Frazer v. Delaware Board of Nursing ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AMANDA S. FRAZER, :
: C.A. No: K16A-05-001 RBY
Appellant, : In and for Kent County
:
v. :
:
DELAWARE BOARD OF NURSING, :
:
Appellee. :
Submitted: October 4, 2016
Decided: November 9, 2016
Upon Consideration of Appellant’s Appeal from
the Delaware Board of Nursing
AFFIRMED
ORDER
Amanda S. Frazer, Pro se.
Carla A.K. Jarosz, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware for Delaware Board of Nursing.
Young, J.
Frazer v. DE Board of Nursing
C.A. No.: K16A-05-001 RBY
November 9, 2016
SUMMARY
Amanda S. Frazer (“Appellant”) appeals the two year suspension of her nursing
license by the Delaware Board of Nursing (“the Board”) and the Board’s amendment
of the Chief Hearing Officer’s recommendation as to the length of her license
suspension. The Board’s decision was supported by substantial evidence, and
Appellant has failed to raise a legal ground upon which this Court should overturn the
Board’s decision. Therefore, the decision of the Board is AFFIRMED.
FACTS
Appellant was a licensed practical nurse with Kentmere Nursing and
Rehabilitation Center (“Kentmere”) from April 15, 2014 until January 4, 2015.
Near the end of the Appellant’s time, Kentmere investigated Appellant’s
distribution of medications to three separate patients. After confronting Appellant
with its findings, Appellant resigned.
Kentmere found that the Appellant made numerous errors in her treatment
of the three patients investigated. The three patients investigated were MW, BS,
and RM.
With respect to patient MW, Kentmere found that, during a period between
December 2, 2014, and December 29, 2014, Appellant withdrew Xanax 20 times
without documenting administering it. Appellant also did not document
administering MW Tramadol on three occasions. Furthermore, Appellant
administered Tramadol at vastly different times from when she withdrew the
medication and administered it contrary to MW’s physician’s order. On at least
two occasions, Appellant administered Oxycodone in a manner inconsistent with
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MW’s physician’s orders.
Kentmere noted multiple errors in administering medication to BS as well.
Appellant administered Oxycodone-Acetaminophen to BS 26 times without
documenting it. She administered Oxycodone-Acetaminophen to BS five times too
early or too late. Appellant also administered the medication to BS in the wrong
dosage three times and contrary to physician’s orders on ten occasions.
Furthermore, Kentmere noted that Appellant made errors in treating RM.
She administered two Oxycodone-Acetaminophen during times when RM did not
report pain. She documented that she administered medications to RM at times
during which she was not working. Appellant also failed to document her
administration of controlled substances to RM at least 13 times.
Kentmere had various policies to which licensed practical nurses had to
adhere. One policy required that nurses document all care given to patients,
document that care during the shift in which the care is given, and correct entries
that they document late. Another policy required that nurses, prior to
administering medication, verify that the medication they administer will be given
at the correct time, dose, and rate. Under this second policy nurses also were
required to give medication to patients within the proper time frame.
On July 2, 2015, the Department of Justice filed a complaint with the Board
asking that it impose such disciplinary action as it deemed appropriate. On
February 5, 2016, after having a hearing, the Chief Hearing Officer found that
Appellant engaged in unprofessional conduct, recommending that the Board
suspend her license for a period not to exceed six months. After having
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November 9, 2016
deliberations, the Board issued a final order on April 1, 2016, agreeing with the
Chief Hearing Officer’s recommended conclusions of law, but disagreeing with
the recommended penalty. The Board suspended Appellant’s license for two years.
On May 2, 2016, Appellant appealed the Board’s decision to this Court.
STANDARD OF REVIEW
An appeal from an administrative board's final order to this Court is
restricted to a determination of whether the Board's decision is free from legal
error and supported by substantial evidence.1 Evidence is substantial when there is
“such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.”2 Questions of law are reviewed de novo.3 This means that “the
Court does not weigh the evidence, determine credibility, or make its own factual
findings.”4
DISCUSSION
Appellant appeals the Board’s decision on two bases. Appellant first claims
that the Board’s conclusion that Appellant engaged in unprofessional conduct is
not supported by substantial evidence. Second, Appellant claims that the Board
relied on a basis, for which it did not have proof, to amend the Chief Hearing
1
29 Del. C. § 10142(d); Department of Labor v. Duncan, 337 A.2d 308, 308-09 (Del.
Apr. 11, 1975); Decker v. Del. Bd. of Nursing, 2013 WL 5952103, at *5 (Del. Super. Nov. 7,
2013).
2
Walker v. Unemployment Ins. Appeal Bd., 2015 WL 1542034, at *1 (Del. Super. Mar.
12, 2015).
3
Id.
4
Id.
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November 9, 2016
Officer’s recommendation as to the length of Appellant’s license suspension.
Since the Board’s conclusion that Appellant engaged in unprofessional conduct is
supported by substantial evidence; and the Board’s extension of Appellant’s
license suspension has a substantial and rational basis, is supported by substantial
evidence, and free from legal error; the Board’s decision is AFFIRMED.
A. The Board’s Conclusion that Appellant Engaged in Unprofessional
Conduct is Supported by Substantial Evidence
Appellant argues that the Board’s conclusion that she engaged in
unprofessional conduct is not supported by substantial evidence. This Court will
not find that facts are unsupported by substantial evidence unless they are “clearly
unsupportable by the record.”5 The facts upon which the Board made its decision
are not clearly unsupportable by the record. Therefore, the conclusion that
Appellant engaged in unprofessional conduct is supported by substantial evidence.
A factual finding is clearly unsupportable by the record when the record
contains only information that is contrary to the factual finding (cf Ferguson v.
Delaware Board of Nursing). In this case, the Board punished a nurse for testing
positive for marijuana after she had spent a few days around a family member who
constantly smoked the drug.6 The Board found that the nurse knew the risks of
passive inhalation of marijuana, but did not remove herself from the situation.7
5
Dye v. Merrit-Sparks, 2009 WL 3334908, at *4 (Del. Super. Aug. 31, 2009).
6
Ferguson v. Del. Bd. Of Nursing, 2009 WL 4021230, at *1-3 (Del. Super. Aug. 20,
2009).
7
Id. at 3.
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The court held that this fact was not supported by substantial evidence, since the
only evidence presented in the case was contrary to that factual finding.8
Unlike Ferguson, some evidence in the record supported the Board’s
finding in this case. In this case, all of the findings of fact, except for the policies,
were quoted from the Appellant’s employer’s report documenting the findings of
Kentmere’s investigation in State’s exhibit one. The findings of fact regarding the
policies were paraphrases of the policies in State’s exhibit one.9 Since all of the
factual findings have some basis in the record, the factual findings are supported
by substantial evidence.
8
Id.; see also Dye, 2009 WL 3334908 at 2-4 (holding that when evidence is presented
supporting the Board’s finding and a finding contrary to the finding of the Board the Board’s
finding is supported by substantial evidence).
9
Pages five and six of State’s exhibit one provide one of the policies upon which the
findings of fact are based. In relevant part, this policy reads “every entry into the medical record
will be dated, timed and signed. All care, planned and provided, will be entered into the medical
record. It will be legible and timely. Progress notes should be entered within the shift when care
occurred . . . . When incorrect entries are made on any part of the medical record or other facility
forms, strike one line through the incorrect entry and date and initial that entry . . . .”
Pages eleven and twelve of State’s exhibit one provide another polity upon which the
findings of fact are based. In relevant part this policy reads “facility staff should verify each time
a medication is administered that it is the correct medication, at the correct dose, at the correct
rate, at the correct time, for the correct resident . . . . facility staff should take all measures
required by facility policy and applicable law, including, but not limited to the following: . . .
administer medications within time frames specified by facility policy; document the
administration of controlled substances in accordance with applicable law.”
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B. The Board’s Decision to Amend the Chief Hearing Officer’s
Recommendation as to Appellant’s Suspension Length has a Substantial and
Rational Basis, is Supported by Substantial Evidence, and is Free from Legal
Error
Appellant contends that the Board illegally changed the Chief Hearing
Officer’s recommended sentence length based on its unsubstantiated view that she
diverted medications that she did not accurately document giving to patients. The
Board is permitted to modify the Chief Hearing Officer’s conclusions of law and
proposed sanctions, so long as it bases its modification on the written record.10
Any sanction modification that the Board makes must have a substantial and
rational basis, be supported by substantial evidence, and be free from legal error.11
Since the Board’s sanction modification has a substantial and rational basis, is
supported by substantial evidence, and is free from legal error the sanction
modification is valid.
1. The Board’s Sanction Modification has a Substantial and Rational
Basis
A sanction modification has a substantial and rational basis when it is
necessary to protect patients.12 In Jain, a supervisory nurse argued that her
sanction was too harsh, considering the fact that a nurse she supervised received a
much lighter sanction for the same conduct.13 The court held that the supervisory
10
29 Del. C. § 8735(v)(1)(d).
11
Jain v. Del. Bd. of Nursing, 2013 WL 3389287, at *7 (Del. Super. Feb. 13, 2013).
12
Id.
13
Id. at 4-5.
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nurse’s role as a supervisor combined with the need to protect patients provided a
substantial and rational basis for the court’s decision to sanction the supervisory
nurse more severely than her subordinate nurse.14 Similar to Jain, this case
presents a situation in which the Board had to modify the sanction in order to
protect patients. As such, the Board’s decision in this case has a substantial and
rational basis.
2. The Board’s Sanction Modification is Supported by Substantial
Evidence
As section A notes, the Board’s decision is supported by substantial
evidence.
3. The Board’s Sanction Modification is Free from Legal Error
The Board’s sanction is within the permissible sanctions for unprofessional
conduct, and the Board was correct in determining that Appellant engaged in
unprofessional conduct based on the findings of fact. Therefore, the Board’s
sanction modification is free from legal error.
a. The Board may Impose a Two Year License Suspension for
Appellant’s Unprofessional Conduct
The Board is permitted to impose a broad range of sanctions in the event
that a nurse engages in unprofessional conduct.15 Specifically, the Board may
14
Id. at 6-7.
15
“The Board may impose any of the following sanctions singly or in combination when
it finds a licensee or former licensee is guilty of any offense described herein, except that the
license of any licensee who is convicted of a felony sexual offense shall be permanently revoked
. . . is guilty of unprofessional conduct as shall be determined by the Board, or the wilful neglect
of a patient.” 24 Del. C. § 1922(a)(8).
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“permanently revoke a license to practice, suspend a license, censure a license,
issue a letter of reprimand, place a licensee on probationary status, . . . refuse a
license, refuse to renew a license, or otherwise discipline (the nurse).”16 In this
case, the Appellant’s license was suspended for two years. Since 24 Del. C. §
1922(b) states that the Board has the power to suspend Appellant’s license for
unprofessional conduct, the suspension length is valid so long as the Appellant
engaged in unprofessional conduct.
b. Appellant Engaged in Unprofessional Conduct
The Board’s regulations define unprofessional conduct. Nurses engage in
unprofessional conduct when, among other things, they:
1) behave in a way that fails to conform to legal and accepted
standards of the nursing profession and thus may adversely affect the
health and welfare of the public;
2) assume duties and responsibilities within the practice of nursing
without adequate preparation or without maintenance of competency;
3) inaccurately and willfully record, falsify, or alter a patient or
agency record related to patient care, employment, or licensure;
4) divert, possess, obtain, supply or administer illegal drugs or
prescription drugs to any person, including self, except, in the case of
prescription drugs, as directed by a person authorized by law to
prescribe drugs;
16
24 Del. C. § 1922(b).
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5) fail to take appropriate action or to follow policies and procedures
in the practice situation designed to safeguard the patient.17
Appellant was unprofessional in each of the five ways noted above. Therefore,
Appellant’s sanction modification is free from legal error.
I. Appellant Behaved in a way that Fails to Conform to Legal and Accepted
Standards of the Nursing Profession
Since Appellant failed to conform to legal and accepted standards of the
nursing profession, Appellant engaged in unprofessional conduct. One accepted
standard in the nursing profession is that licensed practical nurses must “document
nursing interventions and outcomes.”18 The factual findings indicate that, at times,
Appellant did not document the medications that she gave to patients. Therefore,
she failed to follow legal and accepted standards of the nursing profession.
II. Appellant Assumed Duties and Responsibilities Within the Practice of Nursing
Without Adequate Preparation or Without Maintenance of Competency
Since Appellant assumed duties and responsibilities within the practice of
nursing without adequate preparation or without maintenance of competency,
Appellant engaged in unprofessional conduct. Just as the Chief Hearing Officer
noted, Appellant showed an inability to document and administer medications
properly during the last three months of her employment with Kentmere.
Nevertheless, Appellant continued to perform her duties. This constitutes
assuming responsibilities without maintenance of competency.
17
24 Del. Admin. Code 1900-10.4.
18
24 Del. Admin. Code 1900-7.5.
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III. Appellant Inaccurately and Willfully Recorded an Agency Record Related to
Patient Care
Since Appellant inaccurately and willfully recorded an agency record
related to patient care, Appellant engaged in unprofessional conduct. The findings
of fact note that appellant reported administering medications when she was not
on duty, and did not report administering medications at all in certain situations.
Therefore, she engaged in unprofessional conduct.
IV. Appellant Administered Prescription Drugs in a Manner Inconsistent with the
Direction of a Person Authorized by Law to Prescribe Drugs
Since Appellant administered prescription drugs in a manner inconsistent
with the direction of a person authorized by law to prescribe drugs, Appellant
engaged in unprofessional conduct. The findings of fact indicate that the Appellant
administered Oxycodone and Oxycodone-Acetaminophen in quantities that were
inconsistent with the doctor’s prescription. Therefore, Appellant engaged in
unprofessional conduct.
V. Appellant Failed to Follow Policies and Procedures in the Practice Situation
Designed to Safeguard the Patient
Since Appellant failed to follow policies and procedures in the practice
situation designed to safeguard the patient, Appellant engaged in unprofessional
conduct. Kentmere had policies mandating that nurses document all care given to
patients; document that care during the shift in which the care is given; correct
entries later documented; prior to administering medication, verify that the
medication they administer will be given at the correct time, in the correct dosage,
and at the correct rate; and give medication to patients within the proper time
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frame. Appellant failed to document her administration of medication,
administering patients medication contrary to their doctors’ prescriptions.
Therefore, Appellant failed to follow policies and procedures designed to
safeguard the patient and engaged in unprofessional conduct.
CONCLUSION
For the foregoing reasons, the Board’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Robert B. Young
J.
RBY/lmc
Via File & ServeXpress
oc: Prothonotary
cc: Counsel
Amanda S. Frazer (via U.S. Mail)
Opinion Distribution
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