Case Result: Nurse Accused of Drug Diversion When 80 mL of Fentanyl is Missing from Replaced Bag


Primary issue:
Client is a registered nurse in the cardiac surgical intensive care unit. On January 30, 2020, during the first half of the client nurse’s shift, client heard an IV pump beeping in a patient’s room. Although the patient was not assigned to the client, client walked in to check if everything was fine. The IV pump read “air-in-line,” and client noticed the tubing was beginning to pull air into the system because the Fentanyl bag was empty. Client tried looking for the nurse who was assigned to this patient, but client could not find them. Client opted to address the situation herself because the patient was sedated and, on a ventilator.

The patient was prescribed continuous medication because he needed to remain under sedation. Being that the Fentanyl bag was empty, the patient’s needs had to be addressed immediately. Client went to the Pyxis in the medication room and pulled a 100 mL bag of Fentanyl to change the empty bag. While walking back toward the patient’s room, client ran into the assigned nurse. Client immediately notified the assigned nurse about the patient’s Fentanyl drip and that client went to grab another bag to change it out for him. Client physically showed the assigned nurse the new Fentanyl bag. However, client forgot to grab the lockbox key required to access the empty bag of medication on the IV pump. Apparently, this was a relatively new practice; previously, all nurses could access the lockbox with their own key. When the policy changed, nurses were required to retrieve the key from the Pyxis when also removing the medication. Client also stated that nurses were never trained regarding this new policy change.

The assigned nurse went to grab the key. Client and the assigned nurse stood right next to each other in the patient’s room. The assigned nurse unlocked the box, then the client removed the old Fentanyl bag and replaced it with the new 100 mL Fentanyl bag. Client then showed the assigned nurse how to remove air from tubing using an empty, clean syringe by attaching it to a port below the air and pulling it through. As client pulled the air from the line, some of the medication was unintentionally drawn into the syringe. Consequently, client then attached a needle to that syringe and injected it back into the bag so as to not waste the medication. After that, client proceeded to complete the co-sign of the medication administration, and client and the assigned nurse exited the room together.

The following morning (January 31, 2020), the assigned nurse approached client and asked whether client had “cut the bag” in a relatively accusatory and suspicious tone. The assigned nurse was alleging that client may have cut the Fentanyl bag the day prior. Client reminded the assigned nurse that he witnessed client’s administration of the Fentanyl bag. The assigned nurse proceeded to tell client he felt something was “off” because, according to the rate of the IV pump, he should not have needed a replacement bag. (Interestingly, the patient was handed off to the oncoming day-shift nurse, and they needed to replace the Fentanyl bag again.)

Later that same day, client had a phone conversation with the assigned nurse regarding the incident. The assigned nurse mentioned that he ended up returning to work to report his concerns. He also stated that the hospital had him fill out an incident report citing a “pump malfunction” as the culprit for the “missing” medication.

On February 3, 2020, client’s former director called client to discuss the Fentanyl bag incident. The director explained that 80 mL of Fentanyl was missing from the bag that client had replaced. Client explained what had occurred. The director then asked whether client had noticed anything suspicious or out of the ordinary during that shift. Client said no.

Client was then reported to the Florida Department of Health for drug diversion, misappropriation, and possible impairment. Client also was reported to the police, as drug diversion is technically theft.

Jonathan Meltz, a Miami-based criminal law attorney in Chapman Law Group’s White Collar Defense & Government Investigations group, took on client’s criminal matter. Sara Bazzigaluppi, of our Professional Licensing & Regulatory Affairs practice, helmed the licensing portion of the case.

Jonathan immediately contacted the detective and put him on notice that he would represent the client with respect to any and all criminal investigations, including allegations of a drug diversion or theft from the hospital.

Jonathan advised that our client did not wish to speak with law enforcement without counsel. Moreover, Jonathan invoked her Fifth Amendment Right to Remain Silent as well as her right to counsel, pursuant to the Fifth, Sixth and Fourteenth amendments to the U.S. Constitution, and Article I, Sections 9, 12, and 16, of the Florida Constitution. By putting the police on notice, any further attempt to speak with the client would be viewed as misconduct and illegal action. Any statements made by the client would be excluded from use as evidence in any court case. By acting as a shield or buffer between the police and the client, we successfully prevented the client’s arrest.

Without interviewing our client, the police had insufficient evidence to develop probable cause for arrest. Meanwhile, Sara was able to have the licensing investigation halted.

Areas of Law:
Healthcare Licensing
Professional Licensing Defense
Drug Diversion
Criminal Defense

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.

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Case Lawyers

Sara A. Bazzigaluppi


Professional Licensing & Regulatory Affairs, Civil Litigation

Sarasota Office
6841 Energy Court
Sarasota, FL 34240
Phone: (941) 893-3449

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