Rafferty v. Commonwealth

Opinion by President Judge Crumlish, Jr., Ann Marie Rafferty petitions for review of a State Board of Nurse Examiners order revoking her license. We reverse. While Nurse Rafferty was on duty in the NeuroIntensive Care Unit of Thomas Jefferson University Hospital, a comatose patient under her care died.1 She was charged with violations of various Board [605] regulations.2 Following a hearing, the Board found that Rafferty’s violations under The Professional Nursing Law3 were sufficient to revoke her professional license. This Court must affirm the decision of a Commonwealth agency unless there has been an error of law, a violation of constitutional rights or the decision is not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704. The Board derived its authority from Section 14(3) of the Nursing Law,4 which provides that a [606] nurse who willfully or repeatedly violates the nursing regulations may have her license suspended or revoked. For the Board to revoke Rafferty’s license, it must adduce that she was guilty of repeated violations or that her conduct was willful. Her violation was not repetitious, nor was there a contention or charge by the Board that Rafferty had ever been charged with any violation prior to this single incident.5 The record, in fact, discloses that in more than seven years in nursing, her record was unblemished. This being so, the only justification for the Board’s revocation would have been a finding of willfulness. This Court has defined willful under Section 14(3) as “an intentional, designed act and one without justifiable excuse. ’ ’ Leukhardt v. State Board of Nursing Examiners, 44 Pa. Commonwealth Ct. 318, 403 A.2d 645 (1979), citing Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 312 A.2d 402 (1973). We must conclude that a mere intentional act which results in a violation is not a “designed act” unless, by motivation, the act was intended to violate the regulation. The Board found no deliberate or knowing violation, but merely acts which were deemed to deviate from accepted practice and which Rafferty, as a highly-qualified nurse, should have known and avoided. Those acts were errors of judgment which, on hindsight, were subject to severe criticism.6 The [607] Board’s conclusion that Rafferty’s actions deviated from accepted practice does not, absent the intent to violate, raise her conduct to the level of willfulness. We, therefore, hold that the Board erred in finding substantial evidence to invoke Section 14(3) of the Nursing Law and revoke Rafferty’s nursing license. Reversed. Order The order of the State Board of Nurse Examiners, dated December 28, 1981, is hereby reversed. Footnotes [1] The patient in this case was considered brain-dead. While bathing the patient, Rafferty disconnected his respirator to cheek for spontaneous respiration. Patient did not respond and Rafferty reconnected him to the respirator. The patient subsequently suffered cardiac arrest and could not be resuscitated. [2] Rafferty was accused, of violating the Rules and Regulations of the Board, 49 Pa. Code §21.11(a)(l) and (4) and Section 21.13 (1) and (2). 49 Pa. Code §21.11 provides, in pertinenit part: (a) The registered nurse assesses human responses and plans, implements and evaluates nursing oare for individuals or families for whom the nurse is responsible. In carrying out this responsibility, the nurse performs all of the following functions: (1) Collects complete and ongoing data to determine nursing care needs. (4) Carries out nursing care actions which promote, maintain, and restore the well-being of individuals: 49 Pa. Code §21.3 provides that: The Board will ensure safe nursing services for the citizens of the Commonwealth. Embodied in this purpose are the following responsibilities: (1) To establish safe standards for the preparation ■ of registered and practical nurses in approved educational programs. (2) To assure safe standards of nursing practice through examination and licensure of graduates of approved educational programs, through endorsement of registered and practical nurses from other jurisdictions, and through the regulation of the practice of nursing in this Commonwealth. ... [3] The Professional Nursing Law, Act of May 22, 1931, P.L. 317, as amended, 63 P.S. §224(3). [4] 63 PA. §224(3). [5] While there are many items deemed to be deviations from what the Board considered to have been the standard of action expected of Kafferty, all of them stem directly from measures taken or not taken by her as a result of basically the one action of removing the respirator. [6] in fact, there is no suggestion, much less a finding, that the patient’s death following this episode was in any way caused or contributed to by petitioner’s acts which were characterized as misadventures by the Board. The Board in its adjudication stated: [607] It was not alleged, nor is it material, that Respondent caused Patient Bai-tus’ death by removing the respirator or that she could have rescued him by immediately providing the proper care when she first witnessed life threatening arrithmyias [sic].