ALJDEC decisions subject to certification as final

12A-1210062-NUR · State Board of Nursing · 2013-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2013, with the record held open until February 28, 2013. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. Respondent Thea Grijalva did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L.Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure The Arizona State Board of Nursing (the Board) has the authority to regulate and control the practice of nursing in the State of Arizona pursuant to A.R.S. §§ 32-1606, 1663, and 1664. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667. In 2006, the Board issued Registered Nurse License No. RN140479 to Respondent Thea Grijalva to allow her to practice nursing in the State of Arizona. On October 24, 2012, the Board received a complaint from Julie Hahn alleging that Respondent had physically abused Ms. Hahn’s 10-month-old twin foster children while she was caring for them. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On January 8, 2013, the Board issued a Complaint and Notice of Hearing and Summary Suspension, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012), and A.A.C. R4-19-403(2) and (31) (2009). The Complaint and Notice of Hearing was sent via certified mail to Respondent at her address of record. A hearing was held on February 14, 2013. The Board submitted two exhibits and presented the testimony of three witnesses: (1) Officer Evan Kudler, Glendale Police Department, (2) Julie Hahn, and (3) Daniel Hahn. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Although the start of the hearing was delayed 25 minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her Registered Nurse license. Hearing Evidence Respondent was employed by the Loving Care nursing agency. On October 8, 2012, Respondent reported to the Hahns’ residence in the afternoon for a seven-hour shift. Mr. and Ms. Hahn left the home with their 13-year-old daughter. Respondent was alone caring for the 10-month-old twins S.B. and L.B. The twins each had special needs including feeding tubes. L.B. also had a peripherally inserted central catheter (PICC) line in his arm. After the Hahns ate dinner, they returned to the home to put their leftovers in the refrigerator. The Hahn’s daughter went into the home to complete the errand. When the Hahn’s daughter entered the home, Respondent began asking her questions about the surveillance cameras she observed in the living area. Respondent asked if the cameras were on, how to tell if they were on, how to turn them off, and other similar questions. When the Hahn’s daughter returned to the car, she related Respondent’s questions to Mr. and Ms. Hahn. Ms. Hahn sent Respondent a text message indicating that if she had any questions about the cameras, she could call Ms. Hahn. The Hahns returned for the evening at approximately 10:45 p.m. At approximately 11:00 p.m., Respondent left. The Hahns then began watching the video from the surveillance cameras. The Hahns observed multiple incidents of physical abuse and neglect during the video. The Hahns called 911 and Child Protective Services. Officer Kudler responded to the 911 call at approximately 2:50 a.m. on October 9, 2012. Upon his arrival, the Hahns played the video for the officer. According to the police report, Officer Kudler made the following observations: MR. HAHN, OPERATED THE VIDEO HARD DRIVE AND QUE’D UP A RECORDED INCIDENT THAT OCCURRED AT APPROXIMATELY 2:56PM. THE RECORDING DEPICTS [RESPONDENT] FLINGING [S.B.] THROUGH THE AIR HOLDING HER BY THE ARM.

AT APPROXIMATELY 3:00 PM, [RESPONDENT] IS OBSERVED ON THE VIDEO FORCING [S.B.’S] HEAD DOWN ONTO THE FLOOR AND WITH HER HAND. [RESPONDENT] THEN HOLDS [S.B.’S] HEAD DOWN SO THE CHILD COULD NOT MOVE SAME.

AT APPROXIMATELY 3:15 PM, THE VIDEO DEPICTS [RESPONDENT] LIFTING [L.B.] UP OFF OF THE FLOOR BY GRABBING HIS ARMS AND LIFTING STRAIGHT UP INTO THE AIR. SHE WAS HOLDING THE CHILD UNSUPPORTED BY HIS ARMS.

AT APPROXIMATELY 0326 HRS, [RESPONDENT] IS OBSERVED ON VIDEO GRABBING [S.B.] BY HER HEAD AND FORCIBLY PUSHING IT DOWN TOWARDS THE FLOOR.

AT APPROXIMATELY 3:29 PM, [RESPONDENT] IS SEEN PUSHING [S.B.], WHO WAS STANDING HOLDING ONTO THE COUCH. [S.B.] FELL FORWARD, STRIKING HER FACE AND HEAD INTO A WIRE MESH BASKET THAT WAS ON THE FLOOR.

AT APPROXIMATELY 4:34 PM., [RESPONDENT] WAS SITTING ON THE COUCH IN THE FAMILY ROOM. [S.B.] WAS SITTING ON [RESPONDENT’S] LAP, NOT BEING HELD OR SECURED IN ANY MANNER. [RESPONDENT] WATCHED [S.B.] CRAWL FROM HER LAP AND FALL HEAD FIRST TO THE FLOOR. [RESPONDENT] MADE NO ATTEMPT TO PREVENT [S.B.] FROM CRAWLING OUT OF HER LAP AND FALLING. SHE MADE NO OVERT ATTEMPTS TO PROTECT THE CHILD FROM FALLING. AFTER [S.B.] FELL, [RESPONDENT] DID NOT IMMEDIATELY TEND TO THE CHILD. SHE JUST SAT ON THE COUCH AND WATCHED HER ON THE FLOOR.

Exhibit 1. Officer Kudler took custody of the hard drive. Officer Kudler contacted dispatch and requested that the Glendale Fire Department respond to check the children for injuries. The children were transported by ambulance to Phoenix Children’s Hospital for evaluation and treatment. The children underwent x-rays. Neither child was found to have any serious bodily injury. S.B. had some swelling and a bruise on her forehead. Due to the manner in which the hard drive was disconnected from the power supply, the video was lost and could not be recovered. Ms. Hahn reported that both children have exhibited changes in their emotional responses to people. Prior to the date of the incident, the children were happy and friendly. Since the incident, S.B. screams and cries around new people and L.B. is very “standoffish.” CONCLUSIONS OF LAW The Complaint and Notice of Public Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004). The Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012),[1] and A.A.C. R4-19-403(2) and (31) (2009).[2] Given Respondent’s egregious behavior and her failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time. In light of the risk of potential harm to patients, the Board established cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1663(D)[3] and A.R.S. § 32-1664(N).[4] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Thea Grijalva’s Registered Nurse License No. RN130944. It is further recommended that the Board revoke Respondent Thea Grijalva’s Registered Nurse License No. RN130944. 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 days from the date of that certification. Done this day, March 20, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012) define “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public;” “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter;” “[c]ommitting an act that deceives, defrauds or harms the public;” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [2] This rule further defines “unprofessional conduct” to include failing to “[i]ntentionally or negligently causing physical or emotional injury,” and “[p]racticing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.” [3] A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. [4] A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

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