Judge: Curtis A. Kin, Case: 23STCP01669, Date: 2024-04-18 Tentative Ruling

Case Number: 23STCP01669    Hearing Date: April 18, 2024    Dept: 86

Petitioner Robertson Tinio petitions for a writ of mandate directing respondent California Board of Registered Nursing to set aside its decision revoking petitioner’s nurse license, staying the revocation, and placing petitioner on probation for three years.

I.       Factual Background

A.           Nursing License and Employment

In March 2006, petitioner obtained his Bachelor of Science in Nursing in the Philippines. (AR 432.) The same year, he passed the Philippine Nurse Licensure Examination, after which he became a fulltime registered nurse. (AR 433.) Petitioner continued to work as a registered nurse until 2009, when he resigned to attend medical school. (AR 433.)

In May 2013, petitioner graduated with a Doctor of Medicine degree. (AR 433.) In 2014, he was issued a physician’s license in the Philippines, where he worked as a medical doctor and completed a year of residency in internal medicine. (AR 433.) Petitioner then came to the United States to practice as a registered nurse. (AR 433.)

On December 8, 2017, respondent California Board of Registered Nursing (“Board”) issued a Registered Nurse License to petitioner Robertson Tinio. (AR 39.)

Petitioner worked at Oak River in California as a nightshift registered nurse for less than a week in January 2019. (AR 433.) Oak River never filed a complaint against petitioner with the Board. (AR 433.) Petitioner was then hired on February 13, 2019, by Dialysis Clinic, Inc. (“DCI”) in California and resigned on May 13, 2019. (AR 433.) DCI did not lodge any complaints against petitioner. (AR 433.)

            From June 17, 2019 until August 13, 2019, petitioner was employed by Vibra Hospital (“Vibra”) as a registered nurse (“RN”). (AR 443.) Petitioner worked in the Long Term Acute Care unit. (AR 443.) While at Vibra, petitioner always had a nurse preceptor with him. (AR 339.) A nurse preceptor is a nurse expert or specialist who trains nurses with practical experience. (AR 339.) Petitioner was never directly assigned patients. (AR 339.)

B.           Complaint, Investigation, and Accusation

            On August 21, 2019, the Board received a complaint from the Chief Nursing Officer at Vibra. (AR 443.) Petitioner was accused of having falsified documentation, not having adequately read physician orders, and having engaged in actions that could lead to patient harm or death. (AR 443.) Petitioner had resigned from Vibra on August 13, 2019, after having been informed that he would be suspended pending an investigation of allegations that he was not fit to practice as an RN at Vibra. (AR 292, 338.) Prior to the complaint from Vibra, petitioner did not have any history of disciplinary action. (AR 335.)

            From September 2019 through July 2020, Special Investigator Kristy Whitmire (“Investigator”) investigated the complaint. (AR 62-66.) Whitmire investigated petitioner’s performance at two of his previous employers through interviews with employees and requests for documents. (AR 343-46.)

With respect to Vibra, on March 30, 2020, Whitmire requested petitioner’s employee records, employment policies and procedures, and redacted medical records exhibiting petitioner’s false documentation from Vibra. (AR 341.) In response to the request, Vibra produced a written evaluation from Sally Thornton, dated September 10, 2019, and Ashley Tiraterra’s orientation letter regarding petitioner, dated August 29, 2019. (AR 85 [Thornton written statement], 88-89 [Tiraterra written statement]; AR 341.) Thornton served as petitioner’s nurse preceptor for nine days in June and July 2019. (AR 342.) Tiraterra trained petitioner for three days during the week of August 11-17, 2019. (AR 361.) Thornton and Tiraterra created their written statements at the request of the Director of Nursing after petitioner resigned from Vibra. (AR 358, 361.)

Despite having been asked for redacted medical records on March 30, April 21 and 24, and May 5 and 14 of 2020, Vibra did not produce any records corroborating petitioner’s alleged unsafe nursing practices. (AR 63-64, 342.) Vibra also did not produce classroom training evaluations showing that Vibra’s Clinical Supervisor “had verified [Tinio] as competent on June 18 and 20, 2019” in several of the areas in which Vibra claimed Tinio was deficient two months later. (AR 353.)

