Supreme Court rules state nursing board too slow to act

By John O'Brien | Mar 17, 2013

Benjamin


CHARLESTON – The state Supreme Court has ruled that the state’s governing body for nurses dragged its feet while processing complaints filed against a nurse accused of stealing prescription medication.

Jennifer Fillinger, a registered nurse, sought action by the state Board of Examiners for Registered Professional Nurses in the complaints filed against her. She said the board is delaying the administrative process for handling complaints.

Justice Menis Ketchum wrote the March 12 majority opinion. He said the court has been told there is a possible settlement, but that the court would address the allegations because the issues raised would likely arise again in the future.

In ruling for Fillinger, the court dismissed the complaints against her.

“The petitioner, denying any wrongdoing concerning the accusations, engaged in no conduct which impeded the administrative process,” Ketchum wrote.

“Nevertheless, the board has effectively denied the petitioner an opportunity to be heard in opposition to the allegations against her.”

Fillinger was fired from Charleston Area Medical Center in 2008 as a result of data collected in a machine that dispensed medicine for patients. It said use authorized by her pass code did not correlate with either drug inventories or patient records.

CAMC concluded she was unlawfully obtaining prescription narcotics for personal use or distribution.

In 2009, she was fired by Logan Regional Medical Center based on data from a similar type of machine. She says she has volunteered for and passed drug tests and has never been accused or investigated by any law enforcement agency.

A July 2011 hearing was scheduled, though it was continued until Sept. 8, 2011, nearly two years after Logan Regional filed a complaint with the board.

However, that hearing was also continued after Fillinger sought the name of the assigned hearing examiner, the names of the witnesses the board intended to call and any documents the board intended to submit.

A scheduled Oct. 25, 2011, hearing was continued because the board’s lawyer would not be available. A scheduled hearing a week later was also continued because the board’s lawyer suffered a medical emergency.

A May 22 hearing was stayed to allow a decision on Fillinger’s motion to dismiss the complaints.

“Reasons for the continuances were not given or adequately explained,” Ketchum wrote. “For example, although the board asserted the last minute receipt of additional medical records prior to the scheduled Sept. 8, 2011 hearing, the petitioner points out that the board provided no explanation why the records had not been previously obtained over a period of years.”

Chief Justice Brent Benjamin filed a concurring opinion to express that the board engaged in “excessively vexatious conduct.”

Because of its conduct, Fillinger could be awarded attorneys fees and court costs, he wrote.

“In the future, I believe this court should pay special attention to such conduct and make such awards of costs and expenses as appropriate to compensate the victims of such conduct and to communicate the message that this court expects all parties to abide by the code and by applicable rules,” Benjamin wrote.

From the West Virginia Record: Reach John O'Brien at jobrienwv@gmail.com.

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