College of Nurses of Ontario v. Lana Pottruff, 2006 ONCNO 81753

PANEL: Joanne Furletti, RN Chairperson Rosalie Woods, RPN Member Shiela Pendock, RN Member Karen Harder Public Member Grace Isgro-Topping Public Member

BETWEEN:

LINDA ROTHSTEIN for College of Nurses of Ontario

and -

SHARAN BASRAN for Lana Pottruff Registration No. 0113902

Heard: October 24, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 24, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Lana Pottruff (the “Member”) as stated in the Amended Amended Notice of Hearing dated October 4, 2006, (Exhibit #1) are as follows:

1You 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(7) of Ontario Regulation 799/93, in that you abused a client verbally, physically or emotionally, and in particular:

a. On or about October 5, 2004, while working as a registered nurse with [the facility], you abused [the client] verbally, physically and/or emotionally by:

i. Slapping him on an exposed thigh; and/or

ii. Shouting at him and telling him to “let go of my wrist you fucking prick” or words to that effect.

2You 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 you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular:

a. On or about October 5, 2004, with respect to [the client] you :

i. Slapped him on an exposed thigh; and/or

ii. Shouted at him and told him to “let go of my wrist you fucking prick” or words to that effect.

3You 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(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all of the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, and in particular:

a. On or about October 5, 2004, with respect to the client known as [the client] you :

i. Physically abused him by slapping him on an exposed thigh; and/or

ii. Verbally abused him by using inappropriate and unprofessional language such as “let go of my wrist you fucking prick” or words to that effect.

Counsel for the College informed the panel that the College would not be proceeding with allegation #2 (contravening a standard of practice of the profession or failing to meet the standards of practice of the profession).

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered #1 and #3 in the Amended Amended Notice of Hearing. The panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that an agreement had been reached on the facts and introduced an Agreed Statement of Facts (or “ASF”, filed as Exhibit # 2), which provided as follows:

THE MEMBER

Lana Pottruff, (“the Member”) graduated with a Diploma in Nursing from [ ] in 2001, following which she obtained her Bachelor of Science in Nursing from [ ] in 2004. The Member has been registered as a Registered Nurse with the College of Nurses of Ontario since 2001.
The Member began her practice as a nurse at [a hospital] in 2001. She was employed on a part-time basis.
In 2005 the Member worked as a Registered Nurse, with [ ].

4Currently the Member is not practising nursing, but working in Pharmaceutical Sales, which does not require a nursing background.

THE FACILITY

5The incident occurred on [the unit] a medical surgical unit housing approximately 30 patients at [the facility]. The registered staffing complement is 6 RNs from 0700 to 2300 hours and 4 RNs from 2300 to 0700 hours

THE CLIENT

6[The client] was admitted to the facility on August [] 2004. He suffered from a number of medical conditions []. The client had a history of alcohol abuse and was often violent, including when he was going through a period of withdrawal. He had brain damage and suffered from dementia. He was discharged from the facility on November [] 2004.

7[The client] had a propensity for being combative with the nursing staff. During his hospitalization at the facility there were several incidents of aggression initiated by him against the nursing staff. The Member and this client were involved in a previous incident on September 28, 2004, in which the client was physically aggressive toward the Member.

THE INCIDENT

8On October [], 2004, [the client] was moved to a bed near the nursing station so that the nursing staff could assist him and prevent him from getting out of bed.

9[The client] was placed in an alcove near the station, which was a regular procedure, followed with patients who had a tendency to climb out of bed or act out. The client’s family was adamant that no physical or chemical restraints be used in his care.

10At 4:00 am on October 5, 2004, the client attempted to get out of bed. Together the Member and [nurse A] went to the client’s bed, at which point he grabbed the Member’s left wrist. Immediately the Member slapped the client’s exposed left thigh and shouted “let go of my wrist you fucking prick!” The client continued to hold onto the Member’s wrist and two other nurses, [ ] and [ ], were required to assist the Member in attempting to free the Member’s hand from the client’s grasp. The nurses freed the member’s hand and the client released his grip. The four RN’s then placed the client in a Geri-Chair.

ADMISSIONS

11The Member acknowledges that she committed the acts of professional misconduct set out in allegation 1 of the Notice of Hearing, in that she abused a client emotionally, verbally and physically on or about October 5, 2004, while the Member was working as a registered nurse with [the facility].

12The Member acknowledges that she committed the acts of professional misconduct set out in allegation 3 of the Notice of Hearing when she engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all of the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, in particular when she physically, verbally and emotionally abused a client on October 5, 2004.

Decision

The panel considered the Agreed Statement of Facts and found that the facts support a finding of professional misconduct.

In particular, the panel found that the Member committed an act of professional misconduct as alleged in paragraphs #1 and #3 of the Amended Amended Notice of Hearing in that on or about October 5, 2004, while working as a registered nurse with [the facility], the Member abused a client verbally, physically and/or emotionally by:

i. Slapping him on an exposed thigh; and/or

ii. Shouting at him and telling him to “let go of my wrist you fucking prick” or words to that effect.

The panel also found that the Member has committed an act of professional misconduct which is regarded by members of the profession as disgraceful, dishonourable and unprofessional, in that on or about October 5, 2004, the Member:

i. Physically abused the client by slapping him on an exposed thigh; and/or

ii. Verbally abused the client by using inappropriate and unprofessional language such as “let go of my wrist you fucking prick” or words to that effect.

Reasons for Decision

The panel deliberated and after due consideration of all the facts and the Member’s admission to the allegations, unanimously decided to accept the Agreed Statement of Facts as presented, which substantiated the findings of professional misconduct.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty (Exhibit # 3) had been agreed upon. The Joint Submission as to Penalty (“JSP”) provides as follows:

THE MEMBER AND THE COLLEGE JOINTLY SUBMIT that, in view of the circumstances set out in the Agreed Statement of Facts and the Member’s admissions of professional misconduct, the panel of the Discipline Committee should make an Order as follows:

requiring the Member to appear before the Panel of the Discipline Committee to be reprimanded, on a date to be arranged between the panel and the Member, within three months of the date that this Order becomes final;
directing the Executive Director to suspend the Member’s Certificate of Registration for a period of two months. The suspension shall commence on the date that this Order becomes final and shall run without interruption;
directing the Executive Director to impose the following terms, conditions and limitations on the Member’s Certificate of Registration, namely:

(a) prior to seeking any employment in nursing, the Member shall purchase and complete the College’s self-directed learning package, One Is One Too Many;

(b) prior to seeking any employment in nursing, and after the Member has completed the One is One Too Many package, as outlined in 3(a) above, the Member shall meet with a College Practice Consultant, at the Consultant’s convenience, to discuss the One is One Too Many abuse prevention program as it relates to the conduct for which the Member was found to have committed professional misconduct and to discuss with the Member how to prevent such conduct from occurring in the future;

(c) within nine months of returning to the practice of nursing, the Member shall again meet with a Practice Consultant to discuss how she has implemented the strategies recommended during the Member’s initial meeting with a Practice Consultant; and

(d) for an eighteen-month period following the date upon which the Member returns to the practice of nursing (the “Period”), the Member shall:

(i) communicate to the Director of the Investigations and Hearings Department of the College (the “Director”), in writing, the names and addresses of any employer or employers for whom the Member is employed as a nurse within 14 days from the date the Member commences employment, to be delivered by verifiable means such as courier or registered letter and the Member shall retain proof of the College’s receipt of the communication;

(ii) provide the Director with copies of any written performance appraisals that are completed by the Member’s employers during the Period.

Penalty Decision

In arriving at a decision the panel reviewed the following submissions:

Counsel for the College

The Member acted impulsively, had no previous history of misconduct and counsel had no concerns that the Member would repeat this type of behaviour.
The Member was terminated as a result of these events and has chosen not to practise in the profession.
The Member acknowledged her wrongdoing and counsel believes this is the best type of public protection.
The Member had been registered as a Registered Nurse with the College since 2001.
The two-month suspension is well within the acceptable range of similar cases.
The penalty sends a message to the profession that the College takes seriously the issue of any type of client abuse.
The penalty addresses the public’s concern with regard to safety, in that the rehabilitation and education of the Member must occur just prior to her re-entry into the profession.

Counsel for the Member

Agreed with Counsel for the College’s submissions.
Stated that the incident has had a significant personal and professional impact on the Member.
The Member has admitted the allegations and has accepted responsibility for her actions.
Mitigating circumstances included the fact that the client had been physically aggressive to the Member one week earlier and there was no evidence that the Member had responded inappropriately at that time.
Counsel provided two similar cases to demonstrate that the two-month suspension was within the appropriate range of penalty.
The rehabilitation and educational component was important and appropriate.

This hearing was originally scheduled as a contested hearing and the panel was only made aware at the onset of the hearing that the parties had reached an Agreed Statement of Facts and Joint Submission on Penalty. During deliberations, this issue was discussed and on reconvening the hearing, the panel addressed the issue with both counsel. It was agreed that the parties and the panel would address Rule 6 after the appropriate penalty order had been determined.

The panel deliberated and accepted the Joint Submission as to Penalty and accordingly orders that:

The Member appear before the Panel of the Discipline Committee to be reprimanded, on a date to be arranged between the panel and the Member, within three months of the date that this Order becomes final;
The Executive Director suspend the Member’s Certificate of Registration for a period of two months. The suspension shall commence on the date that this Order becomes final and shall run without interruption;
The Executive Director impose the following terms, conditions and limitations on the Member’s Certificate of Registration, namely:

(a) prior to seeking any employment in nursing, the Member shall purchase and complete the College’s self-directed learning package, One Is One Too Many;

(d) for an eighteen-month period following the date upon which the Member returns to the practice of nursing (the “Period”), the Member shall:

(ii) provide the Director with copies of any written performance appraisals that are completed by the Member’s employers during the Period.

Reasons for Penalty Decision

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

Costs Due to Late Notification of Case Settlement

After announcing its penalty decision, the panel asked the parties to address Rule 6 of the Discipline Committee Rules. It reads as follows:

DISCIPLINE COMMITTEE RULES

RULE 6 - AWARDS OF COSTS OR COSTS AND EXPENSES - LATE NOTIFICATION OF CASE SETTLEMENT

6.0 In this rule, “late notification of case settlement” means notification to a Discipline panel’s hearings administrator that a hearing will be uncontested, where that notification is made within 10 days prior to the date scheduled for the commencement of the hearing.

6.1 A late notification of case settlement may result in costs or costs and expenses being awarded against a party who is responsible for the lateness in the notification pursuant to s. 53 or 53.1 of the Code.

6.2 In determining the amount of costs or costs and expenses to award against a party that is responsible for a late notification of case settlement, the Discipline panel shall take into account the following factors, among other relevant considerations:

(a) any final date by which the opposite party stipulated that an offer of case settlement must be accepted;

(b) the extent to which the offer of case settlement referred to in paragraph (a), above, is substantially identical to the offer of case settlement ultimately accepted;

(d) the number of days on which the hearing had been scheduled to proceed; and

(e) the amount of the costs or costs and expenses, as the case may be, borne by the party seeking costs or costs and expenses as a result of the late notification of case settlement.

The submissions of counsel are set out below:

Counsel for the College

Counsel presented the Pottruff Negotiation Timeline (Exhibit #4), to demonstrate that negotiations were ongoing.
Last minute agreements are common and typical of how counsel negotiates.
Rule 6 is not law. It is only a regulatory rule and is to be used with discretion.
The panel should not impose costs except in rare cases, and in counsel’s opinion this is not an extreme case.
It is always better to resolve issues by agreement, even if it’s at the last minute.
Negotiations take time. In particular, in this case, on October 13 counsel were negotiating wording of the ASF. It was just a matter of dotting the Is and crossing the Ts.
Applying Rule 6 and awarding costs could provide disincentives to resolving cases if the timelines cannot be met. Potentially, cases that might be uncontested could become contested because of fear of monetary penalty to the Members.
The panel ought not to impose a costs award in this case.

Counsel for the Member

Counsel concurred with the timelines presented in Exhibit #4.
Rule 6 is inappropriate in this case. Rule 6 is discretionary and not automatic.
Every member has a legal right to full answer and defence.
Additional disclosure was provided through witness interviews. After reviewing these details, amendments to the ASF were re-negotiated.
The Member acted responsibly to resolve the case, and this should be honoured.
Counsel strongly urged the panel to value the costs saved in not having a contested hearing.
The parties worked prudently towards resolution.
Costs are not appropriate in this case.

Decision

The panel made the decision to accordingly order the Member pay costs to the College in the amount of $100 within three months from the date of this hearing.

Reasons for Decision as to Costs

The panel deliberated and seriously considered submissions on “late notification of case settlement”. The panel is cognizant of the need to support the negotiation and resolution process between parties. However, in reviewing the timelines in this particular case, as outlined in Exhibit #4, the panel concluded that the parties did not respectfully provide timely notification to the hearings administrator, pursuant to Rule 6 of the Discipline Committee Rules.

The timelines in Exhibit #4 clearly indicate that Defence Counsel contacted Counsel for the College about the case resolution on October 13, which is exactly 11 days before the scheduled hearing, and one day prior to the deadline referred to in Rule 6. Furthermore, in the timelines, it clearly indicated that on October 13 the JSP was accepted, and the ASF was imminent; it was simply a matter of ‘wordsmithing’.

According to Exhibit #4, witness interviews were completed on August 30, and negotiations were re-opened on October 13. Given that there were 6 weeks between the interviews and further negotiations between the parties, the panel concluded that negotiations could have taken place sooner, in order to respectfully adhere to Rule 6.

The costs award imposed by this panel represents a nominal portion of costs incurred as a result of late notification of agreement between the parties. It takes into account the need to promote respect for and compliance with the Discipline Committee Rules, without causing undue hardship to the Member. This application of Rule 6 facilitates an efficient and cost-effective process, and should not deter parties from continuing to seek settlement when the timelines cannot be met.

I, Joanne Furletti, RN, 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

Panel Members:

Rosalie Woods, RPN

Shiela Pendock, RN

Karen Harder, Public Member

Grace Isgro-Topping, Public Member