07-001914PL Department Of Health, Board Of Nursing vs. B.J. Walper Penansky, A.R.N.P. Status: Closed Recommended Order on Tuesday, September 25, 2007.

Summary: Respondent was unable to practice with reasonable skill and safety to patients by reason of the use of alcohol.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1914PL

)

B.J. WALPER PENANSKY, A.R.N.P. , )

)

Respondent . )

)

RECOM MENDED ORDER

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

on July 25 and 26, 2007, in Tampa, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Heid i Maynard, Esquire

William F. Miller, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Suzanne Suarez Hurley, Esquire

Suzanne Hurley, P.A.

Post Office Box 13215

Tampa, Florida 33681 - 3215

Mary Elizabeth La nier, Esquire

Lanier Law, P.A.

Post Office Box 342263

Tampa, Florida 33694 - 2263

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsection 464.018(1)(j), F lorida Statutes (2006), 1 and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On March 20, 2007, Petitioner, the Department of Health

(Department), filed an Administrative Complaint before the Board

of Nursing, alleging that Respondent, B.J . Penansky, A.R.N.P.

(advance registered nurse practitioner)(Ms. Penansky), violated

Subsection 464.018(1)(j), Florida Statutes, “by being unable to

practice nursing with reasonable skill and safety by reason of

illness or use of alcohol, drugs, narcotics, or chemicals or any

other type of material or as a result of any mental or physical

condition.” Ms. Penansky requested an administrative hearing,

and the case was forwarded to the Division of Administrative

Hearings on May 1, 2007, for assignment of an A dministrative Law

Judge to conduct the final hearing.

The final hearing was scheduled for hearing on June 28,

2007. On June 20, 2007, Petitioner filed a motion for

continuance, which was granted. The final hearing was re -

scheduled for July 25 and 26, 200 7.

At the final hearing, the Department called the following

witnesses: Martha E. Brown, M.D.; Subhakrarao Medidi, M.D.;

Yolanda Guzman, R.N.; Carmen Laguerra; George Hammond; and Lynn

Crill. Petitioner’s Exhibits 1 through 8 were admitted in

evidence. Ms. Penansky testified in her own behalf and called

the following witnesses: Raymond Johnson, M.D.; James Nunez;

Brantz Roszel; and Susan Bingham, A.R.N.P. Ms. Penansky

presented the testimony of Marie Massaro; Nicholas Anthony,

Ph.D.; Steven Zweibach, M .D.; and Raymond Johnson, M.D., by

deposition. Respondent’s Exhibits 1 through 9 and 12 through 21

were admitted in evidence. Respondent’s Exhibits 10 and 11 were

not admitted in evidence.

Official recognition was taken of Section 20.43 and

Subsection 46 4.018(1)(j), Florida Statutes, and Florida

Administrative Code Rule 64B9 - 8.006.

The three - volume Transcript was filed on August 15, 2007.

A corrected portion of the Transcript was filed on August 20,

2007. The parties filed their Proposed Recommended Ord ers on

August 27, 2007. On August 30, 2007, Petitioner filed a Motion

to Strike, requesting that a portion of Respondent’s Proposed

Recommended Order be stric ken for exceeding 40 pages. On

August 31, 2007, Respondent filed Respondent’s Motion to Strike

a nd/or to Authorize Respondent’s PRO and Appendix as Filed

and/or to Accept Re - formatted Appendix to Respondent’s Proposed

Recommended Order. The motions were heard by telephonic

conference call on September 7, 2007, and an order was entered

on September 1 1, 2007, striking the pages of Respondent’s

Proposed Recommended Order, which exceeded 40 pages. The

parties ' P roposed R ecommended O rders have been considered in

rendering this Recommended Order.

On September 14, 2007, Respondent filed a Motion for

Extens ion of Time to Allow Transcript of September 7, 2007

Hearing to be Filed and Accepted as Part of the Record. The

motion was granted.

