A-750- 2150 Index 1170.9








September, 2013




Neglect of Duty

Healthcare worker



Failure to Order Medication


A nurse s failure to carefully monitor a patient s medications, and to renew the prescription in an expeditious manner, causing a lapse in administration of the medication and thereby jeopardizing the claimant s health, is disqualifying misconduct.



A.B. 569,264



The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective July 10, 2012, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by , prior to July 10, 2012, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed October 15, 2012 (012-33556), the Administrative Law Judge granted the employer's application to reopen 012-28550 and overruled the initial determination. The Commissioner of Labor appealed the Judge's decision to the Appeal Board, insofar as it overruled the initial determination. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor. Based on the record and testimony in this case, the Board makes the following


FINDINGS OF FACT: The claimant, an RN, was employed for approximately one year by an organization that provided services, including a residential program, for autistic individuals. Her duties included supervising the staff, dealing with the residents and their families, and dealing with medical issues. In March 2012, the claimant was placed on probation because of several issues, including an incident where a resident did not receive prescribed medication. On May 22, 2012, a meeting had been held with the RNs, including the claimant, the management staff, and staff from the children's residential program, regarding problems with medications running low on the weekends. It was agreed at the meeting that the RNs would do a full check of the medications each Friday to ensure that there were sufficient medications for the weekend. The medications were in blister packs and at the right hand side of the pack was a blue area that would indicate it was time to reorder. On Friday, June 22, 2012, the claimant did a brief check of the med cart, "eyeballing" it. On Monday, June 25, the claimant was notified that one of the residents (RO) had not received his gastrointestinal medication that day because it had run out. On June 26, at12:25 P.M., the claimant sent a fax to RO's doctor indicating that RO had missed his medication the day before. At 1:18 P.M., the claimant sent the program director an e-mail indicating that she had called RO's doctor about the prescription. The claimant was discharged on July 9, 2012, because she had not checked the med cart properly and had waited a day before renewing RO's prescription.


OPINION: The credible evidence establishes that the claimant lost her employment because she did not check the med cart as required and waited to renew a prescription which had run out. We are not convinced by the claimant's testimony that RNs were only required to do a "skeletal check" of the med cart, "eyeballing" it to see if all medications were present. The program director testified that RNs were required to do a thorough check on Fridays, and had stated further that she had never heard the term "skeletal check". Ensuring that the residents had their needed medications was part of the claimant's job; and it is not credible that she would have been able to tell whether all needed medications were available just by "eyeballing" the med cart. As to the issue of when she first contacted the doctor's office, the claimant contended that she called the doctor's office and spoke to the receptionist on the 25th of June. However, the only documentation reflects activity on the 26th; and we note that the claimant stated in passing that there could have been a delay before she contacted the doctor's office and also stated that "in her heart" she believes she called on Monday. Given her equivocation, and the evidence of the fax and the e-mail, we find that she did not, in fact, call to renew the medication until Tuesday. In Matter of Nicholas (23 AD3d 979 [3rd Dept 2005]), a case concerning a nurse practitioner, the court, in affirming the Board's finding of misconduct, noted that a medical professional's failure to adhere to prescribed procedures could jeopardize the patient's safety. In this case, the resident failed to receive required medication, which could have had an adverse effect on the resident's health. The claimant's failure to check the med cart properly and to renew the prescription in an expeditious manner rises to the level of misconduct. Accordingly, we conclude that the claimant was separated from employment under disqualifying circumstances.


DECISION: The decision of the Administrative Law Judge, insofar as appealed from, is reversed. The initial determination, disqualifying the claimant from receiving benefits effective July10, 2012, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by, prior to July 10, 2012, cannot be used toward the establishment of a claim for benefits, is sustained. The claimant is denied benefits with respect to the issues decided herein.





1.      This decision establishes that a patient does not have to be actually harmed by the claimant s failure to follow policy and procedures, for negligence to constitute misconduct. The key element is the potential for harm.


2.      This decision further demonstrates that a health care professional is appropriately held to a high standard of care in the performance of job duties, because of the potential of harm that could result from mistakes.


3.      See Interpretation Index entry 1172.2 for a similar case involving a healthcare worker. In that case the Appeal Board held that a registered nurse who falsified medical records to indicate she had administered medications to patients had committed an act of disqualifying misconduct. In that decision the Appeal Board held the lack of a prior warning was not controlling as the claimant was aware of the employer s zero tolerance policy regarding the falsification of medical records.