21-001638PL Department Of Health, Board Of Nursing vs. Kishma Afia Smith, L.P.N. Status: Closed Recommended Order on Friday, August 27, 2021.

Summary: Resp. both used profanity & struck an elderly patient with dementia in the face, causing substantial trauma. This unwarranted behavior should result in a revocation of her license & imposition of the costs of the Department?s investigation & prosecution.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

N URSING ,

Petitioner ,

Case No. 21 - 1638PL

vs.

K ISHMA A FIA S MITH , L.P.N. ,

Respondent .

/

R ECOMMENDED O RDER

On July 20, 2021, Robert S. Cohen, Administrative Law Judge ( Ñ ALJ Ò ) of

the Division of Administrative Hearings ( Ñ DOAH Ò ), conducted the final

hearing by Zoom teleconference.

A PPEARANCES

For Petitioner: Gerald C. Henley, Esquire

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Kishma Afia Smith, p ro s e

1440 The Pointe Drive

West Palm Beac h, Florida 33409

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent engaged in unprofessional conduct by

striking a patient in violation of section 464.018(1)(h), Florida Statutes , and

Florida Administrative Code Rule 64B9 - 8.005(13); and , if so, w hat penalty

should be imposed.

P RELIMINARY S TATEMENT

On December 17, 2020, Petitioner , Department of Health, Board of

Nursing ( Ñ Petitioner Ò or Ñ Department Ò ) , filed an Administrative

Complaint ( Ñ A.C. Ò ) alleging that Respondent , Kishma Smith , L.P.N.

( Ñ Respo ndent Ò or Ñ Ms. Smith Ò ) , engaged in unprofessional conduct in violation

of section 464.018(1)(h) by striking Patient J.A. in violation of r ule 64B9 -

8.005(13). The A .C. seeks a range of discipline from revocation or suspension

to corrective action or continu ing education.

Respondent timely requested a n administrative hearing involving

disputed issues of material fact . The Department transmitted the file to

DOAH on May 20, 202 1 , and a final hearing was held on July 20, 2021.

At the hearing, the Department of fered the testimony of Kerline Bien -

Aime, C.N.A., an eyewitness, and offered into evidence Petitioner Ô s Exhibits 1

through 7, including a deposition in lieu of live testimony from Maria

Santiago, L.P.N., the r esident c are d irector at Savanah Court of the P alm

Beaches ( Ñ Savanah Court Ò ) . Ms. Smith testified on her own behalf and did

not offer any exhibits.

The one - volume T ranscript was filed on August 18, 2021. The Department

timely filed Petitioner Ô s Proposed Recommended Order ( Ñ PRO Ò ) on August 23,

2021. Ms . Smith submitted a letter on July 21, 2021 . The Department Ô s PRO,

Ms. Smith Ô s July 21 letter, plus the exhibits and testimony adduced at

hearing, have been duly considered in writing this Recommended Order.

Unless otherwise indicated, citations to the Flo rida Statutes or the Florida

Administrative Code refer to the version in effect during the time that the

violation was committed.

F INDINGS OF F ACT

1. The Department is the state agency charged with regulating the

practice of nursing in the s tate of Flori da, pursuant to section 20.43 and

chapters 456 and 464 , Florida Statutes .

2. At all times material to this proceeding, Ms. Smith was licensed as a

practical nurse in Florida, having been issued license number PN 5177737.

Her address is 1440 The Pointe Driv e, West Palm Beach, Florida 33409.

3. At all times material to the A.C. , Ms. Smith practiced nursing at

Savannah Court, an assisted living facility located in West Palm Beach,

Florida.

4. In the course of her employment, Ms. Smith was assigned to care for

residents in Ñ the cottage, Ò a self - contained unit at Savannah Court

designated for patients suffering from Alzheimer Ô s disease and other

cognitive impairment issues.

5. In September 2020, J.A., an 86 - year - old woman, resided in the cottage

at Savannah Court . J.A. suffered from advanced Alzheimer Ô s disease. She

was wheelchair - bound, elderly, and frail. As a result of her mental condition,

she was often combative with her caregivers.

6. Respondent provided care to J.A. over the course of several months and

des cribe d her at hearing as her Ñ favorite patient. Ò

7. Kerline Bien - Aime is a certified nursing assistant. Ms. Bien - Aime

works for Elite Premier Services, a staffing agency. At all times material to

the A.C. , Ms. Bien - Aime was assigned to work at Savannah Cou rt.

8. On September 19, 2020, Ms. Bien - Aime assisted J.A. with getting

dressed and changed so that she could be transported to the dining facility in

the cottage.

9. J.A. became combative and struck Ms. Bien - Aime twice. Ms. Bien - Aime

asked Respondent to a ssist her in getting J.A. dressed and ready to eat .

10. Ms. Smith entered J.A. Ô s room to assist Ms. Bien - Aime. At this time,

the record reflects that J.A. did not have any redness or swelling on her face.

11. J.A. struck Ms. Smith across the face, knocking her glasses off.

Ms. Smith first testified that this was the first time she had ever been struck

in the face by a resident. On cross - examination, however, she admitted she

had been hit by residents before, but Ñ not as hard. Ò

12. Ms. Smith was surprised by J.A. Ô s actions and responded with a Ñ knee -

jerk Ò reaction. She first told J.A. , Ñ Bitch, I hit back. Ò She followed this

statement by striking J.A. twice across the face.

13. Ms. Bien - Aime witnessed the altercation , after which she escorted J.A.

to the dinin g hall and reported Respondent Ô s conduct to her agency

supervisor.

14. Ms. Bien - Aime then reported Ms. Smith Ô s conduct to Maria Santiago,

the r esident c are d irector at Savannah Court. Ms. Santiago then investigat ed

the allegations made by Ms. Bien - Aime.

15. Ms. Santiago Ô s investigation revealed that on September 19, 2020,

Respondent was in a Ñ bad mood. Ò Additionally, Ms. Santiago observed that

J.A. Ô s face and eye were red and swollen. Further , she noted that J.A. Ô s eye

was bloodshot as if someone had put their finger in it.

16. As a result of the investigation, Ms. Santiago terminated Respondent Ô s

employment .

17. Ms. Bien - Aime Ô s testimony was given without reservation , was clear

and concise, and is credited.

18. Respondent testified that she did not strike J.A. on the day in

question, or at any time. Respondent further testified that she saw a small

blood spot on the corner of J.A. Ô s left eye prior to the incident , and stated t hat

it could have been caused by J.A . Ô s blood thinner medication , Eliquis .

19. Ho wever, the photographic evidence at hearing shows that J.A. Ô s right

eye and face were injured , red, and swollen . These injuries were not and

cannot be explained as a worsening condition of J.A. Ô s left eye.

20. Additionally, Respondent admitted that she was not aware of any

instance in which a blood thinner medication caused spontaneous redness,

without some form of contact or trauma to the affected area .

21. Moreover, Respondent admitted that the redness and swelling on

J.A. Ô s face was not present before he r interaction with the resident , and she

could not explain at hearing how it occurred.

22. Ms. Smith attempted to discredit Ms. Bien - Aime by alleging that

Ms. Bien - Aime made up the allegations as a form of retribution after she had

accused Ms. Bien - Aime of stealing a nother patient Ô s ring.

23. Ms. Santiago, the Savannah Court employee responsible for handling

internal allegations of employee misconduct, including patient theft,

however, was unaware of these purported allegations and testified that

Ms. Bien - A ime was never under suspicion for stealing from a patient at

Savannah Court. Rather, she testified that Ms. Bien - Aime is a Ñ quiet Ò and

Ñ very pleasant Ò employee.

24. Ms. Smith, however, had a history of engaging in verbal altercations

with other staff membe rs at Savannah Court and had previously been

terminated from a customer service job (not at Savannah Court) based on her

unprofessional interactions with a customer. She was internally cited by the

administration at Savannah Court for aggressive behavior t owards other

staff, including the use of profanity directed at others.

25. Based on Ms. Bien - Aime Ô s credible eyewitness account corroborated by

the redness and bruising on J.A. Ô s face, the Department proved by clear and

convincing evidence that Ms. Smith e ngaged in unprofessional conduct by

striking J.A. Ms. Smith Ô s version of the interaction with J.A. and her

statement that she did not strike J.A. are not credited.

C ONCLUSIONS OF L AW

26 . DOAH has jurisdiction over the subject matter of and the parties to

this proceeding pursuant to sections 120.569 and 120.57(1) , Florida Statutes .

27. A proceeding, such as this one, to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real

Estate Comm Ô n , 281 So. 2d 487, 491 (Fla. 1973). The applicable statute must

be strictly construed in favor of the licensee. See Camejo v. Dep Ô t of Bus. &

Pro f Ô l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002); Breesmen v. Dep Ô t of

Prof Ô l Reg., Bd. of Med. , 567 So. 2d 469, 471 (Fla. 1st DCA 1990).

28. Because t his is a proceeding whereby Petitioner seeks to suspend or

revoke Respondent Ô s license to practice nursing , t he Department has the

burden to prove the allegations in the A . C . by clear and convincing evidence.

Reich v. Dep Ô t of Health, Bd. of Med. , 973 So. 2d 1233, 1235 (Fla. 4th DCA

2008) (citing Dep Ô t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

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

the Supreme Court of Florida:

[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

lacking in confusion as to the facts at issue. The

evidence must be of s uch a 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where the evidence is in conflict; however, Ñ it seems to preclude evidence that

is ambiguous. Ò Westinghouse Elec. Corp. v. Shuler Bros. , Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

29. T he grounds proving the Department Ô s assertion that Ms. Smith Ô s

license should be disciplined must be those specifically alleged in the A . C .

See, e.g., Trevisani v. Dep Ô t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005);

Kinney v. Dep Ô t of State , 501 So. 2d 1 29 (Fla. 5th DCA 1987); and Hunter v.

Dep Ô t of Prof Ô l Reg. , 458 So. 2d 842 (Fla. 2d DCA 1984).

