State delays disciplining some nurses accused of drug offenses, causing possible patient risk

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TRI-CITIES, TN/VA (WJHL) – A six-month Community Watchdog investigation revealed the State of Tennessee’s Board of Nursing is failing to protect some patients from drug-addicted nurses.

What’s the problem

Our review of court documents and Tennessee Department of Health records found cases where the agency’s licensing board moved so slow that nurses were able to get new jobs and continue stealing narcotics on the job, while putting more patients at risk.

“This is a large problem,” Sullivan County Deputy District Attorney General Gene Perrin said. “I don’t think the system works quick enough.”

The case of Michael Burkhart, a registered nurse 

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Michael Burkhart is currently serving time for obtaining narcotics by fraud. He once worked as a registered nurse.

Perrin says former registered nurse Michael Burkhart is the prime example.

“I cannot imagine a worse situation,” Perrin said.

Burkhart is now serving time behind bars for obtaining narcotics by fraud. He once worked as an RN inside the catheterization lab at Indian Path Medical Center, where he helped with heart procedures, according to court records.

“Before the procedures began in the cath lab, he was already withdrawing very powerful pain killers,” Perrin said. “This would be first thing in the morning, as soon as he got to work.”

Records show in September 2013, after the hospital fired Burkhart, staff alerted the Department of Health about his alleged drug diversion. Less than a month later, court records show Burkhart found a new job as an RN at a nursing home in Hixon. He worked there for five months before leaving under suspicion, according to court records. From there, he landed another RN job at a hospital in Cleveland in May 2014, where he continued working for three months.

While under investigation, he confessed to his activities at Indian Path. He provided a written statement to Kingsport Police Department detectives on June 11, 2014.

“While working at Indian Path hospital in Kingsport, I took medication out of the Omni Cell System and used them for person us,” he said, according to court records. “I had no routine of which I took the meds. More or less, I have been battling addiction my whole life…I would inject the meds in my arm. I’m not sure how many times I took the meds. I am sorry for what I did and am willing to get treatment for my addiction. The meds help release me from my body. I hurt and it always takes my pain away.”

 

A sampling of Nurse Burkhart's statement
A sampling of Nurse Michael Burkhart’s statement to area law enforcement.

Despite that confession and the fact the Department of Health knew Burkhart’s history of drug diversion; it took almost another year-and-a-half for the state to take formal action.

“During that period of time, I had a number of conversations with the health-related board, investigators, attorneys,” Perrin said. “I kept hearing excuses after excuses after excuses as to why nothing had been done.”

Perrin says Nurse Burkhart's case is one of more than a dozen in Sullivan County that he's documented involving medical professionals
Sullivan County Deputy District Attorney General Gene Perrin says Nurse Burkhart’s case is one of more than a dozen in Sullivan County that he’s documented involving medical professionals

Long before Burkhart worked in Kingsport, we found out the Board of Nursing placed him on probation in 2005 after three hospitals raised suspicions about him doing the same thing. In one of those cases, he admitted to stealing narcotics, according to state records. But it wasn’t until late last year, after Burkhart pleaded guilty to stealing drugs 61 times while working at Indian Path, that he lost his license. He voluntarily surrendered it.

“I’m glad that he did, because in my honest and professional opinion he should never had a license,” Perrin said. “In my opinion, he should not have been able to continue to practice as a nurse and subsequently get employment at two different medical facilities while under investigation.”

Perrin says Burkhart’s case is one of more than a dozen in Sullivan County that he’s documented involving medical professionals. He says those cases show the scope of his frustration with the state’s licensing boards.

The case of Daniel Jackson, a registered nurser 

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Daniel Jackson used to work at Bristol Regional Medical Center in an intensive care unit until the hospital caught him stealing pain meds and falling asleep on the job, according to court records.

We also reviewed the case of registered nurse Daniel Jackson. He used to work at Bristol Regional Medical Center in an intensive care unit until the hospital caught him stealing pain meds and falling asleep on the job, according to court records.

“He diverted narcotics from severely ill patients while employed at  [BRMC],” a criminal investigator reported. “When he was confronted by the staff he became hostile accusing them of targeting him and walked out. While the investigation was on-going, he was hired on at a Johnson City hospital, where once again he was caught diverting medication.”

BRMC staff alerted the Department of Health about the drug diversion on September 15, 2015, according to court records.

Documents reveal just six days later, Jackson secured a new job as an RN at Johnson City Medical Center. Washington County Assistant District Attorney Erin McArdle says it wasn’t long until Jackson was back at it, again in an altered mental state in a patient’s room, taking pain meds.

This is a sampling of Nurse Daniel Jackson's statement to law enforcement.
This is a sampling of Nurse Daniel Jackson’s statement to law enforcement.

“Within a month, he was already diverting prescriptions,” McArdle said. “Luckily, he was caught very early in the scheme.”

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Assistant District Attorney Erin McArdle says it wasn’t long until Nurse Jackson was back at it, again in an altered mental state in a patient’s room, taking pain meds.

Jackson’s since pleaded guilty to obtaining narcotics by fraud in both Sullivan and Washington counties. But despite those guilty pleas, the first in March of this year, his nursing license remained active for the next seven months.

“I’m very surprised by that, because if you get a mom-and-pop doctor’s office, he has the credentials, he has the education, [and] the license to be able to hold himself out as a professional nurse – as an RN,” McArdle said. “Then, he has access, right then again, to medication and to diverting those medications.”

The state finally took formal action yesterday when Jackson voluntarily surrendered his license and the Department of Health signed off on the decision, according to state records.

Emergency Action Needed

Both Perrin and McArdle believe the state needs to take emergency action in cases like these, at the least, temporarily suspending licenses pending the outcomes of criminal investigations. Licensing boards have that ability if there’s evidence “public health, safety or welfare may be affected,” according to the Department of Health.

“Do you all take that emergency action?” we asked Department of Health Commissioner Dr. John Dreyzehner.

Sure,” Dr. Dreyzehner responded.

It does happen, but we followed up and discovered not all that often.

Out of the more than 800 board suspensions, revocations and license surrenders in the last year, state records show the Department of Health’s boards took emergency action just six times. Only three of those cases involved nurses.

“If there’s not a clear and present danger, then the individual is entitled to due process,” the commissioner said.

The Department of Health Responds

Dr. Dreyzehner says in the cases considered non-emergencies, the dishonest license holders are the ones who are delaying the process.

“There are some bad actors out there,” he said.

Department of Health Commissioner Dr. John Dreyzehner
Department of Health Commissioner Dr. John Dreyzehner says in the cases considered non-emergencies, the dishonest license holders are the ones who are delaying the process.

The agency reports cases become especially complicated and lengthy, with many more steps,  when license holders fight their complaints. The state says a successful disciplinary investigation needs “sufficient evidence” to bring before an administrative law judge, sometimes even a criminal conviction before the agency can take action.

“Boards cannot take disciplinary action on allegations alone,” Department of Health Associate Communications and Media Relations Director Bill Christian said.

The agency says the process is also not all about discipline. The Department of Health reminded us boards are required by state law to try and help in the rehabilitation of impaired health practitioners.

In Burkhart’s case, the department says its employees started their investigative process shortly after receiving his complaint, but he initially denied the allegations and then failed to complete a rehabilitation program, which delayed disciplinary action.

“A complaint regarding Mr. Burkhart was logged into the Health Licensure Boards recording system on September 30, 2013,” Christian said. “The complaint set off a string of actions by Health Licensure Boards staff members to gather information from individuals involved in the matter, to review facts and data, and to exchange communications with law enforcement officials engaged in their separate, concurrent criminal investigation of Mr. Burkhart…Burkhart did enter the (Tennessee Professional Assistance Program) program for treatment/monitoring in 2014, but later dropped out. During this time, Health Licensure Boards had no evidence he continued to divert after being employed at any other facility.”

State Working To Improve The Process

“Are there areas you all can improve to speed up the process?” we asked the commissioner.

“We can always improve,” Dr. Dreyzehner said. “We actively seek ways that we can improve our processes and we think it’s important to be responsive to our customers.”

Following our questions, the agency reported it has taken steps to reduce future delays.

“We routinely review our processes to identify opportunities for improvement, and have augmented staffing in key areas and improved procedures to minimize future delays,” Christian said.

The Victim’s Perspective 

Marylynne Conkin knows how a nurse’s actions can harm a patient. In the years leading up to her uncle’s death, Randall Fogleman, a bed-ridden, partial quadriplegic, lived in a nursing home. He was dependent on the care of others, but one of his caretakers was also dependent. She needed drugs.

Randall Fogleman, a bed-ridden, partial quadriplegic, lived in a nursing home. He was dependent on the care of others.
Randall Fogleman, a bed-ridden, partial quadriplegic, lived in a nursing home. He was dependent on the care of others.

“She made a mistake by taking Randy’s medication, because he is very coherent and knew,” Conkin said.

His niece still remembers her uncle’s reaction when he realized a nurse switched out his morphine with water, so she could keep it for herself.

Marylynne Conkin knows how a nurse's actions can harm a patient.
Marylynne Conkin knows how a nurse’s actions can harm a patient.

“He knew that it didn’t taste like it should,” she said.

“He was in pain?” we asked.

“Yes,” she said. “He needed the medication.”

It’s a crime Conkin compares to assault.

“They’re inflicting pain clearly by withholding the pain medication,” she said. “It’s an assault. They are in a vulnerable position.”

Conkin thinks the state needs to speed up the disciplinary process. She says she’s in favor of giving offenders a second chance eventually, but while they’re under investigation, she says the state shouldn’t put other patients at risk. The nurse who victimized her uncle pleaded guilty, served time behind bars and her out-of-state license ultimately expired before the case went to court.

No Comment

As for Burkhart and Jackson, both men, through their attorneys, declined comment for this story.

Jackson is scheduled to be sentenced next month. We know from public records the Department of Health thought his case was egregious enough to send to its Office of General Counsel for further investigation, but again, it took the state more than a year to take formal action.

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