ALJDEC decisions subject to certification as final
18A-1603040-NUR · State Board of Nursing · 2018-06-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN108624 AND ADVANCED PRACTICE CERTIFICATE NO. AP4232 ISSUED TO:
PHUONING ALEX KEO,
RESPONDENT.
No. 18A-1603040-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 10, 2018
APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. Respondent Phuoning Alex Keo appeared on his own behalf.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
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FINDINGS OF FACT
The Arizona State Board of Nursing (the Board) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. 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. §§ 32-1601-1667.
Phuoning Alex Keo (Respondent) holds Board-issued Registered Nurse License No. RN108624 (initially issued in November 1999) and Advanced Practice Certificate No. AP4232 (initially issued in October 2011) in the State of Arizona.
In May 2004, Respondent was issued a Decree of Censure pursuant to a Consent Agreement for a practice-related issue in September 2003.
On August 16, 2012, Respondent submitted an application for employment to NextCare in Verde Valley, Arizona, in which he was instructed to list “all employers for the past seven years.” Respondent failed to disclose employment from Avondale Health Center, his most recent employer from which he was terminated in or around May 2012.
On March 11, 2015, Patient DM presented to NextCare in Verde Valley, Arizona, with neck pain secondary to a chokehold during a police activity training that occurred just prior to the patient’s arrival at the facility. Respondent treated Patient DM and documented that Patient DM presented with left side facial drooping, slightly slurred speech, and decreased left grip strength. Patient DM also complained of difficulty breathing. Patient DM was at the NextCare office for approximately three hours that day and deteriorated over the course of the visit. Respondent ordered an MRI for Patient DM, released Patient DM to home, and indicated he would contact Patient DM with the results of the scan. Patient DM was ultimately diagnosed with a medullary infarction, tissue death in the lower area of the brain stem due to lack of oxygenated blood flow.
From approximately July 20, 2015, through December 4, 2015, while Respondent was on duty and employed as a family nurse practitioner at Copper Canyon Family Health Center in Camp Verde, Arizona, Respondent made multiple inappropriate comments both to and about patients. Respondent was heard to describe patients as “the fat patient”, “fat people”, or “the hot blonde.”
On October 19, 2015, Respondent received a Performance Appraisal and Development Review from Copper Canyon Family Health Center. It was noted that “[t]here have been numerous patient complaints about lack of attentiveness to their needs, felt like you didn’t listen, and were rushed.” Respondent was notified that if performance goals were not met in 30 days, termination would result.
On October 26, 2015, Respondent had a conversation with Patient KB and his wife, a 70-year-old couple), about a “swingers club” he had seen on the news.
In an undated note, Jennifer Hinds, Office Manager, recorded that Respondent was in with an older patient and when he came out of the visit, he directed his Medical Assistant (MA) to refer the patient out for a Pap smear. The MA asked if he performed those exams and he said, in front of Ms. Hinds and two MA’s, “No and not on her. I’d be so traumatized that I wouldn’t be able to eat pussy for weeks!” When Ms. Hinds informed Respondent that he could not speak like that in that area, Respondent just looked at her and said, “Oh” and walked out into the hallway.
On December 4, 2015, Respondent was terminated from Copper Canyon Family Health Center with the notation that “[y]our employment with CCFHC has been terminated as a result of excessive patient complaints, inappropriate verbal interactions with patients and staff, continued coding and documentation errors, unprofessional attitude, and not meeting 45 days performance review goals.”
On January 7, 2016, while on duty and employed as a family nurse practitioner at Ferguson Family Medicine in Mesa, Arizona, Respondent received a written counseling for sexual harassment for stating to an MA, while discussing two patients scheduled to come into the clinic for pelvic exams, “Only for you baby. No gloves.” Respondent signed the warning notice indicating that he agreed with the allegation against him and noting that he “[d]id not realize she felt this was inappropriate.”
From approximately May 13, 2016, through February 24, 2017, Respondent provided medical care to Patient CB while employed and on duty as a family nurse practitioner at Pueblo Medical Physician in Phoenix, Arizona.
During the time that Patient CB was Respondent’s patient, Respondent made several inappropriate sexual comments to Patient CB about her appearance, specifically her stomach and breasts. On or about February 24, 2017, during a medical visit for complaints including a sore throat, Respondent pushed his hips up against and between her legs and kissed Patient CB while thrusting his tongue into her mouth.
