In the matter of University of Virginia Case No. 5197

Hearing Date: May 29, 2001
Decision Issued: May 31, 2001

Due to availability of the participants, the hearing could not be docketed until the 34^th day following appointment of the hearing officer.

Grievant
Attorney for Grievant
Three Witnesses for Grievant
Legal Representative for Agency
Grievant’s Manager
Four witnesses for Agency

Was the grievant’s conduct such as to warrant discharge from employment pursuant to the agency’s Employee Rights and Responsibilities Policy?

The grievant filed a timely appeal from her discharge from employment effective March 6, 2001 because she dispensed narcotics without a physician’s order. Grievant filed a grievance of the discharge. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The University of Virginia Health System (hereinafter referred to as "agency") has employed the grievant as a registered nurse since 1991. During the 1999 and 2000 performance cycles, the grievant’s annual performance rating was "peak performer," the second highest rating possible.¹

In September 1998, grievant’s supervisor verbally counseled her regarding failure to chart chemotherapy on one occasion and failure to chart medications on another occasion. The supervisor documented this counseling in writing.²

The agency has promulgated a variety of policies and procedures relating to the operation of its health care delivery operations. The policies and procedures are made known to nurses at the time of hire and copies are maintained at nursing stations. The grievant was aware of these policies and had access to them at any time. One such policy addresses the topic of discharge prescriptions and states, in pertinent part:

Another policy provides general guidelines regarding controlled medications and states, in pertinent part:

A third policy provides the procedure for signing out controlled drugs by the nursing staff and states, in pertinent part:

The dispensing of controlled drug prescriptions and discharge medications is addressed in a policy that states, in pertinent part:

In December 2000, a controlled drug (Demerol) was determined to be missing from the Pyxis Workstation™ in the unit in which grievant works. This matter was reported to the police. In January 2001, there was a second occurrence of missing Demerol from the same workstation. The matter was again reported to the police and the matter more thoroughly investigated. It was eventually determined that someone had managed to obtain the drug through an interior access panel in the workstation. However, the culprit has not been identified as yet. The grievant was not implicated in this situation and has denied any knowledge of the missing Demerol.

However, as a result of these disappearances, a thorough review was conducted of all records maintained by Pyxis. The Pyxis system electronically records the nurse, patient, medication and time for every transaction. Only nurses who have been given access privileges by the Pharmacy are given an access code to obtain medication from the workstation. During a review of these electronic records, grievant’s Manager noted that grievant had been withdrawing unusual quantities of certain controlled drugs (various narcotics used in pain control) from the Pyxis system. During the period from December 17, 2000 through February 16, 2001, there were seven instances where grievant removed from Pyxis quantities of these narcotics that were above the amount ordered by the physician. The grievant failed to chart the extra doses of medication in three of the seven cases. In one case, there was no order for the type of drug (Darvon) withdrawn by the grievant.

The manager confronted grievant about these discrepancies on March 5, 2001. Grievant readily acknowledged that she had made the withdrawals but stated that she had given the medication to patients who were being discharged from the hospital and who needed a few extra pain pills until they could get their prescription filled at their local pharmacy. Grievant was suspended from work for the balance of the day and told to report to the manager and the medical center administrator the following day. On March 6, 2001, grievant was discharged from her employment because she had dispensed narcotics, without an order, and because there was no documentation of her actions (charting) in three of the seven cases. The agency has not alleged that grievant diverted the extra quantities of medication for her own personal use or the use of anyone else.

Patient A was given six tabs of hydromorphone by the grievant less than one hour prior to discharge. Grievant charted this action noting that the patient was unable to fill a discharge prescription from the physician until the following day. On the discharge prescription, written two days earlier, the physician noted, "DO NOT FILL." Patient E was given six extra tabs of oxycodone 20 minutes prior to discharge. Grievant did chart this action, however, on the discharge prescription written two days earlier, the physician had written, "DO NOT FILL." Grievant withdrew three oxycodone tabs within 12 minutes for Patient F on January 29, 2001. Only one tab was charted as being given to the patient at that time. This patient was not discharged until February 5, 2001.

Patient B was given four tabs of oxycodone by grievant seven minutes prior to discharge and two additional tabs two minutes prior to discharge; grievant did not chart giving any drugs to patient. Patient C was given five tabs of hydrocodone by the grievant one hour prior to discharge; grievant did not chart giving any drugs to patient. Patient D was given one tab of propoxyphene by grievant three hours prior to discharge and six tabs of hydrocodone two hours prior to discharge; grievant did not chart either drug. Patient G was given six oxycodone tabs by the grievant in the six hours before discharge; grievant did not chart giving these tabs to the patient.

During the agency’s investigation, the review of Pyxis records revealed that the grievant was the only nurse giving extra medication to patients prior to discharge. None of the agency’s witnesses knew of any other nurse dispensing extra medication to patients. One of grievant’s witnesses, her former supervisor, stated that she had been a stickler in monitoring Pyxis records between 1998 and 2000 and had not found any evidence that anyone else was giving extra medication to patients.

The hospital operates several pharmacies. The Primary Care Pharmacy and the Barringer Pharmacy are both open from 8:30 a.m. to 5:30 p.m., Monday through Friday. The Primary Care Pharmacy is also open from 8:30 a.m. to 1:00 p.m. on weekends to fill discharge prescriptions. The In-Patient Pharmacy is open 24 hours a day, seven days a week.⁸

The hospital could face potential legal liability if drugs, especially controlled substances, are not dispensed properly. Proper dispensing includes a physician’s order, dispensing by an authorized person, proper labeling and use of an FDA-approved container. The Pharmacy can dispense narcotics only if it has the original prescription form; photocopies and faxes are not acceptable.

