17-001628PL Department Of Health, Board Of Nursing vs. Andrea R. Delpozzo, C.N.A. Status: Closed Recommended Order on Monday, July 3, 2017.

Summary: Department of Health proved CNA struck patient on arm. It was not self-defense. Other alleged use of force was not proven, and circumstances did not warrant revocation. Recommend 60-day suspension, probation and continuing ed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 17 - 1628PL

ANDREA R. DELPOZZO, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearin g wa s hel d i n thi s cas e o n May 3 , 2017, by video

teleconference between sites in Sarasota and Tallahassee, before

J. Lawrence Johnston, an Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher A. Jurich , Esquire

Kate M. Holmes, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Resp ondent: Steven D. Brownlee, Esquire

Chapman Law Group

6841 Energy Court

Sarasota, Florida 34240

STATEMENT OF THE ISSUE

The issue in this case is whether the RespondentÓs license

as a certified nursing assistant should be revoked or otherwise

disciplined because she intentionally violated section

464.204(1)(b), Florida Statutes (2015) , 1/ by using force against

or striking a patient, which Florida Administrative Code Rule

64B9 - 8.005(13) 2/ defined as unpro fessional conduct.

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), Board of Nursing

(Board), filed an Administrative Complaint against the

Respondent, Andrea R. Delpozzo. The Respondent disputed the

charges and requested a hearing under section 120.57(1), Florida

Statutes (2016) . 3/

At the hearing, the Petitioner called four witnesses who

worked with the Respondent at Sunnyside Village Retirement

Community: Deborah Harcup, R.N., the former director of nursing;

two physical therapy assist ants, Thomas Wilson and Megan

Campbell; and an occupational therapy assistant, Rebecca Cirillo.

The Respondent testified and re - called Nurse Harcup. The

PetitionerÓs Exhibits 1 and 2 , and the RespondentÓs Exhib i t 1

were received in evidence. The Petitio ner also proffered

Exhibit 3, the RespondentÓs deposition transcript. The

Respondent objected. The objection was sustained except to the

extent that the exhibit could be used in rebuttal. Ruling on the

use of the exhibit in rebuttal was reserved, and t he Petitioner

was required to specify the rebuttal in its proposed recommended

order (PRO).

The Transcript of the hearing was filed on May 24, 2017.

The parties filed PROs. The PetitionerÓs PRO did not specify any

rebuttal, or provide the exhibit, and t he objection to the

PetitionerÓs Exhibit 3 is sustained. The PROs have been

considered.

FINDING S OF FACT

1. The Respondent is 25 years old. She is a certified

nursing assistant (CNA) who holds Florida license CNA274235. Her

license was first issued in December 2012. Her license was

renewed in 2015, is clear and active, and was scheduled to expire

on May 31, 2017. The Respondent has no history of any past

license discipline.

2. On December 27, 2015, the Respondent was employed at

Sunnyside Village Re tirement Community (Sunnyside Village),

located in Sarasota, as a CNA in the skilled nursing unit.

Patient A.B. was a patient there.

3. A.B. was 98 years old and was considered frail in that

she needed assistance with daily activities, could not move abo ut

easily, and used a wheelchair. She suffered from dementia that

had worsened to mid - stage, and she was combative with staff at

times. Although considered frail, she was a tall and fairly

large woman. Her exact weight was not clear from the evidence.

Estimates by the witnesses varied widely, from 110 - 115 pounds, to

130 pounds, to 190 - 200 pounds. When upset, she sometimes threw

pictures, threw patient charts, and tried to bite and hit staff.

4. The skilled nursing unit at Sunnyside Village had a

sec ured area for the protection of patients like A.B. The area

was not locked, but the dementia patients had wander guards that

triggered an alarm to alert staff if the patients attempted to

leave the secured area. A.B. had a wander guard attached to her

wh eelchair.

5. On the morning of December 27, 2015, the Respondent was

helping patients get ready for a church service when A.B.

attempted to leave the secured area. Her wander guard triggered

the alarm system, and a licensed professional nurse at the

fac ility instructed the Respondent to get A.B. away from the exit

doors. As the Respondent began to wheel A.B. away from the

door s , the patient indicated that she wanted to go outside. The

Respondent testified that she tried to ÐconsoleÑ A.B. by saying

she would take her outside after she finished getting the other

patients ready for church. The patient did not seem to

understand or accept what the Respondent was saying. Then, the

Respondent started to wheel A.B. towards the T.V. room, which was

near the n ursing station at the other end of the hallway. A.B.

became upset, took her feet off the footrests, planted them on

the ground to stop the wheelchair, and attempted to swing her arm

behind her to hit the Respondent.

6. There was evidence that Sunnysid e Village had policies

that staff should back off and re - approach an agitated patient.

It was not clear from the evidence how the policy was supposed to

be applied in the situation the Respondent faced on December 27,

2015. In any event, it would not nec essarily follow that a

violation of this policy would result in unprofessional conduct.

7. To get the patient to the T.V. room, the Respondent

tilted the wheelchair to lift the patientÓs feet off the ground

and make it possible to wheel the patient down t he hall. To

accomplish this, the Respondent had to put her foot on a bar at

the bottom of the back of the wheelchair, press down on the hand

grips at the top of the back of the wheelchair, and elevate the

front wheels enough to balance the chair on two wh eels as she

proceed ed down the hallway. This was not easy to do, especially

because the patient was considerably larger than the Respondent.

The Respondent weighed about 100 to 105 pounds. She testified

that she is Ðfive feet, five.Ñ However, she appea red to be

closer to five feet tall than to five feet, five inches tall.

8. The Respondent thought it was only necessary to raise

the front wheels two or three inches, but it does not seem

plausible that she could maintain that position for long while

push ing the wheelchair down the hallway. Witnesses who saw the

Respondent perform the maneuver later thought the front wheels

were closer to 12 inches off the ground, creating close to a 45 -

degree angle of recline.

9. The Respondent thought this wheelchair maneuver was

acceptable under the circumstances. There was testimony that it

would be acceptable to raise the front wheels to prevent a

patient who planted his or her feet on the ground from pitching

forward and falling out of a wheelchair, but not to wh eel a

patient a long distance on two wheels. The Respondent was not

charged with the use of force against the patient by wheeling her

on two wheels for a long distance, and there was no evidence

doing so constituted the use of force against the patient.

10. The Respondent left A.B. in the T.V. room and went back

to the other patients getting ready for the church service.

Almost immediately after being left in the T.V. room, A.B. left

the room and wheeled herself back down the hallway to the same

exit d oor s , again setting off the alarm. When she heard the

alarm, the Respondent walked back down the hallway to the exit

door s to get A.B. and return her to the T.V. room.

11. The Respondent repeated her attempt to console the

patient and began to wheel h er back to the T.V. room. The

Respondent was speaking in a loud voice in order to be heard by

A.B., who had removed her hearing aids. The patient was agitated

and combative and also very loud.

12. The loud commotion drew the attention of a physical

ther apy assistant named Megan Campbell, who was in the patient

room closest to the exit door, and by another physical therapy

assistant named Mr. Thomas Wilson, who was in the second patient

room from the exit door. At approximately the same time, an

occupati onal therapist named Rebecca Cirillo was walking towards

the exit door from the nursing station about 50 feet away.

13. Mr. Wilson thought the Respondent sounded Ðpretty

angry.Ñ Ms. Campbell thought the Respondent was speaking loudly

and seemed frustrate d. Ms. Cirillo heard the patient ÐholleringÑ

and the Respondent ÐyellingÑ and sounding ÐirritatedÑ and

Ðagitated.Ñ None of them were aware that the patient was not

wearing her hearing aids and that the Respondent had to speak

loudly just to be heard by t he patient.

14. Mr. Wilson was kneeling on the floor putting footrests

on a wheelchair as the Respondent and her patient passed by the

door of the room he was in. He looked up and saw them from their

left sides. By the time Ms. Campbell reached the door way of the

patient room she was in, the Respondent already had passed. Her

view of the Respondent and her patient was from their back and

left side. Ms. CirilloÓs view was from the front.

15. All three witnesses thought they saw the Respondent

angrily and intentionally strike the patient with her right hand

and jerk the front wheels of the wheelchair up and down. Mr.

Wilson and Ms. Campbell saw the RespondentÓs right arm and hand

swing quickly forward towards the patientÓs right side. Ms.

Campbell de scribed an intentional and forceful Ðslap - likeÑ motion

across the RespondentÓs body towards the right side of the

wheelchair. Mr. Wilson thought the RespondentÓs hand landed in

the area of the patientÓs head, neck, or shoulder. Mr. Wilson

and

Ms. Campbe ll admitted that they did not have a clear view and

could not see actual physical contact. Mr. Wilson said he heard

the patient make a grunt - like noise and flinch from what he

thought was a hand - strike. Ms. Campbell did not hear the patient

make a noise or flinch. Ms. Cirillo said she had a clear view

and saw the Respondent slap the patient on her right arm.

Ms. Cirillo and Ms. Campbell saw the Respondent move laterally to

the left to avoid the patientÓs arms and hands, which she was

flailing over her head in an attempt to hit the Respondent.

