College of Nurses of Ontario v. Scotcher, 2003 CanLII 89992

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if the allegations have been dismissed or if the results are not placed on the public portion of the Register.

PANEL:

Jim Attwood, RN Chairperson Edmonde Briere, RN Member Anne McKenzie, RPN Member

Sophie Young Public Representative Betty Hill Public Representative

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

GERALDINE SCOTCHER # 94-8342-1

• and

Karen Jones for

College of Nurses of Ontario

David Matheson for Geraldine Scotcher, RN

Brian Gover, Independent Legal Counsel

Heard: June 24 and July 29-30, 2003

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 24, July 29 and 30, 2003 at the College of Nurses of Ontario ("the College") at Toronto.

The Allegations

The allegations against Geraldine Scotcher (the "Member") as stated in the Notice of Hearing (Exhibit #1) dated May 15, 2003, are as follows:

It is alleged that:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that on January 21, 2002, while employed as a Registered Nurse at the [Hospital], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to your administration of medication to a client known as [ ].

Counsel for the College advised that the College anticipated that the Member would admit the

allegations set out in paragraph 1 of the Notice of Hearing.

Member's Plea

The Panel accepted a written plea inquiry signed by the Member on June 24, 2003 (Exhibit #2) and was satisfied that the member's admission was voluntary, informed, and unequivocal. The Member admitted the allegations set out in paragraph numbered 1 in the Notice of Hearing.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit #3) which provided as follows:

The Member

1. Geraldine Scotcher ("the Member") obtained her Registered Nursing Diploma in 1994.

2. The Member worked as a nurse on an orthopedic surgical unit [the unit] at [the Hospital].

Hospital Policy Regarding Potassium Chloride

3. In 1999, a fatal medication error had occurred on [the unit], where a nurse had mistakenly injected a patient with potassium chloride ("KCL"). As a result of that incident, the Hospital's policy regarding KCL was reviewed internally and by an independent reviewer. The Hospital's policy regarding KCL was changed, so that pre-mixed solutions containing KCL were introduced, the availability of undiluted KCL was limited, and in units where undiluted KCL remained in use, it was boldly labeled "must be diluted before use" and "double checking recommended", and was stored in separated coloured bins.

Incident Re: [The client]

4. On December 16, 2001, an [ ] year old patient known as [the client] was admitted to the Hospital after suffering a fractured hip in a fall. [The client] had surgery on her hip and was treated on [the unit] following surgery. [The client] required intravenous nutrition after the surgery and received Total Parenteral Nutrition ("TPN") through a peripherally inserted central catheter ("PICC line").

5. On January 21, 2001, the Member was assigned to care for [the client] on the day shift. [The client] had to be transferred off of [the unit] for a test.

6. The Member decided to discontinue [the client's] intravenous therapy temporarily while she was off of [the unit]. This required the Member to discontinue the intravenous solutions that were infusing through the PICC line. The Member then had to flush the PICC line with normal saline and heparin through the existing saline lock.

7. Heparin, normal saline and KCL are all clear, colourless liquids.

8. Earlier in the shift, the Member had occasion to administer KCL to a patient. Following that administration, she put an extra vial of KCL in her uniform pocket. She did so for safekeeping, intending to return the extra vial to the medication room.

9. Prior to discontinuing [the client's] intravenous solutions, the Member drew up two syringes with clear solutions at the medication cart. The syringes were not labeled.

10. The Member discontinued [the client's] intravenous lines. She handed one uncapped syringe to another nurse and laid one capped syringe down on [the client's] bed.

11. The Member then injected one of the two syringes containing a clear solution into [the client's] PICC line.

12. Almost immediately, [the client] stopped breathing. The Member turned around to the medication

cart, picked up an empty vial, and said, "Oh my God…I gave her KCL…Call a Code." The Member then broke into tears.

13. [The client] was not resuscitated due to a "Do Not Resuscitate" Order.

Events following January 21, 2001

14. The Member's employment at the Hospital was terminated following an investigation. A grievance was filed and the Member was reinstated pursuant to an Arbitrator's award.

15. The Member admits that her handling and administration of the medication KCL on January 21, 2001, failed to meet the standards of practice of the profession.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraph #1 of the Notice of Hearing in that the Member committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that on January 21, 2002, while employed as a Registered Nurse at [the Hospital], she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to her administration of medication to a client known as [ ].

Penalty

Although there was an Agreed Statement of Facts signed and entered into evidence (Exhibit #3) on June 29, 2003, no joint submission on penalty was forthcoming. An adjournment was requested and granted and the Hearing reconvened on July 29-30, 2003 to hear argument as to penalty.

Upon reconvening, counsel for the College presented the panel with Exhibit #4, the CNO submission on penalty:

The College of Nurses of Ontario (College) submits that the appropriate penalty in this case is for the Discipline Committee to make an Order:

1. directing the Executive Director to suspend the Member's certificate of registration for a period of four months;

2. directing the Executive Director to impose the following terms, conditions or limitations on the Member's certificate of registration, requiring the Member to:

a. prior to resuming the practice of nursing:

i. successfully complete a medication administration course acceptable to the Director, Investigations and Hearings ("Director");

ii. complete a self assessment and obtain peer feedback as set out in the College's Reflective Practice process;

iii. create a learning plan that includes reference to the College's Compendium of Standards, and specifically Professional Standards, General Practice Standards and Specific Practice Expectations;

iv. meet with a College nursing practice advisor ("Advisor") to review the learning plan and to amend it, as needed, with reference to the Advisor's suggestions The Advisor will have the opportunity to review the College's file regarding this matter prior to meeting with the Member.

b. following her return to nursing:

i. implement the learning plan and document on the learning plan when identified

skills/behaviours/goals have been met;

ii. review the learning plan and her progress in implementing the learning plan with the Advisor or another member of the College of Nurses acceptable to the Director (Alternate) on a schedule to be agreed upon by the Member and the Advisor or Alternate, or a schedule acceptable to the Director;

iii. advise the Director, in writing, with confirmation by the Advisor or Alternate, when the Member has successfully implemented the learning plan.

c. requiring for a two year period of employment in nursing ("Period") that:

i. the Member provide the Director in writing with the names and addresses of all employers;

ii. the Member provide the Director with a written performance appraisal every four months from a direct supervisor who is a member of the College of Nurses of Ontario indicating that the Member is meeting all standards of practice of the profession with a specific emphasis on medication administration.

3. Requiring the Member to appear before the panel of the Discipline Committee to be reprimanded.

Counsel for the Member then addressed the panel in regards to the principles of penalty. College Counsel objected early in this presentation, submitting that the Member's counsel was trying to expand on the Agreed Statement of Fact. The panel ruled in the College's favour, and counsel for the Member was advised:

The panel recognized the counsel for the Member needs to speak to the character of the Member. The panel also recognized the facts as presented in the Agreed Statement of Facts (Exhibit #3). College counsel's concerns were noted and Counsel for the Member was asked to restrict his submission to the Agreed Statement of Fact.

In response to this ruling and after conferring with his client, the Member's counsel made a motion to withdraw the Agreed Statement of Facts and adjourn to another day for a full hearing. The panel at this time contacted Independent legal counsel, [ ]. Both counsel presented their arguments to [Independent legal counsel] and the panel. [Independent legal counsel] advised that there were no grounds to withdraw the Member's admission and the Agreed Statement of Fact, as both had been made voluntarily with counsel present and a finding of Professional Misconduct had been made on June 24, 2003. The panel subsequently dismissed the Motion to withdraw the Agreed Statement of Facts. At [Independent legal counsel's] suggestion, there was a recess of a few hours so that both counsel could attempt to resolve the issue. The hearing resumed after both counsel reached an understanding on the matter.

During his submissions, the Member's counsel introduced Exhibit #5, the decision and reasons in College of Nurses v. Leach,, heard Oct. 25, 1999, a similar case. Counsel also introduced Exhibit #6, a folder containing several articles pertaining to the in-hospital deaths of patients caused by accidental administration of potassium chloride. He identified and summarized the 5 areas specific to the penalty phase. These areas are:

1. Deterrence

a. Specific deterrence to punish the individual to prevent an act from happening again.

b. General deterrence to prevent others from doing the act.

2. Denunciation - the penalty is imposed to denounce a particular type of behaviour.

3. Retribution - rest on the notion a person is punished for knowingly doing wrong.

4. Protection of the public - focuses on incapacitating those who have committed an act, usually through suspension or restriction.

5. Rehabilitation - (most important in this case) offering assistance to overcome this incident so she can return to be a contributing member of the profession.

The Member's counsel submitted that the outcome of the incident is the deterrent in this case. He submitted that the length of the penalty will not affect the possibility of future error. Counsel for the

Member suggested that although the Member was not completely blameless, the harm was caused by both systemic and personal error. The Member did not set out to harm the patient. It was an error with terrible consequences. Counsel for the Member advised the panel that the Member is a good nurse with no previous work-related incidents. He made note of the fact that the Member had already had a three- month suspension without pay following a recent arbitration ruling. He asked that the panel focus on the Member's rehabilitation which will ensure her ability to return to practice and make a contribution to the nursing profession.

Penalty Decision

The panel considered both counsel's submissions on penalty. Given the tragic outcome resulting from the Member's failure to meet the standard of practice of the profession with respect to the administration of KCL to the client, [ ], the panel gave careful consideration to these submissions. The panel recognized that the intent of penalty decisions is not to punish the Member and exact retribution, but rather to protect the public by maintaining high professional standards and preserve public confidence in the nursing profession. It is from this perspective that the panel determined the appropriate penalty.

The Discipline panel makes the following penalty order:

1. directing the Executive Director to suspend the Member's Certificate of Registration for a period of one month;

2. directing the Executive Director to impose the following terms, conditions or limitations on the Member's certificate of registration, requiring the Member to:

a. successfully complete the return to work program as set out by her employer and acceptable to the Director, Investigations & Hearings ("Director");

b. complete a self assessment and obtain peer feedback as set out in the College's Reflective Practice process;

c. create a learning plan that includes reference to the College's Compendium of Standards, and specifically Professional Standards, General Practice Standards and Specific Practice Expectations;

d. meet with a College nursing practice advisor ("Advisor") or alternate to review the learning plan and to amend it, with reference to the Advisor's suggestions. The Advisor will have the opportunity to review the College's file regarding this matter prior to meeting with the Member;

e. implement the learning plan and document on the learning plan when identified skills/behaviours/goals have been met;

f. review the learning plan and her progress in implementing the learning plan with the Advisor or another member of the College of Nurses acceptable to the Director (Alternate) on a schedule to be agreed upon by the Member and the Advisor or Alternate;

g. advise the Director, in writing, with confirmation by the Advisor or Alternate, when the Member has successfully implemented the learning plan.

h. requiring for a two year period of employment in nursing ("Period") that:

i. the Member provide the Director in writing with the names and addresses of all employers;

ii. the Member provide the Director with a written performance appraisal yearly from a direct supervisor who is a member of the College of Nurses of Ontario indicating that the Member is meeting all standards of practice of the profession with a specific emphasis on medication administration.

3. requiring the Member to appear before the panel of the Discipline Committee to be reprimanded.

The panel concludes that the penalty is reasonable and in the public interest. The Member has co- operated with the College and, by agreeing to the facts, has accepted responsibility for her actions.

Reasons for Penalty Decision

Given the tragic outcome resulting from the Member's failure to meet the standard of practice of the profession with respect to the administration of potassium chloride to the client, [ ], the panel gave careful consideration to the submissions made by both counsel.

In its decision as to the length of the suspension, the panel took into consideration the fact that as reported by her counsel the Member had already served a three-month suspension of her employment following the incident. The Member was also scheduled to participate in a return to work program as set out by her employer.

I, Jim Attwood, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Edmonde Briere, RN Anne McKenzie, RPN

Sophie Young, Public Member Betty Hill, Public Member