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., Judge Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 95 Pa. Commw. Page 179]
Ann Marie Rafferty appealed a State Board of Nurse Examiners order revoking her nursing license. This Court reversed.*fn1 On appeal, the Pennsylvania Supreme Court reversed our Order and remanded the case to this Court.*fn2
The Board had acted pursuant to Section 14(3) of The Professional Nursing Law (Act),*fn3 which provides that it may suspend or revoke any license if it finds that "[t]he licensee has wilfully or repeatedly violated
[ 95 Pa. Commw. Page 180]
any of the provisions of th[e] act or of the regulations of the Board." (Emphasis added.)*fn4 Our Supreme Court has interpreted this provision as not referring to a nurse's motivation, and in so doing has held that (1) the Board need not prove a specific intent to violate the Act, or the rules and regulations promulgated thereunder, if the action of the offender is not in the best interest of patient care, in order to establish a "wilful" violation and (2) there was substantial evidence that Rafferty wilfully violated 49 Pa. Code § 21.11(a)(4).*fn5 The Court ordered this remand for resolution of Rafferty's remaining contentions.*fn6
[ 95 Pa. Commw. Page 181]
Initially, Rafferty challenges Section 21.11(a)(4) as unconstitutionally vague. This section requires "nursing care actions which promote, maintain, and restore the well-being of individuals." We reject Rafferty's challenge because the regulation was not vague with respect to her conduct. See diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976). Our Supreme Court upheld the Board's findings that Rafferty's actions were unauthorized, contraindicated and a serious deviation from acceptable nursing practice.
Rafferty also contends that she was denied a fair hearing due to the presence, at the hearing, of the attorney who represented Thomas Jefferson University Hospital in a lawsuit she filed against the Hospital. She argues that his presence compelled her to use material from that lawsuit to cross-examine the Commonwealth's witness and, thereby, tainted the proceedings.*fn7 We fail to see how Rafferty's mode of cross-examination could have been affected by the presence of this observer. Although Rafferty relies on this Court's finding ...