15-001868PL Department Of Health, Board Of Nursing vs. Deshon A. Davis, C.N.A. Status: Closed Recommended Order on Friday, September 11, 2015.

Summary: CNA acted outside scope of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 15 - 1868PL

DESHON A. DAVIS, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administra tive hearing in this case was held by video

teleconference on July 15, 2015, in Sebastian and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lucas May, Esquir e

Judson Searcy, Esquire

Ann Lewis Prescott, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress W ay

Tallahassee, Florida 32399

For Respondent: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738

STATEMENT OF THE ISSUE

The issue in this case is whethe r the allegations set forth

in the First Corrected Amended Administrative Complaint filed by

the Department of Health (Petitione r) against Deshon A. Davis,

CNA (Respondent) , are correct, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By First Corrected Amended Administrative Complaint dated

April 6, 2015, the Petitioner alleged that the Respondent, a

certified nursing assistant (CNA), engaged in sexual misconduct

and otherwise practiced outside the scope of his CNA license.

The Responden t disputed the allegations and requested an

administrative hearing. The Petitioner forwarded the request to

the Division of Administrative Hearings, which scheduled and

conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

five witnesses, and had Exhibits numbered 1 through 3, 4 (except

pages 20 through 22 , 24 , and 25) , and 5 admitted into evidence.

The Respondent testified on his own behalf, presented the

testimony of two witnesses, and had Exhibit number ed 3 admitted

into evidence.

A T ranscript of the hearing was filed on August 4, 2015.

Both parties filed proposed recommended orders that have been

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. The Petitioner is the state agency charged by statute

with regulating the practice of nursing assistance.

2. At all times material to this case, the Respondent was

licensed as a CNA in the State of Florida, holding license

no. CNA 274735.

3. At all times material to this case, the Respondent wa s

employed as a CNA by Health First Cape Canaveral Hospital

(hereinafter ÐHospitalÑ) in Cocoa Beach, Florida.

4. On April 23, 2014, Patient K.H. (hereinafter ÐpatientÑ)

was admitted to the Hospital. The patient was discharged from

the Hospital on May 1 , 2014.

5. During the time the patient was admitted to the

Hospital, he was able to speak ; able to get out of his bed and

exit the room ; and able to use the bathroom without assistance.

6. On April 25, 2014, the patient contacted Hospital

authorities and reported that on the two previous days, the

Respondent had committed sexual misconduct.

7. At the hearing, the patient testified that on April 23,

2014, the Respondent entered the room and stated that he needed

to bathe the patient.

8. The Respo ndent testified that the patient had soiled his

clothing, and that he entered the room to remove the clothing,

clean the patient, and provide fresh clothing to the p atient.

9. At the time, the patient was in a semi - private room,

with another patient in the other bed. The Respondent pulled the

privacy curtain around the patientÓs bed to separate the beds and

to shield the patient from view.

10. The patient testified that the Respondent removed the

patientÓs clothing, applied an unidentified lotion to t he

patientÓs penis, and roughly manipulated the patientÓs penis in a

masturbatory manner for at least five minutes until the patient

ejaculated. The patient testified that the Respondent then

exited the room, leaving the patient to wipe off the ejaculate.

11. Although the patient testified that he requested that

the Respondent cease the manipulation, the patient made no

apparent effort to get out of the bed or to contact anyone for

assistance during the alleged event.

12. The Respondent denied that h e applied a lotion to the

patientÓs penis or that any sexual contact occurred on April 23,

2014.

13. The Respondent testified that while he was cleaning the

patient, he observed a ÐrashÑ on the patientÓs thigh, and that he

applied a Ðbarrier creamÑ to t he rash.

14. Although the Respondent testified that he informed the

Hospital nursing staff about the rash on April 23, 2014, the

registered nurses assigned to care for the patient testified that

they had no recollection that the Respondent advised them that

the patient had a rash.

15. The patientÓs medical records contain no documentation

of a rash or of the application of any medication related to a

rash.

16. No nurse approved or directed the application of any

substance to the patient for a rash.

17. The patient testified that the second incident occurred

on or about April 24, 2014. Although the patient had been moved

to another semi - private room, only the Respondent and the patient

were present in the room at the time of the alleged event.

18. The patient testified that the Respondent entered the

room, made a comment about the patient Ðbringing in rashes,Ñ

exposed the patientÓs genital area, and then again, after

applying a lotion to his penis, roughly manipulated the patientÓs

penis in a m asturbatory manner for approximately ten minutes

until the patient ejaculated. The patient testified that the

Respondent left the room, and the patient had to again clean

himself.

19. Again, although the patient testified that he asked the

Respondent to cease the sexual manipulation, the patient made no

apparent effort to get out of the bed or to contact anyone for

assistance.

20. The Respondent denied the alleged sexual contact. The

Respondent testified that he entered the patientÓs room because

t he patientÓs Ðcall lightÑ was on.

21. The Respondent testified he heard the patient say

ÐouchÑ while using a plastic urinal. The Respondent testified

that he thereafter observed a ÐcutÑ on the patientÓs penis. He

also testified that the thigh rash was still visible.

22. The Respondent suggested that abrasions caused by

plastic urinals are not uncommon. There is no credible evidence

that the patientÓs penis was injured on April 24, 2014, whether

by a plastic urinal or otherwise.

23. The Responden t testified that after he obtained the

patientÓs consent, he applied the Ðbarrier creamÑ to the

patientÓs penis and thigh.

24. There is no evidence that the Respondent advised the

Hospital nursing staff about any injury to the patientÓs penis.

The pati entÓs medical records contain no documentation of a wound

or abrasion on the patientÓs penis or of a rash on his thigh. No

nurse approved or directed the application of any substance to

the patient for a wound or a rash.

25. On April 25, 2014, the pati ent contacted Hospital

authorities and reported the alleged sexual improprieties.

26. The patientÓs medical records indicate that from the

time of the patientÓs Hospital admission on April 23, 2014, until

April 25, 2014, the patient had been resting and calm.

27. According to the HospitalÓs representatives who spoke

to the patient on April 25, 2014, he was emotional and Ðvery

distraughtÑ while describing the alleged activities.

28. A physical examination of the patient was conducted on

April 25, 2 014, during which no visible rash on the thigh or

injury to the penis was observed.

29. According to the expert testimony of Lynda Tiefel,

R.N., a CNA must report the presence of a wound or a rash on a

patient to a registered nurse. It is the responsib ility of the

registered nurse to assess the condition and determine whether a

physician referral should occur. Other than reporting the

condition to the nurse, a CNA should take no action unless

directed to do so by the nurse. Ms. TiefelÓs testimony was

persuasive and has been credited.

30. According to the expert testimony of Victor Mendez,

C . N . A . , a CNA is not qualified to diagnose a medical condition.

A CNA is required to document the presence of a rash or wound,

and advise the appropriate register ed nurse of the condition.

The CNA may apply medication to a rash or wound only after

receiving direction to do so from the registered nurse, and such

application should take no more than 15 seconds. Mr. MendezÓs

testimony was persuasive and has been cre dited.

31. The Hospital conducted an internal investigation

regarding the allegations , and subsequently terminated the

RespondentÓs employment.

CONCLUSIONS OF LAW

32 . The Division of Administrative Hearings has

jurisdiction over the parties to and subj ect matter of this

proceeding. §§ 120.569 and 120.57(1), Fla . Stat . (2014).

33. In this case, the Petitioner is seeking to impose

discipline against the Respondent's license. In order to

prevail, the Petitioner must demonstrate the truthfulness of the

allegations in the Corrected Amended Administrative Complaint by

clear and convincing evidence. Dep Ó t of Banking & Fin . v.

Osborne Stern & Co . , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

34. In order to be "clear and convincing," the evidence

must be "of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to the

truth of the allegations sought to be established." See

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

35. Because the discipline imposed for the violations

addressed herein are penal in nature, the statutes alleged to

have been violated must be strictly construed in favor of the

licensee. See Breesmen v. Dep Ó t of Prof Ó l Reg . , Bd . of Med . ,

567 So. 2d 469 (Fla. 1st DCA 1990); Farzad v. Dep Ó t of Prof Ó l

Reg . , 443 So. 2d 373 (Fla. 1st DCA 1983); Bowling v. Dep Ó t of

Ins . , 394 So. 2d 165 (Fla. 1st DCA 1981).

36. Where the licensee is charged with a violation of

professional conduct an d the specific acts or conduct required of

the professional are explicitly set forth in the statute , or

valid rule promulgated pursuant thereto, the burden on the agency

is to show a deviation from the statutorily - required acts; but

where the agency charge s negligent violation of general standards

of professional conduct, i.e., the negligent failure to exercise

the degree of care reasonably expected of a professional, the

agency must present expert testimony that proves the required

professional conduct, as well as the deviation therefrom. Purvis

v. Dep Ó t of Prof Ó l Reg . , 461 So. 2d 134 (Fla. 1st DCA 1984).

37. Count I of the First Corrected Amended Administrative

Complaint charges the Respondent with sexual misconduct. In

relevant part, s ection 464.204( 1)(b) , Florida Statutes (2014) ,

provides that the Petitioner may impose disciplinary sanctions

for intentionally violating any provision of chapter 456 , Florida

Statutes . Section 456.072(1)(v) , Florida Statutes, provides that

engaging or attempting to eng age in sexual misconduct as defined

and prohibited in s ection 456.063(1) , constitute s grounds for

disciplinary action.

38. Section 456.063(1) provides as follows:

Sexual misconduct in the practice of a health

care profession means violation of the

prof essional relationship through which the

health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate family

member, guardian, or representative of the

patient or client in, or to induce or attempt

to induce such person to engage in, verbal or

physical sexual activity outside the scope of

the professional practice of such health care

profession. Sexual misconduct in the

practice of a health care profession is

prohibited.

39. According to the patie nt, the first alleged sexual

contact occurred on April 23, 2014, while another person occupied

the other bed located in the room. Although the patient was

capable of getting out of bed and exiting the room or calling for

assistance to stop the alleged sex ual contact, the patient made

no genuine attempt to resist or terminate the event, which, by

his testimony, allegedly continued for approximately five minutes

until he ejaculated. The patient testified that the Respondent

left the patient without cleaning the ejaculate.

40. According to the patient, the second alleged sexual

contact occurred on the next day, when, presumably, the patient

would have been familiar with the Respondent and aware of the

previous dayÓs offensive contact. Again, the patient w as capable

of getting out of bed and exiting the room or calling for

assistance, but he did neither. The alleged sexual contact

continued for a period of ten minutes, again by his testimony,

until he ejaculated at the conclusion of the event. The patient

testified that the Respondent again left the patient without

cleaning the ejaculate. A day later, the patient reported the

allegations of sexual misconduct to Hospital officials.

41. The patientÓs testimony regarding the RespondentÓs

alleged sexual mi sconduct was somewhat confusing and various

details were unclear. However, nothing in the patientÓs

behavior , as documented by the medical records or testimony of

witnesses , suggested that anything was amiss until, appearing to

be emotional and distraught on April 25, 2014, he reported the

two instances of sexual misconduct to the Hospital.

42. It is reasonable to expect that an adult with the

ability to resist or terminate uninvited sexual contact from

another adult would do so. It is reasonable to pres ume that such

an adult would act to prevent a previous perpetrator from further

uninvited sexual contact. It is reasonable to expect such an

adult to appropriately report the sexual contact without delay.

43. The fact that the patient in this case made no genuine

effort to resist or prevent the alleged contact and delayed in

reporting the allegations, does not mean that the contact did not

occur. Neither does the fact that, by all reports, the patientÓs

demeanor was unremarkable until the day he report ed his complaint

to the H ospital. But considered in its entirety, the patientÓs

testimony is insufficient to produce Ðin the mind of the trier of

fact a firm belief or conviction, without hesitancyÑ that the

Respondent committed the alleged sexual miscond uct. As to

Count I of the First Corrected Amended Administrative Complaint,

the Petitioner has not met the burden of proof.

44. Count II charges the Respondent with practicing

outside the scope of his license. In relevant part, s ection

464.204(1)(b) provides that the Petitioner may impose

disciplinary sanctions for intentionally violating any provision

of chapter 456. In relevant part, s ection 456.072(1)(o) provides

that Ðpracticing or offering to practice beyond the scope

permitted by law or accep ting and performing professional

responsibilities the licensee knows, or has reason to know, the

licensee is not competent to performÑ constitutes grounds for

disciplinary action. As to Count II, the Petitioner has met the

burden of proof.

45. The Resp ondentÓs application of medication in this case

was outside the scope of his CNA license. Florida Administrative

Code Rule 64B9 - 15.002 provides that a CNA may provide assistance

in tasks associated with personal care, including skin care,

Ðonly under the general supervision of a registered nurse or

licensed practical nurse.Ñ Specifically , r ule 64B9 - 15.002(5)

states : Ð[A] certified nursing assistant shall not work

independently without the supervision of a registered nurse or a

licensed practical nurse.Ñ

46. The Respondent has acknowledged applying a Ðbarrier

creamÑ to the patientÓs thigh and penis.

47. The Respondent testified that the patient had a rash on

his thigh, but he did not report the rash to a nurse, no other

witness observed a rash on the patientÓs thigh, and no rash is

documented in the medical records.

48. The Respondent testified that the patient had a ÐcutÑ

on his penis, but he did not report it to a nurse. No other

witness observed the purported wound, and none is documented in

th e medical records.

49. According to expert testimony presented at the hearing,

a CNA must report a rash or wound to a registered nurse and must

provide only such treatment as is directed by said nurse. There

is no credible evidence that the Respondent a dvised a nurse that

the patient had a rash on his thigh or a wound on his penis.

There is no evidence that any nurse directed or approved the

RespondentÓs application of Ðbarrier creamÑ to the RespondentÓs

thigh or penis.

50. Rule 64B9 - 15.009 sets forth the disciplinary applicable

to this case. The following recommended penalty is within the

referenced guidelines for the violations established in this

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

Law, it is recommended that the Department of Health, Board of

Nursing, enter a final order : finding the Respondent guilty of

violating s ections 464.204(1)(b) and 456.072(1)(o) ; placing the

Respondent on probation for a period of one year , dur ing which

the Respondent shall complete such continuing education courses

as specified by the Petitioner ; and imposing an administrative

fine of $125.00.

DONE AND ENTERED this 1 1 th day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed wit h the Clerk of the

Division of Administrative Hearings

this 1 1 th day of September , 2015 .

COPIES FURNISHED:

Deshon A. Davis, C.N.A.

3620 East Powder Horn Road

Titusville, Florida 32796

Lucas Lawrence May, Esquire

Department of Health

Prosecution Servi ces Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Judson Searcy, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Ann L. Prescott, Esquire

Department o f Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Jamison Jessup , Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

Bin C - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Ann - Lynn Denker, PhD, ARNP, Chair

Board of Nursing

Department of Health

Bin C - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the r ight 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.