05-003268PL Department Of Health, Board Of Nursing vs. Donna M. Cameron Connolly, C.R.N.A. Status: Closed Recommended Order on Thursday, December 8, 2005.

Summary: Petitioner did not prove that Respondent violated the standard of care when providing anathesia.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. )

) Case No. 05 - 3 268 PL

DONNA M. CAMERON CONNOLLY, )

R.N., C.R.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 18, 2 00 5 , a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 1 20.57(1), Florida

Statutes (200 5 ). The hearing commenced at 10:0 0 a.m. at the

Lake County Judicial Center, Suite 12, Second Floor, 550 West

Main Street, Tavares, Florida . The hearing was conducted by

Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Irving Levine

Assistant General Cou nsel

Department of H ealth

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Damon A. Chase, Esquire

Chase Law Offices, P. A.

Post Office Box 196309

Winter Springs, Florida 32 719

Alex Finch, Esquire

2180 Park Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Should discipline be imposed against Respondent based upon

the allegation that she failed to meet minimal standards of

acceptable and prevailing nursing practice in violation of

Section 464.018(1)(n), Florida Statutes (2002) ?

PRELIMINARY STATEMENT

On June 2 1, 2005 , by an Administrat ive Complaint in Case

No. 200 4 - 34970, before the St ate of Florida, Department of

Health, the Department , as Petitioner , accused Respondent of the

aforementioned statutory violation. Material facts in that

Administrative Complaint concern the care Respondent provided

Patient M.M., who underwent a colonosco py in which Respondent

provided anesthesia. Respondent is accused of failing to meet

minimal standards of acceptable and prevailing nursing practice

in one or more of the following ways:

a. By leaving an unstable patient in the

Post Anesthesia Care Uni t ( PACU ) ;

b. By failing to verify patient's vital

signs upon admission to PACU;

c. By failing to stay with a patient in

PACU long enough to ensure that the patient

was stable;

d. By disregarding the patient's unstable

vital signs when leaving the p atient in

PACU ;

e. By failing to provide oxygen via a bag -

valve mask or through intubation

immediately;

f. By failing to ensure that proper

equipment for intubation was readily

available in the PACU ;

g. By failing to utilize the intubation

equipment in a timely fashion as necessary

to restore breathing in an emergency; and

h. By choosing to utilize mouth - to - mouth

resuscitation as her first intervention.

Having been served with the A dministrative C omplaint ,

Respondent was noticed of her rights in accordance with Section s

120.569 and 120.57, Flori da Statutes . She chose the option to

c ontest certain allegations within the Administrative Complaint

as to fact s. As a consequence , the case was referred to the

Division of Administrative Hearing s (DOAH) in the person of

Robert S. Cohen as Director and Chief Judge. The case was

assigned the DOAH reference number , and the undersigned became

responsible for the case, after it was first assigned to

Susan B. Harrell, Administrative Law Judge .

Following notice of the hearing date , the hearing took

place on the date described.

Cenon Erwin Velvis, C . R . N . A . , testified for Petitioner .

Petitioner 's Composite Exhibit numbered one and Exhibit numbered

2 were admitted. Respondent testified in her own behalf and

presented Michael A. Binford, M.D., as her witness.

Respondent 's Exhibits numbered one and three were admitted.

Respondent 's Exhibit numbered two was denied admission. Both

the exhibits that were admitted and the exhibit denied admission

are being transmitted with this R ecommended O rder.

In accordance with a pre - hearing stipulation , the parties

agreed to certain facts. Those stipulated facts are reported in

the fact finding to this R ecommended O rder .

On November 1 , 2005, a hearing t ranscript was filed with

DOAH. The parties submitted proposed recommended order s which

ha ve been considered in preparing the Recommended Order .

At the conclusion of the Petitioner 's case - in - chief ,

Respondent moved for a directed verdict. That motion was denied

for reasons stated in the transcript.

FINDINGS OF FACT

STIPULATED FACTS :

1. Petitioner is the s tate department charged with

regulating the practice of nursing pursuant to Section 20.43,

Florida Statutes, Chapter 456, Florida Statutes, and Chapter

464 , Florida Statutes.

2. A t all time s material to the C omplaint , Respondent was

licensed to practice as a certified registered nurse anesthetist

(" C.R.N.A. ") within the State of Florida.

3. Respondent's address of record is 4409 Hoffner Avenue,

Suite 32 8, Orlando , Florida 32 812 .

4. On or about March 13, 2003, Patient M.M. presented to

Endosur g Outpatient Center (Endosurg ) f or a colonoscopy.

5. The colonoscopy began at or about 7:16 a.m.

6. A ccording to the Respondent 's Anesthesia Record,

Pati ent M.M. had a blood pressure of 120/70 at 7:30 a.m., and a

blood pressure of 140/84 and an oxygen saturation of 96 percent

"at the end of case."

7. Respondent began mouth - to - mouth resuscitation and CPR

at or about 7:46 a.m., then provided oxygen via a bag - va lve mask

at or about 7:48 a.m., and then provided oxygen by intubation at

or about 7:50 a.m.

8. Section 464.018(1)(n), Florida Statutes (2002),

subjects a licensed nurse anesthetist to discipline for failing

to meet minimal standards of acceptab le and prevailing nursing

practice.

ADDITIONAL FACTS :

9. The indications for the endoscopic procedure performed

on Patient M.M. were in relation to bright red blood per

rectum and anemia . The endoscopic diagnosis confirmed by the

procedure was div erticulosis and internal hemorrhoids.

10. According to Patient M.M. , this was the first

colonoscopy she had ever had.

11. In the history reported by Patient M.M. prior to the

procedure , there was no report of chest pain, indigestion, heart

burn, or nausea. The patient did report rectal bleeding.

P atient M.M. provided a history of bronchitis , but it was noted

that there w ere no recent problems with the bronchitis . In the

r e cou nt of her past medical history , she made no reference to

congestive he art failure, coronary artery disease, diabetes,

atrial fibrillation, angina, heart murmur, heart valve problems,

or irregular heart. She di d have a history in her family of

heart disease; t he family member was her father. By history,

the patient suffered from high blood pressure. At the time the

patient was seen at Endosurg she was 67 years old, 5 feet 5

inches tall , and weigh ed 215 pounds.

1 2 . Respondent has practiced for 30 years in numerous

settings. Respondent was an independent contractor rec ently

employed at Endosurg . Over time she has met her obligati ons in

relation to continuing education for her profession.

13. When Respondent first saw Patient M.M. on the date in

question, the patient was in the holding area adjacent to the

procedure room. Respondent introduced herself to the patient

and checked the intravenous access. The line had been placed

and Respondent checked to ma k e certain that the line was patent.

Respondent explained to the patient that the patient would be

given sedatio n. In particular, Respondent to ld the patient that

she would be placed under conscious - sedation during the

procedure. The patient responded that her son had had post -

operative nausea and vomiting , having undergone sedation , but

that the patient had exper ienced no problems with an esthesia in

the past. Respondent listened to the patient's chest. The

heart was regular, in that there were no audible sounds of

irregularity or murmur at that time. The patient 's chest was

clear. No signs of wheezing or bronc hi or ral e s were pr esent

that would indicate upper - respiratory difficulties. Respondent

was aware that the patient suffered from hypertension.

14. Before the procedure Respondent did not observe

anything in the patient 's demeanor which suggested that t he

patient was overly anxious.

15 . As the anesthesia record reflects, the administration

of anesthesia by Respondent commenced at 7:15 a.m. and ended at

7:26 a.m. The procedure commenced at 7:16 a.m. and concluded at

7:25 a.m. Before providing the ane sthesia , Respondent placed a

blood pressure cuff on the patient, a pulse oximeter, an EKG

monitor, and a pre - cordial stethoscope.

1 6 . The patient was anxious and Respondent administered a

total of 2 mg of Versed. The Versed was administered twi ce.

A f ter waiting to see the re a ction to the first administration , a

second administration was provided . During the administration

of this medication , Respondent discussed its subjective

in f luence with the patient .

17 . Two other persons were in the procedur e room with

Respondent . The y were the physician gastro - endrologist , who wa s

performing that procedure , and an anesthesia technician. The

doctor involved was Dr. Nehme Gebrayel.

1 8 . When the scope used to perform the procedure was

inserted the patient winced. In response to those circumstances

Respondent provided Fentanyl , an ultra - short acting narcotic in

an amount considered appropriate to the circumstances.

19 . When the scope reached the area within the colon where

the scope needed to be turned, the patient grasped the arm of

the technician and du g her nails into his forearm. The

physician called upon Respondent to provide other sedation to

allow him to continue the procedure while providing some comfort

to the patient. In response Respondent ga ve the patient 30 mg

of Propofol, an hypnotic sedative with a short half - lif e. Later

the pat ient began to dig her nails into the technician 's forearm

once more, which the technician reported to the physician . T he

physician told Respondent to provide addi tional sedation.

Respondent gave the patient 30 mg more of Propofol.

20. While the procedure was ongoing Respondent monitored

the patient 's vital signs. Before the procedure, the blood

pressure was 142/100, the heart rate was 72. The second reading

o n blood pressure taken by Respondent during the procedure

occurred between 7:18 a.m. and 7:20 a.m., with a reading of

126/66.

21. Pulse oxygen readings that were recorded at the

beginning and du ring the procedure reflected 98 percent and 95

percent satu ration respectively.

22 . When the physician began to withdraw the scope at the

end of the procedure, Respondent told the patient that the

procedure was being finished and that the physician was taking

the scope out. The patient responded by giving a " t humbs up "

gesture .

23 . When the Doctor finished the procedure , Respondent

asked the patient if the patient was doing "O.K." Respondent

asked the patient if the patient was experiencing discomfort,

the patient responded "not really." Respondent told th e patient

that the patient was being taken back to the holding area where

she had been picked up before and brought into the procedure

room.

24. While the physician was still in the procedure room ,

Respondent went to the door and opened it into the hold ing area ,

and the nurse from the PACU at Endosurg came into the procedure

room. Maureen Mayhew, R . N . , was that nurse.

2 5 . When nurse Mayhew entered the procedure room , the

vital signs in relation to blood pressure, pulse, and the pulse

ox im eter readin g were still displayed on th e monitor in the

procedure room. Those readings at the end of the case were

blood pressure 140/84, heart rate 74, respiratory rate 16 per

minute and the saturated oxygen level 96 percent . At that time

the patient responded to queries and stimuli. The reference to

responding to queries means that the patient was able to

converse with the Respondent .

2 6 . When Respondent turned over the ca re to nurse Mayhew ,

she told the other nurse that the patient had high blood

pressure and a history of bronchitis but that the chest was

clear when listened to prior to the procedure. Respondent

explained that the patient had undergone a colonoscopy , in which

2 mg of Versed, 50 mg of Fentanyl , which is the equivalent to 1

cc and a total of 6 0 mgs of Propofol , divided into two doses had

been provided . Respondent told n urse Mayhew that the patient

was awake and talking and that her blood pressure had started at

140, had drifted down to 120 and was back at 140 , as to systolic

readings.

2 7 . After Respondent released the patient to the care of

n urse Mayhew , she proceeded to address the next case. The

administration of anesthesia to that patient commenced at 7:27

a.m.

28. At about 7:45 a.m. a C . N . A . at Endosurg came into the

procedure roo m where the next case w as underway. The C.N.A.

stated that there was a problem with Patient M.M. , in that the

patient was not responding as she had been . The C.N.A. asked

that the d octor and Respondent come and see the patient .

2 9 . After arranging fo r someone to continue to monitor the

patient that was being examined at that moment and with the

placement of intravenous fluid with that patient to keep him

hydrated, Respondent and the d octor left the procedure room and

entered the holding area where Pat ient M.M. was found.

30. When Respondent and the physician approached the

patient, the patient was alone , flat on the bed. Respondent

checked the patient 's pulse at her n eck , while the physician

checked the patient's pulse at the wrist. Respondent cal led the

patient 's name and rubbed on the patient's chest. The patient

made no response. The patient had no pulse. Respondent told

the d octor "I don't have a pulse here." The d octor responded

"Neither do I." When Respondent and the d octor addressed the

patient in the holding area , they were uncertain when the

patient had stopped breathing. The d octo r commenced chest

compressions as a form of CPR. Respondent leaned over the

patient and breathed two quick breaths into the patient through

mouth - to - mouth CPR . Respondent asked someone else employed at

Endosurg to bring the CODE cart. Someone asked the Respondent

if they needed to call 911. Respondent said , " yes " and the call

was placed. Re spondent was handed an ambubag with a valve mask

to assist the pa tient in breathing. T o check the bag ' s

operation Respondent squeezed twice and found that the bag was

not working . This bag belonged to Endosurg , and by in ference

Endosurg, not the Respondent is found to be responsible for its

maintenance.

31. During the inception of the mouth - to - mouth

resuscitation provided by h e r , Respondent noticed that the

patient 's chest rose which is an indication that the patient was

being ventilated. By contrast, t he initial ambubag provided no

evidence that ventilation was oc curring.

32. When the facility ambubag failed, Respondent asked

another employee at Endosurg to go and pick up her personal

ambu bag that was located in another part of the procedure room.

While someone went to retrieve Respondent 's personal ambu bag,

the Respondent continued to provide mouth - to - mouth resuscitation

while the physician gave close d chest compressions to the

patient . During that time the chest was rising , indicating that

th e patient was making ventilatory efforts.

33. When the second ambubag , belonging to Respondent , was

handed to her, it was connected to oxygen and it performed as

expected. The patient was given several quick breaths of the

oxygen through the ambu bag. Respondent then used a l aryngoscope

and an e ndotracheal tube to intubate the patient and the patient

was intubated. While being ventilated through the e ndotracheal

tube, Respondent used a stethoscope to listen to the breath

sounds of the patient and she found evidence t hat the

e ndotracheal tube was secure. While this was occ urring the

physician continued chest compressions. The physician also

administered certain drugs to the patient to assist the patient .

On e drug being administered to the patient at the time was

Epinephrine. The patient was then defibrillated.

3 4 . The defibrillator did not have a separate monitor. It

was one in which the paddles associated with the defibrillator

were not hooked to a device that would produce print strips of

the results when the paddles were applied. This defibrillator

belonged to End osurg . Th e Respondent and the physicia n relied

upon the EKG monitor hooked up to the patient to gain

information and her stat u s .

35. When the Respondent and the doctor had co me into the

holding area , the patient was not on the monitor. The physici an

placed the leads on the chest of the patient to connect the

monitor to reflect the pulse rate, if any were present. When

the patient was first defibrillat ed and there was no change in

the heart rhythm , another dose of Epinephrine was administered.

Abo ut that time the fire rescue unit that had been summoned by

the 911 call arrived. That was at 7:5 1 a.m.

3 6 . The fire rescue personnel included an EMT paramedic

qualified to maintain the airway for the patient. Those persons

took over the patient and p repared the patient for transfer.

3 7 . Respondent asked the doctor if it was acceptable to

return to the procedure room and check the status of that

patient . The physician gave her permission but Respondent did

not return to the procedure room until the EMT paramedic had

check ed the position of the e ndotracheal tube in Patient M.M.

3 8 . Through the efforts made by Respondent and the

physician the patient regained her pulse. A note in the

patient's records refers to the existence of the heart rate and

pulse when the patient was turned over for transport to a

hospital . That hospital was the Village s Regional Hospital.

The re the patient was diagnosed with cardiac arrest and anoxic

brain damage, encephalopathy. Subsequently the patient was

transferred to Leesburg Regional Medical Center. The decision

was eventually made to remove the patient from life support ,

given her condition.

3 9 . In an interview n urse Mayhew gave to an investigator

with the Department of Health, relied upon by the parties at

h earing, Ms. Mayhew told the investigator that five patients

were in the PACU at Endosurg when Patient M.M. was transferred

to that unit. At the time there was only one registered nurse

and a single C.N.A. in the unit. Liz Singleton was the C . N . A.

Ms. Ma yhew told the investigator that Ms. Singleton indicated to

Ms. Mayhew that the patient was alert and talking when the

patient entered the unit. Ms. Mayhew said that she gave

Patient M.M. a rapid assessment shortly after the arrival of the

patient in the unit. Ms. Mayhew told the investigator that she

noted that the Patient M.M. had declined from alert to

responsive at that time. When checking the color and vital

signs , a decrease in blood pressure was noted and the patient

was placed in the Trendelenber g position (head down , feet

raised) to try to increase the blood pressure . Ms. Mayhew

mentioned giving Patient M.M. a sternal rub. The patient was

noticed to blink her eyes and move her shoulder. Fluids were

started , and the patient was given Romazicon intended to reverse

the effects of anesthesia that had been provided to the patient

during the procedure. Ms. Mayhew told the investigator that she

gave C.N.A. Singleton instructions not to leave the patient's

bedside and to give the patient one - on - one ca re. Ms. Mayhew

then went to arrange for another C.N.A. to assist in the PACU.

