Phillip W. Raines, R.N. VS Louisiana State Nursing Board

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NOT DESIGNATED FOR PUBLICATION STATE F LOUZSIANA COURT OF A PEAL ST UI FI CIR N0 ZO1 CA 1831 PHILLIP W RAINES R N VERSUS LOUISIANA STATE NURSING BOARD udgment rendered June 7 2013 i Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No C598207 Honorable William A Morvant Judge VICfOR H SOOTER ATTORNEY FOR LA ALEXANDRIA APPELLANT PLAINTIFF PHILLIP W RAINES R N E WADE SHOWS ATTORNEYS FOR JACQUELINE B WILSON BATON ROUGE LA APPELLEE DEFENDANT LOUISIANA STATE BOARD OF NURSING BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW 7 In this appeal plaintiff a register nurse chaiienges the decision of the Louisiana d State Board of Nursing Board to revoke his ursir license g For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On September 1 2000 Phillip W Raines Mr Raines was licensed by endorsement by the Board to practice as a registered nurse in Louisiana At all times pertinent hereto Mr Raines was employed at the Rapides Regional Medical Center Medical Center in Alexandria Louisiana By letter dated June 15 2009 the Board notified Mr Raines that it had received information that he had been arrested by the Alexandria Police Department for sexual battery of a patient Phillip Kotynia who had been assigned to his care while he was working as a nurse in the post care anesthesia unit PACU of the Medical Center It was alleged in the letter that Mr Raines on or about May 15 2009 upper thigh at about 4 15 M A while and abdominal areas while the patienYs penis in his mouth and patient on duty was in ed massag the patient s and out of sleep ed plac the ed plac his finger in the patient rectum while s asking if the patient liked what he was doing Subsequently the patient ran out of the hospital to get away from him The Board deEermined that Mr Raines conduct was a threat to the health safety and welfare af the cotizens of Louisiana and summarily suspended his license Thereafter by letter dated June 23 2009 the Board filed a formal complaint against Mr Raines accusing him of patient abuse along with other charges including incompetence by reason of negligence and moral tu On September 16 2009 the pitude Board ratified the June 15 2009 summary suspension af Mr Raines nursing license In a letter dated March 19 2010 the Board notified Mr Raines that it had information that he may have acted in violation of the Nurse Practice Act La R 37 S 911 etseq Particularly the letter detailed that when caring for the same patient Mr Raines falsified physician orders when he documented verbal orders without having received s orders or authorization from the physician failed to utilize the PACU protocol as required 2 for management and administration of inedicine for acute pain nausea and other side effects of anesthesia and surgery faileG to use gloves when handling the penis of a patient who was attempting tc use a uri and failed ta assure the safety of an eloped al patient when he did no timely or adequately seareh for the patient or nntify the house supervisor that the patient was m 6y etter dated Aprif 8 2010 an amended and g ssir supplemental complaint was sent to Mr RainES c tnese additional allegations as utVining set forth in the March 19 2010 letter Following a hearing on December 6 2010 the Board found that Mr Raines had violated the Nurse Practice Act and that the evidence presented constitutes sufFicient cause pursuant to La R 37 to revoke Mr Raines license to practice as a S 921 Registered Nurse in Louisiana In a Order dated December 15 2010 the Board Final ordered that Mr Raines license be permanently revoked and that he surrender his license to t h e B oa rd staff refrain from working in an y ca p acity as a re g iste r ed nurse and pay a fine of 4 and costs of 6 within 12 months 00 000 00 000 On January 12 2011 Mr Raines filed the instant petition for judicial review of the s Board decision pursuant to the Administrative Procedure Act APA La R 49 S 950 et seq in the Nineteenth Judicial District Court Following review by the district court judgment was signed January 10 2012 affirming the decision of the Board Mr Raines now appeals to this court presenting the followin issues for our review 1 Whether the Board vote for revocation for Mr Raines license was s lawful and in accordance with full compliance with implementing legislation and the APA 2 Whether the Board improperly considered evidence resulting from a deprivation of Mr Raines constitutiona9 rights violations of his 5th and 6th amendment privileges 3 Whether the Board should have applied an adverse presumption to testimony due to the intentionai destruction of evidence spoiiation 4 Whether the Board action was arbitrary capricious and contrary to s the law and evidence 3 LAW AND ANALIPSIS Standand ofReview Judicial review of adminive decasit s vvern by La R 49 which ra st ns ci S 964 provides in pertinent part G The court may affirm the decisiol of th agency or remand the pr4ceedings The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced case for further because the administrative findings inferences conclusions or decisions are 1 In violation of constitutional or statutory provisions 2 In excess of the statutory authority of the agency 3 Made upon unlawful procedure 4 Affected by other error of iaw 5 Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion or 6 Not supported and sustainable by a preponderance of evidence as determined by the reviewing court In the application of this rule the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review In the application of the rule where the agency has the opportunity to judge the credibility of witnesses by first observation of demeanor on the witness stand and the hand reviewing court does not due regard shall be given to the agency s determination of credibility issues When reviewing an administrative final decision khe district court functions as an appellate court An aggrieved party may obtair a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal On review of the district court judgment no deference is ouved by the court of appeal to the factual s findings or legal conclusions of the district court just as no deference is owed by the Louisiana Supreme Court to factual fndings or legal conclusions of the court of appeal Consequently this court will conduct its own independent review of the record and apply the standards of review provided by La R 49 Doc Clinic APMC v S 964 s G State ex reL Dept of Health and Hospitals 2007 pp 8 La App 1 Cir 0480 9 07 2 11 984 So 711 718 writ denied 2007 La 2 974 So 2d 719 2302 08 15 2d 665 See also La R 49 An appellate court sitting in review of an administrative S 965 4 agency reviews the findings and decision of the administrative agency not the decision of the district court Smith v State Dept of Health and Hospitals 39 p 4 368 La App 2 Cir 3 895 So 7 739 nrr d 2005 La 6904 Q5 2 25 tdeni 110s 05 17 2d So 70L The grounds for discipiinary proce af r gs di gistered nurses are set out in La S 921 R 37 which provides in pertinent part The board may deny revoke suspend probate lomit or restrict any license to practice as a registered urse or an advanced practice registered nurse impose fines and assess osts or otherwise discipline a licensee and the board may limit restrict delay or deny a student nurse from entering or continuing the clinical pf of nursing education upon ase proof that the licensee or student nurse 3 Is unfit or incompetent by reason of negligence habit or other cause 8 Is guilty of moral turpitude Other causes that may render a registered nurse unfit or incompetent have been delineated by the Board in La Admin od Title 46 Part XLVII A 3405 in pertinent part as follows includes OtherCause but i r i ot mitFd ta a failure to practice nursing in accordance wb the iegal standards of h nursing practice b possessing a physica iw or m impairment which t npairme nEa interferes with the judgment skilis or abiloties required for the practice of nursing c failure to utilize appropriate judqment d failure to exercise technical competence in carrying outnursing care e violating the confidentiality of information or knowledge concerning the patient f performing procedures beyoi the authorized scope of nursing or any d specialty thereof g performing duties and assurning responsibilities within the scope of the definition of nursing practice when competency has not beer achieved or maintained or where competency has not been a or maintained in hieved a particular specialty 5 h improper use of drugs nnedica3 suppiies or equipment patient s records or other items i misappropriating items f an inc a or entity al iuid ency j faEsifyiEig rECOr s k failure to act or negEigentiy u il cammitking any act that llt fa adversely affecks thE physica4 r sycnosociai vPlfare of the patient I delegating or assigning nursing care functions tasks or responsibilities to others contrary to regulations m leaving a nursing assignment without properly notifying appropriate personnel n failing to report througf the proper channels facts known regarding the incompetent unethical illegal practice or suspected impairment due from to controlled or mood altering drug5 alcohol or a mental or physical condition of any healthcare provider o failing to report to the board one s when one performs or s atus participates in exposure procedures and os known to be a carrier of prone the hepatitis B virus or human immunodeficiency virus in accordance with LAC 46 4005 XLVII p has violated a rule adopt bp the board an order of the board or a d state or federal law relating ro the practice Qf rafessional nursing or a state or federal narcotics or controlled substan efaw q inappropriate incomplete or improper documentation r use of or being under the influence of alcoholic beverages illegal drugs or drugs which impair judgment while on duty to include making application for employment s failure to cooperate with the board by i not furnishing in writing a full and ccmplete explanation covering a matter requested by the board ar ii not providing information documents reports evidence records or any other requested items withir the designated time period to the board office as requested by the board staff iii not responding to subpoenas dssued by the board in connection with any investigation or hea ing iv not completing evalua equired by the board ions t exceeds professionaf boundaries induding b not limited to sexual t misconduct u use of any advertisement or solicetation which is false misleading or deceptive to the gener8l public or persons to whom the advertisement or solicitation is primarily directed 6 v attempted to or obtained a lieens mmciuding renewals permit or permission to practice as a registered nurse nurse applicant or student nurse by fraud perjury deceit r misrepresentation w false statement on application x failure to camply with a ay eEr n he baard ent ith The Boards Findings The Board after holding a t in chis matter found Mr Raines to have violaked idI the Nurse Practice Act in five respects 1 that he v urifit or incompetent by reason of as negiigence habit or other cause La R 37 2 that he was guilty of moral S 921 3 turpitude La R 37 3 that he had faifed to practice nursing in accordance S 921 8 with the legal standards of nursing prac LAC 46 4 that he had failed sce a 3405 XLVTI to act or negligently or willfully committed an act that adversely affects the physical or psychosocial welfare ofthe patient LAC 46 kand 5 that he had exceeded 340S XLVII professional boundaries including but not limited to sexual misconduct LAC t 3405 XLVII 46 Barbara L Morvant Executive Director of the Board issued findings of fact and conclusions of law in pertinent part as follows FINDINGS OF FACT On or about the night shift of May Y4 2009 through May 15 2009 for Patient PK a post em appendectomy patient operac6ve ryency Respondent A Deviate from hospital tocol pr when Respondent documented verbai orders as foliows At 0230 documente admir fi Fentanyl SO mcg per AStration verbal order At 0235 documer adm Qf Fentanyl 50 mcg per ted r ration is verbal order At 0255 documented administration of Demerol 25 mg per verbal order At 0255 documented administration of Phenergan 12 mg 5 per verbal order At 0315 documented administration of Fentanyl 50 mcg p r verbal order At 0320 documented administration of Fentanyi 50 mcg per verbal order At 0330 documented administration of Fentanyl 50 mcg per verbal order and At 0335 documented administration af Fentanyl 50 mcg per verbal order 7 B Failed to utilize the PACU protocol as required for management of a medicatgo administration for acute pain nd nausea and other side effects fanesthesia ana sugery as follows ough Alc th p eafie fNlcrphine to be used prior to oi otcc using Remera arrd tfl ad Deraiorol 10 mg N x one rister V may repeat eueoy 3 a x titrated to responsz tes sa At 0233 remUVed t 25 mgrri YV from Pysis machine i r em B 5 out of prUtc seau and ak more tl dou of the coR i a raie protocol dose at 0255 documented administration of the Demerol without first attem the use of Morphine Sulfate teng and failed to document justification for using Demerol and At 0342 removed Fentanyl 50 mcg from Pyxis machine 3 13 1 and at 0335 documented administration of the medication C although the maximum limit of 250 mcq of Fentanyl administration per protocol had already been met and failed to obtain a physician s order as required for the additinnai Fentanyl 50 mcg administered at 0335 D By Respondent own admission failed to administer 0335 s dose yet documented status af relief at 0355 E By Respondent own admission s failed to use universal precautions when Respondent handled the atient penis without s gloves F Failed to assure the safet o an eloped patient when Respondent failed to timeiy and adequately search for the patient cr to timely notify the house nursing su or security personne of ervisor the patient elopement s G On or about May 15 2009 in the early morning at about 4 15 M A while on duty at Rapides Regi Medical Center in Alexandria nal Louisiana and assig to a patient recovering from emergency ed surgery Respondent committed patient sexual abuse by Massaging the patient upper thigh and abdominal area s while the patient was still in and out of sleep Placing the patient penis in Respondent mouth and s s s Respondent finger fn the patier rectum s t Asking the patient if the patient iiked what Respondent was doing to the patient Subsequent to RespondenYs actions listed above the patient fled he nursing unit in response to the abus n the same morning Respondent was arrested for Sexuai Battery Fondiing by the Alexandria Police Department On December 6 2 an administrative board hearing was held 1 The Board heard testimony and reviewed documents and evidence 8 CONCLUSTONS O LAW 1 That pursuant c a R 31 2t s2q the Board has S jurisdiction ver this matter 2 That Respondent vas properly ectified of the harges and date of hearing 3 That based on the oregoirsg F cf Fact Respondent ndings did violate La R 37 as fiollaws S 92P Respondent is unfit or incompetenk by reason of negligence habit or other cause La R 37 S 921 3 Respondent is guilty of moral turpitude La R 37 S 921 8 Respondent failed to practice nursing in accordance with the legal standards of nursing practice lAC 46 a 3405 XLVII Respondent failed to act or negligently or wilifully committed an act that adversely affects the physical or psychosocia welfare of the patient LAC 46 kjand 3405 XLVdI Respondent exceeded professionaf boundaries including but not limited to sexual misconduct LAC 46 t 3405 XLVII 4 That the evidence presented constitutes su cause cient pursuant to La R 37 to revoke Respondent license to practice as a S 921 s Registered Nurse in Louisiana Was the Board Vote Un s awfu Mr Raines argues that because the Board rules do not contain the required s number of votes to revoke or othe discipline a nurse licensee following the conduct vvise of a disciplinary h the Board vote to revok his lieense was unlawfiul and contrary aring s to law Mr Raines main that hecause the APA compels the Board to enact rufes and iins regulations pursuant to ts provisions the absen of any statement as to the requisite e vote for disciplinary ackions is a violatio of the APA The Board counters that neither the APA nor the Nurse Practice Act imposes an affirmakive duty upon the Board to promulgate rules regarding the num6er of votes needed to discipline a licensee 1Ne agree with the Board There are nine voting members of the Board See La R 37 With S 914 1 B regard to hearings by the Board La R 37 provides in pertinent part as follows S 922 A Upon the filing of a sworn complaint with the board charging the violation of any of the provisions of this Part the executive director of the board shali fix a time and place for hearfng and send by registered maif a 9 copy of the eharges tagekher witn a not f iihe time and place for ce hearing to the individual accused at feast ten days prior to the date set for the hearing The notice shall be mail to tne iast known address of khe d individual accuse as it ears a pn th secaR of th board ds The executive director may a a co of three or more board pi ane9 sdstlny members to hear the es char f nc pas has been ap the el ointed charges shali be heard by nc iess trman a Gu Qf he oard members um r Pursuant to LAC 46 f Dj 3307 II XL1 v rn rs ir mb pi gone officer shall constitute a quorum of the board for the purpose of conducter uswless g According to the reGord hereir ther was roo panel appoir to hear Mr Raines ted case Thus a quorum was required The transcript of Mr Raines December 6 2010 Board hearing reflects that in fact eight of the nine voting members were presenk clearly a quorum The actual vote on Mr Raines case took place at a December 8 2010 Board meeting According to the minutes from that meeting seven of the eight Board members more than the five necessary to canstitute a quorum who had heard Mr Raines case were present ana voted on the act Four of the seven a clear on majority of the Board members vot voted in favor f revoking Mr Raines nursing ng license We find this action by the majority of he sev voting Board members to be n IawfuL Did the BoardErr in Denying hfr Raines in Limine n Moti Prior to the Decemb 6 lQ nearing 4 F feled a motion in limine r r ir es seeking to exclude the testim and wriifen statement of Clyde armouche an ny investigator with the Rapides Parish District Aktorney Office he Board denied the s motion On appeal Mr Raines alleges tha any statement he made to Mr Carmouche a t former co and fellow church member of his should not have been considered worker by the Board because Mr Carmouche failed t acivise him of his constitutiona rights before any purported confession occurred The Board maintains t it did not err in a denying the motion in limine because the applicable law does not e t4 ctend e exclusionary rule to administrative actiQns sucn as this and because the evidence reveafs that it vvas Mr Raines who initiated the phone call to Mr Carmouche and sought his advice We agree with the Board decisior on the metron in limine s l0 In Miranda v Arizona 384 U 436 36 S 1602 16 L 694 1966 Ct 2d Ed the United States Supreme Cuurt held that a s subject to ustodial interrogation ect has the right ta cansult with an attorney nd to have counsel present during questioning and that the police rnust explei this r to him before questioning ght begins Miranda 384 U at 469 86 S at 1625 The Fifth Amendment S 473 t 1627 right identified in Miranda is the right to have counsel present at any custodial interrogation Edwards v Arizona 451 U 477 485 SO1 S 1880 1885 68 S 486 Ct 2d Ed L 378 1981 Of importance to the present case the Supreme Court in Miranda explained what is meant by custodial interrogation b custodial interrogation we y mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way Rhode Island v Innis 446 U 291 298 100 S 1682 1688 64 L 297 S Ck 2d Ed 1980 citing Miranda 384 U at 444 86 S at 1612 emphasis added The S Ct concern of the Court in Miranda was that the interrogation environment created by the interplay of interrogation and custody would subjugate the individual to the will of his examiner and thereby undermine the rivilege against compulsory self incrimination Rhode Island 446 U at 299 100 S at 1688 citing Miranda 384 S Ct S U at 457 86 S at 1619 458 Ct In McNeil v Wisconsin 501 U 171 11 S 2204 i1S LEd 158 S Ct 2d 1991 the Supreme ourt described the Miranda ri to counsel a Edinrards ht follows The purpose of the Edwards Miranda guarantee is tc protect a quite different interest the suspecCs aesi to deal ith the police oniy through counsel e McNeil 501 U at 178 111 S at 2209 l Court went on to say that the S Ct he invocation of that guarantee requires at a minimum Some statement tnat can reasonably be construed to be an expression of a desire far the assistance of an attorney in dealing with custodial interrogation by the poiice Id Because the presence of both a custodial setting and official interrogation is required to trigger the Miranda right prophylactic absent one or the other Miranda is not counsel to implicated See Miranda 384 U at 477 86 S at i629 Illinois v S 478 Ct 1630 ll Perkins 496 U 292 297 il S 2394p 2397 110 d 243 1990 It is the S Ct 2d premise of Miranda that the danger of coercion results frorn the interaction of custody and official interrogatior In this t insza case Mirancfa was arly c ot r d t lic m 6 Mr Carmouche testified that he received a phone eall at his ec ir y Mr Raines on May 7 me itiated 2009 at around 6 a at which time Mr Raines freely discussed in detail his 30 m arrest and the allegations against him Hfter sharing the facts of the incident in question Mr Raines indicated to Mr Carmouche that when he had been questioned by the police he had said that nothing happened He then asked Mr Carmouche s advice about whether he should go to the police and tell them what had actually happened In response Mr Carmouche told Mr Raines Inot going to give you any m advice on that You need to get you an attorney and let him advise you what to do Mr Raines then asked Mr Carmouche if he could recommend an attorney to him Mr Carmouche gave Mr Raines the name of an attorney and that was the e of ent their conversation Contrary to Mr Rain argunnents on appeaf the statements he made to s Mr Carmouche were given freely and voluntariiy in a call tfnat he initiated There ne h was no custodiaf setting and certai no Offcial interrogatian that woufd have ly triggered the need for Miranda warrrings given these facts and circumstarces Accordingly the Board did not err in denysng the mo in limine ian Adverse Presumption Based on Spo ofEvidence iation Mr Raines argues that the Board should have applied an adverse presumption to the testimony of Mr Carmouche based on the doctrine of spo We note at the ietion outset that during the hearing before the Board counsel for Mr Raines never requested that an adverse presumption be given because of this alleged spoliation of evidence As a general rule appellate courts may ot address issues raised for the first time on appeal lackson v Home Depot Inc 2004 pp 6 La App i Cir 6 1653 7 05 10 906 So 721 725 Accordingly we conclude that this issue is not properiy before this 2d court 12 However even assumin this issue was preserved for appellate review we find no error by the Board in not applying an adverse resumption ko Mr Carmouche s testimony Under the theory of spolfat9on f evidence an adverse Pvidentiary presumption may arise hen there is an 6 destr Qf eviden for the rtentionad ctior e purpose of depriving an opposing arty of it se Lewis v Albertson Tnc 41 s 234 p 5 App 2 Cir 6 935 So 77i 774 writ denied 2006 La La 06 28 2d 1943 06 09 11 941 So 42 2d Generally a litigant failure to produce evidence that is s available to him raises a presumption that the evidence would have been detrimental to his case However when the failure to produce the evidence is adequately explained the presumption is not applicable Wilhite v Thompson 42 pp 6 La App 395 7 2 Cir 8f15 962 So 493 498 writ denied 2La 2 976 So 07 2d 2025 07 08 15 2d 175 Mr Carmouche testified that after his phone conversation with Mr Raines he discussed the call with his boss James Downs the District Attorney for Rapides Parish Mr Downs advised him to make some notes in case anything is needed later down the road in case he called for anything in case anything happens s Mr Carmouche stated that he made a few notes on a tabiet and put them up He further indicated that approximateiy one month later he took thos notes and handwrote a three page statement about the conversation with Mr Raines which was introduced into evidence by the Board at the hearing Mr Carrnouche was thoroughly questioned during the hearing by Mr Raines counael about nis notes his handwritten statement and his decision to throw his original notes away Mr Carmouche testifed that after he used his original notes to write his statement he thre ti notes away When asiced if he v e felt the need to hol onko those notes Mr Cermouche replied No I know wf he at told me Mr Carmouche expiained that he had reasons for not writing out a statement when he first received the phane cal from Mr Raines Mr Carmoucfne stated Like I said Mr I I used to attend church together To me this aines and came out to be more of a moral issue with me not a legal issue between me and my job This was a moral issue 13 Certain things came a Things were being sa that I was cUt a told And that why I decided to wrdte tnis and come forward with it s It was my nderstanding that Mr Ra was tefling pe that he nes ple was set up that these were false accusat and other things ans He was still bei involved in a iot of thinc in our Sunday school ng s class and different things And I was uncomfortable with it In that capacity I just fthat som peopfe were being snowballed lt And it something I did a lot of praying about and everything eise before s I ever wrote this And it was like I said it was a moral and spiritual issue to me It was never nothing to do anything harmful to Mr Raines or anything It was a moral issue with me And i felt an obligation to the victim in this too Initially we note that Mr Carmouche is not a litigant in this proceeding but rather simply a witness In that vein it can be argued that tfne doctrine of spoliation would not even apply to him Nonetheless there is nothiny in the record to suggest that he destroyed his original notes with any untoward intent Rather he oniy threw them away after replacing the notes with a more detailed statement which was made available to Mr Raines by the Board Furthermore there is no evidence in the record to support a finding that Mr Carmouche was acting or the Baard hehalf when he threw away his s notes after writing out his three statement Finally Mr Carmouche was present at page the hearing testified at great fength about the conversakion he had with Mr Raines and his written statement regarding same and was thoroughly cross by counsel for examined Mr Raines Thus the record supports a finding that the absence of Mr Carmouche s original notes does not warrant the application of an adverse presumption under the doctrine of spoliation 14 Was The Board Action Arbitrary Gapricious and Contrary to the Law and s Evidence On appeal Mro Raines argues th the charges agairis him are not supportable by at the evidence in the record that na har cao t he patient and that the charges are re not justification for the revocatio of ursiny I We fir no snerit to Mr Raines ense d arguments in this regard As the district court correctly noted below a reviewing court role in a judicial s review of an adjudication is limited by La R 49 S 964 G Again 964 my limits I can substitute my opinion for that of the G t board when the decision of the board is based on the credibility of witnesses who testify before it And the evidence and testimony in this record as welf as the conflicting testimony of Nurse Raines and the patient all revolve around a credibility call which the board resolved against Nurse Raines in this particular case And I cannot say after reviewing this record that the deeision of the board in revoking Nurse Raines license was arbitrary and capricious or that it was contrary to the law and evidence because I think that the record was replete with evidence which if accepted as true by the board would support its decision in revoking the license And I think that there is ample evidence in the record that supports that decision I have no idea what did or what did not transpire on that day and I not called at this point to m make that determination My role is to lo at this record under 964 ak G and make sure that it is supported by evedaa testimony and that ce G 964 the factors have been complie weth d As again based on this record I don find a basis to modify ko reverse or to change in any way t the decision of the board Mr Raines argument on appeal with regard to the charges against him is focused on the credibility calls made by the Board after hearing the evidence presented to it As correctly pointed out by the Board in its appellate brief t proc2dure set forth in La he S 964 R 49 specifically does not envision that credibility calls be reversed on a cold G record by a reviewing court but rather mandates Ehat due regard must be given to the agency determination of credibility After a thorough review of the testimony and s evidence presented to the Board in this case we arQ unable to say the Board erred in either its findings of fac decision or the ackion taken There is a reasonable basis in the record for concluding that Mr Raineso on numerous occasions falsified physician orders s by documenting verbal orders without having received orders or authorization from the physician failed to utilize PACU protocoi for the managemen of and medicakion t administration for acute pain nausea a other side effects of anesthesia and surgery nd 15 failed to use universal precautions wr providsnq assistance to a patient who was en attempting to use a urinal without v gloves failed zo assure the safety of an aring r eloped patient and committed sexual abuse of a patient The Baard sdecision to revoke Mr Raines nursing iicense was neither arbitrary raor capricious and was fully supparted by the evidence and the law DECREE For the above and foregoing reasons we affirm the January 10 2012 judgment of the district court and assess all costs associated wlth this appeal against plaintiff Phillip W Raines AFFIRME0 6

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