ALJDEC decisions subject to certification as final

20A-1709010-NUR · State Board of Nursing · 2022-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE PRACTICAL NURSE LICENSE NO. LP046493 ISSUED TO:

ALICIA JACQUELINE REID,

RESPONDENT.

No. 20A-1709010-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 14, 2021, with record held open until January 3, 2022.

APPEARANCES: Respondent Alicia Jacqueline Reid appeared on her own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board of Nursing (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 to -1669 and A.A.C. R4-19-101 to -815.

Alicia Jacqueline Reid (Respondent) holds Board-issued Practical Nurse License No. LP046493 in the State of Arizona; the license is set to expire in April 2022.

On September 1, 2017, the Board received a complaint from Natalie Fraiberg (Daughter), the daughter of a woman (Mother) in residence at Estrella Oasis nursing home (Facility) from approximately July 21, 2017 to August 25, 2017. Daughter’s complaint indicated that Respondent had been mother’s nurse “several times” during mother’s stay and had repeatedly displayed “anger” at Mother for not swallowing pills fast enough. Further, that Respondent had not been “courteous or caring” to Mother but had been “rude” to Mother and to Daughter (i.e., not willing to converse with Daughter about Mother’s condition or progress). Daughter alleged that Respondent left Mother in bed for long periods of time (which caused a bed sore) and “never” turned Mother during her entire stay.

Initially, when the Board was investigating the complaint, Respondent did not return the Investigative Questionnaire; she later indicated that she was she was bad with mail.

After receiving a letter from the Board about the matter being forwarded to the Board, Respondent made contact with the Board and also returned the Investigative Questionnaire.

Board Investigator interviewed Respondent and Respondent denied having been rude to Mother but indicated that she had said “okay” to Mother’s requests. Respondent further indicated that she, herself, had been was frustrated by the matter due to not knowing, initially, what the Board was investigating.

The Board issued a Complaint and Notice of Hearing that alleged violations of A.R.S. § 32-1601(26)(d) and (j) and A.A.C. R4-19-403(2) 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 held on December 14, 2021.

The Board submitted 2 exhibits and presented the testimony of Daughter, LPN Tamara Pharr, and Dr. Janeen Dahn (Board’s Associate Director for Hearing, Licensing, and Compliance). Respondent testified on her own behalf; she submitted no exhibits.

At hearing, Daughter testified that Mother had been at Daughter’s home until Daughter could no longer care for her by herself and that, while things had appeared to be fine in the beginning at Facility, Daughter subsequently became concerned and unhappy with the overall care Mother was receiving. Daughter indicated that she was at Facility every day from about 10:00 a.m. to the evening.

When questioned about how many days Respondent had been caring for Mother during the times Daughter had been there, Daughter indicated that she did not remember but stated “enough to have a bad impression, evidently.” Daughter indicated that she had seen Respondent giving care to Mother “a handful” of times and felt that her own interactions with Respondent had not been “professional.”

Daughter recalled that Mother had been very sick with a UTI and, while at the facility, developed a bed sore that “never healed.” Daughter indicated that Mother was “extremely” weak and could not walk or get up by herself and that, sometimes she had to leave the room to find someone to help with toileting or to clean up Mother.

Daughter also recalled being upset about “bizarrely” being asked to leave the room by a male nurse while a “wound on [Mother’s] leg” was, in fact, being tended to when she had been in the room other times while this was being done.

Daughter indicated that, in her opinion, Respondent had “acted like she couldn’t speak English” when Daughter would ask questions. Daughter was not specific in this regard, but stated “Sometimes I would ask questions and [Respondent] just was not going to help in any way.”

Daughter indicated that she had communications with the “head nurse” who tried to appease her regarding the whole scenario and who, Daughter testified, told her that Respondent did not have a good home life and she had to accept the fact that Respondent was probably not in a good mood when she came to work. Daughter indicated that she subsequently contacted the Administrator regarding taking Mother out of the facility and getting her money back or suing Facility.

Unit Manager Tamara Pharr, LPN, worked with Respondent at Facility. Ms. Pharr indicated that Respondent worked a shift from 7:00 a.m. to 7:30 p.m. and worked through Station 1 on Monday, Station 2 on Tuesday, and Station 3 on Wednesdays.

Ms. Pharr indicated that she had been concerned about Respondent’s “attitude” in response to “a few times” when a patient did not like the way Respondent “spoke” to them but testified that Respondent was a good nurse and that she had not had any concerns about Respondent’s nursing care of patients.

Ms. Pharr admitted that she had never overheard any direct interactions between Respondent and any patients or family, but generally felt that Respondent could have “improved” in the way that she spoke to patients. Ms. Pharr indicated that, at some point, they did a “write-up” (the specifics of which she could not recall) and then wanted to move Respondent from being a “float” nurse to being assigned to one station.

Respondent worked at Facility for 8 years.

At hearing, Respondent acknowledged that there were times when patients would make complaints, especially in a circumstance when a patient is upset or did not like what a nurse might be saying to them (giving the example of not being able to provide more pain medication at that time), noting that the first thing such patient would usually say is “I’m going to report you.” Respondent indicated that, in such a situation, she would say to them “Okay. Go ahead. If you feel the need to report me, go right ahead.” Respondent’s position was that the patient has the right to make the complaint and that she would tell them “okay” because she knew she had nothing to hide about the situation.

Respondent noted that her Jamaican accent may cause a person to think that she does not understand English, but she does, and she further indicated that her manner of speaking might be the reason that a person might think Respondent is being rude. Regarding communications, Respondent noted that an improvement as to communications might be to be able to answer a phone call or a patient call more quickly in situations which permit a faster response.

Regarding Mother, Respondent recalled one specific time when Mother had said to Respondent that Respondent was being “rude.” Respondent recalled that Mother had come back to Facility from the hospital, because she had fallen and was “all bandaged up.” Respondent testified that Mother had been asking “everyone” about seeing a doctor and needing to talk to a doctor, and Respondent had simply responded “okay” to that repeated request and Mother then accused Respondent of being rude. Respondent testified that she had then responded to Mother, “No, I just said okay to you because you said something to me, and I said okay.” Respondent testified that she then went to her supervisor to report the exchange.

Respondent testified that in situations in which she could not resolve the matter, she would take the matter to a supervisor to have another person try to resolve the situation. Respondent’s position was that, at that point, the person is upset at the nurse and they do not want to talk to the nurse. Respondent acknowledged that she would often only say “okay” to a patient and then seek out a supervisor. Respondent noted that, often, the nurses were busy with their duties (such a medication pass) and would not always be able to respond directly to a patient or family concern and perhaps not return a phone call as quickly as family might have wanted.

Respondent declined to be assigned to only one station because she liked being a “float” nurse; Respondent resigned her position and left Facility.

In this case, the Board argued that Respondent’s actions alleged in the Complaint and Notice of Hearing, of Respondent being “rude and dismissive” of Mother’s and Daughter’s concerns about Mother’s medical condition, fell below the standards of care of “courteous interactions” with patients and their families and a nurse’s responsibility to address a patient’s concerns and, thus, were unprofessional acts and conduct that are or might be harmful or dangerous to the health of a patient or the public. The Board proposed to issue a decree of censure to memorialize the findings and conclusions regarding the complaint and, in the event of any future conduct, the Board could subsequently take further action.

Respondent’ position was that a censure was neither appropriate nor warranted because she had done nothing wrong as to caring for Mother, as to Daughter, or as to her job at Facility. Respondent further noted that she has been a nurse for 20 years, with no [other] complaints against her work.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under A.R.S. §§ 32-1606, 32-1663 and 32-1664.

The Board bears the burden of proof and must establish cause to penalize Respondent’s licensed practical nurse 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 Vazzano 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).

Based on the hearing record, the Administrative Law Judge concludes that the Board failed to establish that Respondent was “rude or dismissive” to Daughter or Mother with regard to concerns about Mother’s care or medical condition. Respondent was forthcoming in admitting that she would neither confront nor assuage an unhappy patient’s concerns but would either call in an appropriate staff member responsible for completion of a task or elevate a situation to her supervisor in an event she understood that the complaining person was unhappy about something, which in this case could have included something that Respondent had done or not done. Based on Daughter’s testimony, Daughter’s perspective in this matter underlying her filed complaint included Daughter’s inexperience with a nursing home setting and its staffing or care assignments/duties, included everything Daughter was unhappy with about Facility, and included her belief that the Facility staff, and especially Respondent, was not helping or caring for Mother in the manner, or as quickly as, Daughter had hoped for.

At all relevant times, Respondent was working at Facility only three days a week. There is no evidence that Respondent was caring for Mother when the unknown-cause cut on Mother’s leg occurred or that Respondent’s nursing care alone, or any alleged lack of nursing care, was responsible for Mother developing a bed sore that Daughter said “never” healed.

While the Administrative Law Judge concludes that Respondent’s approach to an upset patient or family member can be considered reserved, or even somewhat aloof as to the moment, Respondent’s actions in remaining reserved and seeking a person to provide the appropriate care or elevating a situation to a supervisor was not outside a standard of nursing care. The Board has not demonstrated that the standard of care by a nurse includes a scale against which only a certain level of, or lack of a higher level of, “compassion” should be deemed to be the level of “professionalism.” The hearing record demonstrated that Respondent’s demeanor remained “even” and not heightened, and there is no evidence that Respondent ever acted or conducted herself in anger in response to either Mother or Daughter.

Accordingly, the Board failed to established by the preponderance of the evidence that Respondent engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(d) and (j) or A.A.C. R4-19-403(2) and (31). Therefore, the Administrative Law Judge concludes that Respondent’s LPN License No. LP046493 should NOT be disciplined with a decree of censure.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that Respondent’s appeal be granted and that no discipline be issued as Respondent’s LPN License No. LP046493.

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.

-54864001

001

-137160-45720000Done this day, January 25, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing