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Decker v. Delaware Board of Nursing

Superior Court of Delaware, Sussex

November 7, 2013

Karen Decker
Delaware Board of Nursing,

Date submitted: October 8, 2013.

Karen Decker, Pro Se.

Jennifer L. Singh, Esq. Patricia Davis Oliva, Esq. Deputy Attorneys General Delaware Department of Justice.

Dear Ms. Decker, Ms. Singh, and Ms. Oliva:

Before the Court is the appeal of Karen Decker ("Decker") from a decision of the Delaware Board of Nursing ("Board"). For the reasons that follow, the Court AFFIRMS the Board's decision.

Facts[1] and Procedural Background

Decker held a practical nurse's license from 1982 to 2010, and a registered nurse's license from 2010 to 2013, when her license was suspended. In 2010, she practiced nursing at Beebe Medical Center ("Beebe") in Lewes, Delaware. In May of that year, over the course of three work shifts, Decker did not record sixteen separate drug withdrawals from Beebe's Accudose cabinet onto her patients' charts. During that time, Beebe's electronic recording system for tracking patients' drug intake was not functioning properly, but nothing prevented Decker from recording the drugs on her patients' charts manually, which she did not do. In June 2010, Decker removed a Vicodin pill, but neither distributed it to a patient nor recorded its removal or disposal. Decker placed the pill in her pocket.[2] Decker admitted these incidents, which resulted in her termination from Beebe and issuance of a letter of reprimand from the Board in November 2011.[3]

Decker then practiced nursing at Sussex Correctional Institute ("SCI") in Georgetown, Delaware. In June 2011, the prison pharmacy saw an exponential increase in the ordering of Soma, a muscle relaxant. This increase seemed odd because during that time, only two patients at the facility were prescribed the drug. Eventually, Jill Mosser ("Mosser"), the Health Services Administrator for Correct Care Solutions, SCI's health services provider, began an investigation. SCI kept Soma in a certain drawer. While Decker was on duty, two cards of Soma, each containing sixty pills, disappeared. Therefore, Decker became the prime suspect. Decker subsequently was captured on film opening the drawer and then closing it quickly upon Mosser's entrance, and then again opening the drawer and removing two cards containing Soma and another drug.

In a meeting with Mosser and SCI's Warden, Decker at first denied the theft, but then, according to Mosser, is claimed to have stated "I'm sorry. I took [the pills] for myself, not selling them or giving them to patients. I guess I have a problem and maybe I need to get out of nursing."[4] Mosser offered Decker help with her drug issues, but Decker "stated that she would seek help on her own."[5] Decker was then terminated from SCI. She requested that Mosser not report the incident to the Board, which Mosser did in July 2011. Mosser testified that the day after meeting with SCI's Warden and Decker, Mosser contacted Decker to check on her. Decker told Mosser that she was well, but "did not mention treatment."[6]

Once Mosser reported the incident, David Tetrault ("Tetrault") began an investigation for the Division of Professional Regulation. Tetrault informed the hearing officer that, while questioning Decker in 2012, she at first denied both the Soma theft and having any issues with drugs. She also denied to Tetrault her statement to Mosser admitting her drug problem. Tetrault then stated that Decker eventually admitted to the theft. He also stated that "he ha[d] a 'sense' that . . . Decker [was] aware of her problems with drugs."[7] According to Tetrault, Decker told him that she was not seeking professional drug treatment.

On September 11, 2012, the State filed a complaint against Decker. The State first cited the Board's November 2011 letter of reprimand regarding the May 2010 Acudose incidents and the June 2010 Vicodin incident, claiming that Decker's failure to properly record the medications constituted unprofessional conduct, in violation of 24 Del. C. § 1922(a)(8)[8] and Board Rules 10.4.1, [9], [10] and[11] Second, the State cited the June 2011 SCI incident, claiming that Decker's diversion of Soma from the prison pharmacy for personal use also constituted unprofessional conduct, in violation of 24 Del. C. § 1922(a)(8) and Board Rules 10.4.1,, [12], [13] and The State further contended that Decker's diversion of drugs for personal use and knowingly practicing nursing with a substance abuse problem constituted a violation of 24 Del. C. § 1922(a)(3)[14] and (4).[15]

On January 24, 2013, the Chief Hearing Officer for the Division of Professional Regulation heard Decker's case. At the hearing, the State's evidence included, along with several documents, the testimony of Mosser, Tetrault, and Decker herself, who offered a letter from Fresenius Medical Care ("Fresenius") confirming Decker's employment, praising Decker's work quality, confirming Decker's admittance of her past problems, and stating that "[f]ew medications" were funneled through the facility.[16] Decker also "admitted she ha[d] a substance abuse problem."[17] She also described her one-year absence from nursing during which she utilized self-help tools, such as books and tapes, and was prescribed medications for her blood pressure by a doctor who was unaware of her drug incidents. Decker reiterated that Fresenius was aware of her past problems. Decker's evidence included the testimony of her former SCI supervisor Barbara Showell ("Showell"), who also sang Decker's praises. Decker stressed her readiness to be agreeable with the Board on anything short of "eliminat[ing] her from nursing."[18] The State cross-examined Showell on issues such as Showell's own disciplinary issues at SCI and how Showell was not asked to renew her nursing duties when the prison's healthcare contract changed. Decker again admitted pilfering Soma pills, "but not the cards, " and admitted her dishonesty when Tetrault questioned her.[19] Showell held firm to her admiration of Decker, but "admitted that effectively dealing with [substance] abuse usually involves more than simply talking with friends."[20]

Factually, the hearing officer concluded that "Decker has admitted on more than one occasion that she has a drug problem. However, there is no evidence in this case that she has sought out professional assistance addressing the problem."[21]Legally, the hearing officer concluded that it was "beyond dispute" that Decker's theft and use of Soma constituted legal and professional misconduct, and that "drug addiction and the practice of nursing in an impaired state" constituted endangering the public.[22] These issues, he noted, were particularly problematic in that Decker continued to practice nursing while making no attempt to seek help. The hearing officer also found that Decker's theft and use equated to failing to protect her patients from substandard nursing practices. Additionally, the hearing officer found Decker's "presumed impairment while practicing" equated to practicing as a nurse while dependent on drugs.[23] He also ruled that Decker violated the rules of her employment because, "[alt]hough not in evidence, " the officer inferred that both SCI and the pris on's healthcare contractor maintained rules prohibiting drug diversion, practicing while impaired, or not seeking drug abuse treatment.[24] Lastly, the officer concluded that, based on the SCI incident alone, Decker's habits made her unfit to be a nurse[25]and that Decker was a drug addict.[26] Thus, the hearing officer recommended that the Board susp end Decker's nursing license for a period of two years, with no subsequent reinstatement until Decker could prove that she had been evaluated by and fully complied with an approved substance abuse entity, all subject to any rehabilitative measures the Board might impose.

Decker excepted from the hearing officer's recommendation by issuing to the Board a letter which she authored, an intake assessment note from Brandywine Counseling & Community Service, Inc. ("Brandywine") regarding a February 13, 2013 substance abuse evaluation performed on Decker, and the results of a random drug test from Brandywine, which came back negative.[27] Decker's letter requested that the Board place her license on probation, rather than suspension, so as to allow her to continue working.[28] It also stated that after the hearing officer made his recommendation, Decker received a drug and alcohol evaluation, and conferred with a counselor who decided that Decker "did not need to be placed in a treatment program, " but felt rather that she was appropriately handling her issues on her own.[29]The letter additionally discussed the hardship that resulted from Decker's termination from Beebe and how she "felt defeated" while working at SCI, which led to her Soma use, and how she utilized self-help during her sabbatical from nursing and "learned to forgive [her]self for the mistakes that [she] ha[d] made and move forward."[30]

The Brandywine note concluded that Decker did not require any further assistance.[31] It also stated that Decker was "seeking treatment as a result of the advice from the Board of nursing."[32] For "substance use" history, the only notation that appeared was "[a]lcohol, has not drank alcohol in over 2 years. Age of first use was 17."[33] For "[a]ttitude toward AOD[, ]"[34] the only notation that appeared was "I don't have any reason to drink."[35] For "previous TX" history, two periods of counseling were recorded, one in 1999 and another in 2000, along with the notation of "[d]ischarged successfully."[36] For "medical issues, " the note reported "high blood pressure, seasonal allergies."[37] The ...

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