ALJDEC decisions subject to certification as final

21A-1611052-NUR · State Board of Nursing · 2020-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN120326

ISSUED TO:

AMY KRISTINE DEE,

AKA: Amy Dee Morin; Litos Kristine Dee

RESPONDENT

No. 21A-1611052-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 18 and September 19, 2020

APPEARANCES: Amy Kristine Dee on her own behalf; Elizabeth Campbell, Esq. for the Board of Nursing

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.

On August 6, 2020, the Board issued a “Complaint and Notice of Hearing, Summary Suspension, Expedited Hearing” setting the above-captioned matter for hearing on August 18, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Amy Kristine Dee holds registered nurse license number RN120326 issued by the Board. The Board summarily suspended Ms. Dee’s license at a Board meeting held on July 24, 2020. As the caption shows, Ms. Dee was formerly known as Amy Morin and is referred to by that name in some of the exhibits.

Ms. Dee appeared and testified on her own behalf. The Board presented the testimony of Marlene Patterson, Amanda Hays, April Strickland and associate director Janeen Dahn, Ph.D.

The Board alleges that between about October 2016 and October 2019, Ms. Dee committed acts of unprofessional conduct. During the time at issue, Ms. Dee worked at five jobs: (1) as an RN in the emergency department at Banner University Medical Center in Tucson (between November 2012 and November 2016); (2) as an RN at St. Joseph’s Hospital, Carondelet, in Tucson (between November 2016 and March 2018); (3) as an RN with Casa de la Luz Hospice in Tucson (between October 2018 and May 2019); (4) as an RN at the Sierra Tucson treatment facility in Tucson (between August 2019 to September 2019); and (5) as an RN at Arizona Rehab Campuses in Tucson (between October 8 and 28, 2019).

The Board is requesting a recommendation that Ms. Dee’s license be revoked.

Banner University Medical Center

Between November 2012 and November 2016, Ms. Dee was employed as an RN in the emergency department at Banner University Medical Center in Tucson.

On November 19, 2016, Banner filed a complaint with the Board through which it reported on two concerns: (1) on November 3, 2016, the ED Leadership learned that there was a potential narcotic concern regarding Ms. Dee; and (2) that on November 3, 2016, several nurses had seen abnormal behavior on Ms. Dee’s part. Banner’s complaint shows that it addressed these concerns with Ms. Dee on November 9, 2016.

On January 24, 2017, Ms. Dee submitted to the Board a completed questionnaire regarding the Banner complaint. Ms. Dee noted that neither of Banner’s concerns had been brought to her attention until the November 9th meeting.

Regarding the narcotics concern, Banner’s complaint shows that Ms. Dee had been on the pharmacy watch list several months in a row, and that she was found to have a high pull rate even when accounting for her duty station in the ED. After a review and audit revealed discrepancies, management met with Ms. Dee on November 9, 2016. At that time, Ms. Dee informed Banner that she was unaware of any incorrect charting or wasting of unused medication, and she stated that she advocates for pain control more so than most nurses.

Banner’s complaint shows that on November 9, 2016, Banner also informed Ms. Dee that several nurses had reported that she had engaged in abnormal behavior during her shift on November 3, 2016. Ms. Dee explained that she had not slept in two days due to a personal situation at home.

Banner’s complaint shows that on November 9, 2016, Ms. Dee consented to a urine drug test and was placed on leave; the drug test results were negative.

Banner’s complaint shows that while Ms. Dee was on leave, she submitted her resignation and Banner accepted it as a resignation in lieu of termination.

Banner’s complaint shows that the narcotic discrepancies were not accounted for.

Through her response to the Board’s questionnaire, Ms. Dee acknowledged that Banner was concerned about a number of her medication pulls over several months. She explained that she advocates for pain control and that trauma patients sometimes require high doses. She acknowledged that there were times she would verbally override the Pyxis.

Through her response to the Board’s questionnaire, Ms. Dee addressed Banner’s concern regarding her behavior on November 3, 2016. Ms. Dee wrote that no one (including the charge nurse) had raised their concerns with her that night, nor had any of the concerned parties approached her about her ability to drive home the next morning, which she did without incident.

In her response to the Board’s questionnaire, Ms. Dee explained that she was distraught and tired on November 3rd because she had not slept in two days. On November 1, 2016, she learned that her estranged husband had moved back to Tucson. Ms. Dee has been the victim of domestic violence at her husband’s hand and she provided a victim impact statement in his sentencing hearing that occurred on November 9, 2016. She noted that she had worked two shifts after November 3rd without incident, and that while on leave, she sought a position elsewhere and submitted her resignation that was accepted in lieu of termination.

At the hearing, Ms. Dee testified that at the meeting with Banner on November 9, 2016, she was surprised to learn that Banner had been looking into her medication pulls for several months without alerting her to that fact. She explained that in 2016 she got out of the long-standing abusive relationship with her husband and that in October her daughter was diagnosed with type 1 diabetes, so she had been experiencing a lot of stress after a 13 or 14 year employment history with Banner.

St. Joseph’s Carondelet

From November 2016 until March 2018, Respondent was employed as an RN at St. Joseph’s Hospital, Carondelet, in Tucson Arizona.

In June 2017, Ms. Dee was placed on a Performance Improvement Plan related to her handling of medications including narcotics. Ms. Dee’s employment records include progress notes from June 26, July 10, and September 5, 2017 that show a positive performance as related to her plan.

On March 1, 2018, Carondelet terminated Ms. Dee’s employment finding that she had violated its standards of conduct.

Ms. Dee was suspended on February 27, 2018 after Carondelet found that there were six occurrences in which she failed to properly waste medication, and it subsequently learned of eight other instances going back to January 1, 2018 in which Ms. Dee failed to waste medication in the time allowed.

To comply with the standard of care, a nurse must waste medication in the time allowed; failure to do so can result in medications being lost or stolen, or confused for another medication; it also is necessary to ensure the patients’ records are accurate as to the medication they have received.

While at Carondelet, Ms. Dee was subject to random drug screens; the only test result in evidence is from June 29, 2017, which was positive for opiates and for which she had a prescription.

A nurse may not work while impaired regardless of whether she has a prescription for the medication.

Ms. Dee testified to the effect that there were issues with wasting medications, but she asserted that some of this was due to staffing.

Casa de la Luz Hospice

From October 2018 to May 22, 2019, Respondent was employed as an RN with Casa de la Luz Hospice in Tucson, Arizona.

On May 22, 2019, Casa de la Luz filed a complaint with the Board addressing two incidents in which Ms. Dee underwent drug screens for cause; one on May 8, 2019 and the second on May 14, 2019. She was negative on May 8th, but on May 14th she was positive for fentanyl, opioids, pseudoephedrine, gabapentin and cyclobenzaprine and morphine; these drugs potentiate one another. Ms. Dee had an August 2018 prescription for morphine, but no prescription for fentanyl.

As a result of the positive drug test, Ms. Dee was terminated for violating Casa de la Luz’s drug free work policy. On June 10, 2019, Ms. Dee submitted to the Board a completed questionnaire addressing the issues raised in Casa de la Luz’s complaint.

May 8, 2019

Casa de la Luz’s complaint shows that 0n May 8th a patient’s daughter informed Casa de la Luz that Ms. Dee had had faded in and out and fallen asleep during an assessment. Staff contacted Ms. Dee who was at a McDonalds. Ms. Dee acknowledged the issue and agreed to wait for staff to arrive and take her for a drug and alcohol screen. The staff member who did so observed that Ms. Dee’s speech was clear, she was able to articulate and track the conversation, and there was no odor of alcohol about her. The urine and breath tests were both negative.

In her response to the Board’s questionnaire, Ms. Dee acknowledged that the patient’s daughter had accused her of falling asleep and that the daughter had informed her that she was going to report Ms. Dee.

In her response to the Board’s questionnaire, Ms. Dee wrote that she had informed the daughter that her allergies were causing her sniffles and that her contacts were dry. After receiving the call from Casa de la Luz, she complied with the request for a drug test that was negative.

Ms. Dee testified to the effect that the patient’s daughter was distraught, which is understandable. The daughter thought that her mother would be getting chemotherapy and it was when Ms. Dee explained that the mother would not receive chemotherapy that the daughter accused Ms. Dee of sleeping. Ms. Dee found the daughter’s reaction to be heartbreaking, so Ms. Dee gave the daughter the pertinent information and left the room. Ms. Dee added that she was in the room for only a few minutes and that the primary nurse was also in the room.

May 14, 2019

Marlene Patterson, RN testified as to the events of May 14, 2019.

At the time of the hearing, Ms. Patterson was the senior RN manager in Banner University Medical Center’s ICU. In May 2019 she was a charge nurse over the ICU. In that role she interacted with hospice nurses who came to the hospital.

On May 14, 2019, Ms. Dee came to evaluate one of the patients assigned to Ms. Patterson.

Ms. Patterson testified as to two issues that arose: (1) Ms. Dee requested two needles that she stated were necessary to check for dermatomes or pain reflexes, whereas Ms. Patterson had never seen a hospice patient assessed for pain reflexability, which in her opinion is not something necessary to be documented for end of life care; and (2) Ms. Dee’s behavior and demeanor changed and she appeared to be impaired.

Regarding the needles, the two interacted before Ms. Dee went to the patient’s room. Later Ms. Patterson saw Ms. Dee in the med room where medications are stored.

According to Ms. Patterson, Ms. Dee was looking for a 25-gauge needle and a blunt needle that she said she required for her assessment. When asked, Ms. Dee said she required the needles to check for dermatomes or pain reflexes and that she would decide which needle to use when she saw the patient.

Ms. Patterson assisted Ms. Dee in locating the needles and she observed Ms. Dee take the needles into the bathroom. It is not typical to take patient supplies into the bathroom.

Ms. Patterson contacted her supervisor who instructed Ms. Patterson to call security and keep an eye on Ms. Dee. Ms. Dee left the bathroom and Ms. Patterson went in and found the wrapper for the 25-gauge needle in the trash.

Ms. Dee went into the patient’s room and Ms. Patterson followed her.

Ms. Dee asked the family to step out because her assessment might be uncomfortable to watch. She then used the blunt needle to poke the patient on all four extremities, but not hard enough to cause harm.

Ms. Patterson asked what Ms. Dee was doing and she said testing for pain reflexes and dermatomes. Ms. Patterson told Ms. Dee that she had never seen a hospice patient assessed this way and she expressed her opinion that Ms. Dee was not properly conducting the assessment. Ms. Dee disagreed, stating that she had been a trauma nurse and was thorough in her assessments.

Ms. Dee left the patient and was completing her paperwork when Ms. Patterson noticed a change in Ms. Dee’s demeanor and behavior in that her pupils were very large, her eyelids were heavy, and her speech was slow and slurred compared when they spoke earlier. To Ms. Patterson, it appeared as though Ms. Dee was impaired.

The security guard, Ms. Patterson’s manager, and the DON arrived and security questioned Ms. Dee about the needles. Ms. Dee said she used one for the assessment and put the other in a sharps container, but she could not identify which sharps container, even when security walked around the floor with her.

Banner contacted Casa de la Luz which asked Banner to take Ms. Dee to the emergency department for an evaluation.

The unit is small and the patient’s family had observed much of this. Ms. Patterson was discussing the matter with the family and the patient’s mother told Ms. Patterson that Ms. Dee had removed a syringe and a tourniquet from the room and she never put them back.

In her written response to the Board’s questionnaire, Ms. Dee wrote that she had requested a needle and received the 25-gauge, which was not appropriate, so she requested a blunt needle and deposited the 25-gauge in a sharps container; she had diarrhea that day and did use the rest room; she was surprised when security began to question her; her pockets and backpack were searched and she was escorted to the ER; she was tested and had acknowledged taking one 15 mg MSER from an old prescription at about 1800 the day before; and the test was positive for opioids but negative for alcohol.

Ms. Dee testified that she suffers from gastric problems relating to a partial gastrectomy and other surgeries. She often has to make frequent trips to the restroom. Her problems include what is sometimes called “dumping syndrome” that leaves her flushed, diaphoretic, and with low blood sugar.

Ms. Dee testified to the effect that she was feeling some medical discomfort and she thought Banner thought it was something else.

Ms. Dee testified that she had not taken both needles to the bathroom, and that she could not understand why Banner was making such a big deal about the needles. She testified that she was very confused and could not remember which sharps container she put the 25-gauge needle in.

Regarding the allegation that Ms. Dee took a syringe and tourniquet from the patient’s room, she testified that she took a “flush” that she used on the patient’s eyes to test the reflexes. Ms. Dee could not recall if she had taken a tourniquet, but maybe she had moved it in the drawer. Ms. Dee added that because her daughter has diabetes, she has hundreds of syringes at home.

Ms. Dee testified that she was trying to do a thorough examination of the patient, and that she tries to provide more detail in her assessments, which can be necessary for Medicare billing.

Sierra Tucson

From August 5, 2019 until she was terminated on September 13, 2019, Ms. Dee was employed as an RN at Sierra Tucson treatment facility in Tucson, Arizona.

April Strickland is employed full-time as an RN nurse at Sierra Tucson and was so in September 2019. Ms. Strickland testified as to two incidents involving Ms. Dee: one on September 7, 2019 and the second during the night shift of September 12-13, 2019.

September 7, 2019

On September 7, 2019, DON Angie Kistler suspected that Ms. Dee was impaired. A staff member met with Ms. Dee and Ms. Strickland, who was the night shift supervisor. They discussed with Ms. Dee the behavior of concern. Ms. Dee explained that she was tired and taking cold medicine. Ms. Dee consented to a drug test that was performed at Oro Valley Hospital and was negative.

Ms. Dee was told to go home and rest and to stay home if she was taking medications.

Ms. Dee acknowledged that when she was told she looked sleepy, she stated that she had taken Sudafed, which she asserted does not make her sleepy. Nevertheless, she was taken for the drug test that came back negative.

September 12 -13, 2019

Ms. Strickland testified that during the shift on September 12 - 13, 2019, Ms. Strickland and Ms. Dee were speaking to a therapist about Ms. Dee’s patient. Ms. Dee was reading, but was slurring her words and having difficulty reading the paper, and she was almost nodding off and zoning out. Ms. Strickland contacted Ms. Kistler because she was concerned for patient safety. Another nurse reported that Ms. Dee had been unsteady while walking, but Ms. Strickland had not seen Ms. Dee walking.

Ms. Strickland testified that they pulled up the HCS medical records and saw that Ms. Dee was medicating patients without scanning the meds. Ms. Dee said that she had the packages and that she was going to scan them later.

Ms. Strickland’s opinion was that Ms. Dee was not following proper procedure because she was bypassing a safety check; the scanning is to ensure that the right patient gets the right meds at the right dosage.

Ms. Dee was sent home that night and terminated from Sierra Tucson on September 13, 2019.

Ms. Dee testified to the effect that she did not receive all the training that she had been promised, and although she has been a nurse for many years, this was a new setting for her.

Ms. Dee testified that she was very busy on September 12 -13, 2019, and that she became frustrated when Ms. Strickland and another nurse were going through the records to see what Ms. Dee had not done, rather than asking her how they could help. Ms. Dee acknowledged that she had not scanned the meds for one patient, but she denied that it created a safety hazard.

Ms. Dee testified that she was not having trouble staying awake and that she suffers sciatica that can cause her to limp.

Arizona Rehab Campus

In October 2019, Respondent was employed as an RN at Arizona Rehab Campus in Tucson, Arizona.

Amanda Hays is a charge nurse at Arizona Rehab and was so in October 2019; she provided testimony about events that occurred on the night of October 23- 24, 2019. The Notice of Hearing shows that these events occurred on October 22, 2019, which is apparently a typographical error.

On October 24, 2019, Ms. Hays arrived at work and was told that the staff had been unable to locate Ms. Dee for a long period during the night.

Ms. Dee was working as the only nurse in a detox unit; another nurse found the nurse’s station door locked. After about an hour in which Ms. Dee was not heard from, the staff began to look for Ms. Dee. It is a large campus and eventually they saw through video cameras that she was sleeping in the locked room. It took several minutes of banging on the door to wake Ms. Dee and when she opened the door, she was lethargic. There were pills, including Risperdal and Vistaril, which are sedating medications, scattered on the medication cart.

Ms. Hays observed Ms. Dee, and her opinion was that Ms. Dee was impaired: she was lethargic with slurred and slow speech, she was not making a lot of sense; she said her charting was not done and she would take it home and do it.

Ms. Hays’s supervisor told her to make Ms. Dee stay and finish charting, but Ms. Dee had left the facility before Ms. Hays could convey that message. Ms. Dee had done little or none of her charting before she left the facility.

Arizona Rehab is a drug treatment facility at which medications should be secured. The nurse on duty must stay awake; the techs check the patients every 15 minutes and the nurse does an assessment every four hours (or less for acute patients).

Ms. Hays’s supervisor was planning to have Ms. Dee drug tested, but Ms. Dee left the building before the supervisor arrived.

Ms. Dee’s employment was terminated effective on October 28, 2019.

Ms. Dee testified that she was very ill on October 24, 2019, and she knows that she should not have gone to work that day.

Ms. Dee testified that the pills that had been scattered on the med card were pills that she found in the bottom of a med cart drawer and had put in a cup until she could learn what to do with them.

Ms. Dee testified that she had been unable to complete her charting because the wi-fi was down. She said she had given her report to the day nurse and that nurse told her she should leave. She did not tell the charge nurse that she was leaving, but she had never had to do so before that day.

Ms. Dee testified that she overslept the next day and missed a scheduled meeting or appointment at the facility. She was told to come in the following day, at which time she was informed that she was fired.

Ms. Dee testified that her son has autism and at about the time she was working for Arizona Rehab, the son was suffering frequent melt-downs at school, so it was a rough month.

Additional testimony

Ms. Dee testified about getting out of the abusive relationship with her husband in 2016, the related financial problems, and issues related to her children and their health. In August Ms. Dee testified that she had seen a doctor and received medication to help with depression and focus, and that she was feeling better in general. In September she testified that she was now at a much better place, although it took a long time to get there.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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).

Ms. Dee has tested positive for drugs, she has been found to be deficient in her handling of medications, and she was found to be asleep at work one night. In addition, five employers had reasonable cause to suspect that she might be impaired while on duty. Consequently, the preponderance of the evidence shows that she has violated Ariz. Rev. Stat. sections 32-1601(26)(d) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public) and 32-1601(26)(e) (being mentally incompetent or physically unsafe to degree that is or might be harmful or dangerous to the health of a patient or the public).

The preponderance of the evidence shows that Ms. Dee has a pattern if failing to maintain minimum standards of acceptable and prevailing nursing practice, which is a violation of Ariz. Admin. Code section R4-19-403(1), and is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d).

Through her conduct while working at Arizona Rehab, Ms. Dee violated Ariz. Admin. Code section R4-19-403(5)(abandoning or neglecting a patient who requires immediate nursing care without making reasonable arrangement for continuation of care), and which is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d).

Ms. Dee used fentanyl without a valid prescription, which is a violation of Ariz. Admin. Code section R4-19-403(18)(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), and is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d).

The Board alleges that Ms. Dee also violated Ariz. Admin. Code section R4-19-403(17)(a pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location), but Ms. Dee had only two positive drug tests in two years, so it has not been shown that a pattern of such behavior exists. Nevertheless, Ms. Dee’s behavior in this regard is a violation of Ariz. Admin. Code section R4-19-403(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), and is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d).

The preponderance of the evidence shows that Ms. Dee has willfully and repeatedly violated the Board’s statutes and rules, which is unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(26)(g) and (26(j).

The preponderance of the evidence shows that the Board’s decision to summarily suspend Ms. Dee’s license was appropriate.

Because Ms. Dee has engaged in unprofessional conduct the Board has authority to discipline her license under Ariz. Rev. Stat. sections 32-1663 and 32-1664.

Considering the facts and circumstances of this matter, it is recommended that Ms. Dee’s registered nurse license number RN120326 be revoked.

RECOMMENDED ORDER

IT IS ORDERED that Amy Kristine Dee’s registered nurse license number RN120326 is revoked.

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.

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-137160-45720000Done this day, October 26, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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