ALJDEC decisions subject to certification as final

07A-0601022-NUR · State Board of Nursing · 2007-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2007, May 8, 2007, May 11, 2007, May 14, 2007, May 31, 2007, June 1, 2007, and June 7, 2007 (closing argument). The record closed on July 2, 2007. APPEARANCES: Assistant Attorney General Ann Olson represented the Arizona State Board of Nursing. Teressa M. Sanzio, Esq. represented Respondent Grant Wayne Cooper. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this case is whether Respondent Grant Wayne Cooper has engaged in unprofessional conduct as defined in Arizona Revised Statutes (“A.R.S.”) § 32-1601(16) and, if so, whether he is subject to disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: FINDINGS OF FACT 1. The Arizona State Board of Nursing (the “Board”) is the duly constituted authority for licensing and regulating the practice of nursing in the State of Arizona. 2. Respondent Grant Wayne Cooper is the holder of a professional nurse license (No. RN094171) for the practice of nursing in the State of Arizona. Mr. Cooper also holds an advanced practice certificate (No. AP0851) under which he is authorized to independently provide medical services. In his capacity as a nurse practitioner, Mr. Cooper was authorized to prescribe and dispense controlled substances.

3. Mr. Cooper received his professional nursing license in 1996 and his advanced practice certificate in 1999. 4. Prior to the imposition of the summary suspension that is at issue in this matter, Mr. Cooper worked as a registry nurse through Alacrity Staffing (“Alacrity”). Mr. Cooper also maintained a private practice, Sun Valley Health Care, LLC, in his capacity as a family nurse practitioner. As a registry nurse, Mr. Cooper regularly worked at Phoenix Memorial Hospital (“PMH”) in the intensive care unit. 5. On January 25, 2006, the Board received a complaint against Mr. Cooper from Marie Gagnon, who at that time was the Director of Professional Practice at PMH. The gravamen of Ms. Gagnon’s complaint was that Mr. Cooper was over-sedating and over-medicating his patients. See Exhibit 5. 6. The Board assigned responsibility for the investigation of Ms. Gagnon’s complaint to Karen Grady, one of the Board’s nurse practice consultants. 7. On February 16, 2006, Ms. Gagnon contacted Ms. Grady by telephone to advise that three physicians had raised concerns with her regarding over-medication of patients by Mr. Cooper.[1] Ms. Gagnon also told Ms. Grady that one of the respiratory therapists at PMH had complained to her about harassment by Mr. Cooper.[2] 8. By letter dated February 11, 2006, Ms. Grady advised Mr. Cooper that the Board had received a complaint against his nursing license, and provided Mr. Cooper with an investigative questionnaire that she asked Mr. Cooper to complete and return within two weeks. See Exhibit 32. The questionnaire described the complaint against Mr. Cooper as follows: “Alleged unprofessional conduct related to care of patients and medication management while employed at Phoenix Memorial Hospital which has resulted in a do not return status with that facility. Reportedly also a do not return to several other acute care facilities.” See id.

9. On March 27, 2006, Mr. Cooper, through counsel, returned the Board’s investigative questionnaire. Given the absence of any specificity in the description of the complaint, Mr. Cooper was unable to respond to the allegations.[3] 10. On May 17, 2006, Ms. Hartman advised Ms. Grady that two physicians had expressed concern that Mr. Cooper might be diverting narcotics. This allegation was not substantiated, and Mr. Cooper credibly denied that he had ever diverted narcotics.[4] 11. The Board did not have any further contact with Mr. Cooper until February 2007, when it received a second complaint against Mr. Cooper’s nursing license. The gravamen of that complaint was that Mr. Cooper had over-medicated a patient while working as a nurse at Promise Specialty Hospital (“PSH”) in Phoenix. See Exhibit 12. Of particular note in this instance is that subsequent to the conclusion of Mr. Cooper’s shift on November 3, 2006, the patient had coded and died. 12. By letter dated March 1, 2007, the Board advised Mr. Cooper that a second complaint had been filed against his nursing license. See Exhibit 41. 13. On March 2, 2007, the Board received an anonymous complaint that Mr. Cooper had committed an act of domestic violence. 14. On March 3, 2007, the Board received an anonymous complaint that Mr. Cooper had written prescriptions for narcotics for which he had received in return one half of the narcotics dispensed. 15. The Board combined the foregoing complaints into a single complaint for investigative purposes, and assigned responsibility for that investigation to Mary Rappoport, another of the Board’s nurse practice consultants. 16. Shortly after commencing its investigation into the foregoing complaints, the Board initiated summary suspension proceedings against Mr. Cooper’s nursing license and advance practice certificate. As Ms. Rappoport testified at hearing:

Well, when we got the third complaint in from the D.E.A., the anonymous complaint; we clarified it with the D.E.A. The Board felt it rose to a very high harm, high risk. The summary suspension, you know, was ( we thought it was the best thing to do because of the allegations and the fact that we had an issue with another patient from Promise Select Specialty, and then we had allegations of concerns using narcotics, narcotics missing and things along those lines. So the Board had a duty to protect the public, so that's when it rose to a level of a summary suspension.

Reporter’s Transcript of Proceedings (hereafter “R.T.”), Vol. 3, at 558:10- 19.

17. On March 28, 2007, the Board issued Findings of Public Emergency and Order for Summary Suspension, pursuant to which it suspended Mr. Cooper’s nursing license and advance practice certificate. See Exhibit 2. 18. Subsequent to its entry of the summary suspension order, the Board received two incident reports from Select Specialty Hospital (“SSH”). The gravamen of those reports was that Mr. Cooper had over- medicated a patient and that Mr. Cooper may have been involved in the loss of ten doses of Dilaudid. See Exhibit 16. 19. On March 28, 2007, following the referral of Mr. Cooper’s suspension to the Office of Administrative Hearings for formal administrative hearing, the Board issued a Complaint and Notice of Hearing setting this matter for hearing on May 7 and May 8, 2007. 20. In its Complaint, the Board alleged that Mr. Cooper had violated 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), 32- 1601(16)(g) (willfully or repeatedly violating a provision of A.R.S. Title 32, Chapter 15 or a rule adopted pursuant to A.R.S. Title 32, Chapter 15), 32-1601(16)(h) (committing an act that deceives, defrauds or harms the public), and 32-1601(16)(j) (violating a rule that is adopted by the Board pursuant to this chapter). In support of the foregoing, the Board alleged that Mr. Cooper had violated Arizona Administrative Code ("A.A.C.") R4-19-403(B)(1) (pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice), (B)(2) (intentionally or negligently causing physical or emotional injury), (B)(7) (failing to maintain a patient

record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient), (B)(9) (failing to take appropriate action to safeguard a patient's welfare or follow policies and procedures of the nurse's employer designed to safeguard the patient), (B)(12) (assuming patient care responsibilities that the nurse lacks the education to perform, for which the nurse has failed to maintain nursing competence, or that are outside the scope of practice of the nurse), (B)(17) (pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location), (B)(18) (obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices), (B)(27) (making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials), (B)(30) (any act prohibited under R4-19-511(D)), (B)(31) (practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed), and A.A.C. R4-19-511(D)(1) (prescribing a controlled substance to one's self or a member of the nurse's family), and (D)(5) (prescribing, dispensing, or furnishing a prescription drug or a prescription-only device to a person unless the nurse has examined the person and established a professional relationship, except when the nurse is engaging in one or more of the following: a. providing temporary patient care on behalf of the patient's regular treating and licensed health care professional; b. providing care in an emergency medical situation where immediate medical care or hospitalization is required by a person for the preservation or health, life, or limb; or c. furnishing a prescription drug to prepare a patient for a medical examination). The Administrative Law Judge addresses each of the Board’s complaints in turn. Complaint Number One 21. The Board’s first complaint pertains to care that Mr. Cooper rendered to three patients at PMH: M.C., R.S., and E.W.

Patient M.C. 22. Patient M.C. was admitted to the PMH cardiovascular intensive care unit (“CVICU”) on or about December 22, 2005 after undergoing a cardiac catheterization and surgical pericardial window. The Physician’s Orders for M.C., dated December 23, 2005, called for the administration of morphine sulfate 4 mg every hour as needed for pain. See Exhibit I, at 9. 23. Mr. Cooper cared for M.C. during the day shift on December 24, 2005 (7:00 a.m. to 7:00 p.m.). Mr. Cooper assessed M.C.’s pain every hour, and based on that assessment administered morphine sulfate in accordance with the Physician’s Orders. Mr. Cooper did not exceed the dosage set forth in the Physician’s Orders. 24. In the course of caring for M.C. on December 24, 2005, Mr. Cooper administered Propofol, a sedating agent, at an hourly rate of micrograms per kilogram per minute. In administering Propofol to M.C., Mr. Cooper did not exceed the maximum amount allowed absent further physician order. 25. In the course of caring for M.C. on December 24, 2005, Mr. Cooper administered Vecuronium, a paralytic agent. There is no substantial evidence in the record that Mr. Cooper’s administration of Vecuronium to M.C. violated a physician order or nursing standard. 26. Mr. Cooper’s care of M.C. on December 24, 2005 did not cause any harm to M.C. Patient R.S. 27. Patient R.S. was admitted to the PMH CVICU on or about January 6, 2006 after undergoing a coronary artery bypass. The Physician’s Orders for R.S., dated January 6, 2006, called for the administration of morphine sulfate 2 mg every hour as needed for mild pain, 3 mg every hour as needed for moderate pain, and 4 mg every hour as needed for severe pain. See Exhibit H, at 11. 28. Mr. Cooper cared for R.S. during the day shift on January 7, 2006. Mr. Cooper assessed R.S.’s pain every hour as being in the moderate range, yet administered 4 mg of morphine sulfate, the amount ordered for severe pain, in contravention of the Physician’s Orders.

29. Although Mr. Cooper acted in contravention of the Physician’s Orders when he administered 4 mg of morphine sulfate per hour to R.S., there is no evidence that such medication administration caused any harm to R.S. Patient E.W. 30. Patient E.W. was admitted to the PMH CVICU on or about January 12, 2006 after undergoing a cardiac catheterization. 31. In accordance with PMH policy, about which Mr. Cooper was aware, a change of patient status (such as occurs when a patient is transferred to the CVICU) results in the discontinuance of any then- existing physician orders. 32. In E.W.’s case, his transfer to the CVICU resulted in a discontinuance of his then-existing orders for pain management, which called for the administration of morphine sulfate 4 mg every three hours as needed for pain. See Exhibit G, at 2. Notwithstanding E.W.’s change in status, his pain medication orders continued to appear on his medication administration record (“MAR”) through what Robert Garner, PMH’s ICU Director, described as a “glitch”. See Exhibit 5, at 5. 33. Mr. Cooper cared for E.W. during the day shifts on January 13, 2006, January 14, 2006, and January 15, 2006. In accordance with the previously-existing physician orders, Mr. Cooper administered 4 mg of morphine sulfate to E.W. every three hours to control his pain. 34. The standard of care required that Mr. Cooper confirm the MAR for E.W. against physician orders. Mr. Cooper violated that standard of care when he relied solely on E.W.’s MAR to confirm that such medication had been ordered. 35. Although Mr. Cooper violated the relevant standard of care in his administration of morphine sulfate E.W., there is no evidence that such medication administration caused any harm to E.W. 36. On January 16, 2006, E.W.’s physician entered an order for morphine sulfate 2 mg every four hours as needed for pain.

