Regulation, Board of Medicine , 563 So. 2d 805, 806 ("The 1986

amendment increased the maximum fine from $1,000 per violation

to $5,000 per violation. Since all the violations for which

appellant was found guilty occurred prior to the effective date

of the 1986 amendment, the maximum fine which could lawfully be

imposed by appellee was $1,000 per violation.").

57. The Board may take punitive action against a licensee

only after the licensee has been given reasonable written notice

of the charges and an adequate opportunity to request a

proceeding pursuant to Sections 120.569 and 120.57, Florida

Statutes.

58. An ev identiary hearing must be held, if requested by

the licensee, when there are disputed issues of material fact.

Sections 120.569(1) and 120.57(1), Florida Statutes.

59. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in t he conduct, and thereby committed

the violations, alleged in the charging instrument.

60. Proof greater than a mere preponderance of the

evidence must be presented. Clear and convincing evidence of

the licensee's guilt is required. See Department of B anking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987); Pou v.

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

D CA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings

of fact shall be based upon a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute . . . .").

61. Clear and convinc ing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be consider ed "'clear and convincing' . . .

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." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quot ing, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

62. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate Petitioner's evidentiary

presentation in light of the specific factual al legations made

in the charging instrument. Due process prohibits an agency

from taking disciplinary action against a licensee based upon

conduct not specifically alleged in the charging instrument.

See Hamilton v. Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); and Cottrill v. Department of Insurance , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996).

63. Furthermore, "the conduct pro ved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed to have been

violated" was in fact violated, as alleged by Petitioner, if

there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmaria h

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

64. In those cases where the proof is s ufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

co nsult the Board's "disciplinary guidelines," as they existed

at the time of the violation(s). See Parrot Heads, Inc. v.

Department of Business and Professional Regulation , 741 So. 2d

1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and Orasan v. Agency for Health Care

Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996 )("[T]he case was properly decided under the

disciplinary guidelines in ef fect at the time of the alleged

violations.") ; see also State v. Jenkins , 469 So. 2d 733, 734

(Fla. 1985)("[A]gency rules and regulations, duly promulgated

under the authority of law, have the effect of law."); Buffa v.

Singletary , 652 So. 2d 885, 886 (Fla . 1st DCA 1995)("An agency

must comply with its own rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its empl oyees).

65. At the time of the alleged violations in the instant

case, the Board's "disciplinary guidelines" were found in Rule

64B9 - 8.006, Florida Administrative Code, which then provided, in

pertinent part, as follows:

(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. . . .

(2) The Board sets forth below a range of

disciplinary guidelines from which

disciplinary penalties w ill be imposed upon

practitioners . . . guilty of violating

Chapter 464, F.S. The purpose of the

disciplinary guidelines is to give notice to

licensees . . . of the range of penalties

which will normally be imposed [for]

violations of particular provision s of

Chapter 464. The disciplinary guidelines

are based upon a single count violation of

each provisions listed. Multiple counts of

violations of the same provision of Chapter

464, or the rules promulgated thereto, or

other unrelated violations will be g rounds

for enhancement of penalties. All penalties

at the upper range of the sanctions set

forth in the guidelines (e.g. suspension,

revocation) include lesser penalties, i.e.,

fine, reprimand or probation, which may be

included in the final penalty at th e Board's

discretion.

(3) The following disciplinary guidelines

shall be followed by the Board in imposing

disciplinary penalties upon licensees for

violation of the noted statutes and rules:

* * *

(i) Unprofessional conduct

(464.018(h) . . . . , F.S.)

- In delivery of nursing services: Fine from

$250 - $1,000 plus from one year probation

with conditions and appropriate CE courses

to suspension[8/] until proof of safety to

practice,[9/] followed by probation with

conditions.[1 0/] . . .

(4)(a) The Board shall be entitled to

deviate from the foregoing guidelines upon a

showing of aggravating or mitigating

circumstances by clear and convincing

evidence, presented to the Board prior to

the imposition of a final penalty at

inform al hearing. If a formal hearing is

held, any aggravating or mitigating factors

must be submitted to the hearing officer at

formal hearing. At the final hearing

following a formal hearing, the Board will

not hear additional aggravating or

mitigating evide nce.

