Preview:

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

NKWELLE LEONARD,

) ) C.A. No. K12A-05-004 JTV Appellant, ) ) v. ) ) DELAWARE BOARD OF NURSING) ) Appellee. )

Submitted: October 15, 2012 Decided: January 30, 2013

Peter K. Schaeffer, Jr., Avenue Law, Dover, Delaware. Attorney for Appellant. Patricia D. Oliva, Esq., Department of Justice, Dover, Delaware.

Upon Consideration of Appellant's Appeal from Decision of the Board of Nursing AFFIRMED

VAUGHN, President Judge

Leonard v. Delaware Board of Nursing C.A. No. K12A-05-004 JTV January 30, 2013 OPINION Nkwelle Leonard ("Leonard") appeals from a decision of the Delaware Board of Nursing ("the Board") finding that he violated Board rules by engaging in unprofessional conduct in the workplace. The Board found the hearing officer's recommended discipline to be too lenient, and modified Leonard's penalty1 to include: (1) a probationary term of no less than one year, (2) completion of 12 hours of continuing education credits in the area of sexual boundaries in the workplace and (3) the requirement that Leonard report his probationary status to his current employer and future employers. Leonard's probation can only be lifted subject to Board approval after he submits a written application that includes supporting documentation of his continuing education credits and evidence that he has reported his probation to employers. FACTS Leonard is a registered nurse who worked at Bayhealth Medical Center ("Bayhealth") in Dover, Delaware as a staff nurse at the time of the incident that gives rise to this appeal. Thaimesha Adkins ("Adkins") was also employed by Bayhealth as a patient care technician. Her primary responsibility was to draw blood samples from patients. On April 11, 2011, both Leonard and Adkins were working on the third floor, East wing of the Medical Center. Around 6:00 a.m., Adkins encountered the appellant at the nurse's station with his cell phone in hand. Leonard repeatedly

The Board also modified the hearing officer's conclusions of law to remove reliance on the testimony of one witness. I have likewise not relied upon the witness's testimony in making the substantial evidence determination. This is explained later in the opinion. See infra pp. 10-12. 2

1

Leonard v. Delaware Board of Nursing C.A. No. K12A-05-004 JTV January 29, 2013 asked for Adkins' phone number, but she refused him because her friend already had his number, and she was waiting for God to send her "the right match." After this exchange, Adkins continued on her way to a nearby patient's room to complete a physician ordered blood draw. This particular patient was in isolation, and hospital policy required staff to change into an "isolation gown" before entering the room. Adkins knew where the gowns were located and donned one, but did not secure its ties tightly.2 She was wearing a v-neck and scrub top underneath the gown. Adkins entered the room and stood to the right of the patient's bed, closer to the door, which was on the patient's left side. She began gathering her supplies to perform the blood draw on the patient's left arm when Leonard entered the room behind her.3 Adkins believed that he was going to do something with the patient, so she did not pay attention to him until he grabbed the collar of her gown and pulled it to look down her shirt. Adkins immediately said "stop," nudged him with her left elbow, and moved away to the right. Leonard stopped touching her at that point, but he continued to gesture toward her three or four times, close to her body, as if he was going to do it again. Adkins told him to stop three or four more times and Leonard told her to "shut up" in a low tone of voice. Following the last gesture, Adkins finally "got loud" and said, "Stop,
Adkins and Leonard comment that the gowns are long and contain strings about ten to fifteen inches long. They tie in the back at both the neck and the waist. Leonard asserts that the reason he entered the room was because Adkins requested that he stop the IV pump. The hearing officer did not find his testimony believable for several reasons. See In re Nkwelle Leonard, Del. Bd. of Nursing, Case No. 11-50-11, at 33-34, 37 (Oct. 18, 2011) ("Recommendation"). 3
3 2

Leonard v. Delaware Board of Nursing C.A. No. K12A-05-004 JTV January 29, 2013 Leo," and "I'm not playing with you." Leonard then discontinued his behavior. The two were in the room together for approximately five minutes after which Adkins did not see Leonard at the nurse's station or anywhere else for the rest of the day. Following the incident, Adkins quickly completed the blood draw and called her sister, and then her pastor on the phone, both of whom advised her to report what happened. Adkins then asked the first nurse that she came across, Gail Mesa, for the name of the charge nurse on duty. Adkins tracked down the charge nurse, Crystal Nichols, but did not have the opportunity to speak with her privately. Mesa and Nichols both submitted written statements that describe Adkins as noticeably upset when they saw her shortly after the event, and they assert that she also made comments to that effect. Adkins next sought out the Nursing Coordinator, Charles Green, and informed him about what occurred between Leonard and herself. Bayhealth then conducted an internal investigation which resulted in the discharge of Leonard from his employment on April 21, 2011. Green also filed a complaint with the Division of Professional Regulation, seeking discipline against Leonard's license for his conduct. Following the Division of Professional Regulation's investigation of Green's complaint, the Delaware Department of Justice filed a formal complaint with the Board. The assigned hearing officer conducted a two-day evidentiary hearing, and on October 18, 2011, issued her findings and recommendations to the Board. Leonard submitted written objections to the recommendation, and on February 8, 2012, the Board issued the disciplinary order that is the subject of this appeal.

4

Leonard v. Delaware Board of Nursing C.A. No. K12A-05-004 JTV January 29, 2013 STANDARD OF REVIEW The Court has appellate jurisdiction over final agency decisions pursuant to 29 Del. C.

Download 184420.pdf

Delaware Law