Rafferty v. Commonwealth

Dissenting Opinion by

Judge Doyle:

I respectfully dissent. I cannot agree with the majority that in order to suspend or revoke a nurse’s license, the Board is required to find specific intent to violate the nursing regulations. Leukhardt v. State Board of Nursing Examiners, 44 Pa. Commonwealth Ct. 318, 403 A.2d 645 (1979) does not so hold and cannot be construed to support such a requirement. The majority’s holding allows a nurse guilty of a knowing and clear breach of an established hospital procedure to defend on the basis that in so acting contrary to proper medical procedure she/he did not intend to violate the Nursing Board’s regulations. Under such a burden to prove specific motivation, the Board would never be able to perform its disciplinary duties.

The majority, while conceding that nurse Rafferty’s behavior deviated from an accepted practice *608which, she, as a highly-qualified nurse knew or should have known, characterizes her conduct as “mere intentional acts” and “errors of judgment.” I submit that it is just such knowing and intentional deviations from accepted practice for which the Board has discretion to discipline under Section 14(3). And it is just such inexcusable errors of judgment for which the Board may suspend or revoke a nurse’s license. See Leukhardt.

I would agree that, in light of nurse Rafferty’s otherwise unblemished career, the penalty imposed by the Board in this case was harsh. I believe, however, that it was within the Board’s discretion and was supported by substantial evidence. I do not believe this Court should reverse. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704.