Additional Evidence re: PMH 37. PMH typically assigned Mr. Cooper to care for very ill patients because he had many years of ICU experience, he was competent, he was a good nurse, and physicians trusted him with their patients. R.T., Vol. 3, at 532 (testimony of Julie Saltzman, PMH’s CVICU Clinical Coordinator). 38. When she completed her investigation, Ms. Gagnon concluded that Mr. Cooper should be made a “do not return” (“DNR”) at PMH. Ms. Gagnon stated at hearing: “my goal was to do a Do Not Return for Mr. Cooper.” R.T., Vol. 2, at 376:18-19. Ms. Gagnon achieved her goal; PMH DNR’d Mr. Cooper on January 20, 2006. Complaint Number Two 39. The Board’s second complaint pertains to care that Mr. Cooper rendered to patient S.P. at PSH. 40. On November 3, 2006, S.P. was admitted to PSH as a transfer patient from John C. Lincoln Hospital North Mountain. S.P. had broken his ankle and had undergone an open reduction internal fixation; he was admitted to PSH for physical therapy and pain management. 41. S.P. had numerous medical issues. He was morbidly obese (approximately 460 pounds), suffered from schizophrenia, was diabetic, and required dialysis. S.P. also had obstructive sleep apnea for which he used a bi-pap machine (a medical device that forces respiration). 42. S.P. arrived at PSH at approximately 8:00 p.m. Mr. Cooper was working the night shift, having arrived at approximately 7:00 p.m. 43. When S.P. arrived at PSH he was in severe pain, as he had not received any pain medication since 4:40 p.m. The charge nurse, Robert Smith, obtained orders for pain medication as follows: Percocet 5 mg tablet every four hours as needed for mild pain, Percocet 5 mg 2 tablets every four hours as needed for moderate pain, and Dilaudid (synthetic morphine) 2 mg every three hours as needed for severe pain. See Exhibit 12, at 4. Other medication orders included Seroquel, Ambien, and Atarax, and oxygen (2 liters per minute via nasal cannula continuously and bi-pap when sleeping).

44. When S.P. arrived at PSH, a bi-pap machine had not been obtained. This error appears to be attributable to the day shift having failed to obtain the device, and further to a failure in PSH’s medical equipment policies and procedures. The respiratory therapist had documented that S.P. intended to use his own bi-pap machine, but that machine was not brought to the facility. 45. Mr. Cooper was aware of the order for the bi-pap, but was unable to implement that therapy in the absence of the bi-pap machine. At hearing, the Board suggested that Mr. Cooper could have contacted S.P.’s physician. While this is true, the evidence demonstrated that Mr. Cooper, in consultation with the charge nurse, Mr. Smith, made an informed judgment that such contact was not required as (i) S.P. slept only intermittently, and (ii) S.P. did not experience any respiratory distress over the course of Mr. Cooper’s shift (this notwithstanding the fact that S.P. would periodically remove his nasal cannula). 46. At 8:20 p.m. on November 3, 2006, Mr. Cooper assessed S.P.’s pain level as severe (9/10), and administered Dilaudid in accordance with the Physician’s Orders. On reassessment one hour later, Mr. Cooper assessed S.P.’s pain level as moderate (5/10). At 10:00 p.m., Mr. Cooper assessed S.P.’s pain level as moderate (5/10), and administered Percocet in accordance with the Physician’s Orders. On reassessment one hour later, Mr. Cooper assessed S.P.’s pain level as mild (2/10). At 11:25 p.m., Mr. Cooper assessed S.P.’s pain level as severe (7/10), and administered Dilaudid in accordance with the Physician’s Orders. On reassessment one hour later, Mr. Cooper assessed S.P.’s pain level as mild (2/10). At 2:25 a.m. (now November 4, 2006), Mr. Cooper assessed S.P.’s pain level as severe (8/10), and administered Dilaudid in accordance with the Physician’s Orders. On reassessment one hour later, Mr. Cooper assessed S.P.’s pain level as moderate (5/10). At 2:35 a.m., Mr. Cooper assessed S.P.’s pain level as moderate (5/10), and administered Percocet in accordance with the Physician’s Orders. On reassessment one hour later, Mr. Cooper assessed S.P.’s pain level as mild (2/10). At 2:50 a.m., Mr. Cooper administered Ambien in accordance with the Physician’s Orders. At 7:00 a.m., Mr. Cooper assessed S.P.’s pain level as severe

(7/10), and administered Dilaudid in accordance with the Physician’s Orders. See Exhibit K, at 44A, 77, and 78. 47. The State suggested that Mr. Cooper’s treatment of S.P., as set forth above, violated a PSH policy and procedure that when a patient experiences pain at a rate consistently 5 or greater, and such pain is unrelieved by medication and nonpharmacologic interventions, the situation should be reported to the patient’s physician. See Exhibit M, at 4 (¶ B.5). The Administrative Law Judge disagrees that a violation of this policy occurred, as the evidence demonstrated that S.P.’s pain was relieved by medication. 48. The State urged that Mr. Cooper’s administration of Dilaudid, Percocet, and Ambien within a 35 minute time frame (i.e., between 2:25 a.m. and 2:50 p.m.) did not represent the conduct of a prudent nurse. The weight of the evidence was contrary to this assertion. Mr. Cooper treated S.P.’s pain according to (and under the limitations imposed by) the Physician’s Orders, and at no point during his shift did Mr. Cooper exceed those orders. 49. At the conclusion of his shift, Mr. Cooper noted in the medical record that S.P.’s vital signs were stable and that the evening’s care had been uneventful. The evidence supports this notation. Recognizing that reasonable persons can interpret the term “uneventful” differently, it remains that at no time during the course of Mr. Cooper’s shift were there any incidents of sufficient moment or magnitude as to require physician contact or extraordinary intervention. 50. At approximately 8:15 a.m. on November 4, 2006, S.P. began to experience respiratory distress. At 9:25 a.m., S.P. coded and could not be resuscitated. 51. Following the occurrence of this “sentinel event” (the death of a patient within 24 hours after admission), PSH initiated a root cause analysis. That analysis identified S.P.’s medication regimen, as administered by Mr. Cooper, as a potentially contributing factor, but nothing in any of the documentation admitted into evidence states that Mr. Cooper acted inappropriately or in violation of the Nurse Practice Act.

52. Following S.P.’s death, Mr. Cooper was DNR’d at PSH. That prohibition was lifted in January 2007, and Mr. Cooper returned to PSH as a charge nurse. Complaint Number Three 53. Paragraph 42 of the Board’s Complaint and Notice of Hearing alleges: “On or about March 3, 2007, the Board received an anonymous complaint that alleged [Mr. Cooper] was writing prescriptions for controlled substances for friends and relatives and receiving half of the filled prescriptions for his own use and as payment for writing the prescriptions.” 54. The State did not present any substantial evidence at hearing to support this allegation, and Mr. Cooper credibly denied any wrongdoing. 55. In a section of the Complaint and Notice of Hearing entitled “Document Review”, the Board states that Mr. Cooper had written prescriptions for controlled substances to family, friends, and co- workers (¶ 44), and that Mr. Cooper had received prescriptions for controlled substances (¶ 45). 56. Mr. Cooper acknowledged that he wrote two prescriptions for Valium for his wife. Mr. Cooper explained that extenuating circumstances existed; however, such circumstances do not excuse Mr. Cooper’s conduct. 57. The State demonstrated, through pharmacy records, that Mr. Cooper had written prescriptions to co-workers and others; however, the State failed to demonstrate that such prescriptions were improper.[5] At one point during the hearing, Julie Saltzman, one of the Board’s witnesses, testified that she had received a prescription from Mr. Cooper as follows: Q. And you stated that you thought he [Mr. Cooper] was a good nurse. Now everyone's interpretation of what good may be different. Did that include that you thought he had advanced knowledge because he held an advanced practice certificate? A. For many years I did not know Grant was a nurse practitioner if that's what you are asking. I knew Grant continued to go to school and had gone to seminars and whatnot to keep himself current on current practice of critical care patients. Q. So when did you find out that he held an advanced practice certificate? A. I honestly don't know when I knew that. Q. How did you find out? Did he tell you directly? A. No. One day I was at the hospital and I wasn't feeling well and he asked me what was wrong and he asked me, I'm a nurse practitioner. I can write a prescription for antibiotics if you need me to. Q. Did he do so? A. One time for Zithromax. Q. Did he do a complete intake of you and create a medical record for you as a patient of his? A. Yes. We went in the conference room so it could be private or confidential, I'm sorry.

R.T., Vol. 3, at 537:25-538:23.

58. Ms. Saltzman’s testimony, which the Administrative Law Judge found very credible, supports Mr. Cooper’s assertion that he did not write prescriptions without first performing a medical work-up. 59. Regarding Mr. Cooper’s receipt of controlled substances, the evidence demonstrated that such prescriptions were written by physicians or physician assistants in response to various medical conditions. There is no substantial evidence in the record that Mr. Cooper obtained such prescriptions for improper purposes.[6] 60. Paragraph 43 of the Board’s Complaint and Notice of Hearing alleges: “A second anonymous caller contacted the Board and stated that Respondent had been arrested for domestic violence against his wife and family and had threatened police officers and fire department personnel on or about January 27, 2005.”

61. Respondent did not dispute that he had been arrested. That arrest, however, did not give rise to a conviction, and the arrest, in and of itself, is neither substantial nor probative evidence of the commission of the offense relied upon by the Board. 62. At hearing, the State offered into evidence several police reports, one of which addressed Mr. Cooper’s arrest. The Administrative Law Judge rendered a preliminary ruling that the reports were not admissible unless they could be shown to be corroborative of other, more direct evidence of Mr. Cooper’s conduct. The State did not offer any such evidence (including not questioning Mr. Cooper directly), and the reports were not admitted into evidence. 63. In the absence of any substantial or probative evidence as to Mr. Cooper’s alleged conduct on January 27, 2005, the State failed to demonstrate that Mr. Cooper engaged in any improper or wrongful conduct as alleged in Complaint and Notice of Hearing ¶¶ 46-50. Complaint Number Four 64. The Board’s fourth complaint pertains to care that Mr. Cooper rendered to patient B.D. at Select Specialty Hospital (“SSH”) in Phoenix, and to the discovery of missing medication at an SSH location at which Mr. Cooper was working. Patient B.D. 65. Patient B.D. was admitted to SSH on or about January 2, 2007 for rehabilitation following a motor vehicle accident in which he sustained significant injuries. Dr. Lindley Bliss was B.D.’s admitting physician. 66. Dr. Bliss’ orders called for the administration of Dilaudid 1 mg every hour as needed for pain. See Exhibit 18, at 19. 67. Mr. Cooper cared for B.D. during the evening shift on January 13, 2007. Mr. Cooper assessed B.D.’s pain as moderate (5/10) at 8:00 p.m., 9:00 p.m., 10:30 p.m., and 4:00 a.m., and based on that assessment administered Dilaudid in accordance with Dr. Bliss’ orders. See Exhibit 18, at 54. Mr. Cooper did not exceed Dr. Bliss’ orders.

68. Mr. Cooper’s care of B.D. on January 2, 2007 did not cause any harm to B.D. See Exhibit 16, at 3. Missing Dilaudid 69. On February 18, 2007, Thomas Bromert, the Director of Pharmacy Services at SSH, received a report that 10 doses of Dilaudid had been discovered missing from one of SSH’s Pyxis medication dispensing stations. According to Mr. Bromert, a pharmacist had stocked the station on February 16, 2007 with 2 boxes of Dilaudid, each containing carpujects. On February 18, 2007, a nurse who had accessed the station had discovered that the carpujects had been removed from one of the boxes and replaced with plastic sleeves to give the appearance that the box was full. 70. Mr. Bromert ran a report and determined that Mr. Cooper was one of two nurses who had accessed the Dilaudid supply between the re- stocking on February 16, 2007 and the discovery on February 18, 2007 of the missing carpujects (the second nurse being the one who had discovered the missing medication). 71. SSH drug tested all of its employees who had access to the dispensing station and/or the pharmacy. All of those tests were negative. 72. SSH could not require that Mr. Cooper submit to a drug test, as he was not an SSH employee. However, SSH submitted a request to Alacrity that Mr. Cooper take a drug test, which request was passed on to Mr. Cooper. 73. On February 20, 2007, Mr. Cooper underwent a drug test; that test was negative. 74. Other than the testimony by Mr. Bromert, the State did not present any evidence that Mr. Cooper had removed the Dilaudid carpujects from the dispensing station. While Mr. Bromert was a credible witness, the fact that Mr. Cooper had accessed the dispensing station, standing alone, is not sufficient evidence to establish that Mr. Cooper took the medication.

Other Issues/Other Matters 75. During the course of the hearing, which lasted six days (plus one additional day for closing argument), the parties addressed multiple matters and issues. To the extent that the Administrative Law Judge has not addressed such matters and/or issues specifically herein, it because they were excluded from the record or because the Administrative Law Judge determined such matters to be irrelevant to the violations alleged in the Complaint and Notice of Hearing or unsupported by the evidence.[7] CONCLUSIONS OF LAW 1. In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Mr. Cooper engaged in unprofessional conduct as defined in A.R.S. § 32-1601(16)(d), (g), (h), and/or (j), and that he is subject to disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes, based on the evidence presented, that the Board sustained its burden of proof as to two of Mr. Cooper’s alleged violations of the Nurse Practice Act. 4. A.R.S. § 32-1601(16) provides, in pertinent part: "Unprofessional conduct" includes the following whether occurring in this state or elsewhere:

* * *

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

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(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(h) Committing an act that deceives, defrauds or harms the public.

