Francis v. Delaware Board of Nursing

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHRISTINE MULRY FRANCIS,
Appellant,
v.
DELAWARE BOARD OF
NURSING,
Appellee.
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C.A. No. N16A-10-006 FWW
ANGELA L. CALDWELL
DEBENEDICTIS,
Appellant,
Vl
DELAWARE BOARD OF
NURSING,
Appellee.
\./\./``./\./\/\./\./Vv\./V
Submitted: October 19, 2017
Decided: January 23, 2018
Upon Appeal from the Delaware Board of Nursing:
REVERSED.
OPINION AND ORDER
Daniel A. Grifflth, Esquire, 405 N. King St., Suite 500, Wilmington, Delaware
19801; Attorney for Appellant.
Carla A.K. Jarosz, Esquire, Deputy Attorney General, 820 N. French Street,
Wilmington, Delaware 19801; Attorney for Appellee.
WHARTON, J.
I. INTRODUCTION
Christine Francis and Angela DeBenedictis (“Appellants” or “nurses”) filed
their Notice of`` Appeal on October 21, 2016, requesting judicial review of the
October 7, 2016 order by the Delaware Board of Nursing (“Board”). Ms. Francis
and Ms. DeBenedictis contend that the Board’s disciplinary Order Was in error.
ln considering this appeal, the Court must determine Whether the Board’s
decision to discipline Ms. Francis and Ms. DeBenedictis is supported by substantial
evidence and f``ree of`` legal error. Upon consideration of the pleadings before the
Court and the record beloW, the Court finds that there is insubstantial evidence to
support the Board’s ruling, and therefore, the Board erred in reaching its decision.
Accordingly, the Board’s decision is REVERSED.
II. FACTUAL AND PROCEDURAL CONTEXT
Ms. Francis and Ms. Debenedictis are Registered Nurse licensees of the
Delaware Board of Nursing (the “Board”).l On March l7, 2015 Ms. Francis and
Ms. Debenedictis returned Sovaldi pills to a pill container to be administered after
they had been spilled and discarded into a sharps container.2 Because they returned
the discarded pills, a Hearing Of``ficer found Ms. Francis and Ms. Debenedictis in
violation of various DelaWare Board of Nursing Board Regulations (“the Board
l See Recommendation of Chief Hearing Of``f``icer at l.
2 Id.
Regulations”).3 Ms. Francis and Ms. DeBenedictis filed combined written
exceptions to the Hearing Officer’s Recommendation, but the Board affirmed the
Recommendation in full.4 Ms. Francis and Ms. DeBenedictis now appeal that
finding.
The State of Delaware has a constitutional obligation to provide adequate
healthcare for its inmate population.5 The State may discharge this obligation either
by employing its own medical providers at the correctional facilities or by
contracting with private companies whose employees work at the correctional
facilities ln March 2015, the Department of Corrections (“DOC”) had a contract
with Connections Community Support Programs, Inc. (“Connections”) for the
provision of general, non-specialized treatment of DOC patients.6 DOC also had a
separate contract with CorrectRX Pharmacy Services, Inc. (“CorrectRX”) to run the
pharmaceutical services at the Delaware correctional facilities.7
Dr. Jamie McGee was the clinical pharmacist assigned by CorrectRX to work
on-site at the James T. Vaughn Correctional Center (“JTVCC”).8 Dr. McGee’s
direct supervisor at CorrectRX was Dr. Valerie Barnes.9 Connections employed the
3 Id. at 30-34.
4 See Final Board Order at 1-3.
5 Appellants’ Opening Br., D.I. l6, at 7.
6 Id.
7 Id.
8 Id.
9 Id.
other pertinent actors: administering nurses Megan Bowerson and Roxanna
Gonzalez; Nursing Supervisor and Health Services Administrator at JTVCC
Christine Francis; Director of Nursing Angela DeBenedictis; and statewide medical
director for Connections Dr. Laurie Ann Spraga.1O
Patient DL is an inmate at JTVCC.11 He has Hepacitis C and is prescribed
Sovaldi as treatment.12 Each Sovaldi tablet costs approximately $1,000.00 and a full
bottle contains 28 tabs.13 Due to its high costs, Connections strictly monitored the
drug by counting it at every shift change and maintaining a log of its usage.14
On March 17, 2015 Nurse Gonzalez completed her shift at JTVCC and was
to be replaced by Nurse Bowerson. As required, the nurses counted the Sovaldi
tablets and, in the course thereof, Nurse Bowerson spilled twelve tablets onto the
floor.15 Ms. Bowerson “wasted” the pills into the “sharps” container_a box intended
for “biohazard” materials-and noted on a Controlled Substance Usage Log that the
pills had been discarded.16 Because this caused the pill count to be 12 fewer than
previous and the prescribed course of treatment required the patient to ingest the 12
pills over 12 days, the pills needed to be replaced quickly.
101d.at8,11,15.
11 State’s Ex. 1 at 94.
12 Id.
13 See Recommendation of Chief Hearing Officer at 8.
14 See Hr’g. Tr. l at 14. See also State’S Ex. 1 at 67-68.
15 Recommendation of Chief Hearing Officer at 3,5.
16 Ia’. at 5.
Nurse Bowerson contacted the on-site CorrectRX Pharmacist, Dr. McGee, to
request a refill of the Sovaldi pills.17 Dr. McGee, in turn, contacted her boss, Dr.
Barnes, who contacted Dr. Spraga.18 Dr. Barnes informed Dr. Spraga that 12 Sovaldi
pills had been wasted and “asked Dr. Spraga to arrange for the retrieval of the
pills.”19 Dr. Spraga then contacted Ms. Francis and told her to retrieve the Sovaldi
pills from the sharps container.20 Upon Dr. Spraga’s directive, Ms. Francis and Ms.
DeBenedictis proceeded to the pharmacy, located the sharps container, turned it
over, and shook it until the 12 pills finally fell out.21 Included in the waste that fell
from the container were retractable insulin syringes, retractable lancets, and diabetic
test strips.22 There was additional material in the sharps container, but no one knows
what exactly it was.23
The retrieved Sovaldi pills were taken to Nurse Francis’ office and inspected
by Nurses Francis and DeBenedictis.24 Dr. McGee, upon the request from Dr.
Barnes, came to Nurse Francis’ office to inspect the Sovaldi pills herself.25 Dr.
McGee has previously conducted inspections of pills approximately 20-25 times in
17 Id. at 8.
18 Id.
19 Id. at 13, 16.
20 Id. at 2(), 24.
21 Id.
22 Id.
23 Id. at 21.
24 Id. at 24.
25 Id.
the past to determine if they had been tampered with, altered, split or had previously
been “cheeked” in a human mouth.26
Knowing that the pills had been wasted, Dr. McGee performed a visual
inspection and determined that the tablets did not show any “visible signs of
contamination in the form of blood, dirt, water, or other damage.”27 Furthermore,
the pills looked new, “as if they had just come out of the bottle.”28 Dr. McGee and
Dr. Barnes then decided that the pills would be returned to the bottle for
29
administration Dr. Spraga acquiesced to the two pharmacists decision as they
were the “subj ect matter experts.”30
Dr. McGee and Ms. Francis_with full knowledge of the pills adventure_
personally returned the tablets to their original bottle and updated inmate DL’s
Sovaldi usage log.31 Inmate DL ultimately ingested the “wasted” Sovaldi pills and
was told of the incident several days afterward 32 He has suffered no ill effects.
On March, 26, 2015 Nurse Bowerson lodged a complaint with the Department
of State’s Division of Professional Regulation (“DPR”) against nurses Francis and
DeBenedictis. The State filed claims against the pharmacists, Dr. Spraga, and nurses
26 Hr’g. Tr. 1 at 88.
27 State’s Ex. l at 138.
28 Recommendation of Chief Hearing Officer at 24.
29 Id. at 29.
30 Hr’g. Tr. 1 at 264.
31 Hr’g. Tr. 2 at 117-119. See also State’s Ex. 1 at 67.
32 Hr’g. Tr. 1 at 57-582 131-132.
Francis and DeBenedictis. Dr. McGee and Dr. Barnes had given statements during
the investigation denying any involvement in the decision to return the pills to the
bottle, and consequently the State discontinued the pursuit of claims against them.
The State only proceeded against Dr. Spraga, Ms. Francis, and Ms. DeBenedictis.