On or about May 13, 2016, Respondent prescribed an opioid therapy of Tramadol, a controlled substance, during his first visit with Patient CB. In so doing, Respondent relied on Patient CB’s verbal report of current medications and dosages, including controlled substances. Respondent did not obtain previous medical records, check the controlled substances prescription monitoring profile (CSPMP), or consult the pharmacy to verify the dose and quantity of controlled substances prescribed to Patient CB.
While providing pain management to Patient CB, Respondent increased the dose of Vicodin (hydrocodone, a schedule II opioid medication, on June 10, 2016, and December 30, 2016, though the medical records lacked a diagnosis that identified the source of pain supporting the need for a change in opioid treatment. Additionally, the medical record failed to contain documentation that Respondent conducted an appropriate evaluation of the pain problem, including the nature and intensity of pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of pain on physical and psychological function, and an evaluation of the history of substance abuse.
From May 2016 to July 2016 and October 2016 through February 2017, Respondent provided Patient CB with monthly prescriptions of Xanax 1mg for the treatment of generalized anxiety disorder (GAD). However, the recommended treatment for GAD is cognitive behavioral therapy and medications including serotonin reuptake inhibitors, tricyclic antidepressants, Monoamine Oxidase Inhibitors, benzodiazepines, and anxiolytics. Short-term use of benzodiazepines (no longer than four weeks) is recommended when rapid control of symptoms is crucial or while waiting for response to treatment with antidepressants or cognitive behavioral therapy.
On or about March 27, 2017, while employed at Pueblo Family Physicians, Respondent received a written warning based in part on reports by female co-workers of uninvited touching and unsolicited advances from Respondent.
During an in person interview with the Board on February 8, 2018, Respondent admitted that on December 18, 2017, while employed at Pueblo Family Physicians and after he received the Board’s complaint regarding his former patient, Patient CB, he accessed Patient CB’s CSPMP profile for purposes other than treatment.
On or about April 23, 2016, and on December 17, 2017, Respondent indicated on the Investigative Questionnaires from the Board that he was employed by Ferguson Family Medicine when he had, in fact, been involuntarily terminated on March 24, 2016. Respondent also reported that he was not terminated from his employment at Copper Canyon Family Practice when he had, in fact, been involuntarily terminated on December 4, 2015.
During an in person interview with the Board on February 8, 2018, and in a telephonic interview on February 14, 2018, Respondent denied any allegations, written warnings, or discipline for inappropriate language, touching, or sexual harassment by any employer. Respondent’s employment records from Avondale Health Center, Copper Canyon Family Health Center, Ferguson Family Medicine, and Pueblo Family Physicians all include documentation of such behavior.
On April 3, 2018, the Board issued a Complaint and Notice of Hearing and Summary Suspension Expedited Hearing, alleging that cause existed to discipline Respondent’s registered nurse license and advanced practice certificate under A.R.S. § 32-1601(26)(d), (g), (h), and (j) (2017) and A.A.C. R4-19-403(1), (3), (4), (26), (27), and (31).
The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was scheduled to convene on April 18, 2018. Respondent requested a continuance to allow him time to prepare for the hearing with an attorney. The hearing was continued and was held on May 10, 2018, and Respondent appeared without counsel. Respondent requested a hearing after the Board presented its evidence in the hearing so he could obtain an attorney to represent him. That request was denied as the original hearing had been continued to allow Respondent to obtain an attorney and he had failed to do so.
At the hearing, Ms. Hinds testified regarding Respondent’s conduct and comments made while he was employed at Copper Canyon Family Health Center. Ms. Hinds testified that Respondent’s treatment of Patient DM fell below the standard of care in that Respondent should have sent him to the emergency department immediately to avoid further harm to the patient. Ms. Hinds also stated that Respondent’s treatment of Patient CB fell below the standard of care in that he prescribed medications to the patient without thoroughly checking her prior history and medication records.
At the hearing, Respondent presented the testimony of his former MA to testify as to his conduct with patients that she observed while present with them. Respondent did not testify on his own behalf.
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).
The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license 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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004).
The Board established by a preponderance of the evidence that Respondent engaged in the conduct alleged in the Complaint and Notice of Hearing.
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 A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).
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RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Registered Nurse License No. RN108624 and Advanced Practice Certificate No. AP4232 previously issued to Respondent Phuoning Alex Keo.
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, June 19, 2018
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing