ALJDEC decisions subject to certification as final

17A-1412043-NUR · State Board of Nursing · 2016-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN184986

ISSUED TO:

MIGUEL MENENDEZ,

RESPONDENT

No. 17A-1412043-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2016

APPEARANCES: No one appeared for Respondent; Sunita Krishna, Esq. for the Board of Nursing

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.

Respondent Miguel Menendez holds registered nurse license number RN184986, which had been summarily suspended prior to the hearing.

On September 2, 2016, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. October 7, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

Mr. Menendez did not appear at the scheduled time and the matter was convened in his absence at about 1:20 p.m.

The Board presented the testimony of Mark Stemwedel, RN, an RN supervisor at Honor Health’s Thompson Peak emergency room, and nurse practice consultant Stephanie Chambers, RN.

In early December 2014, Mr. Menendez was working for Concentric Healthcare Solutions as a contract nurse at Honor Health where Mr. Stemwedel was his supervisor.

Mr. Menendez’s behavior had given Mr. Stemwedel cause for concern for reasons including that he would pull medicine from more than one Pyxis and there were concerns about discrepancies in the Pyxis.

In addition, Mr. Menendez had been observed to take frequent, long trips to the restroom that had caused Honor’s doctors to believe that there was an issue. Mr. Menendez had at times failed to notify another nurse that he was leaving the floor as required.

On December 6, 2014, Honor found a discrepancy related to Propofol, Benadryl, and Lidocaine in which Mr. Menendez’s name was associated with the “pulls.”

After Mr. Menendez had signed off, he was found to have a partially used vial of Propofol on his person. In addition, he acknowledged that a second vial he had checked out was near his computer. That vial was actually pushed back behind the computer monitor where it was not visible.

When asked about the Propofol, Mr. Menendez exhibited jittery and nervous behavior that in Mr. Stemwedel’s opinion was indicative of someone who was using drugs. Mr. Stemwedel was of the opinion that Mr. Menendez was mainlining or shooting-up the Propofol.

On or about December 7, 2014, Honor filed with the Board a complaint showing that Mr. Menendez had been terminated for diverting substances.

Honor’s complaint showed that on December 6, 2014, Mr. Menendez had entered into a patient’s chart that 200 m/g Propofol had been administered, whereas the doctor’s note shows that only 80 m/g was. The doctor’s notes are generally considered to be more reliable because she administered the drug. Moreover, in this instance, it is reasonable to conclude that the partially used vial of Propofol that Mr. Menendez had on his person accounted for the 120 m/g difference.

Standard of care calls for unused Propofol to be wasted in the presence of a second nurse. Ms. Chambers’ opinion was that Mr. Menendez had violated the standard of care by removing from the Pyxis Propofol that was not used, wasted, or returned.

Mr. Menendez violated Concentric’s Employee Ethics Agreement in that he diverted medications while at Honor.

Diversion of medication creates a public safety concern because the medication administration record will not coincide with the amount removed from Pyxis. This creates a situation whereby other care-providers will not know how much medication a patient actually received.

In December 2014 and January 2015, the Board sent to Mr. Menendez letters requesting that he respond to the complaint from Honor and that he answer a Board questionnaire.

These requests were returned to the Board as undeliverable and Mr. Menendez never responded to the Board or returned the questionnaire.

In June 2016, the Board received a second complaint in that Mr. Menendez’s Florida nursing license had been summarily suspended on June 8, 2016.

On June 16, 2016, the Board sent Mr. Menendez an email and a letter informing him of the new complaint and a requesting that he complete a Board questionnaire about the matter.

Mr. Menendez never responded to these communications and he did not return the questionnaire.

On June 16, 2016, Ms. Chambers called Mr. Menendez at his mobile phone of record. The call was answered, but when she asked if she had Mr. Menendez, the other party hung up. She called again, but no one answered.

