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Legal Speak

Series: Nurse of Trial Part 5

Published July 31, 2008 1:23 PM by Tony DeWitt
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

23   shift.

24                  MR. DeWITT:  So sometime before 6:30 in the

25   morning?                                                      

 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

12   knows.

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

 4   regulations.

 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

10   techs.

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.
posted by Tony DeWitt


This is so disturbing how the hospital,the state board of nursing, and the state prosecuting attorney have handled this.I hope this nurse wins his case and the 3 parties against him have to face charges how they have handled this case. Please keep me updated.

                          sincerely Linda RN

Linda, medsurg - rn, hkh August 8, 2008 1:15 PM
sheffield AL

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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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