ALJDEC decisions subject to certification as final
24A-2021030137-NUR · State Board of Nursing · 2024-09-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN196334 AND ADVANCED PRACTICE CERTIFICATE NO. AP11280 ISSUED TO:
KARIN KULINCHENKO BRAUN,
AKA: Karin K. Braun, Karin Kulinchenko Gerken,
RESPONDENT.
No. 24A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened July 25, 2024. Concluded July 26, 2024. Record held open until August 26, 2024.
APPEARANCES: Assistant Attorney General Roberto Pulver appeared for the Arizona State Board of Nursing. Attorney Julie Gunnigle and Karin Kulinchenko Braun appeared for Respondent.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Arizona State Board of Nursing Exhibits (ABN Ex.) 1 through 22; Respondent’s Exhibits A through D; and Patient AP Supplemental Documents.
_____________________________________________________________________
FINDINGS OF FACT
The Arizona State Board of Nursing (the Board) had the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Arizona Revised Statutes (A.R.S.) §§ 32-1606, 32-1663, 32-1664, 41-1092.11(B). The Board also had 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 1667 and Arizona Administrative Code (A.A.C.) R4-19-101 to R4-19-904.
Karin Kulinchenko Braun (Respondent) held Board issued registered nurse license number RN196334 and advanced practice certificate number AP11280 in the State of Arizona.
Respondent was the owner and Clinical Director for the Gilbert Family Birth Center (Birth Center) throughout the relevant time period.
On March 8, 2021, the Board received a Complaint from Patient KA, about her experience at the Birth Center, discussed at length below.
On April 2, 2023, the Board received a Complaint from Patient AP’s Mother (Mom), about Patient AP’s prenatal experience with the Birth Center and subsequent birthing experience with Midwife Alison Gordon (Midwife AG), discussed at length below, in relevant part.
Dr. Janet Olson, Advanced Practice Registered Nurse Consultant, investigated the two complaints in this matter. During her investigation, Dr. Olson reviewed Respondent’s prescription records. There, she identified two allegedly inappropriate controlled substances prescriptions from Respondent:
On or about January 18, 2022, Respondent prescribed Acetaminophen-Codeine #3 (a Schedule III controlled substance, an opioid) for Patient WH, a 60 year old male.
On or about May 5, 2022, Respondent prescribed Acetaminophen-Codeine #3 (a Schedule III controlled substance, an opioid) to a male family member, Patient JG.
Respondent did not contest these two prescriptions.
Respondent surrendered her DEA controlled substance license.
Dr. Olson did not specialize in midwifery. The Board hired Kim L. Flanders as a midwifery expert for the investigation. Dr. Flanders had a Masters of Science in Nursing (Midwifery) and a Doctorate of Nursing Practice. Dr. Flanders issued a Peer Review document for Respondent, regarding Respondent’s involvement with Patient KA and Patient AP. Dr. Flanders’s Peer Review stated as follows:
[PATIENT KA]
--Recommend having a policy to assess and treat increased bleeding after a delivery
-----Symptomatic after birth (lightheaded, loss of consciousness).
---Second-degree laceration noted by CPM.
----There was a five-hour delay before escalating to a higher level of care. (It is unclear when K.B. was notified about the laceration; the patient was not hemodynamically stable.
---Concerned that although she was not responsible for this labor management, the policies of her facility were not followed, i.e., prolonged rupture of membranes w/o active labor.
Collaboration: Have clear policies followed by staff/employees and executed as written.
[PATIENT AP]
-Documentation addressed termination of care @ 38-week visit—information given for providers who will do a vaginal breech birth.
-Spontaneous rupture of membranes greater than 24 hours and not in labor. The protocol of CPM states if a patient's water breaks and it has been ~ six hours and not in labor, transfer to the hospital.
-K.B. was in a questionable role at the patient's house for >1 hour.
-K.B. terminated care, and the patient went to a CPM with a higher skill set for vaginal breech birth. K.B. did not breech her scope of practice with the referral.
Collaboration: Consider removing herself completely from the patient when transferring care.
On May 17, 2024, the Board met and found that the public health, safety, and welfare imperatively required emergency action. The Board issued Findings of Public Emergency and Order of Summary Suspension to Respondent.
On May 23, 2024, the Board issued the Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, setting the hearing for July 1, 2024 at 9:00 AM.
The Office of Administrative Hearings converted the hearing to a prehearing conference. At the prehearing conference, the hearing was reset for and held on July 25 and 26, 2024.
At the hearing, Respondent testified on her own behalf, and Dr. Olson and Eliza Hedrick testified for the Board.
Patient KA
Patient KA first went to the Birth Center on or around September 18, 2020. She had a prenatal appointment and signed documents, including her Informed Choice & Disclosure. The Informed Choice & Disclosure included that the Birth Center would not “continue midwifery services” if the birthing person had the “[p]resence of ruptured membranes without onset of labor within 24 hours . . . [or a] postpartum hemorrhage of greater than 500 [milliliters] in the current pregnancy.” Over the next few weeks, she returned to the Birth Center for prenatal appointments on September 25, October 1, October 8, and October 14.
October 18, 2020
Around 1:38 AM or 2:00 AM, Patient KA called the Birth Center and informed Midwife AG that she had light bloody show.
Around 2:30 or 3:18 AM, Midwife AG asked Patient KA to go to the Birth Center for an exam.
Around 3:45 AM, Patient KA arrived at the Birth Center.
Around 4:00 AM, Midwife AG examined Patient KA. Patient KA tested positive for both pooling and fern, which indicated that membranes had ruptured. Patient KA refused a vaginal exam at that time.
According to Dr. Olson, 4:00 AM was the official mark for ruptured membranes due to the positive fern test.
Patient KA did not have noticeable signs of labor at her examination, and she went home to try and sleep.
October 19, 2020
According to Patient KA’s record, around 12:07 AM, Patient KA’s contractions became consistent at 4 minutes and were increasing in strength. She contacted Midwife AG, who told her to get some rest, but Patient KA was unable to sleep.
At 5:31 AM on October 19, 2020, Patient KA informed Midwife AG that she would be going to the Birth Center soon because her contractions had gotten much stronger.
Around 7:00 or 7:15 AM, Patient KA arrived at the Birth Center.
Patient KA’s timeline stated that she was forced into a vaginal exam. The chart did not indicate an exam was done, but Patient KA’s dilation was noted at 5.0 cm at 7:16 AM.
At 8:31 AM, Patient KA, her partner, and her son went for a walk, and at 9:00 AM, Patient KA used a birthing ball. At 10:00 AM, Patient KA declined a dilation check. At 11:30 AM, Patient KA’s vitals were taken, and she went into a birthing tub. At 12:00 PM, Patient KA declined a dilation check and had a snack. At 1:00 PM, Patient KA went for a walk. At 1:30 PM, Patient KA was kneeling on the bed. At 2:00 PM, Patient KA had more food. At 2:30 PM, Patient KA declined a dilation check. At 3:00 PM, Patient KA was kneeling on the bed, and at 3:30 PM, she went back to the birthing tub.
At 4:00 PM and at 5:00 PM, the Birth Center staff strongly recommended dilation checks to Patient KA. She declined the dilation checks. At 5:30 PM, Patient KA declined another dilation check, and staff raised a hospital transfer for KA because she had been laboring for several hours and dilation progress was unknown.
At 7:10 PM, Registered Nurse Tora Gerrick (Nurse TG) arrived at the Birth Center. She discussed the possibility of transferring Patient KA to the hospital because Patient KA did not seem to be progressing, and she would not allow a dilation check. Patient KA agreed to follow Birth Center staff recommendations.
The birthing records did not explain what happened immediately following Patient KA’s consent. According to Patient KA’s records, Nurse TG broke her water bag. The birthing record identified a rupture of membranes at 7:31 PM. Dr. Olson explained that a second rupture is not unusual.
Start of pushing was noted at 7:33 PM, and at 8:49, the baby was born.
At 8:59 PM, the placenta was delivered, and Respondent accepted responsibility for Patient KA’s care.
At 9:00 PM, Patient KA bled 800 milliliters and Midwife AG consulted with Respondent about the bleeding. Respondent was not at the facility; she was either in Cornville or Flagstaff, and at some point after the birth, she began driving to the Birth Center. She consulted with the Birth Center staff from her vehicle.
Birth Center staff administered medications to Patient KA for the bleeding.
At 9:28 PM, Patient KA bled an additional 200 milliliters, totaling 1,000 milliliters.
At 11:33 PM, Birth Center staff consulted with Respondent about a second-degree perineal repair. The repair occurred at 11:35 PM.
October 20, 2020
At 12:05 AM, Patient KA bled an additional 500 milliliters, totaling 1,500 milliliters.
At 12:59 AM, Birth Center staff discussed transferring Patient KA to a hospital due to the post-partum bleeding. They called emergency medical services.
