ALJDEC decisions subject to certification as final

18A-1701031-NUR · State Board of Nursing · 2017-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN073666

ISSUED TO:

LOYD JAMELL SINCLAIR,

RESPONDENT

No. 18A-1701031-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2017, September 12, 2017, and September 13, 2017, with the record left open until October 2, 2017 to allow the court reporter’s transcript to be a part of the record.

APPEARANCES: Assistant Attorney General Elizabeth Campbell appeared on behalf of the Arizona State Board of Nursing. Teresa Sanzio, Esq. appeared on behalf of Respondent Loyd Jamell Sinclair.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. The Arizona State Board of Nursing (“Board”) issued Registered Nurse License No. RN073666 to Respondent Loyd Jamell Sinclair (“Mr. Sinclair”).

2. Mr. Sinclair has been a nurse for approximately 30 years.

3. On or about January 3, 2017, Mr. Sinclair was on duty as a Registered Nurse (“RN”) at Banner University Medical Center – South, located in Tucson, AZ (“Banner”). During his shift, Mr. Sinclair was asked to assist other nurses in the room of Patient L.G. (“Patient”). There were at least two other nurses in Patient’s room.

4. Patient was diagnosed with HIV and Hepatitis C. Patient was also suffered from with schizophrenia, bipolar depression and borderline personality disorder.

5. Mr. Sinclair entered Patient’s room and began assisting another nurse with securing a restraint on Patient’s left arm. At the time, Patient was lying flat on her back in the bed. While Mr. Sinclair was assisting the nurse, Patient looked at Mr. Sinclair and began raising up her torso. As she raised up, Patient told Mr. Sinclair that she was going to spit on him. Patient began coughing up spit in her throat and at the time that she began to release the spit, Mr. Sinclair placed his hand over Patient’s mouth, pushed her back onto the bed, and turned Patient’s head to the side.

Mr. Sinclair leaned on Patient as he turned her head to the side.

6. At the time that Mr. Sinclair placed his hands over Patient’s mouth, Patient spit on Mr. Sinclair’s hand.

7. Mr. Sinclair removed his hand and stood back up. Mr. Sinclair pointed his finger at Patient and told her that he would not allow her to spit on him or anyone else.

8. At the time that Patient lifted off the bed prior to spitting, Patient’s left hand was locked in a restraint. However, the restraint was not tightened.

9. Mr. Sinclair informed his Supervisor later that day that Patient attempted to spit on him and the other nurses, and he held her down to prevent it. Patient told his Supervisor that Patient spit in his hand.

10. In 2017, Mr. Sinclair was terminated from his position as an RN at Banner. Mr. Sinclair worked for Banner hospital for approximately six years.

11. On or about January 6, 2017, the Board received a complaint from Banner that Sinclair used excessive force against Patient when attempting to readjust Patient’s restraints.

12. The Board assigned Stephanie Chambers to investigate the complaint.

13. In May of 2017, Ms. Chambers presented the findings from her investigation to the Board. Ms. Chambers did not inform the Board that Patient was diagnosed with HIV and Hepatitis C.

14. On May 18, 2017, the Board issued an Interim Order requiring that Mr. Sinclair submit to an anger management/impulse control evaluation to be completed by a board psychologist.

15. On June 22, 2017, Emily T. Bashah, Psy.D. conducted an independent evaluation of Mr. Sinclair for anger management and an impulse control assessment in her office.

16. On July 12, 2017, Dr. Bashah issued a report regarding her evaluation and concluded that Mr. Sinclair suffered from Post-Traumatic Stress Disorder (PTSD) and made recommendations for treatment.

17. The Board received Dr. Bashah’s report decided to summarily suspend Mr. Sinclair’s RN license.

18. Mr. Sinclair filed a timely appeal to the summary suspension.

19. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

20. At hearing, the Board presented the testimony of Valerie Alexander, RN, Emily T. Bashah, Psy.D, Stephanie Chambers, RN, and submitted exhibits 1 through 10. Mr. Sinclair testified on his own behalf and presented the testimony of also presented the testimony of Mario Penia, RN, Ray Lemberg, Ph.D., and submitted exhibits A through G.

21. Stephanie Chambers is a surgical nurse and has worked for 29 years in acute facilities. Ms. Chambers testified that if a patient threatens to spit, the nurse should move away or use a towel to block the spit. Ms. Chambers also stated that a nurse should use a spit guard to protect themselves from making direct contact with the spit.

