Jonea Krystal Lynn Thigpen VS Louisiana State Board of Nursing
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STATE OF LOUISIANA COURT OF APPEAL FIRST' CIR UIT N0. 2013 CA 0841 JONEA ftYSfAL LYNN THIGPEN VERSUS LOUISIANA STATE BOARD OF NUftSING udgment rendered . [' F Appeaied from the 19th Judicial D° astriet Court A^ rv in and for the Parish of East Baton Rouge, Louisiana Trial Court No. 608, 728 Honorable Todd Hernandez, Judge PRO SE ONEA KRYSTALLYNN THIGPEN BATON ROUGE, LA PLAINTIFF-APPELLFINT CARRIE LEBLANC JONES ATTORNEY FOR BATON ROUGE, LA f FENDANT-APPELLEE I_ OUISIANA STATE BOARD OF NURSING BEFORE: cC,, PETTIGREW, McDONALD, AND McCLENDON, JJ. J C tGr J / s' , PETTIGREW, J. The plaintiff, Jonea Krysta! Lyrr Thfgpen ( fMs. Thigpen), licensed by endorsement to practice as a Registered Nurse ( RN) in Louisia na, appeals a trial court judgment which affirmed an Amended Final Order af the Louisiana State Board of Nursing ( Board). The Board' s order found that Ms. Thigpen violated provisions of the Louisiana Nurse Practice Act, La. R. S. 37: 911 et seq., revoked her nursing license for nine months, and imposed other conditions -- following completion thereof, that she would be given the opportunity to apply for a reinstatement of that license. For the reasons that follow, we amend the order to etiminate a prohibitory condition, and as amended, affirm. FACTS AND PROCEDURAL HISTORY Background Facts Leading to Investigation Ms. Thigpen was licensed by the Board by endorsement to practice as an RN in Louisiana on October 10, 200L1 On or about November 3, 2010, the Board received a written compiaint submitted by K. K. S., the daughter of W. K., a patient receiving home nursing care from Ms. Thigpen. K.K.S. reported that Ms. Thigpen was ° taking advantage of my father [ W. K.] by convincing him to give her large amounts of money." Attached to the complaint form, K. K.S., who stated she was also an RN, attached the following list of alleged incidents, supporting her claim that Ms. Thigpen was " consistently and continuously ... acting in a capacity beyond the authorized scope of nursing". 1. She has a glass of wine in the evenings with patient[;] 2. She brings her personai and business - paperwork to patienYs home to work on while she is caring for the patient[;] 3. She writes and signs checks from patient`s personal checking account, includfng payroll for workers that she has rnntracted, although she is not listed as a signer on the account[;] 4. She has conVinced patient to lend/ gift her with money, office supplies, uniforms, refrigerator for medications, fax machine, laptop computer, file cabinets, as well as paying for rent for her office[;] 5. She has obtained a key to patienYs home as well as to his cabinet containing his checkbook. We note that in several of the pleadings contained in the record and also in the final order of the Board, the year of Ms. Thigpen' s licensure is incorrectly stated as 2010. However, the license itself is contained in the record confirming the correct year to be 2001. 2 The Board promptly initiated an investigation of the allegations. Subsequently, it sent a letter informing Ms. Thigpen of the information it possessed that indicated she may have exceeded professional boundaries in vioiation of the Nurse Practice Act from February 2010, to the present. Ft aiso ffered h r an opportunity to reply within ten days of the letter, with a written explar ation and suppor ing documentation to show compliance with all lawful requirements for the retention of her license. Ms. Thigpen' s Position Ms. Thigpen replied in a lengthy letter to the Board, in which she admitted receiving the amounts detailed above and that those payments were not for services rendered. She stated they were donations from W. K. to her company, Care Coordination Center; and that both she and W.K., who was Chairman of the Board for her company, thought" it was perfectly legal to donate to a company as long as you reported it on your taxes as a donation and gave a statement of the donations." Attached to her letter, she submitted the bank statements for her company, showing all deposits and expenditures. She also admitted to using W. K.' s credit card, but asserted that it was not for her own personal use, but was used with his permission, to pay for some of her company's expenses. She denied creating or falsifying any aocumentation for services rendered, explaining that when the investigation at her office was done, her office was also conducting its own internal audit. Unwittingly, she did not include some of the backup supporting documentation for certain dates; but, she later found and submitted the proper documentation. With regard to the incidents of drinking wine with the patient, Ms. Thigpen again did not deny that on a few occasions, during the after- hours discussions about the business, W.K. had a 1/ 3 glass of wine, and she had a glass. She asserted, however, that this did not occur during any professional nursing visits, She further stated that she and W.K. " both thought that as co- owner and silent partner, chairman of the board, and aside from our nursing visits, that this was ok and perfectly iegal." 3 She further explained that she met W.K. before she became his nurse,Z and due to his experience as a retired business owner, he was a great source of business advice to her regarding the opening of her own business. She stated W.K, told her he wanted to do something good for other people, that he believed strongly in the concept of the service her company would be ofFering the elderly, and that he offered to invest in the company but wished to be a silent partner. He ultimately agreed to be the Chairman of the Board of Directors for the company, continued to be involved in every step of the business, and she discussed all purchases for the company with him. She stated that she could not have started her business without the help of W.K. However, she also acknowledged that, notwithstanding the potential charges against her, she has not had any personal financial gain from the company, submitting evidence that her " annual pay" actually dropped after she started her own company. Finally, she provided her detailed medical history and documentation to explain her intake of prescription pain medications. She asserted the medications were taken all under the direction and supervision of her treating physicians, and denied any abuse thereof. She also stated that her taking those medications did not have any negative impact on her ability to perform her nursing duties, and that in all of her years of nursing, there were no complaints of her having been impaired. Formal Complaint by the Board On July 19, 2011, the Board formally filed a complaint and charged Ms. Thigpen with violating the Nurse Practice Act and the rules and regulations promulgated pursuant thereto. In particular, the Board charged Ms. Thigpen with exceeding professional boundaries and unduly obtaining financial benefit from the nursing- patient relationship by accepting large sums of money from her patient and conducting increasing numbers of z Ms. Thigpen was the home health nurse assigned years ago to care for W. K.' s wife until her death approximately three years prior to the administrative hearing in this case. 4 visits patient without justified patient need. Th particulars of these charges are summarized as follows: 1) On or abaut 2/ 23/ 10, she accepted $ S, OOQ. QO from patient W. K. 2) On or about 4/ 26/ 10, she accepted $ 5,!GQQ, f 3) On or about 5/ 4/ 1Q, she accepted $ 5, 577. from patient VIi IK. rflm patlent W. K. 4) On or about 6/ 3/ 10, she accepted $ 5, 525A0 frvm patient W. K. 5) On or about 7/ 20/ 10, she accepted $ 600. 00 from patient W. K. 6) On or about 8/ 20/ 10, she accepted a donation in the amount of $ 1200. 00 from patient W. K. 7) On or about 10/ 1/ 10, she accepted $ 700. 00 from patient W. K. The Board asserted the foregoing payments were not for services rendered. Additionally, the Board asserted that on July 10, 2010, August 4, 2010, September 1, 2010, and October 1, 2010, Ms. Thigpen billed and accepted payments of $920. 00, $ 910. 00, 743. 83, and $ 2275. 00, respectively, for services purportedly rendered, but that she lacked documentation to support all of those charges and that many of those were for services rendered while the patient, W. K., was in the hospital, already receiving inpatient nursing care. The letter also informed Ms. Thigpen that during February 2010 through October 2010, she exceeded professional boundaries by having glasses of wine during nursing visits at the home of patient, W. K.; and, that during April 2010 through January 2011, she exceeded personal bouridaries by repeatedly using the credit card belonging to patient, W. K., for her own personai use. Finally, the Gomplaint charged Ms. Thigpen with the " chronic use of controlled medications [ that] may. potentially affect [ her] ability to safely practice nursing." The complaint further stated that the facts constituted the following violations of the Nurse Practice Act and the rules and regulations promulgated by the Board: Respondent is unfit or incompetent by reason of negligence, habit, or other cause; La. R. S. 37: 921( 3); Respondent is guilty of moral 37: 921( 8); 5 turpitude. La. R. S. Responder t fail d o practice nursing m accordance with the legal standards of nursing ,p ac'tice L.A.C. 46:XLVII. 405( a); Respondent faiOed to utili e appr priat judgment; L.A.C. 46: XLVII. 3405( e); Respondent misa propriated item s of an individual, agency, or entity; L.A.C. 46.XLVYI, 405( i) Respondent falsified records; L.A C. 46iXLVII.3405( j;; Respondent failed to act, or negiigently or wilifully committed an act that adversely affects the physical or psychosocial of welfare the patient; L. A.C. 46: XLVII. 3405( k); Respondent exceeded professionad boundaries ...; L.A.C. 46: XLVII. 3405( t); Administrative Hearing and Findings A hearing was held before a five- me nber panel of the Board on December 13, 2011, during which witnesses testified and evidence was submitted. On December 21, 2011, a final order was entered by the Executive Director of the Board, amended on January 23, 2012, finding that Ms. Thigpen violated the Nurse Prackice Act in six respects: 1) Lao R. S. 37: 921( 3) cause; ( is unfit or incompetent by. reason of negligence, habit, or other 2) L. A.C. 46: XLVII. 3405( A)( a) legal standards appropriate of nursing practice; ( 3) judgment; ( 4) individual, agency, failed to practice nursing in accordance with the or L.A, C. L,A.C. 46: XLVII. 3405( A)( c) failed to utilize 46; XLVII. 3405( A)( i) misappropriated entity; ( 5) L. A. C. 46: XLVII. 405( A)( k) failed items of an to act, or negligentiy or wilifully committed an act that adversely affects xhe physical or psychosocial welfare of the patient; and ( 6) L.. A. C. 46; XLVII. 3405( A}( t) - exceeded professional boundaries. The Board found those violations constitukea sufficoent cause pursuant to La. R. S. 37: 921 to suspend Ms. Thigpen' s lieense to practice as an RN in Louisiana, and ordered that it be suspended for a minimum of nine montf s, during which Ms. Thigpen shall refrain from working in any capacity as an RN, and foliowing which she would fiave the opportunity to request license reinstatement after completion of the conditions also imposed, including submitting to comprehensive inpatient psychiatric, psychological and substance abuse evaluation, paying the Board a fine of $ 5, 000. 00, paying restitution to 6. W. K. in the amount of $22, 500.001, paying costs k the Etoard in the amount of $3, 600. 00 and expert witness fees of $6, 000. 00. Finalfy, Nis. Thig en also was ordered ( added by the amended order), to " refrain frorn any invcsiv r er t with and/ or participation in any/ all relationships of any kind with PatienY iNfK frc rrr xhas of c fiarv^ ard." a 7udicial Review of Board`s Amend d Fina Ord On January 27, 2012, Ms, T Vypen fele a w titi n for Judicial REView with the district court of the Board' s finai amende order. U an motion by Ms. Thigpen, the trial cour granted a stay of the order, pending judicial review. thereof. On Septemb2r 1`L, 2012, the district court held a hearing, and after argument of the parties, took the matter under advisement. On January 25, 2013, the cour signed a judgment, upholding the ruling of the Board, finding Ms. Thigpen viofated the nursing practice act, specifically finding that her actions fell w tnin the scope of" exceeding professional boundaries." The court also upheld the board' s order of restitutiorr and the, imposition of a fine. However, the court ruled that the amounts assessed as co§ts and expert witness fees were arbitrarily fixed, and remanded the matter to the Board for a contradictory hearing to establish the amount of costs and expenses, incPuding witness fees to be imposed upon Ms. Thigpen. Ms. Thigpen now appeals the judgment Qf ±he tria9 cvurt. She equested and was granted a stay by the trial cour of khe Board`s fir a9 amended order pending resoiution of the appeaL APPLICABL LAW Standard of Review When reviewing an administrative firal decisoan, the district ourt functions as an appellate court. An aggrieved party may obtain a revpew of any finai judgment of the district court by appeal to the appropriate circuit court of appeal. On review of the 3 The Board represenked that this amending mndition shouid have been included and was inadvertently omitted from the final ocder. 7 district court's judgment, no defere ce is findings or legal conclusions vf wed fby tire court of appeal ta the factual ust as no deference is owed by the the distr ct ca, Louisiana Supreme Court t factuaE fndinys or le ai concius ns of th court of appeal. Consequently, khis court will cand ¬ ct its r n i a per d nt review oF the r eord and apply the standards af reviEVV rcxvid y. a. R. S. 9: 954(G) Doc' s Clinicp APMC v. State ex rel. Dept. of Health and Hospitals, 20U7--0480, pp. 8- 9 ( La. App. 1 Cir. 11/ 2/ 07), 984 So. 2d 711, 718- 719, writ denied, 2007--2302 ( La. 2/ 15/ 08), 974 So. 2d 665. See also La. R.S. 49: 965. An appellate court si ting in review of an administrative agency reviews the findings and decision of the administrative agency, not the decision of the district court. Raines v. Louisiana State Nursing Bd., 2012- 1831, p. 2 ( La. App. 1 Cir. 6/ 7/ 13)( unpublished) 126 So. 3d 471, writ denied, 2013- 2048 ( La, 11/ 15/ 13). udicial Review of Administrative Decision Judicial review of administrative decisions is governed by Lao R, S. 49: 964, vvhich provides, in pertinent part: G. The court may affirm the decision of the agency or remand the case for further proceedings, The court may reverse or modify the decision if substantiaf rights of the appellarrt have been prejudiced because the administrative fndings, 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 oflaw; 5) Arbitrary or capricious or charact rized, 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, dn the applicakion of this rule, the court shall make its own determination and conclusions of fact by a prepon erance of evidence based upon its own evaluation of the record revfewed ir its entirety upon judicial review. In the application of the rule, where the agency has the opportunitar ta judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the r viewing court does n t, due regard shali be given to the agency's dekermination of credibility issues. 8 Nurse Practice Act The Board is responsible for overseeing the prac'tice of registered nursing within the State of Louisiana and to meet the legislative intent and purpose of the Nurse Practice Act of promoting, preserving, and proteeting the punlic health, safety, and welfare of the citizens of this state by regulatir. nursing education and practice and g ensuring all individuals practicing under the title of" RN" be iicensed and regulated. La. R. S. 37: 911. The grounds for disciplinary proceedings of registered nurses are set out in La. R.S. 37: 921, which provides, in pertinent part ( those provisions which Ms. Thigpen was charged with violatingj: deny, revok, suspend, probate, limit, or restrict any license to practice as a registered nurse or an advanced The board may practice registered nurse, impose fines, and assess costs, or otherwise discipline a licensee and the board may limit, restrict, delay, or deny a student nurse from entering .or continuing the clinical phase of nursing education upon 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 " incompetenY' have been delineated by the Board in La. Admin. Code, Title 46, Part XLVII, § 3405( A), in pertinent part, as follows: Other Cause indudes, but is not limited to: a. failure to practice nursing in accordance with the legal standards of nursing practice; c. failure to utilize appropriate judgment; i. misappropriating items of an individual, agency, or entity; 9 j. falsifyi g re or sr k. failure ka act, or rjegfigently or wwilrully committing any act that adverseiy affeecs he hysscaw ar sy: osocial w lfare o? h patient F x t. ? eeds profe sia a r. ir r-° ests; <; g bc; r rn iLnie' to sexual miscondu tr ... Emphasis as " adde.) limits the of fhe Adm the tr de faark er tdue : ati b professional between the connection a professional and nsi a efi es " prof ssional boundaries" tha. allow for a safe therapeutic t the client." L. A.C. 46: XLVII. 3405( A). DISCUS5ION AND ANALYSIS On appeal, Ms. Thigpen essentially maintains that the Board erred in finding she violated the Nurse Practice Act, because that act does not prohibit a nurse from entering into a business relationship with a patient. She objects to the characterization of that relationship as " improper" and contends that the Board cannot demonstrate a violation of the Nurse Practice Act or that. she overstepped her role as a nurse. maintains that there is no rule in the act prohibiting a nurse- patient relationship and that the Administrative Code, whife including cause," does not and a business efinitions for ' other include a business reiationship as a prohibited practic, alternative, she appears to assert that business reiationship were en prohi if ch She In the i arse Practice Act were not so vague ii d),: thait the evidence in this case w s insufficient to prove that she crossed professional boundaries. Finaily; she asserts that the inclusion in the Board' s order prohibiting her from having any further contact whatsoever with W. K. violates her Constitutior+ Ferst Amendment Right of Freedom of ai Association. Exceeded Professional Boundaries? Ms. Thigpen has admitted that she acee ted monies and entered ir to a b asiness relationship with W. K. At the autset, we r ject Ms; Phigpen's contention thak because a nurs- patient business relationship s not 6stea fn the Nurse Practice conduct, language tnat it cannot form the f as s f. r discip9 nary o oF the statute esta iishes that it is 0. not ct as prohibiced ction the eunder. exclusive; indeecl, Tfne clear nly sexual misconduck is specifed. A nu e may be anft y reasc n af negligence, habit, o other La. R. S. 37; 921( 3). cause. The r es and regulaYions promulgated by the Board I sts hventy-fourspecifc acts or cor du t tF at can crnstitute " c ther ca se," as d again, this nlist is expressly nc? exclusive Thus, we fnd na merit to the L A. C. 46: XL'VII. 3 Q(., contention on appeal that because l is not exp e: ly pr hibited, that a nurse- patient business relationship cannot b founo to constitute a vioiation of the Nurse Practi e Act. Indeed, those very regulations define " professior al boundaries" as " tfne limits of the professional relationship that allow for a safe therapeutic conn ction.,between tr e professional and the client." Ms. Thugpen has never denied receiving and accept ng more than $ 22, 000. 00 from 1N. K., and the evidence in he record ampiy supports that these payments ( with the exception of the r itiai 5 00. 00 check) were indeed made to Ms. Tf igpen by 1N. K. durinG th tfine Ms. Thigpen ras als iN. K,` s nurse. Ms, Thigpen maintains that all of the financial assistance sh received from W. K. was used in the development of her company in which he was a sifent partner. Thus, we now examine the evidence in the record to determine i. the Board' s findong that Ms. T.higpei' s receipt of these funds and her business refationship with W. K, imperiled the " safe therapeutic connection between" her and iN.K. s ch that her aci ons violated the N arse Practice Act by exceeding professional bo ndaries. EVIDENCE PRE5ENTED Relationship Between Ms. Thigpen and IiV iCe W. K,' s daughter, K. C. S., filed the fnitoaf compla nt with the N; rsing Board and also testified at the hearing. She stated W.K, wras ninety years old at the torne of khe hearing. She stated that she and her ' five siblings first me Ms. Thigpen when she was the horr e heaith n rse that a tended tiheir mother and' W. K. at their home until her mother pass d away, three years prior to the hearing. , 4t that time, and up unti` W. K. began the " business relationship° with Ms. Thigpen, KK,S, testified that she had been an RN far iwenty years. She also helped with her parents, overseeing their care and helping with financiai accountings. She stated that she and her father had aiways had a very c!ose relationsf ip that quickly began to deteriorate 11 when, shortly after the death n Yiee mathe, I. K.S nc t ed and auEStioned W. K. about the Ms. Thigpen was number of Shz afso noti unusual caring changed for shortly h r aft her a vm, e ks c iuur ra re , a: vays " strack y mother ; continue to come to the hom2 ts i d. that he was paying Yr igp s' s visits ta the hom 1, ed that while mother r f visitJ Nit iN ing when she s;"' r spo ssibiliti ko, this all iderstoad k:hat Ms. Thigpen would sra rcvide ct e sa n r ar ir serv9ces to VV. K., K.KeS. was unaware that Ms. Thigpen would also be tak ng care of W. K.' s expenses and persanai errands. She stated that as an RN, she believed t at the transfer of funds,, rom W. lC. to Ms. Thigpen was unethical; and that when she a cempted to speak with W.iC. abo t it, he told her it was none of her businesso 5hortl t' ereafter, W,K. removed K.K.S. from all of his banking accounts, refused her continued help with the finances, and gradually ceased all communication with her. Prior to the relationship ending, K. K.S. was able to make copies of all the checks uV. K, wrote to Ms, Th'dgpen, as well as the credit card and bank statements, all testified that many of the to be the true appear Thigpen around of which same i submitted signatures signature of had any signing tnat were the or checks her father, rights to Nf. k.`s time that evidence at the ta hearing. K. K. S. tered into evidence did not nd ti at she was unaware that Ms, hecking aecounts. d9seovered shE K. K. S. [ e.stifiea that th c ecks to Ms. Thigpen, she became aware that Nf. k. r°ed his long- term CPA because th^ CPA had also begun questioning him about the cheeks b' ing paic to Ms. Thigpen. At thar pc ink, W. K. told the CPA he no langer eeded his servi s. K. K. S. also testified tha she was concerned about the increas d fre uenc of the visits to the home by Ms Thigpen, s anp of whoch vvere not nursing related; and that in her opinion, she thought Nis. Thigpen was tak g advantay cif 1 f. IC ' s decision making. Although she considered W. IC, to be of sound m rad,. she nokiced tF ak he bel eved everything Ms, Thigpen always looked up to said and c asea listeni nurses and thougfnt "'what shortl r after V. K. began seeing more to anyone else. thEy said was God." he stated ti at VIt. K. K-K.S. testifed that f Nls Thigper, her reiati nship with W. K. deteriarated to a point of being non- existenc in a short period of time. 12 Debbie Lacombe, W. K.' s hbu ekeeper for seveeareen ye rs, aiso testified at tne hearing. She W. K.' s wife before. stated tfnat W.K. a died, W.IC. her] sander [ ring," try rig ta protect hdm more than She stated that she a a 1hi. K, hdd alv ays {tiad a very However, shortly wasn' t she " took [ d nis w fe ha became part of her family and that after right." after W.[K.' s wife died, Ms. Lat rr be " ood relationship. tarted seeing tl ings that just She explained she noticed tne arrivai of uniforms and other packages coming to the house that she later found out W.K. had purchased for Ms. Thigpen' s business. She noticed a much greater frequency of Ms. Thigpen' s visits to the house, and that these visits were now often conducted in the office at the house. She stated that she often overheard Ms. Thigpen telling W.K. that she needed help topay her bills. Ms. Lacombe testified that she witnessed certain purchases W. K. made for Ms. Thigpen, including a refrigerator, filing cabinets, files, and foiders. She 'Stated she had witnessed Ms. Thigpen and W.K. drinking wine together atthe house on one occasion, and that she was sent to purchase a bottle of wine approximateiy once every two weeks. She testified that Ms. Thigpen sometim2s ate also times, they would go out to eat together. Ms. Thigpen his credit card. at the house ith W. K. and that other She was also aware that iN. K. i ad given Ms. Lacombe testified that after W. K."s wife died, she thought Ms. Thigpen influenced W. K. a lot and that "'he was differenY' and " just wasn' t the same anymore.'° Ms. Lacombe stated she was becoming increasingly uncomfortable with the things she felt just weren't right, and thatf after W. K. uncharacteristically refused to pay her for being sick one day, she decided it was, time to quit. She stated she just didn' t think he would ever do that to her, and she was not comfortable with how things had changed. Dr. Linda Ledet, an RN and. Associate Professor of Nursing at Nicholls State University, also testified at the hearing as an expert in the nurseJpatient therapeutic relationship. She stated that she based her testimony on her own exper ise, her review of the available fiterature addressing the nurse/ patient professional boundaries, as weil as the Board' s files and exhibits regarding the relationship between Ms. Thigpen and W. K. 13 Dr. Ledet testified that the therapeutic nurse/ patient relationship is " the foundation" of the nursing practice and exists for the sole purpose of ineeting the patienYs needs. She testified that boundary issues or violations arise when a nurse is trying to get her own needs met as opposed to rr eet ng the needs of a patient. She added that it is the nurse' s responsibility to mainka n appropriate boundaries with a patient. She testified that in fhe relationshi, the nurse is seen as powerful over the patient because he/ she is providing care to the patient, while the patient is seen as vulnerable because he/ she is the one in the need of services and care. That power imbalance imposes on the nurse, as the professional, to exercise diligence in maintaining the proper boundaries. Specifically, with regard to the relationship at issue herein, Dr: Ledet found that not only the exchange of monies between Ms. Thigpen and W. K. to pay her bills and make financial contributions to her business was " problematic," she also found that" Ms. Thigpen exhibited excessive self- disclosure about her personal life with [ W. K.]," such that she considered the exchange of information upon which W. K. became aware of and interested in Ms. Thigpen°s business also to be a violation of personal boundaries. Not only did Dr. Ledet find improper the dual ( nurse/ business) relationshlp between Ms. Thigpen and W. K., she also testified that the Jiterature makes abundantly clear that it is improper and a boundary violation for a nurs to accept money andior giffis from a patient, for whatever reason. She testified tF at even having W. K. as a business mentor while providing nursing services was a personal boundary violation. And even with a patient' s permission, she stated it was improper' for a nurse to use a patienYs credit card for her own needs. She further found it improper for Ms. Thigpen to be consuming alcoholic beverages in any amounts and at a.ny time with W. K. She found ° problematic" the secretive nature of Ms. Thigpen and W. K.' s relationship, particularly to the extent that he ceased cor munications and relationships with his daughter, his CPA, and his housekeeper, all of whom, prior to Ms. Thigpen' s increased involvement, had enjoyed very good and close relationships with W.K. She testified that it is very important for a 14 nurse to foster open communieatoar and h aith . relat;onships beEween a patient and his/ her family and laved ones, nc fi t a papate c r ali na Dr. Ledet boundaries in su nmarized nr: rsej atier r khat h h; r., something that wa ld be dc,c ar patient, then they difference if the are r '" ru9e ! f thur` w, a; ur nt d arz th likely fboundary vic them ir a ny way. in ies th dei rr inin cEio s v the proper behaviors are r ia se`s medicai noies regarding the Eations. She emphasi ed that it makes no patient consents, or eve o suggests things outside the proper boundaries, because of the power imbalance alluded to before, as well as the fact that often times these violations can cause harm to a patient without the patienYs awareness. In this particular case, she opined that W. K. had already suffered harm due to the improper relationship with Ms. Thigpen, because he was in dispute with family members and had ended former long-term relationships that had been healthy and good for him due to those persons' concerns over his relationship with Ms. Thigpen. W. K. also testified at the hearing. He stated that it was his idea to donate money to Ms. Thigpen for, her business; and Good Lord says heip your neighbor. And rhen asked why,, he responded, " The she as struggiing." He testified that Ms. Thigpen consulted him when she began running inko problems vvith starting hEr business, and that he encouraged her to "[ y] o for ut."` He testifed that he r ever felt forced, coerced, or threatened to hefp Ms. Thigpen, and that he did so of his own free will. He stated that, at his ag, he was no cor cerned about sharing in any profits of the business, but that Ms. Thigpen promised him that when the business started making money, she would see to it that he shared in those profits. He claimed that he allowed the housekeeper to quit because she was coming and d ing less and less, and that he fired the CPA because he felt he was being overcharged: Howev r, he admit'ted that both of those people, together vvith his aughter, were having prob(ems with questioning the relationship ar d ti7e monies he was gaving Ms. Thigp n, and he tho ght it was none of their business. Finaily, Ms. Thigpen testifed ora her wn fbehalf, She explained the " gu ded care" concept of nursing care upon which I er ousiness ° vas modeled; and testifed that 15 proactive monitorin arsd assessing the pa ients t raoer e and, adciressing concerns and coordinating with dactors on the front nd was at the core of that business model, with the goal of catching things early, She testifed fhat er powering khe patient for selfmanagement and ed cati g th patient was ls large companen of that model. Thus, she explair.ed that the increa ed v sats and hPr private horing to coordinate nursing care, even while c patient es, a th hpsp taV a jd receiving n hospital nursing care, was also a large component of the se vices pro ided by her company. Again, Ms. Thigpen did not deny eceiving over $22, 000. 00 in financaal assistance from W. K., but testifled she believed that " as long as you kept business separate from nursing that ik was iegal, that e verything was appropriate." She s'[ated that she kept her nursing °eisits and her business visits to W. K. separate. She also testified that she was aware of " arguments" among W. K.` s family members over the will a d fireancoal issues, which is why initially W. K, did nat want his name on any of their business deals, but that after she became aware of the Board' s investigations and concerns, she drew up new business plans to document W.K.`s role in the business. H uvever, she testified that when she became aware that those changes did not alter the Boar'd 5 pOSltl01, voluntarily ceased engaging n b usil ss witn `. she K. and rao longer treated him as a patient, Analysis/ Application As noted earlier, in revievr ng the propri Ey of the trial cei t"s judymenfi, this court conducts its cwn independeri review of the rec rd and ap fies the standard of review provided in La. R.S. 49: 964, Based on the vidence detailed aboveF v e find ample evidence to suppork the Board`s findi; ogs ± hat the tc talir r of the facts ar d circumstances:,surrounding the relatioriship betwe m Ms.' Tlhigpen and W. K. s onstit te several violations of the Nurse Practice Act and the relevank Administrative Code provisions as found by the Board and a rmed by the trial court, La. R.S. 49: 964(G)( 6). With the exception of ane of the conditions imposed on Ms. Thigpen atldressed beio v I we conclude the Board' s findings do not violate const'itutional or stat tory arovisians La, R. S: 49; 964(G)( 1)); they are r ot in excess of the Board`s authority ( La. R.S. 16 49: 964(G)( 2)); they were mad pc la4vfi n p S. 94: 964{G)( Qeedur . 3)); are not affected by error of law ( La. R. S. 49. 954 G'( 4)) F a d are r ot arbitrary, capricious, or an abuse of dis amendment retiar ( d La, R. S. 49a9 4( u( 5). scussed belc w; n trfad Accurdir+ y, vith the ex4eption of the g t`: G renc affirmirAg tf j Boarcl' e order is affi rmed. Unconstitutional Condition In its Amended Final Order, the Board aadeo a r straining order to Ms Thigpen that it stated was intended to be included but was inadvertently omitted from its fina order any/ all that Ms. Thigpen " refrain from any involvement with and/ or particapation in relationshi s of WK any. kind with Patient from this point Porward." We fir d this amendment to be averreaching of the Board' s authority ( Laa R.S. 49: 964( G)( 2) j, as well as unconstitutionally infringes on Ms. Thigpen' s right of freedom of ass ciation. The Board is empowered to monitor and regulate Ms. .Thigpen' s adions dnly in her role as an RN, and in accordance with Ehe Nurse Practice ct._ .1Ne note that the restraining order prohibiting any and all contac with rV. K; is impused on Ms. Th gpen purs a t to the final a nending order during a time in which her license is suspended, a d over which the Board has no authority tQ reg late itQr. or moe As suchE vue find it is outsoqe the Board' s statutory authority ana constit tes an unwarranted infringement on Ms, Thigpen' s personal Accordingfy, fr2edom we amend to associate the Board' s order restraining order had been added as a and 6y va onditiom a e relakionships of her chqosing, ating that t r then it may have passed legai m sterb but it is not restrainir y order. If this einst ter ent of her iicense, tated t be a cond'otian f he reinstatement. PENDIIVG MOTIONS We nov address the motions pending in tihi appeab: Motion by Ms. Thigpen to supplement the recard inri h evidence later reeeived and Motion for Leave to Present Additional Evidence These respeckiveiy, motions and seek were fl d Qctober Y5, 2013 to introduce evidence tnat I? vas ana Qec mber received after 16, tf 2013, hearing regarding W. Ka' s intensievv uy Elderf Protecti n Servi es, whieh Is. Thigpen claims her exonerates on the charge the persona she ly used W.K.'s credit cards. The evidence was admittedly obtainea after the hearong and was not included in the Board' s review. The motions also claim that a c rtain binder oP evidence that vvas before the Board was not included in the aGpellate rec rd. " o the extent that some of the evidence Ms. Thigpen claims is missing was c ot introduced at the hearing and considered by the Board, the evidence is not properly efore us. This court has already ruled on a prior motion by Ms. Thigpen to supplement the record with evidence not included in the appeflate record, denying said rnotion can the basis that this court can not review evidence that is not in the appellate records nor can it receive new evidence. La. R.S. 49. 964( F); See Thigpen v. Louisiana State 8oard of Nursing, 2013 CA 0841 ( La. App. 1 Cir. 10/ 08/ 13)( unpublished), For those same reasons; the pending motion to supplement is denied. 4 Board' s Motion To Strike Reply Brief The Board also filed a motion to strike the reply brief of Ms. Thigpen to the e ent that it refers to evidence outside the record, notably, the evidence sought to be supplemented in her own motions. For the reasons stated above, the Board' s motion is hereby granted insofar as this court did not review ti ose portions and arguments in brief regarding evidence not properly before it COSTS AND EXPERT WITNESS FEES The Board assessed administrative costs nci expert witness fees for Dr. Ledet to Ms. Thigpen. The trial court found that the assessmenf of those costs was praper, but remanded to the Baard for a hearing, finding that the amounts were assessed in an arbitrary manner and not estabiished with supporting evidence. In the interim, Ms. Thigpen requested and was granted a stay of the Board' s order and the trial court judgment pending the appeal of this ma ter. The appeal being concluded, the stay is hereby lifted, and this matter is remanded in accordance with the trial court' s judgment 4 We do note that many of the iEems Ms. Thigpen claims are not in the appellate record, are indeed included in the record, and were reviewed by this court in deciding the issues before it. 8 to the Board for a hearing to submit evidence and establish the appropriate assessment of wsts and expert witness fees against Ms. Thigpen. CONCLU5ION Accordingly, the judgment of the trial court, which affirmed the final amended order of the Board is hereby amended to orroit the condition that Ms. Thigpen refrain from any contact, communications, or relationship with W. K. In all other respects, the judgment is a rmed. The Motions to Supplement the record are hereby denied; the motion to strike the reply brief is hereby granted to the extent that it contains argument and evidence not before the Board; and the matter is remanded to the Board for further hearings consistent herewith. Costs of this appeal are assessed to the plaintiff, Jonea Krystal Lynn Thigpen. AMENDED, AFFIRMED AS AMENDED. REMANDED TO BOARD. MOTIONS TO SUPPLEMENT DENIED; MOTION TO STRIKE REPLY BRIEF GRANTED IN PART. 19 STATE OF LOUYSIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0841 JONEA KRYSTAL LYNN THIGPEN VERSUS jLOUISIANA STATE BOARD OF NURSING McCLENDON, J., concurs and assigns reasons. Although the Board may have intended to issue the order requiring Ms. Thigpen " to refrain from any involvement and/ or participation in any/ all relationship of any kind with Patient WK" as a condition for reinstatement of her license, the restriction is not included in the conditions section of its order. Rather, in the amended final order, this restriction appears before the order suspending Ms. Thigpen' s nursing license and the listing of the fourteen conditions for reinstatement. While the Board may have authority to set certain conditions for reinstatement af a license, I agree with the majority that it cannot issue a general restraining order outside of the licensing process that restricts freedom majority. of association. Accordingly, I concur with the result reached by the
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