ALJDEC decisions subject to certification as final

18A-1309079-NUR · State Board of Nursing · 2018-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of Practical Nurse License No. LP040849 issued to:

Mark Phillip Moore,

Respondent.

No. 18A-1309079-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2018

APPEARANCES: Mark Phillip Moore on his own behalf; 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 Mark Phillip Moore holds practical nurse license number LP040849.

On February 16, 2018, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on March 29, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.

Mr. Moore appeared and testified on his own behalf.

The Board presented the testimony of Michael Pilder RN, a nurse practice consultant with the Board, and Tracy Kruse, RN.

On September 19, 2013, the Board received from El Rio Community Health Center a complaint alleging that Mr. Moore had been terminated from its employment because he: (1) had been careless in the performance of his duties; (2) exhibited unsafe nursing practices; and (3) failed to follow policies.

Based on this complaint the Board began an investigation, which was conducted by Mr. Pilder. On January 15, 2015, the Board received from Devon Gables Health Care a complaint regarding Mr. Moore. Mr. Pilder also investigated this complaint.

El Rio’s Complaint

Mr. Moore began working for El Rio in or about February 2011. At some point he became the Associate Health Center Manager for the Broadway Road clinic. On November 8, 2012, El Rio issued to Mr. Moore a Performance Improvement Plan. The majority of that plan addresses deficiencies in his managerial functions, but it also shows there was missing documentation in the NextGen system, which could cause patient care issues.

On March 4, 2013, El Rio issued a to Mr. Moore a letter regarding issues that had arisen during the time the Performance Improvement Plan was in effect. In addition to Mr. Moore’s management functions, the letter addresses two issues regarding documentation. One of these clearly shows that there were concerns as to whether Mr. Moore had completely documented a call to a patient. The other entry however is ambiguous as to whether missing documentation was for a patient Mr. Moore had seen or whether it was addressing a failure on his part to insure that another employee had prepared the required documentation.

On April 5, 2013, El Rio informed Mr. Moore that he was being asked to step down from his role as Associate Health Center Manager for the Broadway Road clinic and accept a position as an LPN at Internal Medicine Congress. The reason for this demotion was a continuing decline in his managerial skills.

On or about April 8, 2013, Mr. Moore transferred from the Broadway clinic to the Congress clinic, where Ms. Kruse became his supervisor.

While working under Ms. Kruse’s supervision, Mr. Moore on multiple occasions failed to meet the standards of care for treatment of patients and for documenting this treatment.

On August 28, 2013, Mr. Moore was discharged from El Rio for cause, including incidents that put patient safety at risk. Mr. Moore was not eligible for rehire at El Rio.

El Rio follows a progressive discipline approach and Mr. Moore’s employment records show that during the five months he was under Ms. Kruse’s supervision he received multiple warnings to the effect that he was not meeting the standards of care required of him.

Ms. Kruse testified that Mr. Moore had been experiencing similar lapses while he was working at the Broadway clinic. Part of the reason Mr. Moore had been assigned to Ms. Kruse was to afford him the opportunity to get any required retraining. Ms. Kruse explained however that Mr. Moore was not receptive or responsive to that training and to the contrary, she described his attitude toward the training as blasé.

Ms. Kruse’s opinion is that based on his unwillingness to accept the proffered training, Mr. Moore is not safe to practice, but she did acknowledge that she was basing that on her interactions with him during 2015.

Patient A

On July 9, 2013, Patient A came to El Rio as a “walk-in.” Mr. Moore completed the triage on the patient, who had diabetes. Mr. Moore should have checked Patient A’s blood sugar, but did not, and he should have consulted with either an RN or doctor for a disposition, but did not. Mr. Moore took Patient A’s blood pressure, which was 157 over 97, and sent the patient home with what is colloquially known as a “doctor’s note” showing that she should not work for two days.

Mr. Moore testified that he sent Patient A home because there were no available treatment slots open and she could not be seen that day.

A diastolic blood pressure of 97 is very high and Mr. Moore should have escalated this matter by reporting it to a provider competent to make a disposition, but he failed to do so. Mr. Pilder’s opinion was that this was a potentially dangerous situation.

