ALJDEC decisions subject to certification as final

13A-1207029-NUR · State Board of Nursing · 2017-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED

NURSE LICENSE NO. RN157733

ISSUED TO:

YOON CHOI,

RESPONDENT

No. 13A-1207029-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 11, 2017

APPEARANCES: Yun Choi (Yoon Choi), Respondent; Michael Raine, Attorney for the Arizona Board of Nursing; Janeen Dahn, witness; Debora Mitchell, court reporter

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

FINDINGS OF FACT

The hearing in this matter convened to determine whether grounds exist to take disciplinary action, including suspension or revocation against Yoon Choi (“Respondent”). On December 6, 2016, the Arizona Board of Nursing (“Board”) issued a Complaint and Notice of Hearing to Respondent. It set forth the alleged facts concerning the Complaint as follows:

IV. FACTUAL ALLEGATIONS

1. Yoon Choi (“Respondent”) holds Board issued registered nurse license no. RN157733, originally issued June 1, 2009.

2. In Respondent’s written response to the Investigative Questionnaire, dated October 18, 2012, Respondent disclosed a felony arrest for “possession of ‘Morphine Sulfate’ vial” in September, 2002, in Oakland, California. Respondent wrote that she pled guilty and attended AA five times/week for a year, after which time the charges were dismissed. On or about July25, 2012, and again on or about January 16, 2013, Respondent stated to Board staff that she inadvertently removed a partially used vial of Morphine, a pain medication and controlled substance, from Kaiser Hospital in Oakland, California, placed the vial in her car and was subsequently pulled over 2-3 months later and charged with possession of a controlled substance-narcotic without a valid prescription. In a letter that the Board received on January 9, 2014, Respondent again admitted that the incident occurred but stated that she took a “closed morphine syringe,” not an “open vial.” Respondent’s conduct violated the standard of care, which requires a nurse to immediately waste all controlled substances that were not administered to a patient, and to not remove controlled substances from a facility. On or about May 27, 2009, Respondent submitted a request for a temporary license to the Board and incorrectly answered “no” to the question of whether she had been charged with or pled guilty to a felony.

3. On or about September 9, 2010, while employed as a RN at Maryvale Hospital in Maryvale, Arizona, Respondent inserted an IV line in the right arm of a patient diagnosed with a right arm deep vein thrombosis, placing the patient at risk for complications, without assessing or reviewing the patient’s medical history. This violated the standard of care for Arizona nurses that requires that a nurse assess possible IV sites for suitability including reviewing the patient’s medical history to determine history of mastectomy, stroke, shunts or other injuries/conditions such as a history of deep vein thrombosis in the extremity that would render placement of the IV in a particular site unsuitable or unsafe for the patient.

4. On or about May 6, 2012, while employed as an RN at Arizona Heart Hospital in Phoenix, Arizona, Respondent fell asleep during her break, overslept by an hour, and failed to notify her co-workers regarding where they could find her, in violation of the hospital’s policies and procedures, entitled “Work Conditions and Pay – Meal and Rest Periods.”

5. On or about May 8, 2012, while employed as an RN at the Arizona Heart Hospital in Phoenix, Arizona, Respondent claimed she conducted frequent cardiac checks and assessments of patient L.M., but did not document the alleged cardiac checks and assessments in L.M.’s medical record. This violated the standard of care for Arizona nurses that requires nurses to conduct frequent cardiac checks and to document them in the patient’s medical record

6. On or about May 8, 2012, Respondent also put L.M.’s cardiac monitor on “standby status,” believing that it was malfunctioning, but failed to take patient L.M.’s cardiac monitor off “standby status” and failed to properly determine whether patient L.M.’s cardiac monitor was functioning properly in violation of the hospital’s policy entitled “Cardiac Monitoring.” The standard of care for Arizona nurses requires nurses to troubleshoot all malfunctioning equipment and notify appropriate personnel of the non-functioning equipment, not unilaterally place it in “standby status,” and instead obtain either another telemetry monitoring pack or a bedside cardiac monitor. Respondent’s failure to properly activate L.M.’s cardiac monitor or obtain alternative monitoring equipment meant that L.M.’s heart was not monitored and no hospital staff were aware that L.M.’s condition deteriorated until L.M. had a cardiac arrest and expired during Respondent’s shift.