Thornton stated in her written statement that petitioner would chart assessments based on the prior night’s assessments. (AR 85.) Tiraterra stated in her written statement that petitioner did not know how long to push medication until she told him two minutes. (AR 89.) Tiraterra also stated that petitioner admitted having copied the night shift’s assessment that a patient, who was on 70 percent oxygen, was on 40 percent oxygen. (AR 89.)

Whitmire interviewed Thornton. (AR 342.) Whitmire also interviewed petitioner. (AR 346-51.) Petitioner denied not previously knowing that Dilaudid needed to be pushed for two minutes and allowed for the possibility that Tiraterra reminded him. (AR 349-50.) Petitioner also attributed his entry of 40 percent oxygen for a patient who was on 70 percent oxygen to no one ever having told him not to copy assessments by other staff. (AR 350.) Petitioner denied copying other staff’s assessments or any other wrongdoing at Vibra. (AR 350-51.)

Whitmire also interviewed Vibra’s Chief Nursing Officer (Sheba Saelee), Clinical Supervisor (Teri Burk), Director of Nursing (Kathleen Brownfield), and Staff Educator (Alan Brown) by telephone while they sat in a conference room together. (AR 66.) All these individuals based their responses on statements from petitioner’s preceptors or other staff. (AR 453-56.) Other than Thornton or petitioner, Whitmire did not interview anyone with first-hand knowledge of petitioner’s provision of care to patients. (AR 453-58.)

Based on the investigation, Whitmire found that Vibra’s complaint was substantiated, and that petitioner violated statutes and regulations prohibiting gross negligence, incompetence, and unprofessional conduct. (AR 352.) The Board subsequently filed an Accusation against petitioner for gross negligence, incompetence, and unprofessional conduct while working as a RN at Vibra and the two previous employers. (AR 14-17, 740-43.)

C.           Administrative Hearing

            The administrative hearing took place on December 12-14, 2022, before Administrative Law Judge Irina Tentser (“ALJ”). (AR 266.) The following individuals testified at the hearing:

1.            Kristy Whitmire

During the administrative hearing, Whitmire testified regarding her investigation. (AR 85, 358, 973.) Whitmire dismissed the omission of positive performance evaluations as irrelevant to Vibra’s complaint. (AR 354.)

2.            Sally Thornton

Thornton oversaw petitioner’s patient care, charting, and administration and provided petitioner with near constant supervision. (AR 358, 974.) Thornton testified at the hearing with respect to the following deficiencies in petitioner’s work performance at Vibra:

·         inappropriate bedside manner by laughing at serious situations in front of patients and talking to patients to make them feel upset;

·         never taking into consideration the patient’s wants and needs;

·         forcing administration of medications into the computer more than once

and failing to see why medication was not scanning;

·         incorrectly charting pain evaluations for patients despite being shown multiple times how to correctly chart the evaluations by Thornton;

·         an incident where Thornton needed to draw blood from a patient who was difficult to draw blood from (a hard stick), drew blood from the patient but needed to draw more and left the room for more needles, telling [petitioner] to look for a new vein and not throw any of the blood away. [Petitioner] threw out the blood and laughed when Thornton educated him that she needed the blood. [Petitioner] then failed to press the “triangle” to retract the blood despite Thornton’s repeated instruction, leading Thornton to conclude [petitioner] “doesn’t listen to directions.”

·         Copying patient chart assessments from the previous night instead of doing his own assessments;

·         Failing to read medication orders correctly and pulling one less than needed at times and would not catch his error until he was in the patient’s room;

·         Not reading the time and day of IV [antibiotics] as needed;

·         Forcing administration of a 0500 hours medication at 2100 hours;

·         Always hesitant to ask for help and ask questions; and,

·         Seemed to believe he could work on his own and asked to work on his own despite Thornton not agreeing he was ready to be in group alone.

(AR 358-60 [Decision], 975-85 [Thornton testimony].) Thorton testified that petitioner had never inaccurately recorded a patient’s blood pressure. (AR 1014; see section I.C.4, infra.)

3.            Ashley Tiraterra

            Tiraterra testified at the hearing with respect to the following deficiencies in petitioner’s work performance at Vibra:

·         Multiple issues pulling out medications including narcotics, causing the

count to be wrong;

·         On the second day of Tiraterra’s preceptorship, [petitioner] administered Dilaudid to a patient which Tiraterra felt she had to remind [petitioner] to flush before and after because she believed he was going to forget to do the flushing unless she reminded him. During that same Dilaudid administration, Tiraterra reported [petitioner] “went to push it fast” and the patient told [petitioner], as reported by Tiraterra, not to push Dilaudid fast or else [petitioner] was going to kill someone. Tiraterra then quizzed [petitioner] how long he should always push meds to be safe and [petitioner] did not answer until Tiraterra told him two minutes;

·         On the second day of Tiraterra’s preceptorship, [petitioner] did not know how long a bag of “NS” [normal saline] was good for; he incorrectly stated first four hours, then eight hours, until Tiraterra corrected him that the bag was good for 24 hours;

·         On the third day of Tiraterra’s nurse preceptorship, [petitioner] entered the wrong bipap setting (40 percent O2) for a patient who was on 70 percent O2. After he was questioned by Tiraterra about where he got these numbers, [Petitioner] admitted to Tiraterra he got them from the night shift.

·         After the incident with the O2 error on the third day of Tiraterra’s nurse preceptorship, [petitioner] entered the wrong vitals on another patient he was assessing, entering eight liters on a patient who was on six liters via nasal cannula.

(AR 362-63 [Decision], 921-31 [Tiraterra testimony].)

4.            Dr. Teresa Taylor  

            Dr. Teresa Taylor, the Board’s nursing standard of care expert, testified during the hearing that petitioner was grossly negligent and incompetent based on the following facts ascertained from her review of the Board’s Investigation Final Report and its attached documents:

·         [Petitioner] documented 40 percent O2 when the patient was on 70 percent O2, and when questioned where the 40 percent number was derived from, [petitioner] noted it was from the night shift assessment;

·         [Petitioner] did not assess another patient and incorrectly entered 8 liters (L) when the patient was on 6L via nasal cannula at the time of his assessment;

·         [Petitioner] required repeated reminders to always flush with Normal Saline (NS) before and after every IV push;

·         While administering IV Dilaudid, [petitioner] was pushing too rapidly instead of pushing slowly over two minutes;

·         [Petitioner] struggled with labeling and hanging a bag of NS;

·         [Petitioner] was unable to put the NS into the IV pump correctly;

·         [Petitioner] was unable to program the pump with the correct rate ordered by the doctor; and.

·         [Petitioner] documented inaccurate Blood Pressures (BP).

(AR 363-65 [Decision], 1179-88 [Taylor testimony].) In the administrative decision, the ALJ described the foregoing as “established facts.” (AR 364.)

5.            Petitioner

Petitioner presented classroom training evaluations verifying that he was competent in several areas of nursing. (AR 353-54.) Beyond the classroom, the positive evaluations also showed petitioner competently performing nursing tasks on actual patients—some of which were similar to the skills later complained of by Vibra. (AR 1329-1332.)

Petitioner also denied all allegations of wrongdoing at Vibra. (AR 366.) For example, he testified that he struggled with hanging a bag of saline because the room was dark and dim and Thornton did not want him to turn the lights on. (AR 1375-1376.) He also testified that he did not copy the assessments from the night before but would instead click the “no changes” box if he determined the patient had not changed since the last assessment. (AR 1381-1382.) He also stated he never had issues with patients asking him not to turn on the lights, to stop laughing, or getting angry with him. (AR 1336-1337.) Petitioner denied he had ever inaccurately documented a patient’s blood pressure. (AR 1380.) He further testified he did not recall an incident where he was unable to program an IV pump (AR 1379-1380) or when he supposedly “assess[ed] a patient as having been on 8 liters of oxygen when the patient was only on 6 liters.” (AR 1383.) He also did not remember ever documenting that a patient was on 40% oxygen when the patient was on 70% oxygen. (AR 1382-1383.) He actually explained that “[he] did not handle any patient with a BiPap machine under [Tiraterra’s] preceptorship.” (AR 1383.) As to whether he would attempt to push IV medications without flushing, petitioner testified that he “always flush[ed]” with normal saline “before and after.” (AR 1383-1384.) With regard to the allegation that petitioner “struggled with labeling . . . a bag of [normal saline],” petitioner explained that Vibra’s pharmacy was responsible for labeling the medication. (AR 1376-1379.)

D.           Decision

The ALJ issued a proposed decision on January 13, 2023. (AR 266, 318.)

            With respect to petitioner’s two prior employers, the ALJ found no cause to suspend or revoke petitioner’s license because the Board’s allegations were not supported by clear and convincing direct or contemporaneous evidence. (AR 286-89, 306-07.) 

            With respect to Vibra, however, the ALJ found that the Board established cause to suspend or revoke petitioner’s license due to gross negligence, incompetence, and unprofessional conduct. (AR 307.)

With respect to Thornton, the ALJ found Thornton’s testimony credible. (AR 358.) The ALJ noted that Thornton did not contemporaneously document any of the incidents concerning petitioner’ s competence or provide physical corroborating documentation. (AR 360.) The ALJ also noted that Thornton’s written statement was prepared after petitioner resigned from Vibra. (AR 358.) Nevertheless, the ALJ found Thornton credible, because her testimony was consistent with her written statement and her interview with Whitmire. (AR 358; see also AR 85.) The ALJ credited Thornton’s direct observation of petitioner’s work, finding Thornton’s accounts sufficient to satisfy the clear and convincing standard of proof. (AR 360-61.) 

With respect to Tiraterra, the ALJ found that Tiraterra’s August 29, 2019 written statement and hearing testimony clearly and convincingly established that petitioner engaged in unprofessional conduct. (AR 89, 363.)

With respect to petitioner, the ALJ found that petitioner’s denial of any wrongdoing “was self-serving and unsupported by credible corroborating evidence.” (AR 366.) The ALJ also found that petitioner’s overall veracity was questionable based on his inconsistent statements to Whitmire during the Board’s investigation. (AR 366.)

Based on Thorton and Tiraterra’s accounts and the opinion of Dr. Taylor, the ALJ found that the Board established “through clear and convincing evidence the Accusation’s allegations that [petitioner]’s RN work at Vibra was grossly negligent, incompetent, and constituted unprofessional conduct.” (AR 365.)

Considering aggravating factors, the ALJ noted that, on August 13, 2019, the Board issued a citation to petitioner based on a July 1, 2019 conviction for alcohol-involved reckless driving.[1] (AR 365-66.) The ALJ found that petitioner credibly testified that he has not consumed alcohol since he was arrested and that he does not have any issues concerning alcohol abuse. (AR 366.)

            Considering mitigating factors, the ALJ found that the contemporaneous medical records and classroom training evaluations, which Vibra did not produce during the investigation, were relevant mitigating and rehabilitative evidence. (AR 354.) The ALJ also noted that, after August 2019, petitioner has had a positive employment history as an RN with the California Department of Corrections & Rehabilitation (“CDCR”). (AR 366-67.) As of July 16, 2022, petitioner was rated as meeting performance standards and described as “reliable and responsible,” “receptive when training is required,” and as “a valuable asset to the institution” whose “work ethic is greatly appreciated by” petitioner’s peers and supervisors. (AR 367.) The ALJ also found that petitioner’s positive performance in the classroom at Vibra indicates that he has the requisite classroom knowledge to effectively function as an RN. (AR 367.) Petitioner also submitted five character reference letters. (AR 367-70.) Petitioner has also been pursuing a Master of Science in Nursing, with a concentration in Adult Gerontology Primary Care Nurse Practitioner, from Walden University. (AR 370.)

            With respect to appropriate discipline, the ALJ found that, although petitioner’s conduct was punishable by revocation of his license, outright revocation would be excessive. (AR 376.) The ALJ considered that petitioner’s deficiencies were limited to an eight-week period when he was a new trainee, not a tenured employee. (AR 376.) As a result, no harm resulted to any patient at Vibra. (AR 376.) The ALJ also noted that more than three years had passed since petitioner’s employment at Vibra. (AR 376.) The ALJ noted that petitioner’s recent work evaluation at CDCR and character reference letters were indicative of his competence as an RN. (AR 376.) The ALJ also found that petitioner’s prior conviction did not constitute prior license discipline. (AR 376.)

            Nevertheless, due to petitioner’s “lack of candor and continuing inability to accept responsibility for his actions,” the ALJ found that petitioner’s rehabilitation was incomplete. (AR 376.) With respect to the appropriate discipline, the ALJ found: “Based on the totality of the circumstances, a period of probation of three years is necessary for Respondent to reflect on his past actions, to prevent potential future recurrence, and to protect the public.” (AR 376.) The ALJ ordered that the registered license issued to petitioner be revoked, but for such revocation to be stayed and for petitioner to be placed on probation for three years under specified conditions. (AR 378-86.) The ALJ found that petitioner shall practice only under the direct supervision of a registered nurse in good standing with the Board unless other methods of supervision or collaboration are approved. (AR 382.)

