06-001423PL Department Of Health, Board Of Nursing vs. David Carpenter, R.N. Status: Closed Recommended Order on Tuesday, September 19, 2006.

Summary: Respondent falsified patient records to show a change of dressing and demonstrated negligent failure to change the dressing. Recommend $1000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1423PL

)

DAVID CARPENTER, R.N., )

)

Respondent. )

______________________________)

RECOMMENDE D ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Vero Beach and Viera, Florida, on July 20 and 28, 2006.

APPEARANCES

For Petitioner: Ellen M. Simon

Assista nt General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: David Carpenter, p ro se

419 Sandpiper Drive

Satellite Beach, Florida 32937

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of failing to

meet the applicable standard of care with respect to acts and

omission s involving two patients, in violation of Section

464.018(1)(n), Florida Statutes, and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 30, 2004,

Petitioner allege s that Respondent was a registered n urse at all

material times, holding license number RN 2732432.

The Administrative Complaint alleges that Respondent was a

registered nurse at Integrated Health Services in Vero Beach.

He allegedly cared for R. F., who was a resident at the

facility. The Administrative Complaint alleged that R. F.'s

physician had ordered duo derm "dressings" for a reddened "area"

on the coccyx that were to be changed every three days. The

Administrative Complaint alleges that, on June 30, 2002, the

dressing was scheduled to be changed, and Petitioner worked the

11:00 p.m. to 7:00 a.m. shift. The Administrative Complaint

alleges that, on July 1, 2002, Respondent recorded on the wound

treatment and progress record that he changed the dressing. The

Administrative Complaint alleges that, on July 3, 2002, the

wound nurse found that the dressing on R. F.'s coccyx wound bore

a date of June 27, 2002, indicating that it had not been changed

on July 1.

The Administrative Complaint alleges that J. R. was a

resident on October 24, 2002. The Administrative Complaint

alleges that a physician issued an order at about 3:00 p.m. for

the intravenous administration of potassium supplement. The

Administrative Complaint alleges that Respondent was assigned to

work the 11:00 p.m. to 7:00 a. m. shift as the shift supervisor.

The Administrative Complaint alleges that the responsibilities

of the shift supervisor included auditing all patient charts for

new orders and ensuring that the orders are implemented. The

Administrative Complaint allege s that, during the evening of

October 24 and morning of October 25, Respondent did not start

or attempt to start the potassium or ensure that someone else

started or attempted to start the potassium.

Count One of the Administrative Complaint alleges that

Section 464.018(1)(n), Florida Statutes, authorizes the Board of

Nursing to impose discipline for a failure to meet the minimal

standards of acceptable and prevailing nursing practice. Count

One alleges that Florida Administrative Code Rule

64B9 - 8.005(2) (a) provides that the failure to meet the minimal

standards of acceptable and prevailing nursing practice includes

falsifying or altering records or nursing progress notes. Count

One alleges that Respondent failed to meet the applicable

standards by false ly noting in R. F.'s wound treatment and

progress record that he had changed the wound dressing.

Count Two of the Administrative Complaint alleges that

Florida Administrative Code Rule 64B9 - 8.005(2)(b) provides that

the failure to meet the minimal standar ds of acceptable and

prevailing nursing practice includes administering medications

or treatments in a negligent manner. Count Two alleges that

Respondent failed to meet the applicable standards by failing to

change R. F.'s wound dressing and failing to s tart J. R.'s

intravenous potassium administration. (Count Two contains a

third ground, but it applies to another resident for whom

Petitioner presented no evidence.)

At the hearing, Petitioner called four witnesses and

offered into evidence 12 exhibits: Petitioner Exhibits 1 - 10 and

12 - 14. Respondent called no witnesses and offered into evidence

three exhibits: Respondent Exhibits 1 - 3. All exhibits were

admitted except Petitioner Exhibit 8 and Respondent Exhibits

1 and 3, which were proffered.

The cou rt reporter filed the transcript on August 31, 2006.

Petitioner filed a proposed recommended order on September 11,

2006. Respondent filed a letter on August 31, 2006.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed

registered nu rsing in Florida, holding license number

RN 2732432. At all material times, he was employed as a

registered nurse at Integrated Health Services in Vero Beach,

Florida.

2. In June and July 2002, R. F. was a resident of

Integrated Health Services. She had wounds to both buttocks.

On June 7, 2002, her physician ordered the application of duo

derms to each wound and ordered that the dressing be changed at

least every three days, or more frequently, if needed.

3. The wound treatment and progress records for b oth

wounds are identical forms that require the nurse tending the

wound to describe it, by abbreviations, in terms of drainage,

general appearance, and surrounding skin and then to initial the

notes. The initialing of the form signifies that the nurse als o

has changed the dressing, not just described the wound, as it

would be impossible to view the wound without removing the old

dressing. The form on which this information is recorded is

divided into days, so that the date of the activity is clear on

the completed form.

4. The forms in this case for the June treatments of these

wounds show that licensed practical nurse Kathleen Ertle

described each wound on June 7. The only difference between

them was that the wound on the right buttock was dry and pink,

a nd the wound on the left buttock was moist and red. Three days

later, on June 10, Respondent changed each dressing, and

described each wound appropriately -- by now, both wounds were

moist, red, and macerated. Two days later, Nurse Ertle changed

the dressi ngs and described the wounds as unchanged from two

days earlier. The following day, June 13, Respondent changed

the dressings and described the wounds as unchanged.

5. Three days later, on June 16, Respondent changed the

dressings and described the wounds as unchanged. On June 18, he

changed the dressings, and this time described the left wound as

dry, but the right wound as moist. Three days later, on June

21, Respondent changed the dressings and described both wounds

as dry and pink, not red.

6. The June 24 entry on wound treatment and progress

record for both wounds is a little confusing, but the confusion

does not appear to have contributed to the violations in this

case. Respondent entered a description of each wound -- again,

dry, pink, and macerated -- but overwritten on this entry are:

"healed" and "ERROR." It is unclear who wrote these entries or

what is identified as erroneous -- Respondent's initial

description or that the wounds are healed.

7. The next entry for either wound is by Nurse Ertle who,

on June 27, described the left wound as macerated, red, and

reddened. On June 28, Nurse Ertle made entries for both wounds,

describing each as macerated, red, and reddened. There are no

more entries for June.

8. The next entry is July 1 and is made by Respo ndent, who

described the wounds as dry, pink, and macerated. On July 3,

each wound bears two entries. At the top is an entry by

Respondent, describing each wound as dry, pink, and macerated.

Beneath these entries are entries by Nurse Ertle, describing

e ach wound as dry, red, and reddened.

9. The next entry for each wound is July 5, on which

Respondent described each wound as unchanged from his preceding

description. The last entry for each wound is July 8, at which

time Respondent described each wound as still unchanged. The

wound treatment and progress record for the left wound bears an

additional notation to discontinue wound treatment. Neither

record, though, bears additional entries as to wound care, and

both wounds were subsequently treated by a special air - pressure

mattress.

10. The problems as to R. F. arose when, on July 3, Nurse

Ertle examined the wounds and the dressings. Nurses routinely

mark the date of application on the exterior of the dressing.

Instead of finding "July 1" on the dressing on the right - buttock

wound, Nurse Ertle found the date, "June 28." This finding was

inconsistent with the above - described entries in the records.

11. Petitioner proved that Respondent failed to change the

right - buttock dressing on July 1. As evidenced by hi s notation

on the record, Respondent had undertaken the duty to change the

dressing on July 1, and the evidence is clear that he failed to

do so, at least as to the right buttock.

12. Petitioner also proved that Respondent made the July 1

entry in an attempt to falsify or alter the records. Initially,

it seemed at least as likely that Respondent made the entry in

advance of changing the dressing, intending to do so, and

merely forgot to do so. (Even if such advance recording of

nursing activity is improper , it is not an act with which

Respondent is charged.) However, Petitioner's nursing expert,

Katherine Johnson, pointed out that the charting could not have

been an innocent mistake, such as by charting before changing

the dressing, because Respondent char ted the condition of the

wound, which he could not have seen without removing the

dressing. Although Petitioner charged Respondent with

falsification of the records that he changed the dressing, not

that he falsely described the wound, evidence of fraudul ent

intent in describing the wound tends to establish fraudulent

intent in recording that he had changed the dressing.

13. However, Petitioner failed to prove that Respondent's

act and omission caused significant harm to R. F. Nurse Ertle

testified on direct that the wound deteriorated from Stage I to

Stage II between June 28 and July 3, but later testified, on

cross - examination, that the deterioration had taken place before

June 27. Shortly after the introduction of the special

mattresses, both wounds healed .

14. At 3:00 p.m. on October 24, 2002, an advanced

registered nurse practitioner (ARNP) ordered the intravenous

administration of potassium to J. R., who was a patient at

Integrated Health Services. The purpose of the order was to

treat hypernatremia. This order was received by a nurse working

the 3:00 p.m. to 11:00 p.m. shift. However, neither she nor any

other nurse on this shift attempted to start the IV, which was

only started at 6:45 a.m. on October 25.

15. Respondent arrived at Integrated Health Services at

11:00 p.m., at which time he served as the shift supervisor.

The record fails to establish that any nurse on the preceding

shift had documented the ARNP's order, such as in the nurse's

notes, in such a way that Respondent reasonably could have found

it and taken appropriate action on the order, either starting

the IV or calling the ARNP and explaining what had happened and

stating when the IV could be started. Furthermore, Petitioner's

nursing expert, Katherine Johnson, testified that the duty of

ensur ing that the IV had been started or the ARNP informed of

the failure fell to the nurse who took the orders and her shift

supervisor, and the duty of auditing the records to ensure that

orders were carried out by the preceding shift belonged to the

nurse as signed to the patient. In no instance did Ms. Johnson

assign the duty of auditing as belonging to the subsequent shift

supervisor, Respondent.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.56 9 and 120.57(1),

Fla. Stat. (200 6 ).

17. Section 464.018(1)(n), Florida Statutes, authorizes

the Board of Nursing to impose discipline for "[f]ailing to meet

minimal standards of acceptable and prevailing nursing practice,

including engaging in acts for which t he licensee is not

qualified by training or experience."

18. Florida Administrative Code Rule 64B9 - 8.005(2)

provides, in part:

(2) Failing to meet or departing from

minimal standards of acceptable and

prevailing nursing practice shall include,

but not be limi ted to, the following:

(a) Falsifying or altering of patient

records or nursing progress records,

employment applications or time records; or

(b) Administering medications or

treatments in negligent manner[.]

19. Petitioner must prove the material all egations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20. Petitioner has proved by clear and convincing evidence

separa te violations of Florida Administrative Code Rule

64B9 - 8.006(2)(a) and (b) in the above - described act and omission

of Respondent in the care of R. F. However, as to J. R.,

Petitioner failed to prove that Respondent had a duty to audit

the records.

21. For a first offense, Florida Administrative Code Rule

64B9 - 8.006(3)(oo) provides a penalty range of a $250 fine to a

$500 fine with suspension followed by probation for a violation

of Rule 64B9 - 8.006(2)(a). For a first offense, Florida

Administrative Code Rule 64B9 - 8.006(3)(pp) provides the same

penalty range for a violation of Rule 64B9 - 8.006(2)(b).

22. According to the record, Respondent has not previously

been disciplined. Petitioner failed to prove that the act and

omission of which Respondent is guilty signifi cantly impacted

the patient's health, although, in general, the failure to

change a dressing poses the risk of skin breakdown in the case

of a vulnerable patient such as R. F. The greater aggravating

factor, though, is that Respondent is guilty of the act of

falsely entering in the records that he changed the dressing and

the omission of failing to change the dressing. Either offense,

alone, would have posed little, if any, risk to the patient,

but, by combining the failure to change the dressing with a

f alse entry that the dressing had been changed, Respondent

effectively prevented others from intervening sooner to ensure

that the dressing was changed when it needed to be changed.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

finding Respondent guilty of two violations of Florida

Administrative Code Rule 64B9 - 8.006(2) and imposing an

administrative fine of $1000.

DONE AND ENTERED this 1 9 th day of September, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 1 9 th day of September, 2006.

COPIES FURNISHED:

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

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Ellen M. Simon

Assistant General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way -- Bin C - 65

Talla hassee, Florida 32399 - 3265

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

David Carpenter

419 Sandpiper Drive

Satellite Beach, Florida 32937

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 must be filed with the agency that

will issue the final order in this case.