ALJDEC decisions subject to certification as final

20A-1608027-NUR · State Board of Nursing · 2020-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN133473

ISSUED TO:

WENDY LORRAINE PATTON,

RESPONDENT.

No. 20A-1608027-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 25, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared on behalf of the Arizona Board of Nursing (“Board”) with Charles William Bascom, Elizabeth Dorman, Pam Millben, and Janeen Dahn as witnesses. Wendy Lorraine Patton (“Respondent”) appeared on her own behalf. April Foltz and Michael Patton observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

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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

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken that Respondent was first issued Registered Nurse License No. RN133473 on June 03, 2005. The license is in good standing. Respondent’s license is unencumbered and due for renewal on April 01, 2021.

On December 31, 2019, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on February 25, 2020. The Complaint identified the issue for hearing as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against, Wendy Lorraine Patton, registered nurse license number RN133473 to perform as a nurse in the State of Arizona.

The Board set forth 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(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(1)(A), R4-19-403(18), and R4-19-403(31); 32-1601(26)(e), and 32-1601(26)(j). Violations of the foregoing 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 outlined in the Board’s Complaint.

Hearing Evidence

The Board presented the testimonies of Charles Bascom, Elizabeth Dorman, Pam Millben and Janeen Dahn, and submitted nine exhibits into the record. Respondent testified on her own behalf and submitted four exhibits into the record.

On January 18 2016, Respondent was hired by Tucson Medical Center (“TMC”) located in Tucson, Arizona, as a Registered Nurse.

On January 29, 2016, the Board issued a Letter of Concern to Respondent for “not always having the vial of medication on you when asking another nurse to co-sign a waste,” and for refusing to submit to a drug test, which resulted in Respondent’s termination of employment from University of Arizona Medical Center (“UAMC”) in Tucson, Arizona, in October 2013.

On July 10, 2016, during a shift at TMC Respondent approached a charge nurse, Charles Bascom (“Nurse Bascom”), and asked him to witness the waste of one Vicodin tablet, but Respondent only had half of the Vicodin tablet with her at the time she requested the waste. Nurse Bascom refused to witness the waste without the whole tablet, and instructed Respondent to find the other half and return it to him to perform the waste. Instead, Respondent sought out another registered nurse and asked her to witness the waste. The other nurse signed-off as witnessing Respondent waste of the Vicodin, but later admitted to investigators that she had not visualized the entire tablet before doing so.

Once Nurse Bascom learned of Respondent’s insubordination, he contacted nursing supervisor Elizabeth Dorman (“Supervisor Dorman”) to express his suspicion that Respondent had diverted the Vicodin.

As a result, Supervisor Dorman escorted Respondent to a drug test whereby Respondent submitted to urinalysis. Respondent’s results returned positive for Benzodiazepines and Oxycodone.

Respondent did not have a prescription for Benzodiazepines or Oxycodone.

On July 18, 2016, TMC terminated Respondent’s employment.

On August 02, 2016, TMC reported to the Board that Respondent had exhibited suspicious behavior with regard to handling Vicodin (i.e. Hydrocodone with Acetaminophen), a prescription narcotic, on July 10, 2016, and had tested positive on a for cause drug test.

As a result of TMC’s report, the Board initiated an investigation. On October 25, 2016, the Board received correspondence from Respondent regarding the underlying conduct resulting in her termination of employment from TMC. In her letter, Respondent stated that she broke a “norco tablet” in half to help the patient take the medication, but learned shortly thereafter that intravenous medication had been prescribed for the patient. Respondent alleged that she wasted the halved pill with another nurse because she could not find Nurse Bascom. Respondent testified, however, that she did not waste with Nurse Bascom because “he was busy on the phone.”

On January 31, 2019, during an interview with Senior Investigator Pam Millben (“Investigator Millben”), Respondent denied using marijuana since her first year of high school.

On February 04, 2019, at the request of Board staff, Respondent completed a drug test. On February 11, 2019, the Board received Respondent’s drug test results. Respondent’s drug test was positive for prescribed medication and marijuana.

On March 06, 2019, during an interview with Investigator Millben, Respondent admitted that she consumed marijuana in December 2018. Specifically, Respondent stated she consumed one 10mg marijuana “gummy bear,” but later admitted to consuming three 10mg marijuana candies after being presented with her drug test results and prescription records.

On or about March 18 2019, the Board issued an Interim Order for a psychological evaluation by a Board-approved psychologist, which Respondent completed.

On April 11, 2019, Respondent submitted for a psychological evaluation. Respondent did not remit psychiatric and/or medical records to the evaluator (“Psychologist”) by May 01, 2019, as requested, despite attempts on April 17, 2019, April 24, 2019, and April 29, 2019, by Psychologist to obtain said information.

On or about May 04 2019, Psychologist submitted recommendations to the Board, including mental health treatment and therapy.

CONCLUSION 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 through 1669 and Ariz. Admin. Code R4-19-101 through 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 penalize 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.

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(26) 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) As 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.

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(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:

(1) A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice;

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(18) Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices;

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(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.

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(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(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating 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.”

Here, the Board has sustained its burden of proof. The undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of unprofessional conduct against Respondent to be credible.

In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients and other healthcare providers. It is clear from a review of the record that Respondent has not consistently met these rudimentary standards to practice nursing.

The record reflects that Respondent was terminated from employment by UAMC for failing to engage in appropriate standards of practice and for failing to submit to drug test. The record also reflects that Respondent was terminated from employment by TMC for failing to engage in appropriate standards of practice at TMC, and for testing positive for drugs for which she did not have a prescription. The evidence further reflects that during its investigation of Respondent, she provided multiple inconsistent statements and admitted to not adhering to appropriate standards of practice.

Thus, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(26)(d); as more specifically defined by Ariz. Admin. Code R4-19-403(1)(A), R4-19-403(18), and R4-19-403(31), 32-1601(26)(e), and 32-1601(26)(j).

During the hearing, Respondent evinced her intent not to take any personal responsibility for her conduct. While Respondent may have behavioral health issues that affect her practice of nursing, those issues do not excuse her behavior or absolve her from responsibility from consequences stemming therefrom.

The Board has a legitimate interest in protecting the public. 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 and 32-1664.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board place Respondent Wendy Lorraine Patton, registered nursing license number RN133473, on probation for eighteen (18) months.

IT IS FURTHER RECOMMENDED that during Respondent’s probationary period Respondent adhere to and complete Psychologist’s eight (8) behavioral health and monitoring recommendations.

IT IS FURTHER RECOMMENDED that if Respondent fails to fully and timely comply with the aforementioned recommendations, absent written permission from the Board, the Board revoke registered nursing license number RN133473.

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, April 01, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing