05-003217PL Department Of Health, Board Of Nursing vs. Gail King Dellinger, R.N. Status: Closed Recommended Order on Thursday, June 29, 2006.

Summary: Respondent failed to meet the minimal standards by taking medications from one patient and giving them to another patient, as well as requesting medication from one physician, when another physician had advised her that he was the primary care physician.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3217PL

)

GAIL KING DELLINGER, R.N., )

)

Respondent. )

)

RECOMMENDE D ORDER

Pursuant to notice, a final hearing was held in this case

on March 21 and 22, 2006, in Viera, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Kathryn E . Price, Esquire

Diane Kiesling, Esquire

Department of Health

Bureau of Practitioner Regulation

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Res pondent: William F. Sutton, Jr., Esquire

Ruden, McClosky, Smith, Schuster &

Russell, P.A.

111 North Orange Avenue, Suite 1750

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

Whether Re spondent violated Subsections 464.018(1)(h)

and 464.018(1)(n), Florida Statutes (2002);

Subsection 456.072(1)(n), Florida Statutes (2002 and 2003);

and Florida Administrative Code Rule s 64B9 - 8.005 (1) and

64B9 - 8.005 (2), and, if so, what discipline shoul d be imposed.

PRELIMINARY STATEMENT

On January 31, 2005, Petitioner, Department of Health,

Board of Medicine (Department) filed a three - count

Administrative Complaint against Respondent, Gail King

Dellinger, R.N. (Ms. Dellinger), alleging that she violate d

Subsections 464.018(1)(h) and 464.018(1)(n), Florida Statutes

(2002); Subsection 456.072(1)(n), Florida Statutes (2002 and

2003); and Florida Administrative Code Rule s 64B9 - 8.005 (1) and

64B9 - 8.005 ( 2). Ms. Dellinger requested an administrative

hearing, a nd the case was forwarded to the Division of

Administrative Hearings on September 6, 2005, for assignment of

an administrative law judge to conduct the final hearing. The

case was originally assigned to Administrative Law Judge

Charles C. Adams, but was r eassigned to Administrative Law Judge

Susan B. Harrell, who conducted the final hearing.

The final hearing was scheduled for November 28, 2005.

Ms. Dellinger requested a continuance, which was granted by an

order dated November 4, 2005, rescheduling the f inal hearing for

December 20, 2005. The parties jointly requested a continuance,

which was granted, and the final hearing was rescheduled for

February 9, 2006. Ms. Dellinger again requested a continuance,

and the final hearing was rescheduled for March 21 and 22, 2006.

On March 20, 2006, the Department filed Petitioner ' s Motion

to Take Official Recognition, requesting that official

recognition be taken of the following: Florida Administrative

Code Rule 64B9 - 8.005 , effective March 23, 2000, to February 16,

2002; Florida Administrative Code Rule 64B9 - 8.005 , effective

February 17, 2002, to the present; Florida Administrative Code

Rule 64B9 - 8.006, effective May 8, 2000 to May 1, 2002; Florida

Administrative Code Rule 64B9 - 8.006, effective May 2, 2002,

to J anuary 11, 2003; and Florida Administrative Code

Rule 64B9 - 8.006 , effective January 12, 2003, to February 21,

2004. The motion was granted, and official recognition was

taken of the above - referenced rules.

At the final hearing, the Department called the following

witnesses: Kyle Anderson, M.D.; Dave Madsen; Doris Spivy; Velma

Pellot; Penny Dalton; Gail King Dellinger; Lija Scherer; Dr. Jay

Olsson; and Harriet Brinker, R.N. Petitioner ' s Exhibits 1

through 3, 4B through 4D, 6, 7, 8 (testimony of Dr. Jay O lsson

only), 9 through 11, and 13 were admitted in evidence.

Petitioner ' s Exhibits 4F, 4G, 5, and 12 were proffered.

At the final hearing, Ms. Dellinger testified in her own

behalf and called Christina Deal and Francis Mallamaci as her

witnesses. Respo ndent ' s Exhibits 3, 4, and 7 were admitted in

evidence.

The three - volume Transcript of the final hearing was filed

on April 27, 2006. The parties timely filed their proposed

recommended orders, which have been considered in rendering this

Recommended Orde r.

FINDINGS OF FACT

1. T he Department is the state agency charged with

regulating the practice of nursing in Florida pursuant to

Section 20.43 and Chapters 456 and 464 , Florida Statutes (2005) .

2. At all times material to the proceeding, Ms. Dellinger

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

been issued license number RN 2837932. She currently resides in

South Carolina.

3 . At all times material to this proceeding, Ms. Dellinger

was the owner and operator of the Gail K. Dellinge r Adult Family

Care Home , d/b/a King Manor , at 3515 Fell Road, Melbourne,

Florida (King Manor).

4 . King Manor was an adult family care home (AFCH), which

is required to be operated in accordance with Chapter 400,

Florida Statutes (2005) , and Florida Admi nistrative Code

Chapter 58A - 14. AFCH s are licensed by the Agency for Health

Care Administration (AHCA) .

5 . During the period of April 8, 2003 , up to and including

May 16, 2003 , an 88 - year - old female , J.E., r esided at King

Manor.

6 . On or about April 8, 2003, patient J.E. was approved to

live at King Manor after being evaluated by Kyle Anderson, M.D.

(Dr. Anderson), a physician who was J.E. ' s primary care

physician. At the time of her admission to King Manor, J.E. had

medical issues and history that i ncluded myocardial infarction,

coronary artery disease, hypertension, peripheral vascular

disease, a low thyroid condition, Alzheimer ' s dementia , chronic

back pain from compression fractures, a seizure disorder, and a

right below - the - knee amputation.

7 . At the time J.E. was admitted to King Manor, she was

prescribed medications including: Imdur, NORVASC, Lopressor,

Levothroid, Aricept, Miacalcin, Seroquel, Coumadin, Dilantin,

and Lortab . Imdur is a nitrous preparation for coronary

disease. NORVASC is a n antihypertensive medication. Lopressor

is a beta blocker, which decreases the heart rate and lowers the

blood pressure. Levothroid is a thyroid supplement for low

th y roid. Aricept is a medication for Alzheimer ' s dementia.

Miacalcin is a nose spray us ed for o s teoporosis. Seroquel is a

mild - to - moderate antipsychotic medication, used in the elderly

often times for agitation. Coumadin is a blood thinner. Lortab

is a pain medication for chronic back pain. Dila n tin is an

antiseizure medication.

8 . Up on admission to King Manor on April 8, 2003 , the

Seroquel was not among J.E. ' s medications. Not taking Seroquel

would have increased J.E. ' s agitation and confusion. Penny

Dalton , the daughter of J.E., had her husband deliver the

Seroquel to King Manor to ward the end of the week in which J.E.

was admitted to King Manor. The inventory of J.E. ' s possessions

conducted by the Brevard County Sheriff ' s Department and signed

by Re spondent included Seroquel. The evidence is not clear and

convincing that J.E. had any Seroquel at King Manor on April 11.

9. On the afternoon of Friday, April 11, 2003, J.E. became

very agitated and anxious. J.E. demanded that she be given

something. Ms. Dellinger called Dr. Anderson ' s office and got a

recorded message. Ms. Delling er testified that the recorded

message said if it was an emergency to call 911 and that any

prescription refills could not be done for 72 hours.

Ms. Dellinger ' s testimony is not credible. Dr. Anderson is on

call for his patients, and, if Ms. Dellinger wa nted to speak to

Dr. Anderson, all she had to do was hold the line until the

answering service picked up the call. The answering service

would have contacted Dr. Anderson.

1 0 . Dr. Jay Olsson (Dr. Olsson) acted as the King Manor

medical director . He had previously seen J.E. as a patient

through his medical group and had access to King Manor

residents ' patient files. After listening to the recorded

message from Dr. Anderson ' s office, Ms. Dellinger called

Dr. Olsson to obtain a prescription for Ativ a n for J.E. She

followed her telephonic request with a written request to

Dr. Olsson, which stated:

Request to administer 0.5 Ativan BID/PRN in

place of Seroquel 25 MG - BID. Daughter to

bring Pt ' s meds from home. Administer only

(4/13 - 4/14 - 4/15). Pt. to follo w up with

primary MD. Anderson on 4/17/03. Pt is

anxious, and unable to sleep. Thank you,

Gail. Verbal order -- 4/11 / 03.

At the bottom of the written request was typed or printed

" Gail K. Dellinger, R.N. "

1 1 . Dr. Olsson verbally ordered Ativan for J.E. , a

prescription medication designed to relieve anxiety, on a per

need basis for three days, April 13, 14, and 15, 2003 , and

signed the written request after the verbal order was given .

1 2 . Ms. Dellinger told Dr. Olsson that she could not leave

King Mano r to get the prescription filled and that one of the

residents had a supply of Ativan. Although Dr. Olsson does not

recall whether he told Ms. Dellinger that she could get an

Ativan from the other resident ' s supply until the prescription

could be filled , he did not think that anything was wrong with

borrowing from the other resident. Ms. Dellinger took t hree

Ativan pills from the prescription supply of J . B . , another King

Manor resident, and placed them in J.E. ' s pill dispenser.

Ms. Dellinger witnessed J. E. take at least one Ativan.

13. Ms. Dellinger testified that the following day, which

would have been a Saturday, J.E. went to the daycare facility

taking her pill dispenser with the Ativan in it. However,

Ms. Dellinger also testified that J.E. only we nt to the daycare

on Tuesdays and Fridays. According to Ms. Dellinger, J.E. ' s

daughter found out about the Ativan from the daycare facility

and told Ms. Dellinger that she did not want her mother to take

the Ativan. Ms. Dellinger testified that she calle d Health

South and told them that the prescription would not be filled.

14. Ms. Dellinger ' s testimony is not credible. The

request for the Ativan was made on April 11, 2003, but the

written confirmation of the verbal order showed that the Ativan

was to be administered only on April 13, 14, and 15. Thus, if

the written order was correct, Ms. Dellinger should not have

given J.E. an Ativan until Sunday. However, it is clear that

Ms. Dellinger gave J.E. an Ativan from J.B. ' s supply on Friday,

April 11, 20 03. Additionally, Ms. Dalton could not have been

made aware by the day care facility on Saturday, April 12, 2003,

that J.E. had the Ativan because J.E. did not go to daycare on

Saturdays. Thus, she could not have told Ms. Dellinger on

April 12, 2003, tha t she did not want her mother to take Ativan,

and Ms. Dellinger would have no reason to inform Health South

that the prescription would not be filled.

15. J.E. saw Dr. Anderson on April 17, 2003.

Ms. Dellinger accompanied J.E. to Dr. Anderson ' s office, and

Ms. Dalton was also present during the visit. Dr. Anderson

advised Ms. Dellinger that he was J.E. ' s primary care physician

and that he wanted to be contacted when there was a change of

J.E. ' s status. He additionally advised Ms. Dellinger that he

was to be the physician prescribing medications for J.E.

16 . Ms. Dellinger did not tell Dr. Anderson during the

visit on April 17 that Dr. Olsson had prescribed Ativan for J.E.

or that J.E. had taken an Ativan.

17 . The office records of Dr. Olsson revealed that on

April 15, 2003, Ms. Dellinger called Dr. Olsson ' s office and

asked Dr. Olsson to " Please go evaluate pt [J.E.] & take over

care. " Ms. Dellinger also neglected to tell Dr. Anderson on

April 17, 2003, that she had asked Dr. Olsson to take over the

c are of J.E. Dr. Olsson ' s records indicate that John Stacy, a

physician ' s assistant, would go and evaluate J.E. on April 21,

2003.

18 . Mr. Stacy did go and evaluate J.E. on April 21, 2003.

His notes indicate that J.E. was " doing well at this time with

no acute problems. " Mr. Stacy also wrote the following in the

summary of his evaluation:

We are making arrangements for routine

follow - up. She is going to have a PT/INR

and Dilantin level each month. We are

getting a urinalysis today because of her

histor y of frequent urinary tract infections

and some complaints of dysuria. We will be

following her at this facility as necessary.

Dr. Olsson countersigned the initial evaluation notes made by

Mr. Stacy. It is clear that Ms. Dellinger wanted Dr. Olsson to

t ake over the care of J.E., even after Dr. Anderson had informed

her that he was J.E. ' s primary care physician.

19 . J.E. went to her daughter ' s house during the last

weekend in April 2003. When she returned to King Manor on the

following Monday, J.E. had a pressure sore on her right stump.

Ms. Dalton indicated that she had an appointment the following

day to have the sore evaluated. The following day J.E. was seen

by Roy McMurray at Brevard Prosthetics. According to

Dr. Anderson ' s records, Mr. McMurray requested a prescription

for a stump shrinker for J.E., which prescription Dr. Anderson

signed on May 1, 2003.

2 0 . Ms. Dellinger testified that although Ms. Dalton had

relayed the method of treatment of the pressure sore that she

was given by Brevard Pros thetics, she would not carry out those

treatments and that she did not agree with the use of a stump

shrinker. Ms. Dellinger testified that she contacted

Dr. Olsson ' s office to come and take a look at J.E. on April 30,

2003. According to Ms. Dellinger , M r. Stacy came out and gave

her orders for the treatment of the pressure sore. Again,

Ms. Dellinger ' s testimony is not credible. There is no

indication in the medical records that Mr. Stacy came to see

J.E. on April 30, 2003, in relation to her pressure s ore. The

first record of Dr. Olsson which referred to the treatment of

the pressure sore was a verbal order on May 6, 2003, from

Dr. Olsson. Dr. Olsson ' s records indicate that he visited J.E.

at King Manor on May 7, 2003, concerning her pressure sore.

2 1 . On May 5, Dr. Anderson saw J.E. to evaluate the wound

on her stump . Dr. Anderson prescribed c lindamycin, an

antibiotic and saline wet - to - dry dressing with changes twice a

day. It is clear that Ms. Dellinger was not willing to follow

the orders of J.E. ' s primary care physician and took upon

herself to get Dr. Olsson involved in the care of J.E.

2 2 . On or about May 8, Petitioner faxed Dr. Olsson

requesting J.E. be provided with a prescription for Klonipin or

Ambien as a sleep aid and for anxiety. Ambi en is a controlled

substance used in the treatment of insomnia. Dr. Olsson

prescribed Ambien for J.E. The Ambien prescription for

30 tablets was filled on May 9, 2003.

2 3 . J.E. died on May 1 6 , 2003. After her death, the

Brevard County Sheriff ' s deputi es compiled an inventory sheet ,

list ing J.E. ' s medications , which included 18 Ambien tablets .

2 4 . Dr. Anderson was unaware that Dr. Olsson had been

treating J.E., while she was a resident at King Manor, until

after her death.

2 5 . Respondent met M.R. whe n M.R. was a resident at Health

South Sea Pines (Sea Pines). Respondent served as staff nurse

for M.R. during her stay at Sea Pines. M.R. was discharged and

entered into a nursing home. Respondent knew that M.R. was

paying for her nursing home care with her own funds. Respondent

visited M.R. at the nursing home and knew that M.R. did not want

to go back to her own home. In February 2003, M.R. became a

resident of King Manor and resided there until the facility was

closed.

2 6 . On or about June 6, 200 3, AHCA placed King Manor on a

resident admissions moratorium which prevented King Manor from

admitting new residents. Ms. Dellinger informed the King Manor

residents, including M.R., of the AHCA moratorium and its

possible effects on King Manor which cou ld include the clo sing

of the facility.

27 . Ms. Dellinger borrowed money from M.R., totaling at

least $11,500 . In September 2003, a check for $8,000 was issued

to Ms. Dellinger from M.R. ' s account, and, in November 2003, a

check for $3 , 500 was issued to Ms. Dellinger from M.R. ' s

account. Ms. Dellinger orally agreed to repay the loan through

a reduction of M.R. ' s monthly payment. There are no written

agreements or records regarding the loan.

28. In late January or early February 2004, a n arrest

warran t/Notice to Appear was issued for the charge of

exploitation of an elderly person regarding the loans from M.R.

to Ms. Dellinger . At the time of the warrant, $1 , 000 had been

repaid. At the time of the final hearing in the instant

proceeding, all money ha d been repaid.

29 . During the period of November 16, 2003, through

December 9, 2003, Ms. Dellinger was in South Carolina and was

physically absent from the State of Florida. She left John

Harrison Brown (Mr. Brown) , a certified nursing assistant , to

ca re for the King Manor residents. At this time, King Manor had

three residents: W. R., M.R., and L.M.R. W.R., a male resident,

had a catheter and was very frail. Mr. Brown had to help W.R.

with all his daily activities. The two female residents, M.R.

an d L.M.R., needed considerably less care and could do most of

their daily activities.

3 0 . Mr. Brown became distraught and contacted

Ms. Dellinger around 2 a.m. on December 9, 2003. He told her

that he was " freaking " and could not do the job anymore becaus e

of the pressure of being responsible for the residents while

Ms. Dellinger was away. He told Ms. Dellinger that he was

" ready to do something to himself, " meaning that he was

suicidal. Ms. Dellinger could tell from the conversation that

Mr. Brown had b een drinking. Her response to the situation was

to tell Mr. Brown to take an Ativan.

3 1 . Mr. Brown contacted sheriff ' s deputies on December 9 ,

2003 , to come and get him. He advised deputies that he drank

beer in violation of probation and asked the depu ties to come

and take him to jail. On December 9, 2003, Mr. Brown was

arrested at King Manor, taken to jail , and charged with

violation of probation. Sometime during his incarceration,

Mr. Brown was found dead hanging in his jail cell.

3 2 . Harriet Brin ker, R.N. (Ms. Brinker) , was accepted as

an expert in nursing , specializing in geriatric care.

Ms. Brinker opined th at Ms. Dellinger failed to meet the

standards of professional conduct when she failed to inform

Dr. Anderson that J.E. had been prescribed and administered

Ativan and Ambien . It was Ms. Brinker ' s opinion that

Ms. Dellinger was negligent when she requested a prescription

for Ambien by name because she was placing herself at the level

of a physician and determining what medication needed to be

prescribed. Ms. Brinker further opined that Ms. Dellinger

failed to meet the standards of professional conduct by

requesting the prescription for Ambien when J.E. had not been

examined by Dr. Olsson. It should be noted that Dr. Olsson had

examined J.E. the day before he prescribed the Ambien.

Ms. Brinker also opined that Ms. Dellinger failed to meet the

standards of professional conduct by calling a doctor who was

not the primary care physician when Dr. Anderson had advised Ms.

Dellinger that he was to be the physician prescribing

medications for J.E. It was also Ms. Brinker ' s opinion that Ms.

Dellinger was guilty of unprofessional conduct by leaving the

three residents in Mr. Brown ' s care while she was in South

Carolina. The care that the residents ne eded would have had to

have been provided by a licensed practical nurse and not a

certified nursing assistant.

3 3 . Ms. Brinker opined that Ms. Dellinger practiced below

the minimal standards of acceptable prevailing nursing practice

and misappropriated dr ugs when she removed Ativan from the

supply of another reside nt and gave the pills to J.E. It was

Ms. Brinker ' s opinion that Ms. Dellinger failed to meet the

standard of care when she requested a specific medication from

Dr. Olsson , when she knew that Dr. Anderson wa s J.E. ' s primary

care physician . She was of the opinion that Ms. Dellinger

ne gligently administered Ambien to J.E. because Respondent

exposed J.E. to a higher level of risk by not knowing how Ambien

would interact with the medication regimen D r. A nderson had

prescribed for J.E. Ms. Brinker opined that Ms. Dellinger put

herself at the level of a physician when she requested and

obtained Ambien for J.E.

CONCLUSIONS OF LAW

3 4 . The Division of Administrative Hearings has

jurisdiction over the p arties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

3 5 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Fin ance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Slomowitz

v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983), the court

developed a working definition of " clear and convincing

evidence, " which has been adopted by the Florida Supreme Court

in In r e Davey , 645 So. 2d 398 (Fla. 1994). The court in

Slomowitz stated:

[C]lear and convincing evidence 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 prec ise 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 produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegati ons sought to be

established.

Slomowitz , 429 at 800.

3 6 . The Department alleged that Ms. Dellinger violated

Subsection 464.018(1)(h) , Florida Statutes (2002), which

provide s that disciplinary action may be taken for

" [u] nprofessional conduct, as defined by board rule. " Florida

Administrative Code Rule 64B9 - 8.005(1)(e) provides that

unprofessional conduct shall include " [a]cts of negligence

either by omission or commission. " The Department alleged in

the Administrative Complaint that Ms. Dellinger commi tted

unprofessional conduct in the following ways:

a. On or about April 17, 2003, and

thereafter, Respondent negligently failed to

inform Patient J.E. ' s primary care physician

of a change in Patient J.E. ' s medications,

specifically that Patient J.E. had b een

prescribed and administered Ativan;

b. Respondent negligently obtained a

prescription for Ambien and began

administering Ambien to Patient J.E. after

having been advised that Patient J.E. ' s

primary care physician did not want sleeping

pills/medication to be given to Patient J.E.

because it could mask symptoms related to an

infection in Patient J.E. ' s stump.

[c.] Respondent committed unprofessional

conduct by negligently leaving Patients

M.R., H.C., and W.R. under the care of a

certified nursing assist ant, Brown, who

Respondent knew or had reason to know, was

not qualified to provide the care and

assistance required by these patients while

she was absent from the state.

37 . The Department has proven by clear and convincing

evidence that Ms. Dellinger violated Subsection 464.018(1)(h),

Florida Statutes (2002) , and Florida Administrative Code Rule

64B9 - 8.005(1) , by failing to advise Dr. Anderson that J.E. had

been prescribed and taken Ativan. The Department did not

establish that Dr. Anderson had told M s. Dellinger not to

administer sleeping medications to J.E. because it would mask

the symptoms of the pressure sore, but the Depa rtment did

establish that Ms. Dellinger obtained the Ambien negligently by

requesting the prescription from Dr. Olsson when she knew that

Dr. Anderson was J.E. ' s primary care physician and wanted to be

the physician prescribing medications for J.E.

38 . The Department did establish by clear and convincing

evidence that Ms. Dellinger violated Subsection 464.018(1)(h),

Florida Statu tes (2002), by leaving Mr. Brown in charge of the

residents at King Manor while Ms. Dellinger went to work in

South Carolina for several weeks. The care needed by the

residents, in particular W.R., warranted the care of at least a

licensed practical nurse . Ms. Dellinger knew that Mr. Brown was

a certified nursing assistant and was not trained to take care

of the residents at the level of care which their conditions

warranted.

39 . The Department alleged in the Administrative Complaint

that Ms. Dellinger v iolated Subsection 464.018(1)(n), Florida

Statutes (2002), which provides that disciplinary action may be

taken for the following act:

(n) Failing to meet minimal standards of

acceptable and prevailing nursing practice,

including engaging in acts for whic h the

licensee is not qualified by training or

experience.

40 . Florida Administrative Code Rule 64B 9 - 8.005(2)

provides that " [f]ailing to meet or departing from minimal

standards of acceptable and prevailing nursing practice "

includes the following:

(b) Administering medications or treatments

in a negligent manner; or

* * *

(n) Practicing beyond the scope of the

licensee ' s license, educational preparation

or nursing experience.

4 1 . The Department alleged in the Administrative Complaint

that Ms . Dellinger failed to meet or departed from the minimal

standards of prevailing nursing practice by the following:

a. Respondent misappropriated Ativan by

removing and/or borrowing Ativan from the

medication supply of another Patient and

administering it to Patient J.E.;

b. Respondent negligently administered

Ambien to Patient J.E. despite instructions

from J.E. ' s primary care physician not to

give Patient J.E. sleeping pills/medication

because it could mask symptoms related to an

infection in Patient J.E . ' s stump;

c. Respondent practiced beyond the scope of

her license, educational preparation and or

nursing experience, by circumventing Patient

J.E. ' s primary care physician and obtaining

a prescription for Ambien and subsequently

administering Ambien to Patient J.E., based

on her professional judgment, despite

instructions from Patient J.E. ' s primary

care physician not to give Patient J.E.

sleeping pills/medication.

42 . The Department has established by clear and convincing

evidence that Ms. Dellinger f ailed to meet the minimal standards

of acceptable and prevailing nursing practice when she

misappropriated three Ativan pills from J.B.' s medication supply

and gave them to J.E. The Department did not establish that

Dr. Anderson had told Ms. Dellinger not to give J.E. a sleeping

medication because it would mask the symptoms of a pressure sore

on J.E. ' s stump. The Department did establish that Ms.

Dellinger was trying to circumvent the care of J.E. ' s primary

care physician by contacting Dr. Olsson for pres criptions and

medical evaluations when Dr. Anderson had told Ms. Dellinger

that he was J.E. ' s primary care physician and wanted to be

contacted when there was a change in J.E. ' s condition and that

he wanted to be the physician prescribing the medications f or

J.E.

4 3 . The Department alleged in the Administrative Complaint

that Ms. Dellinger violated Subsection 456.072(1)(n), Florida

Statutes (2002 and 2003), which provides that disciplinary

action may be taken against a health care professional for

" [e]xe rcising influence on the patient or client for the purpose

of financial gain of the licensee or a third party. "

Specifically, the Department alleged that " Respondent exercised

influence on Patient M.R. through the nurse - patient/client

relationship and obt ained loans in an amount exceeding $11,000

from Patient M.R. for the financial gain of the Respondent

and/or a third party. "

4 4 . The Department failed to establish by clear and

convincing evidence that Ms. Dellinger exercised influence on

M.R. for Ms. Del linger ' s financial gain. The evidence

established that M.R. made a loan to Ms. Dellinger, but the

evidence does not establish that Ms. Dellinger used her nurse -

patient/client relationship as a way to influence M.R. to give

her the loan.

RECOMMENDATION

Bas ed on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that Gail

King Dellinger violated Subsections 464.018(1)(h) and

464.018(1)(n), Florida Statutes (2002) , and Florida

Administrative Code Ru les 64B9 - 8.005(1) and 64B9 - 8.005 (2) , and

did not violate Subsection 456.072(1)(n), Florida Statutes (2002

and 2003) ; imposing an administrative fine of $500 ; suspending

her license for two years ; and placing her on probation for

three years after the suspe nsion of her license on terms to be

set by the Board of Nursing.

DONE AND ENTERED this 2 9 th day of June, 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of June , 200 6 .

COPIES FURNISHED :

William F. Sutton, Jr., Esquire

Ruden, McClosky, Smith, Schuster &

Russell, P.A.

111 North Orange Avenue, Suite 1750

Orlando, Florida 32801

Kathryn E. Price, Esquire

Diane Kiesling, Esquire

Department of Health

Bureau of Pract itioner Regulation

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dan Coble, RN, Ph.D., CNAA, C, BC

Executive Directo r

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.