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1-0904-11613-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF NURSING
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In the Matter of the Nursing License of Mary D. Richards, L.P.N., License No. 22193-1 |
ORDER DENYING MOTION TO DISMISS |
In a letter filed on April 15, 1998, the Licensee, Mary D. Richards, asks that this matter be dismissed because the Board of Nursing staff has delayed in resolving the case. The Review Panel of the Board of Nursing filed a reply to the Licensee’s letter on April 22, 1998. Ms. Richards then responded to the Review Panel’s reply in a letter received on May 6, 1998.
The Licensee, Mary D. Richards, 3153 Old Highway 8, Apartment 206A, Minneapolis, Minnesota 55418-2583, represented herself in this matter. The Review Panel of the Board of Nursing is represented by Kristine I. Legler Kaplan, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2106.
Based upon the letters filed by the parties, all of the filings in this case, and for the reasons set out in the Memorandum which follows:
IT IS HEREBY ORDERED: That the Licensee’s request to dismiss this case is denied.
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Dated this |
11th |
day of |
May |
1998. |
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GEORGE A. BECK |
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Administrative Law Judge |
MEMORANDUM
The Licensee, Mary D. Richards, is a licensed practical nurse who was employed by Presbyterian Homes for approximately five years until July 20, 1993. The Board of Nursing Review Panel issued a Notice of and Order for Prehearing Conference on March 18, 1998, that seeks disciplinary action against the Licensee based upon conduct occurring in 1993. The Licensee seeks a dismissal of this contested case proceeding on the grounds that the Review Panel delayed in pursuing this matter.
The record indicates that Ms. Richards was indefinitely suspended by her employer in July of 1993 because of alleged performance problems. On July 20, 1993, she was presented with the option of resigning or being terminated, and chose to resign. On August 5, 1993, the Director of Nursing of Presbyterian Homes filed a complaint concerning Ms. Richards with the Board of Nursing. The Board staff investigated the complaint and issued a Notice of Conference to Ms. Richards, which required her to appear before the Complaint Resolution Committee of the Board. This conference occurred on May 18, 1994. Ms. Richards requested that the Board consider her medical condition in the resolution of this matter. The Board continued the conference in order to obtain the Licensee’s medical records. A second conference occurred on November 21, 1994, at which time the Board staff proposed a stipulation to settle the matter.
Between November 1994 and April of 1995, proposed stipulations were exchanged between the parties. On April 21, 1995, the Board’s attorney advised the Licensee’s attorney that he expected to discuss the Licensee’s proposal with the Board staff shortly and that he would then be in contact with the Licensee’s attorney. But, there was no further communication from the Board’s attorney until a letter dated March 13, 1997, almost two years later. That letter contained a counter-proposal which was then the subject of negotiations between the parties through December of 1997, when Ms. Richards indicated that the pending proposal was unacceptable. She asked that this case either be dismissed or put on for a contested hearing.
The Licensee also believes that there were other factors involved in the complaint to the Board and in its prosecution. In June of 1993, she filed a lawsuit against the Board seeking a reversal of the revocation of her appointment by the Governor to the Board of Nursing. In July of 1993, she filed a complaint against Presbyterian Homes with the Equal Employment Opportunity Commission for not providing her reasonable accommodations in her employment. Both of these matters were resolved against the Licensee.
The Review Panel offers no reasonable explanation for the two-year delay in its attempts to resolve this matter except to suggest that it was looking into the ADA issue raised by the Licensee. The Review Panel does offer a legal argument, however. It suggests that the legal doctrine of laches or delay cannot be applied to a licensing board in the regulation of professionals due to Minnesota case law. [1] In the Leisure Hills case, the court indicated that laches is not available as a defense against the state when the state is acting in its sovereign capacity. A state acts in a sovereign capacity when it is engaged in a governmental function. This is distinguished from the state acting in a “proprietary” capacity in which the state asserts its rights much like a private person. Although the two-year unexplained delay by the Board staff is regrettable, the Leisure Hills case prevents a dismissal of this matter based on delay. The case plainly states that a party cannot use delay as a defense against the state when it is performing a governmental function.
Even if the laches argument were available to the Licensee, she would need to show that she was prejudiced by the delay. [2] Ms. Richards argues that she has suffered emotional pain and physical problems due to the delay and that she has been either unemployed or underemployed since leaving Presbyterian Homes. She also points out that she has incurred legal expenses. While these are significant factors for the Licensee, they do not constitute the type of prejudice that must be shown to sustain a laches defense. Generally, a party must show that it is unable to present its case effectively due to the passage of time because, for example, a witness is no longer available. That is not the case here.
The Review Panel points out that it is attempting to protect the public interest by regulating nursing practices that it believes are unsafe. It also points out that this matter was under investigation or in negotiation from August of 1994 through April of 1995, and from March of 1997 through December of 1997. Delay in resolution due to settlement negotiations cannot justify dismissal of a disciplinary proceeding.
G.A.B.