Case Result: Drug Diversion Case with RN Dismissed Despite OCE

Professional:
Registered Nurse (RN)

Primary issue:
A Florida RN was working as a ICU nurse on med pass when a routine pharmacy audit revealed high medication pulls. Medication administration systems (like Pyxis for example) will often have “alerts” built into the software that are designed to “flag” outliers: if a nurse pulls more narcotics than the average nurse in that unit, they may be “flagged” as being at higher risk for drug diversion. This is a system safety feature designed to notify management for further review. In this case, the nurse was asked to submit to a reasonable suspicion urine test despite the fact that the EMAR revealed no discrepancies. Hospital management accused the nurse of drug diversion absent evidence to the contrary and insisted they submit to a drug test. The nurse refused and instead quit arguing they were mistreated for no reason. The FL DOH began investigating the nurse for suspected impairment, drug diversion, and unprofessional conduct. The FLDOH believe that there was sufficient evidence to support the issuance of an Order Compelling Examination (OCE) forcing the nurse into a psychiatric evaluation to assess whether she had a substance abuse disorder. The nurse presented for their scheduled evaluation with the FL DOH selected evaluation and completed hair, blood, and urine testing. The labs were negative for all controlled substances. Absurdly, The evaluator concluded that there was insufficient evidence to establish the existence of a substance abuse disorder, but given the circumstances for referral, monitoring was recommended to “make sure” the nurse wasn’t diverting narcotics. 

Argument:
Our Florida Regulatory and Licensing lawyers first argued that an OCE was inappropriate proving that there was no evidence to suspect drug diversion, and which led to the FLDOH report in the first place. CLG also argued that absent evidence of impaired behavior there was also no support for an OCE. CLG adamantly objected to the OCE trying and get the prosecutor to withdraw it but the prosecutor insisted. CLG then prepared the nurse for what we expected to be a biased evaluation. Unsurprisingly, the evaluator has no scientific basis to recommend monitoring, yet they did. CLG drafted a Demand for Dismissal arguing that the absence of any criteria for diagnosis and lack of evidence supporting diversion warrants dismissal of the case. CLG also prepared a motion arguing that the FLDOH’s evaluator should be excluded from testifying as their recommendations do not follow accepted standards of practice. Ultimately, the prosecutor agreed.   

Result:
The case was presented to the probable cause panel for consideration and dismissal arguing there is insufficient evidence to prove probable cause exists. The nurse is not impaired, there is no record of drug diversion, and no work-place concerns demonstrative of illegal behavior or impairment. The Probable cause panel dismissed the case and the nurse is free to practice without consequence or record on their license. 

If You Are Facing A Similar Issue:
If you are a licensed healthcare professional accused of drug diversion, you should immediately retain counsel. Drug diversion is a crime and can lead to criminal prosecution. But even without the threat of criminal prosecution, your license is in jeopardy. Counsel can assist you with OCE preparation but also help you negotiate dismissal despite recommendations of an evaluator.  

Areas of Law:
Department of Health Investigations
Nursing License Defense Law
Orders Compelling Examinations
Drug Diversion

Attorney:
Sara A. Bazzigaluppi

Disclaimer:
This information is a sample of our past results. Prospective clients may not obtain the same or similar results. Every case is different, and each case must be evaluated and handled on its own merits. The circumstances of your case may differ from the results provided. The information provided has not been reviewed or approved by the State Bar.