ALJDEC decisions subject to certification as final

11A-1012006-NUR · State Board of Nursing · 2011-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2011 APPEARANCES: Wilhelmina Marie Bartlett did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Emma Lehner Mamaluy. 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. The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating registered nurses in the State of Arizona. 2. Wilhelmina Marie Bartlett, also known as Leslie Marie Bishop, Debbie Fitch, Terri Haden, Theresa Vermilyin, Debbie Stewart, Lori Stockman, and Owen (“Respondent”), is the holder of License No. RN145576 issued by the Board to practice as a registered nurse in the State of Arizona. 3. On March 23, 2011, the Board summarily suspended Respondent’s registered nursing license, subject to a hearing, in Complaint No. 1012006. 4. On March 29, 2011, the Board’s Executive Director issued a Complaint and Notice of Hearing Summary Suspension Expedited Hearing (“Notice”) advising the parties of the time, date, and location of the evidentiary hearing before the Office of Administrative Hearings, an independent agency. The Notice was sent to the parties at their addresses of record with the Board. 5. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent her. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 6. At the commencement of the hearing, the Board’s counsel announced that paragraphs 7 and 8 of Section IV Factual Allegations of the Notice were amended to delete any reference to Respondent testing positive for Fentanyl. 7. On December 8, 2010, the Board received allegations that Respondent had diverted, tampered with, or stole Fentanyl, a controlled substance, on or about December 7, 2010, at Paradise Valley Hospital (“PVH”) in Phoenix, Arizona. 8. Respondent was requested and agreed to submit a urine sample for analysis. Respondent’s sample initially tested positive for cocaine on the for-cause drug screen. Based upon this information a Board investigation was initiated. 9. From approximately August 27, 2007, until December 10, 2010, Respondent was employed as a registered nurse at PVH. 10. On or about December 8, 2010, according to PVH Director of Nursing, Dee Emon, it was discovered that several sharps containers in the operating room had been tampered with and all staff that had access to the unit were required to submit a urine drug screen. 11. Ms. Emon reported that Respondent was questioned and disclosed that she was prescribed Percocet and Vicodin due to back pain. Respondent made no further attempt to disclose any other information. 12. Ms. Emon further reported that she was notified that Respondent’s password was associated with thirty vials of missing Fentanyl. 13. Upon the discovery of the missing vials, Ms. Emon was informed by PVH staff that Respondent stated she was ill and went home after submitting her urine drug screen. 14. Ms. Emon also reported that PVH staff discovered that Fentanyl in the Pain/Endoscopy Clinic, where Respondent worked, had been tampered with. Specifically, the contents of the vials had been replaced with clear fluid (later determined to be saline), with the vial covers glued back on. 15. PVH used an AcuDose-Rx medication-dispensing machine. After a comparison of the AcuDose-Rx report with the applicable medical records, the following discrepancies associated with Respondent’s password were discovered by PVH staff: a) On or about December 7, 2010, at 5:21 p.m., Respondent, who supposedly had gone home sick, accessed the AcuDose-Rx machine and self-reported that she removed one Fentanyl 0.05mg/5ml vial for Patient P.A. However, Patient P.A. was not ordered to receive that medication. According to the AcuDose-Rx report, which is based on the user’s entries, a discrepancy was created. The beginning amount of Fentanyl was recorded as thirty vials, but the end quantity was actually twenty vials after Respondent supposedly removed only one vial of Fentanyl. Ten vials of Fentanyl were not accounted for in this transaction, since there was no order for Fentanyl for Patient P.A. b) On or about December 8, 2010, at 3:54 a.m., Respondent, who was not scheduled to work at this time, accessed the AcuDose-Rx machine and self-reported that she removed one Fentanyl 0.05mg/5ml vial for Patient M.F. According to the AcuDose-Rx report, a discrepancy was created. The beginning amount of Fentanyl was previously recorded by Respondent as containing twenty vials, but the end quantity was listed as thirty vials by Respondent after the transaction. Thus, ten vials of Fentanyl were supposedly replaced by Respondent after she accessed the AcuDose-Rx machine. c) On or about December 8, 2010, at 4:18 a.m., Respondent, who was not scheduled to work at this time, again accessed the AcuDose-Rx machine and reported that she removed one Fentanyl 0.05mg/5ml vial for Patient C.A. According to the AcuDose-Rx report, a discrepancy was created. The beginning amount of Fentanyl was reported as thirty vials with an end quantity reported of one vial after Respondent’s access. Twenty-nine vials of Fentanyl were not accounted for according to the AcuDose-Rx machine, which is based on the user’s report as to how many vials remain. Later, PVH staff discovered that all thirty vials of Fentanyl were actually missing from the AcuDose-Rx machine.

