In Minnesota, nurses in trouble get second chances

Elda Bothun lay unconscious on her bed inside a Bloomington nursing home. She had stopped breathing, but the two nurses assigned to care for her had left the room.

A police officer, summoned by a delayed emergency call, tried resuscitating the elderly woman, with no help from the nurses. Then paramedics took over. It was too late.

At 5:05 a.m., Jan. 19, 2009, Bothun was pronounced dead.

A state investigation found a severe breakdown in Bothun's care just before her death and determined that the failure of nurses Elijah Mokandu and Meaza Abayneh to help her during the apparent heart attack amounted to neglect of a vulnerable adult. Police and the city attorney went further: They charged the nurses with criminal neglect, a rare step in Minnesota.

The Minnesota Board of Nursing could have taken away the licenses of Mokandu and Abayneh. Instead, it directed them to take training classes and consult with other nurses about how to respond to emergency situations.

The two nurses were allowed to keep practicing.

That's the board's common response when nurses are accused of endangering or harming patients from serious medical errors, thefts of medication or outright neglect.

Records examined by the Star Tribune of more than 1,000 disciplinary actions by the Nursing Board over the past four years show that it tolerates or forgives misconduct that would end nursing careers in other states.

The Star Tribune's investigation found:

• The board actively licenses more than 260 nurses since 2010 who have records of unsafe practice, including botched care that led to patient harm or even death.

Eighty-eight nurses are allowed to practice despite having been charged or convicted of crimes such as physical or sexual assault and drug thefts — some against their own patients.

• The board gives nurses who admit misconduct second, third and sometimes more chances to keep practicing.

• Getting fired for incompetence, even multiple times, rarely means Minnesota nurses lose their licenses.

• Minnesota is one of only 10 states where the board has no restrictions on granting licenses to felons, according to a 2012 survey of state nursing boards.

Gov. Mark Dayton called the Star Tribune's findings "shocking," and said the Nursing Board's actions puts patients at risk for harm.

"It would appear the board is more interested in protecting bad nurses than the public," he said. "Where does it come from that their job is to give subpar nurses chance after chance after chance?"

In an interview Friday, Dayton vowed to take "whatever action is necessary" to change how the board views discipline, starting with filling two currently open seats with members who will "understand these problems and insist on a very different approach.

"We'll do whatever is necessary to reconstitute the board, or revise its procedures or give them a very clear statement from both the executive and legislative branch that they need to set a much higher standard and enforce it," he said.

"I'm just appalled," said Vickie Halstead, a registered nurse in Minnesota who testifies as a medical expert in malpractice cases. She reviewed two dozen disciplinary cases for the Star Tribune. "It's scary to think some of these nurses with these kinds of histories are taking care of patients."

Shirley Brekken, the Nursing Board's executive director, said the board's priority in disciplining nurses is to protect the public. She said that can often be achieved by close supervision, mandatory training and other measures that allow these nurses to keep working.

Records show that nurses across the state have kept their licenses despite an array of harmful care: stealing narcotics from patients in pain, letting a patient fall so violently it caused a facial fracture and displaced an eyeball, neglecting a patient who was found caked in rodent feces. The board often views failures in patient care by nurses as a lapse in training, records show, not grounds for punishment or removal from the profession.

In one such case, Luvern Kraft died in a Waconia nursing home in April 2012 after her nurse failed to give her CPR or call 911 after she was found unconscious. The Minnesota Department of Health determined the nurse, Susan Walter, was responsible for the neglect of a vulnerable adult after telling an investigator she didn't take emergency measures because she "was tired and was not thinking clearly," according to the Health Department's investigative report. The Nursing Board ordered Walter in August to take a CPR class and consult one on one with another nurse.

"I find it hard to believe they're going to let people like that get their license back if they do that to other people, if you're that careless," said Kraft's son, Steven. "It isn't like making a bad hamburger at a restaurant … You're dealing with somebody's lives."

Walter referred questions to her attorney, Craig Mertz, who said they have appealed the neglect finding. He said Walter didn't start CPR because Kraft was already deceased when the nurse got to her.

