ALJDEC decisions subject to certification as final

21A-201910247-NUR · State Board of Nursing · 2021-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN174426

ISSUED TO:

KATHLEEN MARIE GRAFFEO,

A.K.A.: KATHLEEN MARIE SANDERSON, KATHLEEN MARIE MOORE,

RESPONDENT

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 23, 2021, with the record held open until October 8, 2021.

APPEARANCES: Respondent Kathleen Marie Graffeo appeared with her counsel Michael Goldberg, Esq. via Google Meet. The Arizona State Board of Nursing (“Board”) was represented by Assistant Attorney General Elizabeth Campbell who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 1663, and 1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667.

Respondent holds Board-issued registered nurse license number 174426.

On October 16, 2019, Respondent self-reported that she was cited for misdemeanor disorderly conduct following an altercation at a community park in Tucson, Arizona, on October 3, 2019 in Pima County, Arizona. Later she was found not guilty of all charges.

Because of the self-report, the Board initiated an investigation.

On September 1, 2020, Respondent underwent a Board-ordered comprehensive psychological evaluation, including an anger management evaluation. The evaluator made treatment recommendations.

On or about April 1, 2021, the Board issued a Complaint and Notice of Hearing, setting a hearing on May 21, 2021 before the Office of Administrative Hearings, an independent State agency. The Complaint alleged that Respondent violated the Nurse Practice Act, A.R.S. §§ 32-1601 to -1669 and Arizona Administrative Code (“A.A.C.”) Rules 4-19-101 to -815. After several continuances, the hearing was held on September 23, 2021.

At hearing, the Board presented the testimony of Geneva Lopez, Brenda Sparrold, PhD., Stephanie Potter, Lisa Stout, and Erin Schlecht, and offered four exhibits. Respondent testified on her own behalf and offered three exhibits into evidence.

Geneva Lopez’s testimony

Ms. Lopez was a nurse lead with Arizona Oncology in Tucson, Arizona.

Ms. Lopez testified that she interviewed Respondent in April 2018. Ms. Lopez testified that during the interview, Respondent represented that she helped open lines and did infusions for chemotherapy. Also, Ms. Lopez testified that Respondent represented that she was familiar with the “Iknowmed” electronic medical record.

Next, Ms. Lopez testified that after one week on the job, Respondent was having problems on the job. Ms. Lopez testified that while she expected some learning curve, she believed it would not be as severe due to Respondent’s representations in the interview.

Ms. Lopez testified that she held a meeting with Respondent on May 11, 2018 to review her performance, and that Respondent raised her voice at Ms. Lopez. During the meeting the Ms. Lopez informed Respondent that she was to be ready (research the medicine, symptoms, etc.) for a patient a few days later.

Ms. Lopez testified that Respondent was not ready to handle the patient they discusses, and during a meeting on May 16, 2018, the parties agreed to continue Respondent’s education moving forward.

Ms. Lopez also testified that on May 17, 2018 while she was in the infusion room, Respondent confronted her. After moving to an unoccupied examination room, Respondent was crying and requested to leave for the day. Ms. Lopez granted the request, however, as the conversation continued, Respondent decided to quit.

Upon cross-examination, Ms. Lopez reiterated that Respondent was never terminated. Ms. Lopez also testified that there was no injury to patient while Respondent was employed. Finally, Ms. Lopez testified that to her knowledge, no one from Arizona Oncology reported her to the Board.

Brenda M. Sparrold, PhD.’s testimony.

Dr. Sparrold was a Clinical Psychologist who assessed Respondent at the request of the Board. Dr. Sparrold met with Respondent on September 1, 2020, and testified as to her conclusions.

Dr. Sparrold testified that her purpose was to evaluate Respondent’s ability to practice nursing. Dr. Sparrold testified that she believed that Respondent’s work would be enhanced if she continued with her group sessions as well as 10 individual therapy sessions.

Stephanie Potter’s testimony.

Ms. Potter was the evening supervisor at Sapphire of Tucson. Respondent worked at Sapphire from July 19, 2019 to September 2019.

Ms. Potter testified that on September 21, 2019, she was called into work by her Director to help with Respondent as she was having difficulty towards the end of the shift. Ms. Potter testified that when she arrived, she noticed that Respondent seemed frazzled or frustrated and wanted to give up. Ms. Potter testified that she tried to calm Respondent down to no avail. Ms. Potter testified that Respondent then left the building approximately 90 minutes prior to the end of her shift.

Ms. Potter then testified that after Respondent left, everything was slightly scattered as Respondent was unable to give her report and a narcotics report.

In addition, Ms. Potter testified that the proper standard of care would have been for Respondent to remain on duty and make sure the patient’s needs are met and make the appropriate notes.

Ms. Potter testified that Respondent never got mad or yelled at her.

Finally, Ms. Potter testified that while no patients were harmed by Respondent leaving, some patients had to wait for medication.

Lisa Stout’s testimony.

Ms. Stout was the manager at Brightstar Homecare. Ms. Stout explained that at Brightstar, employees were more independent contractors that would be used on an “per diem basis”. Respondent was employed there in August 2019 and was inactivated in February 2020.

Ms. Stout testified that during Respondent’s tenure, Respondent was assigned two patients. One was successfully treated and completed with no issues. As to the second patient, Ms. Stout testified that Respondent called her to have Respondent re-assigned because the wound was too complicated for Respondent to care for.

Ms. Stout testified that in subsequent conversations Respondent would become abrasive and speak inappropriately.

Ms. Stout testified however, that despite this she continued to offer Respondent patients, but Respondent chose not to accept the same.

Erin Schlecht’s testimony.

Ms. Schlecht testified that on October 3, 2019, she and her husband and their four dogs were in Picture Rocks Park in Tucson, Arizona.

Ms. Schlecht testified that her dogs began chasing Respondent’s dogs and she and her husband ended up near Respondent’s vehicle. Mr. Schlecht testified that after Respondent tripped over one of the Schlecht dogs, Respondent became verbally aggressive to her and her husband. Ms. Schlecht further testified that Respondent punched one of the dogs and spit in her face. Ms. Schlecht testified further that she tried to get away from Respondent but Respondent punched her and she fell backwards and then Respondent kicked Ms. Schlecht’s knee.

Ms. Schlecht testified that Respondent was found not guilty.

Respondent’s testimony.

Respondent has been a licensed Registered Nurse since 2012, and was previously licensed as a Licensed Practical Nurse in 2006.

Respondent testified that she self-reported the incident with Ms. Schlecht to the Board timely, and complied with all of the Board’s requests in this matter.

As to the incident in the park, Respondent testified that the Schlecht’s dog tripped her and that she did not hit their dog.

Respondent also testified as to the previously discussed incidents concerning her prior employment. Respondent testified that she was at Arizona Oncology for two months. Respondent testified that she was honest in her interview and that she could only properly do one line and not a secondary line while administering chemotherapy. She testified further that the electronic medical record was a different version of “Iknowmed” than she was used to, so it was very complicated. In addition, Respondent testified that when she was trying to assist the patient, she took some time to prepare the bag. Because she was taking too much time, Ms. Lopez ripped the bag from her as she was trying to figure it out. During her conversation with Ms. Lopez on May 17, 2018, it got “catty”, and Respondent testified that she lost her confidence so she left.

Next, Respondent testified as to her time employed with Sapphire. Respondent testified that halfway through her shift on September 21, 2019, she had to start all IV lines, as the wound care nurse had quit. Further, she testified that there was no supervisor on duty, and there were too many patients and not enough nurses. She testified that she prepared the reports and gave the narcotics count as required. She testified that she left approximately two hours prior to end of her shift.

Respondent then testified as to her employment with Brightstar. She testified that she stopped accepting assignments because she had started her employment with Sapphire. As to the second patient, Respondent testified that the patient had a twenty-inch long, four-inch wide, and four-inch deep wound. Respondent testified that she had treated it a couple of times, but after the patient came back from the hospital after it became septic, Respondent no longer felt comfortable treating the wound, and contacted Ms. Stout.

Next, Respondent testified as to her time with El Rio clinic. Respondent testified that while there were no patient care issues, she was not fast with computers and that was the reason for her termination.

Respondent also testified that she was unable to attend the counseling sessions as Dr. Sparrold recommended as she could not afford a Master’s level therapist, but was willing to attend the sessions if she could afford it.

Finally, Respondent testified that although she had not worked in a year, she wants to continue nursing in a more one-to-one setting, or telephonically, and cannot handle a large amount of patients at once.

At the conclusion of the hearing, the Board argued that it was seeking to place Respondent on probation for 24 months along with requiring Respondent to undergo the treatment that Dr. Sparrold recommended, as well as an RN refresher course. Counsel for Respondent argued that Respondent timely reported the incident at the park, and was honest and cooperative with the Board. Further, Respondent was honest with her employers and did not want to care for any patient that she could not handle. Counsel was arguing that there be no discipline only a censure from the Board.

CONCLUSIONS OF LAW

The Notice of Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

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’s 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).

At the outset, the Administrative Law Judge commends Respondent for timely reporting the incident at the park, as well as her honesty in completing the Board’s Questionnaire and willingness to participate in the session with Dr. Sparrold. The Administrative Law Judge too shares Respondent counsel’s concern, that this could discourage nurses from self-reporting if they knew their employment history was going to be reviewed even if there were no formal complaints from previous employers.

As to Respondent’s time with Brightstar, the Administrative Law Judge concludes that Respondent did provide an appropriate standard of care, as she notified her supervisor that she did not feel comfortable treating the wound. Because this patient was at the patient’s home, the supervisor could have found a different employee to tend to the wound. Respondent was correct in not tending to the wound as she did not feel comfortable and did not want to make the wound worse.

However, as to the other incidents alleged in the complaint, the Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct as alleged in the Complaint and Notice of Hearing having violated the Nurse Practice Act, A.R.S. §§ 32-1601 to -1669 and Arizona Administrative Code (“A.A.C.”) Rules 4-19-101 to -815.

Although there was no evidence that Respondent committed actual harm to any of her patients, the fact that she would leave prior to the end of her shift, that is a conduct or practice that might be harmful or dangerous to the public as defined in A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(1), (9), and (31).

Also, the incident at the park, because it harmed Ms. Schlecht, is unprofessional conduct as described in A.R.S. § 32-1601(27)(h).

As such, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board place Respondent Kathleen Marie Graffeo’s Registered Nurse License number 174426 on probation for a period of six months. The Administrative Law Judge recommends that six-month probation period, Respondent attend the ten therapy sessions as previously recommended by Dr. Sparrold with an acceptable therapist to the Board, which does not have to be a Master’s level therapist. Finally, the Administrative Law Judge recommends that during the six-month probation period, Respondent attend a RN refresher course as approved by the Board.

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, October 22, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

-54864001

001

-137160-45720000