ALJDEC decisions subject to certification as final

05A-0502007-NUR · State Board of Nursing · 2007-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2007. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Daniel Christl. Neal Christopher Jackson did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Neal Christopher Jackson (“Respondent”) is the holder of Professional Nurse License No. RN110090 issued by the Arizona State Board of Nursing (“Board”). Respondent also had been issued Nursing Assistant Certificate No. CNA999976560, which expired. 2. On or about January 19, 2005, Respondent was employed as a nurse at St. John’s Valley Hospital in Camarillo, California. While on duty that day, Respondent was assigned to care for patient M.R. The patient complained to the nursing supervisor that Respondent was argumentative and rough with her. She requested a new nurse be assigned to care for her. Later, M.R. told the charge nurse that she was fearful of Respondent. 3. Later that day two police officers from the Ventura County Sheriff’s Department arrived at the facility to interview M.R. regarding her complaint of sexual battery upon her by Respondent. The police investigation determined that M.R.’s allegations could not be independently substantiated and the case was closed. 4. On January 21, 2005, Lori Christensen, RN, the Acute Care Unit Director of Nursing at St. John’s Pleasant Valley Hospital, informed Cross Country Staffing, a registry who employed Respondent, that he was being terminated from the facility due to M.R.’s complaint. 5. The Board received notice of the incident involving M.R. and opened an investigation. The case was assigned to Sr. Rachel Torrez, RN, MS, a Nurse Practice Consultant for the Board. 6. Respondent was sent Investigative Questionnaires on February 4, 2005 and March 30, 2005 and was requested to complete them and return them to the Board. He did not respond to those requests. 7. On June 23, 2005, Sr. Torrez met with Respondent regarding the allegations. He was again provided with an Investigative Questionnaire and requested to complete and return it. He submitted his written response on June 28, 2005. 8. On July 21, 2005, the Board, through its Executive Director, issued Interim Order Case No. 0502007, which required Respondent to complete a sexual misconduct evaluation by a Board approved evaluator, and any additional testing required by the evaluator, to be scheduled within days and to be completed within 45 days. A copy of the evaluator’s report was required to be submitted to the Board. Respondent failed to comply with the Interim Order. The Interim Order applied to Respondent’s professional nurse license and his nursing assistant certificate. 9. On September 6, 2005, the Board issued a Notice of Charges, a copy of which was mailed to Respondent. 10. On October 4, 2005, Respondent submitted a written request for hearing to the Board. 11. On or about October 6, 2005, Respondent was assigned to work at John C. Lincoln Hospital (“JCL”) by Valentine Nursing Services. JCL requested that Respondent not return to the hospital due to his being disorganized, his inability to manage his assignment and for making medication errors. 12. On December 2, 2005, Respondent was assigned to work at Phoenix Memorial Hospital by Valentine Nursing Services. Respondent exhibited aggressive behavior toward patient care technician Rosalia Campos while both were working. Respondent chased Ms. Campos in an aggressive manner. He threatened to wait for her outside the facility and kill her. 13. Due to his behavior, hospital security escorted Respondent from the nursing unit to the staffing office. He was later escorted off the premises by security. 14. Christine Wilson, RN, who served as Director of Medical/Surgical and Telemetry, was informed of the incident. She advised the supervisor at Valentine Nursing that Respondent was a “do not return” at Phoenix Memorial Hospital. 15. Ms. Wilson credibly testified that Respondent’s conduct had a negative impact on patient care. She noted that if Respondent could not keep his composure with a co-worker in the professional setting, it was a reasonable concern how he would react to a patient or a patient’s family member. 16. Later on December 2, 2005, Respondent spoke with Debra Blake, a staff member in the Board’s hearing department about a hearing date, which had not been scheduled. During that conversation Respondent did not discuss the earlier incident at Phoenix Memorial Hospital. 17. Also on December 2, 2005, board staff received a telephone call from Marie Gagnon, Director of Professional Practice at Phoenix Memorial Hospital. Ms. Gagnon was reporting a complaint against Respondent for the incident earlier in the day at the hospital. 18. On December 2, 2005, Phoenix Police Officer Thomas Gender responded to Phoenix Memorial Hospital and took statements from Ms. Campos and other witnesses to the incident. 19. Ms. Campos obtained an order of protection against Respondent. 20. By letter dated January 5, 2006, Susan Barber, MSN, RN, who serves as a Nurse Consultant in the Board’s Hearing Department, discussed the two complaints filed against him and requested that he complete and return an enclosed questionnaire concerning the second complaint from Phoenix Memorial Hospital. Respondent was requested to contact Ms. Barber to schedule an appointment to discuss the second complaint. 21. Respondent failed to return a completed questionnaire for the second complaint to Ms. Barber. 22. On January 9, 2006, Respondent telephoned Ms. Barber. During that conversation, he was uncooperative, loud, argumentative and threatening towards her. 23. On January 10, 2006, Respondent left five voice mail messages for Ms. Barber during a one-half hour period in the morning. Respondent’s messages are chilling, loud, aggressive and threatening.[1] Respondent made the following statements in those messages left for Ms. Barber: “I’m gonna mess you up,” “I’m gonna fuck you up,” and “I’m gonna kill you.” 24. A criminal complaint was filed against Respondent in the Phoenix City Court due to his menacing conduct towards Ms. Barber and other staff members. He was subsequently found guilty 25. On or about November 10, 2006, Respondent was found guilty of unlawful use of phone, use of phone to terrify. He later failed to appear for sentencing, which resulted in the Court issuing a bench warrant for his arrest. 26. As a result of Respondent’s above-described conduct. Ms. Campos and Ms. Barber have legitimate concerns for their personal safety. 27. The Board’s hearing department referred the complaints against Respondent to the Office of Administrative Hearings, an independent agency, for formal hearing. 28. The Board issued a Notice of Hearing, copies of which were sent to Respondent at his address of record with the Board and another known address for him. 29. The commencement of the scheduled hearing was delayed for 15 minutes to allow for the late arrival of Respondent, or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 30. Respondent’s practice of nursing poses a real and serious threat to the public health, safety and welfare.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1601(16)(d) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public), as cited in the Complainant and Notice of Hearing issued by the Board. 4. Respondent violated the provisions of A.R.S. § 32-1601(16)(e) (being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public), as cited in the Complaint and Notice of Hearing issued by the Board. 5. Respondent violated the provisions of A.R.S. § 32-1601(16)(g) (willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter), as cited in the Complaint and Notice of Hearing issued by the Board. 6. Respondent violated the provisions of A.R.S. § 32-1601(16)(h) (committing an act that deceives, defrauds or harms the public), as cited in the Complaint and Notice of Hearing issued by the Board. 7. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(2) (effective July 19, 1995) (intentionally or negligently causing physical or emotional injury), as cited in the Complaint and Notice of Hearing issued by the Board. 8. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(6) (effective July 19, 1995) (failing to take appropriate action to safeguard a patient’s welfare or to follow policies and procedures of the nurse’s employer designed to safeguard the patient), as cited in the Complaint and Notice of Hearing issued by the Board. 9. Respondent violated the provisions of A.R.S. § 32-1601(j)(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(24) (effective July 19, 1995) (failing to cooperate with the Board by: (a) not furnishing in writing a full and complete explanation covering the matter reported pursuant to A.R.S. § 32-1664, or (b) not responding to a subpoena issued by the Board), as cited in the Complaint and Notice of Hearing issued by the Board. 10. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(25) (effective July 19, 1995) (practicing in any other manner which gives the Board reasonable cause to believe that the health of a patient or the public may be harmed), as cited in the Complaint and Notice of Hearing. 11. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(B)(1) (amended effective December 5, 2005) (a pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice), as cited in the Complaint and Notice of Hearing issued by the Board. 12. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(B)(2) (amended December 5, 2005) (intentionally or negligently causing physical or emotional injury), as cited in the Complaint and Notice of Hearing issued by the Board. 13. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(B)(25) (amended effective December 5, 2005) (failing to: (a) furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32- 1664, or (b) respond to a subpoena issued by the Board), as cited in the Complaint and Notice of Hearing issued by the Board. 14. Respondent violated the provisions of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically A.A.C. R4-19-403(B)(31) (amended effective December 5, 2005) (practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed), as cited in the Complaint and Notice of Hearing issued by the Board. 15. Pursuant to A.R.S. § 32-1664(C), the Board has the authority to investigate and discipline Respondent’s expired nursing assistant certificate. The evidence shows that was subject to an investigation in Case No. 0502077 in 2005. 16. The above described statutory and regulatory violations are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. 17. The evidence of records supports the summary suspension of Respondent’s professional nurse license until this matter becomes final, pursuant to A.R.S. § 41-1092.11(B).

RECOMMENDED ORDER

Respondent’s Professional Nurse License No. RN110090 shall be immediately suspended and shall remain suspended until the effective date of the Order entered in Complaint No. 0502007 in order to protect the public health, safety and welfare. Respondent’s Professional Nurse License No. RN110090 shall be revoked on the effective date of the Order entered in Complaint No. 0502007. Respondent’s Nursing Assistant Certificate No. CNA999976560 shall be revoked on the effective date of the Order entered in Complaint No. 0502007. Done this day, May 9, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ATTN: Vicky Driver 4747 N. 7th Street, Suite # 200 Phoenix, AZ 85014

By ___________________________

----------------------- [1] Respondent’s voice mail messages were played into the record. The messages are chilling.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826