ALJDEC decisions subject to certification as final

15A-1405022-NUR · State Board of Nursing · 2014-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2014, at 8:00 a.m. The Record was held open until October 10, 2014, to allow sufficient time for the preparation and filing of the transcript of the hearing. APPEARANCES: The Arizona State Board of Nursing (hereinafter “Board”) was represented by Assistant Attorney General Elizabeth Campbell. Michele Marie Martinez (hereinafter “Respondent” or “Ms. Martinez”) failed to appear. ADMINISTRATIVE LAW JUDGE: Brian B. Tully, presiding; recommendation drafted by M. Douglas, Administrative Law Judge. _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 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, and 32- 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 32-1667. Ms. Martinez holds registered nurse license number RN129204 (hereinafter “the license”). On or about May 16, 2014, the Board received an allegation from Diane Drexler, Chief Nursing Officer for Yavapai Regional Medical Center (hereinafter “Ms. Drexler”), that on or about May 9, 2014, Ms. Martinez was observed to be behaving erratically while on duty. Ms. Drexler reported that Ms. Martinez displayed slurred speech, unstable gait, and was falling asleep while assigned to the night shift in the Emergency Department at Yavapai Regional Medical Center. Ms. Drexler reported that the Clinical Coordinator for the Yavapai Regional Medical Center informed Ms. Martinez that she needed to submit to drug testing, but that the Clinical Coordinator was unable to prevent Ms. Martinez from leaving the hospital premises and unable to make contact with Ms. Martinez thereafter.[1] Based upon this complaint, the Board initiated an investigation. On or about June 12, 2014, the Board mailed Ms. Martinez a questionnaire with instructions to provide a written explanation regarding the complaint by July 11, 2014.[2] The questionnaire was returned unopened and marked unable to forward. On or about June 14, 2014, the Board sent the same documents to Ms. Martinez via special delivery. The documents were returned unopened. Ms. Martinez did not respond to the questionnaire. An administrative hearing was held on February 11, 2014. The Board submitted nine exhibits and presented the testimony of Erika Newcomb, R.N., Rob Barth, R.N., Laura Hamblin, and Kristi Hunter, R.N. Ms. Martinez failed to appear at the hearing. Hearing Evidence Testimony of Kristi Hunter, RN The Board assigned the complaint to Kristi Hunter, RN (hereinafter “Investigator Hunter”) for investigation. Investigator Hunter testified that she is a nurse investigator for the Board. Investigator Hunter stated that she became a registered nurse in 1999 and a family nurse practitioner in 2008. Investigator Hunter testified that she has been a nurse investigator for the Board for two years. Investigator Hunter testified that she subpoenaed Ms. Martinez’s medical providers.[3] Investigator Hunter stated that a urine drug screen for Ms. Martinez contained in the records was positive for morphine. Investigator Hunter testified that morphine was not a drug that was prescribed for Ms. Martinez. Investigator Hunter testified that she also obtained Ms. Martinez’s Prescription Monitoring Program Report. Investigator Hunter stated that the Prescription Monitoring Program Report indicated that morphine was not a drug that was prescribed for Ms. Martinez.[4] Investigator Hunter testified that Ms. Martinez had an in-office urine screen and tested positive for Marijuana. Investigator Hunter testified that she also obtained Ms. Martinez’s medical records with Family Nurse Practitioner Pia Klamper (hereinafter “FNP Klamper”).[5] Investigator Hunter stated that Ms. Martinez established herself as a new patient with FNP Klamper on January 17, 2014, at approximately 9:45 a.m. Investigator Hunter testified that Ms. Martinez asked FNP Klamper for a refill of Lortab, which is the same thing as Norco.[6] Investigator Hunter stated that FNP Klamper refilled Ms. Martinez’s prescriptions for Benzodiazepine, Xanax, and Norco. Investigator Hunter testified that Ms. Martinez presented herself as a new patient to Family Nurse Practitioner Cindy Brown (hereinafter FNP Brown) on the same day, January 17, 2014, and requested prescriptions for Norco and Xanax. Ms. Martinez obtained the requested prescriptions from FNP Brown and filled them on January 17, 2014. Investigator Hunter testified that in a laboratory report for a specimen collected from Ms. Martinez on February 13, 2014, Ms. Martinez tested positive for Valium, Temazepam, Oxazepam (benzodiazepines), and morphine, for all of which Ms. Martinez did not have a prescription. Investigator Hunter testified that Ms. Martinez also tested positive for a second opioid, Dihydrocodeine.[7] Investigator Hunter testified that on May 9, 2014, Ms. Martinez displayed signs of ataxia, which is a discoordination in gait, slurred speech, extreme sleepiness, and impaired ability for fine-motor movement. Investigator Hunter stated that the drugs that Ms. Martinez had obtained from multiple physicians and/or the diversion of drugs from Yavapai Medical Center would cause ataxia. Investigator Hunter testified that Ms. Martinez was under the influence of substances and not competent to take care of patients. Investigator Hunter testified as follows:[8] You can take the medication that you’re prescribed, but you cannot take the medication to the extent that it makes you uncoordinated and unable to make rational decisions and unable to care for your patient. It makes you a danger to your patient.

Investigator Hunter testified that she also reviewed Ms. Martinez’s records with Yavapai Regional Medical Center and the Complaint filed by Yavapai Regional Medical Center against Ms. Martinez.[9] Investigator Hunter stated that as part of her investigation, she sent an Investigative Questionnaire to Ms. Martinez.[10] Investigator Hunter testified that Ms. Martinez failed to respond to the Investigative Questionnaire. Investigator Hunter testified that she completed an Investigative Report after she completed her investigation of the Complaint against Ms. Martinez.[11] Investigator Hunter stated that the Investigative Report truly and accurately reflected the results of her investigation of Ms. Martinez. Investigator Hunter’s testimony is found to be credible. Testimony of Erika Newcomb, RN Ericka Newcomb, RN (hereinafter “Ms. Newcomb”) testified that she is presently employed as a charge nurse at Yavapai Regional Medical Center’s West Campus in Prescott, Arizona. Ms. Newcomb stated that on the morning of May 9, 2014, she was working in the emergency room of Yavapai Regional Medical Center as a regular nurse. Ms. Newcomb testified as follows: I was getting [a] report from a nurse that was opposite of her. We work kind of side-by-side each other. And I- - while I was talking to my nurse, getting a report, I observed [Ms. Martinez] digging through the Sharps container in a room and then walking back to her nurse to give a report. And when she was doing that, she was falling asleep and then waking back up and giving the report all over again.[12]

Ms. Newcomb testified that she walked over to ask Ms. Martinez what was wrong with her. Ms. Newcomb stated that Ms. Martinez said that she was really sleepy. Ms. Newcomb testified that Ms. Martinez was slurring her words and was fairly incoherent. Ms. Newcomb opined that Ms. Martinez was impaired. Ms. Newcomb testified that she and the other nurses that were present contacted Ms. Martinez’s supervisor. Ms. Newcomb stated that she and the other nurses attempted to keep Ms. Martinez at the hospital. Ms. Newcomb testified that Ms. Martinez walked out of the emergency room. Ms. Newcomb’s testimony is found to be credible. Testimony of Rob Barth, RN Rob Barth, RN (hereinafter “Mr. Barth”) testified that he is an RN and is employed as director of emergency services at Yavapai Regional Medical Center. Mr. Barth stated that on May 9, 2014, the on-duty charge nurse contacted him about her concerns that Ms. Martinez was impaired while on duty. Mr. Barth testified that he then had a telephone conversation with Ms. Martinez and said “you need to stay there until I get there.” Mr. Barth stated that Ms. Martinez insisted that she had to leave to go get her children. Mr. Barth testified that Ms. Martinez had slow slurred speech and that her thought pattern appeared to be broken during the telephone conversation. Mr. Barth testified that Ms. Martinez returned to the hospital approximately two hours later. Mr. Barth stated that Ms. Martinez still had slurred speech and had a disheveled appearance. Mr. Barth opined that Ms. Martinez was impaired. Mr. Barth’s testimony is found to be credible. Testimony of Laura Hamblin Laura Hamblin (hereinafter “Ms. Hamblin”) testified that she is the human resources manager for Yavapai Regional Medical Center. Ms. Hamblin stated that Ms. Martinez returned to the hospital on May 9, 2014, and that she was present for the meeting with Ms. Martinez. Ms. Hamblin testified as follows: Well, when she came in, she sat in my office and was kind of slumped in the chair. Her hair wasn’t combed and her mascara was smeared under her eyes. And it did appear as though she would almost fall asleep. Her eyes would kind of roll up in her head and she would kind of nod and then come back to it.[13]

Ms. Hamblin testified that Ms. Martinez initially agreed to take a drug test but then stated that she thought it would be better if she resigned instead of taking the drug test. Ms. Hamblin stated that the hospital did not require Ms. Martinez to take a drug test because Ms. Martinez resigned. Ms. Hamblin stated that Ms. Martinez “smelled like vomit.” Ms. Hamblin’s testimony is found to be credible. 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, 41-1092.11(B), and 41-1092.07(F)(5). The Board also has the authority pursuant to A.R.S. §§ 32-1663 and 32-1664 to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act. The Board bears the burden of proof and must establish cause to penalize Respondent’s privilege to practice nursing in Arizona 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). The Board established that the Respondent, Michelle Marie Martinez, violated the provisions of A.R.S. § 32-1663(A) as defined in A.R.S. § 32- 1601(22)(d) (Any conduct or practice this is or might be harmful or dangerous to the health of a patient or the public). The Board established that the Respondent, Michelle Marie Martinez, violated the provisions of A.R.S. § 32-1663(A) as defined in A.R.S. § 32- 1601(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). The Board established that the Respondent, Michelle Marie Martinez, violated the provisions of A.R.S. § 32-1663(A) as defined in A.R.S. § 32- 1601(22)(h) (committing an act that deceives, defrauds or harms the public). The Board established that the Respondent, Michelle Marie Martinez, violated the provisions of A.R.S. § 32-1663(A) as defined in A.R.S. § 32- 1601(22)(j) (violating a rule that is adopted by the Board). The Board established that Respondent, Michelle Marie Martinez, violated the provisions of A.A.C. R4-19-403(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). The Board established that Respondent, Michelle Marie Martinez, violated the provisions of 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). The Board established that Respondent, Michelle Marie Martinez, violated the provisions of A.A.C. R4-19-403(31) (Practicing in any manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed). The Board established that Respondent, Michelle Marie Martinez, violated the provisions of A.R.S. § 32-1601(22)(j) (Violating a rule that is adopted by the Board pursuant to this chapter). In light of the risk of the harm to which Respondent Michelle Marie Martinez’s violations of the Nurse Practice Act exposed her patients and the public, the Board has established cause to revoke Michelle Maries Martinez’s privilege to practice nursing in the State of Arizona under A.R.S. §§ 32-1663(D)[14] and 1664(N).[15] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Ms. Martinez’s RN License No. RN129204. 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, November 3, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

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

----------------------- [1] See Exhibit 6 (Complaint from Yavapai Regional Medical Center). [2] See Exhibit 8 (6/11/14 Letter with Investigative Questionnaire). [3] See Exhibit 1 (PainStop Clinic Records). [4] See Exhibit 2 (Prescription Monitoring Program Report). [5] See Exhibit 4 (Medical Record from Pia Klamper, FNP). [6] Hydrocodone/APAP. [7] Valium, Temazepam, Oxazepam, and Morphine are all controlled substances. It is a violation of Arizona criminal law to possess or use Valium, Temazepam, Oxazepam, and Morphine without a valid prescription. [8] See Hearing Transcript (page 26, LL 10-14). [9] See Exhibit 6 (Complaint from Yavapai Regional Medical Center) and Exhibit 7 (Documentation related to Yavapai Regional Medical Center Investigation). [10] See Exhibit 8 (6/11/14 Letter with Investigative Questionnaire). [11] See Exhibit 9 (Investigative Report). [12] Hearing Record, at page 8, ll 7-14). [13] Hearing Record at page 19, ll 7-12. [14] 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. [15] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826