Lead Opinion
Opinion by
Ann Marie Rafferty petitions for review of a State Board of Nurse Examiners order revoking her license. We reverse.
While Nurse Rafferty was on duty in the NeuroIntensive Care Unit of Thomas Jefferson University Hospital, a comatose patient under her care died.
This Court must affirm the decision of a Commonwealth agency unless there has been an error of law, a violation of constitutional rights or the decision is not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704.
The Board derived its authority from Section 14(3) of the Nursing Law,
Her violation was not repetitious, nor was there a contention or charge by the Board that Rafferty had ever been charged with any violation prior to this single incident.
This Court has defined willful under Section 14(3) as “an intentional, designed act and one without justifiable excuse. ’ ’ Leukhardt v. State Board of Nursing Examiners, 44 Pa. Commonwealth Ct. 318, 403 A.2d 645 (1979), citing Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 312 A.2d 402 (1973). We must conclude that a mere intentional act which results in a violation is not a “designed act” unless, by motivation, the act was intended to violate the regulation.
The Board found no deliberate or knowing violation, but merely acts which were deemed to deviate from accepted practice and which Rafferty, as a highly-qualified nurse, should have known and avoided. Those acts were errors of judgment which, on hindsight, were subject to severe criticism.
We, therefore, hold that the Board erred in finding substantial evidence to invoke Section 14(3) of the Nursing Law and revoke Rafferty’s nursing license.
Reversed.
Order
The order of the State Board of Nurse Examiners, dated December 28, 1981, is hereby reversed.
The patient in this case was considered brain-dead. While bathing the patient, Rafferty disconnected his respirator to cheek for spontaneous respiration. Patient did not respond and Rafferty reconnected him to the respirator. The patient subsequently suffered cardiac arrest and could not be resuscitated.
Rafferty was accused, of violating the Rules and Regulations of the Board, 49 Pa. Code §21.11(a)(l) and (4) and Section 21.13 (1) and (2). 49 Pa. Code §21.11 provides, in pertinenit part:
(a) The registered nurse assesses human responses and plans, implements and evaluates nursing oare for individuals or families for whom the nurse is responsible. In carrying out this responsibility, the nurse performs all of the following functions:
(1) Collects complete and ongoing data to determine nursing care needs.
(4) Carries out nursing care actions which promote, maintain, and restore the well-being of individuals:
49 Pa. Code §21.3 provides that:
The Board will ensure safe nursing services for the citizens of the Commonwealth. Embodied in this purpose are the following responsibilities:
(1) To establish safe standards for the preparation ■ of registered and practical nurses in approved educational
programs.
(2) To assure safe standards of nursing practice through examination and licensure of graduates of approved educational programs, through endorsement of registered and practical nurses from other jurisdictions, and through the regulation of the practice of nursing in this Commonwealth. ...
The Professional Nursing Law, Act of May 22, 1931, P.L. 317, as amended, 63 P.S. §224(3).
63 PA. §224(3).
While there are many items deemed to be deviations from what the Board considered to have been the standard of action expected of Kafferty, all of them stem directly from measures taken or not taken by her as a result of basically the one action of removing the respirator.
in fact, there is no suggestion, much less a finding, that the patient’s death following this episode was in any way caused or contributed to by petitioner’s acts which were characterized as misadventures by the Board. The Board in its adjudication stated:
*607 It was not alleged, nor is it material, that Respondent caused Patient Bai-tus’ death by removing the respirator or that she could have rescued him by immediately providing the proper care when she first witnessed life threatening arrithmyias [sic].
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. I cannot agree with the majority that in order to suspend or revoke a nurse’s license, the Board is required to find specific intent to violate the nursing regulations. Leukhardt v. State Board of Nursing Examiners, 44 Pa. Commonwealth Ct. 318, 403 A.2d 645 (1979) does not so hold and cannot be construed to support such a requirement. The majority’s holding allows a nurse guilty of a knowing and clear breach of an established hospital procedure to defend on the basis that in so acting contrary to proper medical procedure she/he did not intend to violate the Nursing Board’s regulations. Under such a burden to prove specific motivation, the Board would never be able to perform its disciplinary duties.
The majority, while conceding that nurse Rafferty’s behavior deviated from an accepted practice
I would agree that, in light of nurse Rafferty’s otherwise unblemished career, the penalty imposed by the Board in this case was harsh. I believe, however, that it was within the Board’s discretion and was supported by substantial evidence. I do not believe this Court should reverse. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704.