16. On or about March 15, 2011, Ms. Emon explained to Board staff that when users, such as Respondent, access the AcuDose-Rx machine, they self-report the amounts of medications, such as Fentanyl, remaining in the AcuDose-Rx machine and as reflected on the report. Ms. Emon stated that a total of thirty vials of Fentanyl were actually missing after Respondent’s December 7-8, 2010, improper withdrawals, as discovered by Barbara Armstrong, the Day Charge Nurse, who checked the supply in the morning of December 8, 2010. 17. Ms. Emon stated that Respondent was assigned to the 3:00 p.m to 11:00 p.m shift, and she was often the only nursing staff on duty during that time since the surgical suite was not typically used after approximately 5:00 p.m. to 6:00 p.m. Respondent was in a charge role and had access to all AcuDose-Rx machines in the surgical suite and other medications. 18. Respondent had reported that she had gone home sick on December 7, 2010, before the first suspicious entry under Patient P.A.’s record described above. 19. Respondent was not scheduled to work in the early morning hours of December 8, 2010, when she made the additional early morning withdrawals under Patient M.F’s and Patient C.A.’s records described above. 20. Respondent was a “no call no show” for her regular shifts on December and 9, 2010, beginning at 3:00 p.m. 21. According to Ms. Emon, the operating room area was typically shut down with no patients or staff on the unit during the times reflected on the AcuDose-Rx audit on December 7 and 8, 2010. 22. On or about December 7, 2010, Patient T.W., who was undergoing a colonoscopy, inexplicably experienced severe pain despite having been administered what was labeled Fentanyl. The physician conducting the colonoscopy terminated the procedure early due to Patient T.W.’s extreme discomfort. 23. Patient T.W. received extra units of Fentanyl from bottles that may have been tampered with, similar to the other Fentanyl vials PVH discovered in which the Fentanyl solution had been removed and replaced with saline. 24. Patient T.W. was required to have an extended stat in the Post Anesthesia Care Unit (“PACU”) due to providers’ concerns regarding Patient T.W. having received a large does of what PVH providers thought was Fentanyl. The physician indicated in his notes from the procedure that Patient T.W. would require general anesthesia when the procedure was later completed. The notation was entered prior to PVH discovering the Fentanyl that had been tampered with. 25. On or about December 7, 2010, Respondent submitted a for-cause urine drug screen to PVH that tested positive for cocaine. PVH management tested all staff with access to the Fentanyl. 26. On or about December 8, 2010, Ray Wilson, Director of Pharmacy at PVH, conducted a hospital-wide audit related to the missing Fentanyl. He reported the theft of a total of fifty-nine vials of Fentanyl 0.05mg/ml, allegedly by Respondent. Respondent was identified as the prime suspect because of her access of the AcuDose-Rx machine. 27. On or about January 24, 2011, PVH staff tested a sample of the fluid obtained from the Fentanyl bottles that had been tampered with, and discovered that Respondent allegedly replaced the Fentanyl with saline. 28. On December 9, 2010, Respondent overdosed on an unknown substance in an attempted suicide. Respondent reported that she was depressed over loneliness and finances. 29. Respondent’s boyfriend, Scott Trauthevein, reported finding a syringe sticking out of Respondent’s arm with blood drips on her socks. Mr. Trauthevein showed Phoenix Police Officer Reuben Contreras a twenty- milliliter vial labeled Propofol (Diprivan) and a vial filled approximately an eighth full of Propofol that he found on the kitchen counter. Also, Mr. Trauthevein showed Officer Contreras a syringe of what appeared to be the same substance colored pink (presumably mixed with blood) and a used syringe with blood sprinkled on the tip of the needle and on the countertop under the needle. 30. Mr. Trauthevein reported Respondent previously attempted a similar overdose by ingesting pills in Phoenix approximately two years ago and had been taken to PVH for treatment. 31. Respondent initially denied injecting herself with a syringe. She was transported to John C. Lincoln Hospital. 32. On or about December 9, 2010, Respondent submitted a urine drug screen at John C. Lincoln Hospital that was reported as positive for Benzodiazepines and Opiates. 33. On or about December 9, 2010, Respondent was admitted to Banner Good Samaritan Behavioral Health (“Banner”) in Phoenix for major depressive affective disorder, severe. 34. According to the Banner medical records, Respondent was referred to Scottsdale Behavioral Health for intensive outpatient treatment to begin on December 13 2010. Respondent never reported for this treatment. 35. On or about December 10, 2010, Respondent’s employment at PVH was terminated for violation of the attendance policy. Respondent received a total of twelve points, which results in dismissal, for her “no call, no show” on December 8 and 9, 2010. 36. On or about December 17, 2010, Board staff mailed an investigative questionnaire to Respondent at her address on record with the Board. The mailing was returned to the Board on December 20, 2010, as “undeliverable.” Board staff then also mailed a questionnaire on December 17, 2010, to Respondent at an alternate address reported in the complaint from PVH. That mailing was not returned to the Board from the second address, but Respondent has not responded. 37. On or about February 1, 2011 and February 10, 2011, Board staff left voice mail messages for Respondent at her telephone number on record with the Board, asking Respondent to contact Board staff. Respondent did not respond. 38. Correspondence that was mailed to Respondent by Board staff on January 20, 2011, and January 24, 2011, was returned to the Board on February 28, 2011, as “undeliverable.” 39. The evidence of record established that the Board’s summary suspension of Respondent’s nursing license required emergency action to protect 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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1601(18) (d) (Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public). The above Findings of Fact support this conclusion. 4. Respondent violated the provisions of A.R.S. § 32-1601(18) (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). The above Findings of Fact support this conclusion. 5. Respondent violated the provisions of A.R.S. § 32-1601(18) (g) (Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter). The above Findings of Fact support this conclusion. 6. Respondent violated the provisions of A.R.S. § 32-1601(18) (h) (Committing an act that deceives, defrauds or harms the public). The above Findings of Fact support this conclusion. 7. Respondent violated the provisions of A.R.S. § 32-1601(18) (j) (Violating this chapter or a rule that is adopted by the board pursuant to this chapter), specifically: a) A.A.C. R4-19-308(B) (A licensee or applicant shall notify the Board of any change in mailing address within 30 days); b) A.A.C. R4-19-403(1) (A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice). c) A.A.C. R4-19-403(7) (Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient). d) A.A.C. R4-19-403(8) (Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record). e) A.A.C. R4-19-403(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). f) A.A.C. R4-19-403(16) (Removing, without authorization, a narcotic, drug, controlled substance, supply, equipment, or medical record from any health care facility, school, institution, or other work place location). g) A.A.C. R4-19-403(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). h) A.A.C. R4-19-403(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). i) A.A.C. R4-19-403(25)(a) (Failing to…Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664); and j) A.A.C. R4-19-403(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) (effective date November 12, 2005). 8. The conduct and circumstances described in the above Findings of Fact constituted sufficient grounds for the Board to have summarily suspended Respondent’s nursing license, pursuant to A.R.S. §§ 41- 1064(C) and 41-1092.11(B), pending an administrative hearing to protect the public health, safety and welfare. 9. Pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664, the Board has the power to discipline Respondent’s nursing license for the above- described statutory and regulatory violations. RECOMMENDED ORDER The Board’s emergency action to summarily suspend Respondent’s License No. RN145576 to protect the public health, safety, and welfare is upheld and affirmed. Respondent’s License No. RN145576 shall be revoked on the effective date of the Order entered in Complaint No. 1012006. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. Done this day, May 4, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, FAAN, Executive Director State Board of Nursing -----------------------

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