02-002297PL Department Of Health, Board Of Nursing vs. Linda Koppelman, R.N. Status: Closed Recommended Order on Friday, December 20, 2002.

Summary: Recommended suspension until Intervention Project for Nurses (IPN) evaluates and, if necessary, orders treatment and probation for three years on such conditions as IPN recommends for a nurse who obtained Oxycontin with a forged perscription.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2297PL

)

LINDA KOPPELMAN, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Vero

Beach, Florida, on September 18, 2002.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Suzanne H. Suarez

Suzanne Ho pe Suarez, P.A.

The Legal Building

447 3rd Avenue North, Suite 404

St. Petersburg, Florida 33701 - 3255

STATEMENT OF THE ISSUES

The issues are whether Respondent obtained Oxycontin by

using a forged prescription, in violation of Section

464.018(1)(h), Florida Statutes, and Rule 64B9 - 8.005, Florida

Administrative Code, which prohibit unprofessional conduct, and

in violation of Section 464.018(1)(i), Florida Statutes, which

prohibit the unauth orized possession, sale, or distribution of

controlled substances; and whether Respondent's use of Oxycontin

affects her ability to practice nursing with reasonable skill

and safety, in violation of Section 464.018(1)(j), Florida

Statutes, which prohibits the inability to practice nursing with

reasonable skill and safety by reason of illness or use of

alcohol, drugs, narcotics, or chemicals or as a result of any

mental or physical condition. If so, an additional issue is

what penalty should be imposed.

PRE LIMINARY STATEMENT

By Administrative Complaint dated April 1, 2002, Petitioner

alleged that, on October 5, 2001, Respondent dropped off a

forged prescription at Walgreens for fifty 20 - mg. Oxycontin

tablets for patient O. C. The Administrative Complaint a lleges

that Dr. Stuart Byer, of the Indian River Cancer Center,

apparently signed the prescription, but in fact had not done so.

The Administrative Complaint alleges that two days later

Respondent picked up the prescription. The Administrative

Complaint alleges that Respondent's use of Oxycontin affects her

ability to practice nursing with reasonable skill and safety.

Based on these allegations, the Administrative Complaint alleges

that Respondent has violated the provisions set forth above.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called eight witnesses and

offered into evidence 17 exhibits: Petitioner Exhibits 1 - 17.

Respondent called six witnesses and offered into evidence six

exhibits: Respondent Exhibits 1 - 2 and 4 - 7. All exhibits were

admitted except Petitioner Exhibit 13 and Respondent Exhibit 4,

which were proffered. Petitioner's objections to Respondent

Exhibit 4 are sustained.

The court reporter filed the transcript on October 22,

2002. The parties filed the ir proposed recommended orders on

November 25, 2002.

FINDINGS OF FACT

1. Respondent is a licensed registered nurse, holding

license number RN 521142. She has been so licensed for 31

years. Respondent's long career in nursing has featured

dedication, har d work, commitment, and competence. The record

does not reveal any past discipline.

2. For most of Respondent's professional career, starting

in 1971, she has worked at Indian River Memorial Hospital in

Vero Beach. Respondent has worked in various capac ities at the

hospital, including the emergency room and operating room.

Respondent later helped develop a neurological unit at the

hospital. Starting in 1980, she worked for a couple of years at

Vero Orthopedics. Since 1997, Respondent has worked on a

c ontract basis at the Indian River Memorial Hospital, although

her present physical infirmities, partly described below,

prevent her from working at present.

3. In May 2000, Respondent injured her back while moving a

heavy patient in the hospital. A cou ple of months later,

Respondent underwent a laminectomy to relieve the pain from two

herniated disks. Six weeks after the surgery, Respondent

reinjured her back and had to undergo additional surgery. Six

weeks after the second surgery, Respondent, who wa s not doing

well, left her job at the orthopedic clinic and took a less

strenuous job. One month after doing so, Respondent was still

experiencing pain when she got into and out of cars.

4. In June 2001, Respondent underwent a third operation,

in which t he surgeon fused two injured vertebrae. The surgery

obtained access to the vertebrae by a posterior incision running

from the breast to the pubis. The surgery also required a hip

bone graft, thus necessitating an incision to the hip. The

recovery from t his excruciatingly painful surgery was difficult,

and Respondent has not yet returned to work, although she is

nearing the point at which she can perform some nursing - related

work, such as teaching. At present, she still has difficulty

walking or standing .

5. When discharging Respondent from the hospital in late

June 2001, Dr. Gomez prescribed her Oxycontin for pain.

Dr. Gomez was covering for Respondent's neurosurgeon,

Dr. Magana. Later, Dr. Cunningham, a pain management specialist

and Respondent's fam ily physician, resumed the care of

Respondent. Dr. Cunningham continues to monitor Respondent and

treat her pain.

