ALJDEC decisions subject to certification as final

21A-1803006-NUR · State Board of Nursing · 2021-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN093536 ISSUED TO:

KIM SHERENE SMITH,

AKA: KIM S. LEISHMAN; AKA: KIM S. MINYARD

RESPONDENT.

No. 21A-1803006-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 16, 2021, with the record held open until May 3, 2021

APPEARANCES: Respondent Kim Sherene Smith appeared on her own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

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.

Kim Sherene Smith (Respondent) holds Board-issued Registered Nurse License No. RN093536 in the State of Arizona.

On or about May 12, 2016, a nurse working at Friendship Village, a long-term care facility in Tempe, Arizona, discovered an empty heparin lock flush syringe that had remnants of a resident’s liquid/oral Dilantin medication, which was easily identifiable by its orange color.

On or about May 16, 2021, the Nurse Manager addressed the issue with Respondent. During the conversation, Respondent stated that she was unable to locate the appropriate syringe to administer the Dilantin and decided to “empty and rinse” the heparin lock flush syringe so she could use it to administer a liquid medication to a resident who was neither alert nor oriented. Respondent was counseled that it was not acceptable, under any circumstances, to do that and the proper syringes were stored in the central supply closet. Respondent was also advised that if she could not locate the appropriate supplies, she was expected to ask for assistance. Respondent reiterated that she had emptied the heparin from the syringe and rinsed it prior to administering the Dilantin, but acknowledged the practice was neither appropriate nor safe.

On or about May 19, 2016, another heparin lock flush syringe with remnants of Dilantin was discovered by the same nurse working after Respondent’s shift.

On or about May 31, 2016, Respondent was terminated for willful insubordination, failure to follow personnel or facility policies, failure to follow safe practices, and unsatisfactory work performance.

On or about August 19, 2016, Respondent was hired as an RN at Select Specialty Hospital, an acute long-term care hospital in Phoenix, Arizona.

On or about September 29, 2016, it was reported and substantiated that Respondent had administered Metoprolol to a patient in the evening after the medication had been terminated. Respondent also administered two liters of fluids when only 1 liter of fluids had been ordered. During the same shift, Respondent had an additional patient that was on tube feeding, but maintained low blood sugar, and Respondent failed to follow the proper procedure according to the hypoglycemia protocol.

On or about October 6, 2016, Respondent was given a written warning for the conduct occurring on September 29, 2016.

On or about October 27, 2016, Respondent noted that a new patient ate only 25 percent of her evening meal. Respondent left cake and juice at the patient’s bedside. Respondent administered insulin to the patient without assuring a balanced meal intake. The patient experienced symptomatic hypoglycemia that had to be treated.

On or about October 28, 2016, Respondent was terminated for her lack of critical thinking skills.

On or about January 30, 2018, while working on her privilege to practice pursuant to her Arizona issued at Corinth Rehabilitation, a rehabilitation center in Corinth, Texas, Respondent intentionally administered a second dose of Klonopin 0.5mg to a resident without first consulting the physician despite the medicine being ordered for administration only once daily.

Also on or about January 30, 2018, while working at Corinth Rehabilitation, Respondent intentionally withheld medications to be administered to a different resident and increased the patient’s rate of oxygen to 8 L/m, due to Respondent’s assessment that the resident’s oxygen saturation levels were in the “50’s to 60’s”, but failed to notify the physician of the change in the patient’s respiratory status. Respondent contacted the physician later in her shift, but the physician refused to provide orders.

On or about March 1, 2018, the Board received a notification from the Texas Board of Nursing Director of Enforcement indicating that a complaint had been received against Respondent while she was working in Corinth, Texas in January 2018.

On or about October 11, 2018, after an investigation conducted by the Texas Board of Nursing, Respondent voluntarily surrendered her privilege to practice nursing in Texas, pursuant to her Arizona-issued license and the privilege has not been reinstated.

Between September 2019 and November 2019, Respondent was employed by The River Source Naturopathic Recovery Center (The River Source), a drug and alcohol residential treatment center in Arizona City, Arizona.

On or about October 21, 2019, Respondent was given a verbal warning for giving a different dose of medication than that which was prescribed to the patient.

On or about October 24, 2019, Respondent was given a verbal warning for giving patient their clonazepam they brought to the facility without a valid script; for having inappropriate boundaries with patients including buying soda for patients, disclosing personal information, and telling patients to come to the med room at any time despite posted time limits.

On or about October 31, 2019, Respondent was placed on a Plan for Improvement because she provided a patient the medication they brought in without a prescription.

On or about November 7, 2019, Respondent was terminated from The River Source because she administered medications without physician’s orders and other performance issues.

On or about October 22, 2020, Respondent was employed as an Registered Nurse on the night shift at Encompass Health Rehabilitation Hospital of Scottsdale (Encompass Health), a healthcare rehabilitation hospital. During her shift, Respondent provided a patient a lidocaine patch to a patient who did not have an order for a lidocaine patch. Respondent admitted to the Chief Nursing Officer that she had made a decision to medicated the patient with the lidocaine patch for complaints of pain without consulting a physician. At that time, Respondent was terminated due to her actions.

On or about October 31, 2020, the Board received Respondent’s self-report that, while working at Encompass Health, she administered a lidocaine patch to a patient without a physician’s/prescriber’s order.

On or about November 3, 2020, the Board received a complaint from Linda Ambacher, the Chief Nursing Officer at Encompass Health, reporting the October 22, 2020 incident.

On or about November 20, 2020, the Board received an Investigative Questionnaire from Respondent including a narrative account regarding the incident at Encompass Health. Respondent indicated that, because the lidocaine patch was available over the counter and the patient stated she used them at home, Respondent “did not realize [she] was doing anything wrong” when she provided the patient the patch that was located in her medication cart.

On or about March 30, 2021, the Board summarily suspended Respondent’s registered nurse license and requested that proceedings be promptly instituted and determined.

On or about April 5, 2021, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d), (f), (g), and (j); and A.A.C. R4-19-403(1), (7), (9), (12), 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 April 16, 2021.

The Board submitted 8 exhibits and presented the testimony of Jeanie Coole, Director of Nursing at The River Source; Linda Ambacher, Chief Nursing Officer at Encompass Health; and Stephanie Chambers, Nurse Practice Consultant. Respondent testified on her own behalf.

At hearing, Respondent stated that she was a good nurse and was not a safety risk to her patients. Respondent denied that she had been counseled regarding the use of the heparin lock flush syringe prior to her termination. Respondent asserted that she had searched for the appropriate supplies to administer the Dilantin, but was unable to locate any. Respondent stated that she emptied and washed the heparin lock flush syringe prior to using it for the Dilantin to ensure it was safe for the patient. Respondent attempted to explain the events that occurred in Texas. Respondent indicated that, going forward, she would not provide a patient with anything, including a bandage, without an order from a physician.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof and must establish cause to penalize Respondent’s registered 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).

The uncontroverted evidence established that Respondent repeatedly administered medication without a physician’s order and that Respondent voluntarily surrendered her privilege to practice nursing in Texas subsequent to a disciplinary investigation.

Accordingly, the Board established by the preponderance of the evidence that Respondent engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (f), (g), and (j); and A.A.C. R4-19-403(1), (7), (9), (12), and (31). Thus, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Kim Sherene Smith’s Registered Nurse License Number RN093536.

The Administrative Law Judge further recommends that the Board revoke Respondent Kim Sherene Smith’s Registered Nurse License Number RN093536.

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, May 13, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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-137160-45720000