FINACT18A-1311052-NUR.pdf

18A-1311052-NUR · State Board of Nursing · 2018-11-20

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 Phone (602) 771-7800 Fax (602) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: November 15, 2018

RE: Deborah Magano Gideon Docket No. 18A-1311052-NUR ______________________________________________________________________________

On November 15, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board revoke registered nurse license number RN164823 issued to Deborah Magano Gideon.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety with correction 1 to Finding of Fact #14 as follows:

14. Ms. Smith testified that as a result of Respondent’s refusal to submit to discipline for her conduct, The Board reviewed Respondent’s case for a second time in March 2018. Based upon that review, on March 27, 2018, the Board issued an INTERIM ORDER requiring Respondent to participate in a psychological evaluation. The ORDER gave Respondent forty-five days to submit to the evaluation and provide a copy of the evaluator’s report to the Board. Respondent was also required to provide the Board with the name of her chosen evaluator and evaluation date within ten business days of her evaluation appointment. Respondent was put on notice that the ORDER was not disciplinary action, but could become disciplinary in nature if Respondent failed to comply pursuant to ARIZ. REV. STAT. § 32-1601(26)(i).

The requested correction is based upon Associate Director Valerie Smith’s hearing testimony. (Hearing Transcript at 26.) ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN164823 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER DEBORAH MAGANO GIDEON, NO. 18A-1311052-NUR RESPONDENT.

A hearing was held before Jenna Clark, Administrative Law Judge (“ALJ”), at 1740 West

Adams Street, Lower Level, Phoenix Arizona, on September 5, 2018 at 1:00 p.m. 1 Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State with Valerie Smith as a witness. Deborah Magano Gideon (“Respondent”) was not present and was not represented by counsel. Debora

Mitchell served as the official Court Reporter for the proceedings. 2

On September 21, 2018, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On November 15, 2018, the Arizona State Board of Nursing met to consider the ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this

matter, the Board makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Respondent was first issued Registered Nurse License No. RN164823 in August 04, 2010. The license is valid through April 01, 2020.

Parties agreed to hold the hearing record open for the receipt of Ms. Mitchell’s official transcript on or before

September 21, 2018, which was timely received by the Office of Administrative Hearings. Arizona CCR No. 50768.

2. On July 31, 2018, the Board issued a COMPLAINT AND NOTICE OF HEARING setting the above-captioned matter for hearing at 1:00 p.m. on September 05, 2018. The NOTICE OF HEARING identified the issue as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Deborah Magano Gideon, registered nurse license number RN164823 to perform as a nurse in the State of Arizona.” 3 The Board set forth four specific factual allegations in the COMPLAINT, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by

ARIZ. REV. STAT. §§ 32-1601(22)(d), as more specifically defined by ARIZ. ADMIN. CODE R4-19-

403(7), R4-19-403(12), and R4-19-403(31), 32-1601(22)(e), and 32-1601(22)(j). 4 Violations of the forgoing constitute grounds for discipline under ARIZ. REV. STAT. §§ 32-1663 and 32-1664. 3. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the allegations in the Board’s COMPLAINT.

HEARING EVIDENCE

4. The Board presented the testimony of Valerie Smith and submitted ten exhibits.5 Respondent failed to appear. 6 5. Ms. Smith testified that this matter comes before the Tribunal as a result of

Respondent’s self-report of termination of employment from St. Luke’s Hospital (“St. Luke’s”) on

3 See NOTICE OF HEARING, page 1. ARIZ. REV. STAT. § 32-1601(26) was effective August 09, 2017. For conduct occurring before August 09, 2017, ARIZ. REV. STAT. § 32-1601(24) (with language identical to the 2017 statute) applies. For conduct occurring before July 01, 2016, ARIZ. REV. STAT. § 32-1601(22) (with language identical to the 2017 statute) applies. Board Exhibits 9-10, and the testimony regarding their contents, are a part of a separate confidential record. At 6:04 p.m. on Tuesday, September 04, 2018, Respondent emailed Trina Smith, legal assistant for the Board

that she would be unable to participate in person for a hearing scheduled for September 27, 2018 due to family issues, but that she would be available by telephone. Ms. Smith replied to Respondent’s email at 9:01 a.m. on Wednesday, September 05, 2018, and informed her that the hearing was scheduled for that same day at 1:00 p.m. local Arizona time. The tribunal phoned Respondent at the telephone number she provided to Ms. Smith, but was unable to reach her. Although a voicemail message was left, Respondent did not phone back prior to the conclusion of the hearing.

November 04, 2013, as a result of Respondent’s alleged practice outside the scope of nursing based on an incident that occurred on October 28, 2013. 6. Per Ms. Smith, the mission of the Arizona State Board of Nursing is to protect and

promote the welfare of the public by ensuring that each person holding a nursing license or certificate is

competent to practice safely. The Board fulfills its mission through the regulation of the practice of nursing and the approval of nursing education programs. 7 The mission, derived from the Nurse Practice Act, supersedes the interest of any individual, the nursing profession, or any special interest

group. 8

7. The Board’s position at the hearing was that Respondent’s failing mental health left her unable to properly carry out her duties and adhere to applicable directives, rules, and laws in the nursing profession. Further, the Board opined, Respondent’s alleged conduct amounted to a degree of unprofessional conduct that warranted revocation of her license to practice nursing.

Respondent’s Practice Incident

8. Ms. Smith testified that on October 29, 2013, while employed at St. Luke’s as a registered nurse, Respondent knowingly and intentionally violated a physician’s orders when she took a bag of total parenteral nutrition (“TPN”) that had been ordered and formulated for a Patient A and gave

it to Patient B, whose use of TPN had been discontinued. Additionally, Respondent, who had been

charged with caring for both Patients A and B on the evening in question, failed to note in either patient’s chart that the TPN had been administered and withheld, respectively. 9. When she was first questioned about the incident by St. Luke’s on October 29, 2013,

Respondent admitted that she administered the TPN to the incorrect patient due to religious reasons. 9

Specifically, that she could not participate in the withdrawal of care because her religious beliefs did https://www.azbn.gov/board/about-the-organization/ Id. See Confidential Board Exhibit 10.

not allow it. Respondent also alleged that she did not want the TPN to go to waste, but could not explain how she did not deprive the patient for whom the TPN was prepared other than to state, “Nobody died, right?!” 10 Respondent was terminated from employment on November 04, 2013. 11

10. However, when she was questioned by the Board about the incident Respondent stated

in a prepared letter dated November 03, 2013, that she made an error during a chaotic period. 12 Once the Board broached the subject of discipline on January 27, 2017, Respondent denied having ever administered TPN to any patient on October 29, 2013, and challenged the Board to prove that she had

done so. 13

Respondent’s Initial Communication with the Board 11. Ms. Smith testified that Respondent submitted a “tangential letter” to the Board on November 03, 2013. Although the letter was supposed to address her prior employer’s allegation regarding the October 29, 2013, TPN incident and subsequent termination of employment, Respondent

alleged that she was being retaliated against for reporting inappropriate behavior on the part of several

security guards in August of 2013, and as a result had been subjected to stalking, harassment with electronics, and torture by individuals driving dark tinted vehicles. 14 Respondent accused St. Luke’s of placing her life in danger. 15

Respondent’s Secondary Communication with the Board

12. Ms. Smith testified that Respondent submitted a “tangential email” to the Board on January 12, 2017, whereby she alleged St. Luke’s, “got away with witchcraft manipulation” regarding

See Board Exhibit 1. Shortly after her termination from employment, St. Luke’s submitted a complaint against Respondent’s license to the Board. See Board Exhibit 2. See Board Exhibit 6. See Board Exhibit 2. Id.

her termination of employment in November of 2013. 16 Respondent continued, in pertinent part, as follows: This time, let the fire of God consume any conspiracy. Let the Holy Ghost expose them. Let the blood of Jesus arrest them. The Bible says let no weapon that is formed against us prosper and any tongue that raises up against us, we must condemn. I condem every form of harassment, false accusation and any form of evil and I return it back to sender 1000 fold. 17[sic]