6. On direct examination, Respondent testified that she

has not taken Oxycontin since December 2001. (However, on

August 9, 2002, Responden t told her certified addictions

professional that she had not taken any Oxycontin since March

2001.) Respondent testified that, after Oxycontin, she took no

pain medication besides nonsteroidal anti - inflammatory

medications and steroids.

7. However, on cross - examination, Respondent admitted that

she takes Methadose as needed, pursuant to a prescription from

Dr. Cunningham. Respondent testified that he switched her from

Oxycontin in July 2002. Respondent filled the Methadose

prescription at a different drug store than the one that she has

used for her other prescriptions.

8. On October 5, 2001, Respondent presented a forged

prescription to a different drug store than the one she has used

for her other prescriptions. The prescription was for fifty 20 -

m g. Oxycontin tablets, which Respondent picked up two days

later. Respondent fraudulently obtained the Oxycontin for her

own use.

9. Oxycontin is an analgesic opioid and a schedule II

controlled substance. It is highly addictive and presently

among the m ost commonly abused controlled substances. Oxycontin

can produce a feeling of short - lived euphoria, as well as

impaired cognitive functioning and impaired judgment.

10. Methadose, a form of methadone, is a synthetic

analgesic. It is also used in the det oxification process

undergone by heroin addicts.

11. Petitioner has proved by clear and convincing evidence

that Respondent engaged in unprofessional conduct in her

acquisition of the Oxycontin by using a forged prescription and

that Respondent unlawfully possessed a controlled substance.

12. Petitioner has not proved by clear and convincing

evidence that Respondent's use of Oxycontin affects her ability

to practice nursing with reasonable skill and safety. First,

Petitioner did not prove by clear and co nvincing evidence that

Respondent still uses Oxycontin. It appears likely that she may

have substituted Methadose for Oxycontin to manage her pain. It

is unclear from the present record whether Respondent's use of

Methadose is also to assist her in overc oming an addiction to

Oxycontin. But even if Petitioner had pleaded Methadose rather

than Oxycontin, the record does not reveal the extent to which

Respondent presently uses Methadose.

13. For the reasons stated in the preceding paragraph, the

relevance of the Methadose is not to prove the third count of

the Administrative Complaint, but to underscore the risk that

Respondent may pose if she practices nursing at present.

Respondent was not candid at the hearing. She was not candid

about the October 2001 incident. She was not candid about the

recent use of Methadose and was evasive about the drug's

properties.

14. The two - hour evaluation that Respondent underwent by a

certified addictions professional was cursory and curiously

deferential to Responden t. This remarkable evaluation is

entitled to absolutely no weight whatsoever. The opinion of the

certified addictions professional that Respondent does not

suffer from a drug abuse or dependency may or may not be true,

but, if true, the result is a chanc e occurrence, rather than a

professional conclusion following the comprehensive collection

of relevant, reliable data and the careful, informed analysis of

such data.

15. The safeguards provided by the pretrial intervention

program, into which Respondent entered after her arrest for the

fraudulent acquisition of the Oxycontin, are inadequate. The

random drug tests always occur on Tuesdays, just not every

Tuesday. The assurances that ensue from Respondent's apparent

compliance with the conditions of her p robation, which include

negative urinalyses, are meaningful, but not sufficiently

rigorous to provide the necessary protection to a nurse's

patients.

16. On December 26, 2001, Petitioner entered an emergency

suspension order in this case. The record am ply demonstrates

that Respondent will suffer considerable financial distress if

denied the opportunity to practice her profession. However,

Respondent's lack of candor precludes a detailed analysis of the

safeguards in her current monitoring program and a detailed

prescription of what, if any, additional safeguards would be

required to permit any discipline short of a suspension. In its

proposed recommended order, Petitioner seeks a suspension until

lifted pursuant to, and subject to the conditions set by , an

evaluation coordinated by the Intervention Project for Nurses

(IPN); treatment as recommended by the IPN; probation for three

years if no treatment is recommended by the IPN; an

administrative fine of $750; a reprimand; and the assessment of

costs of the investigation and prosecution.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Ru les are to the Florida

Administrative Code.)

18. Section 464.018(1)(h), (i), and (j) provides:

The following acts constitute grounds for

denial of a license or disciplinary action,

as specified in s. 456.072(2):

(h) Unprofessional conduct, as defined by

board rule.

(i) Engaging or attempting to engage in the

possession, sale, or distribution of

controlled substances as set forth in

chapter 893, for any other than legitimate

purposes authorized by this part.

(j) Being unable to practice nursing with

rea sonable skill and safety to patients by

reason of illness or use of alcohol, drugs,

narcotics, or chemicals or any other type of

material or as a result of any mental or

physical condition. In enforcing this

paragraph, the department shall have, upon a

fi nding of the secretary or the secretary's

designee that probable cause exists to

believe that the licensee is unable to

practice nursing because of the reasons

stated in this paragraph, the authority to

issue an order to compel a licensee to

submit to a me ntal or physical examination

by physicians designated by the department.

If the licensee refuses to comply with such

order, the department's order directing such

examination may be enforced by filing a

petition for enforcement in the circuit

court where th e licensee resides or does

business. The licensee against whom the

petition is filed shall not be named or

identified by initials in any public court

records or documents, and the proceedings

shall be closed to the public. The

department shall be entitle d to the summary

procedure provided in s. 51.011. A nurse

affected by the provisions of this paragraph

shall at reasonable intervals be afforded an

opportunity to demonstrate that she or he

can resume the competent practice of nursing

with reasonable skil l and safety to

patients.

19. Although Rule 64B9 - 8.005(1), which defines

unprofessional conduct, does not mention explicitly the act of

which Respondent is guilty in forging a prescription (as

distinguished from Rule 64B9 - 8.005(2)(a) and (c), which menti ons

falsifying patient records and misappropriating drugs as

examples of failing to meet the minimum standards of nursing

practice), this rule is only illustrative. Obviously, forging a

prescription to obtain Oxycontin for one's unauthorized use is

unprof essional conduct for a nurse.

20. Section 893.03(2) provides:

A substance in Schedule II has a high

potential for abuse and has a currently

accepted but severely restricted medical use

in treatment in the United States, and abuse

of the substance may le ad to severe

psychological or physical dependence.

Section 893.03(2)(a)1 lists Oxycontin as a schedule II

controlled substance.

21. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Os borne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

22. Rule 64B9 - 8.006(3)(p) provides that the penalty for a

first - offense violation of Section 464.018(1)(h), in which no

injury is demonstrat ed, is a citation.

23. Rule 64B9 - 8.006(3)(q) provides that the penalty

guidelines for a first - offense violation of Section

464.018(1)(i) range from a $250 fine, IPN evaluation, and

probation to a $500 fine and suspension followed by probation.

Rule 64B9 - 8 .006(3)(r) provides the same penalty guidelines for a

first - offense violation of Section 464.018(1)(j).

24. Section 456.072(4) provides:

In addition to any other discipline imposed

through final order, or citation, entered on

or after July 1, 2001, pursua nt 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 prose cution of the

case. In any case where the board or the

department imposes a fine or assessment and

the fine or assessment is not paid within a

reasonable time, such reasonable time to be

prescribed in the rules of the board, or the

department when there i s no board, or in the

order assessing such fines or costs, the

department or the Department of Legal

Affairs may contract for the collection of,

or bring a civil action to recover, the fine

or assessment.

25. Petitioner has proved a violation of Section

464.018(1)(h) or (i), but not Section 464.018(1)(j). Because

the relevant facts are the same for either violation, Petitioner

may impose discipline only for one violation, not for two

violations. Although Respondent's act in fraudulently obtaining

the Ox ycontin prescription constitutes unprofessional conduct,

this act is better described as the unauthorized possession of a

controlled substance, so Section 464.018(1)(i) should provide

the basis for discipline.

26. Despite Respondent's long, successful car eer in

nursing, the lack of injury to the public, and the financial

burden of a suspension, a suspension is necessary in this case

so that Petitioner can obtain an adequate evaluation of

Respondent's current status and safety to practice. Thus, the

approp riate penalty is a suspension until lifted pursuant to,

and subject to the conditions set by, an evaluation coordinated

by the IPN; treatment as recommended by the IPN; probation for

three years if no treatment is recommended by the IPN; an

administrative fine of $250; and the assessment of costs of the

investigation and prosecution. The Administrative Law Judge

shall retain jurisdiction to assess the costs of the

investigation and prosecution upon remand, if the parties are

unable to stipulate to these co sts within a reasonable time.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

finding Respondent guilty of violating Section 464.018(1)(i),

Florida Statutes, and imposing a penalty of a $250

administrative fine, a suspensio n until lifted pursuant to, and

subject to the conditions set by, an evaluation coordinated by

the IPN; treatment as recommended by the Intervention Project

for Nurses; probation for three years if no treatment is

recommended by the Intervention Project fo r Nurses; and the

assessment of costs of the investigation and prosecution, upon

remand, if necessary.

DONE AND ENTERED this 20th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 w ith the Clerk of the

Division of Administrative Hearings

this 20th day of December, 2002.

COPIES FURNISHED:

Dan Coble, RN PhD CNAA C, BC

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Amy M. Pietrodangelo

Assistant General Counsel

Prosecution Services Unit

De partment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Suzanne H. Suarez

Suzanne Hope Suarez, P.A.

The Legal Building

447 3rd Avenue North, Suite 404

St. Petersburg, Florida 33701 - 3255

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 must be filed with the agency that

will issue the final order in this case.