ALJDEC decisions subject to certification as final

13A-1205002-NUR · State Board of Nursing · 2013-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2013 with the record held open until November 26, 2013 APPEARANCES: No one appeared for Respondent; Assistant Attorney General Carrie H. Smith appeared for the State Board of Nursing ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona. 2. On August 8, 2013, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 8:00 a.m. September 20, 2013 at the Office of Administrative Hearings in Phoenix, Arizona. 3. Respondent Carolyn Jean Mick did not appear at the scheduled time and the matter was convened in her absence at about 8:25 a.m. 4. The Board presented the testimony of Opal Wagner, R.N., a nurse practice consultant employed by the Board, and Anna Ellis, R.N. and Kirsti Rusanen, L.P.N. who are both employed by the Beatitudes Healthcare Center (“Beatitudes”). 5. Ms. Wagner has been employed as a nurse practice consultant for two years and has been an RN for nine years. Ms. Wagner conducted the Board’s investigation in this matter. Exhibit 1 is Ms. Wagner’s Investigative Report. 6. Ms. Mick holds Registered Nurse License No. RN157290, which was issued by the Board on April 14, 2009. Ms. Mick’s License was summarily suspended by the Board in an Order dated July 26, 2013. 7. On May 2, 2012, the Board received a complaint from the Beatitudes alleging that: on April 8, 2012, Ms. Mick had signed out two Percocet tablets for a patient who denied asking for or receiving the tablets; on April 14, 2012, Ms. Mick was observed to have nodded off at the medicine cart and almost fell asleep during her shift report; and on April 15, 2012, Ms. Mick twice signed out two Percocet tablets for a patient for whom the doctor’s order was for one tablet at a time. 8. Ms. Ellis is a lead charge nurse at the Beatitudes. 9. On April 14, 2012, Ms. Ellis twice observed Ms. Mick to be very drowsy and when Ms. Ellis asked about her condition, Ms. Mick gave inconsistent reasons for why she was so tired. 10. Later on April 14, 2012, Ms. Ellis observed that Ms. Mick almost fell asleep at the medicine cart in that Ms. Mick’s head jerked and her knees buckled causing her to fall toward the cart. 11. On April 14, 2012, Ms. Rusanen also observed Ms. Mick to be so drowsy that Ms. Rusanen thought Ms. Mick might fall asleep while Ms. Mick was giving her shift report. 12. On April 16, 2013, it was brought to Ms. Ellis’s attention that there was an issue regarding Percocet for patients DA and SC. Ms. Ellis checked the medication administration record (“MAR”) and found that Ms. Mick had checked out two Percocets for patient DA, but that patient, who was lucid, stated that she did not ask for or get any Percocet. The MAR for SC showed that Ms. Mick had twice signed out for two Percocets for SC, when SC’s order was for one Percocet at a time. 13. With regard to the Percocet administered to SC, Ms. Wagner’s review of the pertinent medical records revealed that Ms. Mick did not properly document the incident because Ms. Mick did not provide the reason for administering the Percocet and she did not follow-up with an assessment-entry showing whether the Percocet was effective. 14. Ms. Wagner also found that Ms. Mick did not properly document DA’s records for April 8, 2012. Although Ms. Mick made an entry in DA’s records showing that she had administered two Percocets at 16:00 hours, this entry was not properly documented in the Flow Sheet because there was no entry showing why the Percocets were administered and whether they were effective. 15. Ms. Mick did make an entry in DA’s Nurse’s Notes for April 8, 2012, but Ms. Wagner found that the reason for which Ms. Mick administered the Percocet was illegible. 16. Ms. Wagner reviewed the Beatitudes’ Policies and concluded that Ms. Mick had violated a number of those policies including: failing to follow physician’s orders because Ms. Mick administered two Percocet to SC when the order called only for one; and failing to properly document medication dosages, the reason for providing medication, and the patient’s response to the medication. 17. Ms. Wagner testified that proper record keeping is important because doctors rely on the records to determine the appropriate treatment and they need to know if medications provided are effective. 18. On April 16, 2012, Ms. Mick underwent a urine drug screen that was positive for morphine, which is an opiate. Percocet in pill form would appear as an opiate in a urine drug screen and can stay in a person’s system for up to three days. 19. By testing positive for morphine, Ms. Mick violated the Beatitudes’ Drug and Alcohol Policy and she was terminated from her employment. 20. Although Ms. Mick told the Board and the Beatitudes that she could provide a prescription for the use of opiates, she never provided either with a prescription for the time of the positive urine drug screen. 21. Ms. Wagner subpoenaed Ms. Mick’s medical records, which show a history of substance abuse issues. 22. Exhibit 5 consists of Ashish Jain, M.D.’s notes related to a psychiatric evaluation of Ms. Mick conducted on May 15, 2012.[1] 23. Dr. Jain’s notes show that Ms. Mick admitted that she had used both Xanax and Vicodin off and on beginning in 1989, but that she had not used these drugs in the eight months prior to the evaluation. Dr. Jain’s diagnoses included a history of opiate and benzodiazepine abuse. 24. Exhibit 6 consists of records prepared by William Riley, M.D. In an examination report dated December 30, 2011, Dr. Riley wrote that Ms. Mick acknowledged that she had used her husband’s Ativan. 25. In a progress note dated February 23, 2012, Dr. Riley wrote that he would not renew Ms. Mick’s prescription for Ativan due to her past Xanax addiction. 26. Dr. Riley referred Ms. Mick for a psychiatric examination due in part to her history of benzodiazepine abuse. 27. Dr. Riley also included an assessment finding that Ms. Mick suffered from sedative, hypnotic, or anxiolytic dependence. Ms. Wagner testified that an anxiolytic is in the same category or class of drug as benzodiazepines. 28. Exhibit 7 consists of records from a March 4, 2012 intake assessment of Ms. Mick for an inpatient stay at Aurora Behavioral Health Systems. 29. The Aurora intake assessment records show that: a. Ms. Mick reported panic attacks when she could not get her Ativan prescription refilled after February 2, 2012. b. Ms. Mick acknowledged taking her husband’s lorazepam (Ativan). c. Ms. Mick took more lorazepam right before the intake assessment. d. Ms. Mick and her husband each expressed the fear that she would continue to self-medicate if she returned home. 30. During the intake assessment for Aurora, Ms. Mick denied any history of substance abuse. 31. Ms. Mick informed Aurora that she had requested Dr. Riley to wean her off Ativan, but would not do so and he advised her to go see a psychiatrist. 32. Exhibit 8 is a ConnectionsAZ, Inc. intake form dated May 7, 2012. At that time, Ms. Mick reported having just gotten out of detox for opiates and she reported last using oxycodone one month before the intake assessment. One month before the assessment was about the time that the issues regarding Ms. Mick’s dispensing of Percocet at the Beatitudes occurred. 33. Ms. Wagner’s opinion is that the ConnectionsAZ forms show that Ms. Mick did not disclose that she had had any problems with benzodiazepine. 34. Exhibit 9 consists of records from treatment provided to Ms. Mick in June 2012 by Martha Hernandez, a psychiatric mental health practitioner. 35. Ms. Hernandez prescribed Ativan, which in Ms. Wagner’s opinion shows that Ms. Mick did not disclose her history of benzodiazepine abuse. 36. Ms. Hernandez’s records show that Ms. Mick reported a February 2012 relapse of opiate use. 37. Exhibit 10 consists of records from an evaluation conducted on July 5, 2012 by Rob Ashby, M.D. 38. Dr. Ashby’s records show that Ms. Mick wanted “to get rid of” her craving for opiates. Dr. Ashby’s records also show that Ms. Mick had used Vicodin from 2005 to 2007, that her drugs of choice were oxycodone and benzodiazepines, that these drugs had come from family and friends, and that her drug use had caused her financial and legal difficulties. 39. Ms. Wagner’s opinion is that getting drugs from family and friends is a sign of addiction. 40. In many of her medical records, Ms. Mick reported anxiety. Ms. Wagner testified that anxiety and drug withdrawal can have the same symptoms. 41. Dr. Ashby’s records also show that Ms. Mick was using Suboxone, which is prescribed for withdrawal from opiates. 42. Dr. Ashby’s records show that Ms. Mick tested positive for opiates on July 5, 2012. 43. Ms. Mick told Dr. Ashby that she had a prescription for the opiates. But Ms. Wagner accessed the Drug Enforcement Administration’s database and subpoenaed Ms. Mick’s pharmacy records and, upon review, concluded that Ms. Mick did not have a valid prescription at that time. 44. Dr. Ashby’s records show that Ms. Mick suffers from opiate dependence, her history was suspect, and Ms. Hernandez had dismissed her as a patient because she took a month’s worth of lorazepam in a week. 45. Exhibit 11 consists of records dated June 13, 2013, from D.L. Fortson, M.D. a family practitioner. 46. Dr. Fortson’s records show that Ms. Mick was doing well on Suboxone, but she had taken Vicodin, which in Ms. Wagner’s opinion was a relapse. 47. Ms. Mick provided a written response to a Board questionnaire, which is Exhibit 12. 48. Ms. Wagner found discrepancies in the employment history Ms. Mick provided to the Board. Ms. Mick reported that she worked at National Home Savers and Dyer Nursing and Rehab, but neither entity had a record of her working there. 49. Ms. Mick’s records show that her son had fired her as the private duty nurse for Ms. Mick’s mother because Ms. Mick was stealing from her mother. 50. At Ms. Mick’s request, Ms. Wagner conducted an interview before she had completed the rest of her investigation, whereas the normal procedure is to wait until the rest of the investigation is complete. The interview was conducted on May 16, 2013. 51. On May 16, 2013, prior to the interview, at Ms. Wagner’s request Ms. Mick took underwent a 12 panel drug screen the results of which were negative. 52. During the interview: a. Ms. Mick denied any wrong-doing while at the Beatitudes. Ms. Mick denied that her knees buckled and claimed that this was a false report by a nurse who did not like her, but she also stated that she could not recall the name of that nurse. b. Ms. Mick stated that she made an error on April 15, 2013 when she twice signed out two Percocets for patient SC rather than one. When asked what happened to the two additional Percocets, Ms. Mick provided no explanation. c. Ms. Mick stated that she had provided the patient DA with the Percocet and that DA had lied when she stated that Ms. Mick did not do so. d. Ms. Mick stated that she had a prescription that would account for the positive drug test on April 16, 2012. When asked what opiates she had taken prior to that positive drug test, Ms. Mick stated that she had taken Vicodin before work because she had a toothache. Ms. Mick also stated that she had a prescription for Vicodin that was about six months old as of April 2012. 53. At the time of the positive drug test, Ms. Mick could not provide the Beatitudes with prescription bottles and her employment was terminated. During the interview, Ms. Mick stated that the Beatitudes could have called her doctor, but did not do so. Ms. Wagner testified that Ms. Mick provided no explanation for her own failure to do so. 54. Ms. Wagner’s review of Ms. Mick’s pharmacy records showed that Ms. Mick’s last prescription for Vicodin was about nine months before the April 16, 2012 drug test. The records review also showed that Ms. Mick had been prescribed Percocet about seven and a half months before the incident. 55. During the interview, Ms. Mick told Ms. Wagner that the only time she had taken narcotics prior to work was on April 16, 2012. Ms. Wagner’s opinion is that Ms. Mick’s medical records do not support her denial because those records show that she had an opiate addiction. 56. When asked about her medical records showing she was admitted to Aurora for a relapse of opiate abuse, Ms. Mick denied that there had been a relapse. This was significant to Ms. Wagner because it shows that Ms. Mick was in denial about her addiction. 57. During the interview, Ms. Mick made statements about her prescription drug use that were not supported by Ms. Wagner’s review of Ms. Mick’s pharmacy records. 58. During the interview, Ms. Mick told Ms. Wagner that she had not used any illegal drugs, but her medical records show that she told Dr. Ashby that she used methamphetamine from 1982 to 1984 and that she told Dr. Jain that she had once been fired for a positive test for cocaine. 59. During the interview, Ms. Mick stated that she was attending peer groups including Narcotics Anonymous. 60. During the interview, Ms. Mick stated that she was not taking Suboxone at that time, but Ms. Wagner did not find that statement to be consistent with Ms. Mick’s pharmacy profile. 61. During the interview, Ms. Mick stated that she had never been fired except from the Beatitudes, but Ms. Wagner’s review of Ms. Mick’s medical records showed that she had acknowledged previously being fired for a positive drug screen. 62. Ms. Wagner found that Ms. Mick was in denial about her drug addictions, which is a problem because the first step in treatment is to acknowledge the problems. 63. The Board considered Ms. Mick’s case at a meeting in July 2013. At that time, Ms. Wagner recommended that Ms. Mick’s license be summarily suspended because Ms. Mick was a significant imminent risk to the public based on her long history of addiction to opiates and benzodiazepines, which included relapses and being fired for positive drug tests. 64. To Ms. Wagner, that Ms. Mick almost fell asleep at the Beatitudes suggested that Ms. Mick was a severely compromised individual who was not safe to care for patients. 65. Ms. Mick’s admitted use of her husband’s drugs and her admissions of withdrawal presents an additional concern to Ms. Wagner with regard to allowing Ms. Mick to work in an environment where drugs would be available and presents the risk that she would divert drugs. 66. Ms. Wagner’s opinion is that Ms. Mick was dishonest about her drug use during her interview and that she had been dishonest with her doctors as well. 67. Ms. Wagner’s opinion is that Ms. Mick is not safe to practice. 68. Ms. Mick did not respond to the Notice of Summary Suspension, which along with the interview led Ms. Wagner to conclude that Ms. Mick is not amenable to regulation. 69. The testimony of all three witnesses is found to be credible and reliable. CONCLUSIONS OF LAW 1. The Board bears the burden of persuasion. A.R.S. § 41- 1092.07(G)(2). 2. The standard of proof on all issues is that of a preponderance of the evidence. A.A.C. R2-19-119. 3. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the 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 1182 (6th ed. 1990). 4. The preponderance of the evidence shows that Ms. Mick has a long history of drug use and that her drug use is conduct that might be harmful or dangerous to the health of a patient. Consequently, Ms. Mick has violated A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or § 32-1601(16)(d) (effective May 9, 2002) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009).[2] 5. The preponderance of the evidence shows that Ms. Mick‘s drug dependence issues are such that she is mentally incompetent and physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. Consequently, Ms. Mick has violated A.R.S. § 32-1601(22)(e) (effective August 2, 2012) and/or § 32-1601(16)(e) (effective May 9, 2002) and/or A.R.S. § 32-1601(18)(e) (effective September 30, 2009). 