[Cite as Clayton v. Ohio Bd. of Nursing, 2014-Ohio-2077.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Beverly Clayton, C.N.P., R.N., : 

 Appellant-Appellant, : 

 No. 13AP-726 

v. : (C.P.C. No. 12CV-13572) 

Ohio Board of Nursing, : (REGULAR CALENDAR) 

 Appellee-Appellee. : 

 

D E C I S I O N 

Rendered on May 15, 2014 

 

Sindell and Sindell, LLP, Steven A. Sindell and Rachel Sindell, 

for appellant. 

Michael DeWine, Attorney General, and Henry G. Appel, for 

appellee. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Appellant-appellant, Beverly Clayton, appeals a judgment of the Franklin 

County Court of Common Pleas affirming the order of appellee-appellee, the Ohio Board 

of Nursing ("Board"), that suspended Clayton's registered nursing license and certified 

nurse practitioner certificate. For the following reasons, we affirm the trial court's 

judgment. 

{¶ 2} At approximately 4:10 p.m. on August 27, 2009, Patient 1, an 80-year-old 

man, arrived at the emergency department of Mercy Franciscan Hospital – Western Hills 
No. 13AP-726 2 

("Mercy").1 Patient 1 was in poor health; he suffered from congestive heart failure, atrial 

fibrillation, chronic renal failure, and chronic obstructive pulmonary disease. He 

presented at Mercy complaining of shortness of breath. 

{¶ 3} Dr. Jamelle Bowers, a Mercy hospitalist,2 was assigned as Patient 1's 

attending physician. Bowers examined Patient 1 and decided to admit him to Mercy's 

intensive care unit ("ICU"). At 6:15 p.m., Dr. Bowers handwrote a series of orders on a 

single-page form marked "PHYSICIAN'S ORDERS." In relevant part, those orders 

included: the administration of 40 milligrams of the drug Lasix (also known as 

furosemide) every eight hours to stimulate urine output; the administration of a 15 

milligram bolus of the drug Cardizem (also known as diltiazem) and then an intravenous 

Cardizem drip titrated to bring Patient 1's heart rate below 100 beats per minute; a 

consultation with Dr. Kennealy, a pulmonologist; a consultation with Dr. Desai, a 

cardiologist; and a saline lock, which precluded the administration of normal saline to 

Patient 1. An emergency department nurse faxed Dr. Bowers' orders to the hospital 

pharmacy. 

{¶ 4} Patient 1 was transferred to the ICU sometime between 6:30 and 6:50 p.m. 

Soon after Patient 1 arrived at the ICU, Clayton's 7:00 p.m. to 7:00 a.m. shift as the ICU 

charge nurse began. Patient 1 was assigned to Clayton's care. 

{¶ 5} According to Clayton, she was overloaded with responsibilities during her 

shift. She was assigned the direct care of two patients. Additionally, she frequently had to 

step in to assist two inexperienced nurses with the care of their patients. She also had to 

act as unit secretary, which required her to enter physician's orders into the hospital 

computer system, initiate consultations, and answer the ICU phone. 

{¶ 6} Clayton did not review the physician's orders for Patient 1. Instead, Clayton 

relied on the information in the hospital computer system to care for Patient 1. Because a 

hospital pharmacist had entered that information into the computer system, it related 

solely to the medications that Dr. Bowers had ordered for Patient 1. Not only was the 

information limited, it was also wrong. The pharmacist had incorrectly entered into the 

 

1 We, like the Board and trial court, refer to the patient involved in this case as "Patient 1" to protect his 

privacy. 

2 Dr. Bowers is actually Mercy's lead hospitalist and directs Mercy's hospitalist program. 
No. 13AP-726 3 

computer Dr. Bowers' order for the administration of Cardizem. Rather than calling for a 

15 milligram bolus and then a titrated dose to decrease Patient's 1 heart rate to less than 

100 beats per minute, the information entered into the computer indicated that Patient 1 

was to receive one 25 milligram bolus. Clayton administered a 25 milligram bolus of 

Cardizem to Patient 1 at 10:16 p.m. She also administered one 40 milligram bolus of Lasix 

at 10:16 p.m. 

