10-003121PL Department Of Health, Board Of Nursing vs. Donald Taylor, R.N. Status: Closed Recommended Order on Tuesday, September 21, 2010.

Summary: $250 fine, educational courses, evaluation by IPN, suspension until IPN clears nurse, and five years after suspension is completed for nurse who continued to stroke patient's arm after being told not to.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3121PL

)

DONALD HUGH TAYLOR, R.N. )

)

Respondent. )

________________________________)

RECOM MENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Ta llahassee, Florida, on August 16 , 2010.

The parties, attorneys for the parties, witnesses, and court

rep orter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: William F. Miller

R. Kathleen Brown - Blake

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Mail Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Donald Hugh Taylor, pro se

5803 Northwest 84th Terrace

Tamarac, Florida 33321

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of failing to

meet minimal standards of a cceptable and prevailing nursing

practice, in violation of Section 464.018(1)(n), Florida

Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 13, 2010,

Petitioner alleged that, on July 2, 2009, while employed as a

registered nurse at North Shore Medical Center in Miami,

Respondent was assigned to care for patient L. V. in the

telemetry unit. A fter applying leads to L. V.'s arm, Respondent

allegedly sat on her bed and rubbed her arm. The Administrative

Complaint alleges that these actions made L. V. uncomfortable,

so she told him to stop rubbing her arm, but Respondent

continued to do so. Resp onde nt allegedly stopped rubbing

L. V.'s arm and stood up when L. V.'s roommate opened the

curtains to see what was happening.

The Administrative Complaint alleges that Respondent

violated the cited statute by rubbing L. V.'s arm and not

stopping after sh e told him to stop touching her. The

Administrative Complaint seeks penalties ranging from reprimand

to revocation.

At the hearing, Petitioner called three witnesses and

offered into evidence two exhibits. Respondent called three

witnesses and offered i nto evidence one exhibit . With the

consent of the Administrative Law Judge, Petitioner took a post -

hearing deposition and filed the transcript as an additional

exhibit. All exhibits were admitted except that Petitioner

Exhibit 1 was not admitted for the truth and Respondent Exhibit

2 was prof fe red .

The court reporter filed the T ranscript on September 2,

2010 . The parties filed P roposed R ecommended O rders by

September 10, 2010 .

FINDINGS OF FACT

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

re gistered nurs e , holding license number RN 9212031. He has not

been previously disciplined.

2. On July 2, 2009, Respondent was employed at the North

Shore Medical Center in Miami and ass igned to the telemetry

unit. He was working at the time of patient L . V.'s arrival in

the unit shortly after 3:00 a.m. L. V. was assigned to a semi -

private room, which she shared with patient M. M.

3. L. V. had been admitted to hospital emergency room late

the preceding day with shortness of breath and chest pains.

L. V . has a heart condition and had previously been hospitalized

for these symptoms.

4. After introducing himself to L. V., Respondent applied

the leads of a heart - monitoring device to L. V.'s chest. This

required that he touch the flesh of L. V.'s breasts. Based on

her prior experience with having leads placed on her breasts,

L. V. did not think at the time that this touching was

inappropriate. Respondent had some difficulty applying the

leads, including a claim of a dead battery, but L. V. was

untroubled by this part of her treatment .

5. Respondent then assessed L. V . This process required

Respondent to conduct a physical examination and take a medical

history. In conducting the physical examination, Respondent had

to touch L. V., such as placing a stet hoscope to the chest of

the patient, and he had to ask some personal questions. Again,

L. V. testified that nothing in this part of her treatment made

her uncomfortable.

6. During the assessment, Respondent had drawn closed the

curtains surrounding L. V. 's bed. This is consistent with

hospital policy to respect the privacy of its patients.

H ospital policy also requires that the employee open the

curtains if the patient requests, but L. V. did not ask

Respondent to open the curtains .

7. M uch of the time that Respondent had been attending to

her , L. V. had been watching a movie on her personal DVD player.

After completing the assessment, Respondent sat down beside

L. V., on her bed, which is in violation of hospital policy, and

began to rub her arm in a soft, caressing manner , which is also

in violation of hospital policy . As he did so, he leaned over

to view the DVD screen and asked what L. V. was watching. She

replied by naming the movie. Respondent asked if they could

watch a movie toget her and whet her L. V. had any x - rated movies.

8. L. V. told Respondent that she did not watch that kind

of movie and he needed to go back to work. P ulling her arm

away, L. V. shouted , "no," clearly meaning for Respondent to

stop rubbing her arm. Respondent whispe red, "shh, " and

continued to rub her arm. L. V. loudly shouted, "no" a second

time.

9. Although M. M. could not hear the conversation between

L. V. and Respondent, she had heard the first "no." She

attributed it to a patient who was resisting a painful

procedure, such as the insertion of an IV line. When she heard

the second "no," M. M. lean ed over and snatched open the

curtains.

10. As the curtains opened, Respondent jumped up off the

bed, revealing to both women an erection in his pants. M. M.

shout ed, "pervert," as Respondent scurried from the room.

11. These findings are based on the testimony of L. V.,

M. M., and Respondent. As noted below in the detailing of

Respondent's testimony, it is not entirely clear what he is

claiming that he did not do , although he seems to be contending

that he never stroke d L. V.'s arm after she told him "no."

However, Respondent admits to sufficient facts to erase any

doubts about essentially what took place.

12. Respondent's admissions are important because none o f

the three main witnesses is entirely credible. Respondent and

M. M. were evasive. L. V. and M. M. offered testimony that was,

at certain points, implausible. L. V. was accompanied at the

hearing by her personal attorney, suggesting that all of the

lit igation arising out of this incident will not end with the

final order in this case.

13. One of the most jarring aspects of the testimony of

L. V. and M. M. is the incongruity between the fear that they

claim they felt at the time of the incident and the anger and

disbelief -- but not fear -- that they display ed while testifying

about the incident. It is impossible to watch either woman

testify about the incident and believe that she felt even a

passing fear at the time of the incident or at any time after

th e incident.

14. Each time L. V. or M. M. demonstrated the "no"

vocalized by L. V. that morning, the result was a loud, angry

shout. Perhaps this fact may be discounted due to an inability

of either witness to inject fear into her voice (but not, more

bro adly speaking, to act) . However, t he two witness es recounted

their role s in repudiating Respondent so as to suggest their

joint triumph over the pathetic attempt of Respo ndent to engage

L. V. sexually while she was a patient in his care . L. V.

angrily di smissed Respondent from her room, and M. M. denounced

him as a "pervert." In co ntrast to the fear and trauma th at

L. V. and M. M. claimed to have suffered stands their

recollection that L. V. had to ask M. M. if she had dreamed the

incident or if it had r eally happened.

15. The testimony of L. V. and M. M., especially the

latter, is also undermined by inconsistencies. M. M. testif ied

at different times to two and three shouts of "no." M. M.

testified that she heard Respond ent make the remark about the

x - rated movies during one of his return visits to the room after

the incident; L. V. testified that Respondent made the remark

while seated beside her on her bed. L. V. claims that she left

her street clothes on under her gown due to fear of Respondent,

ev en though it a ppears that she would have replaced her clothes

with a hospital gown in the hours that she had been in the

hospital prior to the incident.

16. Most importantly, t he testimony of L. V. and M. M. is

undermined by its implausibility concerning what they did after

the incident. Each witness tried to depict the two of them ,

huddled helplessly in the darkened room, fearing the return of

Respondent and sleeping in shifts. However, M. M. had a

d ifferent nurse, who, she reported , never responded to any of

her multiple activations of the nurs e - call button. M. M.

eagerly speculated that Respondent remained at the nurses'

station all night to ensure that he alone would take al l of

their calls, but this failed to account for the fact that

Respondent had seven other patients to whom he had to respond

that night and other nurses and nurse assistants needed to

respond to calls from other patients during the night .

17. In describing their situation after the incident , the

testimony of L. V. and M. M. fail ed to account for the nurses'

assistant, who was also available to them. M. M. testified that

she got out of bed and found the nurses' assistant, but

testified that the assistant did nothing. Essentially, M. M.

implies that the assistant elected to cover up Respondent's

behavior, rather than report it to a supervisor.

18. L. V. stated that she used her cellphone to call her

fianc é . Undoubtedly, she did so to tell him about the incident.

The next morning, based on L. V.'s warning about her fianc é 's

temp er, hospital supervisors sent Respondent to another floor to

avoid a physical altercation. But this hot - tempered fianc é

apparently did nothing that night to pr otect L. V. He did not

drive to the hospital. H e did not call the police or hospital

security. Nor did L. V. do any of these things, even though , as

a program director, she has the requisit e skills and initiative

to do initiate these communications and the means to do so.

19. Both L. V. and M. M. are lying about their reaction to

the incident. P erhaps they feel so ou traged by Respondent's

behavior that they feel justified in their embellishments.

Perhaps the prospect of additional litigation provides L. V.

with some incentive to exaggerate her reaction to the incident ,

and M. M. wants to be supp ortive . Although the motive for

fabrication is unclear, the fact of fabrication is not .

20. Disbelieving the testimony of L. V. and M. M. about

their reaction to the incident raises questions about their

credibility in describing the incident itself. Ho wever,

Respondent's testimony dispels any such questions. Respondent

admits to much of the underlying incident, and his peculiar

beliefs and attitudes require crediting the remaining testimony

of L. V. and M. M. about the incident itself.

21. As to the f irst point, Respondent admits that he sat

on L. V.'s bed and stroked her arm -- to calm her, not to assist

in diagnosis or treatment. Respondent admits that he even

inquired about x - rated movies . Respondent testified to an

"innocent" question of what the x 's meant beside certain movies

listed in the DVD's display of loaded movies. Respondent

testified that he told L. V. that he sometimes watched x - rated

movies, but found them boring because different people keep

doing the same things over and over. A most remarkable poin t in

the hearing occurred when, conducting cross - examination about

the claim that he had an erection while at L. V.'s bedside,

Respondent turned to the Administrative Law Judge and stated:

"Alright, so I had a bulge. Alright. I'm a man; I can't help

it."

2 2 . As to the second point , Respondent testified to a

hands - on nursing style that certainly predisposes him to

ignoring a patient's request not to touch herying to cast

this case as an unjust prosecution of him merely because he is a

caring and compassionate nurse, Respondent revealed that "big

girl s," such as L. V. ( who described herself as "morbidly

obese " ), often do not like to be touched by men -- a feature

shared by "Palestin i ans, " whom Respondent later broadened to

Muslims, and " Jews." Respondent explained that, wh en assigned

to "Palestinians" and " Jews " -- but evidently not "big girls" -- he

asks his supervisor to be rea ssigned to a different patient.

Rather than underscore Respondent's cultural sensitivity, as he

had intended, thi s testimony instead reveals the opposite and

implies that Respondent is unable or unwilling to refrain from

providing his special touch to female patients, regardless of

their desire not to be t ouched except for therapeutic purposes.

2 3 . Thus, although Respondent never admits to continuing

to stroke L. V.'s arm after she had told him to stop and while

broaching the topic of x - rated movies, his testimony about his

nursing practices makes it impossible not to credit the

testimony of L. V. and M. M. about t he incident itself.

24. It is below the minimal standard of acceptable and

prevailing nursing practice for a nurse to continue to stroke a

patient's arm after the patient has reasonably told the nurse to

cease doing so. Aggravating circumstances -- namely , Respondent's

discussion of x - rated movies while seated on patient's bed in

the middle of the night and erection -- suggest that Respondent

had a sexual motive in this conduct.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2009).

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

the Board of Nursing to impose discipline against a licensee for

"[f]ailing to meet minimal standards of acceptable and

prevail ing nursing practice, including engaging in acts for

which the licensee is not qualified by training or experience."

27. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

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

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

28. Petitioner has proved that Respondent failed to meet

minimal standards of acceptable and prevailing nursing practice.

Section 456.072(2), Florida Statu tes, authorizes Petitioner to

impose a broad range of discipline .

29. As pleaded, this is a case of a nurse violating the

minimal standards of acceptable and prevailing nursing practice

by the mere fact that he continued to stroke a patient's arm

after t he patient told him to stop. The aggravating

circumstances noted above establish that this was potentially a

more serious matter than merely touching a patient after being

told not to.

30. Florida Administrative Code Rule 64B9 - 8.006 provides

penalty guid elines for various violations. Although the rule

does not set a penalty for a S ection 464.018(1)(n), Rule

64B9 - 8.006( 1)(d) states:

Suspension until evaluation by and treatment

in the Intervention Project for Nurses

[IPN] . In cases involving substance a buse,

chemical dependency, sexual misconduct,

physical or mental conditions which may

hinder the ability to practice safely, the

Board finds participation in the IPN under a

stayed suspension to be the preferred and

most successful discipline.

31. Florid a Administrative Code Rule 64B9 - 8.006(3)(jj)

provides penalty guidelines for "[e] ngaging or attempting to

engage in sexual misconduct as defined and prohibited in Section

456.063(1), F.S. (Section 456.072(1)(v), F.S.) ." For a first

offense, the penalties range from a fine of $250 - $500,

evaluation by the IPN, and probation to suspension followed by a

term of probation or revocation.

32. In its P roposed R ecommended O rder, Petitioner proposes

a $250 fine, five years' probation, and educational courses in

pa tients' rights and nurses' ethics . This punishment overlooks

the underlying problem and the potential risk to patient safety.

A n appropriat e penalty would be a fine of $25 0, educational

courses in patients' rights and nurses' ethics, an evaluation by

the IPN, suspension until the submission and a determination by

the IPN that Respondent can practice safely , and five years'

probation after completion of the suspension .

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

finding Respondent guilty of violating Section 464.018(1)(n),

Florida Statutes , and imposing a fine of $250 , a requirement to

take educational courses in patients' rights and nurses' ethics,

a requirement of submission to an evaluation by the IPN, and

sus pension until the submission and a determination by the IPN

that Respondent can practice safely , and five years' probation

after completion of the suspension .

D ONE AND ENTERED this 21st day of September, 2010 , 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 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of September , 2010.

COPIES FURNISHED:

R. Ka thleen Brown - Blake, Esquire

Department of Health

4042 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Donald Taylor, R.N.

10530 Southwest 20 Street

Miramar, Florida 33025

Donald Hugh Taylor, R.N.

5803 Northwest 84th Terrace

Tamarac, Florida 3332 1

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Rick Garica, MS, RN, CCM

Executive Director

Board of Nursing

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

Dr. Jessie M. Colin, RN, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 3239 9 - 1701

R. S. Power, Agency Clerk

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 Reco mmended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.