Legal path haphazard in a nurse drug theft

At first, the Jacksonville nurse denied the charges, but eventually, under police questioning, she admitted she had stolen oxycodone from patient supplies.

She was charged with trafficking.

Less than four months later, a hospital near Panama City found sign after sign that a nurse was stealing patients' oxycodone and other drugs. At least one patient didn't get pain medication, reports show.

But no one called police - or the Board of Nursing. Instead, the hospital referred her to a confidential drug program.

Whether a nurse who steals drugs goes to jail or stays at work remains an unsettled question in Florida.

Some in law enforcement decry the rules that allow medical professionals to escape prosecution and public disclosure in drug cases. Nurse advocates respond that treatment brings better results, allowing nurses to resume work vital to their communities.

"It really depends on what area you're in," said Clay County sheriff's Lt. Barry Abramowitz, president of the Florida chapter of the National Association of Drug Diversion Investigators.

In Jacksonville and north-central Florida, "we have very, very proactive law enforcement pill squads," he said. Other agencies aren't as aggressive toward health care professionals who steal from their workplaces. "They may not recognize this as a problem."

"That's wrong," said state Sen. Mike Fasano, a New Port Richey Republican. "If you steal, especially if you are in the medical field, the state needs to know. At a minimum, there should be a report to law enforcement."

But a lawyer for the Florida Nurses Association cautions that a police report could end a nurse's career. "The law is very unforgiving" of drug offenses by medical professionals, said Cynthia Mikos, a lawyer based in Tampa.

"This is a disease," Mikos said. "Don't we want to give them an opportunity to be treated?"

No one knows how many health workers in Florida are caught stealing drugs from hospitals, doctors offices and nursing homes where they work. The state Department of Health doesn't track this.

But a Tampa Tribune analysis shows nearly two out of three disciplinary actions against Tampa Bay area nurses by the state Board of Nursing were for drug or alcohol offenses.

Of 255 substance-abuse reports to the board in the past five years, about a third involved stealing drugs meant for patients, an offense known as "diversion." Many of the other reports lacked details, so the number could be higher.

The confidential treatment program, known as the Intervention Program for Nurses, reported that statewide, about a third of its 3,400 referrals in the past three years were diversion cases.

One reason numbers are hard to come by is that Florida has no system for reporting health care workers who steal drugs from their workplaces.

Instead, when a health care center detects a drug theft, it faces choices.

Fire the worker. Alert the police. Report the worker to the state Board of Nursing. Or refer the worker to the intervention program.

IPN, a private, nonprofit group that contracts with the state Department of Health, began 25 years ago to get nurses drug treatment rather than punishment for their addictions.

An employer who suspects a nurse is stealing drugs or using drugs or alcohol can refer the nurse to IPN instead of taking any other action.

Most nurses are referred to IPN because of "impairment in the workplace, forgery, diversion (theft) of drugs, or the use of illegal substances," the IPN Participant Manual says.

Avoiding a blotch

The focus is on getting nurses back to work without a blotch on their records. Thousands of nurses with drug problems have completed rehabilitation through IPN, returned to their jobs and never had a problem again, IPN officials say.

Most nurses in the program are required to go through drug treatment and psychiatric evaluation before taking care of patients again.

They must tell their employers they are in IPN, though this won't turn up on a state license search unless the nurse has been asked to "voluntarily withdraw" from practice, which comes only after a nurse has relapsed at least twice.

After going back to work, nurses in IPN must submit to random drug tests and attend meetings to show they're making progress.

Before IPN and a similar program for other health workers, known as the Professionals Referral Network, people who suspected colleagues of drug use kept it quiet. They didn't want them to lose their licenses, IPN officials say. Now they're more likely to tell.

"IPN and PRN are in place to PROTECT THE PUBLIC by capturing as many at risk practitioners as possible and MONITORING in order to PROTECT CONSUMER," IPN officials said in a written response to a reporter's questions.

It doesn't always work.

Repeat offenders

The Tampa Tribune recently wrote about a St. Petersburg nurse anesthetist in IPN, Ken Matsko, who was allowed to go back to work with a license that appeared clear after he had stolen the narcotic fentanyl from the surgery center where he worked.

He went through treatment and quit using, but started again, state disciplinary records show. While working at a cosmetic surgery center, he rigged up a system that enabled him to inject himself with the narcotic propofol while patients were being sedated.

Several nurses who have come into IPN under suspicion of theft steal drugs again while under IPN's protection, state disciplinary records show. Here are examples:

• A nurse from Valrico, Diane Remel, went to work at Shands in Gainesville and Brandon Regional Hospital in 2008 without reporting she was in IPN. She was fired from both jobs because it was suspected she was stealing drugs. Her relapses didn't come to light until she ended up in a drug detox center later in 2008.

• A nurse in IPN, Kim Hudgins, was fired from Naples Community Hospital in 2008 after she was seen entering a bathroom with a bag of the sedative Versed, and a used syringe was found in the room afterward. Six months later, while still in IPN with a clear record, she was suspended from Physicians Regional Medical Center after a co-worker saw her fill a syringe from a patient's bag containing the narcotic fentanyl and enter a bathroom.

• Another Naples nurse, Kathy Major, was fired from Physicians Regional in early 2009 when she removed 34 doses of the sleeping pill Restoril without documentation. But she wasn't reported to the board until several months later after she failed at least two drug tests.

The state Department of Health doesn't track IPN relapses or drug theft reports.

That infuriates Alberto Moscara, who works for a Texas-based pharmacy company that provides services to Memorial Hospital in Tampa.

"My job is to flag the discrepancies," Moscara said. But it's so frustrating. I do my job, and I look later and see their licenses are still clear."

He notices six or so drug theft cases a year and says he thinks most of the nurses are referred to IPN.

"I think they know that if they can jump to IPN, they can somehow evade prosecution."

All these nurses may not need to go to jail, he said, but he wants to see more public accountability.

"Every time they steal, they're breaking their oath. That goes totally against what I think we're here for."

Moscara wants to see the law speak directly to the consequences of stealing drugs from a workplace, with a special focus on nurses whose actions deny a patient pain relief or involve fraud.

"The law is not specific as to what will happen," Moscara said. "No one is afraid."

Sen. Fasano said he has talked to many health care professionals who share Moscara's frustrations. He plans to meet with state health officials to discuss how to deal with workplace drug theft.

"Certainly I want nurses and others getting the help they need," Fasano said. "But we don't want people using the program to avoid being charged with a crime."

The problem, said Mikos, the lawyer, is that the law bars nurses from practice if they are found guilty or plead no contest to a felony drug charge. It can mean the end of a career that might be saved through rehabilitation.

In some cases, nurses have been allowed to go through pretrial intervention and avoid conviction. A Jacksonville nurse arrested last year, Amy Hubbard Dukes, took that route - though she also voluntarily gave up her license.

In other cases, pretrial intervention means the nurse will be monitored by the criminal justice system and IPN at the same time.

Some state attorneys won't go along with that, Mikos said. They want convictions.

Fasano said he doesn't want to destroy the careers of nurses who could benefit from rehabilitation. But he also wants more safeguards and accountability.

"If someone is an addict and using drugs, I don't want them working in a hospital," he said. "At the least we need to have records."