ALJDEC decisions subject to certification as final

18A-1311052-NUR · State Board of Nursing · 2018-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED

NURSE LICENSE NO. RN164823

ISSUED TO:

DEBORAH MAGANO GIDEON,

RESPONDENT.

No. 18A-1311052-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 05, 2018 at 1:00 PM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell appeared on behalf of the Arizona State Board of Nursing (“Board”), with Valerie Smith as a witness. No appearance(s) on behalf of Deborah Gideon (“Respondent”). Debora Mitchell served as the official Court Reporter for the proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Respondent was first issued Registered Nurse License No. RN164823 in August 04, 2010. The license is valid through April 01, 2020.

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.”

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). Violations of the forgoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

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

The Board presented the testimony of Valerie Smith and submitted ten exhibits. Respondent failed to appear.

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 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.

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. The mission, derived from the Nurse Practice Act, supersedes the interest of any individual, the nursing profession, or any special interest group.

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

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.

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. Specifically, that she could not participate in the withdrawal of care because her religious beliefs did 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?!” Respondent was terminated from employment on November 04, 2013.

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. 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.

Respondent’s Initial Communication with the Board

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. Respondent accused St. Luke’s of placing her life in danger.

Respondent’s Secondary Communication with the Board

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 her termination of employment in November of 2013. 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. [sic]

Respondent’s Interim Order

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.”

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. 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).

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. Dr. St. Germaine requested that the Board forward Respondent’s records for review.

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

CONCLUSIONS OF LAW

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 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.

The Board bears the burden of proof to establish cause to discipline Respondent’s registered nursing license. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

The Board’s burden is 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).

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.

* * *

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

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.

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.

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.

Here, the Board has sustained its burden of proof.

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.

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.

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.

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.

Therefore, the Board established by a preponderance of the evidence that Respondent’s conduct at issue was unprofessional.

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.

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) and 32-1664(N).

Because Respondent has committed unprofessional conduct, the Board has authority to discipline her nursing license per Ariz. Rev. Stat. § 32-1664(O).

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.

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.

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

RECOMMENDED ORDER

Based on the foregoing facts and conclusions of law,

IT IS recommended by the undersigned Administrative Law Judge that the Board revoke Deborah Gideon’s Practical Nurse License No. RN164823.

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, September 21, 2018.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing