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Delaware Board of Nursing v. Francis

Supreme Court of Delaware

October 2, 2018


          Submitted: August 22, 2018

          Court Below: Superior Court of the State of Delaware No. N16A-10-006

         Upon appeal from the Superior Court. REVERSED.

          Carla A.K. Jarosz, Esquire, Delaware Department of Justice, Wilmington, Delaware, Counsel for Appellant.

          Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston LLC, Wilmington, Delaware, Counsel for Appellees.

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.


         A Delaware statute provides that licensed nurses may be disciplined if they engage in "unprofessional conduct." The statute does not define "unprofessional conduct," so the Delaware Board of Nursing adopted a rule to flesh the term out. Under the Board's rule, "[n]urses whose behavior fails to conform to legal and accepted standards of the nursing profession and who thus may adversely affect the health and welfare of the public may be found guilty of unprofessional conduct."

         Two nurses who held supervisory roles at a correctional facility were disciplined by the Board under that rule after they participated in the retrieval of medication from a medical waste container for eventual administration to an inmate. The nurses appealed to the Superior Court, and the court set their discipline aside. The court read the Board's rule to require not just proof that the nurses breached a nursing standard, but also proof that in doing so, they put the inmate or the public at risk. And in the court's view, the State had not made that showing.

         Because the Board applied the correct standard and its decision was supported by substantial evidence, its decision must be upheld. We therefore reverse the judgment below.



         The Delaware Board of Nursing is a panel of fifteen individuals-ten with nursing experience and five lay members-tasked with supervising the nursing profession.[1] The Board is vested with the power to adopt rules to carry out its mandate[2] and, to that end, the Board adopted a rule to define "unprofessional conduct, "[3] which is one of a number of statutorily enumerated grounds upon which a nurse can be subject to professional discipline.[4]

         The rule the Board adopted has two parts. The first part-Rule 10.4.1- provides, as a general definition of unprofessional conduct, that "[n]urses whose behavior fails to conform to legal and accepted standards of the nursing profession and who thus may adversely affect the health and welfare of the public may be found guilty of unprofessional conduct."[5] The second part of the rule-Rule 10.4.2- contains a list of twenty-nine, non-exhaustive illustrations of conduct that violates that general proscription.[6]


         The unprofessional conduct these two nurses are charged with engaging in revolves around the administration in a correctional facility of an expensive hepatitis C medication.[7] Although we are cognizant that we are law-trained judges, not medical professionals, from our vantage point, we agree with the Superior Court that what happened to this medication was "ugly."[8]

         The medication comes in pill form, and each pill costs $1, 000. A full course of the medication is 28 pills, and it can be purchased only in lots of 28. The prison had ordered a course of the medication to treat an inmate and, because of its cost, subjected the medication to the same careful controls it applies to controlled substances, including periodically counting the pills.

         Two nurses (not the appellees) were conducting one of those counts when one of them accidentally tipped over the bottle of pills, spilling twelve of them onto the floor. Both nurses believed that when medication comes into contact with the floor, it must be discarded, so they collected the twelve pills and disposed of them in a "sharps container"-a medical waste container designed for the disposal of skin-piercing objects, like syringes and blades. This decision to discard the pills once they hit the floor was consistent with the testimony of the appellees themselves as to what to do in this situation[9]

         After disposing of the pills, the nurses notified the pharmacist on duty at the prison (the prison has an on-site pharmacy run by a private company) that a refill of the medication would be needed.

         As some of the witnesses would later intimate, the high cost of the pills largely explains what happened next. The on-site pharmacist immediately called her supervisor, the head of the pharmacy company's Delaware operations, who in turn contacted the head physician of the separate company that furnishes the prison with patient care. The physician, who was not at the prison at the time, called one of the appellees, nurse Christine Francis, and told her to retrieve the pills from the sharps container.

         Francis, the prison's health services administrator, asked nurse Angela DeBenedictis, the other appellee and the prison's director of nursing, to accompany her. After locating the waste container, the two nurses laid paper towels on a table, unlocked the container-which is normally locked until the contents can be safely disposed of-and shook it until all twelve pills had fallen out. Along with the pills came some syringes, retractable lancets, and diabetic testing strips. There was additional medical waste in the container that the twelve pills could have touched, but once all twelve pills fell out, the nurses stopped shaking the container, leaving those materials behind. No one knows-or can know-what that waste was. What is known is the sorts of things that can be found in that type of container: saturated wound dressings, items soiled with more than five milliliters[10] of blood or other bodily fluids, items from patients on strict isolation, skin-piercing objects such as needles, disposable scissors, scalpels, and catheters, and other disposable equipment for internal use.

         Francis and DeBenedictis wrapped the pills in a paper towel and took them to their office. There, they were met by the on-site pharmacist, and together, they looked at the pills. To the pharmacist, "there did not appear to be anything wrong with [them]"-"they looked like they came out of a bottle."[11] This eyeball test, consistent with the five-second rule some might use to determine whether to eat food dropped on the floor, is not one that any witness testified is a professionally recognized practice. No witness testified that an unaided visual inspection of pills that were in a container filled with medical waste was a professional method that could reliably determine if the pills were contaminated. Consistent with the cursory examination of the pills themselves, no one checked the floor where the pills had been spilled. Thus, none of them knew how clean or contaminated that floor was or how much the initial spill could have contaminated the pills even before they were placed into the waste container.

         The pills were later given to the inmate. He suffered no ill effects, but he was not told the pills had been retrieved from a medical waste container until after he had taken them. In other words, no one informed the inmate of what had happened to the pills or gave him a chance to give or deny consent or request that he receive pills not retrieved from a medical waste container.

         No one-not the nurses, not the on-site pharmacist, not the head pharmacist, and not the head physician-took responsibility for deciding that the pills were fit for use. Francis, DeBenedictis, and the head physician claimed it had been one of the pharmacists, while the head pharmacist insinuated it had been the head physician. The on-site pharmacist pleaded ignorance.


         When one of the nurses who had disposed of the pills in the waste container learned they had been retrieved and given to an inmate, she reported it to the Delaware Division of Professional Regulation. After an investigation, the State brought disciplinary proceedings against the head physician and the two nurses, and a hearing was held before an administrative hearing officer. The nurses were charged with violating Board of Nursing Rule 10.4.1-the rules' general definition of unprofessional conduct-as well as Rules,, and, which provide the following examples of unprofessional conduct: Failing to take appropriate action to safeguard a patient from incompetent, unethical or illegal heath care practice. Aiding, abetting and/or assisting an individual to violate or circumvent any law or duly promulgated rule and regulation intended to guide the conduct of a nurse or other health care provider. Failing to take appropriate action or to follow policies and procedures in the practice situation designed to safeguard the patient.[12]

         At the hearing, the nurses and the head physician contended that it had been the pharmacists, not them, who decided that the pills could be given to the inmate. The pharmacists, they claimed, are the experts on whether medication is fit for use, so they were simply taking direction from the subject-matter experts. And it was reasonable to follow those instructions, they said, because even though the pills spent time in a medical waste container, there was little to no risk of disease transmission.

         To back up those assertions, they called two experts to testify on their behalf: a physician certified in infectious diseases and a nurse with decades of experience in prison health care.

         The physician testified first. In his view, it was "reasonable [for the physician and the nurses] to accept a pharmacist's determination that [the] pills were safe, effective and okay for human use."[13] As for whether the pills-post inspection by the on-site pharmacist-posed a risk to the inmate, he testified that the risk was "incalculably small."[14]

         But his testimony rested on a key premise: he assumed "not only [that] the pills were inspected [after being recovered from the waste container], but [that] the contents of the Sharps Container was inspected."[15] That, he said, was "critical" because "if there were free liquids in the Sharps Container . . . [or] dust . . . [or] other compounds . . ., you can infer that the pills came in contact with those and were contaminated in a real and consequential sense."[16] He also testified that it would have been critical to "know what was on the floor where the pills were dropped, such as dirt, fluids, and the like."[17]

         Just before he left the stand, the State's attorney asked him, in light of how he had downplayed the risk the pills posed, whether he would have taken them. His reaction to that question left an impression on the hearing officer, who made a point in his post-trial report to describe the exchange:

Though I rarely comment on 'body language' or other witness behaviors . . ., I should say that there was a palpable delay before Dr. Axelsen answered that question. He then stated that he 'thinks' he would have ingested the pills.[18]

         The nursing expert testified next. She too believed that "it was reasonable to rely on the expertise of the pharmacist in making the decision whether or not these medications were safe to use" because they are the "subject matter experts."[19] She also agreed with the physician that the risk the pills posed was incalculably small, though she too assumed there had been "an accounting" of everything that was in the waste container-not just what tumbled out along with the pills.[20]

         But in a finding the nurses do not contest, the hearing officer concluded that, contrary to the experts' assumptions, no one examined the contents of the waste container after the pills fell out, so the container's full contents "were and are currently unknown."[21] Because no one could say for sure what the pills may have encountered, the hearing officer found that giving them to the inmate was not a riskless endeavor:

[The nurses were] aware of the 'adventure' experienced by those pills, including their spillage on an uninspected floor and their retrieval from a used sharps container the complete contents of which were unknown to anyone. . . . In my view . . . [allowing the pills to be administered] may have adversely affected the health and welfare of the inmate.[22]

         That finding also had some support from the inmate's treating physician. While he did not view the risk of disease transmission as "significant," he did not suggest that the risk was nil, and while he ultimately recommended to the inmate that he not undergo preventative treatment to guard against the risk of infection, that was only because the treatment "may [have] pose[d] more risk than benefit."[23]

         As for the lingering question of who decided that the pills were fit for use, the hearing officer left that question unanswered. But he did find, consistent with testimony from both nurses, that the on-site pharmacist told them-after speaking by phone with the head pharmacist-that the pills were to be put back into inventory.[24] He also found that the head physician was in some way "involved in" that decision, [25] such that if the nurses had objected, it "could have constituted disobedience of . . . [her] directive."[26] So while the hearing officer declined to place the blame on any one person, he found ...

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