FINDINGS OF FACT

1. At all times material to this proceeding, Ms. Penansky

has been licensed as an A.R.N.P. in Florida, h aving been issued

license number ARNP1302962 in 1982. From 1993 through

August 2006, Ms. Penansky was employed as an A.R.N.P. at the

Dover Clinic of Suncoast Community Health Centers, Inc.

(Suncoast). She was the primary certified nurse midwi fe at the

fa cility and saw the obstetric/gynecology patients.

2. During 2004, Carmen Laguerra, who was the office

manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s

breath at work and observed Ms. Penansky’s hands trembling. A

couple of times, Ms. Laguer ra observed that Ms. Penansky was

having trouble walking at work and would put her hand on the

walls to support herself. Ms. Penansky came to work at times

with bruises on her arms and face.

3. In the fall of 2004, the coordinator of medical records

at t he Dover Clinic asked Ms. Laguerra to observe Ms. Penansky

in the medical records room. Ms. Laguerra observed Ms. Penansky

murmuring to herself.

4. Prior to 2004, Ms. Penansky had demonstrated a quiet

demeanor. In 2004, Ms. La g uerra observed a change in

Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and

opinionated.

5. In 2004, Yolanda Guzman, the supervisor of nurses at

the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s

breath and body while at work. Ms. Guzman also notice d that

Ms. Penansky’s hands were trembling and that Ms. Penansky’s

speech was not clear. Ms. Guzman observed bruises on

Ms. Penansky’s arms and face. Ms. Guzman reported her

observations to Ms. Laguerra and to S u bhakrarao Medidi, M.D.,

who was the asso ciate medical director at the Dover Clinic.

6. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one

time in 2004. On multiple occasions, he observed Ms. Penansky’s

hands shaking. After receiving patient complaints, Dr. Medidi

confronted Ms. Penansky about the smell of alcohol.

Ms. Penansky denied the use of alcohol, claiming that the smell

resulted from the use of mouthwash. Dr. Medidi also recalled

one time, in particular, when Ms. Penansky came to work with

bruises.

7. George Hammond, the c hief ad ministrative o fficer at

Suncoast , met with Ms. Penansky to discuss the observations of

employees at the Dover Clinic. Ms. Penansky denied the use of

alcohol at work. He directed Ms. Penansky to get a blood -

alcohol test. She did as directed, and the re sult of the test

was negative.

8. Mr. Hammond directed Ms. Penansky to contact the

Intervention Project for Nurses (IPN), which is the impaired

practitioner program for the Board of Nursing. IPN is an

independent program that monitors the evaluation, ca re, and

treatment of impaired nurses. IPN oversees random drug screens

and provides for the exchange of information between treatment

providers, evaluators, and the Department.

9. Ms. Penansky contacted IPN and was referred to

Martha E. Brown, M.D., for an evaluation. As part of the

evaluation, Ms. Penansky underwent a drug test, which was

negative for drugs and alcohol, but was considered dilute. When

a drug test is dilute, it usually means that the individual

tested consumed a significant amount of f luids prior to the

test.

10. Ms. Penansky advised Dr. Brown that she averaged

drinking almost every day, but had stopped drinking about ten

days prior to the evaluation. As a result of abstinence,

Ms. Penansky told Dr. Brown that she felt better and was able to

stay up later and get up earlier. Ms. Penansky advised

Dr. Brown that her brother had a problem with alcohol and had

not had a drink in 20 years.

11. In a report dated November 8, 2004, Dr. Brown opined

that there was suspicion for Ms. Penansky having a substance

abuse problem. She recommended that Ms. Penansky enter into an

abuse contract with IPN for two years with a one - year review.

12. Ms. Penansky entered into an IPN contract in

December 2004. Her participation in the program included r andom

drug screening, joining a support group, attending Alcoholics

Anonymous meetings, and being evaluated by her supervisor.

During her participation in the program, she was tested for

alcohol 17 times, and each time the test was negative.

Ms. Penansk y completed the program in one year.

13. While Ms. Penansky was participating in the IPN

program, employees at Suncoast observed positive changes in her.

Ms. Penansky’s appearance and mood improved, and the tremors in

her hands disappeared.

14. On July 31, 2006, Ms. Penansky was involved in an

automobile accident. As a result of the accident, she sustained

some bruises to her body, which were visible to employees at the

Dover Clinic.

15. In August 2006, while Ms. Penansky was at work,

Ms. Guzman again smelled alcohol on Ms. Penansky’ s breath and

noticed Ms. Penansky’s hands were shaky , and her speech was not

normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while

Ms. Penansky was at work during the same time period. In

August 2006, Dr. Medid i noticed that Ms. Penansky’s hands were

shaking again.

16. Ms. Penansky denies that she had alcohol on her breath

at work in either 2004 or 2006. However, both Ms. Guzman and

Ms. Laguerra testified credibly that they smelled alcohol on

Ms. Penansky’s b reath and that the smell was different from the

smell that would come from the use of mouthwash, which has a

medicinal smell. Additionally, Ms. Penansky testified that in

2006 she was not using the mouthwash prior to going to work

because she felt that in 2004 her fellow employees had mistaken

the smell of the mouthwash for the smell of alcohol. Thus, the

smell could not have come from mouthwash in 2006 because

Ms. Penansky was not using it.

17. Ms. Penansky commenced a change in her eating habits

in wh ich she had lost 50 pounds. In 2006, she was still losing

weight , but not at a very rapid pace. At the final hearing,

there were some allegations that the odor that Ms. Guzman and

Ms. Laguerra smelled was a result of a release of ketones due to

Ms. Penan sky’s diet. However, the smell caused by ketones is a

“sweet smell,” which is different from the smell of alcohol.

Another allegation at the final hearing was that the smell could

be a result of Ms. Penansky’s periodontal disease, but the smell

that woul d result from a periodontal disease would be different

from the smell of alcohol.

18. Neither Ms. Guzman nor Ms. Laguerra had any conflict

with Ms. Penansky that would cause them to make false

allegations against her. In fact, both Ms. Guzman and

Ms. La guerra were highly complementary of Ms. Penansky’s work,

aside from the use of alcohol and the hand tremors.

19. The evidence is clear and convincing that in 2004 and

in 2006, Ms. Penansky came to work at the Dover Clinic with

alcohol on her breath while she was practicing as the primary

midwife at the facility.

20. In August 2006, the observations of Ms. Guzman and

Ms. Laguerra were made known to the management at Suncoast.

Suncoast elected not to require Ms. Penans k y to undergo a drug

screening to det ermine whether she had ingested alcohol. On

August 3, 2006, Ms. Penansky was terminated from her position

with Suncoast for her use of alcoh ol and directed to contact

IPN.

21. After Ms. Penansky was terminated from Suncoast, she

went to work for a p rivate physician. Her employment was

uneventful, and she continued in his employ until the Department

suspended her license by emergency order.

22. Ms. Penansky did not contact IPN, and Suncoast filed a

complaint with the Department. An investigation en sued. The

Department required Ms. Penansky to be evaluated. In

January 2007, Ms. Penansky was again evaluated by Dr. Brown.

23. Ms. Penansky advised Dr. Brown that she had returned

to drinking occasionally after she completed her program with

IPN, but denied drinking on the job or drinking in large

amounts. A drug screen was performed on Ms. Penansky, and the

result was negative.

24. Dr. Brown diagnosed Ms. Penansky with alcohol abuse,

" rule out alcohol dependency. " Credibly, Dr. Brown opined that

Ms . Penansky appeared “to be either in denial or minimizing the

impact alcohol has had on her life and the problems she has had

at work with others smelling alcohol on her breathe [sic]

multiple time [sic].” It was Dr. Brown’s opinion that in order

for Ms. Penansky to be able to practice with reasonable safety

and skill that she should minimally complete an intensive

outpatient program and have monitoring through IPN.

25. Ms. Penansky was also evaluated by Raymond A. Johnson,

M.D., who came to the conclusio n that Ms. Penansky did not have

an addiction and alcohol problem. He felt that she was safe to

practice nursing without treatment or monitoring by IPN. In his

report dated January 22, 2007, he stated that Ms. Penansky used

mouthwash multiple times a day because of periodontal disease,

and he concluded that the use of the mouthwash was the reason

for the smell of alcohol on her breath. His argument loses

plausibility based on Ms. Penansky’s testimony at final hearing

that she was not using the mouthwash in 2006 prior to going to

work so that people would not mistake the smell of mouthwash for

the smell of alcohol.

26. Dr. Johnson had a psychological evaluation performed

on Ms. Penansky by Nicholas Anthony, Ph.D. In his report,

Dr. Anthony stated that M s. Penansky told him that her brother

was no longer allowed to use alcohol because he had been

diagnosed with diabetes. Based on Ms. Penansky’s

representations, he concluded that she did not have a family

history for addiction.

27. Ms. Penansky’s account of her brother’s abstinence

differed when she related her family history to Dr. Brown. She

did not tell Dr. Brown that her brother had stopped drinking

because he was a diabetic. At the final hearing, she did not

mention that her brother refrained from drinking because of

diabetes. At the final hearing, Ms. Penansky testified:

Well, what he [her brother] told me, in

fact, what he told the whole family was, at

one point he said he just felt like he was

drinking too much and decided to stop. That

was it. He never said anything about being

an alcoholic. He never said he was

diagnosed by a physician. He made a

personal choice.

28. Dr. Anthony tested Ms. Penansky using the Minnesota

Multiphasic Personality Inventory - II (MMPI), The Rorschach, and

the Mil lion Clinical Multiaxial Inventory - III (MCMI). The

Rorschach, otherwise known as the “ink blot” test, is not

commonly used in the field of addiction psychiatry to look at

substance abuse diagnoses.

29. In the field of psychiatry, alcohol abuse and alcoho l

dependency are considered Axis I, or primary, diagnoses. The

MMPI and the MCMI are more accurate and effective in diagnosing

other Axis I disorders such as psychosis than in diagnosing

substance abuse or dependency. This is due to the fact that

individ uals with substance abuse or dependency problems often

attempt to present themselves in the best possible light when

answering the test questions. The test results themselves for

these individuals are often invalid because the test either

misses the subst ance abuse or dependency diagnosis or identifies

the individual’s denial or minimization tendencies.

30. The Adult Clinical Interpretive Report for Ms.

Penansky’s MMPI test states:

[Ms. Penansky] approached the test items in

a somewhat defensive manner. Her

overcautious approach to the items suggests

that she is concerned with making a good

impression and is reluctant to disclose much

about her personal adjustment.

Interpretations of the clinical and content

scale profiles should allow for her possible

m inimization of problems.

31. The Adult Clinical Interpretive Report for

Ms. Penansky’s MCMI test states:

Unless this patient is a well - functioning

adult who is facing minor life stressors,

her responses suggest an effort to present a

socially acceptable appearance or a

resistance to admitting personal

shortcomings. Inclined to view

psychological problems as a sign of

emotional or moral weakness, the patient may

protectively deny any unseemly traits or

symptoms. This probably reflects either a

broad - base d concern about being appraised

unfavorably by others or an active suspicion

of the arcane motives of psychological

inquiry. Her MCMI - II scores have been

adjusted to compensate for her

defensiveness, but the overall profile may

remain partially distorted. An

interpretation based on standard

interpretive procedures is likely to be

reasonably valid but may fail to represent

certain features of either the patient’s

disorders or her character.

The BR scores reported for this individual

have been modified to account for the

defensiveness suggested by the prominence of

Personality Patterns Scale 7 (Compulsive).

32. Dr. Anthony interpreted the results of Ms. Penansky’s

test scores as being negative for a diagnosis of alcohol abuse

or dependency. Dr. Johnson r elied on Dr. Anthony’s

interpretation of test results in forming his opinion that

Ms. Penansky was negative for a diagnosis of alcohol abuse or

dependency.

33. Dr. Brown reviewed the Adult Clinical Interpretive

Reports of the MMPI and the MCMI performed on Ms. Penansky by

Dr. Anthony and opined that the tests are bordering on invalid

and that, given Ms. Penansky’s defensiveness on the test in

answering questions, she would not use the test results as a

total basis for concluding that Ms. Penansky did not have a

problem with alcohol.

34. Given Dr. Johnson’s reliance on the use of mouthwash

as the explanation for the smell on alcohol on Ms. Penansky’s

breath, the lack of credibility in Ms. Penansky’s account of her

family history, and the defensive answers given by Ms. Penansky

on her psychological testing, Dr. Johnson’s opinion concerning

Ms. Penansky’s alcohol abuse lacks credibility.

35. Current and former employees of Suncoast highly

regarded Ms. Penansky’s work. Her evaluations were very good.

She wo rked very hard, and the quality of her work was excellent.

However, alcohol abuse can affect a nurse’s judgment and ability

to practice with reasonable skill and safety. Alcohol may slow

concentration and thinking and thereby cause a nurse to miss a

diag nosis or symptom while treating a patient. Alcohol abuse

may cause tremors, such as those experienced by Ms. Penansky.

Although Ms. Penansky’s alcohol abuse may not have resulted in

patient harm, it does not mean that it will not result in harm

in the fu ture. It is not necessary to wait for a patient to be

harmed to determine whether a nurse can practice with reasonable

skill and safet y by reason of use of alcohol.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (200 7 ).

37. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Fi nance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996). What

constitutes clear and convincing evidence was described by the

court in Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1989) as follows:

[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 precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

b e 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 allegat ions sought to be

established.

38. The Department alleges that Ms. Penansky violated

Subsection 464.018(1)(j) , Florida Statutes, which provides that

the following act constitutes grounds for disciplinary action:

“[b]eing unable to practice nursing with reasonable skill and

safety to patients by reason of illness or use of alcohol,

drugs, narcotics, or chemicals or any other type of material or

as a result of any mental or physical condition.”

39. The Department has established by clear and convincing

evidence that Ms. Penansky has violated Subsection

464.018(1)(j), Florida Statutes. She is unable to practice

nu rsing with reasonable skill and safety to patients by reason

of use of alcohol. The evidence established that Ms. Penansky

had alcohol on her breath while on duty in 2004 and 2006. She

experienced tremors in her hands, and her speech was un clear.

40. Fl orida Administrative Code Rule 64B9 - 8.006(3)(r)

provides that the penalty for a first offense of being unable to

practice nursing with reasonable skill and safety to patients by

reason of use of alcohol ranges from a $250 fine, IPN

evaluation, and probatio n to a $500 fine, IPN evaluation, and

suspension to be followed by a term of probation or revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j),

Florida Statutes; imposing an administrative fine of $250;

requiring her to undergo an IPN evaluation; suspending her

license until such time as she undergoes an IPN evaluation;

requiring compliance with all IP N recommendations, if any; and

placing her on probation for three years with direct

supervision.

DONE AND ENTERED this 25th day of September , 2007 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative L aw 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 25th day of September , 2007 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

COPIES FURNISHED :

Mary Elizabeth Lanier, Esquire

Lanier Law, P.A.

Post Office Box 342263

Tampa, Florid a 33694

Heidi Maynard, Esquire

William F. Miller, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Suzanne Suarez Hurley, Esquire

Suzanne Hurley, P.A.

Post Office Box 13215

Tampa, Florid a 33681 - 3215

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Rick Garcia, MS, RN, CCM,

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

T allahassee, 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 agenc y that

will issue the Final Order in this case.