Gilbert Fire & Rescue Transport (EMS) received the call at 1:11 AM and made contact with Patient KA at 1:18 AM. Patient KA was able to scoot from the bed to the gurney with assistance. At 1:37 AM, Patient KA was oriented about what had happened, the time, and where she was.
Patient KA arrived at Banner Gateway Medical Center at 1:52 AM on October 20, 2020, and she was released at 6:34 AM that day.
Throughout the birthing process, Patient KA’s vitals were as follows:
Location
Time
Blood Pressure
Pulse
Temperature
October 19
Birth Center
7:16 AM
112/70
92
97.2
Birth Center
11:30 AM
118/70
90
97.8
Birth Center
2:30 PM
110/68
114
97.1
Birth Center
5:30 PM
130/82
125
96.7
Birth Center
9:04 PM
118/72
90
97.9
Birth Center
9:24 PM
94/72
119
97.9
Birth Center
9:44 PM
100/72
120
97.9
Birth Center
10:04 PM
100/72
120
97.9
Birth Center
10:30 PM
100/72
120
97.9
Birth Center
11:00 PM
100/72
120
97.1
Birth Center
11:00 PM
100/74
120
97.9
Birth Center
11:30 PM
100/74
120
97.7
October 20
Birth Center
12:00 AM
98/72
120
97.7
Birth Center
12:30 AM
100/80
97.9
97.9
EMS
1:20 AM
136/94
118
99.3
EMS
1:24 AM
133/76
114
EMS
1:40 AM
125/81
114
Hospital
2:04 AM
112/67
114
38 C (100.4)
Hospital
3:19 AM
136/69
120
Hospital
4:01 AM
106/60
108
Hospital
5:07 AM
98/55
109
Hospital
5:45 AM
114/61
102
36.8 C (98.24)
Hospital
6:32 AM
101/55
112
On November 25, 2020, Patient KA went to The Woman’s Center for Advanced Pelvic Surgery to discuss the second degree vaginal tear that occurred on October 19, 2020. Patient KA claimed to have significant pelvic pain. Dr. Kantartzis was “reassured that she did not have a third or fourth degree laceration.” Dr. Kantartzis did not recommend immediate repair.
Dr. Olson and Respondent testified to indicators of hemodynamic instability. They include weakness, sweating, palpitations, tachycardia, dizziness, mild shock, elevated pulse, drop in blood pressure, nausea, and feeling faint or lightheaded. They also referred to Respondent’s Exhibit D. According to the record, hemodynamic instability is identified by those symptoms.
The preponderance of the evidence did not establish whether Patient KA was hemodynamically unstable and if so, during what periods she was hemodynamically unstable. Patient KA’s medical records did not indicate hemodynamic instability: Patient KA’s vital signs did not materially vary (her lowest blood pressure and highest pulse were prior to the birth) and the credible evidence, including her comments to EMS and the hospital, did not establish any other symptoms. According to the investigative report, Patient KA’s hospital records indicated that “Patient KA’s hemoglobin was slightly decreased, and she was able to ambulate with very minimal bleeding and no dizziness or lightheadedness.” The Consultant Note discussed low hemoglobin, stating it indicated “a serious post-partum hemorrhage,” but it did not provide evidence of hemodynamic instability. Dr. Flanders’s peer review stated that Patient KA “was not hemodynamically stable” but failed to explain how she arrived at that determination.
The Birth Center policies are not in the record.
The record did not contain sworn testimony from any person who was present at the Birth Center during the relevant time period.
Patient KA’s narrative was not independently reliable to establish facts by a preponderance of the evidence.
The onset of labor does not have an exact defining moment. Dr. Olson testified that the onset of labor begins when contractions are consistently 5 minutes apart and there is a tightening from the back to the front.
Fewer than 24 hours passed between the rupture of Patient KA’s membranes and her onset of labor.
There are multiple ways to identify progression in labor, including increase in the number, frequency, length, and strength of contractions; the urge to push; tactile tightness of abdomen; visual pelvic bulging; visible red line on the butt crack; feeling pressure; and a noticeable change in character.
Patient KA lost an estimated 1,500 milliliters of blood in a postpartum hemorrhage.
The American College of Obstetricians and Gynecologists (ACOG), which Dr. Olson explained was one of the “gold standards” for guidelines in the midwife community, defines a postpartum hemorrhage as 1,000 milliliters. Respondent testified that even though the Informed Consent form indicated 500 milliliters, she practiced based upon the ACOG standards.
Dr. Olson testified that “the interventions that [Respondent’s] birth center provided to stop the hemorrhage were definitely appropriate. . . [t]he correct drugs were given, the interventions, and the timing to stop the bleeding was done to patient KA. But the point being is based on the policies and what KA signed, at 500 [milliliters] of loss, she should have been transferred.”
Patient PA
Patient AP first went to the Birth Center on August 29, 2022; Eliza Hedrick (Mom) attended the visit with her. Patient AP attended the following prenatal visits at the Birth Center before the baby was identified as being in a breech position:
Date
Staff Member
Baby Position
Mom’s presence
Aug. 29, 2022
Respondent
N/A
Mom identified in chart.
Sept. 23, 2022
Respondent
N/A
Mom identified in chart.
Oct. 6, 2022
Melissa Gibbons
N/A
Mom not identified in chart.
Oct. 21, 2022
Melissa Gibbons
N/A
Mom not identified in chart.
Nov. 30, 2022
Melissa Gibbons
N/A
Mom not identified in chart.
Dec. 15, 2022
Respondent
N/A
Mom not identified in chart.
Jan. 5, 2023
Christina Krize
Vertex
Mom identified in chart.
Jan. 19, 2023
Melissa Gibbons
Vertex
Mom not identified in chart.
On February 1, 2023, Patient AP attended a visit at the Birth Center, and Mom was not identified as being present in the chart. Respondent informed Patient AP that the baby was in a breech position. Respondent provided Patient AP breech education packets, and they discussed that the baby was in a breech position. Respondent recommended spinning baby movements and pulsatilla (an herbal supplement) three times per day while the baby was active. Respondent also referred Patient AP to chiropractic and acupuncture treatments.
On February 9, 2023, Patient AP and Mom attended a visit with Respondent. Patient AP and Mom were “upset about breech presentation and information they were given at the prior [prenatal visit].” Respondent confirmed with Dr. Megan that Patient AP’s insurance would cover the chiropractic services, and she provided chiropractic information given to Patient AP and Mom.
On February 17, 2023, Patient AP attended a visit at the Birth Center, and Mom was not identified as being present in the chart. Respondent informed Patient AP that a breech delivery would not be allowed at the Birth Center. Respondent provided information about external cephalic version (ECV), and recommended going to Dr. Hervey for the procedure. Respondent also provided the names of several midwives that did breech home births. Respondent advised Patient AP to interview the midwives.
On February 23, 2023, Patient AP attended a visit at the Birth Center, and Mom was not identified as being present in the chart. Patient AP said that she was doing the recommended activities, but she did not proceed with acupuncture or ECV with Dr. Hervey. Patient AP said that she had interviewed other providers for an out of hospital breech birth. Patient AP and Respondent discussed the risks of vaginal breech birth and breech birth by C-section. Respondent also provided Patient AP with information about Dr. Fishbein’s podcast on breech birth options.
On March 3, 2023, Patient AP attended a visit at the Birth Center, and Mom was not identified as being present in the chart. On the social and emotional wellbeing section of her chart, Patient AP informed Respondent that she “has been getting lots of negative input to her decision to go ahead with home birth for a breech baby.”
Regarding these prenatal visits, Mom testified that she was present at all of Patient AP’s visits with Respondent. Mom also testified that she was not sure how many appointments she attended, and she did not have her notebook to refresh her memory. Respondent testified that Mom was not present at all of the visits; she specifically recalled that Mom was not present at the February 23, 2023, visit. Patient AP’s records, discussed above, demonstrated that Respondent noted when Mom was present at the Birth Center visits.
Based on corroboration and credibility assessment, it is more likely than not that Mom did not attend all of the prenatal visits with Respondent. Except for the visits where Mom was indicated as having attended, the preponderance of the evidence did not establish that she was in attendance. Accordingly, her testimony was deemed insufficient to establish that certain conversations did not occur.
It was uncontested that Respondent included Midwife AG as one of the Midwife referrals for Patient AP.
Mom testified that Respondent spoke highly of Midwife AG. Mom testified that Respondent said that Midwife AG was an expert on breech births and that Midwife AG had been doing it for a long time. Respondent testified that she did not call Midwife AG an expert, but she did speak highly of Midwife AG.
Patient AP was discharged from the Birth Center on March 3, 2023, at approximately 12:45 PM. She signed a records release.
Patient AP was planning to meet Midwife AG a week later.
