July 10, 2008
IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF JOHN ODEFEMI, R.N., LICENSE NO. N0104691, TO PRACTICE AS A NURSE IN THE STATE OF NEW JERSEY.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, whereas an allegedly less qualified friend of Odefemi had been interviewed and hired. The letter continued:
While Mr. Odefemi has not been told directly that he has not been hired because of the restrictions placed on his license, it is clear that the monitoring requirements of the Consent Order have rendered him essentially unemployable. Given Mr. Odefemi's training, work experience and qualifications, there can be no other explanation for the decision by these potential employers [not] to consider Mr. Odefemi as a candidate for the positions for which he applied.
Counsel requested that the consent order be modified "to restore Mr. Odefemi's nursing license without restriction." In a certification accompanying the request, Odefemi listed the seven job applications he had made in the preceding year, all to nursing homes or extended care facilities: three in Cedar Grove, two in West Orange, one in East Orange, and one in Newark. He stated that none had called him in for an interview, and that most had not responded at all to his application. Odefemi stated additionally that he had applied for a position at St. Joseph's Hospital in Paterson, and that an interview had occurred, but that it had been terminated when he presented the consent order to the interviewer. In briefing filed on January 11, 2007, the Attorney General opposed Odefemi's motion.
After the motion was filed, Odefemi obtained employment as a nurse providing unsupervised, individualized, in-home care. Upon inquiry, the Board found the employment did not comply with the terms of the consent order. Additionally, on April 13, 2007, the Board denied Odefemi's motion. It stated:
An interview with a prospective employer which does not result in a job offer at one facility does not warrant the setting aside of the supervisory requirement. Respondent has not substantiated his claims and various factors may have contributed to another nurse receiving the job opportunity that respondent believed he was qualified to perform. Notwithstanding that this is the first disciplinary action against respondent, the offense was egregious. Respondent's conduct resulting in the disciplinary action alone could form a basis for a prospective employer to hesitate to extend an offer to respondent. Additionally, respondent has not provided evidence that he searched other nursing settings for prospective employment which include greater interactions with supervisors than the psychiatric unit that he worked in previously. . . . Respondent has failed at this time to substantiate his contention that the reporting requirement is unduly burdensome.
Odefemi has appealed from the Board's April 13, 2007 order.
On appeal, Odefemi claims that the Board's decision in his case was arbitrary and capricious in light of his evidence of "consistent, diligent efforts" to secure suitable employment and his inability to obtain it. He argues alternatively, that the Board should have accepted his offer to undergo a three-month license suspension or that it should have vacated the consent order and held a hearing in the matter. In respect to the latter claim, he states:
Appellant did not knowingly, voluntarily and intelligently consent to the entry of the Order as the Appellant did not fully understand the terms of the Order. More importantly, the Appellant did not validly waive his right to a hearing as the Appellant could not foresee that it would be impossible to satisfy the supervised employment provision of the Order, thereby effectively permanently ending his nursing career.
Odefemi claims as a consequence that the Board's denial of his motion to modify the order violated his substantive and procedural due process rights.
In reviewing this matter, we must accord substantial deference to the actions of the Board because of its expertise and superior knowledge with respect to nursing practice. In re License Issued to Zahl, 186 N.J. 341, 353 (2006). We can "interpose [our] views only where [we] are satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority." In re Polk License Revocation, 90 N.J. 550, 578 (1982).
Our review of the record in light of applicable law satisfies us that there was no overreaching on the part of the Board, whose conduct in disciplining Odefemi was in compliance with the uniform administrative procedures applicable to professional license revocation, suspension and other disciplinary proceedings set forth in N.J.S.A. 45:1-14 to -27. See N.J.S.A. 45:1-15 (providing that the uniform rules are applicable to the New Jersey Board of Nursing); N.J.S.A. 45:1-21c and -21e (permitting the suspension of the license of a professional who has engaged in gross negligence, malpractice or incompetence which endangered the life, health, welfare or safety of any person or who has engaged in professional or occupational misconduct); N.J.S.A. 45:1-22g and 22h (authorizing the Board to order additional training and practice under supervision). We further find no abuse of discretion in the Board's denial of Odefemi's motion for relief from the sanctions imposed by the consent order. We agree with the Board that evidence of Odefemi's good-faith efforts to comply with the supervised employment provisions of the order was exceptionally sparse, and did not support his claim that the supervision requirements of the consent order had rendered him unemployable or, at this point, created such a hardship that either of the remedies that Odefemi proposed was required.
We are satisfied that the terms of the consent order do not permit Odefemi to unilaterally determine to accept a three-month suspension of his license in lieu of completion of the required nine-month probationary period of supervised employment. In this respect, the State has a strong interest in assuring the health and welfare of its residents through regulation and supervision of licensed nurses. Cf. Polk, supra, 90 N.J. at 566 (recognizing interest in connection with licensing of physicians). In this case, the Board acted to safeguard the public by ordering that the discipline imposed upon Odefemi as the result of his professional misconduct include mechanisms designed to correct his professional failings and to avoid their repetition. That salutary goal would be undermined if Odefemi were permitted, without good cause, to avoid the conditions placed by the Board on his nursing practice by demanding, instead, a limited loss of licensure. While the Board may request the institution of proceedings to convert the stayed suspension to an active suspension through the mechanism of a provisional order of discipline, we have been cited to no authority, and we are aware of none, that would permit Odefemi to initiate that step.
Because we agree with the Board that Odefemi voluntarily and intelligently waived his rights to a hearing when he entered into the settlement of the disciplinary proceedings against him and executed the November consent order,*fn1 and we agree that he failed to demonstrate good cause for modification of that order, we find neither a violation of Odefemi's substantive or procedural due process rights in connection with this matter. In re D'Aconti, 316 N.J. Super. 1, 16-18 (App. Div. 1998).