Our Florida Healthcare Attorneys Take Two-Handed Approach for Nurse Accused of Drug Diversion

In this case, our client, a registered nurse in the cardiac surgical intensive care unit, discovered that a patient’s Fentanyl bag was empty. She couldn’t find the nurse who was assigned to the patient, so she opted to address the situation herself because the patient was sedated and on a ventilator. After pulling a 100 mL bag of Fentanyl, she ran into the assigned nurse, explained the situation, and showed the new Fentanyl bag.

However, our client forgot to grab the lockbox key required to access the empty bag of medication on the IV pump. Previously, all nurses could access the lockbox with their own key, but the new rule called for nurses to retrieve the key from the Pyxis when also removing the medication. Apparently, this was a relatively new practice, one which our client stated that the nurses were never trained.

The assigned nurse went to grab the key and unlocked the box, then our client removed the old Fentanyl bag and replaced it. But as our client pulled the air from the line, some of the medication was unintentionally drawn into the syringe. Consequently, our client then attached a needle to that syringe and injected it back into the bag so as to not waste the medication. After that, she proceeded to complete the co-sign of the medication administration, and she and the assigned nurse exited the room together.

The following morning, the assigned nurse implied that our client may have cut the Fentanyl bag the day prior, for which our client reminded the assigned nurse of having witnessed 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, the patient should not have needed a replacement bag.

A few days later, our client’s former director said that 80 mL of Fentanyl was missing from the bag that our client had replaced. After our client explained what had occurred, she was reported to the DOH on allegations of drug diversion, misappropriation, and possible impairment. She also was reported to the police, as drug diversion is technically theft.

From a criminal defense point of view, the possible consequences would have been devastating. Our client was facing possible arrest on charges of grand theft of controlled substances, a third-degree felony punishable by up to five years in prison; possession of Fentanyl, a second-degree felony that would net upward of 15 years’ incarceration; and additional felony convictions.

How bad can becoming a convicted felon be? Very. For one, it results in the loss of basic rights such as the right to vote, the right to sit on a jury, and the right to own, possess, or use a firearm. Convicted felons may also be denied licensing in healthcare professions and barred from practicing as physicians or nurses.

Among other collateral consequences:

• Medicaid privileges
• Medicare privileges
• TriCare privileges
• DEA registration
• Hospital credentialing
• Exclusion from healthcare insurance panels

At some point, a police detective who was trying to find our client (who was out of town, as a means of clearing her mind following the drug diversion accusations) contacted our client’s mother. The detective told the client’s mother that he just wanted to ask a few questions and “clear things up,” left his card, and asked for our client to call to call him as soon as possible.

That’s when our client’s mother called us. And we got to work.