            On March 15, 2023, the Board adopted the ALJ’s proposed decision and ordered it effective on April 14, 2023. (AR 333.)

II.      Procedural History

On May 12, 2023, petitioner filed a Verified Petition for Writ of Administrative Mandamus. On June 6, 2023, respondent filed an Answer.

            On September 5, 2023, the Court denied petitioner’s motion to stay operation of the administrative decision.

            On February 15, 2024, petitioner filed an opening brief. On March 18, 2024, respondent filed an opposition. On April 3, 2024, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

“When an administrative decision substantially affects a fundamental vested right, such as the revocation of a professional license or the right to practice one's profession, the independent judgment standard of review applies.” (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 574; see also Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195, 1200 [“A trial court reviewing an administrative decision that imposes discipline on a professional licensee must exercise its independent judgment based on the evidence before it”].) “The superior court resolves evidentiary conflicts, assesses the witnesses' credibility, and arrives at its own independent findings of fact.” (Ibid.) the proper standard of proof in an administrative hearing to revoke or suspend a doctor's license should be clear and convincing proof to a reasonable certainty and not a mere preponderance of the evidence.” (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856, italics in original.) “Clear and convincing” means evidence that is “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981) 28 Cal.3d 908, 919, quoting Sheehan v. Sullivan (1899) 126 Cal. 189, 193.)

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

IV.     Analysis

            Petitioner seeks to set aside the March 15, 2023 “Decision and Order” on the grounds that the ALJ’s findings were not supported by the weight of the evidence and that the findings do not support the legal determination that petitioner acted with gross negligence, incompetence, or with unprofessional conduct.

A.           Weight of the Evidence

The ALJ found that the Board “established through clear and convincing evidence [petitioner] was grossly negligent, incompetent, and engaged in unprofessional conduct during his employment at Vibra.” (AR 371.) Because this finding was the basis for the imposition of discipline affecting petitioner’s RN license, the Court reviews the finding under the independent judgment standard of review.

1.            Meanings and Application of Gross Negligence, Incompetence, and Unprofessional Conduct

Business and Professions Code § 2761 allows the Board to take disciplinary action against a licensed nurse for “unprofessional conduct,” which includes “[i]ncompetence, or gross negligence in carrying out usual certified or licensed nursing functions.” (Bus. & Prof. Code § 2761(a)(1).)

            “Gross negligence,” as used in Business & Professions Code § 2761, “includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life.” (16 C.C.R. § 1442.)

            “Incompetence,” as used in Business & Professions Code § 2761, is defined as “the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as described in Section 1443.5. (16 C.C.R. § 1443.) Standards of competent performance includes “perform[ing] skills essential to the kind of nursing action to be taken.” (16 C.C.R. § 1443.5(3).)

Here, based on the written statements and testimony of the nurses who precepted petitioner, as well as the expert opinion presented by the Board, a finding that petitioner was grossly negligent, incompetent, and engaged in unprofessional conduct was supported. Thorton’s written statement and testimony established that petitioner copied chart assessments from the previous night instead of doing his own assessments, failed to read medication orders correctly, and forced a medication to be taken at 9:00 p.m. instead of 5:00 a.m. as required. (AR 359-60.) Tiraterra’s written statement and testimony established that petitioner pushed the medication Dilaudid too fast, did not how long to push medications, and entered wrong vital signs in records. (AR 362-63.) Dr. Taylor, the Board’s expert on the nursing standard of care, testified that copying chart assessments, failing to assess patients correctly, failing to read medication orders correctly, forcing a medication to be taken at an incorrect hour, pushing a medication too far, and entering wrong vital signs in records could potentially harm patients, raises concerns of competence, and constitutes gross negligence. (AR 1179-88.)

Even if no patients were harmed because of petitioner’s conduct, the finding of petitioner’s “gross negligence” remains. “Gross negligence” can be found where the nurse knew, or should have known, that departing from the standard of care could have jeopardized the patient’s health or life. (16 C.C.R. § 1442.)  No actual harm is required. Further, even though petitioner’s breaches of the standard of care occurred during a twelve-day time period when petitioner was still in training (AR 376), Dr. Taylor testified that the standards of care which petitioner breached were basic expectations. (AR 1181, 1183-85.) The fact that petitioner may have been in training does not excuse the failure to assess patients and properly chart the assessment, as opposed to copying assessment from the prior shift; to know to flush with normal saline before and after every IV push; and to push medication slowly over two minutes—all of which are expectations of every RN.

The above instances are sufficient to establish that petitioner could have jeopardized patient health and lacked the degree of learning and skill ordinarily exercised by a competent RN.

2.            Evidentiary Value of Thornton and Tiraterra’s Written Statements and Testimony

            Petitioner contends that the decision to place him on three years of probation while the revocation of his license was stayed was not supported by reliable evidence because statements of petitioner’s alleged work performance deficiencies were written at the direction of the Director of Nursing after petitioner resigned from Vibra Hospital. The statements prepared by Thornton and Tiraterra after petitioner had resigned still have evidentiary value.

Even if the written statements were prepared at the direction of Thornton and Tiraterra’s boss (AR 358, 360, 361), that fact alone does not mean they contain any falsities. While coerced testimony is unreliable (People v. Silveria (2020) 10 Cal.5th 195, 264), there is nothing about the statements themselves to suggest they were the product of coercion.  Petitioner points to Thornton’s written statement in which she wrote to the Director of Nursing that “I hope this is what you wanted in an evaluation” of petitioner and that the Director should let her know “[i]f it needs changes.” (AR 86.) But Thornton’s statements on their face are neutral. That Thornton expressed hope that her evaluation was adequate does not necessarily mean that the Director of Nursing told Thornton to be untruthful.  Moreover, the prior written statements were generally consistent with testimony adduced at the hearing, and there is no indication in the ALJ’s decision that any testimony during the hearing may have been coerced by any supervisor.

Petitioner also argues that the written statements were written on August 29 and September 10 of 2019, after petitioner had resigned on August 13, 2019. (AR 85, 88-89, 292.) While the written statements may not have been contemporaneously prepared and the short time delay before they were created might have diminished their accuracy (see Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205, 214), the ALJ did not make findings regarding petitioner’s gross negligence, incompetence, and unprofessional conduct based on the written statements alone. The ALJ also considered the nurse preceptors’ testimony during the hearing, which the ALJ found credible and consistent with the written statements. (AR 360-61, 363.)

            In the reply, petitioner argues that Thornton said in her written statement that during the “hard stick” incident, after petitioner failed to draw blood, Thornton “attempted and got the blood.” (AR 85.) However, during the hearing, Thornton first said that she would have had someone else, as opposed to her, get the blood. (AR 1000.) After she was questioned about the discrepancy between her testimony and her written statement, Thornton said: “I’m trying to think back to the situation. I believe we did.” (AR 1000.) This inconsistency alone does not invalidate Thornton’s testimony or written statement. Clear and convincing evidence does not demand perfect recall, only sufficient strength to persuade all reasonable minds. (Angelia P., 28 Cal.3d at 919.) Thornton was still clear that petitioner disposed of blood that she needed and that petitioner did not know how to draw blood. (AR 978-80.)

            Petitioner also argues that Thornton and Tiraterra’s written statements and testimony were not corroborated by documentary evidence. However, corroboration with physical evidence is not necessary. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075.) Unless required by statute, the testimony of one witness may be sufficient to support the imposition of discipline. (See ibid.)

            Petitioner denied all wrongdoing during the hearing. (AR 366.) However, as the ALJ found, petitioner’s denials are self-serving and uncorroborated by credible corroborating evidence. (AR 366.) Petitioner provides no credible reason for Thornton or Tiraterra to have lied regarding his provision of care. (See AR 366 [petitioner attempted to attribute the accusation to racial or personal animosity, which the ALJ did not credit].)

Based on the foregoing, the testimonies of Thornton and Tiraterra were sufficient to support the ALJ’s findings concerning petitioner’s conduct at Vibra.

3.            Completeness and Sufficiency of Investigation

            Petitioner contends that Whitmire’s investigation was incomplete because Whitmire did not consider his positive classroom training evaluations or medical records corroborating petitioner’s unsafe nursing practices because Vibra withheld them. (AR 63-64, 342, 353.) Petitioner also contends that Whitmire’s investigation was largely based on secondhand accounts from individuals who were interviewed together. (AR 66, 453-56.)

            Even crediting petitioner’s assertions, they do not preclude a finding from the Court that the weight of the evidence supports the ALJ’s findings concerning petitioner’s conduct. With respect to unproduced medical records, as stated above, corroboration through documentary evidence is not necessary to support the imposition of discipline. (See Dart Industries, 28 Cal.4th at 1075.) The Board demonstrated the deficiencies which Thornton and Tiraterra described in their written statements and about which they testified during the administrative hearing. (AR 359-60, 362-63.) Any deficiencies in Whitmire’s investigation do not render Thornton or Tiraterra’s written statements or testimony not clear or convincing.

4.            Dr. Taylor’s Testimony

Petitioner argues that the opinion of Dr. Taylor, the Board’s expert witness, was based on faulty, non-credible evidence. Dr. Taylor’s opinion was based on the Board’s Investigation Final Report and emails, documents, files, and records contained therein. (AR 364.)

Part of the Final Report was based on secondhand accounts. (AR 66-69.) Nevertheless, the Final Report also detailed Whitmire’s interview with Thornton (AR 60, 69-70), Thornton’s written statement (AR 75-76), and Tiraterra’s written statement (AR 61, 72-73, 75). Dr. Taylor’s testimony concerned the deficiencies detailed by Thornton and Tiraterra, which the weight of the evidence supports. (AR 1179-88.) Accordingly, Dr. Taylor’s opinion rests on an adequate foundation.

Petitioner argues that the ALJ treats as “established fact” that petitioner documented inaccurate blood pressures, upon which Dr. Taylor formed her opinion of petitioner’s gross negligence and incompetence. (AR 364.) Thorton testified that petitioner had never inaccurately recorded a patient’s blood pressure. (AR 1014.) Even excluding inaccurate blood pressures from the established facts, the remaining facts upon which Dr. Taylor based her opinion, including inaccurate charting and assessment and pushing medication too fast, are sufficient to support her opinion.

5.            Conclusion

Based on an independent judgment standard of review and a preliminary assessment of the merits with respect to liability, the Court finds that the weight of the evidence supports the ALJ’s findings regarding petitioner’s conduct. The Court also finds that the legal determination that petitioner acted with gross negligence, incompetence, or with unprofessional conduct is supported by the evidence concerning petitioner’s conduct at Vibra.

B.           Propriety of Penalty

            With respect to the propriety of the three-year probation imposed on petitioner, “The propriety of a sanction imposed by an administrative agency is a matter resting in the sound discretion of that agency, and that decision will not be overturned absent an abuse of discretion.” (Hughes v. Board of Architectural Examiners (1998) 68 Cal.App.4th 685, 692. If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

While revocation of petitioner’s license was an option, the ALJ considered petitioner’s base of knowledge gained from classroom learning, as well as petitioner’s post-Vibra employment and character references, to find that probation was more appropriate. (AR 376.) Even though the ALJ found petitioner to be a competent RN, she found probation to be warranted based on petitioner’s lack of candor and inability to accept responsibility. (AR 376.) During the hearing, petitioner denied wrongdoing and attempted to attribute the accusation to racial or personal animosity. (AR 366.) When directly confronted with Tiraterra’s allegations during the Board’s investigation, including pushing Dilaudid too fast, petitioner denied wrongdoing to the Investigator. (AR 350-51.) Contrary to petitioner’s contention, petitioner’s prior conviction did not factor into the decision to impose probation. (AR 376.)

Evidence of rehabilitation submitted by petitioner is a factor in considering the suspension or revocation of a nurse license. (16 C.C.R. § 1445(b)(2)(G); see also AR 188 [factors for determining whether to impose revocation, suspension, or probation].) While petitioner may have been entitled to dispute the charges against him, petitioner must bear the consequences of refusing to acknowledge his wrongdoing, as “[f]ully acknowledging the wrongfulness of [one’s] actions is an essential step towards rehabilitation.” (Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 940.) Further, the recommended minimum discipline for incompetence or gross negligence as set forth in the Board’s Disciplinary Guidelines is revocation stayed with three years probation. (AR 189.)

Based on petitioner’s lack of remorse and the minimum discipline set forth in the Disciplinary Guidelines, the ALJ did not abuse her discretion in requiring petitioner to practice nursing with supervision.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.