(b) Circumstances which may be considered

for purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

1. The severity of the offense.

2. The danger to the public.

3. The number of repetitions of offenses.

4. Previous disciplinary action against the

licensee in this or any other jurisdiction.

5. The length of time the licensee has

practiced.

6. The actual damage, physical or

otherwise, caused by the violation.

7. The deterrent effect o f the penalty

imposed.

8. Any efforts at rehabilitation.

9. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations.

10. Cost of treatment.

11. Financial hardship.

12. Cost of discipli nary proceedings.

66. The Amended Administrative Complaint issued in the

instant case alleges that Respondent violated Subsection (1)(h)

of Section 464.018, Florida Statutes, in that, in connection

with his "delivery of nursing services" at IPMC in or ar ound

February and March of 2001, he engaged in "unprofessional

conduct" by "failing to conform to the minimal acceptable

standards of prevailing nursing practice as defined in Rule

64B9 - 8.005(13), Florida Administrative Code" (Count One); by

"administ[eri ng] . . . treatments or medications in a negligent

manner, as defined in Rule 64B9 - 8.005, Florida Administrative

Code" (Count Two); and by "practicing beyond the scope of the

licensee's license, educational preparation or nursing

experience as defined in R ule 64B9 - 8.005(15), Florida

Administrative Code" (Count Three).

67. In February and March of 2001, Subsection (1)(h) of

Section 464.018, Florida Statutes (2000), authorized the Board

to take disciplinary action against a Florida - licensed

registered nurse for "[u]professional conduct, . . .

include[ing], 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." 11/

68. At that time, "unprofessional conduct," as used in

subsection (1)(h) of Section 464.018, Florida Statutes (2000),

was defined by Board rule as follows:

Unprofessional conduct shall include:

(1) Inaccurate recording, falsifying or

altering of patient reco rds or nursing

progress records, employment applications or

time records; or

(2) Administering medications or treatments

in negligent manner; or

(3) Misappropriating supplies, equipment or

drugs; or

(4) Leaving a nursing assignment before

properly ad vising appropriate personnel; or

(5) Violating the confidentiality of

information or knowledge concerning a

patient; or

(6) Discrimination on the basis of race,

creed, religion, sex, age or national

origin, in the rendering of nursing services

as it re lates to human rights and dignity of

the individuals; or

(7) Engaging in fraud, misrepresentation,

or deceit in taking the licensing

examination; or

(8) Aiding and abetting the practice of

registered nursing or practical nursing by

any person not licen sed as a registered

nurse or a licensed practical nurse; or

(9) Practicing registered nursing or

practical nursing in the State of Florida

without a current license or time limited

permission by the Board to be employed; or

(10) Impersonating any appli cant or acting

as proxy for the applicant in any

examination required for the issuance of a

license; or

(11) Impersonating another licensed

practitioner, or permitting another person

to use his certificate for the purpose of

nursing for compensation; 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; or

(14) Exercising influence on a patient in

such a manner as to exploit the patient for

financial gain of the licensee or a third

party; or

(15) Practicing beyond the scope of the

licensee’s license, educational preparation

or nursing experience; or

(16) Sub mitting the attestation of 24 hours

of continuing education and one hour

continuing education on domestic violence

for licensure renewal under Rule 64B9 - 3.013,

F.A.C., when the licensee has not attended

or completed all such hours in the biennium;

or

(17) Failure of an ARNP dispensing

practitioner to comply with the registration

and compliance requirements of Rule 64B9 -

4.011, F.A.C.; or

(18) Testing positive for any drugs under

Chapter 893, F.S., on any drug screen when

the nurse does not have a prescri ption and

legitimate medical reason for using such

drug; or

(19) Violation of a Board order entered in

a licensure proceeding;

(20) Providing false or incorrect

information to the employer regarding the

status of the license.

69. Petitioner proved by clear and convincing evidence

that Respondent "fail[ed] to conform to the minimal standards of

acceptable prevailing nursing practice" in connection with his

"delivery of nursing services" to K. N. on February 23, 2001,

and to F. L. on March 18, 2001, and that Respondent therefore is

guilty of having engaged in "unprofessional conduct," as

described in Subsection (13) of the version of Rule 64B9 - 8.005,

Florida Administrative Code, that was in effect on those dates,

as Petitioner alleged in Count One of the Amended Administrative

Complaint.