6. The preponderance of the evidence shows that Ms. Mick has willfully and repeatedly violated provisions of A.R.S. Title 32, Chapter 15 and rules adopted pursuant to that Chapter. Consequently, Ms. Mick has violated A.R.S. § 32-1601(22)(g) and (j) (effective August 2, 2012) and/or § 32-1601(16)(g) and (j) (effective May 9, 2002) and/or A.R.S. § 32-1601(18)(g) and (j) (effective September 30, 2009). 7. The preponderance of the evidence shows that while employed at the Beatitudes, Ms. Mick checked out two Percocet tablets but did not provide these tablets to a patient. Consequently, Ms. Mick has committed an act that deceives, defrauds, or harms the public within the meaning, and in violation of A.R.S. § 32- 1601(22)(h) (effective August 2, 2012) and/or A.R.S. § 32- 1601(18)(h) (effective September 30, 2009). 8. The preponderance of the evidence shows that Ms. Mick has demonstrated a pattern of failing to maintain the minimum standards of acceptable nursing practice. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19- 403(1), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or § 32-1601(16)(d) (effective May 9, 2002) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009). 9. The preponderance of the evidence shows that Ms. Mick has failed to accurately maintain patient records and that she made false, incorrect, and unintelligible entries in medical records. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19-403(7) and (8), which are also violations of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009). 10. The preponderance of the evidence shows that Ms. Mick failed to follow the Beatitudes’ procedures designed to safeguard patients. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19-403(9), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009). 11. The preponderance of the evidence shows that Ms. Mick removed without authorization Percocet tables from a workplace location at the Beatitudes. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19-403(16), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009). 12. The preponderance of the evidence shows that Ms. Mick has a long history of drug use and addiction to the extent her judgment may be impaired and her nursing practice detrimentally effected. The preponderance of the evidence also shows that Ms. Mick was under the influence of drugs while at work at the Beatitudes. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19-403(17), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or § 32- 1601(16)(d) (effective May 9, 2002) and/or A.R.S. § 32- 1601(18)(d) (effective September 30, 2009). 13. The preponderance of the evidence shows that Ms. Mick used narcotics in violation of the Beatitudes’ Drug and Alcohol policy. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19-403(18), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009). 14. The preponderance of the evidence shows that Ms. Mick in her response to the Board’s questionnaire made written false or inaccurate statements to the Board. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19- 403(26), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012). 15. The preponderance of the evidence shows that Ms. Mick has practiced in a manner that gives reasonable cause to believe a patient or the public may be harmed. Consequently, Ms. Mick has committed unprofessional conduct as defined in A.A.C. R4-19- 403(31), which is also a violation of A.R.S. § 32-1601(22)(d) (effective August 2, 2012) and/or § 32-1601(16)(d) (effective May 9, 2002) and/or A.R.S. § 32-1601(18)(d) (effective September 30, 2009) 16. Because Ms. Mick has committed acts of unprofessional conduct, the Board may take disciplinary action against her license. A.R.S. §§ 32-1663(D) and 32-1664(N). 17. Considering the facts and circumstances of this matter, it is recommended that Ms. Mick’s license be revoked. RECOMMENDED ORDER IT IS ORDERED that Carolyn Jean Mick’s Registered Nurse License No. RN157290 is revoked. . 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, December 5, 2013.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] At that time Ms. Mick was known as Carol J. Wright and she has also been known as Carolyn Fitzhugh. [2] Unprofessional conduct is defined in A.R.S. § 32-1601(22) (effective August 2, 2012). The Complaint and Notice of Hearing shows that prior to the effective date of that statute, unprofessional conduct was defined in A.R.S. § 32-1601(16) (effective May 9, 2002) and A.R.S. § 32-1601(18) (effective September 30, 2009). In the Complaint, for each alleged act of unprofessional conduct, the Board cites in the alternative all three versions of the statute.

After the hearing concluded, the Administrative Law Judge issued an Order directing the parties to submit legal argument related to these changes and the allegations in the Complaint. Ms. Mick did not file any legal argument. In its response, the Board confirmed that the statutes had been renumbered but the substance of the statutes had not been altered.

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