03-001458PL Department Of Health, Board Of Nursing vs. Pearla M. Mixon, C. N. A. Status: Closed Recommended Order on Tuesday, July 22, 2003.

Summary: Respondent, a Certified Nursing Assistant, struck dementia patient, who was under her care, in the face; abuse; revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1458PL

)

PEARLA M. MIXON, C.N.A., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held before

Daniel M. Kilbride, Administrative Law Judge, Division of

Administrative Hearings, in the above - styled case on June 26,

2003, by video teleconference with sites in Tallahassee and

Tampa, Florida.

APPEARANCES

For Peti tioner: Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether R espondent violated Sections 456.072(1)(k) and

464.204(1)(b), Florida Statutes (2001), and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On August 1, 2002, the Department of Health, Board of

Nursing, Petitioner, filed an Administrative Com plaint against

Pearla M. Mixon, Respondent, alleging a violation of Sections

456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by

intentionally violating the statutory and legal obligation of

certified nursing assistants to not physically abuse or hit a

patient.

Respondent filed a request for formal hearing which

disputed the allegations of the Administrative Complaint. On

April 23, 2003, the case was forwarded to the Division of

Administrative Hearings, and Administrative Law Judge Susan B.

Kirkla nd was assigned this case by Initial Order, and this

matter was set for hearing. Petitioner filed its Pre - hearing

Statement on June 5, 2003.

At the hearing, Daniel M. Kilbride, Administrative Law

Judge, presided as the trier of fact. Petitioner's Exhibit 1

(Respondent's verification of certification as a certified

nursing assistant from the Department of Health) was received in

evidence. Agnes Kelly, registered nurse, testified on behalf of

Petitioner. The record remained open in order to take the

testi mony of Sheleta Cunningham - Talley, certified nursing

assistant, by deposition. The deposition of the witness was

taken on July 3, 2003, and filed on July 7, 2003.

The parties were given ten days from the date of the filing

of the official transcript in which to file proposed recommended

orders. The Transcript was filed on July 9, 2003.

Petitioner filed its Proposed Recommended Order on July 11,

2003. Respondent has not filed her proposals as of the date of

this Recommended Order.

FINDINGS OF FACT

1. Effective July 1, 1997, Petitioner is the state agency

charged with regulating the responsibility for regulation and

discipline of the nursing practice within the State of Florida.

2. Respondent is a certified nursing assistant (CNA)

holding Florida nursi ng certificate number CX 0993266675590.

3. In December 2001, Respondent was employed as a CNA at

Beverly Health Care, now known as Seacrest Health Care of Largo.

4. Patient F.K. was a dementia patient in her advanced

years and was not coherent or respons ive. She was a total care

patient, which required staff to perform all activities of daily

living for her, such as mouth care, showers, feeding, dressing,

bathing, and getting her into and out of bed. Patient F.K. did

not speak, but did have a tendency t o hum loudly and

continuously.

5. On December 20, 2001, Respondent was in Patient F.K.'s

room following Patient F.K.'s return from lunch. Respondent

called another CNA, Sheleta Cunningham - Talley, into Patient

F.K.'s room, and Respondent engaged her in co nversation. At

that time, Patient F.K. was humming, as she often did.

Respondent said to Talley, "watch how I shut this bitch up" and

then proceeded to strike Patient F.K. on the face and throat.

Patient F.K.'s face and neck turned red, and she became v isibly

upset after being struck.

6. Beverly Health Care has a policy that residents have a

right not to be physically abused. CNAs are under a legal or

statutory duty not to hit or abuse patients. Striking a patient

in the face and throat is a violation of that duty to not

physically abuse a patient.

7. Agnes Kelly is a registered nurse who was employed at

Beverly Health Care during Respondent's employment there. Kelly

has practiced as a registered nurse since 1994. She was a

weekend supervisor at Bev erly Health Care and supervised

approximately 25 nursing employees which included a number of

CNAs. Kelly has supervised nursing staff and CNAs for

approximately nine years, and, as such, is familiar with the

duties and responsibilities of CNAs. It is he r opinion that

Respondent violated her duty not to physically abuse a patient.

8. Based on the foregoing, the evidence is clear and

convincing that Respondent violated Sections 456.072(1)(k) and

464.204(1)(b), Florida Statutes (2001), by intentionally

v iolating the statutory and legal obligation of CNAs to not

physically abuse or hit a patient.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Sections 120.5 69, 120.57(1), 120.60, and Chapters

456 and 464, Florida Statutes (2001).

10. Pursuant to Section 464.204(1), Florida Statutes

(2001), Petitioner is empowered to revoke, suspend, or otherwise

discipline the license of a CNA for violation of Section

456.07 2(1)(k), Florida Statutes (2001), for failure to perform

any statutory or legal obligation placed upon Respondent.

11. Revocation of license proceedings are penal in nature,

State ex rel Vining v. Florida Real Estate Commission , 281 So.

2d 487 (Fla. 1973 ), and must be construed strictly in favor of

the one against whom the penalty would be imposed. Munch v.

Department of Professional Regulation, Division of Real Estate ,

592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of

Professional Regulat ion , 441 So. 2d 1121 (Fla. 3d DCA 1983).

The standard of proof required in this matter is that relevant

and material findings of fact must be supported by clear and

convincing evidence of record. Department of Banking and

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

Petitioner has the burden of proving by clear and convincing

evidence each of the allegations in the Administrative

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

12. Subsection 456.072(1), Florida Statutes (200 1), as it

pertains to the alleged facts in this matter reads, in pertinent

part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(k) Failing to perform any statutory or

legal obligation placed upon a licensee.

13. Relative to the above statutory prohibitions,

Petitioner's disciplinary guidelines are set forth in Section

464.204(2), Florida Statutes (2001). This statute provides that

Respondent's license may be pen alized as follows:

(2) When the board finds any person guilty

of any of the grounds set forth in

subsection (1), it may enter an order

imposing one or more of the following

penalties:

(a) Denial, suspension or revocation of

certification.

(b) Impositi on of an administrative fine

not to exceed $150 for each count or

separate offense;

(c) Imposition of probation or restriction

of certification, . . . .

14. In order to find that a nurse has violated this

statute, an intentional act must be proven befo re a violation

can be found. Munch v. Department of Professional Regulation,

Division of Real Estate , supra .

15. The evidence establishes by clear and convincing

evidence that Respondent intentionally struck a patient, without

justification or cause, a mounting to physical abuse. This is a

violation of a statutory and legal duty.

16. An aggravating factor to be considered is that Patient

F.K. was completely dependent on those around her for her basic

care and needs. She was defenseless against Respond ent's

unprovoked attack. Respondent chose not to attend the hearing

or deposition and offered no evidence in contravention or in

mitigation of her actions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat Petitioner issue a final order finding

Respondent guilty of violating Sections 456.072(1)(k) and

464.204(1)(b), Florida Statutes (2001), and revoking

Respondent's certification and requiring Respondent to pay the

costs of investigation and prosecution of this matter.

DONE AND ENTERED this 22nd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DANIEL M. KILBRIDE

Ad ministrative 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 Administrativ e Hearings

this 22nd day of July, 2003.

COPIES FURNISHED:

Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Pearla M. Mixon

4365 Tuna Drive, Southeast

St. Petersbur g, Florida 33705

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

Executive Director

Board of Nursing

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

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.