Series: Nurse of Trial Part 5
Before evidence is heard in any trial, opening statements are made. Below are the opening statements offered on Day 1 of the Neely case. The numbers at the left of the page are the actual line numbers from the official transcript. I have edited out patient names and other information necessary to protect patient privacy. Redactions are noted by the use of brackets [ ].
11 GW: Mark Neely is licensed by the
12 Board of Nursing and is registered as a professional
13 nurse. Mr. Neely worked at [the] Hospital
14 during a specific night shift on March 12th, 2004, going
15 into March 13th, 2004, and cared for two patients whom we
16 will refer to at this hearing as PATIENT 1 and PATIENT 2.
17 During his shift, Mr. Neely removed a
18 prescription medication, his records will show, known as
19 Diprivan or Propofol, P-r-o-p-o-f-o-l. Diprivan is
20 D-i-p-r-i-v-a-n. This medication was removed from a
21 Pyxis, P-y-x-i-s, system that tracks medication. And the
22 medication was for two other patients who will be referred
23 to as PATIENT 3 and PATIENT 4.
24 Diprivan is a white milky substance that is
25 used to help sedate patients, and the question is what
1 happened to that Diprivan. The administration of Diprivan
2 will not be found in the hospital records for patients PATIENT 3
3 and PATIENT 4, patients for whom the medication was removed.
4 Nurses over -- who had the care over PATIENT 3 and PATIENT 4 will
5 testify that they did not ask Neely -- Mr. Neely to
6 administer the Diprivan to their patients or that
7 Mr. Neely informed them that he administered any Diprivan
8 to their patients. What the evidence will also show --
9 will show, is that nearly empty bottles of Diprivan were
10 found in the rooms of Neely's patients PATIENT 1 and PATIENT 2, who did
11 not have physician orders for Diprivan.
12 Also found in Neely's patients' rooms were
13 syringes of a white milky substance that were discarded
14 and, quote/unquote, Sharps containers, which are
15 containers used for scalpels, syringes, other sharp items.
16 There was also white milky substance found in one of the
17 IV ports attached to one of Mr. Neely's patients, again
18 who did not have an order -- physician order for Diprivan.
19 After Neely's shift, as the testimony will
20 come out, on the morning of March 13th, 2004, nurses found
21 patients PATIENT 1 and PATIENT 2 in what they would testify to as a
22 substantially different condition than the prior day of
23 March 12th, 2004, before Mr. Neely's shift. The patients
24 that morning, PATIENT 1 and PATIENT 2, were found very drowsy and
25 difficult to wake up, while the day before the patients
1 were sitting up on their own reading and/or conversing
2 with family members.
3 The hospital conducted an investigation
4 regarding the Diprivan that Mr. Neely removed from the
5 Pyxis system and, based on the investigation, the hospital
6 terminated Mr. Neely as a nurse.
7 The question before this Commission will be
8 whether or not Neely's conduct in not being able to
9 account for the Diprivan that was removed and for the
10 evidence showing that one Diprivan was administered to PATIENT 1
11 and PATIENT 2 and that Mr. Neely more likely than not was the one
12 that administered that Diprivan and whether that would
13 rise to discipline, and that's the issue here.
14 COMMISSIONER CHAPEL: Okay. Thank you.
15 Mr. Dewitt?
16 MR. DeWITT: May I ask a question of my
17 opposing counsel for a moment? Specifically with regard
18 to his opening statement, is there -- is it the Board's
19 contention that Diprivan was administered to PATIENT 2 and PATIENT 1
20 and, if so, at what time? What will your proof be on the
21 time that it was administered?
22 GW: The time would be during the
24 MR. DeWITT: So sometime before 6:30 in the
1 GW: Most likely, yes.
After the Board's counsel completed its case, it was time to show the Attorney General and the Board of Nursing just how badly they had gone wrong in the case.
4 MR. DeWITT: I have a little visual aid
5 here that I have to find. This is that classic photograph
6 that says, do you see the young woman or do you see the
7 old woman? It's a matter of perception. Some cases are
8 like that. Some cases are matters of perception. I don't
9 believe this is such a case. I believe when the facts are
10 fully on the table and the medical records are fully
11 before this Commission, that what you will see is that
12 this is a case that the Board of Nursing failed to
13 investigate. They failed to conduct in-person interviews
14 in most of these cases.
15 This is a case where when this case was --
16 when the complaint was filed, the Board of Nursing had not
17 even obtained the medical records in this case. They had
18 a very small subset of them, the medication administration
19 records. This is a case where the only physical evidence
20 of what was found in the room was destroyed by the
21 hospital at the direction of the Board of Nursing. There
22 is no physical evidence that can be offered today.
23 This is a case about rumor stacked on top
24 of innuendo and about what people want to see as opposed
25 to what they actually see. It's a case that doesn't stand
1 up to scientific inquiry, and the records will show that
2 science just doesn't mesh with the allegations made by the
3 Board of Nursing in this case.
4 It's a case that never should have been
5 brought because, first of all, it lacks foundation. One
6 of the things that GW never mentioned is that there
7 has been no audit of the pharmacy records and no inventory
8 of the pharmacy records at [the] Hospital that would
9 show that two bottles of Diprivan were ever taken or were
10 missing. The only records that they have produced are
11 Pyxis records, which are records of what the Pyxis system
13 Unlike a Coke machine, which you put a
14 dollar in and you get one bottle out, the Pyxis machine
15 has multiple drawers. That's what the evidence is going
16 to show. One of those drawers, door nine, is where
17 Diprivan's kept, but there are other things kept with the
18 Diprivan. So any time you go into drawer -- or door No. 9
19 for something else, you could pull out as many bottles of
20 Diprivan as you want.
21 Since Diprivan is not a controlled
22 substance, it's not controlled like the narcotics. Other
23 medications in the Pyxis system, if you want to get out
24 Dilaudid, for example, which is a narcotic, you have to
25 count the number that are there and you have to tell the
1 machine how many are there, and if your count is right, it
2 will let you have the medication. It is closely
3 controlled because it is required to be controlled by DEA
5 There are no regulations that require that
6 Diprivan be closely controlled, and if you -- as we get
7 into the evidence and we show some of these policies,
8 you'll note that basically noncontrolled substances are
9 just replenished on an as-needed basis by the pharmacy
11 Here's the key piece. The key element of
12 evidence that is lacking in this case is no one said at
13 the beginning of March 12th or March 13th there are ten
14 bottles of Diprivan in the system, two bottles were taken
15 out for PATIENT 4 and PATIENT 3. Two bottles were taken out by
16 Mr. Neely, and there were two bottles left, such that we
17 can show that there are definitively two bottles missing.
18 Nobody ever did that inventory. Nobody ever -- if they
19 have done it, they haven't documented on a piece of paper
20 that was given to us in discovery because we asked for it.
21 And although you allowed them to withdraw
22 the admission, I think the interrogatory responses would
23 show that they did not actually do a physical inventory of
24 the Pyxis system. So you have to rely only on Pyxis
25 records, which also are without foundation.
1 First of all, although we will get to that
2 when the time comes, the record's going to show these are
3 records made by the pharmacy. The custodian of records of
4 the pharmacy is not here to testify to their authenticity.
5 They also are a summary of voluminous information of the
6 information that's maintained in the Pyxis system, and
7 that information is no longer available, and so it
8 violates the best evidence rule. You have to have -- if
9 you're going to use a summary of information, you have to
10 have the underlying records available for inspection. The
11 Board has not done that. The records are not proper
12 business records.
13 To understand this case, all the Commission
14 needs to understand is how the clock works. The records
15 will show that Mr. Neely left at 0630. Anything he gave
16 to these patients he would have had to have done before
17 0630. The drug that they allege that he gave, which is
18 Diprivan, is a very short-acting CNS depressant that's
19 essentially an anesthetic agent.
20 All the testimony in this case by
21 deposition at least has been that it's very short acting
22 and that it wears off in 3 to 10, sometimes 3 to 15
23 minutes. If that's the case, if he'd given it at some
24 time prior to 6:30, it would have worn off by 0635 or 0700
25 at the very latest.
1 At 0700, the oncoming nurse certified that
2 both PATIENT 2 and PATIENT 1 had Glasgow Coma Scale scores of 15, which
3 is perfect; in other words, completely neurologically
4 intact. If these patients developed somnolence or became
5 obtunded later on, Mr. Neely had been gone for 30 minutes
6 at that point.
7 If he had given Diprivan, which we
8 obviously dispute, it would have had to have been prior to
9 the report at 0630, which probably started around 0615.
10 So he would have had to have given it sometime before 6
11 o'clock. If the drug wears off in ten minutes, it's gone
12 before he's -- basically by the time the new shift comes
13 on, and the new shift says these people are perfectly
14 neurologically intact. That's what the records show.
15 Although the records do show later on the
16 patients, one of the patients become somewhat obtunded,
17 it is completely consistent with his history as documented
18 in the records.
19 So at the conclusion of the evidence, the
20 Administrative Hearing Commission will have substantial
21 evidence in the record as a whole that supports that the
22 entire case is without merit whatsoever. And the Board
23 has consistently taken the position that this case is
24 based on science, but it isn't. The science doesn't
25 support the case, and I believe that's what the evidence
1 is going to show.
In spite of learning a lot of new things about their case that they had not known or realized up to that point, the Board still did not do the honorable thing and dismiss the action.