The Board had admitted into evidence an Order and other documentation from the Florida Department of Health related to its summary suspension of Mr. Menendez’s license. These documents show that Mr. Menendez:

Had tested positive for Propofol;

Had been found bleeding and unconscious while on duty;

Had admitted that he had diverted Propofol and Citicoline, which he had injected intravenously with the intent of committing suicide;

Had acknowledged that he struggles with depression;

Had acknowledged using crack cocaine and that he had overdosed on Propofol in the past;

Had tested positive for amphetamine.

In Florida, Mr. Menendez was evaluated by both a psychiatrist and a neuropsychologist who concluded that Mr. Menendez makes numerous errors in judgment, that his impulse control and judgment are impaired, and that he has very little insight into his problems and how he creates them.

Florida’s medical evaluations show that Mr. Menendez’s diagnoses include:

Other stimulant dependence with stimulant-induced mood disorder;

Current manic symptoms with severe and active use of amphetamine;

Poisoning by other antiepileptic and sedative-hypnotic drugs;

Intentional self-harm;

Bipolar disorder, unspecified;

Personality disorder, unspecified.

Mr. Menendez was also considered to have a severe substance use disorder.

Florida Department of Health found that Mr. Menendez was not capable of practicing nursing with reasonable skill and safety to patients due to his concurrent manic symptoms, active chemical dependence, cognitive limitations, and severe character pathology symptoms, and that he was not safe to administer or to have access to drugs because of these problems.

Florida Department of Health suspended Mr. Menendez’s license and ordered that he not be allowed to practice until its impaired practitioner program determined that he was safe to practice.

As of June 7, 2016, Mr. Menendez was not participating in any treatment through Florida’s impaired practitioner program.

Ms. Chambers’ opinion was that Mr. Menendez cannot be regulated and that his license should be revoked.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence shows that Mr. Menendez engaged in conduct that is, or might be, harmful or dangerous to the health of a patient or the public, which constitutes unprofessional conduct under Ariz. Rev. Stat. section 32-1601(24)(d).

The preponderance of the evidence shows that Mr. Menendez is physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public, which is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(24)(e).

The preponderance of the evidence shows that Florida Department of Health has suspended Mr. Menendez’s license in that state, which constitutes unprofessional conduct under Ariz. Rev. Stat. section 32-1601(24)(f).

The preponderance of the evidence shows that Mr. Menendez has falsified a patient record pertaining to obtaining, possessing, or administering any controlled substance, which is a violation of Ariz. Admin. Code section R4-19-403(8)(b) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(24)(d) and (j).

The preponderance of the evidence shows that Mr. Menendez has failed to follow his employer’s policies and procedures designed to safeguard the patient, which is a violation of Ariz. Admin. Code section R4-19-403(9) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(24)(d) and (j).

The preponderance of the evidence shows that Mr. Menendez diverted narcotics and controlled substances from a health care facility, which is a violation of Ariz. Admin. Code section R4-19-403(16) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(24)(d) and (j).

The preponderance of the evidence shows that Mr. Menendez has a pattern of using and being under the influence of drugs to the extent that his judgment may be impaired and nursing practice detrimentally affected, and that he was under the influence of drugs while on duty at health care facilities, which is a violation of Ariz. Admin. Code section R4-19-403(17) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(24)(d) and (j).

The preponderance of the evidence shows that Mr. Menendez failed to furnish the Board with an explanation of the complaints filed against him, which is a violation of Ariz. Admin. Code section R4-19-403(25) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(24)(d) and (j).

The preponderance of the evidence shows that Mr. Menendez did not notify the Board that his mailing address had changed as required by Ariz. Admin. Code section R4-19-308.

The Board also alleges that Mr. Menendez violated Ariz. Admin. Code section 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.”). The Board has not proven this allegation by a preponderance of the evidence because it presented no evidence of wrong-doing that is not included within the statutes and rules previously cited.

Because Mr. Menendez has committed unprofessional conduct, the Board has authority to revoke his registered nurse license. Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

Considering the facts and circumstances of this matter, it is recommended that Mr. Menendez’s registered nurse license number RN184986 be revoked.

RECOMMENDED ORDER

IT IS ORDERED that Miguel Menendez’s registered nurse license number RN184986 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, November 9, 2016.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing