ALJDEC decisions subject to certification as final

22A-2021090318-NUR · State Board of Nursing · 2022-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN232325

ISSUED TO:

OKEZIE CHIJINDU CLEMENT,

RESPONDENT.

No. 22A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 18, 2022, at 9:00 AM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Ruth Kish as a witness. No appearance(s) by or on behalf of Okezie Chijindu Clement (“Respondent”). Mary Davis served as the certified court reporter (CCR No. 50271) for these proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Rev. Stat. § 41-1092.08(A), Administrative Notice is taken that Respondent was first issued Registered Nurse License No. RN232325 on October 23, 2019. The license expired on March 30, 2022.

On March 15, 2022, the Board issued Notice of Board Consideration of Proposed Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted].

On April 11, 2022, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 1:00 p.m. on May 13, 2022. The Complaint identified the issue for hearing as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against [Respondent] who holds registered nurse license number RN232325 to perform as a registered nurse in the State of Arizona.

The Board set forth 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(27)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(2), R4-19-403(9), and R4-19-403(31), and 32-1601(27)(j). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

On April 07, 2022, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.

On April 25, 2022, and June 27, 2022, the matter was continued at the request of the parties, to afford them an opportunity to resolve their dispute. The matter was ultimately heard August 18, 2022.

Hearing Evidence

The Board presented the testimony of Ruth Kish and submitted Exhibits 1-5 into the record. The Complaint and June 27, 2022, Order were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

On September 04, 2021, while employed as a registered nurse and on duty at Sante of Mesa, a long term care facility in Mesa, AZ, Respondent was assigned to administer orally prescribed medications to an elderly 78 year old patient, E.F. Because E.F. refused to take his medication orally, Respondent crushed it up and mixed it with applesauce. E.F. Because E.F. would not swallow the mixture, Respondent crushed up the medication, dissolved it in lukewarm tap water, and put the medication in a 10ml syringe of solution and pushed the medication into E.F.’s PICC-TPN line. Almost immediately, E.F. become unresponsive and died as a result. At no time did Respondent attempt to notify E.F.’s prescribing provider of his refusal/inability to take medications as ordered, nor did Respondent attempt to obtain new provider orders for alternative administration.

The standard of practice for intravenous infusion is that the product to be infused be ordered and prepared for intravenous infusion, using sterile and prescribed diluent.

The standard of care requires that a prescriber be notified when a patient is not able to take medication as prescribed.

During a subsequent interview with his employer, Respondent admitted that he used E.F’s PICC-TPN line like a gastric tube, knowing that E.F. did not have a gastric tube. Respondent also admitted that he knew the PICC line was in a vein, and that his nursing conduct with E.F. had been “totally wrong” and that he did not know why he had done it. Respondent further admitted that he knew he should have stopped intravenous administration on E.F., marked the medications as refused, and notified the nursing supervisor and physician that E.F. could not or would not swallow the orally prescribed medicines. Per Respondent, he had not intended to cause harm to E.F. Respondent was suspended from employment with Sante of Mesa the night of September 04, 2021, and terminated on October 16, 2021.

Since Respondent’s licensure on October 23, 2019, he was employed by no less than five (5) employers. Although he was fired from Sante of Mesa, he informed the Board that he left employment due to a “mutual discharge.”

On September 15, 2021, the Board received a complaint against Respondent from Sante of Mesa regarding the aforementioned events of September 04, 2021, resulting in the Board opening Case No. [number redacted] to investigate the confirmable facts.

On March 30, 2022, the Board issued Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted]. Respondent submitted a timely appeal.

In closing, the Board asked that its summary suspension order be upheld, and argued that revocation was warranted in the matter based on the severity of Respondent’s conduct and the egregious and solemn nature of the outcome stemming therefrom.

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 through 1669 and Ariz. Admin. Code R4-19-101 through 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act.

Correspondence, including the Complaint, the Board mailed to Respondent’s address of record, and his attorney’s address of record, is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the tribunal and Board mailed all correspondence for this case to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter.

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

The Board’s burden is a preponderance of the evidence.

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(27) defines unprofessional conduct in the nursing profession, in pertinent part, as follows:

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

* * *

(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

Ariz. Admin. Code R4-19-403 provides that 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:

(2) Intentionally or negligently causing physical or emotional injury;

* * *

(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.”

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.

The Nurse Licensure Compact is a mutual recognition model of nurse licensure that allows a nurse to have one license to practice with patients across state lines, subject to each participating state’s practice laws and regulations. The State of Arizona is a participating state.

A multistate 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. The Board has discretion to grant or deny a license to an applicant under Ariz. Rev. Stat. §§ 32-1663(A) and 32-1601(26).

The issue in the case at bar, in light of Respondent’s conduct, is whether grounds exist for the Board to take disciplinary action against her license.

Here, the Board has sustained its burden of proof.

After closely scrutinizing the record and giving all relevant facts careful consideration, the undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of unprofessional conduct against Respondent to be credible. The Tribunal also finds that Respondent failed to provide timely written notice of her multiple criminal charges to the Board. Respondent’s failure to appear and provide evidence in rebuttable to refute the Board’s claims are a factor in aggravation. Moreover, there is no evidence in the record to reasonably suggest that Respondent ever fully admitted any wrongdoing to the Board or attempted to enter into the Interim Order for the underlying events captured herein, which demonstrates she is unable to be regulated at this time.

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 Respondent’s brief Arizona employment records he has not consistently met these rudimentary standards to practice nursing.

The record reflects that Respondent engaged in a gross deviation from the standard of care by intravenously administering an orally prescribed drug mixed with tap water to a patient, resulting in the patient’s death. There is no lawful excuse or justification for Respondent’s behavior.

In the case at bar, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(27)(d); Ariz. Admin. Code R4-19-403(2), R4-19-403(9), and R4-19-403(31), and 32-1601(27)(j).

In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act and Nurse Licensure Compact, the Board established cause to summarily suspend and impose disciplinary sanctions against Respondent’s license under Ariz. Rev. Stat. §§ 32-1663(D-F) and 32-1664(O).

Considering the facts and circumstances of this matter, it is recommended that Respondent’s privilege to practice nursing in the State of Arizona under license number RN232325 be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke all privileges afforded to Okezie Chijindu Clement, registered nursing license RN232325.

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 Final Order will be five days from the date of that certification.

Done this day, September 07, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

By Miranda Alvarez

Legal Secretary