16. All three witnesses saw the Respondent jerk the front

wheels of the wheelchair up twice, the second time after they had

dropped back down hard. Mr. Wilson and Ms. Cirillo thought the

front wheels were six to twelve inches off the ground, closer to

twelve. Ms. Campbell could not give an estimate in inches but

said saw the Respondent Ðvery roughly jerkÑ the front wheels up

Ða good amount.Ñ The way the wheelchair Ðsnapped backÑ made

Ms. Cirillo concerned for t he patientÓs safety. As she passed

the Respondent in the hallway, Ms. Cirillo said, Ðyou canÓt do

that.Ñ The Respondent testified that she told Ms. Cirillo the

patientÓs hearing aids were out and that Ms. Cirillo replied,

Ðwhatever.Ñ

17. The Responden t testified that she actually was not

angry at the patient because she understood the patient could not

help her dementia. She explained that she was not speaking

loudly in anger, but only to be heard by the patient, who had

taken her hearing aids out. S he also explained that she was not

striking the patient but trying to prevent the patient from

hitting her in the face. She said she tried to defend herself by

moving to the left and holding her right arm out to block the

patientÓs hand and arm. Finally, she explained that she lifted

the front wheels of the wheelchair to keep the patient from

injuring herself by pitching forward and falling out of the

chair. She claimed she was able to softly lower the front wheels

by quickly moving her right hand back t o the wheelchairÓs hand

grip after removing it to block the patientÓs arms and hands,

which seems improbable.

18. After the incident, the three therapists briefly

discussed what they had witnessed. All three thought the

RespondentÓs actions were inappro priate. When Mr. Wilson and

Ms. Campbell returned to the physical therapy section of the

facility, they reported to their supervisor, who said they should

file a report. There were no report forms in the therapy area,

so Mr. Wilson got some from the nur sing area. The therapists

filled out the reports and filed them. The reports were brought

to the attention of the facilityÓs director of nursing, Deborah

Harcup, R.N., when she arrived at the facility at about noon that

day. Nurse Harcup investigated by talking to the patient, the

Respondent and the reporters, and by viewing a surveillance video

of the hallway.

19. A.B. did not respond when asked about the incident.

There was no physical evidence that the patient had been struck

or injured in any way, nor any emotional or psychological

evidence that she had been abused by the Respondent.

20. Nurse Harcup testified that the surveillance video was

taken from a fisheye - lens camera that was in the hallway about

where Ms. Cirillo was when she witnessed the incident. The video

was grainy and indistinct, and it was impossible to discern

anything from it.

21. Nurse Harcup testified that the complaints against the

Respondent were surprising to her. She knew the Respondent to be

a good nursing assistant and no t the kind who would become angry

at a patient, much less use force or violence against a patient.

Ultimately, Nurse Harcup decided to terminate the RespondentÓs

employment, not because of any conclusion she reached as to what

actually happened, but simpl y because she was unable to determine

with certainty from the various witness statements what actually

had happened.

22. The Respondent seemed to suggest that she might have

been the victim of a conspiracy and falsely accused by the

therapists because of workplace acrimony at Sunnyside Village.

She testified that she previously had some kind of a problem with

Ms. Cirillo that required the intervention of supervisors. There

was no evidence as to what the problem was. Another indication

of possible proble ms between the nursing staff and the therapy

staff was Mr. WilsonÓs concern that there would be repercussions

from the nursing staff if it was made known to them that the

therapists were filing abuse reports on an employee of the

nursing staff. However, t he RespondentÓs conspiracy theory is

rejected.

23. The evidence, taken as a whole, was clear and

convincing that the Respondent intentionally slapped at A.B.Ós

flailing arm, and did not just defensively hold her right arm out

to block the patientÓs arm a nd hand. However, the therapists

misinterpreted the loudness of the RespondentÓs voice as anger

and frustration because they did not know the patient had removed

her hearing aids, and they misinterpreted the force of the hand -

slap and the reason for the a brupt movement of the wheelchair.

The wheel chair movement was not as smooth as the Respondent

thought and testified, but it was not the intentional use of

force against the patient. The hand - slap was intentional, but it

was not intended to be, and was n ot, violent or hard enough to

harm or punish the patient. As Nurse Harcup testified, that

would have been completely out of character for the Respondent.

24. Both actions happened quickly, while the Respondent was

dodging to the left and simultaneously r ais ing the front wheels

of the wheelchair to prevent the patient from pitching forward

and hurting herself by falling out the front of the wheelchair

onto the floor when she planted her feet.

25. The entire incident was over very quickly, and the

Responde nt went about the business of returning the patient to

the T.V. room without any further incident. The Respondent did

not try to hide anything. It all happened out in the open in the

middle of the hallway, where anyone around could see it.

CONCLUSIONS OF LAW

26. The Petitioner seeks to impose discipline on the

Respondent for violating section 464.204(1)(b), Florida Statutes,

which made it a violation to intentionally violate any provision

of chapter 464, chapter 456, or the rules adopted by the Board.

U nprofessional conduct, as defined by Florida Administrative Code

Rule 649B - 8.005(13), was a violation of sections 464.018(1)(h)

and 464.204(1)(b). 4/ Rule 649B - 8.005(13) defined unprofessional

conduct to include Ð[u]sing force against a patient, striking a

patient, or throwing objects at a patient.Ñ

27. In a penal proceeding, the prosecutor must prove the

allegations and charges by clear and convincing evidence.

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turl ington , 510 So. 2d 292 (Fla. 1987).

28. Clear and convincing evidence "requires more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme

Court, the standard:

[E]ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of suffi cient weight to

convince the trier of fact without hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (citing, with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Al though this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous."

Westinghouse Elec . Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

29. In this case, it was not proven by clear and con vincing

evidence that the Respondent used force against the patient by

jerking her wheelchair. However, the Petitioner proved by clear

and convincing evidence that the Respondent struck the patient

A.B. in the arm.

30. The Respondent asserted self - defen se. Self - defense is

the use of non - deadly force to the extent believed to be

reasonably necessary to defend against the imminent use of force.

Cruz v. State , 971 So. 2d 178, 182 (Fla. 5th DCA 2007). The

force used by the Respondent in slapping the patie ntÓs arm was

not reasonably necessary for self - defense.

31. The penalty guidelines adopted by Florida

Administrative Code R ule 64B9 - 15.009(3)(ii) 5/ for the offense of

unprofessional conduct, as defined in rule 64B9 - 8.005, were (and

still are) very broad. The penalty guideline for the first

offense ranged from a $50 fine, reprimand and probation, and

continuing education, to a $150 fine, reprimand, suspension

followed by probation, or revocation.

32. Under rule 64B9 - 15.009(5)(b), circumstances that could

be considered for purposes of mitigation or aggravation of

penalty, above or below the penalty guidelines, included, but

were not limited to: the danger to the public; previous

discipline; length of practice; actual damage, physical or

otherwise, caused by the violation; the deterrent effect of the

penalty; efforts at rehabilitation; attempts to correct or stop

violations; cost of treatment; financial hardship; and cost of

disciplinary proceedings. The circumstances present in this case

do not justify a deviation from the extremely broad guidelines.

33. The Petitioner seeks to revoke the RespondentÓs

license, but revocation is too harsh under the totality of the

circumstances.

34. Section 456.072(4) provided that the Board shall assess

costs relate d to the investigation and prosecution, in addition

to other discipline imposed for violating a practice act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Board of Nursing enter a final

order: f inding the Respondent guilty of unprofessional conduct,

as defined by rule 649B - 8.005(13), for intentionally striking the

patient A.B. on the arm; suspending her license for 60 days,

followed by probation for one year; requiring her to take a

relevant cour se of continuing education; and requiring her to pay

the costs related to the investigation and prosecution.

DONE AND ENTERED this 3 rd day of Ju ly , 2017 , in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Admin istrative 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 with the Clerk of the

Division of Administrative Hearin gs

this 3 rd day of Ju ly , 2017 .

ENDNOTE S

1/ Unless otherwise noted, all statutory references are to

Florida Statutes (2015), which were the statutes in effect on

December 27, 2015, which is the day of the alleged violation.

2/ References to the Flor ida Administrative Code are to the

version in effect at the time of the alleged violation. This

citation refers to the April 9, 2014, revision.

3/ The Administrative Complaint failed to cite to section

464.018(1)(h), which makes unprofessional conduct a

violation warranting discipline. However, the case proceeded as

if that statute had been cited, and the issue was tried by

consent.

4/ See note 3.

5/ See note 2. This citation refers to the October 16, 2012,

revision.

COPIES FURNISHED:

Stev en D. Brownlee, Esquire

Chapman Law Group

6841 Energy Court

Sarasota, Florida 34240

(eServed)

Christopher A. Jurich, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Kate M. Holmes, Esquire

Depa r tment of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., E xecutive Director

Board of Nursing

Department of Health

Bin C - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

COURTESY COPY FURNISHED:

Jody Bryant Newman, EdD, EdS,

Chair of Board of Nursing

Department of Health

Bin D - 02

4052 Bald Cy press Way

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 wit h the agency that

will issue the Final Order in this case.