At some time during the care provided by n urse Mayhew , she

indicated that there was a monitor for blood pressure , oxygen

saturation, respiration and pulse and that the alert al arms were

set. Nurse Mayhew told the investigator that she was starting

an IV two beds away and heard the second C.N.A. talking to

Patient M.M. just before the alarms went off. She said that

Patient M.M. was in respiratory arrest and that she called a

CO DE , meaning n urse Mayhew called a CODE. Any entries

concerning the vital signs in relation to Patient M.M. that were

made following the procedure while the patient was in the

holding area were made by C.N.A. Singleton, according to n urse

Mayhew 's statemen t. The monitor had printout capabilities at

the time but was not activated. Notwithstanding these remarks

attributed to n urse Mayhew in the interview process, it is found

that when Respondent and the d octor addressed the patient in the

holding area the m onitor was disconnected.

40 . Although in her remarks made to the investigator n urse

Mayhew said that the vital signs were recorded by the C.N.A. ,

the record of nursing assessments reflecting the recording of

the vital signs was signed by n urse May hew . T hey show that at

7:30 a.m. the patient 's blood pressure was 78/46, with a p ulse

rate of 52, and a respiratory rate of 12. At 7:35 a.m. the

blood pressure was 74/42, with a p ulse rate of 40, and a

respiratory rate of 14.

4 1 . The physician gave ce rtain post - op orders concerning

Patient M.M. which were noted by n urse Mayhew when she affixed

her signature. One of those orders indicated that Ms. Mayhew

was obligated to "notify physician for blood pressure less than

90/60, pulse >110." This order was not followed.

EXPERT OPINION :

4 2 . Cenon Erwin Velvis, C.R.N.A. , has been licensed in

Florida for eleven years. He was called as a n expert for

Petitioner to testify concerning Respondent 's care rendered

Patient M.M. in this case. The witness was rece ived as an

expert.

4 3 . Both the Respondent and Mr. Velvis have provided

anesthesia on numerous occasions while patient s were undergoing

colonoscopies.

4 4 . To prepare himself for the testimony , nurse Velvis

reviewed medical records pertaining to Patient M.M. and the

investigative report of the Department of Health. His opinion

is that Respondent in caring for Patient M.M. f el l below the

standards expected o f a C.R.N.A. when considering acceptable and

prevailing nursing practice.

4 5 . Concerning his op inion , n urse Velvis believes that

Patient M.M. was transferred to the PA CU in an unstable

condition, that Respondent did not remain with the patient long

enough to ascertain this instability and the need for treatment

and to conduct an ongoing evaluation s econdary to the side

e ffects of the anesthesia , and that once the patient experienced

difficulties, the airway and circulatory system were not secured

by Respondent in a timely manner.

46 . Nurse Velvis believes that the blood pressure reading

at 7:3 0 a.m. of 78/46 and heart rate and pulse of 52 are low ,

dangerously so. According to n urse Velvis the normal range is

120/80 for blood pressure . T her e can be an acceptable 15 to 20

per cent departure from what is considered normal. This takes

into accou nt that nature of the procedure that the patient had

undergone. The vital signs that were reflected at 7:30 a.m.

demonstrate patient instability at 7:30 a.m. , in Mr. Velvis'

opinion. The Romazicon administered to the patient would not

ordinarily be used given the amount of anesthesia provided the

patient in the procedure. The patient 's responsiveness had

progressed to a point from w hat was initially a ss essed as

responsive or responding to queries , to an unresponsive state.

This would account for the adm inistration of Romazicon, a

reversal agent to the tranquilizer that had been used during the

procedure. Nurse Velvis notes that the patient had gone from

responding to inquiries to a state of unresponsiveness where the

patient woul d only move when given p ainful stimuli.

4 7 . Mr. Velvis was aware that the blood pressure at 7:35

a.m. was 74/42 , with a pulse rate of 40 , indicating a further

decline. The approximate time of arrest for the patient was

7:45 a.m. from records reviewed by Mr. Velvis .

48 . Mr. Velvis believes that the Respondent was

responsible for verifying the patient's vital signs upon

admission to PACU. He also originally expressed the opinion

that Respondent failed to utilize the intubation equipment in a

timely fashion to restore brea thing following the emergency.

4 9 . Mr. Velvis concedes that if the cardiac arrest that

occurred with Patient M.M. were related to anesthesia , the

respiratory response by the patient would be lowered. But t he

recording of a respiratory rate of 12 at 7:3 0 a.m. and 14 at

7:35 a.m. does not satisfy Mr. Velvis concerning the quality of

ventilation in the patient , even with the efforts of the patient

being recorded. He also makes mention that the level of oxygen

saturation at those times was unknown when rev iewing the record.