Nurses who acknowledge misconduct, even severe transgressions, also can persuade the state board to let them keep practicing. That's what helped Sean Dipasqua hold onto his license, despite a felony drug theft conviction in 2009 for stealing narcotics from Hennepin County Medical Center. He admitted to the Nursing Board that he practiced while impaired. In its disciplinary order, the board said it "acknowledges licensee's candor and genuine remorse for his actions." The board fined Dipasqua $3,000 and ordered him to undergo state monitoring to ensure his sobriety and notify his supervisor of the board order.

When the Nursing Board does take away a license, it often comes after years of criminal behavior, substance abuse or incompetent care. Cari Cady was allowed to keep practicing after she pleaded guilty in 2008 to stealing pain medications from a resident living at a Marshall, Minn., facility. She went through drug treatment and found a new job. But last year, she stole about 375 prescription painkillers from a Balaton, Minn., nursing home and replaced them with Tylenol and aspirin, an action that she knew would endanger patients. This time, the board suspended her license.

In a brief interview this summer, Cady was asked if she thought the state Nursing Board protects the public from dangerous nurses. Her answer: "Oh, God no."

Protecting the public

The Minnesota Board of Nursing, the state's largest health licensing board, receives an average of 1,600 complaints each year. It dismisses three-quarters of those complaints and hands down disciplinary and corrective action in one-fifth of them. About 140 nurses each year face the most severe consequence — loss of their license.

The 16-member nursing board includes 12 nurses. They are each appointed by the governor to oversee the licensing of more than 115,000 nurses, the vast majority of whom are "safe, competent and ethical practitioners," Brekken said. The Star Tribune attempted to contact all current board members, four of whom referred questions to Brekken or the board chairwoman, while the rest did not return calls.

If a complaint against a nurse is proven, state law gives the board wide discretion to choose which disciplinary action to take. Board chairwoman Deborah Haagenson declined to talk about specific cases but said nurses facing action by the board have to demonstrate they are safe to practice.

"The law allows for remediation and recovery," said Haagenson, a registered nurse and a vice president of a Park Rapids hospital. "If someone has demonstrated that they are safe to return to practice, the board would have no cause to prevent them from practicing."

The board also has to balance its disciplinary role against the effect on a nurse's livelihood, Brekken said. What it has to determine, she said, is "how intrusive does the action have to be [against the nurse] to protect the public?"

The Nursing Board also regularly seeks to reach an agreement with a nurse, so it can avoid a potential costly court fight, Brekken said.

"Certainly, there are instances when the order may not be as strong as the board initially proposed," she said.

Brekken said the board is also guided by Minnesota's Criminal Rehabilitation Act. That law, passed in 1974, directs almost all state licensing boards to allow professionals with convictions to practice if they can show they have been rehabilitated.

The board has required hundreds of actively licensed nurses to be monitored by the state or has limited where they practice as part of their discipline. In other cases, Brekken said, continuing education is more appropriate for nurses who make mistakes.

The only conduct that results in a mandatory suspension for a nurse in Minnesota is failing to pay taxes or child support.

Sometimes suspending a nurse's license is the appropriate response, Brekken said. She pointed to the case of William Melchert-Dinkel, who lost his license in 2009 after he was accused of going on Internet chat boards, posing as a female nurse and encouraging people to commit suicide. Prior to that, Melchert-Dinkel was disciplined twice by the board and allowed to keep his license, records show, including after he was disqualified from providing direct patient care by the state Department of Human Services for physically abusing nursing home residents.

The board also has reinstated licenses at least 100 times since 2008.

One of those was Donna Evjen, who sent a phony letter in Brekken's name to her boss explaining a board action. Records show Evjen was also fired from a nursing job after her employer discovered discrepancies in her handling of narcotics, and she lost another job for poor performance and lied to the board about it. In May 2012, Evjen also tested positive for cocaine before taking a job. The board met with Evjen in January and allowed her to keep her license, even after finding she may have gotten the cocaine from a vulnerable adult. She is not allowed to work in a supervisory position.

Giving troubled nurses a second chance "is part of living in the United States," said former board member Kristina Malone, a licensed practical nurse.

"We try to believe in second chances if there's a reasonable expectation that that person has done what they should to fix whatever was going on in their life and they're going to be safe again," she said.

Edie Brous, a nurse and attorney who represents nurses in front of boards in Pennsylvania, New York and New Jersey, reviewed more than 20 disciplinary cases for the Star Tribune and concluded that Minnesota is not nearly as punitive compared to those states.

"If you're using nitrous oxide on the job [or] having sex with patients, you're done," she said, referring to misconduct that hasn't cost Minnesota nurses their licenses. "In my states, that license would be revoked."

Dayton called the board justifying its actions under the Criminal Rehabilitation Act a "cop-out."

"If the law is outdated or defective or incomplete and somebody dealing with that law, if it prevents them from doing what they should be doing responsibly, then their responsibility is to communicate that to the governor's office, to the chairs of the House and Senate committees with that responsibility to change the law," he said. "And the fact that they don't take responsibility for what they're doing is a real danger sign right there."

Neglected, still licensed

Elda Bothun felt in such good health at 83 that she had gone two years without a checkup. The Richfield woman retired in her late 70s after a lifelong nursing career and devoted herself to cooking, playing bridge, knitting, volunteering and spending time with her husband. When she did see a doctor, tests discovered a bulging blood vessel in her abdomen.

After successful surgery to repair the aneurysm, Bothun decided to recuperate for a few days at the Martin Luther Care Center in Bloomington, her husband later said in a deposition. The last thing she told her husband before he left her the night of Jan. 18, 2009 was: "You go home and get a good night's sleep. I feel good, and I'll see you tomorrow morning for breakfast."

It's unclear exactly what happened next. What is known, according to police, court and Health Department records: The nurse who was directly responsible for Bothun's care that morning, Meaza Abayneh, told police she went to Bothun's room at 3 a.m., found that she was short of breath and unable to give a blood pressure reading, according to a Bloomington police report. Abayneh said she tried to give Bothun nitroglycerin. but her patient went unconscious. She said she then called police, because the facility's 911 system was down.

Mokandu told a different story to a Health Department investigator: He said he was supervising Bothun while Abayneh went on break. He went to Bothun at 3 a.m. when she hit her call light to ask for pain medications, which he gave without providing any medical assessments. Mokandu said that at 4 a.m., Abayneh told him that she wasn't able to get a blood pressure reading from Bothun. Mokandu said he had Abayneh call the police.

When paramedics arrived at 4:42 a.m., they reported that Bothun's skin was blue and her legs were mottled, an indication she hadn't received oxygen and had been in cardiac arrest for at least 20 minutes.

Abayneh's notes regarding the vital signs she took from Bothun had no times listed when the checks were made. Neither nurse could explain to the officer on the scene why it took at least a half-hour to call police.

The state Health Department found the facility neglected Bothun when Mokandu medicated her without evaluating her condition and that both nurses failed to properly monitor her declining condition, help emergency personnel or initiate CPR.

Mokandu and Abayneh pleaded not guilty to the criminal neglect charges. Prosecutors agreed to dismiss the charges after the nurses served a year of probation and paid $500 in court costs.

The Department of Health and the Nursing Board also learned that Mokandu had previous problems at the facility, including being warned by the home for falsifying records in 2005, failing to ensure skin assessments were being documented and failing to notify a resident's doctor of an incident where the resident suffered injuries. In April 2010, he gave a discontinued medication to a resident. That month he resigned from the Martin Luther Care Center in lieu of being fired.

Abayneh was suspended for three days from the nursing home following Bothun's death, then resigned in February 2009.

In his response to the Nursing Board, Mokandu denied that he failed to adequately respond during the Bothun case. He said he provided adequate care to his patients but did not always document the care. A licensed practical nurse since 1998, Mokandu was granted an RN license in July 2009.

Mokandu and Abayneh declined to comment through their attorney, Rebecca Moos. She said the criminal charges and the Health Department's neglect finding resulted from language differences and a misunderstanding on the part of the Bloomington police.

Bothun's husband, LeRoy, filed a wrongful-death lawsuit against the nurses and the home. It was dismissed, with a district court and appellate judge ruling that Bothun could not prove the nurses' care caused his wife's death.

The Bothuns' son Robert said the nurses who were supposed to care for his mother that morning should have lost their licenses.

"They shouldn't be in charge of caring for people," he said.

'Collective ineptitude'

Relatives of Firman Adams said they feel the same way about the last nurses assigned to care for him.

As Adams was dying in his wheelchair in a New Hope nursing home last year, his nurses were arguing about what to do about it, records show. His wife and daughter watched in horror.

The 84-year-old Adams was supposed to be at the Ambassador Good Samaritan nursing home only for about a week in March 2012 to recover from a knee replacement. While Adams was having dinner with his wife, Dorothy, and daughter Cheryl Freeburg, his head rolled back and he went unconscious. Freeburg screamed for help.

He was wheeled to his room, where one of his nurses, Chineze Anwah, said nothing was wrong with him, Freeburg said. The other nurse, Kelli Marie Harris, didn't believe her and found that Adams had no vital signs.

Anwah wanted to do CPR. But Harris refused, saying CPR couldn't be done on a patient with a pacemaker, records show. When police arrived, they found Adams sitting in his wheelchair, according to the New Hope police incident report. Paramedics couldn't revive him.

The state Department of Health found the nurses responsible for the neglect of a vulnerable adult for failing to do CPR. A human services judge later recommended that finding be overturned. The judge wrote that while the nurses' care was "collective ineptitude," Harris made her error in "good faith" and Anwah couldn't have given CPR without Harris' help.

The New Hope nursing home fired Harris in July 2012 after more problems, including medication errors, according to the Nursing Board corrective action. The board ordered Harris to take four courses and do one-on-one consultation, which isn't considered discipline.

The board has never taken action against Anwah.

Adams' family cannot understand the board's response.

"My assumption is that if the state is going to issue them a license, that is telling me that those nurses have gone through their educational, on-hands training and have a thorough understanding of what their duty is," said Freeburg, Adams' daughter. "You don't get a do-over when you're a nurse … Either you know it or you don't."

'Shocked that they're licensed'

Rosella Collins-Puoch was stunned to learn this year that the two nurses who had sexual contact with her son in 2005 have since regained their licenses.

Having sex with patients, even convictions for sexual misconduct, doesn't necessarily end nursing careers in Minnesota.

Eight years ago, investigators found that Andrea Gillen and Jennifer Graft repeatedly had sexual contact with Collins-Puoch's son. He had been civilly committed at the St. Peter Regional Treatment Center for being a mentally ill, dangerous and vulnerable adult.

Gillen and Graft agreed with the board to cease practicing weeks after they were criminally charged. In 2006, Graft pleaded guilty to criminal sexual contact by a caregiver. In 2008 Gillen pleaded to fourth-degree criminal sexual conduct.

Graft's license was reinstated in 2007. She has no limitations on where she can work. Gillen got her license reinstated last year. She can't work in certain care settings, such as group homes or assisted living, a limitation that can be removed after 2,000 hours of work.

Brekken, the Nursing Board director, would not specifically comment on their cases. Instead, she pointed to the state law requiring the board to reinstate licenses if nurses show they've been rehabilitated.

In an interview, Gillen said she hasn't been able to get a job in nursing because she was disqualified from providing direct care by the state Department of Human Services. She said she hopes to get a job in health care that uses her nursing skills.

Gillen said she wasn't surprised the board reinstated her license after she explained that the contact was consensual.

"The board did exactly what they should have done," she said. "They must believe that people deserve second chances or make mistakes. I'm an intelligent, smart woman. I just made a bad personal choice."

Graft could not be reached for comment.

Collins-Puoch said she had never been told before the two nurses were relicensed and that the Nursing Board never contacted her.

Her son has since been discharged from St. Peter, but Collins-Puoch said what the nurses had done to him made his recovery far more difficult.

"I'm shocked that they're licensed," she said.

Brandon Stahl • 612-673-4626