In past blogs, I’ve written about nurses who challenge board decisions by filing a judicial review in their state’s court system. But you may not know that boards of nursing (BON) can also file a judicial review.
In the following case, a certified registered nurse anesthetist (CRNA) filed a judicial review challenging the BON’s decision to suspend her license. The review resulted in a reversal of the board’s decision. The board then filed a judicial review of that court’s decision.
Demerol vials go missing
The CRNA’s chief duty at the hospital was administering anesthesia to patients during surgery and other procedures. She was primarily assigned to Operating Room 2 (OR 2). Per her assignment, she was given keys to OR 2’s lock box, which contained narcotics used to sedate patients, including Demerol. She was instructed to always keep the lock box keys in a hidden compartment attached to the fake top of each lock box.
After a surgery, she administered Demerol to the patient, prepared equipment for the next surgery, and handed off the patient to a nurse in the recovery room. The recovery room nurse signed the document that confirmed that she witnessed the CRNA signing the narcotic logbook to verify that the remaining count of Demerol was correct. The CRNA then went home.
Scrub technicians prepared OR 2 for the afternoon procedures and discovered that the lock box in OR 2 was open with the keys still in the door. Supervisors conducted a count of the narcotics and found that six vials of Demerol were missing. The CRNA was contacted and asked to return to the hospital.
One of the scrub technicians said in a signed statement that she saw the CRNA enter OR 2 with her purse “in hand” before leaving the hospital earlier that day. The CRNA was the only OR staff member who left the hospital grounds.
All staff members with direct access to OR 2 were required to submit to a drug test for Demerol. The urine samples were collected at the hospital by the hospital’s lab director and medical technologist. Everyone required to submit to the drug test had to provide the sample and watch while the lab director placed it in a tamper-proof bag. Each staff member also signed a chain of custody form.
The CRNA’s test was positive for Demerol, and she was terminated from her position. The missing Demerol was never found.
The board brings charges
The state board of nursing brought charges against the CRNA as a result of the positive drug test and missing Demerol. A hearing was held, and two of the charges were dismissed. The third charge, “Possessing, obtaining, furnishing, or administering drugs to any person, including oneself, except as legally directed,” was supported by “clear and convincing evidence” due to the positive drug test.
The CRNA’s license was suspended for six months, and she was required to comply with certain stipulations during that six-month period. She appealed the decision to the BON, but the full board membership affirmed the hearing’s decision.
The CRNA filed a judicial review. That court reversed the board’s decision of a suspension and all of the stipulations, but then the BON filed its own judicial review in the state’s appellate court.
The CRNA argues her case
The appellate court reviews an administrative agency’s decision by determining if the decision:
- Was supported by substantial evidence
- Was arbitrary or capricious
- Was beyond the power of the agency to make
- Violated some statutory or constitutional right of the licensee
The CRNA’s arguments supporting her judicial review included there was no convincing evidence that she had diverted the Demerol. The court found this argument without merit since the CRNA was responsible for the mishandling and misplacement of the Demerol. This was based on her job responsibilities and also on the testimony of the scrub technician who said she saw the CRNA enter OR 2 with her purse before she left the hospital that day. Also, the CRNA was the only one who left the hospital after the surgery was completed.
And, the court pointed out, she also tested positive for Demerol without medical explanation. The CRNA didn’t deny the positive test but contended that the collection of the drug test was faulty and, as a result, her test results were unreliable. The court found this argument unconvincing.
She also alleged that she was “set up” and that her specimen was “swapped” with someone else’s. In further support of this argument, the CRNA argued that the metabolite, Normeperidine, wasn’t found in her sample and because the test result only tested positive for the pure form of the narcotic, it was likely tainted.
The appellate court found this argument without merit as well, as this issue was invalidated by both the state’s and the CRNA’s experts. In short, they indicated that the test result was positive for Demerol.
The court found that there was substantial evidence to support the board’s decision, overturned the decision of the lower court reversing the BON’s judgment, and ordered the reinstatement of the BON’s order.
How this case can apply to your practice
Here are a few lessons you can take away from this case:
- If you ever successfully challenge a BON’s decision, know that it may not be the end of the issue. A BON can seek an administrative review and appeal the lower court’s decision, as was the situation in this case.
- It’s extremely important to adhere to all policies and procedures concerning the handling and administration of narcotics. Even a slight deviation can result in an investigation, including a drug test, to determine who breached those policies.
- Keep in mind that although drug tests are not always accurate and can therefore be challenged, experts’ opinions can validate the results. In this case, since the CRNA had no reasonable explanation as to how the test was positive for Demerol (she had no prescription for the narcotic nor had undergone a surgical procedure that would require Demerol), the results of the test helped seal her fate.
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