In the past, grievant had experienced some problems at work, which apparently were related to, or caused by, difficulty in managing her insulin-dependent diabetes mellitus. However, she is now utilizing a pump that permits better management of hypoglycemic episodes.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions and dismissals for unsatisfactory performance, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.⁹ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

1. an oral or written notice of the offense,
2. an explanation of the agency’s evidence in support of the charge, and
3. a reasonable opportunity to respond.¹⁰

The agency has promulgated a human resources policy that provides a process for performance counseling consisting of four steps: informal counseling, formal performance improvement counseling, suspension and/or performance warning and, finally, termination of employment.¹¹ This policy also addresses serious misconduct and states that for performance issues involving serious misconduct, the appropriate action will be immediate suspension and/or performance warning, or termination without prior counseling. Examples of acts of serious misconduct include, but are not limited to:

• Willful violation or neglect of safety/security rules.
• Insubordination or refusing or failing to execute or perform responsibilities as reasonably requested, assigned or directed.
• Falsifying records, including vouchers, leave records and pay records.¹²

The Commonwealth of Virginia Board of Nursing Statutes provide definitions of terms relevant to the Drug Control Act. Included are the following:

Grievant does not dispute the underlying facts in this case. She readily admitted at the time of initial confrontation that she had withdrawn the extra medication, that she had given it to the patients in whose name it was withdrawn, and that in three instances she failed to chart her actions. She also now acknowledges that what she did is contrary to the agency policies referenced in this decision. However, grievant contends that at the time, she did not understand that what she was doing was inappropriate but that she acted with the best interest of her patients in mind.

Grievant’s former supervisor verified that grievant’s primary concern was the care of her patients. In doing so, the grievant may have been overzealous at times. Grievant’s current supervisor said that her work had been without incident until the drug discrepancies were uncovered.

Grievant argued that she was not the only nurse who had given patients extra medication at the time of discharge. However, she was unable to specifically identify any other nurse who had done this. Evidence on this point was contradictory. On one hand, two hospital physicians and grievant’s former supervisor said that they had "heard" that this had occasionally happened but they did not know of any specifics. All of the agency’s witnesses including grievant’s two most recent supervisors had no knowledge that this had ever occurred. However, viewing this in the light most favorable to grievant, even if this had occurred previously, that does not change the fact that nurses are not permitted to dispense medication.

Grievant’s primary reason for dispensing narcotics to the patients was concern that they might be without pain medication for a period of time after discharge until they were able to have their discharge prescription filled by their own pharmacy. Grievant believed she was helping the patients by giving them a few extra tablets to "tide them over" until their pharmacy filled the prescription. Grievant’s motivation was thus a positive one and it is understandable that she felt her actions were in the patients’ best interest.

However, testimony established that grievant had other options available to her. First, grievant could have requested the ordering physician to prescribe the additional tablets needed to "tide the patient over." Second, the patients could have had their prescription filled at one of the hospital pharmacies. The In-patient Pharmacy is open 24 hours, 7 days per week. Although it may have required some extra effort to obtain medication through that pharmacy, it was available when no other alternative existed. Third, there are 24-hour pharmacies in the community at which patients could have prescriptions filled. Fourth, grievant could have administered the last dosage of pain medication to the patients immediately prior to discharge so that they would have ample time to have their prescription filled at the pharmacy of their choice.

It is also troubling that grievant failed to chart all of the medication she dispensed. Although she said she was often too busy to chart every single pill, this is not a sufficient reason for failure to properly document a patient’s chart. The danger of drug interaction is common knowledge. It is vital in a hospital setting that all medication be accurately and timely recorded in order to facilitate proper response should problems occur. Grievant had been counseled in 1998 regarding the importance of always charting medications. Thus, she knew that she should have charted all the medication she gave to patients; being busy is not an acceptable excuse for failure to do so.

Grievant also argues that there is no proof that she knew what she was doing was wrong because there had not been any formal training classes on this subject. This argument is disingenuous. Grievant knew, or reasonably should have known, of the multiple written policies that detail how discharge prescriptions are to be handled, how controlled medications are to be handled, how controlled drugs are to be signed out and, how controlled drug prescriptions may be dispensed. It is more likely than not, that grievant knew she was cutting corners in dispensing this medication to patients. While she may well have had the best interest of her patients in mind, she ignored her obligation and responsibility to her employer to obtain medication only by physician order and to properly chart the dispensing of medication.

Ultimately, grievant acknowledged that she made a mistake. She argues, however, that she should not be so harshly punished for making such a mistake. Had the medication been only aspirin instead of narcotics, the case might be viewed less seriously. Similarly, had there been only one occurrence, one could accept that it was simply a mistake. However, seven occurrences over the course of two months establish a pattern of conduct. When a pattern of conduct is established, it must be concluded that the action was not merely a mistake but rather a conscious decision to take such action. The Hearing Officer empathizes with the grievant’s desire to put her patients first. However, putting patients first must be accomplished within the parameters of the policies established by the agency.

Since those policies allowed for reasonable alternatives to accomplish the grievant’s goal, her decision to cross the line must be treated accordingly. Medical professionals such as registered nurses are entrusted with a very serious responsibility – the lives of their patients. When one has such a responsibility, the standards of conduct and expectations are greater than for most other positions. While the agency’s decision to terminate the grievant’s employment may seem harsh, it cannot be concluded that the action is inappropriate for the seriousness of the offense.

The decision of the agency is hereby affirmed.

The discharge of the grievant effective March 6, 2001 because she dispensed narcotics, did so without a physician’s order, and failed to chart medication given to patients is AFFIRMED.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer