ORDERS:
ORDER
I. Introduction
This matter is an appeal to the Administrative Law Judge Division (Division) by Anonymous Nurse of a decision made by
the South Carolina Department of Labor, Licensing and Regulation, State Board of Nursing (Board). The Board decision
found that Anonymous Nurse failed to document the disposition of the drug Nubain after its removal from a drug-dispensing
machine. The Board found Anonymous withdrew the drug and that Anonymous failed to document the use of the drug.
Such failure, the Board found, constituted a violation of S.C. Code Ann. § 40-33-935(g) and S.C. Code Regs. 91-19(c)(3)(j) (Supp. 1996). As a result, the Board issued a private reprimand and a civil penalty of six hundred dollars. The
Board's decision is upheld.
II. Standard of Review
The Administrative Procedures Act establishes that the "substantial evidence" rule governs the standard of review for
appealed decisions of administrative agencies such as the Board. § 1-23-380(A)(6)(e) (Supp. 1996). Substantial evidence is
neither a mere scintilla of evidence nor evidence viewed blindly from one side of a case, but rather is evidence which,
considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency
reached. S.C. Dept. of Mental Retardation v. Glenn, 291 S.C. 279, 353 S.E.2d 284 (1987). The reviewing body cannot
substitute its judgment for that of an administrative agency when the agency's factual findings are supported by substantial
evidence, even though reasonable men might draw two inconsistent conclusions from the evidence presented. Lark v.
Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 307 (1981).
III. Application of Standard of Review to the Facts
The allegation before the Board was that "[t]here was removal of Nubain from the Pyxis machine but no documentation of
administration of Nubain to a patient." Complaint p. 1. The record establishes by stipulation that Anonymous Nurse
removed the drug Nubain from the drug-dispensing machine on the evening of December 25, 1994. Transcript page 12-13.
Accordingly, the only factual element in dispute is whether Anonymous made any "documentation" of the Nubain use.
More precisely the issue is whether Anonymous Nurse failed "to make or keep accurate, intelligible entries in records as
required by law, policy and standards for the practice of nursing."S.C. Code Regs. 91-19(c)(3)(j) (Supp. 1996).
The record demonstrates Anonymous Nurse made no documentation of her use of the Nubain.(1) Anonymous Nurse did not
present to the Board any evidence showing she recorded anything in the hospital records identifying how she used the
Nubain. Rather than documentation by entries in hospital records, Anonymous Nurse argued she physically gave the
Nubain to the Charge Nurse at the change of shifts. The difficulty with this argument is two fold.
First, the allegation of the transfer to the Charge Nurse, even if proven, does not establish documentation by "accurate,
intelligible entries in records" of how Anonymous Nurse used the Nubain. Rather, and on the contrary, the record does not
show any documentation of the use of the drug. Second, the record contains substantial evidence refuting the view
espoused by Anonymous Nurse. The Charge Nurse testified that she never received the Nubain and no other testimony was
entered in the record to oppose the Charge Nurse's statement. Transcript p. 14 - 15.
The record also establishes that notations of the use of withdrawn drugs are required entries in the hospital records and are
thus entries "required by law, policy and standards for the practice of nursing." The Charge Nurse testified that hospital
policy was that withdrawn but ungiven drugs are required to be either returned to the drug-dispensing machine or are
required to be "wasted" with a waste report written. Transcript p. 14 - 15. Here, Anonymous Nurse never asserts she
returned the drug nor that she entered a "waste report." Accordingly, the substantial evidence supports the Board's
conclusion that Anonymous Nurse failed to enter records of the Nubain use and that such a failure violated required policy
and standards for the practice of nursing. Thus, the Board properly imposed a private reprimand and a $600 fine.
IV. Order
IT IS THEREFORE ORDERED that the decision of the Board of Nursing is hereby AFFIRMED.
________________________________
RAY N. STEVENS
Administrative Law Judge
This 18th day of September, 1997.
Columbia, South Carolina
1. While Anonymous Nurse implies additional evidence should be received by the Board, no persuasive basis exist for such a
position. First, the request to present additional evidence must be sought prior to hearing by the party applying to the court
for permission to present the additional evidence and explaining why the evidence was not submitted below and why the
evidence is material. S.C. Code Ann. 1-23-380(A)(4) (Supp. 1996). Here, no request was made before this case was heard.
Further, Anonymous was ordered on April 2, 1997, (well before the September 8, 1997 hearing date) to identify any
additional documents Anonymous Nurse sought to add to the record by explaining why the documents were material and
why the evidence was not submitted to the Board. Anonymous failed to respond to the Order and thus foreclosed her plans,
if ever she had any, of seeking to present new evidence to the Board. See Cloyd v. Mabry, 295 S.C. 86, 367 S.E.2d 171
(1988); Byers v. S.C. Alcoholic Bev'g Cont'l Comm., 305 S.C. 243, 407 S.E.2d 653 (1991). |