03-000534PL Department Of Health, Board Of Nursing vs. Jane Wickham, L.P.N. Status: Closed Recommended Order on Wednesday, July 9, 2003.

Summary: Nurse guilty of unnecessary physical force violated statute and rules prohibiting unprofessional conduct and departure from the minimal standards of acceptable and prevailing nursing practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0534PL

)

JANE WICKHAM, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was conducted in

this case on May 6, 2003, in Bunnell, Florida, before the

Division of Administrative Hearings, by its duly - assigned

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Trisha D. Bowles, Esquir e

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent violated Section 464.018(1)(h), Florida

Statut es (2000), covering unprofessional performance of nursing

duties and failure to conform to minimal standards of nursing

practice, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 18, 2000, Petitioner, Department of Health,

fi led an Administrative Complaint against Respondent, alleging

that she violated Section 464.018(1)(h), Florida Statutes

(2000), as defined in Rule 64B9 - 8.005(14), Florida

Administrative Code. Specifically, it is alleged that

Respondent performed her nursin g duties in an unprofessional

manner and failed to conform to the minimal standards of

acceptable and prevailing nursing practice by using excessive

physical force and causing a patient physical and emotional

harm.

Respondent requested an administrative hearing, and the

case was referred to the Division of Administrative Hearings on

or about February 13, 2003.

On May 6, 2003, the disputed - fact hearing was held in

Bunnell, Florida. After waiting 45 minutes from the time

scheduled for the hearing to comme nce, neither Respondent nor

the court reporter had appeared. As permitted by law, the

Agency provided taping equipment instead of a court reporter.

The docket was sounded throughout the courthouse and

Respondent was not found. The hearing proceeded the reafter.

Petitioner had previously filed a Motion to Deem Admissions

Admitted, which was granted orally at hearing. 1/ Petitioner's

Motion for Official Recognition of Section 20.403, Florida

Statutes; Section 464.018, Florida Statutes; and Rule 64B9 -

8.005 , Florida Administrative Code, was likewise granted orally.

Petitioner presented the testimony of Dianne Mongelli, Evelyn

Bible, Judy Kiziukiewicz, Lynn Peabody, Kimberly Horn, and Meiko

Mills. Petitioner's Exhibits A, B, C, D, E, and F were admitted

in evidence. Records subject to confidentiality provisions

established by statute or rule have been protected and are being

transmitted, under seal, to the Agency with this Recommended

Order.

Respondent had not appeared by the end of Petitioner's

case - in - ch ief, and the hearing was concluded.

A Transcript, created from the taped hearing, was filed on

June 9, 2003. This Transcript was paid for by the Agency and

created by a certified court reporter of the Division of

Administrative Hearings. A Post - Hearing Order was entered which

advised both parties of the date the Transcript was filed with

the Division and of the opportunity to file Proposed Recommended

Orders.

Petitioner's Proposed Recommended Order was timely filed on

June 16, 2003, and has been consi dered. Respondent has not

filed any proposal.

FINDINGS OF FACT

1. Respondent Jane Wickham is a Licensed Practical Nurse

in the State of Florida, having been issued license number

PM1227531.

2. Petitioner is the State Agency charged with regulation

of the practice of nursing, pursuant to Chapters 20, 456, and

464, Florida Statutes (2000).

3. On June 6, 2001, Respondent was a nurse employed by

and/or working at Daytona Health and Rehabilitation Center

(DHRC), Daytona Beach, Florida.

4. On June 6, 20 01, Respondent was assigned to provide

patient care to patient M. M., an 81 - year - old female patient,

who suffers from Alzheimer's Dementia and/or Alzheimer's Disease

and dementia. M. M. had been recently admitted to DHRC on

May 23, 2001. Her records i ndicate she was very combative.

Respondent had worked with M. M. between May 23, 2001, and

June 6, 2001.

5. On June 6, 2001, Respondent attempted to administer

oral medication to M. M.. M. M. said the medicine upset her

stomach and refused it. She w as heard repeatedly saying, "I

don’t want it!" Respondent enlisted assistance from a Certified

Nursing Assistant (CNA), who helped Respondent give M. M. a

portion of the medicine, which M. M. then spat into Respondent's

face. Some medicine struck Respond ent. Respondent wiped

herself off with a towel. She then grabbed M. M. forcibly by

the arm, and briskly walked her into the dayroom and sat her on

the couch.

6. Lynn Peabody, Physical Therapy Assistant, observed

M. M. and Respondent in the dayroom. M. M. attempted to get up

from the couch and away from Respondent. M. M. and Respondent

were swinging at each other, but Ms. Peabody was unable to see

any "striking" by Respondent. M. M. swung the towel and knocked

off Respondent's glasses.

7. At th at point, Respondent one again grabbed M. M.

forcibly by her arm, wrenched her up from the couch, and briskly

walked her to her room. Respondent used such force that M. M.'s

slipper was pulled off as she tried to resist being pulled down

the hall by Respo ndent.

8. Respondent put patient M. M. in her room, shut the

door, and held the door shut, trapping patient M. M. inside.

While trapped in the room, M. M. was yelling, screaming, and

trying to get out of the room. M. M. was upset and crying.

Judy Kizi ukiewicz, Marketing Director, was in the restroom

across the hall from M. M.'s room. She heard screaming and

banging from the altercation. She heard M. M. calling, "Help!

help! help!" She also heard Respondent saying, "I'll kill you!

I'll kill you!" Ms . Kiziukiewicz exited the restroom and went

to M. M.'s aid. M. M. was shaky, tearful, frightened, and

holding her arm, which was very red. M. M. said to Ms.

Kiziukiewicz, "She won't let me out."

9. Ms. Peabody testified without refutation that she

obse rved Respondent shut M. M. in her room and hold the door

closed, while M. M. shouted "Let me out!" Ms. Peabody also

heard Respondent say, "I've had enough of this shit."

10. About 3:00 p.m. on June 7, 2001, Janice Ullery,

Licensed Practical Nurse, docume nted in patient M. M.'s records

that M. M.'s right thumb was swollen and noted bruising.

11. On June 8, 2001, Thomas Mistrata, an Investigator for

the Department of Children and Families, interviewed patient

M. M. He did not testify, but his report w as admitted, pursuant

to Section 120.57(1)(c), as explaining or supplementing direct

evidence. His report indicates bruising to M. M.'s right hand,

along the thumb extending to the wrist, and small circular

bruising to M. M.'s arm, which appeared to him t o be a hand

print. His report also indicates observation of bruising to the

top of M. M.'s left hand that was circular and approximately

four centimeters wide. He took photographs of the bruises.

Ms. Kiziukiewicz, who did testify, observed that these

p hotographs did not fully show the redness of M. M.'s arm on

June 6, 2001, when she observed M. M.'s injuries immediately

after M. M.'s altercation with Respondent.

12. On June 9, 2001, M. M. was examined by James R.

Shoemaker, D.O. Dr. Shoemaker observed and documented in M.

M.'s DHRC medical records a bruise on M. M.'s right hand.

13. Upon the expert testimony of Meiko Miles, Licensed

Nurse Practioner and Registered Nurse, it is found that

Respondent's conduct with regard to Alzheimer's Patient, M. M. ,

was below prevailing standards of nursing, constituted

negligence, and further constituted a failure to conform to the

minimal standards of acceptable and prevailing nursing practice

for elderly, fragile patients or for patients refusing

medications. Ev en though Ms. Miles was not present for all of

the witnesses' testimony concerning the actual altercation

between Respondent and M. M., I accept Ms. Miles' testimony

based upon her review of medical records, nursing notes, and

medical administration report s, and given her answers in

response to questions which conformed to the facts as related by

the witnesses who had observed the actual event.

14. I also accept the testimony of Ms. Miles and other

witnesses to the effect that Respondent's training and

e xperience had or should have provided her with less extreme

methods upon which to rely in dealing with M. M.'s resistance

and combativeness.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matt er of this cause,

pursuant to Section 120.57(1), Florida Statutes.

16. Petitioner has the duty to go forward and the burden

of proof by clear and convincing evidence of all elements of the

administrative complaint. Ferris v. Turlington , 510 So. 2d 292

( Fla. 1987).

17. Section 464.018(1)(h), Florida Statutes, makes it a

violation of the Nurse Practice Act for a licensee to engage in

"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 actual injury need not be established . . . "

18. Rule 64B9 - 8.005, Florida Administrative Code, defines

"unprofessional conduct" to include:

(12) Acts of negligence, gross neglig ence,

either by omission or by commission;

(13) Failure to conform to the minimal

standards of acceptable and prevailing

nursing practice, regardless of whether or

not actual injury to the patient was

sustained.

19. The foregoing Findings of Fact have been made upon the

competent evidence admitted at trial and upon the Admissions

deemed admitted. However, where the "live" testimony and actual

medical records in evidence differed from the (Requests for)

Admission, the undersigned has considered that to be the "best

evidence" over the Requests for Admission which went unanswered

by a pro se litigant. 2/ Even so, it has been clearly and

convincingly proven that Respondent violated Section

464.018(1)(h), Florida Statutes. Moreover, actual injury to

Patie nt M. M. also has been clearly and convincingly proven.

20. Respondent used unnecessary force with Patient M. M.,

causing physical and emotional injury to her. Respondent is

guilty of violating Section 464.018(1)(h), Florida Statutes, and

Rule 64B9 - 8.00 5(12) and (13), Florida Administrative Code, by

failing to conduct herself professionally, in that she caused

physical and emotional harm to M. M..

21. Rule 64B9 - 8.006, Florida Administrative Code, details

the disciplinary guidelines of the Board of Nurs ing, together

with a range of penalties and the aggravating and mitigating

circumstances. Rule 64B9 - 8.006(3)(p), Florida Administrative

Code, specifies the penalties for a first offense for

unprofessional conduct, in which case actual injury has been

esta blished pursuant to Section 464.018(1)(h), Florida Statutes,

as ranging from a fine of $250.00 and probation to a $500.00

fine and suspension, to be followed by a term of probation.

Lesser penalties of a reprimand and/or course work may be

included. The Rule also provides a wide range of types of

suspensions, restrictions of practice, and conditions of

probation.

22. Rule 64B9 - 8.006(5)(b), Florida Administrative Code,

lists ten mitigating/aggravating factors to be considered in

assigning a penalty. Subs ections 1, 3, 4, 5, 9, and 10 are

relevant here. The evidence herein also suggests the following

mitigating circumstances, not necessarily recognized by the

guidelines: that M. M. was a very combative patient; that

Respondent had only worked with M. M. a portion of 13 days; that

Respondent tried to ameliorate a volatile situation by calling

in the CNA; and that Respondent was provoked by M. M.'s spitting

on her and by the visual disorientation and physical damage to

Respondent's glasses caused by M. M.'s a ctive physical

resistance. Be that as it may, the testimony is clear and

convincing that Respondent was never in serious physical danger

from M. M. nor was she wounded by M. M. Respondent should not

have allowed anger to guide her judgment and actions in place of

professional standards for dealing with this type of patient.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of Nursing

enter a final order which finds Resp ondent, Jane Wickham, guilty

of violating Section 464.018(1)(h), Florida Statutes, and of

violating Rule 64B9 - 8.005 (12) and (13), Florida Administrative

Code; and imposing a penalty as follows:

(1) Issues a reprimand;

(2) Assigns a fine of $300.00, plus the cost of

investigation;

(3) Requires that Respondent complete a specified number

of hours of continuing education course work in the subject

areas of anger management and patient rights;

(4) Places Respondent on probation until such fine is paid

an d such course work is completed, the probation to be upon such

conditions as the Board deems appropriate to protect the public

health, safety and welfare; and

(5) Requires, after the fine is paid and the course work

is completed, that Respondent appear be fore the Board to

determine if she is safe to practice and to determine if any

further probation is warranted, and if so, to determine the

terms of that probation.

DONE AND ENTERED this 9th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. 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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of July 2003.

ENDNOTES

1/ In accordance with the Florida Rules of Civil Procedure, only

a Notice of Filing of Requests for Admission was filed with the

Divisi on. However, a full copy of the requests themselves was

submitted at the disputed - fact hearing and that copy is included

with the exhibits being returned to the Agency.

2/ Requests for Admission which are admitted or not timely

answered may be considere d as true, without further proof.

However, where evidence which differs from the Admissions is

offered at the hearing by the party relying on the Admission, it

is nonsensical to rely on the Admissions.

COPIES FURNISHED:

Trisha D. Bowles, Esquire

Depa rtment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dan Coble, RN, PhD, CNAA C, BC

Executive Director

Board of Nursin g

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

Jane Wickham

3878 Cranberry Avenue

Bunnell, Florida 32110

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.