Respondent’s Interim Order

13. Ms. Smith testified that as a result of the Board’s investigation regarding St. Luke’s

complaint against her license, the Board decided to offer Respondent a CONSENT AGREEMENT FOR A DECREE OF CENSURE on January 27, 2017. Respondent returned the corrective action document back unsigned, along with a short list of reasons why she refused to submit to the discipline: “(1) The conclusion was made without even asking me, (2) I did not hang any TPN, (3) No one saw me

hang TPN, (4) I was only working with [Employee] and she only witnesses harassment towards me by

management, (5) I was not given orientation [….] but I was purposely floated there to see if I can make a mistake.” 14. Ms. Smith testified that as a result of Respondent’s refusal to submit to discipline for her

conduct, on March 27, 2018, the Board issued an INTERIM ORDER requiring Respondent to

participate in a psychological evaluation. 18 The ORDER gave Respondent forty-five days to submit to the evaluation and provide a copy of the evaluator’s report to the Board. Respondent was also required to provide the Board with the name of her chosen evaluator and evaluation date within ten business

days of her evaluation appointment. Respondent was put on notice that the ORDER was not

See Board Exhibit 5. Id. See Board Exhibit 7.

disciplinary action, but could become disciplinary in nature if Respondent failed to comply pursuant to ARIZ. REV. STAT. § 32-1601(26)(i). 15. Respondent chose an evaluator timely, but was unable to be evaluated because the

individual she chose was unqualified. The Board learned that Respondent had chosen another

evaluator, Jacquelyn St. Germaine, Ph.D., when Dr. St. Germaine sent a letter to the board on May 22, 2018, which stated Respondent was evaluated by the doctor the day prior. 19 Dr. St. Germaine requested that the Board forward Respondent’s records for review.

16. On June 18, 2018, Dr. St. Germaine forwarded her evaluation of Respondent to the

Board. 20 On several occasions Dr. St. Germaine noted it was difficult to get Respondent to answer her inquiries or give specific responses as opposed to vague ones. Regarding the TPN incident of October 28, 2013, Dr. St. Germaine opined that Respondent exercised poor judgment and went outside the scope of her practice. Further, Dr. St. Germaine opined that Respondent exhibited a fair amount of

paranoia and persecution ideation that could become a threat to patient safety and/or become a practice

issue. Ultimately, Dr. St. Germaine concluded that Respondent appeared to have mental health problems that would be counter-productive to her employment as a registered nurse, and could potentially affect patient safety in a negative way. 21

CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under ARIZ. REV. STAT. §§ 32- 1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in

See Board Exhibit 8. See Confidential Board Exhibit 9. Dr. St. Germaine originally completed her psychological evaluation of

Respondent on June 04, 2018, but amended it upon receipt of clarification that Respondent was not suspected of having a substance abuse problem, but instead was believed to be suffering from undiagnosed mental health issues. See Confidential Board Exhibit 9.

the State of Arizona. Pursuant to ARIZ. REV. STAT. §§ 32-1601 to 1669 and R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. 2. The Board bears the burden of proof to establish cause to discipline Respondent’s

registered nursing license. 22 Respondent bears the burden to establish affirmative defenses and factors

in mitigation of the penalty by the same evidentiary standard. 23 3. The Board’s burden is a preponderance of the evidence. ARIZ. ADMIN. CODE R2-19- 119.

4. 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). 5. ARIZ. REV. STAT. § 32-1601(22) defines unprofessional conduct in the nursing

profession, in pertinent part, 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.

ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(A) and (B)(1); see also Vazanno v.

Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. REV. CODE R2-19-119(B)(2).

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

6. ARIZ. ADMIN. CODE R4-19-403 defines unprofessional conduct in the nursing

profession, in pertinent part, as follows: For purposes of A.R.S. § 32-1601(24)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or

more of the following:

(7) Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient; *** (12) Assuming patient care responsibilities that the nurse lacks the education to

perform, for which the nurse has failed to maintain nursing competence, or that are

outside the scope of practice of the nurse; *** (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.

7. ARIZ. REV. STAT. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows: (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.

*** (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.

8. ARIZ. REV. STAT. § 32-1664 further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, in pertinent part, as follows: (O) If the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter,

the board may take disciplinary action.

9. Here, the Board has sustained its burden of proof. 10. Regarding Factual Allegation #1, the Board established by a preponderance of the evidence that Respondent knowingly and intentionally administered a bag of TPN to a patient

improperly, knowingly and intentionally withheld a bag of TPN from a patient as ordered, and failed

to notate her conduct in the patients’ charts afterward. The Board established that by engaging in this conduct that Respondent acted outside the scope of her practice. 11. Regarding Factual Allegation #2, Respondent’s letter dated November 03, 2013, speaks

for itself. Here, the Board established by a preponderance of the evidence that Respondent operated

under a paranoid delusion that her former employer was actively placing her life in danger by stalking her, harassing her with electronics, and torturing her all in an attempt to retaliate against her. The

accusations Respondent made against St. Luke’s are very serious. Respondent did not provide one indicia of proof along with her letter, or for the hearing, to support any of her claims. 12. Regarding Factual Allegation #3, Respondent’s email dated January 12, 2017, speaks for

itself. Here, the Board established by a preponderance of the evidence that Respondent’s paranoia

continued and appeared to be fueled by religious dogma. At no point did Respondent take any responsibility for her actions on October 29, 2013, recognize the harm she could have caused either patient, or the liability that her employer could have faced as a result of her willful conduct that day.

13. Regarding Factual Allegation #4, the Board established by a preponderance of the

evidence that on June 18, 2018, a licensed psychologist determined that Respondent exercised poor judgment on October 28, 2013, and went outside the scope of her practice. Moreover, the psychologist opined that Respondent exhibited a fair amount of paranoia and persecution ideation that could pose a patient safety and/or practice issue. It was held that Respondent’s apparent mental health problems that

would be counter-productive to her employment as a registered nurse, and could potentially affect

patient safety in a negative way. 14. Therefore, the Board established by a preponderance of the evidence that Respondent’s conduct at issue was unprofessional.

15. Because Respondent failed to appear at the hearing, no affirmative defenses or factors in

mitigation were offered to refute any of the Board’s credible evidence. 16. In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction

against Respondent’s license under ARIZ. REV. STAT. §§ 32-1663(D) 24 and 32-1664(N). 25

ARIZ. REV. STAT. § 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.

17. Because Respondent has committed unprofessional conduct, the Board has authority to discipline her nursing license per ARIZ. REV. STAT. § 32-1664(O). 26 18. The record established that Respondent evinced her intent not to take any personal

responsibility for her conduct or others whom she comes into contact with. Respondent’s behavior was

particularly problematic because she abjectly refused to participate in any type of mental health wellness program or counseling. While Respondent may have unaddressed and/or undiagnosed mental health issues that affect her practice of nursing, those issues do not excuse her behavior or absolve her

from responsibility from consequences stemming therefrom. Because Respondent will not or cannot

take responsibility for her actions, she cannot be regulated at this time. 19. In order to deliver effective healthcare to patients, nurses must follow doctors’ orders, properly complete patient charting, and engage with patients and other healthcare providers in a professional manner. It is clear from a review of the record that Respondent is not able to meet these

rudimentary standards to practice nursing.

20. Considering the facts and circumstances of this matter, it is recommended that Registered Nurse License No RN164823 be revoked.

ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order: Pursuant to A.R.S. § 32-1664(N), the Board REVOKES registered nurse license number RN164823 issued to DEBORAH MAGANO GIDEON.

ARIZ. REV. STAT. § 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. ARIZ. REV. STAT. § 32-1664(O) provides that if the regulated party is found to have committed an act of

unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.

RIGHT TO PETITION FOR REHEARING OR REVIEW Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing or review within 30 days after service of this decision with the Arizona State Board of Nursing. Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C).

The motion for rehearing or review shall be made to the attention of Hearing Department,

Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, and must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608. For answers to questions regarding a rehearing, contact the Hearing Department at (602)

771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing

or review within 30 days after service of this decision, Respondent shall be prohibited from seeking judicial review of this decision. This decision is effective upon expiration of the time for filing a request for rehearing or

review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609.

Respondent may apply for reinstatement of the said license pursuant to A.A.C. R4-19-404 after a period of five years. DATED this 15th day of November, 2018. ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 15th day of November, 2018 by First Class Mail and Certified Mail No. [account number redacted] 8952 to:

Deborah Magano Gideon Millstone Road Hyde Park, MA 02136 COPIES mailed this 15th day of November, 2018 by First Class Mail and Certified Mail No. [account number redacted] 8969 to: Deborah Magano Gideon 2606 W Mariposa St Phoenix, AZ 85017

COPIES of the foregoing mailed this 15th day of November, 2018, to:

Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith