02-004163PL Department Of Health, Board Of Nursing vs. Gregory Norton, R.N. Status: Closed Recommended Order on Friday, February 14, 2003.

Summary: Lack of clear and convincing evidence militates that complaint against Respondent should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4163PL

)

GREGORY NORTON, R.N., )

)

Respondent. )

)

RECOMMENDED ORD ER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings conducted a formal administrative

hearing in this case on December 17, 2002, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo, Esquire

M ichael T. Flurry, Esquire

Department of Health

Bureau of Health Care Practitioner

Regulation - Legal

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Harvey L. Jay, III, Esquire

Eric a Vitsky, Esquire

Saalfield, Coulson, Shad & Jay, P.A.

1000 First Union Tower

225 Water Street

Jacksonville, Florida 32202 - 4458

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns

whether discipli nary action should be taken against Respondent's

nursing license based on an alleged violation of Section

464.018(1)(h), Florida Statutes.

PRELIMINARY STATEMENT

On July 29, 2002, an Administrative Complaint was filed

against Respondent, Gregory Norton, seeking to permanently

revoke, suspend, or otherwise discipline his license to practice

nursing.

Respondent timely requested a formal hearing and the matter

was referred to the Division of Administrative Hearings for a

formal hearing. The Administrative Complaint alleges that

Respondent practiced below the minimal acceptable standards of

prevailing nursing practice, specifically Section 464.018(1)(h),

Florida Statutes. The single charge in the Administrative

Complaint is premised on Respondent's treatme nt of patient, M.E.

on December 6, 2001.

At the hearing, Petitioner called five witnesses: M.E.,

the patient; R.A., the patient’s mother; Jeanne Baranek, a

Wolfson Children’s Hospital nurse without an independent

recollection of M.E.; Fern Rossello, a W olfson Children’s

Hospital nurse without an independent recollection of M.E.; and

Worthlyn White, an expert contracted with the Agency for Health

Care Administration to provide expert testimony. Petitioner

offered two exhibits: Exhibit 1 was M.E.’s medic al records at

Wolfson Children’s Hospital from December 5, 2001, to

December 7, 2001; Exhibit 2 was a copy of Worthlyn White’s

abbreviated resume.

Respondent called three witnesses: Kip Deckerhoff, a nurse

manager at Wolfson Children’s Hospital; Gregory Norton,

Respondent; and Cynthia Gerdik, an expert witness in pediatric

nursing. Respondent did not offer any exhibits.

A Transcript of the hearing was ordered and filed with the

Division of Administrative Hearings on January 16, 2003. The

parties reques ted and were granted leave to file proposed

recommended orders more than ten days after the filing of the

Transcript. Both parties filed Proposed Recommended Orders

which have been reviewed in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Respondent, Gregory Norton, is a licensed registered

nurse in the State of Florida holding License No. RN 2219032.

2. On December 5, 2001, M.E. presented at Wolfson

Children’s Hospital with complaints of pneumonia and fever and

was admitted for treatm ent. M.E. had been previously diagnosed

with sickle cell disease prior to his admission to the hospital.

3. Respondent was not working at Wolfson Children’s

Hospital on December 5, 2001.

4. In compliance with his duties at Wolfson Children’s

Hospital, R espondent performed a full assessment on M.E. on

December 6, 2001.

5. M.E. was discharged from the hospital on December 7,

2001. Again, Respondent was not working at Wolfson Children’s

Hospital on December 7, 2001.

6. At the final hearing, M.E. stated u nder oath that he

had no recollection of any events at Wolfson Children’s Hospital

on December 6, 2001, the only date alleged in the Administrative

Complaint. Specifically, M.E. testified that he did not

remember any examination by or discussion with Resp ondent on

December 6, 2001.

7. On December 6, 2001, M.E., in R.A.’s presence, denied

to Kip Deckerhoff that Respondent had engaged in any

inappropriate conduct during his examination. M.E.’s denial is

confirmed by sworn testimony provided by both R.A. a nd Kip

Deckerhoff, the nurse manager of M.E.’s floor at Wolfson

Children’s Hospital.

8. R.A. has no personal knowledge regarding Respondent's

examination of her son, M.E.

9. Worthlyn White, an expert witness presented by

Petitioner, has no current clin ical nursing role or consulting

contracts with any other employers at this time. White has a

contract/fee agreement with Petitioner to serve as an expert

witness. This is the only Florida case in which White has

offered an expert opinion. Before she bec ame a consultant for

Petitioner, White worked at the facility, Express Care , where

she rarely saw pediatric sickle cell patients. Her primary area

of certification is neonatal nursing. A neonate is a newborn

child up to 28 days of age. Teenagers are not classified as

neonates.

10. At the final hearing, White conceded that according to

Stedman’s Medical Dictionary for the Health Professional ,

perineum is defined as the area between the thighs extending

from the coccyx to the pubis and lying below the pe lvic

diaphragm and, accordingly, Respondent's care and examination of

M.E.’s perineum was appropriate. Respondent’s total examination

of M.E. was within the standard of care and Respondent's femoral

pulse check on M.E. was not below the standard of care.

11. Respondent testified regarding his treatment of M.E.

on December 6, 2001. Respondent has worked clinically at

Wolfson Children’s Hospital for 20 years. He has practiced as a

registered nurse in the State of Florida for 12 years. There

has never b een an investigation of Respondent’s license prior to

Petitioner’s allegations in this case.

12. Respondent testified that he performed a required

physical examination on M.E on December 6, 2001. When asked his

personal opinion on the standard of care, Respondent testified

that his treatment of M.E. on December 6, 2001, was appropriate.

13. Cynthia Gerdik, an expert in the area of pediatric

nursing, has practiced as a registered nurse for 30 years. She

is currently the nurse manager of Pediatric Servi ces at Shands

Jacksonville and the manager of the only sickle cell clinic in

North Florida.

14. Testimony of Gerdik establishes that Respondent's full

head - to - toe assessment on M.E., including an examination of all

body systems was within the standard of care. Further, it was

within the standard of care for Respondent to perform a femoral

pulse check and assess M.E.’s perineum. None of Respondent's

actions, pertaining to the treatment of M.E. on December 6,

2001, fell below the standard of care.

CONCLUSI ONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Section 120.57(1), Florida Statutes.

Disciplinary licensing proceedings are penal in nature. State

ex rel. Vining v . Florida Real Estate Commission , 281 So. 2d 487

(Fla. 1973). In this disciplinary licensing proceeding,

Petitioner has the burden of proving by clear and convincing

evidence the allegations against Respondent. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987).

16. The standard of "clear and convincing evidence"

requires that:

[T]he 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

wit nesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produced 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) (emphasis added).

17. The Administrative Complaint alleges that Respondent

practiced below the minimal acceptable standards of prevailing

nursing practice by improperly performing a femoral pulse check

and exam on M.E.’s genitals on December 6, 2001.

18. Under the definition of clear and convincing evidence,

Petitioner has not proven that Respondent’s treatment of M.E.

fell below the standard of care.

RECOMMENDATION

Based upon the foregoin g findings of fact and conclusions

of law, it is RECOMMENDED

That a final order be entered dismissing the complaint

against Respondent Gregory Norton.

DONE AND ENTERED this 14th day of February, 2003, in

Tallahassee, Leon County, Florida.

_______________ ____________________

DON W. DAVIS

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

File d with the Clerk of the

Division of Administrative Hearings

this 14th day of February, 2003.

COPIES FURNISHED :

Amy M. Pietrodangelo, Esquire

Michael T. Flurry, Esquire

Department of Health

Bureau of Health Care

Practitioner Regulation - Legal

4052 Ba ld Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Harvey L. Jay, Esquire

Erica Vitsky, Esquire

Saalfield, Coulson, Shad & Jay, P.A.

1000 First Union Tower

225 Water Street

Jacksonville, Florida 32202 - 4458

Dan Coble, Executive Director

Board of N ursing

Department of Health

4052 Bald Cypress 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.