70. Petitioner proved by clear and convincing evidence

that Respondent inserted a Foley Catheter in F. L. on March 18,

2001, in a negligent manner and that Respondent therefore is

guilty of having engaged in "unprofessio nal conduct," as

described in Subsection (2) of the version of Rule 64B9 - 8.005,

Florida Administrative Code, that was in effect on that date, as

Petitioner alleged in Count Two of the Amended Administrative

Complaint. 12/

71. Petitioner failed to prove b y clear and convincing

that the Foley catheter was inserted "without physician[']s[]

orders." Accordingly, Petitioner's proof is insufficient to

establish that Respondent is guilty of having engaged in

"unprofessional conduct," as described in Subsection (15) of the

version of Rule 64B9 - 8.005, Florida Administrative Code, that

was in effect on March 18, 2001, as Petitioner alleged in Count

Three of the Amended Administrative Complaint. This count of

the Amended Administrative Complaint should therefore be

dismissed.

72. The Board is authorized to impose upon Respondent, for

his having committed the violations alleged in Counts One and

Two of the Amended Administrative Complaint, "one or more of

the . . . penalties" that were specified in Subsection (2) o f

Section 464.018, Florida Statutes (2000), provided the Board

acts in accordance with its "disciplinary guidelines," as they

existed at the time of the violations.

73. Having carefully considered the facts of the instant

case in light of these "disciplin ary guidelines," and further

recognizing that the Board is now, and has been at all times

material to the instant case, statutorily authorized to "assess

costs related to the investigation and prosecution" of those

disciplinary cases it decides, 13/ the undersigned concludes

that, for his having committed the "[m]ultiple counts of

violations" described in Counts One and Two of the Amended

Administrative Complaint (which occurred on two different dates,

involved two different patients, and were extremely s erious

breaches of acceptable behavior for a nurse toward a patient),

Respondent should have his license permanently revoked and be

required to pay a $1,000.00 fine, as well as the "costs related

to the investigation and prosecution of the case." 14/ The

harsh penalty of permanent revocation is warranted "to protect

the public." Its imposition will ensure that Respondent will not

commit (in this state) any future violations of a similar nature

and will deter others from doing so. 15/

RECOMMENDATION

Bas ed upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue a final order in which it

dismisses Count Three of the Amended Administrative Complaint,

finds Respondent guilty of the violations alleged in Count s One

and Two of the Amended Administrative Complaint, and, as

punishment for having committed these violations, permanently

revokes Respondent's license and requires him to pay a fine in

the amount of $1,000.00, as well as the "costs related to the

invest igation and prosecution of the case." 16/

DONE AND ENTERED this 4th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrati ve Hearings

this 4th day of November, 2002.

ENDNOTES

1/ At the time of the incident, F. L. was approximately five

feet, seven inches tall and weighed approximately 155 pounds.

2/ The evidentiary record does not clearly and c onvincingly

establish that, as alleged in paragraph 14 of the Amended

Administrative Complaint, Respondent acted "without

physician[']s[] orders" when he "inserted the Foley catheter

[i]n patient F. L." While IPMC's records of F. L.'s March 18,

2001, admi ttance (which were offered and received into evidence

as Petitioner's Exhibit 2) do not reflect that any such orders

were given, neither do these records reflect that F. L. was ever

catherized (which, credible eyewitness testimony establishes, he

was). Al though a nurse should document that he or she has

received verbal orders from a physician to insert a Foley

catheter, according to the credible testimony of Dr. Michael

Estep, an emergency room physician at IPMC, "[t]here are

instances when [such orders ar e] not written down."

Furthermore, when asked at the final hearing whether he had "any

independent memory that [he] ordered a [Foley] catheter,

verbally," the IPMC emergency room physician who evaluated

Respondent, Dr. Luis Maciera - Rodriguez, responded, " I don't

recall right offhand, but I may have, because sometimes we do

that. I don't recall offhand if I did that or not."

3/ F. L.'s mother had left the room immediately after her son

had gone "totally berserk" (before Respondent had hit F. L. with

the Foley catheter), and she had not returned.

4/ The appropriate response would have been to "get [F. L.'s]

mother," who was in the waiting room area.

5/ Registered nurses are supposed to use only "minimum force,

according to what the needs are," to "rest rain a combative

patient."

6/ This finding is supported by expert testimony presented by

Petitioner, which the undersigned has credited. Compare with

Jordan v. Department of Professional Regulation , 522 So. 2d 450,

452 (Fla. 1st DCA 1988)("The Departmen t of Professional

Regulation presented expert testimony that appellant's actions

represented a failure to conform to acceptable and prevailing

nursing standards. We therefore affirm the guilt phase of

appellant's case.").

7/ Subsection (3) of Section 46 4.018, Florida Statutes (2000),

provided as follows:

The board shall not reinstate the license of

a nurse, or cause a license to be issued to

a person it has deemed unqualified, until

such time as it is satisfied that such

person has complied with all the terms and

conditions set forth in the final order and

that such person is capable of safely

engaging in the practice of nursing.

8/ Subsection (1) of Rule 64B9 - 8.006, Florida Administrative

Code, specified that the following types of suspensions could b e

imposed upon licensees as disciplinary penalties:

(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 pra ctice 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 d ependency, 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.

9/ Subsection (2) of Rule 64B9 - 8.011, Florida Administrative

Code, provided (as it still does):

In order to demonstrate the present ability

to engage in the safe practice of nursing,

the nurse must submit evidence which may

include:

(a) Completion of continuing education

courses approved by the Board, particularly

if the disciplinary action resulted from

unsafe practice or the nurse has been out of

practice for a number of years.

(b) Partic ipation in nursing programs,

including refresher courses, clinical skills

courses, and any Board approved nursing

education programs leading to licensure in

this state, particularly if the nurse has

been out of practice for a number of years.

(c) Submiss ion of evaluations of mental or

physical examinations by appropriate

professionals which attest to the nurse's

present ability to engage in safe practice

or conditions under which safe practice can

be attained.

(d) Completion of treatment within a

progra m designed to alleviate alcohol or

other chemical dependencies, including

necessary aftercare measures or a plan for

continuation of such treatment as

appropriate. Current sobriety must be

demonstrated.

(e) Other educational achievements,

employment bac kground, references,

successful completion of criminal sanctions

imposed by the courts and restoration of

civil rights if a convicted felon, or other

factors which would demonstrate

rehabilitation and present ability to engage

in the safe practice of nursi ng.

10/ Subsections (1)(f), (g), (h) and (i) of Rule 64B9 - 8.006,

Florida Administrative Codek, identified the following types of

probations upon which a licensee could be placed:

(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

ed ucation 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

punishmen t.

(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

dir ect supervision on a regularly assigned

unit.

(i) Personal appearances before the Board

to monitor compliance with the Board's

order.

11/ Subsection (1)(h) of Section 464.018, Florida Statutes, now

provides as follows:

The following acts constitute gr ounds for

denial of a license or disciplinary action,

as specified in s. 456.072(2):

Unprofessional conduct, as defined by board

rule.

"Unprofessional conduct" is presently "defined by board rule,"

as follows:

Unprofessional conduct shall include:

(a) Inaccurate recording; or

(b) Misappropriating supplies or equipment;

or

(c) Leaving a nursing assignment without

advising licensed nursing personnel; or

(d) Practicing registered nursing or

practical nursing in the State of Florida

with a delinquent license for no more than

90 days; or

(e) Acts of negligence either by omission

or commission; or

(f) Submitting the attestation of 24 hours

of continuing education and one hour

continuing education on domestic violence

for licensure renewal under Rule 64B9 - 3.013,

F.A.C., when the licensee has not attended

or completed all such hours in the biennium;

or

(g) Failure of an ARNP dispensing

practitioner to comply with the registration

and compliance requirements of Rule 64B9 -

4.011, F.A.C.