30. Due process prohibits the Department from taking disciplinary action

against a licensee based on matters not specifically alleged in the charging

instrument, unless those matters have been tried by consent. See Shore Vill.

Prop. Owners Ô Ass Ô n v. Dep Ô t of Envtl. Prot. , 824 So. 2d 208, 210 (Fla. 4th

DCA 2002); and Delk v. Dep Ô t of Prof Ô l Reg. , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992).

31. Section 464.018(1)(h) pr ohibits nurses from engaging in unprofessional

conduct as defined by Board of Nursing rule.

32. Rule 64B9 - 8.005(13) defines unprofessional conduct to include striking

a patient.

33. The Department proved by clear and convincing evidence that

Respondent vio lated section 464.018(1)(h) through a violation of r ule 64B9 -

8.005(13) by striking J.A. on September 19, 2020.

34. Penalties in a licensure discipline case may not exceed those in effect

at the time a violation was committed. Willner v. Dep Ô t of Prof Ô l Reg ., Bd. o f

Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

(Fla. 1991).

35. Section 456.079 requires the Board of Nursing to adopt disciplinary

guidelines for specific offenses. Penalties imposed must be consistent with

any discip linary guidelines prescribed by rule. See Parrot Heads, Inc. v. Dep Ô t

of Business & Pro f Ô l Reg . , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999).

36. Section 456.072(4) provides that in addition to any other discipline

imposed for violation of a practice act, the B oard of Nursing shall assess costs

related to the investigation and prosecution of the case.

37. Rule 64B9 - 8.006 (3)(f)2. provides that the recommended range of

penalt ies for violation of section 464.018(1)(h) through a violation of

r ule 64B9 - 8.005(13 ) is from a reprimand, $500 administrative fine, and

continuing education, to revocation.

38. Rule 64B9 - 8.006(5)(b) sets forth the following as aggravating or

mitigating circumstances for purposes of imposing penalties against violators

of the provisions c ited in paragraph 37 above, as follows:

(b) Circumstances which may be considered for

purposes of mitigation or aggravation of penalty

shall include, but are not limited to, the following:

1. The danger to the public.

2. Previous disciplinary action again st the licensee

in this or any other jurisdiction.

3. The length of time the licensee has practiced.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or stop

violations, or refusal by the licensee to correct or

stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

39. As for mitigating circumstances in this matter, no evi dence was

presented that Ms. Smith had been disciplined previously by the Department

or any similar agency in another jurisdiction. Ms. Smith has been licensed as

a nurse since 2007, which is a substantial length of time without being

disciplined by the De partment.

40. As for aggravating circumstances in this matter, Ms. Smith has

exhibited her temper and use of profanity directed at staff on previous

occasions. While no evidence was presented that she had ever struck a

resident or patient under her care on previous occasions, her outright denial

that J.A. only had a reddened eye after the confrontation, when the

photographs of her show a bright red and swollen face that appear to be from

trauma, is untruthful. It is not possible for anyone looking at J.A. f ollowing

the altercation to believe she had not been struck in the face. The red eye was

the least noticeable feature of the photograph of her taken shortly after

having been struck by Ms. Smith.

41. Despite the combative nature of J.A., who struck both Ms . Bien - Aime

and Ms. Smith, no resident, let alone an 86 - year - old suffering from dementia,

should ever be struck by a nurse or any member of the staff. There is no

excuse for Respondent Ô s behavior and, while she expressed remorse for using

foul language, sh e did not even admit what was witnessed by her co - worker,

let alone apologize for her behavior. Her having been written up previously at

Savannah Court for using foul language only supports her inability to control

her temper and language around staff and patients. Her showing no remorse

for her actions does not instill confidence that, faced with another combative

patient or resident under her care, she would not lash out again. While a

substantial suspension of Respondent Ô s license might result in her lea rning

how to better react when faced with a difficult patient, the undersigned is not

confident Ms. Smith would return as a changed individual practicing nursing

without significant counseling and anger management training. Therefore, as

recommended by the Department, a revocation of her license is warranted.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Board of Nursing enter a final order finding

Respondent violated section 464.018(1)(h) and r ul e 64B9 - 8.005(13), revoking

her license to practice nursing, and imposing costs of investigation and

prosecution .

D ONE A ND E NTERED this 2 7 th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apal achee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of August , 2021 .

C OPIES F URNISHED :

Gerald C. Henley, Esquire Kishma A fia Smith

Kristen M. Summers, Esquire 1440 The Pointe Drive

Dep artment of Health West Palm Beach, Florida 33409

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65 Louise St. Laurent, Gen eral Counsel

Tallahassee, Florida 32399 - 3265 Office of the General Counsel

Department of Health

Joe Baker , J r . , Exec utive Director 4052 Bald Cypress Way, Bin C - 65

Board of Nursing Tallahassee, Florida 32399 - 3265

Department of Health

4052 Bald Cypress Way, Bin C - 0 2

Tallahassee, Florida 32399 - 325 2

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 agency that will issue the Final Order in this

case.