{¶ 7} During the course of Clayton's shift, Patient 1 received 1,097 milliliters of 

normal saline, despite the saline lock ordered by Dr. Bowers. In addition to failing to 

maintain the saline lock, Clayton did not carry out Dr. Bowers' orders to: (1) administer 

40 milligrams of Lasix every eight hours, (2) establish an intravenous Cardizem drip and 

titrate the drip to achieve a reduction in Patient 1's heart rate to less than 100 beats per 

minute, and (3) initiate the pulmonary and cardiology consultations. 

{¶ 8} Throughout the night, Patient 1's heart rate remained above 100 beats per 

minute. At 2:00 a.m., his blood pressure had fallen to 99/45, and it continued to fall after 

that point. Despite the administration of Lasix at 10:16 p.m., his fluid output did not 

increase. The administration of Cardizem (also at 10:16 p.m.) was likewise ineffective. 

{¶ 9} At 4:00 a.m., Clayton notified the hospitalist on call, Dr. Kern Chaudhry, of 

Patient 1's condition. Although Dr. Chaudhry treated Patient 1, his condition continued to 

deteriorate. 

{¶ 10} Dr. Bowers arrived at the hospital at 7:00 a.m. on August 28, 2007. She 

visited Patient 1 and found him unresponsive and near death. Dr. Bowers became 

agitated when she saw that her orders had not been followed. Patient 1 died at 11:17 a.m. 

{¶ 11} In a notice dated November 19, 2010, the Board informed Clayton that it 

proposed to revoke, suspend, or restrict her registered nursing license and certified nurse 

practitioner certificate because of the allegedly substandard care that Clayton had 

provided to Patient 1. The notice asserted that the Board could take disciplinary action 

against Clayton under R.C. 4723.28(B)(16), because she had violated rules adopted under 

R.C. Chapter 4723, and (2) R.C. 4723.28(B)(19), because she had "[f]ail[ed] to practice in 

accordance with acceptable and prevailing standards of safe nursing care." The notice 

alleged that Clayton had violated: 
No. 13AP-726 4 

 Ohio Adm.Code 4723-4-06(H), which requires a licensed 

nurse to "implement measures to promote a safe 

environment for each patient;" 

 Ohio Adm.Code 4723-4-03(C), which requires a registered 

nurse to "demonstrate competence and accountability in 

all areas of practice in which the nurse is engaged 

[including] (1) [c]onsistent performance of all aspects of 

nursing care; and (2) [r]ecognition, referral or 

consultation, and intervention, when a complication 

arises;" 

 Ohio Adm.Code 4723-4-03(E), which requires a registered 

nurse to, "in a timely manner: (1) [i]mplement any order 

for a patient * * * [and] (2) [c]larify any order for a patient 

when the registered nurse believes or should have reason 

to believe the order is: (a) [i]nacurrate; (b) [n]ot properly 

authorized; (c) [n]ot current or valid; (d) [h]armful, or 

potentially harmful to a patient; or (e) [c]ontraindicated by 

other documented information;" and 

 

 Ohio Adm.Code 4723-4-03(G), which requires a registered 

nurse to, "in a timely manner, report to and consult as 

necessary with other nurses or other members of the 

health care team and make referrals as necessary."3 

{¶ 12} Clayton requested a hearing. At the hearing, Clayton testified that she 

reviewed Patient 1's chart, but the physician's orders were missing from the chart. She 

was too busy dealing to more urgent matters to seek out the physician's orders. Clayton 

waited until 4:00 a.m. to request Dr. Chaudhry's intervention because Patient 1 was 

awake and communicating with her prior to that time. Clayton claimed that she gave 

Patient 1 1,097 milliliters of normal saline, despite the saline lock, because Dr. Chaudhry 

verbally ordered it.4

{¶ 13} The Board presented witness testimony that cast doubt on Clayton's 

contention that she did not read the physician's orders because they were absent from the 

 

3 Each of these rules appears in Ohio Adm.Code Chapter 4723-4, which establishes "[m]inimal acceptable 

standards of safe and effective nursing practice for a registered nurse and a licensed practical nurse in any 

setting." Ohio Adm.Code 4723-4-01(A)(1). 

