Bohannon v. Arkansas State Bd. of Nursing

• Decision Date: 03 April 1995
• Docket Number: No. 94-1092,94-1092
• Citation: 320 Ark. 169,895 S.W.2d 923
• Parties: Susan Jayne BOHANNON, Appellant, v. ARKANSAS STATE BOARD OF NURSING, Appellee.
• Court: Arkansas Supreme Court

Page 923

895 S.W.2d 923

320 Ark. 169

Susan Jayne BOHANNON, Appellant, v. ARKANSAS STATE BOARD OF NURSING, Appellee.

No. 94-1092.

Supreme Court of Arkansas.

April 3, 1995.

Connie Mitchell, Don Cooksey, Texarkana, for appellant.

John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant is a registered nurse who was charged by the Arkansas State Board of Nursing with violating Ark.Code Ann. § 17-86-309(a)(4) and (6) (Repl.1992) as being "habitually intemperate or ... addicted to the use of habit forming drugs" and "guilty of unprofessional conduct." The Board heard extensive testimony and concluded that appellant diverted controlled substances to herself and then falsified medical records to reflect that the drugs had been given to patients at both Bates Memorial Hospital in Bentonville and Eureka Springs Memorial Hospital. The Board suspended her license for three years and set out conditions for reinstatement.

Appellant appealed the Board's decision to circuit court. The circuit court affirmed the Board's ruling, and appellant appeals. We affirm the Board's ruling.

I.

Appellant's abstract is flagrantly deficient. See Ark.Sup.Ct.R. 4-2(b)(2). It does not contain a summarization of the pleadings or the Board's findings of fact and conclusions of law. Her abstract of the pleadings is as follows: "On May 27, 1993, the Arkansas State Board of Nursing sent its Order and Notice of Hearing to Susan Jayne Bohannon seeking to suspend and/or revoke her nursing license for alleged violations of Ark.Stat. [sic] Ann. § 17-86-309(a)(4) and (a)(6)."

Her abstract of the Board's order is as follows:

After a hearing which occurred on August 11, 1993, on August 17, 1993 the Arkansas State Board of Nursing entered its Order suspending Susan Jayne Bohannon's nursing license in Arkansas. The Arkansas State Board of Nursing ordered that Susan Jayne Bohannon's nursing license in Arkansas be suspended for three years with conditions placed on reinstatement.

The findings of fact made by the Board are not abstracted.

We have held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987). Appellant has failed to provide this. Yet, one of her points of appeal contains the following argument: "The Board's decision merely makes conclusory statements in violation of statutory authority."

The rules provide that the abstract shall consist of "an impartial condensation, without comment or emphasis" and that testimony be abstracted in first person. Ark.Sup.Ct.R. 4-2(a)(6) (emphasis added). Neither requirement has been met. The testimony provided is in third person, and it includes only those parts of the testimony that support appellant's arguments. For example, the abstracted testimony of Salena Wright, Nurse Manager of the Emergency Department at Bates Memorial Hospital, merely states that appellant notified the Director of Nursing that drug vials had been tampered with and that Ms. Wright had no personal knowledge of who diverted drugs at the hospital. Yet, Ms. Wright's testimony contains references to appellant's job performance and her refusal to submit to drug testing, and both of these facts bear directly on the propriety of the Board's decision.

The abstract of testimony incorporates arguments within the supposed testimony. For example, the testimony of Jim Bona is abstracted as follows:

Mr. Bona read a report attached as Exhibit 2. The report contained hearsay which was objected to. Attachment 3 Report of Chemist was admitted without allowing cross-examination, Chapter 11, Section 10(j) of the Rules of the Board and contained hearsay within hearsay. The report contained statements from persons present to testify, and Attachment 11 contained information that was irrelevant. Reports on patients were included that were identified by initials only thereby denying Susan Jayne Bohannon the right to cross-examination.

Another example is the following interjection of argument within supposed abstract of Beverly Terrell's testimony:

Ms. Terrell's boss was seated in the Board Room and had been called by the attorney for the Board and the witness had ridden in the same vehicle to Little Rock with her boss and another witness for the attorney for the Board.

In Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993), we said such similarly selective abstracting constituted "egregious acts of omission and commission [which] go beyond mere oversight and constitute a gross violation of Rule 4-2(a)(6)." Id. at 357, 862 S.W.2d at 277. However, we addressed the merits because the State supplemented the abstract. Id. Similarly, in this case appellee Board has supplied a supplemental abstract of the testimony, but has not included a summary of pleadings or of the Board's order. Since appellant's abstract is flagrantly deficient, we summarily affirm all points of appeal except the point involving sufficiency of the evidence, and we determine that point only because the Board chose to supply a supplemental abstract which sets out the testimony involving that point.

II.

We now turn to the only point we reach--whether the Board's decision was supported by substantial evidence. Judicial review of decisions of the Arkansas State Board of Nursing is governed by the Arkansas Administrative Procedure Act pursuant to Ark.Code Ann. § 25-15-212 (Repl.1992). If there is any substantial evidence to support the agency's decision, the reviewing court will not reverse. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980). To prove an absence of substantial evidence, appellant must show that fair-minded persons could not reach the same conclusion. Arkansas Health Planning & Dev. Agency v. Hot Spring County Memorial Hosp., 291 Ark. 186, 723 S.W.2d 363 (1987). The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Arkansas Highway and Transp. Dept. v. McWilliams, 41 Ark.App. 1, 846 S.W.2d 670 (1993). It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Robinson v. Ed Williams Constr. Co., 38 Ark.App. 90, 828 S.W.2d 860 (1992).

Appellant was charged with violating Ark.Code Ann. § 17-86-309(a)(4) and (6) as being "habitually intemperate or ... addicted to the use of habit forming drugs" and "guilty of unprofessional conduct" based upon the following:

1. During but not limited to July 1992, while employed by Bates Memorial Hospital, Bentonville, Arkansas, [she] did make false or failed to correct documentation as to the administration of narcotics.

2. During the aforementioned time, [she] did divert controlled substances such as Demerol from her employer.

3. Prior to employment at Bates Hospital, respondent was employed at Eureka Springs Hospital, where she did make false or failed to make correct documentation as to the administration of narcotics.

In support of the allegations, the Board heard the following evidence. Jim Bona, an investigator for the Arkansas Department of Health, testified that on July 1, 1992, Rick DeFreece, Director of Pharmacy at Bates Memorial Hospital, submitted seven vials of meperidine hydrochloride (Demerol) for quantitative analysis. All seven vials were obtained from the emergency room controlled drug supply. The Arkansas Department of Health Toxicology Laboratory report found that all seven vials were adulterated. Subsequently, audit procedures were put in place, and inventories were checked by the hospital pharmacy at least once, and more often twice daily.

On July 7, 1992, the pharmacy director found three vials of Demerol from a medicine cart on the medical/surgical unit that appeared to have been tampered with in the same manner as those from the emergency room. These vials were submitted to the Toxicology Laboratory for testing, and it was determined that one of the vials was adulterated.

Hospital records and testimony from Salena Wright, Nurse Manager of the Emergency Department, indicated that appellant worked in the emergency department until June 30, 1992, at which time she was transferred to the medical/surgical unit. Ms. Wright stated that appellant was transferred because she was not performing well in the emergency room and was having problems getting along with physicians and other nurses. Hospital records indicated that appellant was the...