Respondent had not communicated with Midwife AG regarding Patient AP. Respondent was surprised that Patient AP chose Midwife AG because Midwife AG was about to leave Arizona for vacation.
March 5, 2023
Patient AP’s water broke approximately 37 hours after she was discharged from the Birth Center. Patient AP called her mom at 1:30 AM on March 5, 2023, and said that her water had broken and that she had already called Midwife AG. When Mom arrived, at around 4:00 AM, Midwife AG had already been there and left. Patient AP had signed legal paperwork, and Midwife AG did a dilation check and took Patient AP’s blood pressure.
The record did not indicate how long Midwife AG was at Patient AP’s home or what they discussed. However, Patient AP signed several documents, including a Breech Birth Informed Consent, which identified the risks associated with a home breech birth. She also initialed next to Midwife AG’s experience: “I have been informed of my Midwifes breech experience: 1 breech assistance 2 supervised 4 on her own.” The Informed Choice & Disclosure and Emergency Care Plan stated that a “midwife shall not . . . continue midwifery services [for a client with a] pelvis that will not safely allow a baby to pass through during labor.”
Mom testified that Midwife AG returned at 1:30 PM, which is when Mom met Midwife AG for the first time. During that visit, Midwife AG provided Patient AG a castor oil drink to induce labor, but it only induced vomiting and diarrhea.
Around 9:20 PM, Midwife AG returned, and the medical record began. Around this time, Patient AP’s membranes had not ruptured: the fern results were negative.
March 6, 2023
On March 6, 2023, at 3:00 AM, Midwife AG and Mom (who was an RN that placed the IV for her daughter) provided Patient AP with 500 ml Lactated Ringers (intravenous), identified as under orders from Respondent. At 3:40 AM, Mom placed a new IV for her daughter, and Midwife AG provided Patient AP with 4 mg Zofran (oral), identified as under orders from Respondent.
Respondent testified that she did not order Zofran or an IV for Patient AP. Respondent testified that Midwife AG called Respondent while Respondent was asleep sometime during the night of March 5 or the morning of March 6, 2023; Respondent testified that she did not speak with Midwife AG at that time. Respondent testified that Midwife AG did not have access to standing orders for the Birth Center on March 5 or March 6, 2023. In an interview with Dr. Olson on August 3, 2023, Respondent stated that Midwife AG used standing orders from the Birth Center. In an interview with Dr. Olson on August 14, 2023, Midwife AG stated that she used standing orders from the Birth Center.
At 8:40 AM, Midwife SK arrived; at 9:02 AM, Midwife AG departed.
At 9:30 AM, several hours after any medication identified as being provided under orders from Respondent, IV medic home service arrived and provided 1 liter of Lactated Ringers, 8mg Zofran (intravenous), Pepcid (intravenous), and magnesium (intravenous).
Sometime between 12:00 and 1:00 PM, Midwife AG requested the medical records from Respondent. When she went to pick up the records, they weren’t ready. Respondent offered to bring the records to Patient AP’s home. Midwife AG also requested additional IV fluids. Respondent agreed to bring them to Patient AP’s home.
Midwife AG returned to Patient AP’s home at 2:00 PM.
Respondent arrived at Patient AP’s home at 2:28 PM on March 6, 2023. She gave Midwife AG the medical records for Patient AP and medical supplies that included lactated ringers.
Respondent did not provide medical services to Patient AP while at Patient AP’s home. According to Mom, Respondent did do the following: talked to Patient AP and Mom about the house, dogs, and other positive conversation; gave Patient AP compliments and told her she was doing a great job; provided comfort, including touching Patient AP’s back and demonstrating physical contact to the Midwife students who were present; and spoke privately with Midwife AG. According to Respondent, she did the following: talked with AP and the other people present; “saw [Patient] AP having a contraction, heard the heart tones;” used the restroom; had a tour of the home and stuff for the baby; gave Patient AP a hug, and wished her well.
Respondent and Midwife AG had at least one private conversation, at approximately 3:57 PM, near the front door. The length of that conversation was unclear, but it lasted at least two minutes.
Respondent left Patient AP’s home around 4:00 PM.
Mom testified that she “firmly believe[d]” that Midwife AG was communicating with Respondent. Mom testified that Midwife AG told Mom and Patient AP that she was communicating with Respondent. However, Respondent testified that she did not communicate with Midwife AG or Patient AP again during Patient AP’s labor. In an interview with Dr. Olson on August 14, 2023, Midwife AG stated that “she did not get advice or contact Respondent by phone or text during Patient AP’s labor and delivery.”
The record did not support that Respondent prescribed Ambien to or for Patient AP.
Dr. Olson testified that Patient AP had an unproven pelvis, which meant that she had never had a vaginal birth before, and therefore, whether a baby would fit through her pelvis was unproven.
Dr. Olson testified that according to ACOG, “malpresentation is a contraindication for planned home birth.”
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction pursuant to 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 and advanced practice certificate by a preponderance of the evidence. A preponderance of the evidence is “evidence which is of greater weight or [is] more convincing than evidence which is offered in opposition to it,” showing that a fact is more probably true than not.
In Arizona, when construing statutes, we look first to a statute’s language as the best and most reliable index of its meaning. If the statute’s language is clear and unambiguous, we give effect to that language and apply it without using other means of statutory construction, unless applying the literal language would lead to an absurd result. Words should be given “their natural, obvious, and ordinary meaning,” unless defined by the legislature.
Pursuant to A.R.S. §§ 32-1663 and 32-1664, unprofessional conduct is grounds for disciplinary action.
Pursuant to A.A.C. R4-19-101:
“Failure to maintain professional boundaries” means any conduct or behavior of a nurse or CNA that, regardless of the nurse’s or CNA’s intention, is likely to lessen the benefit of care to [a patient or their family] or places [a patient or their family] at risk of being exploited financially, emotionally, or sexually.
“Dual relationship” means a nurse or CNA simultaneously engages in both a professional and nonprofessional relationship with [a patient or their family] that is avoidable, non-incidental, and results in [a patient or their] family being exploited financially, emotionally, or sexually.
FACTUAL ALLEGATION 1
The record failed to establish that Patient KA was admitted to the Birth Center after her membranes had been ruptured for more than 24 hours.
FACTUAL ALLEGATION 2
A.A.C. R9-16-108(J) states as follows:
During the intrapartum period from the onset of labor until after the delivery of the placenta, a midwife shall: . . .
4. For deliveries described in subsection (B), during labor determine the progression of active labor: . . .
b. For a pregnant woman who has previously given birth to one or more newborns, by monitoring whether dilation occurs at an average of 1.5 to two centimeters per hour until completely dilated, and a second stage does not exceed one hour.
A.A.C. R9-16-108(B) states as follows:
Except as provided in R9-16-111(C) or (D), a midwife who is certified by the North American Registry of Midwives as a Certified Professional Midwife may accept a client for a vaginal delivery:
1. After prior Cesarean section, or
2. Of a fetus in a complete breech or frank breech presentation.
The preponderance of the evidence failed to establish that the progression requirement stated in A.A.C. R9-16-108(J)(4)(b) and used to define the failure to determine whether labor was progressing normally in Factual Allegation 2 applied to Patient KA.
A.A.C. R9-16-108(F) states as follows:
A midwife shall implement the emergency care plan by immediately calling the emergency medical services provider identified in subsection (D)(1)(c)(ii) for any condition that threatens the life of the client or the client’s fetus or newborn.
A.A.C. R9-16-108(J) states as follows:
During the intrapartum period from the onset of labor until after the delivery of the placenta, a midwife shall: . . .
3. During labor: . . .
c. Periodically Assess contractions, fetal presentation, dilation, effacement, and fetal position by vaginal examination.
The Tribunal was not asked to assess a violation of A.A.C. R9-16-108(J)(3)(c). The record does not set a standard for periodically assessing dilation. The record established that the Birth Center staff did not perform a dilation check for approximately 12 hours. The record established that the Birth Center provided good care during labor, including monitoring Patient KA’s vital signs. The record established that Birth Center staff strongly recommended a dilation check after 9, 10, and 10.5 hours at the Birth Center. The record supports an inference that at approximately 12 hours, Birth Center staff told Patient KA that she would be transferred to the hospital unless she allowed a dilation check.
The record did not establish that Patient KA’s refusal of dilation checks threatened her life or the life of her baby, that Patient KA should have been subject to the emergency care plan, or that failure to conduct cervical examination caused Patient KA’s delivery to be out of scope.
FACTUAL ALLEGATION 3
The record established that Patient KA remained at the Birth Center after her postpartum hemorrhage exceeded the amount identified in her informed consent. The record failed to establish that Patient KA was hemodynamically unstable or suffered harm as a result of the delayed transfer, including causation for additional bleeding.
FACTUAL ALLEGATION 4
The record failed to establish any information about Patient WH’s medical record beyond the existence of the prescription.
FACTUAL ALLEGATION 6
The Board’s position that it was inappropriate to bring medical records and supplies to Patient AP’s home: Respondent should have arranged alternative delivery of medical records. The record does not establish that Respondent’s actions were likely to lessen the benefit of care or place anyone at risk of financial, emotional, or sexual exploitation.
FACTUAL ALLEGATION 8
The preponderance of the evidence established that Midwife AG got the Zofran and the first lactated ringers for Patient AP from Respondent’s standing order. The evidence failed to establish whether Respondent had knowledge of Midwife AG using those orders for Patient AP and whether Midwife AG was authorized to use those standing orders.
The preponderance of the evidence established that Respondent’s prescriptions were for nausea (Zofran) and dehydration (lactated ringers). Respondent’s responsibility was limited to treating Patient AP’s nausea and dehydration. The preponderance of the evidence failed to establish that nausea or dehydration are outside of Respondent’s scope. The preponderance of the evidence failed to establish that Respondent was required to physically examine Patient AP for nausea or dehydration.
Furthermore, once the medical supply company provided additional Zofran and IV to Patient AP, it would have been an intervening provider. Following that medical intervention, Respondent was no longer responsible for Patient AP’s nausea or dehydration. Respondent provided additional lactated ringers, which were never used, but which reintroduced responsibility for Respondent regarding Patient AP’s dehydration. The preponderance of the evidence failed to establish any violations by Respondent regarding Patient AP’s state of hydration.
ALLEGED VIOLATIONS
Alleged Violation 1 was a statement of jurisdiction.
Alleged Violation 2: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d): “Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.”
The preponderance of the evidence established Alleged Violation 2 for factual allegations 3, 4, and 5.
The preponderance of the evidence failed to establish Alleged Violation 2 for factual allegations 1, 2, 6, 7, and 8.
Alleged Violation 3: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(g): “Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.”
The preponderance of the evidence established Alleged Violation 3 for factual allegations 3, 4, and 5.
The preponderance of the evidence failed to establish Alleged Violation 3 for factual allegations 1, 2, 6, and 8.
Alleged Violation 4: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(j): “Violating this chapter or a rule that is adopted by the board pursuant to this chapter.”
The preponderance of the evidence established Alleged Violation 4 for factual allegations 3, 4, 5, and 7.
The preponderance of the evidence failed to establish Alleged Violation 4 for factual allegations 1, 2, 6, and 8.
Alleged Violation 5: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(1): “A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice.”
The preponderance of the evidence established Alleged Violation 5 for factual allegations 3, 4, 5, and 7.
The preponderance of the evidence failed to establish Alleged Violation 5 for factual allegations 1, 2, 6, and 8.
Alleged Violation 6: Factual allegations 1 through 3 and 6 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d): pursuant to A.A.C. R4-19-403(2): “Intentionally or negligently causing physical or emotional injury.”
The preponderance of the evidence failed to establish Alleged Violation 6 for factual allegations 1 through 3 and 6 through 8.
Alleged Violation 7: Factual allegations 4 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(3): “Failing to maintain professional boundaries or engaging in a dual relationship with a patient, resident, or any family member of a patient or resident.”
The preponderance of the evidence established Alleged Violation 7 for factual allegations 4 and 5.
The preponderance of the evidence failed to establish Alleged Violation 7 for factual allegations 6, 7, and 8.
Alleged Violation 8: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(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.”
The preponderance of the evidence established Alleged Violation 8 for factual allegations 3, 4, 5, and 7.
The preponderance of the evidence failed to establish Alleged Violation 8 for factual allegations 1, 2, 6, and 8.
Alleged Violation 9: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(12): “Assuming patient care responsibilities that the nurse lacks the education to perform, for which the nurse has failed to maintain nursing competence, or that are outside the scope of practice of the nurse.”
The preponderance of the evidence established Alleged Violation 9 for factual allegations 3, 4, and 5.
The preponderance of the evidence failed to establish Alleged Violation 9 for factual allegations 1, 2, 6, 7, and 8.
Alleged Violation 10: Factual allegations 1 through 3 and 6 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(14): “Delegating services that require nursing judgment to an unauthorized person.”
The preponderance of the evidence failed to establish Alleged Violation 10 for factual allegations 1 through 3 and 6 through 8.
Alleged Violation 11: Factual allegations 4, 5, and 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-403(30): “For a registered nurse granted prescribing privileges, any act prohibited under R4-19-511(D).”
The preponderance of the evidence established Alleged Violation 11 for factual allegations 4, 5, and 8.
Alleged Violation 12: Factual allegations 1 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. 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.”
The preponderance of the evidence established Alleged Violation 12 for factual allegations 3, 4, and 5.
The preponderance of the evidence failed to establish Alleged Violation 12 for factual allegations 1, 2, 6, 7, and 8.
Alleged Violation 13: Factual allegations 4 and 5 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-511(D):
1. Prescribing a controlled substance to oneself, a member of the RNP’s, CNM’s, or CNS’s family or any other person with whom the RNP, CNM, or CNS has a relationship that may affect the RNP’s, CNM’s, or CNS’s ability to use independent, objective and sound judgment when prescribing. . .
4. Prescribing for a patient that is not in the RNP’s, CNM’s, or CNS’s population focus of education and certification except as authorized in subsection (D)(5)(d)
5. Prescribing, dispensing, or furnishing a prescription drug or a prescription-only device to a person unless the RNP, CNM, or CNS has examined the person and established a professional relationship, except when engaging in one or more of the following:
a. Providing temporary patient care on behalf of the patient’s regular treating and licensed health care professional;
b. Prescribing antimicrobials to a person who is believed to be at substantial risk as a contact of a patient who has been examined and diagnosed with a communicable disease by the prescribing RNP, CNM, or CNS even if the contact is not in the population focus of the RNP’s, CNM’s, or CNS’s certification
The preponderance of the evidence established Alleged Violation 13 for factual allegations 4 and 5.
Alleged Violation 14: Factual allegation 7 constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-513( D):
An RNP, CNM, or CNS who dispenses a drug shall ensure that a label is affixed that contains all of the following information:
1. Dispensing RNP’s, CNM’s, or CNS’s name and population focus;
2. Address and telephone number of the location from which the drug is dispensed;
3. Date dispensed;
4. Patient’s name and address;
5. Name and strength of the drug, quantity in the container, directions for use, and any cautionary statements necessary for the safe and effective use of the drug;
6. Manufacturer and lot number; and
7. Prescription order number.
The preponderance of the evidence established Alleged Violation 14 for factual allegation 7.
Alleged Violation 15: Factual allegations 4 through 8 constitute unprofessional conduct pursuant to A.R.S. § 32-1601(27)(d) pursuant to A.A.C. R4-19-513(E):
An RNP, CNM, or CNS who dispenses a drug or device shall ensure that the following information about the drug or device is entered into the patient’s medical record:
1. Name of the drug, strength, quantity, directions for use, and number of refills;
2. Date dispensed;
3. Therapeutic reason;
4. Manufacturer and lot number; and
5. Prescription order number
The preponderance of the evidence established Alleged Violation 15 for factual allegations 5, 7, and 8.
The preponderance of the evidence failed to establish Alleged Violation 15 for factual allegation 4.
In light of the evidence of record and the risk of harm to which patients and the public were and could be exposed as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license.
In light of the evidence of record, the Board failed to establish that the public health, safety, and welfare imperatively required Emergency action due to Respondent’s actions and violations of the Nurse Practice Act.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Board overturn its order summarily suspending Karin Kulinchenko Braun’s registered nurse license number RN196334 and advanced practice certificate number AP11280.
IT IS FURTHER RECOMMENDED that the Board suspend Respondent for six months, accounting for the time she was suspended under the summary suspension as time served toward the six months.
IT IS FURTHER RECOMMENDED that the Board place Respondent on Stayed Revocation Probation for 24 months. During that probation, the Board should require Respondent to take continuing education courses, addressing the following topics: (1) scope of practice; (2) treating family members; (3) ethics and responsibilities of a prescriber, including implications of standing orders and who can access them; (4) responsibilities of a clinical director; and (5) hiring practices for a medical facility. The probation should also include some supervision and review, focusing on intrapartum and postpartum care.
IT IS FURTHER RECOMMENDED that Respondent be prohibited from holding a DEA license while she maintains an active license or certificate in Arizona.
IT IS FURTHER RECOMMENDED that Respondent provide the Board with updated policies, procedures, and consent documents that reflect Respondent’s practice.
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 forty (40) days from the date of that certification.
-137160-45720000Done this day, September 16, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing
Julie R. Gunnigle
Law Office of Julie Gunnigle
[email redacted]
Roberto Pulver
Office of the Attorney General
[email redacted]
By: OAH Staff