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Spears v. Louisiana Board of Practical Nurse Examiners

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

JOANETTA SPEARS
v.
LOUISIANA BOARD OF PRACTICAL NURSE EXAMINERS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 755-951, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, JOANETTA SPEARS Ray A. Bright

          COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA BOARD OF PRACTICAL NURSE EXAMINERS John W. Becknell, III

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

         AFFIRMED

         SJW

         SMC

         FHW

          STEPHEN J. WINDHORST JUDGE

         On December 3, 2015, plaintiff, Joanetta Spears, filed a petition for judicial review of a November 6, 2015 administrative agency decision rendered pursuant to La. R.S. 49:964 by defendant, Louisiana Board of Practical Nurse Examiners (the Board), revoking Mr. Spears' practical nursing license.

         FACTS AND PROCEDURAL HISTORY

         On May 12, 2015, after receiving a report from Ochsner Medical Center-West Bank, the Board filed a Formal Complaint against Ms. Spears, a Licensed Practical Nurse (L.P.N.), alleging violations of La. R.S. 37:969A, sections (4)(c), (d), (f) and (g) and La. Admin. Code 46:306T, sections (3), (4) and (8)(a), (b), (c), (g), (j), (p), (q) and (t).[1]

          The Board conducted a formal hearing on June 19, 2015, before Hearing Officer Myra L. Collins, L.P.N. Also present were Executive Director, M. Lynn Ansardi, R.N., and members of the Compliance Department, Kiana Gautreaux and Julie Pranger, R.N. Ms. Spears represented herself and the Board was represented by Jerry W. Sullivan, Esq. Ms. Spears testified at the hearing, as did Ruth Polk, R.N., Amanda Smith, R.N., B.S.N., Georgia Gaffney, R.N., Kristy Caleyo R.N., B.S.N., and Kimberly Lager of Global Safety Network, who performed drug and alcohol testing both in the field and in the office.

         THE BOARD HEARING

         The following facts were adduced at the Board hearing.

         Ms. Spears was issued a license for practical nursing in the state of Louisiana on April 24, 2003. She was terminated from employment with Ochsner on January 14, 2015. Her license was summarily suspended, immediately after a positive breathalyzer test, and she was terminated from employment shortly thereafter. Ms. Spears was notified that she was terminated not only because of the positive breathalyzer test, but also because of behaviors addressed in her performance improvement plan and excessive absenteeism.

         According to the testimony of Ruth Polk, R.N., Ms. Polk had worked the night shift on December 26-27, 2014. At the change of shift, Ms. Polk was waiting while another nurse was giving a report to Ms. Spears, who was just starting her shift. Ms. Polk stated that within a minute of starting the report, Ms. Spears "nodded off, bobbing her head downward first and then her head went back." Ms. Polk noted that Ms. Spears had a "body odor" and that she was "diaphoretic" (sweaty) and non-responsive. Ms. Polk stated that she did not smell alcohol. As it appeared that Ms. Spears was having a seizure, a Code Blue was initiated.

         Amanda Smith, R.N., testified that she was one of the house supervisors at Ochsner at that time. She responded to the Code Blue issued for Ms. Spears. When she arrived, Ms. Spears was diaphoretic, sitting in her chair almost "postictal." She looked "dazed, very sweaty, didn't look good." Ms. Smith and an emergency room physician urged Ms. Spears to go to the ER, but Ms. Spears responded that she was fine and would drive herself home. Ms. Spears became very adamant that she not be examined, which Ms. Smith thought was outside of her general character and which put Ms. Smith on alert that something was not quite right. As a result Ms. Smith contacted Global Safety Network, to arrange for alcohol testing.

         Kimberly Lager testified that she was an employee with Global, and that she performed drug and alcohol tests both in the office and in the field. On December 27, 2014, she was summoned to Ochsner, where she administered a breathalyzer test to Ms. Spears. Three samples were taken fifteen minutes apart. The first sample revealed a result of 0.132%. Ms. Spears did not properly blow into the machine on the second test, and the result voided. The third sample, fifteen minutes after the second, yielded a result of 0.098%.

         Ms. Lager further stated that the machine calibration was immediately checked after the testing, as was standard procedure anytime there was a positive reading. Finally, Ms. Lager testified that there were fifteen minute intervals between tests because alcohol in the mouth, as in mouthwash, would dissipate after fifteen minutes.

         Georgia Gaffney, R.N., testified that she was the unit supervisor of the telemetry unit and that Ms. Spears worked under her supervision. Concerning Ms. Spears' work habits, she did not timely complete nursing notes, and she would not carry her Spectralink communication device on her person to allow communication with other personnel. Ms. Spears had issues with absenteeism, as well as complaints that personnel could not locate her on the unit when she was working. Furthermore, there were several instances where Ms. Spears failed to timely administer medications and failed to timely communicate with physicians concerning their patients. Ms. Gaffney related one instance in which one of the physicians informed her that she observed Ms. Spears hiding behind a curtain in an empty patient room. Ms. Gaffney further testified regarding an incident in which it was believed that Ms. Spears did not timely administer medicine, resulting in a patient's transfer to ICU, and then failed to notify the patient's physician of that transfer. This incident resulted in the physician issuing an order that Ms. Spears no longer be allowed to care for that physician's patients. Ms. Gaffney identified a Performance Evaluation prepared in April 2014, in which it was marked that Ms. Spears "achieves expectations." Ms. Gaffney stated that this evaluation meant that Ms. Spears had met the minimum requirements of what was expected of the job.

         Ms. Spears' next evaluation was held in November 2014. Ms. Gaffney had a conversation with Ms. Spears concerning attendance, untimely completion of nursing notes, untimely notification to doctors of problems and untimely administration of medicines, as well as Ms. Spears' failure to carry the Spectralink device. Also discussed was a complaint made by the physician concerning Ms. Spear's performance with patients and care delivery, the doctor's questioning of Ms. Spear's abilities which resulted in the physician requesting that Ms. Spears not be assigned to any of her patients. This request led to Ms. Spears' subsequent conflict with co-workers when that doctor's patients were accidentally assigned to Ms. Spears and then reassigned to her co-workers. A performance improvement plan was drafted, with the stipulation that Ms. Spears be assigned low acuity patients only.

         In her interview with Ms. Spears concerning Ms. Spears' termination from employment, Ms. Gaffney's notes concerning the termination conversation reflect that Ms. Spears told her that she needed alcohol to sleep at night, otherwise she would be tired at work. Ms. Spears denied making this statement to Ms. Gaffney.

          Kristy Caleyo, R.N., B.S.N., testified that she had been employed at West Jefferson Medical Center in 2010-2011, and that Ms. Spears worked under her supervision. Despite repeated attempts to rehabilitate Ms. Spears, she continued to exhibit inadequate care for her patients. Ms. Spears was terminated from employment due to untimely administration of medications, failure to document patient information, failure to follow physician orders, and poor job performance.

         Ms. Spears testified on her own behalf during the hearing. She stated that on December 27, 2014, she did not feel ill when she reported for work. She was getting a report, and the next thing she knew several nurses were standing around her, telling her that she had a seizure. Ms. Smith told her she needed to be examined, but she refused because she was embarrassed. The night charge nurse asked her several questions, which she was able to answer, and then stated that she needed to be examined. She acquiesced to this second request.

         Ms. Spears testified that she agreed to take the Breathalyzer test and was surprised when the test showed that she had ingested alcohol. She stated that, on the day prior, she had consumed one glass of wine that she started sipping at twelve o'clock with her lunch and finished at eight in the evening before she went to bed. She also stated that when she went to bed, she ingested one dose of Unisom, a sleeping aid. Ms. Spears denied telling Ms. Gaffney that she needed to have an alcoholic drink in order to sleep. Ms. Spears further stated that she felt like she was bullied by her co-workers and would call in sick for respite. She admitted that she was untruthful when telling her supervisors that she was ill and mentioned a history of Crohn's disease to excuse her absences. Ms. Spears also addressed the incident when she was in an empty patient's room, stating that she went to an empty room, once or twice, to collect her thoughts because she was constantly interrupted by her co-workers when she attempted to write her reports.

         FINDINGS AND RULING OF THE BOARD

         After consideration of the testimony and the exhibits filed, the hearing officer made findings of fact which were considered by the Board in its ruling. As stated by the Board in its decision, the hearing officer found the witnesses to be credible in their testimony, while finding Ms. Spears lacked credibility. The Board's decision also included the findings of fact made by the hearing officer as follows:

2. It was proven that on December 27, 2014, while employed as a licensed practical nurse with Ochsner Medical Center-West Bank, the respondent became unresponsive during report. After initially refusing, the respondent submitted to an alcohol breathalyzer screen in the emergency department. The result of the breathalyzer screen was 0.98 [sic].
3. The hearing officer found that the following allegations were proven:
• That on November 15, 2014, the respondent missed days, failed to complete nursing notes, failed to timely notify the doctor with problems and failed to give medications on time.
• That on November 18, 2014, a physician questioned the respondent's integrity with her delivery of care. The physician requested that the respondent not be assigned to any of her patients because the physician felt the respondent was not competent to perform the duties. Specifically, a patient was transferred to ICU as a result of an increased heart rate. The physician believes if the patient would have received routine medications, the patient's status change could have been prevented.
• That on December 19, 2014, the respondent was assigned to care for four of the physician's patients after the request was made that she not care for any of the physician's patients. While attempting to reassign the patients to comply with the physician's concerns, several co-workers complained that the respondent was not very pleasant. This resulted in a performance improvement plan. It was noted that the respondent was previously coached on medications (late with meds-monitor), documentation (open charts, I/O review), MD notification of patient status changes and critical labs, communication, visibility on unit and limited choices of patients (need low acuity, honesty with care). It was noted that ...

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