On appeal from a Final Decision of the Director, State of New Jersey Board of Nursing.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Payne and Sapp-Peterson.
Following an investigation by the Board of Nursing, on October 25, 2004 the Board filed an administrative complaint against John Odefemi seeking suspension or revocation of his license to practice nursing. According to the complaint, the action arose from an incident, occurring on March 11, 2000, at which time Odefemi was serving as a medication nurse at Greystone Park Psychiatric Hospital. At approximately 6:00 p.m. a patient "became upset after an argument with an employee." Odefemi prepared an injection of Thorazine and injected the patient with the drug, against the patient's wishes and while other employees restrained him. When medicating the patient against his will, Odefemi failed to follow Greystone's emergency administration of medication procedures. Thereafter, Odefemi improperly permitted the use of sheet restraints on the patient, an epileptic, for a period of two hours - a practice that Odefemi knew was forbidden. Additionally, he failed to prepare an incident report documenting the improper use of restraints, and he failed to notify supervisory personnel regarding the incident. According to the complaint, the patient "received injuries as a result of the March 11, 2000, incident including a black eye, bruising on his legs and an injured rib." Trial of the Board's complaint was scheduled for November 4, 2005.
On November 2, 2005, the administrative action was settled, and both Odefemi and his legal counsel executed a consent order in which Odefemi admitted that he improperly permitted the use of torn sheets to restrain a seizure patient by tying him to his bed for approximately two hours, failed to report the incident, and failed to notify his superiors. The order provided for the following sanction:
1. Respondent's license is hereby suspended for a three (3) month period, with the entire period of suspension stayed, pending respondent's successful completion of a nine (9) month period of probation.
The terms of probation, set forth in paragraphs two through twelve of the consent order required, among other things, that Odefemi perform nine months of actual employment as a nurse in a "non-clinical or structured clinical setting" and not in an environment where nursing supervision was unavailable. During that period of employment, he was required to submit a quarterly written self-assessment, together with a quarterly progress report from his employer, and he was required to complete a specified program of continuing education. If the terms of probation were violated, the order provided that "the stay shall be lifted and Respondent's license may be actively suspended in accordance with N.J.S.A. 45:1-21 and 22 pursuant to a provisional order of discipline which would be filed at that time."
Shortly after the consent order had been entered resolving the matter, by letters from counsel dated January 12, 2006 and January 25, 2006, Odefemi requested a hearing, indicating that he did not "understand the ramifications" when executing the consent order. Following consideration of Odefemi's motion to vacate the settlement and a cross-motion by the Attorney General to enforce the consent order, on August 16, 2006, the Board granted the Attorney General's motion, and in a written order it rejected Odefemi's argument that, as a Nigerian who spoke English as a second language, he lacked an adequate understanding of the settlement documents to have voluntarily and intelligently consented to their terms. The Board stated:
On [April 7, 2006], after an opportunity to consider the [State's] motion, Respondent's written response and the State's reply, the Board found Respondent's argument unpersuasive as the overwhelming evidence before the Board supported the proposition that Respondent had ample opportunity to discuss the terms of the settlement and to confer with counsel. Contrary to counsel's bald and unsupported claim of lack of understanding by respondent, Exhibit H [a copy of the consent order extensively annotated by Odefemi in English] demonstrates Respondent's thorough review of the Consent Order and his sophisticated understanding of its provisions including extensive requests for modifications through what counsel acknowledged as "Mr. Odefemi's comments." These factors, together with respondent's practice as a registered nurse, and representation by counsel throughout the proceedings, belie the belated and unsupported claim that he lacks a sufficient understanding of the English language to appreciate the meaning of the Order he signed.
Because Odefemi "had presented no compelling circumstances to vacate his voluntary agreement to settle the matter," the Board found that the consent order should be enforced. It specified that Odefemi's probationary period would commence upon service of the Board's order. Paragraph three of the order stated:
3. Respondent shall have ten (10) business days from the date of service of the within order, to demonstrate to the Board that he is complying with the terms of the Consent Order entered on November 9, 2005. Respondent's failure to demonstrate compliance shall result in the Board's request that the Attorney General bring proceedings to convert the stayed suspension to an active suspension through a Provisional Order of Discipline as set forth under paragraph 12 of the Consent Order.
On August 24, 2006, shortly after receipt of the Board's determination, Odefemi's attorney enclosed Odefemi's nursing license in a letter to the Deputy Attorney General representing the Board that stated: "Mr. Odefemi has agreed to tender his license effective August 26, 2006. So, ergo he will be suspended for the ninety (90) day period as previously negotiated and approved by the Board of Nursing." The Deputy Attorney General responded that, because the license suspension was stayed, Odefemi was required to comply with the terms of his probation, set forth in paragraphs two through twelve of the consent order.
Four months later, on December 27, 2006, counsel for Odefemi moved for relief from the consent order, stating that Odefemi had not worked as a nurse since February 2006, and although he had completed the training specified in the consent order, he had been unable to comply with the order's monitored employment provision, having applied for "at least" seven positions, and having been offered none, ...