The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEG, ss. DOCKET NO. AD-02-001
MAINE STATE BOARD OF NURSING,
et al.,
Plaintiff
V. DONALD L. GaraasofECISION AND ORDER
PATRICIA E. LANNING, RN., LAW LibRaay
Defendant MAR S31 2003
This matter is before the court on complaint of the Maine State Board of Nursing
(“Board”) and the State of Maine through its Attorney General seeking to suspend or
revoke the professional nursing license of the defendant pursuant to 32 M.R.S.A. § 2105-
A(1-A)(E). In accordance with such statutory authority, the complaint was filed with
the Administrative Court. Upon the termination of the Administrative Court, the
matter was placed within the jurisdiction of the District Court. By his order of February
25, 2002, the Chief Judge of the Maine District Court, in accordance with Administrative
Order No. JB-01-01 of the Maine Supreme Judicial Court, ordered the action transferred
to the Maine Superior Court. By her order of March 11, 2002, the Chief Justice of the
Maine Superior Court transferred the matter to the Kennebec County Superior Court.
This court, sitting as an Administrative Court, held a hearing on December 16, 17
and 18, 2002, and received written briefs post-hearing.
In its complaint, the Board alleges that the defendant, on March 12, 1999, while
employed as a registered nurse at the MaineGeneral Medical Center, failed to provide
an adequate assessment of a patient’s condition, failed to adequately report that
patient’s symptoms to the responsible physician, and failed to provide nursing
documentation that was pertinent, precise and accurate reflecting the patient’s
condition. Upon report of the incident by the hospital to the Board, the Board
scheduled an informal conference at which the defendant voluntarily surrendered her
registered nurse license pending the outcome of a complaint in this matter to the Maine
Administrative Court for a possible suspension or revocation of her nursing license.
The complaint requests the Administrative Court to find that the defendant is
incompetent to practice professional nursing within the meaning of the statute (32
M.RS.A. § 2105-A(2)(E)(1)), declare the defendant engaged in unprofessional conduct
within the meaning of the statute (32 M.R.S.A. § 2105-A(2)(F)), and declare that
defendant has violated laws and rules governing the practice of nursing contrary to
statute (32 M.R.S.A. § 2105-A(2)(H)).
On February 3, 1999, F.N. consulted with a doctor for various physical and
emotional problems. She had not seen a regular primary care physician for about four
years. She complained that she was feeling very poorly and was tired all the time. The
probable diagnosis from that first visit was recurrent depression and the doctor
suggested various tests for her medical problems, including the source of her fatigue.
Numerous visits to the doctor took place in the following days including a visit to the
Emergency Room of the MaineGeneral Medical Center on March 7, 1999, where she was
diagnosed with labyrinthitis, acute ear infection, appropriate to her symptoms of
dizziness and for which she was given medication including an antiemetic for nausea.
On March 9, 1999, she returned to the Emergency Room reporting increased
congestion and nasal drainage. Appropriate diagnostic testing found elevated liver
functioning which the doctors reported could have been associated with a viral
infection. There also was a report of loose stools. On March 10, 1999, she was admitted
to the psychiatric ward of the MaineGeneral Medical Center at its Seton Unit for
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treatment for her depression. The history and physical examination by her medical
doctor contained an assessment/plan diagnosing, among other things, major
depression and “probable recent viral illness with some labrynthitis and possible
sinusitis,” a continuation of the acute ear infection reported to the Emergency Room on
March 7.
On the morning of March 12, 1999, F.N. met with the hospital psychiatrist, a
counselor, and participated in group therapy. Shortly before noontime, the unit
psychologist met with her in her hospital room where they discussed the conditions
behind her depression. When F.N.’s roommate returned to the hospital room, the
psychologist and F.N. agreed to move to his office to continue the interview.’ On the
way from her hospital room to the psychologist’s office, F.N. complained of dizziness
and unsteadiness but she assured the psychologist that she could make the walk on her
own unassisted. As soon as F.N. and the psychologist arrived at his office, she
complained that the headaches which she had reported earlier in her admission were
getting worse and she was feeling sick. When asked by the psychologist if he could be
of assistance, she asked for ice water and put her head in her hand. The psychologist
left the office and obtained the ice water and, at the same time, contacted a mental
health worker, who was a CNA, to help get the patient back to her room as the
psychologist was concerned about her medical complaints. They were soon joined by
the defendant. At some point before the CNA arrived, F.N. slowly slid from her chair
down to her knees. As she slid out of the chair, she had her chin on her chest, was
holding her head and saying, “my head, my head” many times. At this point, the
defendant had arrived and asked F.N. if she needed help, but there was no response
' From this point on in the chronology of events, there is a great deal of disagreement over the details of
occurrences. Without discussing all of the disagreements, the court’s narrative is based upon what it
believes most probably took place..
and she continued her downward move lying on the floor, rolling over on her side, and
vomiting. Defendant inquired of the psychologist and the CNA as to what happened
and the previous events were described. It is important to note that the psychologist, in
describing the previous events which occurred outside the presence of the defendant,
did not mention the complaints by F.N. of her headache. The CNA, when first inquired
during his testimony, stated he was not sure what he told the defendant. Ata later time
in his cross-examination, he had a recovery of memory and stated that he did tell the
defendant that F.N. had held her head and complained “my head.” Given all the
evidence of the incident up to this point provided to the court by the testimony and the
exhibits, it is not satisfied that it is more likely than not that Mrs. Lanning was told that
F.N. had grasped her head in her hands and complained of a severe headache.
At this point, the defendant checked the pulse of the patient, who got less and
less responsive, and was gagging. The CNA left the room and obtained a wheelchair.
Shortly thereafter, the unit psychiatrist arrived, made inquiries, and assisted the CNA
and the defendant in putting F.N. in the wheelchair. According to the psychologist, at
the point the psychiatrist arrived in his office, the patient’s eyes were still open. While
it is somewhat disputed whether the patient physically assisted the parties in that
placement, the court finds more likely than not that she did not provide assistance. In
the words of the CNA, “she was out of it.” As the CNA and the defendant were
wheeling F.N. back to her room, the patient further vomited, was resting her chin on
her chest, and was unresponsive. The psychiatrist ordered an antiemetic be
administered to the patient to address her nausea and vomiting, which was done
shortly thereafter. It is agreed that the medication, Phenergan, a medication for nausea,
may have a sedative effect, depending upon the patient.
At the time the defendant returned the patient to her bed, there is disagreement
as to whether F.N. assisted in her placement from the wheelchair to the bed. At any
rate, the medication was administered and she was left to sleep. At this point, it
appears that the defendant assumed from the circumstances that the patient was asleep.
She was aware of F.N.’s history of dizziness, nausea, headaches, diarrhea, and
exhaustion. Further, it had been suggested by the psychiatrist that the patient needed
to sleep and the defendant assumed that the sedative effect of the Phenergan was taking
place.
The patient assignment document for that shift in that unit as prepared by the
charge nurse placed F.N. under the direct responsibility of the charge nurse. While
there is no documentation of any amendment to that assignment list, the charge nurse
testified that she told the defendant to watch F.N. and the defendant responded,
“okay.” On the assignment list, defendant had three patients for which she was
specifically responsible, was responsible for administering medications to all patients,
was responsible for taking glucose samples, and would be the ward nurse responsible
for responding to a code 99, a medical emergency elsewhere in the Seton Unit The
issue of assignment is not necessarily relevant to the responsibilities placed upon the
defendant on that day, but it does explain a routine habit contributing to the problems
of nursing care. In each of the proceedings, the defendant insists that she reported to
the charge nurse with the expectation, among other things, that the charge nurse would
take care of all documentation of the patient’s assigned to her. Furthermore, upon the
request by the psychiatrist that the staff notify the primary care physician of the medical
? Both the charge nurse and the defendant complain of the workload and the lack of response by the
hospital to request for assistance. Hospital officials deny the understaffing and the lack of
responsiveness. Whether that is true or not, it does not seem to have a substantial causative effect on the
only concern of this court, the behavior of the defendant, but it does note that as a corrective measure, the
patient-to-staff ratio was reduced.
incident, the defendant relied upon the charge nurse to perform that function because
of the assignment. This lack of documentation, extraordinarily deficient in this instance,
may well have been a systemic problem. Regardless, it resulted in a great deal of
notations made after the death of the patient and creating serious questions of
credibility with regard to accuracy. There was documentation of vital signs taken at
12:00 noon, 6:00 p.m., and 7:15 p.m on March 12, 1999, as they had been entered into
the computer. At least as to the noon and 6:00 p.m. entries, they were made by the
defendant. These include glucose tests.°
It would appear about a half hour after F.N. was placed in her bed, she again
vomited. She and her clothes were cleaned. At 2:00 p.m., the defendant noted that F.N.
had become incontinent of bowels. This required the defendant and the charge nurse to
remove the patient’s clothes, clean the patient, including private areas, and change the
bedclothes. During this entire process, the patient was completely unresponsive, as she
had been unresponsive to the glucose test procedure, and the only observation made
was by the charge nurse that F.N. made a slight snoring sound as she was being
repositioned.
At 6:00 p.m., the defendant noticed that the patient’s head was turned and she
straightened F.N. in the bed. The defendant still believed that F.N. was sleeping, she
believed the patient looked comfortable, and at no time, during the entire period of
noon to the end of her 12-hour shift at 7:00 p.m., did she do any neurological
assessment.
A team meeting had been scheduled for 3:00 p.m. on the afternoon of March 12.
This was to involve F.N., the psychiatrist, other staff, and F.N.’s family members. When
> Glucose tests are performed by taking a sample of blood. This involves a stab of the finger sufficient to
draw blood for testing. It is a significant neurological stimuli.
6
F.N.’s daughters arrived for that meeting, they were advised that F.N. was sleeping,
that the psychiatrist had suggested she not be wakened and that they would have the
team meeting without the patient. The daughters visited F.N. in her room and became
concerned as to her condition. The patient was entirely unresponsive, and, according to
one daughter, was pale, sweating, and appeared to have a slight twitch. Upon stating
those observations to the psychiatrist, it was suggested that she was simply exhausted,
sleeping off the sedative, and would certainly be awake if they returned at 6:00 p.m. In
order to address their concerns, the psychiatrist did advise the daughters that she
would order a CAT Scan but she advised that there was no need to do so on an
emergency basis.
Around 6:00 p.m., the daughters did return and found their mother in the same
condition. At this point, they became very agitated and emphatically complained to
staff. There is no evidence that they had any communication with the defendant.
Shortly thereafter, a change in nursing shifts took place at 7:00 p.m. In response to the
complaints, the new charge nurse ordered a nurse to visit F.N. and take all vital signs,
including a neurological assessment. Upon doing so, the staff realized that the patient
had suffered a serious intercerebral accident exhibited by a high level of
unresponsiveness, lack of response to painful stimuli, and depletion of the dilation
capability of the eyes. Upon consultation with medical physicians, arrangements were
made for an immediate transfer of the patient by ambulance to the Emergency Room. A
CAT Scan was accomplished, a deep hemorrhage was found, and a determination made
of damage too advanced to warrant surgical intervention or extraordinary measures.
F.N. died shortly before 5:00 a.m. the following morning.
It should be noted that there were at least two communications with the primary
care physician during the course of the afternoon of March 12. While it is unclear what
7
was told the physician, it appears that the conclusion arrived at was that the incidents
were a reflection of the previous medical condition. The only additional procedure
ordered was for the nursing staff to listen to bowel sounds of the patient, which was
accomplished and found to be normal.
In order to understand the significance of the standards of professional care
required of the registered nurse in this case, the court believes it is significant to
examine the medial situation of the patient on a post-mortem basis. The autopsy report
confirmed the diagnosis of an “acute hemorrhagic cerebrovascular event.” A
microscopic examination of tissues allowed a further finding of a “localized vascular
abnormality.” The pathologist’s conclusion was that “the most likely abnormality for
this patient’s age group and location of hemorrhage would be a saccular aneurysm
rupture...”
The attending neurosurgeon at the time of the emergency proceedings testified
by deposition. During his testimony, he opined that the time of origin of the
hemorrhage was “... when she slouched forward in her chair, fell and was incontinent
...”"" However, he raised questions as to the point in time during the span from 12:30
p.m. to 7:00 p.m. when she would have displayed significant neurological symptoms.
He allowed that it could have taken some time for them to appear. “Her clot is so low
in the brain and so midline in terms of the compression, that this woman will present
without focal findings. This makes it even more rare. In other words, we have a patient
who’s thrown immediately into coma without any real lateralizing symptoms.” His
* Whether the doctor inadvertently used an incorrect term, whether he simply misunderstood the history
or whether he was told an incorrect history, the facts are that the patient did not become incontinent until
approximately 90 minutes after the incident in the psychologist’s office. But it does display errors in
medical history from lack of documentation by attending nurses.
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conclusion injects the possibility that had the patient been regularly neurologically
assessed, the symptoms may not have appeared for a period of time.
However, testimony by experts in the field of nursing make it unequivocally
clear that signs were available that should have immediately put a clinical nurse on
notice that the possibility of a neurological event had taken place. First, the importance
of the demeanor of the patient in the psychologist’s office when she complained of a
severe headache, slowly collapsed to the floor, and vomited. Had this been known to
medical staff, it should have immediately displayed a suspicion to require a
neurological assessment. The incontinence and the total lack of response in being
cleaned and moved around in the bed suggested more than a sedated, sleeping person.
The stimuli created by the glucose test was a major indicator. Finally, and of significant
importance, the loss of control of the vomiting action and the bowel action while in an
unconscious state should have left no doubt of a serious situation occurring, or, at least,
such a possibility that it needed to be ruled out.
The law regulating the practice of nursing in the State of Maine is found in Title
32 of the Maine Revised Statutes. The State Board of Nursing is charged with the
protection of public health and welfare in the area of nursing service in order to
safeguard the life and health of the people in this State. The Board is authorized to
administer a licensing process to assure that those who practice professional nursing are
qualified to practice. The practice of professional nursing means, among other things,
the performance by a registered professional nurse in the diagnosis and treatment of
human responses to actual or potential physical and emotional health problems and
execution of the medical regimen as prescribed by a license physician. 32 M.RS.A.
2102(2)(A).
“Diagnosis” in the context of nursing practice means that identification of
and discrimination between physical and psychosocial signs and
symptoms essential to effective execution and management of the nursing
regimen. This diagnostic privilege is distinct from medical diagnosis.
32 M.R.S.A. § 2102(2)(A)(1).
“Human responses” means those signs, symptoms and processes that
denote the individual’s health needs or reaction to an actual or potential
health problem.
32 M.R.S.A. § 2102(2)(A)(2).
Rules and regulations established by the State Board of Nursing pursuant to 32
M.R.S.A. § 2153-A(1) provides standards ta be utilized by the State Board of Nursing in
taking actions pursuant to its authorization under 32 M.R.S.A. § 2105-A, disciplinary
actions which may result in suspension, revocation or denial of a license. The grounds
for discipline are found in 32 M.R.S.A. § 2105-A(2). These provisions include, among
other things, unprofessional conduct, 32 M.R.S.A. § 2105-A(2)(R), and violations of rules
and regulations, 32 M.R.S.A. § 2105-A(2)(H). The definitions of unprofessional conduct
are found in Chapter 4 of the Rules and Regulations of the Maine State Board of
Nursing, § 3. In this present proceeding, the State Board of Nursing asks the court to
revoke or suspend the registered nurse’s license of the defendant for the following
violations:
1. Incompetence — 32 M.R.S.A. § 2105-A(2)(E)(1)
Engaged in conduct that evidences a lack of ability or fitness to discharge
the duty owed by the licensee to a patient.
2. Incompetence - 32 M.R.S.A. § 2105-A(2)(E)(2)
Engaged in conduct that evidences a lack of knowledge or inability to
apply principles or skills to carry out the practice for which the licensee is
licensed.
3. Unprofessional Conduct - 32 M.R.S.A. § 2105-A(2)(F)
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Engaged in conduct that violates a standard of professional behavior that
has been established in the practice for which the license is issued.
4. Unprofessional Conduct - 32 M.R.S.A. § 2105-A(2)(H) violation of
32 M.R.S.A. § 2105-A(2)(F)
Unprofessional Conduct, Board Rule: Chapter 4.3.
Nursing behavior which fails to conform to legal standards and accepted
standards of the nursing profession, and which could reflect adversely on
the health and welfare of the public shall constitute unprofessional
conduct and shall include, but not limited to, the following:
5. Rule 4.3.B.
Assuming duties and responsibilities within the practice of nursing
without adequate preparation or when competency has not been
maintained.
6. Rule 4.3.F.
Failing to take appropriate action or to follow policies and procedures in
the practice situation designed to safeguard the patient.
7. Rule 4.3.G.
Abandoning or neglecting a patient requiring nursing care.
Abandonment of a patient is the termination of the nurse/ patient
relationship without the patient’s consent or without first making
arrangements for continuation of required nursing care by others.
Reasonable notification or request for alternative care of a patient to
an attending physician or to a staff supervisor prior to termination of the
relationship is sufficient to permit such termination . . .
The nurse/patient relationship begins when responsibility for
nursing care of a patient is accepted by the nurse.
8. Rule 4.3.H
Negligently causing physical injury to a patient.
9. Rule 4.3.K.
Inaccurate recording, falsifying or altering a patient or healthcare provider
records.
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The applicable standards for the acceptable practice of a registered nurse are
found in the American Nurses Association’s Standards of Clinical Nursing Practice, nd
Ed. 1998, “Criteria Based Job Description and Performance Standards For a Registered
Nurse” by the MaineGeneral Medical Center, October, 1998, Lipincott Manual of
Nursing Practice, 6" Ed., J.P. Lipincott Co. 1996 and “The Nursing Process,” “Adult
Physical Assessment, Neurological System, and Nursing Management of the Patient
With An Altered State of Consciousness.” All of these documents were available to
nursing staff at MaineGeneral Medical Center.
The standards of the ANA require the nurse to collect patient health data by way
of assessment, analyze the assessment data to determine a diagnosis, develop a plan of
care that prescribes interventions to attain the expected outcome, implement the
interventions, and evaluate the patient’s progress. The standards of professional
performance include systematically evaluating the quality and effectiveness of the
nursing practice, evaluate the practice in relation to the standards, and to acquire and
maintain current knowledge and competency in nursing practices. Standards of clinical
nursing practice include both standard of care and standards of professional
performance. The Nursing Process /Documentation Policy requires documentation of
the Nursing Process. This policy maintains standards of assessment and
documentation. Among other things, the nurse is responsible for the assessment and
necessary update of the plan for care on unstable patients every shift until condition is
stable. Nursing Standards of the MaineGeneral Medical Center provide the definition
and description of the scope and conduct of nursing care to be provided by the nursing
staff. The policy and procedures published utilize, among other references, the
Lipincott manual.
12
The MGMC The procedure for neurological vital signs includes a purpose “to
establish a standard systematic procedure for evaluating a patient’s neurological status
through assessment of level of unconsciousness, motor strength, vital signs and pupil
signs.” This procedure includes the Glasgow Coma Scale which standardizes an ever-
increasing level of stimulus for
° the patient opening his or her eyes on their own
° opening when asked in a loud voice
° opening to painful stimuli only
° the patient does not open his or her eyes for any stimuli
It also contains standards of observation of motor response and verbal response.”
It then lists four pages of procedures last revised and approved prior to this incident in
April of 1998.
Lipincott describes the nursing process as assessment, nursing diagnosis,
planning, implementation, and evaluation.
The MaineGeneral Medical Center utilizes a computer system for entry of certain
types of documentation. It is a Waterville unit hospital-wide system. Matrix #2925 on
that system provides the normal assessment parameters for a neurological system,
Matrix #3845 provides the level of consciousness standards including the Glasgow
Coma Scale; Matrix #3846, #3847 and #3848 provide additional neurological assessment
standards for the clinical nurse on a unit.
In the final analysis, throughout the nursing process, it is expected that the
professional nurse will be an “advocate” for patients constantly assessing their needs,
requesting assistance when necessary, documenting their status, causing special
5 On that scale, which is routinely used, the circumstances of F.N. would have unequivocally indicated
that she was in a coma.
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documentation of unusual occurrences, and requesting physician or psychiatric
assistance when deemed necessary.
Defendant came to MaineGeneral Medical Center, then known as Mid-Maine
Medical Center, in March of 1987. She graduated from high school in 1966 and took a
series of adult education courses through the years until receiving an Associate's,
Degree in Nursing at the University of Maine-Augusta in 1987. During the period of
1966 through 1973, with the exception of an 11-month period, she was employed as a
laboratory technician at hospitals and clinical laboratories. At MGMC, she received
performance evaluations conducted in conjunction with her supervisor from 1987 to
1998 which found her to meet expectations or exceed expectations in all areas. In July
1987 she successfully completed the Nursing Clinical Skills Program in Basic and
Medical/Surgical Skills. In 1992 she completed MANDT System Intermediate Level
Trainer Course in Managing Nonaggressive and Aggressive People. In her
performance appraisal of May 1998, she exceeded the standards in “knowledge re:
mental health; is ANA certified as a Mental Health Nurse, occasionally performs relief
charge duties” and met the standards in other areas. She was found to be competent in
the annual competency review.
While the defendant does not acknowledge entire responsibility for the tragic
demise of F.N., she does accept her level of responsibility in the matter. When placed
on probation as a result of this incident and participating in remedial training, including
neurological assessments, she professed to have received medical information with
which she had not been previously familiar or, had not remembered from earlier
training. One element was the relationship of incontinence to cranial pressure. Asa
result of this remedial education and training and the procedures to which she was
required to be subject through her probation, she now accepts her responsibility with
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respect to documentation and realizes that she should have been more verbal to the
medical doctor and not expected the charge nurse to do more of the intervention
activity. She realizes she should have done regular neurological assessments. She
acknowledges that she voluntarily surrendered her license pending this proceeding and
that, if allowed to regain her license, she would need to take, as a minimum, the 12-
week physical assessment course before reemployment. She described changes in
procedure on the unit implemented after this incident including greater use of “focus
notes.”® Such focus notes are a part of the required policy of the hospital. She
acknowledges they are a continuous entry as long as there is reassessment done to
effectuate the changes necessary. Ms. Lanning testifies she would never, under any
circumstances, allow anyone else to do her documentation. The defendant testifies she
was aware of the resources available to the nurses on the unit. Finally, she indicates
that as a result of her probationary reeducation, she would now be more aware of
serious conditions resulting from lack of response.
During the course of her testimony, the court inquired of the defendant as to
whether she had conducted neurological assessments in the years prior to March of
1999 and she responded in the affirmative. The court then asked her how many times
she had done such assessments and she suggested they had been accomplished three or
four times a year. The court then asked her what were the circumstances in which she
did the assessments. The defendant testified that in all of those situations, the person
had received an obvious trauma to the head such as falling or some other blow and she
had carried on a continuous neurological assessment in each of those cases to assure
that no brain damage had resulted. Finally, the court asked if she had ever encountered
6 A “focus note” is a documentation of an event causing a call to the medical doctor.
15
a situation such as in March of 1999 where there was no obvious head trauma and a
person assumed to be sleeping had gone into a coma. She answered in the negative.
The question before the court is not whether the defendant was responsible for
the decease of F.N. or whether she should be disciplined for that result. The issue
before the court is whether she was and is fit to be licensed as a registered professional
nurse and, if not, whether there are conditions such that would provide a reasonable
expectation in the court that she could be fit upon the satisfaction of certain conditions.
In order to resolve those issues, the court must first address each and every allegation of
grounds for revocation charged by the State Board of Nursing.
On March 12, 1999, did the defendant engage in conduct that evidenced a lack of
ability or fitness to discharge the duty owed by her to F.N. or a lack of knowledge or
inability to apply principles or skills to carry out the practice for which she was
licensed? The answer is yes. If she was devoid of education or memory of education as
to fail to recognize the relationship between certain physical symptoms and
neurological abnormalities as would be expected by a nurse’s diagnosis, she was not fit
to discharge her duty and suffered from such a lack of knowledge to carry out the
practice of the registered nurse. Her failure to be sensitive to a sense of advocacy for the
patient and be suspicious of the circumstances, notwithstanding instructions from the
psychiatrist and the medical doctor, questions her medical knowledge and fitness to
discharge her duty to that patient.
On March 12, 1999, did the defendant violate a standard of professional behavior
that had been established in the practice for which she was licensed? The answer is yes.
She did not take appropriate action or follow policies and procedures in the practice
situation designed to safeguard the patient. She proceeded on assumptions, rather than
assessment data. She assumed the patient was asleep notwithstanding lack of
16
movement or response for almost seven hours. At no time did she assess the plaintiff's
level of responsiveness.’ She did not document the patient’s activities.
Did she violate accepted standards of the nursing profession by inaccurate
recording, falsifying or altering a patient or health care provider record? Yes, no
recording is an inaccurate recording. The credibility of the addendum days after the
fact is severely challenged. Further, the lack of recording for the interim period is not
available to other staff or health care providers and lack of history significantly impairs
the treatment plan process in the continuity of the nursing process.’
The court is not satisfied that the defendant assumed duties and responsibilities
within the practice of nursing without adequate preparation or when competency had
not been maintained. An examination of her records at the time of the incident did not
display any lack of competency. While she lacked knowledge and fitness with respect
to the particular circumstances, there is no evidence that she assumed duties and
responsibility or was aware of that lack of competency. The court is further not
satisfied that the defendant abandoned or neglected the patient or negligently caused
physical injury. There is no evidence that Ms. Lanning ever terminated her relationship
with E.N. or ever abandoned her responsibilities to the patient by refusing to provide
nursing care. While there may have been an unacceptable lack of responsibility in
understanding her relationship to F.N., whether or not she was specifically assigned to
that patient by the charge nurse, abandonment is an intentional act and not present
here. In addition, it is clear from the testimony of the neurosurgeon upon post-mortem
analysis that there was a reasonable likelihood that the abnormal neurological
manifestations would have been some time in the development based upon the rare
7 Isn't that why they wake you up in the middle of the night to check vital signs?
* The lack of documentation in the present case may have played some role in the varying versions of
history of the patient appearing in the records of various staff persons.
17
and unique nature of this ruptured aneurysm. That cannot meet the standard of
negligence that it is more likely than not that Ms. Lanning caused the death of the
patient and there is no evidence that she caused the hemorrhage from the aneurysm.
The Maine State Board of Nursing is the State regulatory agency charged with
“protection of the public health and welfare in the area of nursing service.” In order to
carry out that authority, the Board requires a person to submit evidence that he or she is
qualified to practice nursing and, through a licensing process, the Board assures the
competency of a registered nurse. Through rules and regulations, the Board sets
standards for competency and professional conduct. The Board is authorized to
suspend or revoke a license if the individual is deemed to be incompetent in the
practice for which he or she is licensed or has engaged in unprofessional conduct by
violating a standard of professional behavior which has been established in the practice
for which the licensee is licensed. In addition, the Board has the authority to warn,
censure or reprimand a licensee found to be in violation of the rules, enter into a
consent agreement for probation, to rehabilitate or educate the licensee, to accept the
voluntary surrender of a license and impose terms and conditions for reinstatement that
“insure protection of the public health and safety and serve to rehabilitate or educate
the licensee,” to modify or not renew a license, all in addition to suspension or
revocation.
Webster’s II New Riverside University Dictionary (1988) defines “competent” as
“1. Properly qualified; capable. 2. Adequate for the stipulated purpose; sufficient.”
Except to the extent that a person intentionally and knowingly participates in the
practice of nursing without sufficient competence, the purpose of regulation is to assure
competence. To the extent a licensee engages in unprofessional conduct, the issue is
whether the individual is otherwise competent or fit to practice nursing but should be
18
disciplined for the violation of standard of professional behavior. Therefore, the court
must examine two purposes of the licensing law in its analysis of a proper disposition
of this case.
The court has concluded that the defendant is fundamentally competent in
nursing skills and has displayed those skills over a nine-year period by meeting the
expected standards. There is no evidence of her lack of competence at other times
outside of the circumstances of March 12, 1999.’ While the defendant clearly exhibited
lack of medical critical skills in March of 1999, there is no evidence of that lack of
critical skills from previous records.
In the final analysis, the discipline imposed must fit the nature of the violations
of standards committed by the defendant while the ultimate disposition of the license
status must fit the particular circumstances of the defendant herself. Fundamental to
this process is the philosophy of regulation of professionals to “protect the public from
incompetent, drug impaired, mentally ill, or other persons who, if licensed, would pose
a risk of harm to patients.” Senty v. Board of Osteophatic Examination & Registration, 594
A.2d 1068 (Me. 1991). In considering the appropriate disciplinary action consistent with
the circumstances of the violations, the court must keep in mind the appropriateness of
the discipline as perceived by all other licensees in the field of nursing. A reasonable
licensee could conclude that any set of circumstances of failure of competency or
violation of standards which contributes in any way to harm to a patient should result
in nothing less than a full revocation of license. Others would suggest that an educated
and experienced person practicing in the profession who, but for lack of judgment for a
9 The court is aware that the defendant was terminated from employment at the hospital for a subsequent
incident. The court has heard Ms. Lanning’s version of those circumstances. The evidence of that
incident was not fully developed before this court and it does not believe it should be considered
inasmuch as it is not alleged in the complaint.
19
limited area of medicine, is found to have violated the standards, is too valuable an
asset to our health provider community to be simply removed without attempts at
education and rehabilitation. Somewhere in that equation is an analysis whether the
individual is capable of such education and rehabilitation as to be of value to the health
care community and not a threat to the life and health of the people of this State.
Under the provisions of 10 M.R.S.A. § 8003(5)(A-1), the court, acting on behalf of
the authority of the Maine State Board of Nursing, may suspend a license for up to 90
days for each violation of applicable laws, rules and conditions of licensure, which
suspension may run concurrently or consecutively with any other suspension for a
separate violation. The court also has authority to impose conditions of probation such
as additional continuing education, mandatory professional supervision and any other
conditions deemed appropriate by the governing board.
For her failure to retain competency in the area of neurological assessment, a
violation of 32 M.R.S.A. 2105-A(2)(E), the court imposes a 90-day suspension. For
assuming duties and responsibilities within the practice of nursing without adequate
preparation and failing to follow policies and procedures in the hospital setting, the
court imposes a concurrent 90-day suspension. For violating accepted standards of the
nursing profession by failing to record and document the condition of the patient and
the activities in which she was engaged with that patient, a violation of Rule 4.3K, the
court imposes a consecutive 90-day suspension. This was a particularly egregious
deviation from acceptable standards.
The court notes the voluntary surrender of defendant's license on April 24, 2000,
and that she has not practiced as a registered nurse for almost three years. The
defendant has clearly stated to the court that this circumstance would warrant
additional continuing education were she to be reinstated. The court believes that
20
probation upon reinstatement is warranted with a condition of additional continuing
education and professional supervision for a reasonable of time.
The entry will be
For the reasons stated herein, the court finds the defendant has
violated provisions of 32 M.R.S.A. ch. 31 and rules and regulations of the
Maine State Board of Nursing; the defendant did not maintain an
acceptable level of competency in the nursing process and violated
standards of professional conduct; the license of the defendant is
SUSPENDED for two consecutive 90-day periods in accordance with
statute; upon the conclusion of the suspension, the defendant is placed on
probation for six months with the condition that she completes additional
education to the satisfaction of the Maine State Board of Nursing and, if
employed, to work under professional supervision acceptable to the
Maine State Board of Nursing.
Dated: March 2% _, 2003 ie
“Donald H. Marden
Justice, Superior Court
21
x
STATE OF MAINE SUPERIOR COURT
vs KENNEBEC, ss.
PATRICIA E LANNING Docket No AUGSC-AD-2002-00001
DOCKET RECORD
Attorney: ELLIOTT EPSTEIN State's Attorney: JOHN RICHARDS
ISAACSON & RAYMOND
PO BOX 891
75 PARK STREET
LEWISTON ME 04243-0891
RETAINED 03/13/2002
Filing Document: COMPLAINT Major Case Type: STATE BOARDS
Filing Date: 03/13/2002
Charge (s).
Docket Events:
03/15/2002 FILING DOCUMENT - COMPLAINT FILED ON 03/13/2002
NOTE - PRIOR ENTRIES IN. MANUAL DOCKET ENTERED ON 03/13/2002
03/19/2002 ORDER - COURT ORDER ENTERED ON 03/11/2002
NANCY MILLS , SUPERIOR COURT CHIEF JUSTICE
ORDER TRANSFERRING CASE TO KENNEBEC SUPERIOR COURT. COPIES MAILED TO ATTYSOF RECORD.
03/28/2002 HEARING - OTHER HEARING HELD ON 03/28/2002
DONALD H MARDEN , JUSTICE
TELEPHONE CONFERENCE HELD. ENTRY WILL BE: TERMS OF SECOND CIVIL PRETRIAL ORDER (2/7/02)
REMAIN IN EFFECT. CLERK WILL SET THE MATTER FOR SPECIAL ASSIGNMENT DECEMBER 16, 17,
18, 2002 AND ADVISE COUNSEL. COPIES MAILED TOATTYS OF RECORD.
12/19/2002 HEARING - OTHER HEARING HELD ON 12/16/2002
DONALD H MARDEN , JUSTICE
Attorney: ELLIOTT EPSTEIN
DA: RUTH MCNIFF Reporter: KIMBERLY MCCULLOCH
NON-JURY TRIAL WITH JACK RICHARDS, AAG FOR THE STATE. PARTIES MAKE OPENING STATEMENTS TO
THE COURT. PLAINTIFF CALLS RICHARD THOMPSON, DENNIS WITHAM, SHIRLEY FRASIER AND BARBARA
WHITEHEAD AS WITNESSES. CASE RECESSES AT 4:05 P.M.
12/19/2002 HEARING - OTHER HEARING HELD ON 12/17/2002
DONALD H MARDEN , JUSTICE
Attorney: ELLIOTT EPSTEIN
DA: RUTH MCNIFF Reporter: KIMBERLY MCCULLOCH
DAY 2 OF NON-JURY TRIAL. PLAINTIFF CONTINUES WITH TESTIMONY OF SANDRA LOCKLIN, STEVEN
DIAZ, NANCY RUSHTON, MARCIA JONES AND ELIZABETH GILMOUR. DEFENDANT TAKES WITNESS, LISA
SNOW OUT OF ORDER. CASE RECESSES AT 3:50 P.M.
12/19/2002 HEARING - OTHER HEARING HELD ON 12/18/2002
DONALD H MARDEN , JUSTICE
Attorney: ELLIOTT EPSTEIN
DA: RUTH MCNIFF Reporter: KIMBERLY MCCULLOCH
DAY 3 PLAINTIFF CONTINUES WITH TESTIMONY OF ELIZABETH GILMOUR. PLAINTIFF RESTS AT 11:45
A.M. DEFT. MOVES FOR JUDGEMENT AS MATTER OF LAW. COURT DENIES MOTION. DEFEFENDANT CALLS
PATRICIA LANNING AS A WITNESS. DEFT. RESTS AT 3:16 P.M. COURT ORDER THAT CLOSING ARGUMENTS
MADE TO THE COURT BE WRITTEN. PLAINTIFF HAS UNTIL 2/1/03 TO FILE. DEFT. HAS UNTIL 2/15/03
TO RESPOND. COURT TO TAKE MATTER UNDER ADVISEMENT.
Page 1 of 2 Printed on: 03/28/2003