He does acknowledge that a respiratory rate of 14 as such is not

consistent with respiratory arrest.

50 . Mr. Velvis acknowledges that nothing in the record

indicates that n urse Mayhew notified the d octor when the low

blood pressure readings were taken at 7:30 a.m. and 7:35 a.m.,

contrary to post - op orders.

5 1 . When provided a hypothetical under interrogation at

hearing , that reflects the facts that have been reported here

concerning the Respondent and the d octor in their effort to

restore Patient M.M. 's breathing, Mr. Velvis retreated from his

opinion that the airway and circulatory system of the patient

was not secured in a timely manner when confronted with the

crisis.

52 . While Mr. Velvis changed his opinion during cross -

exami nation at hearing concerning the response by Respondent

leading to the defibrillat ion, he still continued to express the

opinion that Respondent fell below the standard of care and was

responsible for hypoxia in the patient, the patient not

breathing . He also restated his opinion that Respondent was

below the standard of care for her release of the patient from

the procedure room into the PACU in an untimely manner.

5 3 . Mr. Velvis expresses the opinion that immediate

patient care was the Respondent 's re sponsibility but in the

atmosphere of team work the physician was the captain of the

ship. Although the physician wa s the captain of the ship , the

Respondent was responsible to do what wa s most important for the

patient , according to Mr. Velvis .

5 4 . Mr . Velvis recognizes that n urse Mayhew would have

been more helpful if she had notified Respondent and the

physician earlier about Patient M.M. 's condition in the holding

area , and Ms. Mayhew 's error in leaving the patient when the

patient was unstable.

5 5 . Mr. Velvis expresses the opinion that the mechanism

behind the cardiac arrest in Patient M.M. was a lack of oxygen,

in that the airway was not secure. Mr. Velvis in his testimony

concedes that the patient could have had cardiac failure not due

to a pr oblem with respiration.

56 . Michael A. Binford, M.D., was called by Respondent as

an expert. He is a practicing anesthesiologist in Florida who

completed his anesthesiology residency approximately ten years

ago. He works with C.R.N.A. s in his practice and as such is

able to offer opinion testimony about the performance of

C.R.N.A.s in their practice. He is familiar with the type of

procedure which Patient M.M. was undergoing and the drugs

administered to provide anesthesia .

5 7 . Having re view ed the patient's records and the

investigative report from the Department of Health , his opinion

is that Patient M.M. was stable when transferred from

Respondent 's care to n urse Mayhew 's care. That opinion is based

upon vital signs recorded at the commencement, during, and at

the end of the procedure . F rom what he saw in the record

concerning the medication administered to the patient during the

procedure, i t was appropriate. Nothing that he saw in the

record made Dr. Binford believe that the Respondent should have

stayed with the patient for a longer period of time , given the

amount of medication provided.

5 8 . By contrast Dr. Binford refers to the vital si g n s

recorded when the patient was under nur se Mayhew 's ca re at 7:30

a.m. and 7:35 a.m. T hose are not vital signs of a patient in a

stable condition. Dr. Binford believe s that the patient was

deteriorating at that time and that n urse Mayhew violated the

physician 's post - op order by not immediately notifying the

doctor of the vital signs she found.

5 9 . Dr. Binford in referring to n urse Mayhew 's statement

given to the investigator , reads the statement to indicate that

the patient was stable when entering the PACU but declined from

alert to responsive. To Dr. Binford this reflects a change in

mental statu s in the patient . D efinit iv e evidence in the change

in status is borne out by the vital signs taken at 7:30 a.m. ,

and 7:35 a.m. , in Dr. Binford 's opinion. Although the Romazicon

given by Nurse Mayhew would not have been a drug of choice for

Dr. Binford , he understands t h at n urse Mayhew may have

considered it appropriate to provide an antidote to the Versed

by using Romazicon . Dr. Binford did not believe that the Versed

would have caused the low vital signs encountered by n urse

Mayhew .

60 . Having revie wed the autopsy report related to Patient

M.M. , Dr. Binford be lieves that a cardiac event was associated

with the lower vital signs. He does not believe that the

respiratory rate of 12 and 14 found at 7:30 a.m. and 7:35 a.m.

respectively are consistent wi th respiratory arrest.

Dr. Binford explains that the process involved with a heart

att ack , which is also referred to a myocardial infarction , is in

relation to the entire heart or some segment within the heart

not getting sufficient oxygen. If the patien t is not breathing

for a period of time , the total level of oxygen in the blood

drops significantly. That is a possibility. The second

possibility is that if there is plenty of oxygen in the blood ,

but one of the blood vessels supplying the heart muscle becomes

blocked and no blood can get past the obstruction, this can also

cause oxygen deprivation. Either explanation can cause damage

to the heart and the brain. The first example is one in which

problems are experienced in getting air and oxygen into t he

lungs , that can be picked up and transported around the body and

the second explanation involves a problem with getting the blood

flow into the area as needed. The first example related to

problems of respiration is referred to by Dr. Binford as a

prim ary respiratory event. The second example is referred to as

a primary cardiac event , involving restricted blood flow.

61 . In Dr. Binford 's opinion if the patient has

respiratory difficulty , the respiratory rate ranges from 0 to 8 ,

which was not the cas e here.

62 . In Dr. Binford 's opinion neither the Versed or

Romazicon were responsible for the vital signs shown in the

patient while she was in the holding area.

6 3 . I n Dr. Binford 's opinion the cause of the patient 's

decline was indicative of a prim ary cardiac event , as opposed to

a primary respiratory event and the anesthesia as a causative

agent would not explain it. He expresses this opinion within a

reasonable degree of medical certainty.

6 4 . G iven his knowledge of the case, Dr. Binford did n ot

find any deficiencies in the way the Respondent treated the

patient . Within a reasonable degree of medical certainty

Dr. Binford believes that the Respondent met her obligations as

to the basi c standards for her profession i n the pre - operative

phase , d uring the procedure, upon the release of the patient to

n urse Mayhew and in response to the emergency in the holding

area.

65 . Having considered the opinions of both experts , the

opinion of Dr. Binford is more persuasive and is accepted as it

exoner ates Respondent for her conduct.

C ONCLUSIONS OF LAW

66 . The Division of Administrative Hearings has

jurisdiction over the parties and the su bject matter of this

proceeding i n accordance with Sections 120.569, 120.57(1), and

456.0 73 ( 5 ), Florida Stat utes (200 5 ) .

6 7 . Consistent with Section 456.072(2), Florida Statutes

(2002), t he A dministrative C omplaint le aves open the p ossibility

of imposing one or more penalties, to include suspension or

permanent revocation, restriction of Respondent 's practic e,

imposition of an administrative fine, issuance of a reprimand,

placement Respondent on probation, and other forms of corrective

action, and remedial education deemed appropriate by the Board

of Nursing. With the prospect that the punishment may involve

suspension or revocation, to prevail in this case Petitioner

must prove 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 Ste rn and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

68 . The meaning of c lear and convincing evidence has been

explained in the case I n re: Davey , 645 So. 2d 398 (Fla. 1994),

quoting with approval from Slomowi tz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

6 9 . Specifically, Respondent is accused of violating

Section 464.018(1)(n), Florida Statutes (2002) , which states:

(1) The following acts constitute grounds

for . . . discipli nary action, as specifi ed

in s. 456.072(2):

* * *

(n) Failing to meet minimum standards of

acceptable and prevailing nursing practice,

including engaging in acts for which the

licensee is not qualified by training or

experience.

70 . The basis of the Administrative Complaint concerns the

care provided Patient M.M. by Respondent on March 13, 2003 at

Endosurg . The alleged failure to meet minimal standards of

acceptable and prevailing nursing practice in rendering that

care has been previously described. Based upon the facts found,

and the opinion expressed by Dr. Binford concerning Respondent 's

performance , it has not been shown that Respondent failed to

meet standards of acceptable and prevailing nursing practice as

alleged.

RECOMMENDATION

Based u pon t he facts found and the conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing the Administrative

Complaint .

DONE AND ENTERED this 8th day of December , 2005 , in

Tallahassee, Leon County, Florida.

S

________________ ___________________

CHARLES C. ADAMS

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

F iled with the Clerk of the

Division of Administrative Hearings

this 8 th day of December , 2005 .

COPIES FURNISHED :

Irving Levine

Assistant General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florid a 32399 - 3265

Damon A. Chase, Esquire

Chase Law Offices, P.A.

Post Office Box 196309

Winter Springs, Florida 32 719

Alex Finch, Esquire

2180 Park Avenue, Suite 100

Winter Park, Florida 32789

Dan Coble, Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Ag en cy Cl erk

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 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.