Rule 64B9 - 8.005 (1), Florida Administrative Code. "Failing to

meet minimal standards of acceptable and prevailing nursing

practice, including engaging in acts for which the licensee is

not qualified by training or experience" is now a separate

violation (not falling with in the definition of "unprofessional

conduct"). It is prohibited by Subsection (1)(n) of Section

464.018, Florida Statutes, and includes, according to Subsection

(2) of Rule 64B9 - 8.005, Florida Administrative Code, the

following:

(a) Falsifying or alter ing of patient

records or nursing progress records,

employment applications or time records; or

(b) Administering medications or treatments

in negligent manner; or

(c) Misappropriating drugs; or

(d) Violating the confidentiality of

information or kno wledge concerning a

patient; or

(e) Discrimination on the basis of race,

creed, religion, sex, age or national

origin, in the rendering of nursing services

as it relates to human rights and dignity of

the individuals; or

(f) Engaging in fraud, misrepre sentation,

or deceit in taking the licensing

examination; or

(g) Aiding and abetting the practice of

registered nursing or practical nursing by

any person not licensed as a registered

nurse or a licensed practical nurse; or

(h) Impersonating another li censed

practitioner, or permitting another person

to use his certificate for the purpose of

nursing for compensation; or

(i) Acts of gross negligence, either by

omission or commission; or

(j) Exercising influence on a patient in

such a manner as to exp loit the patient for

financial gain of the licensee or a third

party; or

(k) Testing positive for any drugs under

Chapter 893, F.S., on any drug screen when

the nurse does not have a prescription and

legitimate medical reason for using such

drug; or

(l) Violation of a Board order entered in a

licensure proceeding; or

(m) Providing false or incorrect

information to the employer regarding the

status of the license; or

(n) Practicing beyond the scope of the

licensee’s license, educational preparation

o r nursing experience.

12/ In finding that Respondent engaged in "unprofessional

conduct," as alleged in Counts One and Two of the Amended

Administrative Complaint, the undersigned has credited the

inculpatory eyewitness testimony of Petitioner's key fact

witnesses, Mr. Russo and Mr. Austin, who had no apparent motive

or reason to testify falsely against Respondent, over the

conflicting self - serving testimony given by Respondent. See

Martuccio v. Department of Professional Regulation , 622 So. 2d

607, 609 (Fla. 1st DCA 1993)(Although the self - serving nature of

testimony given by "[p]ersons having a pecuniary or proprietary

interest in the outcome of litigation" does not render such

testimony inadmissible, the interest of the person in the

outcome of the cas e may be considered in evaluating the

credibility of the testimony).

13/ See Section 456.072(4), Florida Statutes ("In addition to

any other discipline imposed through final order, or citation,

entered on or after July 1, 2001, pursuant to this section or

discipline imposed through final order, or citation, entered on

or after July 1, 2001, for a violation of any practice act, the

board, or the department when there is no board, shall assess

costs related to the investigation and prosecution of the

case. "). The Board has had such authority "to assess costs

related to the investigation and prosecution of the case" since

before the violations committed by Respondent in the instant

case. See Section 9 of Chapter 94 - 119, Laws of Florida.

14/ These are pe nalties that Petitioner, in its Proposed

Recommended Order, has suggested that the undersigned recommend

to the Board.

15/ Respondent presented no evidence indicating that he has

made, or that he intends to make, any effort to rehabilitate

himself. (Ind eed, he did not even concede that he was in need

of rehabilitation.) Moreover, there is nothing in the

evidentiary record to suggest that any efforts at

rehabilitation, if made by Respondent, would be successful. Cf .

S.E.C. v. Householder , 2002 WL 146681 2 (N. D. Ill.

2002)("[T]here is no indication that Householder has either

recognized his culpability or that he has offered any

assurances, sincere or otherwise, that he will not commit any

future violations . It is therefore sufficiently likely that

House holder will continue to engage in these violations of the

law if he is not enjoined from doing so.").

16/ "In the absence of a rule setting out a procedure for

establishing the appropriate amount of such costs, fundamental

fairness requires that the Boar d . . . require [Petitioner] to

submit to the Board and to the Respondent an itemized listing of

the costs for which payment is requested and that the Respondent

be given an opportunity to contest the accuracy and/or

reasonableness of the costs before the Board determines the

amount of costs the Respondent will be required to pay."

Department of Health, Board of Nursing v. Matus , No. 97 - 1911,

1997 WL 1053326 (Fla. DOAH 1997)(Recommended Order).

COPIES FURNISHED :

Amy M. Pietrodangelo, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Mary S. Lingerfeldt, Esquire

Bunnell, Woulfe, Kirschbaum, Keller,

McIntyre & Gregory, P.A.

888 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

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

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way

Bin C - 02

Tallahassee, Florida 32399 - 3252

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A - 02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A - 02

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 Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.