4 A subsequent physician's order will supercede a conflicting, earlier physician's order. Clayton, 

therefore, could not be faulted for failing to maintain a saline lock if Dr. Chaudhry gave orders at 4:00 

a.m. that contradicted the saline lock that Dr. Bowers ordered at 6:15 p.m. the prior day. 
No. 13AP-726 5 

chart. Joyce Keegan, the vice president for nursing at Mercy and Mt. Airy Hospital, 

investigated the incident for Mercy. Keegan testified that Clayton had told her that she 

lacked the time to look at Patient 1's chart, rather than, as Clayton testified at trial, that 

she looked but could not find Patient 1's physician's orders in the chart. Diane Helferich, 

a Board compliance agent, interviewed Clayton after the Board received a complaint 

regarding her care of Patient 1. She also testified that Clayton had told her that she did 

not review the physician's orders because she did not have the time to do so. Finally, Dr. 

Bowers testified that on the morning of August 28, 2009, she "very easily" found the 

physician's orders in Patient 1's chart. (Tr. 675.) 

{¶ 14} The Board also pointed out the absence of any written order from Dr. 

Chaudhry directing the administration of normal saline. The medical records only 

include a nurse's note, written by Clayton at 4:00 a.m., that states, "IVF 'd to 250 cc 

NS." In other words, Clayton increased Patient 1's receipt of intravenous fluids to 250 

milliliters of normal saline at 4:00 a.m. Even if this nurse's note memorialized a verbal 

order from Dr. Chaudhry to give Patient 1 a 250 milliliter bolus of normal saline, it did not 

account for 847 milliliters of the total amount of 1,097 milliliters of normal saline 

administered to Patient 1 during Clayton's shift. 

{¶ 15} To establish that Clayton did not meet the minimum standards of safe 

nursing care, the Board offered the expert testimony of Lisa Klenke, a registered nurse. 

Klenke testified that Clayton failed to practice in accordance with acceptable and 

prevailing standards of safe nursing care when she did not review and implement the 

physician's orders for the care of Patient 1. According to Klenke, if Clayton could not find 

physician's orders for Patient 1 in his chart, she should have contacted the physician. 

Keegan, the vice president of nursing at Mercy, testified similarly. Keegan explained that 

the absence of physician's orders triggers an obligation to call the physician. As Keegan 

stated, physician's orders are "the crux of everything [a nurse] ha[s] to do for that 

patient[;] * * * a nurse only acts on orders from a physician for dependent care of that 

patient." (Tr. 392.) 

{¶ 16} Klenke was also critical of Clayton's failure to timely recognize that Patient 

1's deteriorating condition required intervention by a physician. Klenke testified that 

Clayton should have notified a physician that Patient 1 had not responded to the Lasix 
No. 13AP-726 6 

administered at 10:16 p.m. Clayton should have also sought a physician's assistance when 

she measured Patient 1's systolic blood pressure at 99 at 2:00 a.m. Dr. Bowers generally 

concurred with Klenke's assessment. Dr. Bowers testified that Clayton should have called 

for a physician by midnight because Patient 1 had not responded to the Cardizem, which 

like the Lasix, was administered at 10:16 p.m. Dr. Bowers also testified that, as a 

physician, she would have expected Clayton to call at 2:00 a.m. when Patient 1's systolic 

blood pressure dropped below 100. 

{¶ 17} Finally, Klenke rejected the opinion of Clayton's expert witness that it was 

impossible for Clayton to comply with the standard of care for Patient 1. Klenke stated 

that Clayton should have asked for help once she realized that she could not adequately 

care for Patient 1 given the other demands on her time. Keegan testified to Mercy's 

protocol for obtaining additional nursing assistance. According to Keegan, the charge 

nurse should contact her supervisor, the clinical administrator, or, in the absence of the 

clinical administrator, the emergency department charge nurse. Those individuals might 

seek the assistance of an on-call nurse, switch a nurse from a different unit to the busy 

unit, or call on other staff. 

{¶ 18} In a report and recommendation dated July 31, 2012, the hearing examiner 

found that the physician's orders were in Patient 1's chart when Patient 1 was admitted to 

the ICU from the emergency department and remained part of the chart throughout the 

time Patient 1 was in the ICU. The hearing examiner also found that, after arriving at 

Patient 1's bedside at approximately 4:00 a.m., Dr. Chaudhry gave Clayton an order to 

give Patient 1 a 250 milliliter bolus of normal saline, but Dr. Chaudhry did not order any 

additional normal saline from that point on. Finally, the hearing examiner found that 

Clayton should have consulted with a physician as early as 10:16 p.m. after the bolus of 

Cardizem failed to reduce Patient 1's heart rate, or at least by 2:00 a.m. due to Patient 1's 

significant drop in blood pressure from the previous reading. 

{¶ 19} Based on the evidence, the hearing examiner determined that Clayton failed 

to practice in accordance with acceptable and prevailing standards of safe nursing care 

and violated the specified administrative rules by: (1) failing to locate and implement the 

physician's orders, and (2) failing to timely consult with a Mercy physician about Patient 

1's declining condition. The hearing examiner also found that the chaotic and 
No. 13AP-726 7 

overwhelming circumstances of the ICU did not relieve Clayton of her duty to practice 

within the acceptable and prevailing standards of safe nursing care. However, the hearing 

examiner did consider the chaotic and overwhelming circumstances a mitigating factor in 

determining the appropriate discipline. 

{¶ 20} The hearing examiner recommended that the Board suspend Clayton's 

registered nursing license and certified nurse practitioner certificate indefinitely, but not 

less than one year. The hearing examiner specified conditions for reinstatement; 

probationary terms, conditions, and limitations to apply for a minimum of two years after 

the reinstatement of Clayton's license; and permanent practice restrictions. 

{¶ 21} In an adjudication order dated September 21, 2012, the Board accepted the 

hearing examiner's findings of fact and conclusions of law. The Board modified the 

recommended sanction by changing the conditions for reinstatement; altering the terms, 

conditions, and limitations for the probationary period after reinstatement; and deleting 

the permanent practice restrictions. 

{¶ 22} Clayton appealed the Board's order to the trial court. After considering 

Clayton's assignments of error, the trial court affirmed the Board's order. 

{¶ 23} Clayton now appeals the July 25, 2013 final judgment of the trial court, and 

she assigns the following errors: 

(1) In an administrative evidentiary hearing held before a 

Hearing Examiner (H.E.) of the Ohio Board of Nursing 

(OBN) involving alleged nursing practice violations 

against the license of Appellant Nurse, it is reversible 

error, contrary to law and in violation of Due Process of 

Law for the Hearing Examiner to prohibit and deny 

Respondent Nurse the right to obtain by hearing subpoena 

and present in the hearing evidence highly relevant and 

material to her defense against the charges and to her 

defense in mitigation of sanctions. 

(2) There is no evidence in the record to support the 

charge against Appellant that she continued 

uninterruptedly to administer IV saline to Patient 1 during 

her shift, despite the fact that a physician had ordered a 

saline lock * * *. 

(3) Although not listed as an allegation in the Notice of 

Opportunity for Hearing, there is scant if any evidence that 
No. 13AP-726 8 

Appellant gave Patient 1 a saline bolus without any 

Physician Order. 

(4) Appellant gave Patient 1 a 25 mg. Cardizem (also 

known as Diltiazem) bolus and not a 15 mg. Cardizem drip 

because she followed the erroneous pharmacy order to do 

so which had been entered into the computer. 

(5) The claimed violation in the Notice of Opportunity for 

Hearing that Appellant waited too long, until 4:00 a.m. on 

August 28, 2009, to notify the night hospitalist, Dr. 

Chaudhry, is an unfounded exercise in 20/20 hindsight. 

(6) The Hearing Examiner erroneously shifted the burden 

of proof by a preponderance of the evidence from the 

OBN/State to Appellant. 

(7) It was reversible error to have permitted Nurse 

Klenke, a member of the Board during its investigation 

into the performance of Appellant, to testify as an expert 

witness (when she was thereafter no longer a Board 

member) and for the Board to deliberate and decide upon 

its Adjudication Order in this case when Nurse Klenke had 

returned to the Board and was a member of the Board 

while the Board engaged in its deliberations and made its 

decision in this case. 

{¶ 24} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an 

administrative agency, the court must consider the entire record to determine if the 

agency's order is supported by reliable, probative, and substantial evidence and is in 

accordance with law. To be "reliable," evidence must be dependable and true within a 

reasonable probability. Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 

570, 571 (1992). To be "probative," evidence must be relevant or, in other words, tend to 

prove the issue in question. Id. To be "substantial," evidence must have some weight; it 

must have importance and value. Id.

{¶ 25} In reviewing the record for reliable, probative, and substantial evidence, the 

trial court " 'must appraise all the evidence as to the credibility of the witnesses, the 

probative character of the evidence, and the weight thereof.' " AmCare, Inc. v. Ohio Dept. 

of Job & Family Servs., 161 Ohio App.3d 350, 2005-Ohio-2714, ¶ 9 (10th Dist.), quoting 

Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207 (10th Dist.1981). In doing so, 
No. 13AP-726 9 

the trial court must give due deference to the administrative resolution of evidentiary 

conflicts because the agency, as the fact finder, is in the best position to observe the 

manner and demeanor of the witnesses. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 

108, 111 (1980). 

{¶ 26} Unlike a trial court, an appellate court may not review the evidence. Pons v. 

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). An appellate court is limited to 

determining whether the trial court abused its discretion. Id. Absent such an abuse of 

discretion, an appellate court must affirm the trial court's judgment, even if the appellate 

court would have arrived at a different conclusion than the trial court. Lorain City School 

Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). When 

reviewing the trial court's judgment as to whether an agency's decision is in accordance 

with law, an appellate court's review is plenary. Spitznagel v. State Bd. of Edn., 126 Ohio 

St.3d 174, 2010-Ohio-2715, ¶ 14. 

{¶ 27} By her first assignment of error, Clayton argues that the hearing examiner 

erred in refusing to fulfill her request to issue a subpoena for the medical records of the 

other patients present in the ICU during her shift. Even if the hearing examiner erred as 

alleged, Clayton is not entitled to reversal because she has not shown how that alleged 

error prejudiced her. 

{¶ 28} Pursuant to R.C. 119.09: 

the agency may, and upon the request of any party 

receiving notice of the hearing as required by section 

119.07 of the Revised Code shall, issue a subpoena for any 

witness or a subpoena duces tecum to compel the 

production of any books, records, or papers, directed to 

the sheriff of the county where such witness resides or is 

found, which shall be served and returned in the same 

manner as a subpoena in a criminal case is served and 

returned. 

Thus, if requested by a party to an adjudicatory hearing, an administrative agency must 

issue a subpoena to compel the attendance of a witness or the production of documents at 

the hearing. Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145 (1990); 

Walters v. Ohio State Dept. of Adm. Servs., 10th Dist. No. 06AP-472, 2006-Ohio-6739, 

¶ 29; Northfield Park Assoc. v. Ohio State Racing Comm., 10th Dist. No. 05AP-749, 

2006-Ohio-3446, ¶ 63. However, to secure a reversal on the basis that the administrative 
No. 13AP-726 10 

agency failed to issue a requested subpoena, a party must demonstrate that the failure 

resulted in prejudice. Burneson v. Ohio State Racing Comm., 10th Dist. No. 08AP-794, 

2009-Ohio-1103, ¶ 24; Korn v. Ohio State Med. Bd., 61 Ohio App.3d 677, 686 (10th 

Dist.1988). 

{¶ 29} Here, Clayton sought the medical records of the other ICU patients in order 

to show the care required by and provided to those patients during her shift. Clayton 

wanted that information so she could point to circumstances involving those patients that 

demanded her intervention. The hearing examiner denied Clayton's subpoena request to 

avoid infringing on the privacy and confidentiality protections afforded to the other 

patients and because the information Clayton sought could be obtained through other 

sources. 

{¶ 30} Although the hearing examiner refused to issue a subpoena for the other 

patients' medical records, he granted Clayton's request to issue subpoenas to two ICU 

nurses who worked the overnight shift on August 27 and 28, 2009. Those nurses could 

have testified regarding what occurred during the shift, including the assistance Clayton 

had to provide to other patients. Clayton, however, did not call either nurse to testify. 

The hearing examiner also allowed Clayton to testify regarding the care she provided to 

other patients. Clayton stated that she "put[ ] I.V.s in for nurses that [could] not do that 

themselves" and "start[ed] Amiodarone drips for another patient where a nurse did not 

know what [an] Amiodarone drip was." (Tr. 81.) Because the hearing examiner afforded 

Clayton the opportunity to present witness testimony regarding the needs of the other 

patients, Clayton cannot now demonstrate prejudice due to the nondisclosure of the other 

patients' medical records. 

{¶ 31} In a last ditch effort to show prejudice, Clayton argues that witnesses' 

memories fade, and the medical records would have been necessary to refresh those 

memories. If Clayton had established at the hearing deficiencies in her or the other 

nurses' memories, this argument might have succeeded. However, Clayton failed to 

establish any such deficiencies. Accordingly, we conclude that no prejudice resulted from 

the hearing examiner's failure to issue the subpoena in question, and we overrule 

Clayton's first assignment of error. 
No. 13AP-726 11 

{¶ 32} Both Clayton's second and third assignments of error concern her 

administration of normal saline to Patient 1. We will address them together. By her 

second assignment of error, Clayton argues that the record does not contain any evidence 

that she uninterruptedly administered normal saline to Patient 1 during her shift. By her 

third assignment of error, Clayton argues that the record does not contain any evidence 

that she administered normal saline to Patient 1 without a physician's order. 

{¶ 33} The Board did not find that Clayton uninterruptedly administered normal 

saline to Patient 1 during her shift. Although medical records established that Clayton 

gave Patient 1 a total of 1,097 milliliters of normal saline during her shift, the evidence 

was equivocal regarding the exact time, or times, that Patient 1 received the normal saline. 

Therefore, the Board made no findings tying the administration of normal saline to a 

particular period during Clayton's shift. Rather, the Board simply found that Clayton 

administered a total of 1,097 milliliters of normal saline to Patient 1 during her shift. 

{¶ 34} Clayton explained her administration of normal saline to Patient 1, despite 

Dr. Bowers' order of a saline lock, by claiming that that Dr. Chaudhry ordered it. The 

question before the Board, therefore, was whether Dr. Chaudhry had authorized the 

administration of the 1,097 milliliters of normal saline, thus supplanting Dr. Bowers' 

earlier order of a saline lock. 

{¶ 35} After considering the evidence, the Board found that Dr. Chaudhry only 

ordered Clayton to administer a 250 milliliter bolus of normal saline to Patient 1. Clayton, 

however, argues that the evidence shows that Dr. Chaudhry ordered Clayton to give 

Patient 1 a 1,097 milliliter saline bolus. Clayton's testimony was the only evidence in the 

record that Dr. Chaudhry authorized the administration of all 1,097 milliliters of normal 

saline to Patient 1. The Board did not believe that testimony. We cannot second-guess 

that credibility determination. Applegate v. State Med. Bd., 10th Dist. No. 07AP-78, 

2007-Ohio-6384, ¶ 21. 

{¶ 36} Subtracting 250 milliliters (the amount of normal saline ordered by Dr. 

Chaudhry) from 1,097 milliliters (the total amount administered) yields the result of 847 

milliliters. Therefore, Clayton administered 847 milliliters of normal saline to Patient 1 

without a physician's order to do so and despite Dr. Bowers' prohibition against the 

administration of normal saline. We thus find no abuse of discretion in the trial court's 
No. 13AP-726 12 

determination that reliable, probative, and substantial evidence supports the Board's 

conclusion that Clayton did not comply with the physician's orders regarding the 

administration of normal saline. Accordingly, we overrule Clayton's second and third 

assignments of error. 

{¶ 37} By Clayton's fourth assignment of error, she argues that the trial court erred 

in affirming the Board's decision to discipline her for failing to follow the physician's order 

to administer a Cardizem drip to Patient 1 when that order did not appear in Mercy's 

computer system. We disagree. 

{¶ 38} The Board concluded that the acceptable and prevailing standards of safe 

nursing care require an ICU nurse to locate and implement the physician's orders for a 

patient under the nurse's care. Clayton, admittedly, did not locate and implement the 

physician's orders for Patient 1. Instead, she relied on the information entered by a 

pharmacist into the hospital computer system to determine what kind of and how much 

medication to administer. The pharmacist failed to enter Dr. Bowers' order for an 

intravenous Cardizem drip titrated to reduce Patient 1's heart rate below 100 beats per 

minute. 

{¶ 39} Clayton argues that the error in the pharmacist's computer entry justifies 

her failure to administer the intravenous Cardizem drip. We are not persuaded. The 

physician's orders, not the pharmacist's entry, dictated the course of Patient's 1 care. As 

the Board found, Clayton violated the standard of care and applicable administrative rules 

when she failed to locate and implement the physician's order. The pharmacist's error 

does not excuse this violation. Accordingly, we overrule Clayton's fourth assignment of 

error. 

{¶ 40} By Clayton's fifth assignment of error, she argues that the trial court erred in 

affirming the Board's decision to discipline her for waiting too long to seek a physician's 

assistance with Patient 1. We disagree. 

{¶ 41} Both Klenke and Dr. Bowers testified that Clayton should have contacted a 

hospitalist regarding Patient 1's condition when he did not respond to the medication 

administered at 10:16 p.m. and when his systolic blood pressure dropped below 100 at 

2:00 a.m. Relying on this testimony, the Board concluded that Clayton did not timely 

recognize and notify a hospitalist of Patient 1's deteriorating condition, and, thus, she 
No. 13AP-726 13 

violated the acceptable and prevailing standards of safe nursing care and the specified 

administrative rules. 

{¶ 42} Clayton argues that the trial court should have rejected Klenke's and Dr. 

Bowers' testimony in favor of her testimony that a physician's intervention was not 

necessary until 4:00 a.m., when Patient 1 became unable to interact with her. Our role, 

however, is not to determine which testimony is more credible or worthy of greater 

weight. Ressler v. Ohio Dept. of Transp., 10th Dist. No. 09AP-338, 2009-Ohio-5857, ¶ 13. 

Rather, we only determine whether the trial court abused its discretion in determining 

whether reliable, probative, and substantial evidence supported the administrative 

agency's order. Id. Here, we find no such abuse of discretion. Accordingly, we overrule 

Clayton's fifth assignment of error. 

{¶ 43} By Clayton's sixth assignment of error, she argues that the Board 

erroneously shifted the burden of proof onto her. We disagree. 

{¶ 44} In an administrative proceeding, the party asserting the affirmative of an 

issue bears the burden of proof. Nucklos v. State Med. Bd., 10th Dist. No. 09AP-406, 

2010-Ohio-2973, ¶ 17. A burden of proof is a composite burden requiring the party on 

whom it rests to go forward with the evidence (the burden of production) and to convince 

the trier of fact by some quantum of evidence (the burden of persuasion). Chari v. Vore, 

91 Ohio St.3d 323, 326 (2001). 

{¶ 45} Here, the Board had the burden of producing evidence and persuading the 

finder of fact that Clayton failed to provide nursing care to Patient 1 in accordance with 

the acceptable and prevailing standards of safe nursing care and the specified 

administrative rules. The hearing examiner recognized that the Board had that burden of 

proof, and he determined that the Board carried its burden. Report and 

Recommendation of the Hearing Examiner, at ¶ F of the Conclusions of Law. 

{¶ 46} In the course of deciding whether the Board had satisfied its burden of 

proof, the hearing examiner resolved a conflict in the evidence over whether the 

physician's orders were contained in Patient 1's chart when he was admitted to the ICU. 

In relevant part, the hearing examiner stated: 

Respondent has contended that Dr. Bower[s'] Physician's 

Orders were not part of Patient 1's chart when he was 

admitted to the Hospital ICU from the [emergency 
No. 13AP-726 14 

department]. As noted in my Findings of Fact, I do not 

find that this contention is supported by the 

preponderance of the evidence. Respondent's main 

evidence to support this contention is Respondent's 

hearing testimony where she contends that Physician's 

Orders were not part of [ ] Patient 1's chart. (Tr. 95). I do 

not find this testimony credible in that in both the 

Hospital and Board investigation interviews shortly after 

this incident Respondent openly admitted that she did not 

look at the Physician's Orders during her shift and in 

neither interview did she contend that the Physician's 

Orders were not part of Patient 1's chart. The most direct 

and compelling testimony on this issue came from the 

author of the Physician's Orders, Dr. Bowers, who testified 

that, upon arriving at the end of the Respondent's shift on 

August 28 and seeing Patient 1 with an I.V. running in 

direct violation of one item in the Physician's Order[s], she 

"very easily" found the Physician's Orders in Patient 1's 

chart. 

(Footnote omitted.) Report and Recommendation of the Hearing Examiner, at 35-36. 

{¶ 47} The hearing examiner blundered when he used the phrase "preponderance 

of the evidence" in evaluating contradictory evidence. The hearing examiner was not 

determining whether Clayton's evidence satisfied a pre-set level of persuasiveness 

necessary to carry a burden of proof. Rather, the hearing examiner was comparing 

conflicting evidence and determining which evidence was more credible. Although 

erroneously expressed, read in context, the passage at issue communicates that Clayton's 

evidence is not as convincing as the Board's evidence. As the Board's evidence directly 

contradicted Clayton's evidence, the hearing examiner rejected Clayton's evidence and 

made a factual finding based on the Board's evidence. 

{¶ 48} Although the hearing examiner inappropriately phrased his discussion of an 

evidentiary conflict, he correctly held the Board to the burden of proving Clayton's 

violation of the standard of care. Accordingly, we overrule Clayton's sixth assignment of 

error. 

{¶ 49} By Clayton's seventh assignment of error, she argues that the trial court 

erred in affirming the Board's decision to allow Klenke to testify as an expert witness. She 

also argues that Klenke's participation as a witness biased the Board against her. We 

disagree with both arguments. 
No. 13AP-726 15 

{¶ 50} During the trial, Clayton objected to Klenke testifying as an expert witness 

because Klenke was a member of the Board when the Board initiated its investigation into 

the complaint regarding Clayton's care of Patient 1. Klenke's term as a Board member 

ended approximately two years prior to her testimony at Clayton's hearing. Primarily, 

Clayton asserted that Klenke's prior service on the Board created a conflict of interest. 

The hearing examiner overruled the objection after Klenke testified that she was not 

involved in or even aware of the investigation while a Board member. Like the trial court, 

we perceive no error in this ruling. 

{¶ 51} After the close of the hearing, Klenke was reappointed to the Board. Klenke 

was not present at the Board meeting when Clayton's attorney addressed the Board or 

when the Board voted to adopt the hearing examiner's report and recommendation with 

modifications. The Board added to its record a statement that it did "not give[ ] any 

deferential regard, or heightened weight, to Ms. Klenke's testimony, and accepts that 

testimony only to the extent that it was incorporated in the Findings of Fact and 

Conclusions of Law made by the Hearing Examiner." Adjudication Order, at 2. Despite 

the Board's explicit assurances of impartiality, Clayton now argues that Klenke's 

participation in the matter biased the Board against her. 

{¶ 52} A reviewing court presumes that the decision of an administrative agency is 

valid and was reached in a sound manner. West Virginia v. Ohio Hazardous Waste 

Facility Approval Bd., 28 Ohio St.3d 83, 86 (1986); accord McRae v. State Med. Bd., 10th 

Dist. No. 13AP-526, 2014-Ohio-667, ¶ 42 (" '[A] presumption of honesty and integrity on 

the part of an administrative body exists, absent a showing to the contrary.' "). To 

overcome this presumption, an appellant must show that an administrative agency 

member was biased, partial, or prejudiced to such a degree that the member adversely 

affected the agency's decision. ATS Inst. of Technology v. Ohio Bd. of Nursing, 10th Dist. 

No. 12AP-385, 2012-Ohio-6030, ¶ 32. 

{¶ 53} Here, the Board members explicitly repudiated Clayton's supposition that 

Klenke unduly influenced the Board's decision. We reject Clayton's argument that the 

Board's statement actually proves the Board's bias. We think it more likely that the Board 

definitively declared its impartiality to preempt the very argument that Clayton now 
No. 13AP-726 16 

asserts. In any event, Clayton has not established any facts to overcome the presumption 

of validity. Accordingly, we overrule Clayton's seventh assignment of error. 

{¶ 54} For the foregoing reasons, we overrule all of Clayton's seven assignments of 

error, and we affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

CONNOR and T. BRYANT, JJ., concur. 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under authority of Ohio 

Constitution, Article IV, Section 6(C).