Mr. Pilder had reviewed Patient A’s medical records and found that these records support the allegation in El Rio’s complaint regarding this patient.

Patient B

Patient B was taking warfarin (aka Coumadin) a blood thinner and had a history of venous embolism and thrombosis.

An “INR” is a ratio related to the clotting ability of the blood. The higher the INR, the slower blood will clot.

On August 7, 2013, Mr. Moore conducted a PT/INR check on Patient B. At that time her INR was 5.3.

An INR of 5.3 is high for any patient, and for Patient B it was outside the range ordered. Standard of care required Mr. Moore to escalate the issue by reporting the INR to a provider, but he failed to do so.

Mr. Moore sent Patient B to the lab, which contacted El Rio to report the INR of 5.3.

The Board alleges that Mr. Moore told Patient B to stop taking the warfarin. Although the medical records are ambiguous on this point, Mr. Pilder testified that information he learned during his interviews confirms this. Mr. Moore denied that he had told Patient B to stop taking the warfarin.

Stopping the warfarin was the proper course of action, but ordering a patient to do so exceeds the scope of a nurse’s authority.

On August 3rd, Patient B’s blood pressure was also low at 102 over 60. Patient B’s low blood pressure while taking warfarin is a concern because there is a possibility of internal bleeding.

Mr. Pilder’s review of Patient B’s medical records showed that these supported the allegations in El Rio’s complaint regarding this patient.

Patient C

Patient C had a history that included subdural hematoma, retroperitoneal bleed, hemarthrosis, embolic CVA, and embolic myocardial infarction. These are related to bleeding and blood clotting. Patient C was also taking warfarin.

Patient C’s provider had issued an order showing that her INR should be maintained between 1.9 and 2.1. Mr. Moore had a duty to look at the patient’s chart/orders and should therefore have been aware of this order.

On June 14, 2013, Mr. Moore conducted an INR check of Patient C that showed a value of 2.4.

Because this was above the range specified by the patient’s provider, standard of care required Mr. Moore to escalate the matter to a provider who could order the appropriate action, but he failed to do so.

Mr. Moore testified that El Rio’s policy was that INRs were to be maintained between two and three. Mr. Pilder explained however that even if that were the case, the provider’s order for Patient C would control in her case.

On June 20, 2013, Mr. Moore conducted an INR check of Patient C that showed a value of 2.6. Because this was above the range specified by the patient’s provider, standard of care required Mr. Moore to escalate the matter to a provider who could order the appropriate action, but he failed to do so. Instead he counseled the patient and sent her home.

On June 28, 2013, Mr. Moore conducted an INR check of Patient C that showed a value of 2.8. Because this was above the range specified by the patient’s provider, standard of care required Mr. Moore to escalate the matter to a provider who could order the appropriate action, but he failed to do so.

Patients on warfarin need to be tightly regulated to maintain their INR values in the proper range; INR values that are too high or too low can both cause problems. Because Patient C was taking warfarin, the elevated INRs were potentially life threatening and should have been reported ASAP so the warfarin dose could be adjusted.

Mr. Pilder’s review of Patient C’s medical records showed that these supported the allegations in El Rio’s complaint regarding Patient C.

Devon Gables

On or about December 1, 2014, while investigating the complaint from El Rio, Mr. Pilder subpoenaed records from Devon Gables Health Care where Mr. Moore was employed at that time. In February 2017, Mr. Pilder issued a second subpoena to Devon Gables, which provided additional records related to Mr. Moore’s employment.

Devon Gables responded to the subpoena by providing to the Board employment records for Mr. Moore.

On January 15, 2015, Devon Gables filed with the Board its complaint showing that Mr. Moore’s employment had been terminated for job performance concerns regarding “follow up” and a policy violation when he failed to inform a physician or the patient’s family about a skin injury. The complaint shows that Mr. Moore also had other job performance concerns/counseling actions regarding medication documentation.

The Devon Gables complaint shows that during his termination meeting, Mr. Moore effectively requested that the matter not be reported to the Board.

The Devon Gables complaint shows that when it responded to the December 2014 subpoena there were no documented disciplinary issues for Mr. Moore, and when the DON asked him if there was an open complaint, he stated that the subpoena was related to a closed complaint.

Records provided by Devon Gable show that Mr. Moore had failed to notify a provider when he observed a burn on a patient’s thigh and he failed to notify the patient’s family. Mr. Pilder testified that this was a failure to meet the standard of care and he explained that it should have been reported to a provider so an order for proper treatment could be issued.

Mr. Moore applied to Devon Gables on September 22, 2014.

In his application, Mr. Moore wrote that he was assistant clinic director at the El Rio Broadway clinic from Feb 2011 to August 2013, and that he left that position due to a “change in assignments.” This was true, but Mr. Moore did not include on his application the information showing he transferred to the Congress clinic and was subsequently fired from that position.

On January 8, 2015, Devon Gables issued a Notice of Counseling Action to Mr. Moore showing multiple violations related to incomplete tasks.

On January 15, 2015, Mr. Moore was terminated from employment at Devon Gables for job performance concerns including failure to report the patient’s burn and medical documentation issues.

Mr. Pilder found that Mr. Moore’s deficiencies at Devon Gables were similar to those at El Rio and that there was a pattern of such deficiencies over several years.

Mr. Moore’s Testimony

Mr. Moore testified to the effect that he should be judged based on his current behavior, not issues that occurred years ago.

Mr. Moore had admitted into evidence an employee review from Aspen Pointe where he was hired in November 2016. That review shows that Mr. Moore had shown growth and improvement over the prior year, and that he was a great asset to the team. Mr. Moore met or exceed expectations in all areas except administration and documentation, where he was shown to need improvement.

Conclusions

Based on his interaction with Mr. Moore during the investigation, Mr. Pilder’s opinion was that Mr. Moore was not accepting responsibility for his failures, but rather was blaming others or making excuses.

Mr. Pilder explained that some of Mr. Moore’s lapses (e.g., the failure to escalate matters and failure to properly review the patients’ charts) were basic nursing functions.

When Mr. Pilder was asked his opinion as to whether Mr. Moore is safe to practice, he responded that monitoring could be effective for Mr. Moore if he was willing to undergo education to continuously ensure patient safety. As such, the Board is requesting that Mr. Moore be placed on probation, which would include a requirement that his work be monitored and that the Board be provided regular reports from any employer.

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. Moore repeatedly failed to alert providers of patient-conditions that put these patients at risk and, in some cases, were potentially life threatening. As such Mr. Moore committed unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d)(conduct that is, or might be, harmful or dangerous to the health of a patient).

Mr. Moore’s actions are also violations of Ariz. Admin. Code sections 4-19-403(1)(pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice) and 4-19-403(9)(failure 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), which are also unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(26)(d) and (j).

The preponderance of the evidence shows that by failing to inform Devon Gables that he had been fired from El Rio, Mr. Moore made an incomplete and misleading statement on an employment application, which is a violation Ariz. Admin. Code section 4-19-403(27) and is unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(26)(d) and (j).

The preponderance of the evidence shows that Mr. Moore willfully and repeatedly violated a provision of this chapter or a rule adopted pursuant to this chapter, which is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(g).

The Board alleges that Mr. Moore violated Ariz. Admin. Code section 4-19-403(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 because all the alleged violations have been addressed through the statutes and rules listed above.

Because Mr. Moore has committed unprofessional conduct, the Board has authority to discipline his license. Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

Factors in mitigation are that the Board has received no complaints against Mr. Moore since January 2015, and his review from Aspen Pointe is largely favorable. That review also shows however that Mr. Moore needed improvement in administration and documentation, which were problem areas for Mr. Moore at El Rio and Devon Gables.

Although Mr. Moore testified to the effect that he has improved as a nurse, his testimony tended to confirm Mr. Pilder’s opinion that Mr. Moore was not accepting responsibility for his actions, which is a factor in aggravation.

Considering the facts and circumstances of this matter, it is recommended that Mr. Moore be placed on probation under such terms and conditions as the Board deems appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that Mark Phillip Moore’s practical nurse license number LP040849 be placed on probation under such terms and conditions as the Board deems as appropriate.

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, May 2, 2018

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing