ALJDEC decisions subject to certification as final

20A-1609087-NUR · State Board of Nursing · 2020-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN145092

ISSUED TO:

ERIKA DEMIRAL,

RESPONDENT.

No. 20A-1609087-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 22, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared on behalf of the Arizona Board of Nursing (“Board”) with Michelle Laguna, Jennifer Hamilton, Alicia Wirth, Gloria Bao, Cheryl Nelson, and Stephanie Chambers as witnesses. Cindy Bachman (AZ CCR No. 50763) served as the official Court Reporter.

No appearance(s) by or on behalf of Erika Demiral (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

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After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

The Board has the authority to regulate and control the practice of nursing in the State of Arizona pursuant to Sections 32-1606, 32-1663, and 32-1664 of the Arizona Revised Statutes (“Ariz. Rev. Stat.”). The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act.

The mission of the Board 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. This mission is fulfilled through the regulation of the practice of nursing and the approval of nursing education programs, and supersedes the interest(s) of any individual or group.

Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken that Respondent received her nursing license from the Board on March 13, 2007. The license expired on March 26, 2020. The expired license was not renewed.

On April 07, 2020, the Board issued a Complaint and Notice of Hearing Summary Suspension Expedited Hearing (“Notice of Hearing” and “Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on April 22, 2020. The Notice identified the issue as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against [Respondent] who holds registered license number RN145091 to perform as a nurse in the State of Arizona.

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.

The Board set forth 6 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), R4-19-403(5), R4-19-403(7), R4-19-403403(9), and R4-19-403403(31); 32-1601(26)(g); and 32-1601(26)(j). Violations of the forgoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

Hearing Evidence

At the hearing the Board presented the testimonies of Michelle Laguna, RN – formerly of Cornerstone Hospital, Jennifer Hamilton, RN – formerly of Northwest Medical Center, Alicia Wirth, RN – Wesley Medical Center, Gloria Bao, RN – Oro Valley Hospital, Cheryl Nelson, RN – formerly of Northwest Medical Center, and Stephanie Chambers, RN – Nurse Practice Consultant and Investigator for the Board, and submitted Exhibits 1-12. Although the Tribunal afforded Respondent a 15-minute grace period, Respondent failed to appear at the time scheduled for hearing. Based on the testimony and evidence the Tribunal finds the following facts:

On or about September 22, 2016, while employed as a Registered Nurse (“RN”) at Cornerstone Hospital (“Cornerstone”) in Tucson, Arizona, Respondent failed to document assessments and care she provided to 6 patients assigned to her care during her 7:00 p.m. to 7:00 a.m. shift. Prior to leaving around 8:30 a.m. Respondent emailed her supervisor, in part, “I’m really super upset that I still have my charting to do. I actually fell I cannot stay to finish.” When asked by her supervisor to return to complete her charting, Respondent replied that her charts had been “ransacked and pulled apart” and she was “frozen” and “in no shape to drive” back to the hospital to complete her charting. Respondent alleged that she was exhausted but the fear of losing her license was keeping her awake. On September 30, 3016, after Respondent was informed of her consequential termination of employment, she accused Cornerstone of not caring about her requiring nurses to over-chart.

On or about September 20, 2016, the Board received a complaint from Cornerstone regarding Respondent’s refusal to complete her charting on September 22, 2016. Respondent’s supervisor wrote, in part, “The reason I am reporting this to the board is because as licensed professionals, we have an obligation to document the care that we provide patients. We document in order to pass on pertinent information regarding a patient’s condition. This was not done. I can understand her being upset (to some extent) and even tried to work with her to arrange a time for her to chart. However, we do not feel as though she made any attempt to do the right things for her patients and that is concerning.”

In response to the complaint the Board issued Respondent an investigative questionnaire, which Respondent returned timely on November 29, 2016. In her written narrative Respondent admitted that she had not completed required charting at Cornerstone on September 22, 2016, and alleged that she was suffering from a medical disability and behavioral health issues, for which she was not taking prescription medication for, that prevented her from completing her duties as a nurse during her employment there.

On or about December 03, 2017, while employed as a RN by Arcadia Healthcare Staffing in Tucson, Arizona, while she was assigned to work at Northwest Medical Center in Tucson, Arizona, Respondent failed to adhere to the standard of care for her assigned patients when she failed to chart for her 7:00 p.m. to 7:00 a.m. shift. Although Respondent only had 4 patients that shift, one of whom which was newly admitted, she did not complete her assessments until after the end of her shift that day. Additionally, Respondent failed to administer medication to a patient, in direct violation of a provider’s order, and also failed to scan patient medications and armbands at an acceptable rate.

On or about June 09, 2019, while employed as a RN by Oro Valley Medical Center in Oro Valley, Arizona, Respondent put patient safety at risk when she left mid-shift unannounced and without permission. She was absent for approximately two hours, which created a staffing crisis during her absence.

On or about December 13, 2019, the Board received a complaint from Nomad Health Staffing (“NHS”) regarding the termination of Respondent’s temporary employment contract with a client due to results of a medical audit a the client conducted one month prior. Specifically, in November 2019, during a travel nurse assignment at Wesley Medical Center (“WMC”) in Wichita, Kansas, Respondent made a multitude of note entries that contained clear discrepancies between narcotics she removed from a medication dispensing machine and narcotics she documented as administered or wasted. During this time Respondent also failed to correctly scan over 60 medications and patient identification bands. When questioned, Respondent became very defensive and blamed her errors on “computer issues.” Respondent’s claims were easily debunked as inaccurate by WMC. As a result, Respondent’s assignment was terminated due to a lack of nursing accountability and concern involving patient safety.

In response to the NHS complaint the Board issued Respondent an investigative questionnaire, which Respondent returned timely on March 02, 2020. In her narrative response Respondent argued that “sometimes the meds just ‘uncharted’ themselves” and that she wasn’t the only nurse who experienced “computer issues.” Respondent’s assertions were not substantiated.

At a Board meeting held on November 18, 2019, the Board voted and issued an Interim Order to Respondent for a neuropsychological evaluation to be completed by a Board-approved licensed psychologist, to be completed within 45-days and have the results returned to the Board.

In compliance with the Board’s Interim Order, Respondent’s neuropsychological evaluation was completed on December 28, 2019. An official report was forwarded to the Board on January 10, 2020. Based on his evaluation, the psychologist expertly concluded that Respondent’s examination results “are not consistent with a neurocognitive disorder” and opined that “there was no compelling evidence of an underlying mental health condition” or “any evidence of premorbid history or current difficulties” in the areas of alcohol and substance abuse. The only substantive recommendation Respondent received was for her to “seek psychotherapy with the goal of improving stress management” if she experienced strong emotional reactions or increased anxiety in the workplace.

On March 12, 2020, the Board notified Respondent that it would consider Proposed Findings of Public Emergency and Order of Summary Suspension on March 26, 2020.

At a Board meeting held on March 26, 2020, the Board voted to summarily suspend Respondent’s nursing license, pursuant to Ariz. Rev. Stat. § 41-1092.11(B), pending an administrative hearing.

In closing, the Board proffered that the standard of care for patient assessment and documentation requires that a nurse complete an assessment for each patient assigned to the nurse and document the findings of the assessment at least once prior to the end of the nurse’s shift, and immediately after receiving a new patient. The Board also proffered that the standard of practice for charting requires that a nurse chart in the moment so that the information is as accurate as possible.

The Board argued that because Respondent knew, or should have known, that all nursing services are required to be accurately and completely documented, that Respondent’s failure to adhere to a well-established standards of care and practice demonstrate Respondent’s risk to patient safety. The Board also argued that Respondent leaving patients unattended, without notice or permission, was an inexcusable dereliction of essential duties and responsibilities. Lastly, the Board argued that Respondent’s failure to participate in her administrative hearing illustrated her unwillingness to be regulated by the Board.

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 to 1669 and Ariz. Admin. Code R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Complaint and Notice of Hearing the Board mailed to Respondent’s address of record and e-mail address were reasonable, and Respondent is deemed to have received notice of the hearing.

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

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.

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(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

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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;

* * *

(5) Abandoning or neglecting a patient who requires immediate nursing care without making reasonable arrangement for continuation of care;

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(7)Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient;

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(9) Failing to take appropriate action to safeguard a patient’s welfare or follow policies and procedures of the nurse’s employer designed to safeguard the patient;

* * *

(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(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.”

“In applying a statute . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Each word, phrase, clause, and sentence must be given meaning so that no part of the legislation will be void, inert, or trivial. Legislation must also be given a sensible construction that avoids absurd results. If the words do not disclose the legislative intent, the court will scrutinize the statute as a whole and give it a fair and sensible meaning.

A license to practice nursing is a privilege, not a right. The Legislature has charged the Board with protecting the public and those who deal with licensed practitioners when it issues certificates and licenses.

After closely scrutinizing the credible and substantive evidence of record, the undersigned Administrative Law Judge finds that the Board has sustained its burden of proof in this matter and holds that 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 failed to chart and complete assessments during multiple shifts, and left her patients without care when she abandoned her shifts on two separate occasions. The record also reflects that Respondent intentionally failed to follow a provider’s order, and did not properly scan patient medications and armbands. The record further reflects that Respondent was responsible for numerous narcotic reporting discrepancies.

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), R4-19-403(5), R4-19-403(7), R4-19-403403(9), and R4-19-403403(31); 32-1601(26)(g); and 32-1601(26)(j).

Although Respondent does not have a neurocognitive disorder or other mental health condition(s) that affect her practice of nursing, her behavior exemplifies her periodic refusal to dutifully perform her job as a nurse. There is no credible evidence in the record to excuse or otherwise absolve Respondent from responsibility or consequences of her actions.

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 revoke Respondent Erika Demiral’s registered nursing license number RN145092.

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, May 28, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing