decided: March 6, 1984.
ANN MARIE RAFFERTY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF NURSE EXAMINERS, RESPONDENT
Appeal from the Order of the State Board of Nurse Examiners in case of In the Matter of the Suspension or Revocation of License No. RN-221306-L, issued November 16, 1977, to Ann Marie Rafferty, dated December 28, 1981.
Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for petitioner.
Mary S. Wyatte, Assistant Counsel, Bureau of Professional and Occupational Affairs, with her David F. Phifer, Chief Counsel, Department of State, for respondent.
President Judge Crumlish, Jr. and Judges Doyle and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge Doyle.
[ 80 Pa. Commw. Page 604]
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 Neuro-Intensive Care Unit of Thomas Jefferson University Hospital, a comatose patient under her care died.*fn1 She was charged with violations of various Board
[ 80 Pa. Commw. Page 605]
regulations.*fn2 Following a hearing, the Board found that Rafferty's violations under The Professional Nursing Law*fn3 were sufficient to revoke her professional license.
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,*fn4 which provides that a
[ 80 Pa. Commw. Page 606]
nurse who willfully or repeatedly violates the nursing regulations may have her license suspended or revoked. For the Board to revoke Rafferty's license, it must adduce that she was guilty of repeated violations or that her conduct was willful.
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.*fn5 The record, in fact, discloses that in more than seven years in nursing, her record was unblemished. This being so, the only justification for the Board's revocation would have been a finding of willfulness.
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.*fn6 The
[ 80 Pa. Commw. Page 607]
Board's conclusion that Rafferty's actions deviated from accepted practice does not, absent the intent to violate, raise her conduct to the level of willfulness.
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.
The order of the State Board of Nurse Examiners, dated December 28, 1981, is hereby reversed.
Dissenting Opinion by Judge Doyle:
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
[ 80 Pa. Commw. Page 608]
which she, as a highly-qualified nurse knew or should have known, characterizes her conduct as "mere intentional acts" and "errors of judgment." I submit that it is just such knowing and intentional deviations from accepted practice for which the Board has discretion to discipline under Section 14(3). And it is just such inexcusable errors of judgment for which the Board may suspend or revoke a nurse's license. See Leukhardt.
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.