* * *

(j) Violating a rule that is adopted by the Board pursuant to this chapter.

5. A.A.C. R4-19-403(B) provides, in pertinent part: For purposes 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 includes one or more of the following:

1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice;

2. Intentionally or negligently causing physical or emotional injury;

* * *

7. Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient;

* * *

9. Failing to take appropriate action to safeguard a patient's welfare or follow policies and procedures of the nurse's employer designed to safeguard the patient;

* * *

12. Assuming patient care responsibilities that the nurse lacks the education to perform, for which the nurse has failed to maintain nursing competence, or that are outside the scope of practice of the nurse;

* * *

17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location;

18. Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices;

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27. Making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials;

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30. For a registered nurse granted prescribing privileges, any act prohibited under R4-19-511(D); or

31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

6. A.A.C. R4-19-511(D) provides, in pertinent part: In addition to acts listed under R4-19-403, for a nurse who prescribes or dispenses a drug or device, a practice that is or might be harmful to the health of a patient or the public, includes one or more of the following:

1. Prescribing a controlled substance to one's self or a member of the nurse's family;

* * *

5. Prescribing, dispensing, or furnishing a prescription drug or a prescription-only device to a person unless the nurse has examined the person and established a professional relationship, except when the nurse is engaging in one or more of the following:

a. Providing temporary patient care on behalf of the patient's regular treating and licensed health care professional;

b. Providing care in an emergency medical situation where immediate medical care or hospitalization is required by a person for the preservation or health, life, or limb; or

c. Furnishing a prescription drug to prepare a patient for a medical examination.

7. The evidence demonstrated that Mr. Cooper administered excessive medication to patient R.S. at PMH on January 7, 2006. Such conduct constitutes a violation of A.R.S. § 32-1601(16)(d), as the administration of excessive medication, while it did not cause any harm to R.S., is a practice that might be harmful or dangerous to the health of a patient. 8. The evidence demonstrated that Mr. Cooper failed to confirm the physician’s orders for medication for patient E.W. at PMH on January 13, 14, and 16, 2006, and thus administered medication to E.W. over the course of three days without a valid order. Such conduct constitutes a violation of A.R.S. § 32-1601(16)(d), as the administration of medication without a valid order, while it did not cause any harm to E.W., is a practice that might be harmful or dangerous to the health of a patient. Such conduct also violates A.A.C. R4-19-403(B)(9), and in turn A.R.S. § 32-1601(16)(j), as the administration of medication without a valid physician order constitutes a failure to take appropriate action to safeguard a patient’s welfare. 9. The evidence demonstrated that Mr. Cooper prescribed Valium to his wife. Such conduct constitutes a violation of A.A.C. R4-19- 511(D)(1), and in turn A.R.S. § 32-1601(16)(j), as the issuance of a prescription to a family member is expressly prohibited. 10. As to the remainder of the Board’s allegations, the evidence failed to demonstrate that Mr. Cooper willfully or repeatedly violated a provision of A.R.S. Title 32, Chapter 15 or a rule adopted pursuant to A.R.S. Title 32, Chapter 15 (A.R.S. § 32-1601(16)(g)), committed an act that deceived, defrauded or harmed the public (32-1601(16)(h)), exhibited a pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice (A.A.C. R4-19-403(B)(1)), intentionally or negligently caused physical or emotional injury (A.A.C. R4-19-403(B)(2)), failed to

maintain a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient (A.A.C. R4-19-403(B)(7)), assumed patient care responsibilities that the nurse lacked the education to perform, for which the nurse has failed to maintain nursing competence, or that are outside the scope of practice of the nurse (A.A.C. R4-19-403(B)(12)), exhibited a pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location (A.A.C. R4-19-403(B)(17)), obtained, possessed, administered, or used any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices (A.A.C. R4-19-403(B)(18)), or made a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials (A.A.C. R4-19-403(B)(27)). 11. A.R.S. § 32-1663 provides, in pertinent part: D. If the Board finds after affording an opportunity to request an administrative hearing that a person who holds an Arizona nursing license has committed an act of unprofessional conduct it may do any of the following:

1. Revoke or suspend the license. 2. Impose a civil penalty. 3. Censure the licensee. 4. Place the licensee on probation. 5. Accept the voluntary surrender of a license.

* * *

F. If the Board finds after affording an opportunity to request an administrative hearing that a certificate holder has committed an act of unprofessional conduct it may do any of the following:

1. Revoke or suspend the certificate. 2. Impose a civil penalty. 3. Accept the voluntary surrender of a certificate.

12. A.R.S. § 32-1664 provides, in pertinent part:

N. If the licensee or certificate holder is found to have committed an act of unprofessional conduct, the Board may revoke or suspend the license or the certificate.

13. Having considered the foregoing authorities, and the violations found herein, the Administrative Law Judge concludes that grounds exist to impose discipline against Mr. Cooper’s license. However, grounds do not exist to support the Board’s imposition of summary suspension, and that Order must be reversed. ORDER Mr. Cooper’s summary suspension is reversed. Commencing on the effective date of this Order, Mr. Cooper’s professional nurse license (No. RN056091) shall be suspended for a period of thirty (30) days. The term of such suspension, however, shall be deemed served by virtue of Mr. Cooper’s prior term of suspension. Commencing on the effective date of this Order, Mr. Cooper’s advanced practice certificate (No. AP1076) shall be suspended for a period of one hundred and eighty (180) days.

Done this day, July 20, 2007.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] Ms. Gagnon had heard from Debra Hartman, who was at that time PMH’s Director of Risk Management, that several physicians had complained to Ms. Hartman that it was difficult to wean Mr. Cooper’s patients off of their ventilators because they were receiving too much medication. These physicians did not testify at hearing, and the Administrative Law Judge has afforded no weight to these hearsay statements. [2] This alleged complaint of harassment also constitutes hearsay to which the Administrative Law Judge has afforded no weight. [3] Mr. Cooper requested, and later received, a copy of the complaint that had been submitted to the Board. [4] There was a further allegation that several members of the PMH ICU staff, including at least one physician, were fearful of Mr. Cooper. The totality of the evidence offered in support of this allegation consisted of hearsay to which the Administrative Law Judge has afforded no evidentiary weight. [5] At hearing, the State urged that Mr. Cooper had failed to produce patient records in response to subpoena, and thus had prevented the Board from fully investigating the allegation of improper prescribing. As the evidence demonstrated, Mr. Cooper made a good faith attempt to comply with the Board’s subpoena, but, due to pending divorce proceedings and the issuance of a temporary restraining order against him, was unable to retrieve the records from his home, which is currently occupied by his wife. The Administrative Law Judge finds no cause to delve further here into the nature of Mr. Cooper’s marital difficulties. Suffice to say, Mr. Cooper has been placed in an extremely difficult and tenuous position, and his inability to produce records to the Board in its investigation is not a matter that should be held against him. [6] The closest issue in regard to Mr. Cooper’s personal use of medication was his receipt in March 2007 of a prescription for 240 doses of Desoxyn, a form of methamphetamine used to treat Attention Deficit Disorder. The quantity is significant; however, the Administrative Law Judge finds, upon consideration of the testimony of Dr. Celaya, the prescribing physician, that the amount prescribed (which represents a one month supply) was not inordinate. [7] One example would be the reference in Complaint and Notice of Hearing ¶ 59 to Mr. Cooper having left a briefcase containing $18,000.00 with Mr. Bromert at the SSH pharmacy. Mr. Cooper offered a reasonable explanation for that occurrence, which the Administrative Law Judge could have addressed in detail, but ultimately that set of facts simply is not relevant to Mr. Cooper’s alleged violations of the Nurse Practice Act. Another example is the issue of the legibility of Mr. Cooper’s handwriting. The evidence on this issue was mixed, but, ultimately, it is not an issue that requires further analysis because the legibility of Mr. Cooper’s handwriting was not alleged in the Board’s Complaint and Notice of Hearing as a violation of the Nurse Practice Act.

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