Proceea'ings Before the Hearing O]j‘l``cer
On June 15 and 16, 2016 a Hearing Officer conducted a hearing on the State’s
Complaint.33
The claims against Dr. Spraga, Ms. Francis, and Ms. DeBenedictis
were consolidated for purposes of the hearing. The State proceeded on the theory,
consistent with the prehearing interviews conducted by the DPR investigators, that
the pharmacists were unaware the pills had been wasted in a sharps container, that
Dr. Spraga unilaterally decided to return the pills, and that the nurses acted
unethically by retrieving the wasted pills and returning them to the container for
administration
In addition to their own testimony, Ms. Francis and Ms. DeBenedictis offered
the testimony of two expert witnesses: Kathryn Wild and Dr. Paul Axelson. In
particular, Ms. Wild is an expert in nursing practice and correctional healthcare.34
Dr. Axelson is an expert in the fields of internal medicine, infectious disease, and
pharmacology.35 Dr. Axelson testified that in his opinion, administration of the
33 Hr’g. Tr. 1 at 1. See also Hr’g. Tr. 2 at l.
34 Hr’g. Tr. 2 at 75-81.
35 Id. at 5-8.
wasted Sovaldi pills to the patient was acceptable despite the pills “adventure” in the
sharps container.36 Both experts testified that the harm to the patient was nil or
incalculably small and they personally would have ingested the wasted tablets.37
During the Hearing Officer’s findings of fact, the most contested issues were
(l) the knowledge of the pharmacists and (2) their role in decision-making; whether
the pharmacists were aware of the pills “adventure” prior to deciding to return the
pills or whether the pharmacists were complicit in the decision to reuse the pills.
The Hearing Examiner found as a fact that both pharmacists, Dr. McGee and Dr.
Barnes, were aware that the pills had been removed from the sharps container and
decided to return the pills.38 Furthermore, the Hearing Examiner found that Ms.
Francis and Ms. DeBenedictis trusted Dr. McGee’s judgment and followed that
decision because it was a directive.39
T he Hearing O]j‘icer ’s Conclusions of Law
The Hearing Officer concluded that nurses Francis and DeBenedictis engaged
in unprofessional conduct by violating Bd. Reg. 10.4.1, Bd. Reg. 10.4.2.14, and Bd.
Reg. 10.4.2.28.40 Such unprofessional conduct is a basis for professional discipline
36 Id. at 16-17.
37 Ia'. at 20-22, 37, 95, 99-100.
33 Francis Recommendation of Chief Hearing Officer at 29. See also DeBenedictis
Recommendation of Chief Hearing Officer at 29.
39 Ia'.
40 Francis Recommendation of Chief Hearing Officer at 31-33. See also
DeBenedictis Recommendation of Chief Hearing Officer at 32-34.
8
according to 24 Del C. § l922(a)(8). In particular, the Hearing Officer found that
Ms. Francis and Ms. DeBenedictis violated Bd. Reg 10.4.141 because they were
obligated to exercise independent judgment and object or refuse to participate in
returning the pills. Furthermore, the nurses were aware of “standard operating
procedure” at JTVCC, that the pills were to be wasted. Therefore, the return of the
pills to the inmate constituted unprofessional conduct which may have adversely
affected his health and welfare.
The Hearing Officer also found that Ms. Francis and Ms. DeBenedictis
violated Bd. Reg. 10.4.2.14 because the nurses acted unethically.42 The Hearing
Officer defined ethical conduct as “conforming to accepted professional
standards.”43 Therefore, because the return of the pills to the container did not
conform to professional standards of nursing, Ms. Francis and Ms. DeBenedictis
failed to act “ethically”_-in violation of Bd. Reg. 10.4.2.14.44
Additionally, the Hearing Officer concluded that Ms. Francis and Ms.
DeBenedictis violated Bd. Reg. 10.4.2.28.45 The Hearing Officer first noted that
41 Bd. Reg. 10.4.1: “Nurses whose behavior fails to conform to legal and accepted
standards of the nursing profession and who thus may adversely affect the health
and welfare of the public may be found guilty of unprofessional conduct.”
42 Bd. Reg. 10.4.2.14: “Failing to take appropriate action to safeguard a patient
from incompetent, unethical or illegal health care practice.”
43 Francis Recommendation of Chief Hearing Officer at 32.
44 Ia'.
45 Bd. Reg. 10.4.2.28: “Failing to take appropriate action or to follow policies and
procedures in the practice situation designed to safeguard the patient.”
9
there was no specific policy or procedure in place at JTVCC which governed the
handling of non-controlled substances which had been spilled.46 Rather, the Hearing
Officer concluded that Ms. Francis and Ms. DeBenedictis failed to take appropriate
action to safeguard the inmate; the nurses failed to exercise reasonable independent
nursing judgment and preclude the spilled Sovaldi pills from being administered to
inmate after they had been wasted.47
As a result of the violations, the Hearing Officer recommended that: (1) the
Board of Nursing place Ms. Francis’ and Ms. DeBenedictis’ nursing licenses on
probation for a period of 90 days; (2) the nurses complete nine nursing education
hours, three each in the subject area of (a) standard of care pharmacology and drug
administration practices in institutional settings, (b) coordination of authority and
responsibilities of multiple health care providers in institutional settings, and (c)
nursing ethics; and (3) the final order of the Board constitute public disciplinary
action reportable to public practitioner data bases.
The parties were given twenty days from the date of the Hearing Officer’s
proposed order to submit written exceptions, comments, and arguments concerning
the conclusions of law and recommended penalty.48 Ms. Francis and Ms.
DeBenedictis provided written exceptions to the Board. The nurses’ counsel then
46 Francis Recommendation of Chief Hearing Officer at 33.
47 Id.
43 Final Board Order at 2.
10
presented verbal exceptions to the Board during the Board’s meeting on September
14, 2016. Counsel highlighted the expert testimony, stressed the fact that the risk to
the patient was negligible, argued that the Hearing Officer’s finding that the actions
resulted in a likelihood of harm was not supported by the evidence, and emphasized
that the nurses were acting at the direction of the medical director and pharmacist.49
The State responded by highlighting the facts in evidence.5° After deliberating, the
Board voted to affirm the Hearing Officer’s recommended conclusions of law and
discipline.51
III. THE PARTIES CONTENTIONS
Ms. Francis and Ms. DeBenedictis contend that the Board’s conclusion lacks
“substantial evidence” and therefore must be vacated.52 ln particular, they argue that
the Board’s decision lacked substantial evidence because (1) the decision discredited
the only expert testimony offered;53 (2) the Pharmacists and the Medical director
directed the return of the pills and the nurses had the right to rely upon that
directive;54 (3) there was no evidence that the nurses should have disobeyed the
49 Id.
50 ld.
51Ia'. at 2-3.
52 Appellant’s Opening Br., D.I. 16, at 38.
53 Ia'. at 38-41.
54 Ia'. at 41-43.
11
directive;55 (4) the directive presented no risk of harm to the patient;56 and (5)
imposing discipline upon the nurses would put them in an impossible position.57
In response, the State argues that the Board’s conclusion is based on their
expertise and analysis of the facts in the record.58 The State further argues that the
record contained substantial facts regarding Ms. Francis’ and Ms. DeBenedictis’
unprofessional conduct and the standards in the nursing community.59
IV. STANDARD OF REVIEW
Ms. Francis and Ms. DeBenedictis appeal an administrative disciplinary
decision of the Delaware Board of Nursing. The Delaware Administrative
Procedures Act (“APA”) vests this Court with jurisdiction to entertain appeals from
an administrative board’s final order.60 The board’s final order must be affirmed so
long as it is supported by substantial evidence and free from legal error.61 Substantial
evidence is that which a reasonable mind might accept as adequate to support a
55 Ia'. at 43-45.
56 Ia'. at 45-48.
57 Ia’. at 49.
58 Appellee’s Answering Br., D.I. 17, at 14-22.
59 Ia'. at 22-29.
66 See 29 Del. C. §§ 10142 and 10102(4).
61 Conagm/Pilgrim ’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June l7,
2008); Jorclan v. Bd. of Pension Trs. of Del., 2004 WL 2240598, *2 (Del. Super.
Sept. 21, 2004); King v. Bd. of Pension Trs. of Del., 1997 WL 718682, at *3_*4
(Del. Super. Aug. 29, 1997).
12
conclusion.62 While a preponderance of evidence is not necessary, substantial
evidence means “more than a mere scintilla.”63 The Court takes due account of the
Board’s specialized competence and the purpose of the law under which the Board
acted,64 and does not weigh the evidence, determine credibility or draw its own
factual findings or conclusions.65
Questions of law are reviewed de nov0.66 If the Board’s findings and
conclusions are sufficiently “supported by the record and are the product of an
orderly and logical deductive process,” its decision will be affirmed.67
V. DISCUSSION
A. The Spraga Decision
The Hearing Officer found Dr. Spraga in violation of 24 Del C. § 1731(b)(3)
because her failure to overrule the pharmacists caused a “risk of harm.”68 The
Board of Medical Practice affirmed the Hearing Officer’s recommendation and Dr.
62 Lehto v. Ba'. OfEa'uc. of Caesar Roa'ney Sch. Dist., 962 A.2d 222, 225-226 (Del.
2008).
63 Breea'ing v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); see also
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
64 29 Del. C. §10142(d).
65 Janaman v. New Castle Cnty. Bd. Oan'justment, 364 A.2d 1241, 1242 (Del.
Super. Ct. Aug. 19, 1976).
66 Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); see also
Wara' v. Dep ’t of Elections, 2009 WL 2244413, at *1 (Del. Super. July 27, 2009).
67 Mentor Graphics Corp. v. Shapiro, 818 A.2d 959, 963 (Del. 2003).
63 24 Del. C. § 1731(b)(3) states_ “Unprofessional conduct” includes but is not
limited to any of the following acts or omissions: any dishonorable, unethical, or
other conduct likely to deceive, defraud, or harm the public
13
Spraga appealed that decision. The Superior Court, on appeal, found no evidence
to support a finding of public harm.69 Dr. Spraga’s expert witnesses testified to the
absence of public harrn, the State presented no argument of public harm, and the
Hearing Officer did not cite facts that supported a finding of public harm. The
Spraga Court, therefore, concluded that Dr. Spraga did not violate 24 Del C. §
173 l (b)(3).
Dr. Spraga also appealed the Board’s conclusion that she violated Board
Rule 8.1.16_prohibiting “any other act tending to bring discredit upon the
profession.”70 The Court determined that Dr. Spraga was not given fair notice and
an opportunity to be heard because the Board conceived her violation post hoc,
privately. Therefore, the Board’s conclusion that Dr. Spraga violated Board Rule
8.1.16 could not stand.71 Upon finding no violations the Superior Court remanded
the matter to the Board for proceedings in light of the rulings therein.
ln light of Spraga Ms. Francis and Ms. DeBenedictis submitted
supplemental briefs arguing that collateral estoppel requires the nurses’ appeal be
sustained The nurses argue the Spraga court concluded that Dr. Spraga was not
required to overrule the pharmacists. Therefore, Spraga compels that the nurses
69 Spraga v. Delaware Bd. of Med. Licensure & Discipline, 2017 WL 3396490
(Del. Super., Aug. 7, 2017).
76 Delaware Board of Medical Licensure and Discipline Rule 8.1.16.
71 Spraga, 2017 WL 33964900 at *6.
14
were not required to overrule the pharmacists or the doctor. Furthermore, the
nurses argue that denying the nurses’ appeal would be irreconcilable with the
Spraga decision because the basis for the nurses’ and Dr. Spraga’s discipline was
the same and Dr. Spraga’s discipline was vacated.
The State submits that the doctrine of collateral estoppel does not apply.
According to the Board, the Spraga Court focused on whether there was
substantial evidence to show that Dr. Spraga violated the Board of Medical
Practice’s licensing laws. Therefore, such a decision could not be imputed to the
nurses because their conduct and applicable laws were different; the issue litigated
and determined was different; and the valid and final judgment applied to Dr.
Spraga, not the nurses. The Board also argues that Spraga is not controlling or
persuasive because part of the decision was based on Dr. Spraga’s lack of notice
and opportunity to be heard. Lastly, the Board argues that Spraga should not
dictate the result because the nurses were more engaged and subject to different
licensing and standards.
The Court does not find that collateral estoppel dictates the result. However,
the Spraga decision informs this Court’s decision. The Spraga Court found that
the Hearing Officer’s “conclusion that Dr. Spraga engaged in conduct ‘harmful to
15
”72 Here too there is no evidence to
the public’ was not supported by the evidence.
show that the nurses engaged in harmful conduct.
B. The Hearing Officer’s Decision is Not Supported by Substantial
Evidence Because There Are No Facts in the Record to Show That the
Act Was Harmf``ul.
The facts in this case are ugly. The idea of administering pills that had an
“adventure” through a prison sharps container is unpleasant. However, the Court
is concerned not with optics, but with evidence, and the evidence_or lack
thereof_supports the nurses’ contention that there was no risk of harm to the
patient. The only evidence of “risk of harm” was presented by the nurses’
witnesses.73 All three confirmed the absence of harm, and the two experts testified
that they would have ingested the wasted pills themselves The State, however,
presented no evidence of harm and the Hearing Officer, in his findings of fact,
cited nothing for the proposition that administering wasted pills caused or was
likely to cause harm. Therefore, the Court finds no substantial evidence of harm, a
required element of the nurses’ violations and necessary component of the board’s
decision.
Each of the three Board Regulations Ms. Francis and Ms. DeBenedictis were
found to have violated require evidence of harm. Without harm a violation cannot
72 Spraga, 2017 WL 33964900 at *5.
73 Dr. Axelson, Kathryn Wild, and Dr. Spraga, who recounted what the treating
physician had written.
16
stand. Likewise, the Hearing Officer’s reasoning for the violations_that the
nurses should have exercised independent judgment_is based on harm. The
exercise of independent judgment is meant to safeguard the patient from harm. lf
harm is not possible, requiring that the nurses exercise independent judgment to
prevent harm is an unnecessary redundancy.
The nurses were first found to have violated Bd. Reg. 10.4.1, “[n]urses
whose behavior fails to conform to legal and accepted standards of the nursing
profession and who thus may adversely anect the health and welfare of the public
may be found guilty of unprofessional conduct.”74 To violate 10.4.1 an adverse
effect_harm-to the health and welfare of the public is required. Here, neither
the State nor the Hearing Officer cited any evidence of harm and the nurses’
witnesses in fact testified to the lack thereof. A violation of 10.4.1, therefore,
cannot be sustained.
The Hearing Officer found the nurses in violation of Bd. Reg. 10.4.1
because they failed “to exercise independent judgment and either object to or
refuse to participate in returning the Sovaldi tabs to the inmate’s count.” However,
that conclusion is not supported by anything more than supposition. The Hearing
Officer offers no code, statute, regulation, or any basis whatsoever for such a
finding. Moreover, the purpose behind exercising independent judgment is to
74 Emphasis added.
17
prevent harm. Here, there is no evidence of harm therefore the was no independent
judgment basis for the nurses to object to or refuse to participate in returning the
Solvaldi pills to the inmate’s count. The Court finds that the record lacks
substantial evidence to support the violation. Therefore Ms. Francis’ and Ms.
DeBenedictis’ violations of Bd. Reg. 10.4.1 cannot stand.
Ms. Francis and Ms. DeBenedictis next were found to have violated Bd.
Reg. 10.4.2.14, “[f]ailing to take appropriate action to safeguard a patient from
unethical health care practice.” Like the previous Board Regulation, 10.4.2. 14
contains a harm element; it seeks to prevent harm by safeguarding the patient from
unethical health care practice. A violation of 10.4.2.14, however, cannot follow
because no evidence of`` harm to the patient is offered. To hold otherwise_to hold
one accountable for unethical practice where no harm has occurred_would allow
form to prevail over substance
In particular, the Hearing Officer found that the nurses acted unethically
because they failed to conform to “accepted professional standards of conduct” by
not exercising independent judgment and returning the wasted pills to the inmate’s
count.75 As noted there is no evidence of harm, therefore exercising independent
judgment to refuse to return the Solvaldi pills to the inmate’s count would have
been an unwarranted exercise of that judgment. The Board’s decision, therefore, is
75 Francis Recommendation of Chief Hearing Officer at 32.
18
not supported by substantial evidence and the Court finds that the nurses did not
violate Bd. Reg. 10.4.2.14.
Ms. Francis and Ms. DeBenedictis were also found in violation of Bd. Reg.
10.4.2.28, “[fa]iling to take appropriate action or to follow policies and procedures
in the practice situation designed to safeguard the patient.”76 This regulation, like
the other two, requires evidence of harm. The actions, policies, and procedures are
meant to safeguard against something, without harm 10.4.2.28 would be
superfluous Therefore, because no evidence of harm has been cited and the
nurses’ witnesses testified as to the absence of harm, the violation cannot be
sustained.
Specifically, the Hearing Officer found that the nurses failed to take
appropriate action_exercise independent nursing judgment_designed to
safeguard the patient.77 The Court has found no evidence of harm or risk of harm
to the patient. Thus, there was no independent judgment basis for the nurses to
proceed differently than directed. Consequently, the Board’s conclusion is not
supported by substantial evidence on the record and the Court finds that the nurses
did not violate Bd. Reg. 10.4.2.28.
VI. CONCLUSION
76 Francis Recommendation of Chief Hearing Officer at 33.
77 Id.
19
The Court finds that the Board’s decision was not supported by substantial
evidence. Therefore, the decision of the Board is hereby REVERSED.
IT IS SO ORDERED.
/7
d
FelTiZ/W.'Whartdn‘, Judge
20