Revocation of nurse's license overruled by courts.

CASE ON POINT: Alabama Board of Nursing v. Peterson, (06/29/2007) So.2d -AL

ISSUE: Was revocation of this Alabama nurse's license legal?

CASE FACTS: The Alabama Board of Nursing (Board)revoked the license of Amber Peterson, a Licensed Practical Nurse (LPN). Nurse Peterson appeared only to state that site would not participate in the hearing because she could not afford to pay for an attorney to represent her. She did not stay for the hearing and left the premises. However, the Board proceeded to hear the case involving the revocation of Nurse Peterson's license. Cathy Boden, a nurse consultant employed by the Board, testified that the Board had licensed Peterson as an LPN in February 2003, but that Peterson's license had lapsed on December 31, 2003. She further testified that in 2005, Peterson applied for reinstatement of her lapsed license. Boden testified that Peterson's application was returned to her on June 9, 2005, due to questions regarding whether Peterson had satisfied continuing-education requirements. After Peterson resubmitted her application, the Board reinstated her LPN license on June 29, 2005. Evidence was presented that Sunrise Healthcare Management (Sunrise Healthcare), located at DeKalb Baptist Medical Center, hired Peterson to work as an LPN, beginning in "late June 2005." Further evidence revealed that on June 27 and 29, 2005, Peterson attended a "general hospital orientation" for new employees at the hospital. Further, evidence was presented that the title "LPN" was handwritten beside Peterson's name under the heading "title/license." Boden testified that the signin sheet indicated that Peterson had been employed at the hospital before the Board had reinstated her LPN license on June 29, 2005. The Board also submitted a payroll register indicating that Sunrise Hcalthcare had paid Peterson for 32.75 hours of work during the pay period ending on July 2, 2005. Peterson's "job code" on the payroll register was listed as "IILPN." A monthly employee schedule submitted by the Board indicated that a Sunrise Healthcare employee identified as "Amber" had been scheduled to attend orientation on June 27-29, and July 1, 2005. On April 24, 2006, a hearing officer found that Peterson had been employed as an unlicensed LPN by Sunrise Healthcare on June 27-28, 2005. The hearing officer concluded that Peterson, by working as an LPN without a license, had violated statutes and regulations and recommended that the Board revoke Peterson's license. The Board entered an order revoking Peterson's license. Peterson appealed the Board's order to the Montgomery Circuit Court. The court reversed the Board's order for revocation of the nurse's license. The Board appealed.

COURT'S OPINION: The Alabama Court of Civil Appeals all firmed the judgment of the Montgomery Circuit Court overruling the Board's revocation of the nurse's license. The court held, inter alia, that the Circuit Court could not receive evidence on appeal from the Board's order. However, the court concluded that the Circuit Court merely heard arguments from the Board's counsel and the nurse who represented herself, pro se. The court found that the Circuit Court's judgment, however, included as "facts" certain information that was never submitted into evidence at the Board's hearing. Consequently, the court concluded that the information never submitted at the Board's hearing reflected certain factual allegations made by the nurse in her arguments to the Circuit Court in her response to the Board's charges and in her notice of appeal to the Circuit Court.

LEGAL COMMENTARY: The court followed the rationale used by the Montgomery Circuit Court when it overruled the decision of the Board, which suspended the nurse's license. That rationale was that the Board's complaint against the nurse rested on its assertion that the nurse practiced or worked as an LPN on a lapsed license and/or held herself out as a "LPN." The facts of the case revealed that on June 27th and 29th, 2005, the nurse attended a new employee orientation at DeKalb Baptist Medical Center and signed the "sign-in sheet" as a "LPN." However, as the court observed the nurse's license was officially reinstated on June 29, 2005, a mere two days after she attended the firs! day of orientation. Further, the nurse had formerly been licensed in Alabama and her license merely had lapsed, and she had applied for reinstatement of her license a few days before attending the orientation. In addition, she had paid the necessary application tees and met all application requirements, making the procedure for reinstatement essentially complete. The lower court did not find that the nurse's behavior was in violation of Alabama law. The court concluded that the orientation "sign-in sheet" merely asked for her "Title/License," and she wrote down the title of the position for which she had been hired. The court found that the nurse had no intent to hold herself out as something she was not. At the time she signed the sheet, the nurse knew that her license was being reinstated. Most important, the nurse was not actually engaged in treating patients, but attending an orientation for newly hired employees at the hospital. That orientation was scheduled for June 27-June 29 and July 1, 2005. In fact, she was officially licensed at the time she attended both the June 29 and July 1,2005, orientation sessions.