7. Respondent also failed to ensure that cardiac monitoring strips for patient L.M. were obtained and analyzed at least twice during her shift in violation of the hospital’s “Cardiac Monitoring” policy and the standard of care for Arizona nurses, which requires these actions. In addition, on or about May 8, 2012, at or around 2144 and 2145, patient L.M.’s cardiac rhythm per pacemaker history was “V-Tach with conversion,” but Respondent failed to document this dysrhythmia in L.M.’s medical record or notify the physician, as required by the standard of care for Arizona nurses, and in violation of the hospital’s “Cardiac Monitoring” policy.

8. On or about June 3, 2012, while employed as an RN at Arizona Heart Hospital in Phoenix, Arizona, Respondent fell asleep during her break and overslept, from between a half hour to an hour, in violation of the hospital’s “Work Conditions and Pay – Meal and Rest Periods” policy.

9. On or about October 18, 2012, in her response to the Board’s Investigative Questionnaire, Respondent failed to disclose she had been terminated on June 16, 2012, for sleeping at work (twice) while employed as an RN at Arizona Heart Hospital in Phoenix, Arizona.

10. On or about April 10, 2013, Respondent underwent a psychological evaluation with Phillip D. Lett, PhD. Dr. Lett concluded that Respondent would benefit from psychological intervention focusing on improving interpersonal communications and relational effectiveness, and recommended that Respondent undergo counseling with a Ph.D. level behavioral health specialist with competency treating persons with cultural differences twice a month for at least six months to differentiate a diagnosis and facilitate treatment planning and address interpersonal factors. Dr. Lett also recommended bi-monthly monitoring reports from the behavioral professional to the Board regarding compliance.

11. On or about April 30, 2013, Respondent underwent a Nurse Practice Evaluation at Arizona State University and performed below a safe level in all 9 categories (Professional Responsibility, Client Advocacy, Attentiveness, Clinical Reasoning – Noticing, Clinical Reasoning – Understanding, Communication, Prevention, Procedural Competency, and Documentation) and during all 3 scenarios, suggesting “extensive remediation” was needed related to 9 areas of nurse competencies.

The Complaint and Notice of Hearing also set forth the potential violations that the above facts implicated as follows:

V. ALLEGED VIOLATIONS

1. 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, 32-1663, 32-1664, and 41-1092.11(B). The Board also has the authority, pursuant to A.R.S. § 32-1663 and A.R.S. § 32-1664, to impose disciplinary sanctions against the holders of nursing licenses/certified nursing assistants for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1669, and A.A.C. R4-19-101 to R[4]-19-815. If the Board determines that a licensee has committed unprofessional conduct, it may take disciplinary action.

2. The conduct and circumstances described in the Factual Allegations 2 - 11 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(16)(d) and (j) and § 32-1601(18)(d) and (j) and § 32-1601(22)(d) and (j): (d) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public), and (j)(violating a rule that is adopted by the Board), and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

4. (sic) The conduct and circumstances described in Factual Allegations 2 –11 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(16/18/22)(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), and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

5. The conduct and circumstances described in the above Factual Allegations constitute unprofessional conduct pursuant to A.R.S. § 32-1601(16/18/22)(d) and (j), and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664,specifically:

Facts 2 –8: A.A.C. R4-19-4035(1) (A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice.); Facts 2 – 8: 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.); Fact 2: 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.); Facts 2- 8: 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).

At the hearing, the Board offered the sworn testimony of Janeen Dahn (“Dahn”), a PhD level nurse and a family Nurse Practitioner. She is also a Board investigator and the Associate Director for Complaints and Investigations at the Board. She testified as to the facts alleged or disclosed during the investigation and she offered her expert opinion as to how and why the facts should be considered violations of the Nurse Practice Act. Respondent submitted an answer to the Complaint and Notice of Hearing and offered her responses to the charges at the hearing.

Regarding Factual Allegation #1, Respondent agreed.

Regarding Factual Allegation #2, she did not dispute the fact of her felony arrest or the fact that she failed to disclose it to the Board in 2009. She argued that the arrest is very old and that when the case was closed, she was told that her record was sealed and she did not have to disclose it to anyone. Dahn testified that when a nurse removes a controlled substance from a hospital pharmacy and it is not all used, the proper procedure is to “waste” it in front of another nurse as a witness. She said that Respondent should have returned to the hospital when she found she had forgotten the syringe but rather than do that she kept it in her car for months and forgot about it even after her daughter found it. Dahn stated that Respondent’s actions in failing to dispose of the morphine properly speaks to Respondent’s poor judgment and that it was of special concern that Respondent admitted to forgetting the syringe on 2 additional occasions after failing to waste it the first time and taking it home with her instead. Regarding Respondent’s failure to report the conviction, Dahn stated that it is a violation to give any misinformation to the Board.

Regarding Factual Allegation #3, Respondent did not dispute that she inserted an IV in the arm of a patient who had a history of deep vein thrombosis in that arm. She argued that the diagnosis wasn’t a current diagnosis but rather only a history of the condition, so it should not be considered a violation. She also argued that the patient was new and she didn’t have time to review his history. Dahn testified that it is the standard of care to avoid, if possible, a limb with even a history of deep vein thrombosis because of the risks it poses to the patient. She said it doesn’t matter if a patient is new, the nurse is still required to read his history before beginning any treatment. Respondent argued that other hospital personnel failed to notice the problem for a long time; however, the issues with the other personnel are not the subject of this hearing and Respondent offered no evidence that such a concern should otherwise be considered relevant.

Respondent did not dispute Factual Allegation #4 except to say that the other nurses knew how to find her. She argued that she has a right to lunch time and breaks and she should be able to combine them if she wants to. Dahn testified that the hospital policy at issue did not allow Complainant to combine all her breaks into one. She further noted that nurses must do extra work to cover for each other when one goes on break so when that time extends further, the other patients go without full nursing coverage and their care may suffer for it. As for Respondent’s claim that she told someone where to find her, two hospital staff members, Demarest and Dizon, reported to Dahn that people had to go looking for Respondent on May 7, 2012. While the allegation uses May 6, 2012 as the date, it appears that the discrepancy is due to the fact that Respondent was working the night shift.

Regarding Factual Allegations #5, #6, and #7, Respondent did not deny the facts as alleged but argued that the fault lie with the hospital’s equipment and that someone else had turned it off. Dahn testified that it is the nurse’s duty to ensure that the equipment is on and functioning and if it isn’t it is her duty to contact someone to come install working equipment. Respondent claimed that she was monitoring the patient closely but the patient’s charts did not have entries indicating that this was so. So even if the equipment was not working, Respondent still failed to properly document her activities. However, due to the conflicting nature of Respondent’s testimony, her statements are not considered reliable.

Regarding Factual Allegations #8 and #9, Respondent did not deny sleeping at work but denied sleeping in a patient’s bed. She said she slept in a patient’s room on the chair that was there.

Regarding Factual Allegation #10, Respondent did not dispute the findings of her psychiatric evaluation but stated that she is not mentally ill and does not have a drug problem.

Regarding Factual Allegation #11, Respondent did not deny that she failed all 9 areas of competency but argued that she hadn’t worked as a nurse for 2 years when she did the evaluation and she was nervous at the time. She said she was being tape recorded during the evaluation and anyone would make mistakes if they were being recorded.

Based on the information confirmed in its investigation, the Board recommends that Respondent’s license RN157733 be revoked.

CONCLUSIONS OF LAW

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, 32-1663, 32-1664, and 41- 1092.11(B). The Board also has the authority, pursuant to A.R.S. § 32-1663 and A.R.S. § 32-1664, to impose disciplinary sanctions against the holders of nursing licenses/certified nursing assistants for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1669, and A.A.C. R4-19-101 to R-19-815. If the Board determines that a licensee has committed unprofessional conduct, it may take disciplinary action. The Board has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.R.S. 41-1092.07(G).

Arizona law defines unprofessional conduct in the nursing profession at A.R.S. § 32-1601(22), which provides as follows:

"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.

(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.

* * *

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

A.A.C. R4-19-403 further describes unprofessional conduct that may be harmful or dangerous to patients includes a pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice (A.A.C. R4-19-403(1)) 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, (A.A.C. R4-19-403(9)), 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 (A.A.C. R4-19-403(16)), and practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed (A.A.C. R4-19-403(31)).

A.R.S. § 32-1663 provides as follows:

A. If an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.

B. In its denial order, the board shall immediately invalidate any temporary license or certificate issued to the applicant.

C. Any person aggrieved by an order of the board issued under the authority granted by subsection A of this section may request an administrative hearing pursuant to title 41, chapter 6, article 10.

D. If the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.

E. If the board finds after giving the person an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10 that a nurse who practices in this state and is licensed by another jurisdiction pursuant to section 32-1668 committed an act of unprofessional conduct, the board may limit, suspend or revoke the privilege of that nurse to practice in this state.

F. If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to subsection D or E of this section, the board may serve on the licensee or certificate holder a written notice that states:

1. That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter.

2. The nature of the allegations asserted and that cites the specific statutes or rules violated.

3. That unless the licensee or certificate holder submits a written request for a hearing within thirty days after service of the notice by certified mail, the board may consider the allegations admitted and may take any disciplinary action allowed pursuant to this chapter without conducting a hearing.

G. If the state board of nursing acts to modify any registered nurse practitioner's prescription writing privileges, it shall immediately notify the state board of pharmacy of the modification.

Commensurate with the Board’s authority to take disciplinary action, the Administrative Law Judge finds that the action taken in this matter was appropriate because the facts as established by the greater weight of the evidence support a finding that Respondent violated A.R.S. §§ 32-1601(22)(d), (e), and (j) and A.A.C. R4-19-403(1), (9), (16), and (31). The conduct described in Factual Allegation #2 supports a finding that Respondent violated A.A.C. R4-19-403(16) in that Respondent removed a controlled substance from the hospital where she was employed. By failing to report her felony conviction, she violated A.A.C. R4-19-403(31) in that she deprived the Board of information it needed to determine whether it was appropriate to issue Respondent a license.

Respondent’s conduct pertaining to Factual Allegations #3, #5, #6, and #7 were show to be violations of A.A.C. R4-19-403(1), (9), and (31) in that Respondent failed to follow proper nursing procedure in rendering direct care to patients in ways that could have or did directly affect the safety and wellbeing of the patient. Further, Respondent’s claims regarding what she did in Factual Allegation #5 are contradictory. Respondent claimed that the monitor wasn’t working so she was told to personally monitor the patient’s vital signs, but she failed to document any intense monitoring. It is inconsistent as well to claim that hospital personnel would tell Respondent to ignore a malfunctioning machine when the physician in charge of the patient ordered that she be monitored on the machine. Respondent’s claim that nothing would be done about the machine if she did report it was unsupported by any other fact in the record. Further, Dahn testified as to the standard procedure for communicating with the hospital’s monitoring room that made it very unlikely that the night staff had no way of addressing non-functioning equipment. Respondent’s lack of credibility in this issue was apparent.

Respondent’s conduct pertaining to Factual Allegations #4 and #8 regarding sleeping on her breaks and being late to return to work, the evidence established that even if Respondent did tell someone where she was, as she claimed, her failure to follow the hospital’s rules on where and how long to take a break constituted a violation of A.A.C. R4-19-403(1), (9) and (31) because her actions were done in violation of her employer’s hospital policy. According to the testimony of Dahn, such policies are made for the purpose of ensuring that nurses take their breaks in such a manner and for such a period of time that the effect on their patients is minimized because other staff with duties of their own must cover for the nurses who go on break. By being late from breaks, Respondent was in violation. However, Respondent’s credibility was also called into question as to whether she really did inform others where she could be located. At least 2 of the nursing and human resources staff told Dahn that they had had to go look for Respondent and found her in a patient bed. Further, Arizona Heart Hospital documented Respondent’s being found in a patient room asleep on one occasion and being absent for 1.5 hours sleeping in a patient room on another occasion. These are records kept in the course of business and, while not fool proof, do indicate that Respondent was not allowed to sleep in patient rooms during her break and that she was not allowed by hospital policy to overstay her breaks and that the hospital found the source of the information credible enough to act on it.

Regarding Factual Allegation #9, the concern expressed by Dahn at hearing was that Respondent did not make a full disclosure that she was fired for sleeping on the job to the Board during an investigation. Dahn’s concern was that such failure to make a complete disclosure reflected Respondent’s inability to accept responsibility for her actions, which implies that she may not be committed to changing her nursing practice to become more reliable and professional. It was undisputed that Respondent failed to disclose to the Board the reason for her discharge. This constituted a violation of A.A.C. R4-19-403(31) and A.R.S. § 32-1601(22)(d) because withholding the full truth from the Board interferes with its ability to properly monitor the practice of nursing in Arizona.

Regarding Factual Allegation #10, the psychiatric evaluation did not conclude that Respondent is psychologically unfit to practice nursing in Arizona. Therefore, the evaluation is not a violation but it does offer information that is useful to the Board should it determine that Respondent’s license should not be revoked.

Regarding Factual Allegation #11, Respondent’s failure in all 9 categories of her Nurse Practice Evaluation established that due to her lack of knowledge and/or judgment and/or mental health, Respondent cannot practice nursing in a safe manner which is a violation of A.R.S. § 32-1601(22)(d) and/or (e).

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license RN157733 be revoked.

Done this day, January 30, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing