STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS
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1 STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS In the matter of Mary Elizabeth McGill, L.P.N., Petitioner v Bureau of Health Services, Respondent / Docket No Agency No Agency: Case Type: Department of Community Health Appeal Reinstatement Issued and entered this 25 th day of February, 2004 by Gregory Holiday Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY This proceeding was commenced with the filing of a Petition For Reinstatement on October 17, 2003, seeking the reinstatement of Petitioner's nursing license. The hearing was scheduled to be held on Monday, December 22, 2003 at 9:00 a.m., at the Bureau of Hearings of the Department of Labor & Economic Growth, Cadillac Place, 2 nd Floor Annex, Room 2-700, 3026 West Grand Boulevard, Detroit, Michigan, and the same proceeded as scheduled. Gregory Holiday presided as Administrative Law Judge. Joseph P. McGill, Esq., appeared on behalf of Mary Elizabeth McGill, L.P.N., (Petitioner), who testified on her own behalf. Cara Ann Deratany, Laura Hammett, Margaret J. Hepke, D.O., and Mary Myers also testified for Petitioner. Jack C. Blumenkopf, Esq., appeared on behalf of the Bureau of Health
2 Page 2 Professions, formerly known as the Bureau of Health Services (Respondent). No witnesses testified for Respondent. ISSUES AND APPLICABLE LAW The general issue presented is whether Petitioner meets the requirements for reinstatement of her nursing license. The specific issues are whether Petitioner has complied with the Department s Guidelines on Reinstatement and meets each of the requirements for reinstatement set forth in Section of the Public Health Code, 1978 PA 368, as amended, MCL et seq.; MSA 14.15(1101) et seq., (Code) which provides: Sec (1) A board or task force may reinstate a license or issue a limited license to an individual whose license has been suspended or revoked under this part if after a hearing the board or task force is satisfied by clear and convincing evidence that the applicant is of good moral character, is able to practice the profession with reasonable skill and safety to patients, has met the criteria in the rules promulgated under section 16245(6), and should be permitted in the public interest to resume practice. Pursuant to the rules promulgated under section 16245(6), as a condition of reinstatement, a disciplinary subcommittee, upon the recommendation of a board or task force, may impose a disciplinary or corrective measure authorized under this part and require that the licensee attend a school or program selected by the board or task force to take designated courses or training to become competent or proficient in those areas of practice in which the board or task force finds the licensee to be deficient. The board or task force may require a statement on a form approved by it from the chief administrator of the school or program attended or the person responsible for the training certifying that the licensee has achieved the required competency or proficiency. (2) As a condition of reinstatement, a board or task force shall place the licensee on probation for 1 year under
3 Page 3 EXHIBITS conditions set by the board or task force. If a licensee whose license has been revoked cannot apply for reinstatement for 5 years after the date of revocation, then, as a condition of reinstatement, the board or task force shall require the licensee to take and pass the current licensure examination. (3) A board or task force shall not reinstate a license suspended or revoked for grounds stated in section 16221(b)(i), (iii), or (iv) until it finds that the licensee is mentally or physically able to practice with reasonable skill and safety to patients. The board or task force may require further examination of the licensee, at the licensee's expense, necessary to verify that the licensee is mentally or physically able. A licensee affected by this section shall be afforded the opportunity at reasonable intervals to demonstrate that he or she can resume competent practice in accordance with standards of acceptable and prevailing practice. Petitioner offered the following exhibits for consideration at the hearing: Exhibit Description 1 Curriculum Vitae of Mary Elizabeth McGill 2 Copies of Continuing Education Verifications from Covey, Oakland Community College, Mt. Clemens General Hospital, Quest Diagnostics and Bi-County Hospital 3 Curriculum Vitae of Margaret J. Hepke, D.O. 4 Affidavit of Margaret J. Hepke, D.O. FINDINGS OF FACT Respondent offered no additional exhibits for consideration at the hearing. According to Petitioner s Curriculum Vitae (Petitioner Exhibit 1), Petitioner was first licensed in Michigan as an L.P.N. in about March 1991 after completing the L.P.N.
4 Page 4 Certification Program at Oakland Community College. One of her sisters and her father are physicians, another sister is a physical therapist and her mother is a Limited Licensed Psychologist. From 1991 to 1997, Petitioner was employed as an L.P.N. at Oakwood Hospital. In September 1996, Petitioner, while working the midnight shift in the neurological unit at Oakwood Hospital, engaged in conduct which violated the applicable standards of care as follows: At approximately 12:30 a.m. on September 14, 1996, Petitioner reported to work late. Upon arrival, Petitioner received an oral report from the afternoon nurse on the status of patients assigned to Petitioner. Petitioner was notified at that time by the afternoon nurse that patient D.R. had a blood pressure reading of 200/105. Petitioner opted not to review more in-depth information about her patients available on cassette tape despite an offer from the afternoon nurse to stay on until Petitioner s review was complete. At approximately 1:00 a.m., Petitioner reported to the charge nurse that patient D.R. s blood pressure was 190/72. The charge nurse directed Petitioner to contact the in-house surgical resident regarding this high blood pressure reading. Petitioner instead contacted the medical resident who also directed Petitioner to contact the surgical resident. Petitioner reported this to the charge nurse who again directed Petitioner to contact the surgical resident. Petitioner failed to contact the surgical resident. Petitioner re-checked patient D.R. and subsequently indicated to the charge nurse that there were no problems with the patient. Petitioner noted on patient D. R. s chart that at 1:00 a.m. there was a decrease in motor strength in the patient s left arm and leg from 3 (strong) to 1 (weak) from the previous reading approximately nine hours earlier. Petitioner further noted that the patient s pupils showed a decreased reaction. Petitioner failed to report these neurological changes to the charge nurse or other appropriate hospital staff.
5 Page 5 Petitioner noted on patient D.R. s chart that at 3:00 a.m., patient D.R. was alert, and that the patient s left arm and leg were weak. When questioned by the charge nurse about [the] status of Petitioner s patients, Petitioner indicated there were no problems. Petitioner noted on patient D.R. s chart that at 5:00 a.m. the strength of the patient s left arm and leg remained at 1 and that the patient s blood pressure was 180/80. When specifically queried by the nursing supervisor about the status of patient D.R., Petitioner again indicated that there were no problems. At approximately 7:00 a.m., Petitioner notified the charge nurse that patient D.R. was not alert and that the patient s left side was flaccid pursuant to Petitioner s evaluation of the patient at 5:00 a.m. The charge nurse assessed the patient and a doctor was called. Patient D.R. was then transferred to the critical care unit. Based upon Petitioner s performance with regard to patient D.R., as set forth above, Petitioner was given a three-day suspension from the hospital for lack of appropriate documentation, assessment and follow-through. Based upon the above scenario, a June 16, 1997 Administrative Complaint was filed against Petitioner charging her with having violated sections 16221(a) (failure to exercise due care) and 16221(b)(i) (practicing below the minimal standards of acceptable and prevailing practice) of the Code. Petitioner obtained legal counsel to defend against the complaint but no answer was timely filed as required by the Code. As a result, the Board of Nursing s Disciplinary Subcommittee entered a Final Order dated September 22, 1997, which found the Administrative Complaint allegations true and ordered the suspension of Petitioner s L.P.N. license for a minimum period of six months and one day. Petitioner, through legal counsel, requested reconsideration and filed a series of appeals and challenges but the Final Order was upheld. Petitioner does not contest the allegations in the Administrative Complaint and does not contest the discipline imposed pursuant to the Disciplinary Subcommittee s
6 Page 6 findings. Petitioner was terminated from Oakwood Hospital after the suspension of her L.P.N. license. According to Petitioner, she was devastated after her L.P.N. license was suspended. Nevertheless, from 1998 to 1999, she worked as an office assistant for Merrell Construction in Detroit and from December 1999 until January 2002, she worked as an administrative assistant through Kelly Services in Troy. While at Kelly Services, Petitioner received in-house training on using Microsoft s Word, Excel and Access programs and also on managing data for Palm Personal Data Assistants. In January 2002, Petitioner began her current medical assistant position at her sister, Dr. Margaret J. Hepke s, clinic in Oak Park. Petitioner anticipates that if her license is reinstated, she will remain in her sister s employ. At Dr. Hepke s clinic, Petitioner serves as the office manager and as a medical assistant performing specific services and tasks under the direct supervision of Dr. Hepke. Because of Petitioner s technology skills, she was called upon to automate many of the operations of the clinic, including patient charting, to train other medical assistants and to create a clinic procedure manual. Because of Petitioner s clinical skills, she was called upon to take vital signs, perform EKGs, draw blood as necessary, and perform other routine tasks as directed by Dr. Hepke. Petitioner s work at Dr. Hepke s office has kept her in the mainstream of nursing care while not practicing nursing. Since the suspension of her license, Petitioner has participated in continuing education programs through the Covey Leadership Center (The Seven Habits of Highly Effective People), Oakland Community College (Advanced Technology Program Business Information Systems) Mount Clemens General Hospital (MIOSHA Annual Training), Quest
7 Page 7 Diagnostics (Blood Drawing Demonstration) and Bi-County Community Hospital (Heartsaver CPR) (See Petitioner Exhibit 2). In addition, she completed a Bloodborne Pathogens, Tuberculosis and Safety program on September 24, 2003 and completed a one-day HIPPA informational seminar. In terms of public service since the suspension of her license, Petitioner has volunteered in food distribution for the homeless and has also volunteered with World Medical Relief in assisting in the collection and delivery of expired but needed medicines for ultimate delivery around the world. On the disciplinary matter, Petitioner concedes that she made mistakes and insists that she has addressed those concerns with increased training. She desires the reinstatement of her license in good faith and believes that she can practice nursing with reasonable skill and safety. According to Petitioner, caring for patients is second nature to her. She feels that she has good moral character and that it is in the public interest to permit her to resume the practice of nursing. Dr. Margaret Hepke, an osteopathic physician, is a specialist in physical medicine and rehabilitation. Her qualifications are more fully set forth in her Curriculum Vitae (Petitioner Exhibit 3). Dr. Hepke verifies that Petitioner is her sister and that Petitioner has worked as medical assistant and office manager at Dr. Hepke s clinic for about two years. According to Dr. Hepke, Petitioner stepped in when the Senior Partner in the clinical practice had to take a medical retirement. On updating the office, Dr. Hepke verifies (1) that Petitioner allowed the clinic to begin an entirely new computer-generated charting system, (2) that she automated many forms, (3) that she created a procedure manual, (4) that she has trained other medical assistants, and (5) that she has updated her nursing-related skills.
8 Page 8 Dr Hepke is aware of why Petitioner s L.P.N. license was suspended and believes that Petitioner has addressed those concerns. Dr. Hepke believes that Petitioner has good moral character, the ability to practice nursing with reasonable skill and safety, and that it is in the public interest to allow Petitioner to return to the practice of nursing. Dr. Hepke submitted an affidavit (Petitioner Exhibit 4) in support of Petitioner s request for reinstatement. Cara Ann Deratany is a physical therapist assistant and medical assistant and has worked in Dr. Hepke s office with Petitioner for about a year. Ms. Deratany sees Petitioner as polite and professional, both on the telephone and in person. According to Ms. Deratany, Petitioner handles all tasks requested by Dr. Hepke accurately and is a good organizer and delegator. Mary Myers is both an educator and a masters-level social worker. She has known Petitioner since about 1999, having taken care of her Petitioner s daughter for an extended period of time. She believes that Petitioner has the ability to practice nursing in a fair, honest and open manner. She has seen Petitioner display attributes of honesty, caring, openness, kindness and competency and believes that patients deserve that level of care. Lauren Hammett, Esq., is an attorney practicing in Detroit. Ms. Hammett has known Petitioner for one and one-half years, having represented Petitioner in 2002 in a domestic relations matter. In Ms. Hammett s opinion, Petitioner is responsible, compassionate, reliable and considerate and can deal with public in fair, honest and open manner. She also believes it to be in the public interest to reinstate Petitioner to the practice of nursing.
9 Page 9 CONCLUSIONS OF LAW The principles that govern judicial proceedings also apply to administrative hearings. 8 Callaghan's Michigan Pleading & Practice (2d ed) 60.48, p.230. The burden of proof is upon Petitioner to prove, by clear and convincing evidence that the requirements for reinstatement have been met AACS, R GOOD MORAL CHARACTER The Code defines good moral character at Section by referencing the Licensing of Former Offenders Act, 1974 PA 381, as amended, MCL et seq. That statute provides, in pertinent part: "Sec. 1. (1) The phrase 'good moral character', or words of similar import, when used as a requirement for an occupational or professional license... shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest and open manner. In this case, moral character played no role in the suspension of Petitioner s L.P.N. license. Petitioner s evidence, consisting of her own testimony and the testimony of Dr. Hepke, Ms. Deratany, Ms. Hammett, and Ms. Myers, is sufficient to establish that Petitioner has the ability and propensity to serve the public as an L.P.N. in a fair, honest and open manner. ABILITY TO PRACTICE Petitioner presented her own testimony, the testimony of Dr. Hepke, and Petitioner Exhibit 2 (consisting of continuing education information) to establish that she has
10 Page 10 the ability to practice nursing with reasonable skill and safety to patients. There was no evidence presented to contradict any of Petitioner s evidence. Petitioner has established that she has the ability to practice nursing with reasonable skill and safety to patients. GUIDELINES Before Petitioner s license can be reinstated, Petitioner must demonstrate, by clear and convincing evidence, that the criteria in the guidelines promulgated under Section 16245(6) and adopted by the Department on November 4, 1996 have been satisfied. These guidelines provide as follows: Unless otherwise provided, and in addition to other requirements set forth by statute, each applicant for reinstatement must establish his or her compliance with the following criteria, as applicable The applicant has participated in one or more community service or professional volunteer activities or programs since the revocation or suspension of his or her license or registration. 2. The applicant has successfully completed one or more substance abuse treatment programs, which may include inpatient or outpatient care at a substance abuse facility, regular attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings, AA/NA sponsorship, regular or random witnessed alcohol/drug urine or blood screens, individual or group counseling or therapy, Caduceus or other professional support group attendance, an agreement with his or her employer for monitoring, or ongoing review by a primary care physician knowledgeable and experienced in the treatment of chemical dependency. This criterion applies only if the applicant s license or registration was suspended or revoked due to a substance abuse violation.
11 Page The applicant has participated in inpatient or outpatient treatment for mental, psychological, emotional and/or physical disorders. This criterion applies only if the applicant s license or registration was revoked due to a mental, psychological, emotional and/or physical disorder. 4. The applicant has complied with all terms of his or her order of discipline, including payment of fines and costs as set forth in said order. 5. The applicant has successfully completed one or more continuing education programs during the period of suspension or revocation, or consumed current literature concerning the practice of his or her particular profession. 6. The applicant has participated in didactic or clinical training, including remedial education in areas previously found deficient, or successfully completed an overall refresher course if the applicant has been out of practice for a significant period of time. 7. The applicant has submitted an assessment or evaluation of the applicant s professional skills and knowledge by an individual or entity who is trained or otherwise qualified to make such an evaluation. 8. The applicant desires in good faith to be restored to the privilege of practicing his or her profession in Michigan. Not all of the aforesaid guidelines apply to Petitioner s case. In this case, Guidelines 1, 4, 5, 6, 7 and 8 are applicable. Petitioner has satisfied Guideline 1 by participating in food distribution for the homeless and the World Medical Relief programs. Petitioner has satisfied Guideline 4 by having complied with the terms of the Final Order suspending her L.P.N. license.
12 Page 12 Petitioner has satisfied Guideline 5 by completing a series of educational programs since the suspension of her L.P.N. license. Petitioner has satisfied Guideline 6 because she apparently addressed the problems which resulted in the suspension of her license by way of remedial education. Still, it would be beneficial for Petitioner to successfully complete an overall refresher course. Petitioner has satisfied Guideline 7 by the positive assessment of her skills given by Dr. Hepke. Petitioner has satisfied Guideline 8 by her stated desire, in good faith, to be restored to the practice of nursing. PUBLIC INTEREST The public interest lies in having competent, caring persons licensed in our health professions. The public interest also lies in giving a once-disciplined health professional a second chance. The public requires some assurance that any nurse returning to the practice of nursing after an extended period of time away, has updated his or her nursing skills. While Petitioner has not yet completed a nursing refresher course, the public interest favors the reinstatement of Petitioner s L.P.N. license while also requiring that she complete an overall nursing refresher course. PROPOSED DECISION It is proposed that the Board of Nursing s adopt this Proposal for Decision and reinstate Petitioner s L.P.N. license. The Board is required to place Petitioner on probation for one year, where a condition of probation should be the successful completion of an overall nursing refresher course approved by the Board.
13 Page 13 Within 15 days after service of this Proposal for Decision, a party may file exceptions and present written arguments. Within 5 days thereafter, an opposing party may file a reply. Any exceptions and replies should be filed at: Michigan Department of Community Health Bureau of Health Professions Attention: Robert C. Miller P.O. Box Lansing, Michigan Gregory Holiday Administrative Law Judge
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