22. Ms. Chambers testified that she watched the video of the incident that took place on January 3, 2017. Ms. Chambers stated that Mr. Sinclair was not wearing gloves when he made physical contact with Patient. Ms. Chambers testified that Mr. Sinclair placed his hand directly over Patient’s mouth and came in direct contact with mucus membranes and blood. Ms. Chambers testified that while Mr. Sinclair’s hands were covering Patient’s mouth, he had Patient’s face pressed down on the mat. Ms. Chambers stated that Patient’s face becomes blanch due to the lack of blood circulation.

23. Ms. Chambers testified that she observed Mr. Sinclair point at Patient after he stood back up. Ms. Chambers testified that Mr. Sinclair’s act of pointing at Patient was inappropriate because a nurse should not engage with the patient while the patient is in restraints, especially if the nurse knows that the patient is a spitter.

24. Ms. Chambers testified that Mr. Sinclair’s conduct was not standard practice because he should have got a towel, stepped back and refrained from placing his body weight on Patient’s mouth. Ms. Chambers testified that because Patient was already in restraints, Mr. Sinclair should have used the least amount of force needed. 25. Ms. Chambers testified that other than the January 3, 2017 incident, she was not aware of any incident where Mr. Sinclair engaged in unprofessional conduct other than an incident in 2012 at Banner. In 2012, the Director of Nursing at Banner completed a corrective action form and required that Mr. Sinclair resolve issues related to was required to take corrective action related to unprofessional conduct in his role as a nurse. According to the report, Mr. Sinclair failed to maintain a good hold on a patient while transporting the patient from the dining room to the seclusion room.

25. Valerie Alexander is an RN at Banner. Ms. Alexander was Mr. Sinclair’s RN nurse manager in the adult acute patient unit on the night of the incident. Ms. Alexander testified that Patient was in a closed unit that served people who were actively experiencing symptoms of their mental illness. Ms. Alexander stated that Patient was put in the seclusion room because Patient had assaulted a physician and started banging her head which led to her being placed in four point restraints.

26. Ms. Alexander testified that Mr. Sinclair told her about the incident shortly after it occurred. Ms. Alexander stated that Mr. Sinclair told her that Patient had been abusive toward him. Ms. Alexander testified that Mr. Sinclair told her that he had an accidental contact with Patients’ mouth and caused blood on her lip due to her attempt to spit. Ms. Alexander stated that Mr. Sinclair told her that he tried to block the spit, but lost his balance and went forward.

27. Ms. Alexander stated that she has watched a videotape of the incident several times. Ms. Alexander stated that the video tape does not have sound. Ms. Alexander testified that Mr. Sinclair never appeared to lose his balance. Ms. Alexander stated that when Mr. Sinclair reported the event to her, he was adamant about his position that he would not allow Patient to spit on him.

28. Ms. Alexander testified that according to Banner Policies Blood Borne Pathogen Exposure Control Plan, gloves are to be worn at all times when a patient is in seclusion in restrains. Ms. Alexander testified that Mr. Sinclair was not wearing gloves in Patient’s room.

29. Ms. Alexander testified that it appeared that Mr. Sinclair was retaliating because placing one’s hand over a patents mouth is not a part of the Banner restraint policy. Ms. Alexander testified that the nurses are trained in performing specific holds and the hold that Mr. Sinclair used was not a hold that the nurses used. Ms. Alexander also testified that Patient’s spit would have presented an exposure to HIV.

30. Dr. Emily T. Bashah, Psy. D. testified that she conducts forensic evaluations for the Board. Dr. Bashah stated that the board must approve her as an independent evaluator. Dr. Bashah testified that she has completed 10-12 evaluations for the Board as a licensed psychologist. Dr. Bashah testified that most were substance abuse evaluations and about half of the evaluations were performed to assess anger management or impulse control.

31. Dr. Bashah testified that the Board requested that she conduct a forensic evaluation of Mr. Sinclair. Dr. Bashah testified that she administered two exams to Mr. Sinclair. Dr. Bashah conducted an independent evaluation and an MPPI-2RF. Dr. Bashah testified that while she was conducting her examination, Mr. Sinclair was came physically close to her as he reenacted the events of January 3, 2017. Dr. Bashah concluded that Mr. Sinclair suffers from PTSD and recommended follow up treatment. Dr. Bashah’s forensic evaluation provides, in relevant part as follows:

DSM-5 Diagnostic Formulation and Summary:

The observations, test results and reported history suggest that Mr. Sinclair likely meets criteria for Posttraumatic Stress Disorder, although his insight into current symptoms appear limited. As indicated above, he appeared to learn to suppress his emotions from childhood to cope with the extensive violence, victimization and abuse he experienced. It is important to note that the experiences during the Vietnam War and working in the underground mine were also traumatic. He acknowledged that he would benefit from psychological services at the Southern Arizona Veterans Affairs Health Care System in Tucson but was hesitant to personally endorse specific symptoms of Posttraumatic Stress Disorder. It appears likely that he learned to suppress reactions and trauma responses in order to cope and adapt with everyday life demands but when he is triggered, he is likely to become over-activated emotionally and behaviorally unrestrained. It is likely that his paranoid/persecutory ideations, impulse control problems, emotional instability and poor interpersonal boundary maintenance are all related to his history of exposure to violence, racial persecution, war trauma, intimate partner abuse. As such, these contribute to a constellation of symptoms of an undiagnosed and untreated Posttraumatic Stress Disorder.

DSM-5 Diagnostic Impression:

Posttraumatic Stress Disorder

Treatment Recommendations:

The following recommendations me included for Mr. Sinclair in light of evaluation findings:

1) Individual psychotherapy to assist Mr. Sinclair in improving his mental, emotional, behavioral and interpersonal functioning. It is also recommended that Mr. Sinclair foster healing from the extensive and compounded traumas and losses he endured throughout his lifetime. He would benefit from learning adaptive coping skills to limit suppression of emotional and thought disturbances. Mr. Sinclair would benefit from skills training in interpersonal boundaries, impulse control, and emotional awareness and developing insight into his own thoughts, action urges and internal experiences. It is recommended that he work with a therapist who is culturally competent in working with wax veterans and with African American individuals. Weekly individual therapy is recommended for a minimum of twelve sessions, then decreased to once every other week, for a total duration of one year, for maximum and maintained benefit.

2) Group therapy would be beneficial for Mr. Sinclair to help normalize his experiences of trauma, grief and loss and to learn skills, such as anger management, through psychoeducational groups (also offered through the Veterans Affairs.)

3) Assessment results suggest that Mr. Sinclair poses a risk to patients at present as he remains untreated for trauma, displays poor interpersonal insight into boundaries, with limited impulse control and emotional reactivity. It is cautioned that he continues to pose a risk, especially among patients or situations that may trigger him. As such, it is

recommended that he currently be restricted from working in direct patient care and especially among vulnerable or unstable populations.

4) A re-evaluation of Mr. Sinclair's treatment progress, that includes his mental, emotional, behavioral and interpersonal boundary functioning, may be beneficial at approximately one year and re-evaluate conditions of work restrictions (if imposed by the Board).

32. Ray Lemberg, Ph.D. testified that he is a clinical psychologist and has been licensed for 40 years. Mr. Lemberg testified that in the last 10 years he has been an expert witness in civil and criminal cases. Mr. Lemberg testified that he has received training in MMPI-2RF. Mr. Lemberg testified that he was first trainee with MMPI-2RF in graduate school and took his latest course about 6-7 years ago. Mr. Lemberg testified that he has taken training for PTSD through the years and he conducts private PTSD assessments for the Veterans Administration.

33. Dr. Lemberg testified that he reviewed Dr. Bashah’s evaluation and raw

data. Dr. Lemberg testified that on September 4, 2017, he met with Mr. Sinclair

for about an hour and a quarter. Dr. Lemberg testified that he conducted a mental status exam a fill-in-the-gap psychological history, asked about Mr. Sinclair’s PTSD symptoms and why Mr. Sinclair answered true or false on the MPPI-2RF. Dr. Lemberg testified that he did not administer the MPPI-2RF himself. Dr. Lemberg testified that he conducted no additional testing other than a PTSD self-endorsement screen.

34. Dr. Lemberg testified that Dr. Bashah failed to administer a full battery test. Mr. Lemberg testified that he conducted an evaluation of Mr. Sinclair in a coffee shop in Tucson, AZ.

35. Mr. Lemberg opined that Mr. Sinclair does not suffer from PTSD and believed that Dr. Bashah does not have enough experience to properly administer and interpret the MMPI-2RF. Additionally, Dr. Lemberg opined that even if Mr. Sinclair were diagnosed with PTSD, it would take a “leap of faith” to infer that he would be a danger to himself or others. See Exhibit G, page 4. Dr. Lemberg’s evaluation provides, in relevant part, as follows:

EXAMINER’S CONCLUSIONS

* * * *

10. Recent statistics indicate that approximately 94% of veterans deployed in a war zone will not commit violence toward others. Most of the violent acts toward others, involved domestic violence. However, over the past 15 years, civilian suicides increased by 23%, while veteran suicides increased by 23%, while veteran suicides increased by 32%.

11. If PTSD were to trigger aggression toward others, it is most likely would be by a combat veteran who has a “fight or flight response” and, although the flight response is more common, i.e. being triggered by a loud noise such as a firecracker or a vehicle backfiring resulting in going for cove, versus a fight response, i.e., aggression. Mr. Sinclair was not a

combat veteran and has not had any history of violence.

SUMMARY

[Mr. Sinclair] is a 64-year-old male whose license as an RN was suspended based on Dr. Bashah;s reporting that he has PTSD and poses a danger to others. It is this psychologist’s opinion that Mr. Sinclair does not suffer from PTSD, and even if he did, the conclusion that he is a danger toward other would be erroneous. Additionally, the methods upon which Dr. Bashah’s conclusions were developed were flawed insofar as she based them largely on one psychological instrument, i.e., the MMPI-2RF, which is not critically analyzed and was misinterpreted.

The Arizona State Board of Nursing has concluded that Mr. Sinclair is not mentally competent, which in itself is an erroneous conclusion. Although it appears that mental incompetence is not spelled out by the Board, nevertheless from criminal and civil interpretation of competency, there is a strong suggestion the the individual suffers from a mental disability that renders them incapable of managing personal affairs, making important decisions and understanding the consequences of his actions. None of these apply to Mr. Sinclair in this examiner’s opinion.

It is the opinion of this examiner that Mr. Sinclair does not suffer from a psychiatric disorder and therefore does not need psychological or psychiatric treatment. In Mr. Sinclair’s 30 year history as a registered nurse, he has no personal or professional history of aggression, violence or inappropriate conduct.

Hopefully, the Administrative Law Judge in this case will consider that Mr. Sinclair is competent as a nurse, mentally competent, safe to perform his duties, and that his license will be reinstated.

36. Mr. Sinclair presented the testimony of Mario Pena. Mr. Pena testified that he has known Mr. Sinclair for the last 6 years. Mr. Pena stated that he has been a RN for 7 years and worked in the psychiatric unit at Banner on the date of the January 3, 2017 incident. Mr. Pena testified that he resigned from Banner to do a grant proposal related to multiple sclerosis. Mr. Pena stated that he worked with Mr. Sinclair 50% of the time. Mr. Pena state that he knows Patient and has cared for her many times. Mr. Pena stated that Patient frequently goes into seclusion. Mr. Pena testified Banner did not have a policy of refraining from talking to Patients while they are in restraints. Mr. Pena testified that Mr. Sinclair is a team player. Mr. Pena testified that Mr. Sinclair is respectful and uses strategies to help calm patients. Mr. Penia testified that he has never seen Mr. Sinclair be physical aggressive or get into a verbal confrontation.

37. Mr. Pena stated that he has never seen Mr. Sinclair take statements personally. Mr. Pena testified that assertiveness is required when working in the psychiatric unit. Mr. Pena testified that he has never seen Mr. Sinclair fighting anyone at work. Mr. Pena testified that there are no spit guards in the seclusion room. Mr. Pena testified that he would have reacted the same way that Mr. Sinclair reacted in the same situation. Mr. Pena stated that spitting is considered a physical assault and if you do not react, people get hurt. Mr. Pena testified that the new director at Banner came in and changed policies and it was unclear when to use your hands on a patient. Mr. Pena stated that the new changes happened in January of 2017. Mr. Pena testified that he believes that the least amount of force should be used.

38. Mr. Sinclair testified that he has been a RN for 30 years. Mr. Sinclair testified that at the time of the incident, he lost his balance. Mr. Sinclair stated that he simply wanted to block the spit. Mr. Sinclair testified that he was not originally attempting to cover Patient’s mouth. However, Mr. Sinclair stated that he believed that Patient’s left hand was unlocked.

39. Mr. Sinclair testified that Patient did not use a racial slur. Mr. Sinclair testified that he wanted to block the spit because Patient was HIV Positive and had been diagnosed with Hepatitis C.

40. Mr. Sinclair testified that he did not wear gloves because he believed that he was going into Patient’s room to readjust the restraints. Mr. Sinclair testified that he did not anticipate that Patient would try to spit on him. Mr. Sinclair testified that he learned after the incident that Patient had been spitting at a nurse by the name of Catherine. However, Mr. Sinclair testified that Catherine did not tell anyone.

41. Mr. Sinclair testified that a hearing would not have been necessary if the video had sound. Mr. Sinclair state that everyone would have heard Patient state “I will spit on you” and how Patient coughed up the spit from deep within her throat.

42. Mr. Sinclair testified that when he pointed his finger at Patient, he was telling her that he would not allow Patient to spit on him or any of the other staff.

43. Mr. Sinclair testified that Patient spit in his hand but that she did not break his skin. Mr. Sinclair testified that he did not tell Ms. Alexander anything about blood but he did tell Ms. Alexander that Patient spit in his hand.

44. Mr. Sinclair testified that he did not walk away from Patient or distance himself because the events happened so fast that he just reacted. Mr. Sinclair testified that there were no towels in the room and no spit guards. Mr. Sinclair also testified that he never told Dr. Bashah that Patient “breaked his skin”.

45. Mr. Sinclair also provided testimony about the 2012 incident. Mr. Sinclair testified that he did not use excessive force. Mr. Sinclair testified that he was attempting to remove Patient from the lunch room at a time that she was unwilling to leave voluntarily.

46. Mr. Sinclair testified that he does not believe that his childhood experiences were traumas. Mr. Sinclair testified that he still sees his ex-wife because he visits with the grandchildren. Mr. Sinclair testified that it does not trigger any of the negative events of his past. Mr. Sinclair testified that he believes that he “broke the chains” of abuse. Mr. Sinclair testified that his daughters were never abused and he never abused his daughters.

47. Mr. Sinclair testified that he never stood close to Ms. Bashah during the evaluation. Mr. Sinclair testified that he demonstrated the incident in her office so that she could understand the events that occurred.

48. Mr. Sinclair testified that when he feels low, he spends time with his grandchildren. Mr. Sinclair testified that a Veterans Administration doctor stated that he did not have PTSD. Mr. Sinclair testified that he never saw blood in Patient’s mouth.

49. The Board contended that the hold used by Mr. Sinclair was not a taught hold. The Board contended that Ms. Chambers testified that excessive force can be seen by the wrinkles on the bed as Mr. Sinclair holds down Patient. The Board contended that Mr. Sinclair’s words to Patient were not therapeutic. The Board argued that Mr. Penia could not tell how much force was being used. The Board contended that Ms. Alexander stated Mr. Sinclair appeared to be irritated.

50. The Board contended that Dr. Bashah testified that during the evaluation, Mr. Sinclair was activated and close to her face. The Board contended that Dr. Bashah testified that Mr. Sinclair has learned to suppress his emotions and at some point that catches up with you. The Board argued that Dr. Bashah’s video was not based on the MMPI-2RF alone but also on the video. Based upon Dr. Bashah’s training and experience, she concluded that Mr. Sinclair is not safe to practice. The Board contended that Dr. Lemberg did not conduct a clinical interview and did not request a detailed interview. Furthermore, the Board contended that Dr. Lemberg did not watch the video of the incident and conducted the interview in a public place.

51. The Board contended that based upon the video and testimony, Mr. Sinclair stepped forward when he should have stepped back. The Board argued that that the video and the testimony show that Mr. Sinclair used excessive force when he placed his hand over Patient’s face and pushed her head on to the bed. The Board contended that Mr. Sinclair did not wear gloves and that there was blood on Patient’s mouth after the incident and the pressure on her face shows that she was harmed.

52. Mr. Sinclair contended that at the time that the Board summarily suspended Mr. Sinclair’s license, there was no imminent threat to the public because it waited 6 months after the incident to suspend Mr. Sinclair. Mr. Sinclair contended that Dr. Bashah is inexperienced and that she failed to analyze critical questions and did not use a PTSD scale.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-

1606(A)(8).

The Board bears the burden of persuasion to establish cause to penalize

Mr. Sinclair’s registered nurse license. Ariz. Rev. Stat. § 41-1092.07(G)(2);

The Board bears the burden of proof and must establish cause to penalize Respondent’s privilege to practice nursing in Arizona 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:

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 facts, as set forth previously, establish that Respondent committed unprofessional conduct as defined by Ariz. Rev. Stat. section 32-1601(24)(d), (e), (h); 32-1601(22)(j); and A.A.C. R4-19-403(2), (9), (31).

Because Respondent has committed unprofessional conduct, the Board has authority to suspend his license to practice nursing in Arizona. Ariz. Rev. Stat. § 32-1663(A), (D); and § 32-1664(O).

Considering the facts and circumstances of this matter, it is recommended

that the order summarily suspending Respondent Loyd Sinclair’s RN be affirmed.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Loyd Sinclair’s Registered Nurse License.

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, October 23, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing