04-003796PL Department Of Health, Board Of Nursing vs. Logan T. Lanham, R.N. Status: Closed Recommended Order on Wednesday, March 9, 2005.

Summary: Respondent engaged in unprofessional conduct when he isolated two nursing home residents in a room that they could not exit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3796PL

)

LOGAN T. LANHAM, R.N., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pu rsuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on January 13, 2005, in

Vero Beach, Florida.

APPEARANCES

For Petitioner: J. Blake Hunter, Esquire

Ell en Simon, Esquire

Department of Health

Office of General Counsel

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Robert Rappel, D.O., J.D.

Craig M. Rappel, Esquire

Rappel & Rappel, P.A.

15 15 Indian River Boulevard

Suite A210

Vero Beach, Florida 32960

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Logan T.

Lanham, R.N., committed the violations alleged in an

Administrative Complaint issued by Petitioner, the Depart ment of

Health, and, if so, what disciplinary action should be taken

against him.

PRELIMINARY STATEMENT

In a two - count Administrative Complaint dated January 27,

2003, the Department of Health (hereinafter referred to as the

"Department") charged Logan T. Lanham, R.N., with having

violated statutory provisions governing the conduct of nurses in

Florida. Mr. Lanham disputed the factual allegations in the

Administrative Complaint by executing an Election of Rights form

in which he requested a formal administ rative hearing before the

Division of Administrative Hearings.

Mr. Lanham's request for hearing was filed with the

Division of Administrative Hearings on October 18, 2004, for the

assignment of an administrative law judge to conduct an

evidentiary hearing. The matter was designated DOAH Case

No. 04 - 3796PL and was assigned to the undersigned.

On October 25, 2004, Petitioner filed Petitioner's Motion

for Consolidation requesting that this case be consolidated with

Department of Health, Board of Nursing v. Pa tti Jo Rossi, L.P.N ,

DOAH Case No. 04 - 3795PL (hereinafter referred to as the "Rossi

Case"), an action against Patti Jo Rossi's license to practice

nursing. Ms. Rossi worked at the same facility as Mr. Lanham

and was alleged to have committed very similar violations to

those Mr. Lanham is alleged to have committed. The events,

however, occurred on separate occasions. On November 2, 2004,

an Order Denying Motion for Consolidation was entered.

By Notice of Hearing entered November 8, 2004, the final

hearing of this case was scheduled to commence January 13 and

14, 2005, in Vero Beach, Florida.

On December 13, 2004, Petitioner filed Petitioner's Motion

for Official Recognition. That Motion was granted by Order

entered January 4, 2005.

On December 22, 2004, t he parties filed a Joint Prehearing

Stipulation. Among other things, the parties included in the

Stipulation a Statement of Those Facts That Are Admitted. Those

facts have been included in this Recommended Order.

At the final hearing the Department prese nted the testimony

of Sharon Sullivan, L.P.N., Carrie Duprey, L.P.N, Verlecia

Toussaint, C.N.A., Scott Eckert, and Rosemary Nunn - Hill, R.N.

(accepted as an expert in nursing care). The Department also

had admitted 13 exhibits. Mr. Lanham testified on his own

behalf.

The final hearing was conducted immediately after the

hearing in the Rossi Case. Much of the evidence presented in

that hearing was relevant to the issues presented in the hearing

of this case. Therefore, the parties stipulated that the

evid ence presented in the Rossi Case, except to the extent that

it related to specific actions of Ms. Rossi, would constitute

part of the record evidence in this case.

By Notice of Filing of Transcript issued February 4, 2005,

the parties were informed that th e one - volume Transcript of the

final hearing had been filed. The parties were also informed

that they had until February 23, 2005, to file proposed

recommended orders. Both parties filed post - hearing argument,

which has been fully considered in entering this Recommended

Order.

FINDINGS OF FACT

A. The Parties .

1. The Department is the agency in Florida responsible for

regulating the practice of nurses pursuant to Chapters 20, 456,

and 464, Florida Statutes (2004). 1

2. Mr. Lanham is and has been at all t imes material hereto

a licensed registered nurse in the State of Florida, having been

issued license number 3221312.

3. Mr. Lanham, at the times pertinent, was employed in his

capacity as a registered nurse by Palm Gardens of Vero Beach

(hereinafter refer red to as "Palm Gardens"). Mr. Lanham was

employed by Palm Gardens from approximately October 1998 until

January 3, 2002.

B. Palm Gardens .

4. Palm Gardens was, at the times pertinent, a Florida

licensed residential nursing home facility as defined in Se ction

400.021(13), Florida Statutes.

5. Palm Gardens' facility included a wing, "A - Wing," which

was devoted to the care of residents suffering from various

forms of dementia, including Alzheimer's disease. While

employed at Palm Gardens, Mr. Lanham was a ssigned to A - Wing.

6. Due to the tendency of some patients on A - Wing to

"wander," A - Wing doors leading to the outside were equipped with

alarms which sounded whenever a patient attempted to open them.

Whenever an alarm was triggered, employees, including nurses,

had to check to ensure that a resident was not leaving the unit.

7. Part of A - Wing consisted of a room which was used as a

dining room and day room (hereinafter referred to as the "Day

Room"). There were four, floor - to - ceiling, windows at one

co rner of the Day Room located near an open area of A - Wing,

which included a nurses' station.

8. There was a single, heavy, self - closing door providing

access to the Day Room. This door was normally propped open.

During the pertinent period of time involv ed in this case, the

door to the Day Room was slightly larger at the one corner than

the door jam, which caused the door to stick if closed.

Although the door could be opened, it took some strength to do

so. The condition of the door was known to employe es of A - Wing,

including Mr. Lanham.

C. Patients M.S. and G.K .

9. Among the patients on A - Wing were M.S. and G.K., both

female residents. Both were elderly, suffered from dementia and

Alzheimer's disease, and were in relatively poor physical and

mental h ealth.

10. M.S., whose date of birth was February 3, 1920, and

G.K., whose date of birth was March 21, 1915, were both totally

dependant on the facility and employees of Palm Gardens for

their care.

11. Both residents were ambulatory, but not capable of

providing the daily necessities of life, such as cleaning

themselves or dressing. Neither resident was oriented as to

time or place, and both lacked the capacity to consent.

12. Both residents, but especially M.S., had a habit of

wandering the halls of A - Wing and touching doors equipped with

alarms, which would cause the alarms to sound.

D. The Events of December 13, 2001 .

13. On December 13, 2001, Mr. Lanham was working the

"swing shift" (from 3:00 p.m. to 11:00 p.m.) on A - Wing.

14. During Mr. Lanham' s shift, both M.S. and G.K. were

wandering the wing, sometimes setting off door alarms. G.K. was

agitated and had been found by Mr. Lanham in another resident's

room eating food that had been left in the room.

15. Neither M.S. nor G.K. was harming any ot her residents

or causing any harm to themselves.

16. Out of frustration over having to respond every time

that M.S. or G.K. set off an alarm, Mr. Lanham took both

residents and directed them into the Day Room, closing the door

as he left. By closing the door to the Day Room, Mr. Lanham

effectively locked M.S. and G.K. into the room.

17. Mr. Lanham left both residents in the Day Room without

any supervision; no one was in the Day Room with them and no one

was watching them through the windows between the room and the

hall. M.S. and G.K., for most of the time they were in the Day

Room, were unsupervised by any employee of Palm Gardens.

18. M.S., crying, attempted unsuccessfully to open the

door of the Day Room. M.S. and G.K., however, were too weak to

op en the door. M.S. began to hit on the door when she couldn't

open it. M.S. and G.K. were involuntarily confined to the Day

Room.

19. At some point after M.S. and G.K. had been placed in

the Day Room, Sharon Sullivan, L.P.N., told Mr. Lanham that M.S.

an d G.K. had to be let out. He was reminded that the door was

too difficult for them to open when fully closed, which he

already knew. Mr. Lanham, after admitting that he had placed

M.S. and G.K. in the Day Room and why, indicated that it was

okay to leave them in there as long as he could see them. When

Ms. Sullivan told Mr. Lanham that she disagreed, he left the

unit.

20. Mr. Lanham left A - Wing to go see Carrie Duprey,

L.P.N., the House Supervisor. Mr. Lanham indicated to

Ms. Duprey that he had a "hypo thetical" question. He then asked

Ms. Duprey whether it would be considered abuse if, in order to

keep a resident occupied, he placed the resident in the Day

Room, with the door closed but not locked, as long as a C.N.A.

stayed with the resident. 2 Ms. Du prey indicated she did not

think that his hypothetical action would constitute abuse. 3

21. Ms. Duprey's answer to Mr. Lanham's hypothetical

question did not constitute, in any way, permission for him to

either place M.S. and G.K. in the Day Room or to lea ve them

there. Ms. Duprey was unaware that Mr. Lanham had already

placed the residents in the Day Room or that he had placed them

there unattended and unable to leave on their own.

22. After speaking with Ms. Duprey, Mr. Lanham returned to

A - Wing where h e spoke to Ms. Sullivan again. Mr. Lanham again

told Ms. Sullivan that placing M.S. and G.K. in the Day Room was

okay. Ms. Sullivan continued to disagree. When Ms. Sullivan

persisted, Mr. Lanham opened the door to the Day Room and

allowed the residents to leave.

23. M.S. and G.K. had been left in the Day Room with the

door closed, unable to leave on their own and with no one else

present in the room for somewhere between more than 20 minutes

and less than an hour. 4 While they were not actually injured,

M.S. and G.K. could have been because they were unsupervised.

E. Unprofessional Conduct .

24. Mr. Lanham's conduct fell below the minimum standards

of acceptable and prevailing nursing practice. By placing M.S.

and G.K. in the Day Room, unsupervised and unable to leave

without assistance, Mr. Lanham failed to protect the welfare and

safety of those residents.

25. Mr. Lanham's conduct constituted unprofessional

conduct for a nurse.

F. Involuntary Seclusion .

26. Placing M.S. and G.K. in the Day Room, un supervised

and unable to leave without assistance, constituted involuntary

seclusion.

27. Based upon the length of time that Mr. Lanham left

M.S. and G.K. in the Day Room constituted an "extended"

involuntary seclusion.

G. Mr. Lanham's Explanation .

28. Mr. Lanham testified at hearing that he had directed a

C.N.A. to stay with M.S. and G.K. when he left them in the Day

Room. This testimony is not been credited.

29. Mr. Lanham's version of events is inconsistent with

other, more credible witnesses. Add itionally, when first asked

to give a written statement, Mr. Lanham failed to indicate that

he had left anyone in the Day Room with the residents. It was

not until he added an addendum to his statement a few days later

that he first suggested that others were in the Day Room.

30. Mr. Lanham's testimony at hearing as to whether he

placed M.S. and/or G.K. in the Day Room, while not clear, is not

credited to the extent that he stated that the did not place

them in the Day Room. This testimony conflicts with his

admission to Ms. Sullivan and his written statement.

CONCLUSIONS OF LAW

A. Jurisdiction .

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2004).

B. The Burden and Standard of Proof .

32. In the Administrative Complaint, the Department is

seeking the imposition of, among other penalties, the revocation

or suspension of Mr. Lanham's license to practice nursin g in

Florida. Therefore, the Department has the burden of proving

the allegations in the Administrative Complaint by clear and

convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and McKinney v. Castor , 667 So. 2d 387

(Fla. 1st DCA 1995).

33. Clear and Convincing evidence has been defined as

evidence which:

requires that 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 produce s 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).

C. The Charges Against Mr. Lanham; Sections

456.072(1) and 464.018, Florida Statutes .

34. The grounds proven in support of the Department's

assertion that Mr. Lanham's license should be disciplined must

be those specifically alleged in the Administrative Complaint.

See , e.g. , Cottrill v. Departme nt of Insurance , 685 So. 2d 1371

(Fla. 1st DCA 1996); Kinney v. Department of State , 501 So. 2d

129 (Fla. 5th DCA 1987); and Hunter v. Department of

Professional Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).

Due process prohibits the Department from tak ing disciplinary

action against a licensee based on matters not specifically

alleged in the charging instrument, unless those matters have

been tried by consent. See Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protectio n , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); and Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

35. The specific charges contained in the Administrative

Complaint are based upon alleged violations of Section

456.072 (1), Florida Statutes (Count I), and Section 464.018(1),

Florida Statutes (Count II). Both provisions provide authority

for the Department to take disciplinary action against the

nursing license of any person who commits any of a number of

proscribed acts .

36. In Count I, the specific violation alleged is found in

Section 456.072(1)(k), Florida Statutes, which authorizes

disciplinary action for the following act:

(k) Failing to perform any statutory or

legal obligation placed upon a licensee .

[Emphasi s added].

37. In support of this violation, the Department alleged

in Count I of the Administrative Complaint that Mr. Lanham

violated Section 400.022(1)(o), Florida Statutes, by failing to

"respect the right of residents at Palm Garden to be free from

m ental and physical abuse and extended involuntary seclusion."

38. In Count II, the specific violation alleged is found

in Section 464.018(1)(h), Florida Statutes, which authorizes

disciplinary action for the following act:

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 case

actual injury need not be established.

39. In Count II of the Administrative Compla int, the

Department alleged that Mr. Lanham violated Section

464.018(1)(h), Florida Statutes, "by isolating patients M.S.

and/or G.K. in a room in which patients M.S. and/or G.K. could

not voluntarily leave without assistance."

D. Count I; Failing to Perf orm any Statutory or Legal

Obligation Placed Upon a Licensee .

40. In support of the allegation that Mr. Lanham violated

Section 456.072(1)(k), Florida Statutes, the Department has

argued that Section 400.022(1)(o), Florida Statutes, imposed an

obliga tion on him to refrain from placing M.S. and G.K. in

extended involuntary seclusion and that he violated this

obligation.

41. In support of the Department's argument, the

Department has cited two decisions from this forum in which

Administrative Law Judge s found that an obligation was imposed

on certified nursing assistants by Section 400.022(1)(o),

Florida Statutes. Department of Health, Board of Nursing v.

Brett W. Mauch, C.N.A. , 2002 WL 1592356 (Fla.Div.Admin.Hrgs. May

24, 2002); and Department of Heal th, Board of Nursing v. Charsee

Boston , 2002 WL 1592356 (Fla.Div.Admin.Hrgs. May 28, 2002).

42. Section 400.022(1)(o), Florida Statutes, provides the

following:

400.022 Residents' rights. --

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

. . . .

(o) T he right to be free from mental and

physical abuse, corporal punishment,

extended involuntary seclusion, and from

physical and chemical restraints, except

those restraints authorized in writing by a

physician for a specified and limited period

of time or a s are necessitated by an

emergency. In case of an emergency,

restraint may be applied only by a qualified

licensed nurse who shall set forth in

writing the circumstances requiring the use

of restraint, and, in the case of use of a

chemical restraint, a ph ysician shall be

consulted immediately thereafter.

Restraints may not be used in lieu of staff

supervision or merely for staff convenience,

for punishment, or for reasons other than

resident protection or safety.

(2) The licensee for each nursing home

shall orally inform the resident of the

resident's rights and provide a copy of the

statement required by subsection (1) to each

resident or the resident's legal

representative at or before the resident's

admission to a facility. The licensee shall

provi de a copy of the resident's rights to

each staff member of the facility. Each

such licensee shall prepare a written plan

and provide appropriate staff training to

implement the provisions of this section.

The written statement of rights must include

a st atement that a resident may file a

complaint with the agency or local ombudsman

council. The statement must be in boldfaced

type and shall include the name, address,

and telephone numbers of the local ombudsman

council and central abuse hotline where

comp laints may be lodged.

(3) Any violation of the resident's

rights set forth in this section shall

constitute grounds for action by the agency

under the provisions of s. 400.102. In

order to determine whether the licensee is

adequately protecting reside nts' rights, the

annual inspection of the facility shall

include private informal conversations with

a sample of residents to discuss residents'

experiences within the facility with respect

to rights specified in this section and

general compliance with st andards, and

consultation with the ombudsman council in

the local planning and service area of the

Department of Elderly Affairs in which the

nursing home is located.

(4) Any person who submits or reports a

complaint concerning a suspected violation

of the resident's rights or concerning

services or conditions in a facility or who

testifies in any administrative or judicial

proceeding arising from such complaint shall

have immunity from any criminal or civil

liability therefore, unless that person has

a cted in bad faith, with malicious purpose,

or if the court finds that there was a

complete absence of a justiciable issue of

either law or fact raised by the losing

party.

43. From the clear language of Section 400.022(1), Florida

Statutes, the specific obligations created by the statute are

imposed on the "licensee" of the nursing home and not its

employees. That is not to say that the rights of residents

specified in Section 400.022(1), Florida Statutes, need not be

respected by nursing home employees; they must. But if they

fail to respect their rights, the remedy must come from some

other statutory provision. Section 400.022(1), Florida

Statutes, while it creates rights and imposes an obligation on

the facility for nursing home residents, does not g ive the

Department the authority to impose discipline on nursing home

employees.

44. Based upon the foregoing, it is concluded that the

Department has failed to prove clearly and convincingly that

Mr. Lanham committed the violation alleged in Count I of t he

Administrative Complaint.

E. Count II; Unprofessional Conduct .

45. The Department has alleged that Mr. Lanham violated

Section 464.018(1)(h), Florida Statutes (displaying

unprofessional conduct), by failing to conform to the minimal

standards of accep table and prevailing nursing practice, when he

placed Patients M.S. and/or G.K. in extended involuntary

seclusion in violation of Section 464.018(1)(h), Florida

Statutes.

46. The evidence in this case clearly and convincingly

proved that Mr. Lanham's cond uct in placing M.S. and G.K. in the

Day Room, unsupervised and unable to leave without assistance,

failed to conform to the minimal standards of acceptable and

prevailing nursing practice and, therefore, constituted

"unprofessional conduct."

47. Based upo n the foregoing, it is concluded that the

Department proved clearly and convincingly that Mr. Lanham

committed the violation alleged in Count II of the

Administrative Complaint.

F. Appropriate Disciplinary Action .

48. The Department is authorized, upon f inding a violation

of Section 456.072(2), Florida Statutes, to impose discipline

upon a nurse's license to practice for any violation of Section

456.072(1) or 464.018, Florida Statutes.

49. Florida Administrative Code Rule 64B9 - 8.006 sets forth

guidelines concerning violations of Section 456.072(1) or

464.018, Florida Statutes. For a first offense of

unprofessional conduct where there is no actual injury, the

guideline provided in the rule is from a minimum of a $250.00

fine to a maximum file of $500.00 a nd probation.

50. Consistent with the guidelines, the Department has

recommended that Mr. Lanham be given a reprimand, required to

pay an administrative fine of $250.00, and participate in

continuing education classes, the number of and on such subjects

a s specified by the Board of Nursing. This suggestion is

accepted as reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department:

1. Dismissing Count I of the Administrative Complaint;

2. Finding that Logan T. Lanham, R.N., violated Section

464.018(1)(h), Florida Statutes, as alleged in Count II of the

Administrative Complaint; and

3. Imposing discipline as suggested in this Recommended

Order.

DONE AND ENTER ED this 9th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 27 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March , 2005.

ENDNOTES

1 / The statutes and rules relevant to this matter are those in

existence in 2001. Therefore, all further references to

statutes or rules in this Recommended Order shall be to the 2001

version unless otherwise indicated.

2 / The evide nce failed to prove that Mr. Lanham, as he suggested

in his hypothetical question, actually left someone in the Day

Room with M.S. and G.K.

3 / Ms. Duprey's response was based upon the representation from

Mr. Lanham concerning his hypothetical that someon e would be

with the resident in the Day Room, which was not what actually

happened in this case.

4 / In a written statement, Mr. Lanham indicated that the

residents were in the room "less than 1 hr. total."

COPIES FURNISHED:

Ellen M. Simon, Esquire

J. Blake Hunter, Esquire

Department of Health

Office of General Counsel

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Robert Rappel, D.O., J.D.

Craig M. Rappel, Esquire

1515 Indian River Boulevard

Suite A210

Vero Beach, Florida 32960

Da n 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, Flori da 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

N OTICE 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 should be filed with the agency that

will issue the Final Order i n this case.