IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-SA-00373-COA STATE OF MISSISSIPPI BOARD OF NURSING APPELLANT

v. ANN HOBSON APPELLEE
DATE OF JUDGMENT: 03/12/2018 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: GRENADA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BRETT BAGLEY THOMPSON ATTORNEY FOR APPELLEE: J. LAW SON HESTER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: REVERSED AND RENDERED - 09/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. On Novem

b e r 13, 2014, the Mississippi State B oard of Nursing (the Board) f iled three charges against the A ppellee, Ann Hobson, pursuant to M ississippi Code Annotated section 73-15-29 (Rev. 2012). Specif ically , the allegations included: Charge I. Misappropriation of drugs, supplies or equipm ent, Charge II. A d d iction or depe n d e n c y o n a l c o h o l o r o t h e r h a b i t

- f o r mi n g drugs or habitual use of narcotics, b arbiturates, am phetam ines, hallucinogens, or other drugs having sim ila r e f f ect, or m i sappropriation of

any m edication, and Charge III. Possessing, obtaining, f urnishing, or adm inistering drugs to any person, including self

, except as legally

directed. ¶2. H o b s o n w a s o rdered to appear bef ore the Board’s Hearing panel ( the p a n e l ) a n danswer f

or the charges at the B oard’s Ridgeland, Mississippi of f i ce. At the conclusion of the panel hearing, Hobson was f ound guilty

of Charge III and subjected to disciplinary action. Hobson appe a l e d t h e panel’s decision to the f ull B o ard; t he decision w as af f irm ed. Unsatisf ied, H obson a ppealed the Board’s decision to the Chancery Court of Grenada County

. The chancellor r eversed the Board’s decision, including all coinciding disciplinary

m easures im

posed upon Hobson. Aggrieved, the Board now appeals.

FACTS AND PROCEDURAL HISTORY ¶3. Ann Hobson began h e r e mp l o y me n t a s a C e rtif

i ed Registered Nurse Anesthetist (CRNA) a t the I ndianola, M ississippi, S outh S u n f l o wer County Hospital (the Hospital) in July 2013. Her chief

job duty was adm inistering anesthesia to patients during surgery and other procedures p erf

orm ed in either of the H ospital’s two operating room s. As the CRNA assigned prim arily to the Hospital’s Operating Room Num ber 2 (OR 2), Hobson was given key s t o t h e r oom ’s lock box. The box contained a num ber of n arcotics u sed to sedate patients, including Dem erol 2 5 m g. Hobson testif ied that Bert Rom ine, t he head of the Hospital’s Anesthesia Departm ent, instructed her to alway s keep the key s to the respective lock boxes inside a hidden com partm ent a t tached to the f a ke t op of each l ock box. Hobson testif i ed that it was her practice to lock the box and return the key s to the designated space af ter every procedure. ¶4. On June 10, 2 0 14, Hobson reported to Sunf lower Hospital at approxim ately 7 a.m . to
prepare f or a s u rgery scheduled to take place s hortly thereaf ter in the hospital’s OR 2. At the

2conclusion of the procedure, Hobson claim s she adm inistere d Dem erol to the patient,

prepared the anesthesia equipm e nt f or the next procedure, and then turned the patient over

t o N u r s e Leslie Moore in the Recovery Room

. Moore subm itted a s igned statem e n t corroborating Hobson’s account and i ndicated she witnessed H obson sign the narcotic log book to v e rif

y that the r e m a ining count o f D e me r o l i n the lock box w a s c orrect af ter the
surgery ended. Af

ter giving a report to Moore, Hobson testif ied that she lef

t the hospital to return hom e to Grenada, Mississippi around 8:30 a.m

. ¶5. As scrub technici a n s were preparing the operating r oom s f or af ternoon procedures, they discovered the lock box in OR 2 o p e n w i t h t h e k ey s in the door. Supervisors were notif ied, and a count of the narcotics was conducted. Six vials of Dem erol were discovered

m issing. At approxim ately 12:30 p .m ., CRNA Bert Rom ine contacted Hobson, inf orm ed her of the m issing Dem erol, and requested that she return to the hospital. Testim o ny indicates Hobson arrived back on the prem ises a t approxim a tely 1:15 p.m . In a signed statem ent, LeShonda Townsend, one of the scrub technicians, r eported that she witnessed H obson enter OR 2 with her purse in hand bef ore d eparti n g e a r l i e r in the d ay . Hobson was the only

m em ber of the group noted to have lef t the hospital prem ises. ¶6. The hospital required all p ersons with direct access to O R 2 to subm it to “Reasonable Suspicion/Cause” drug testing f or Dem erol. The group i ncluded b oth CRNAs, the registered

nurses, and the scrub technicians. The sam ples f or the drug t esting were collected on-site in

one of the hospital’s em

pty patient room s by lab director and m edical technologist Gail Bley

.

3Bley testif

ied that each e m

p loy ee, including Hobson, e ntered the room alone to provide a

sam ple a nd rem ained t o watch her seal a t am per- p r o o f b a g . Hobson c laim s she was not present when her sam

ple was labeled or sealed; however, H obson dated, signed, and initialed

a “ Chain of C ustody ” f

o rm , acknowledging “that the s pecim en c o ntainer(s) w as/were sealed with t am per-proof seal(s) in [ her] presence; and that the i nf orm ation provided on this f orm and o n t he label(s) af

f ixed to the specim en c o ntainer(s) is correct.” Hobson’s test cam e back positive f or the drug Meperidine (Dem erol). 1 On June 1 6 , 2 0 14, Hobson was c alled in to discuss the results a nd then term inated f rom her position with the ho s p ital. T he m issing
Dem erol was never f

o u nd. ¶7. In Novem

b er 2014, the Board brought three charges against Hobson based on the test results and m issing D em erol. Hobson was c om pelled to appear bef

ore the Mississippi Board of N ursing’s Hearing panel to answer the charges i n a hearing h eld on July 23, 2015. At the conclusion of t h e S tate’s case, the panel dism i ssed Charges I and II against Hobson. The panel f ound by clear and convincing evide n c e t h a t H obson t ested positive f or Dem erol. Accordingly , Hobson was f ound guilty of Charge I II f or “possessing, obtaining, f urnishing,

or a dm inistering drugs to any person, i ncluding [ h e r ] s e l f , except a s legally directed.” The Hearing panel suspended Hobson’s license f o r six m onths, during which t i m e she was ordered to com

ply with certain stipulations.

1 H o b so n ’s p o sitiv e test r esu lt w as screen ed b y th e h o sp i tal lab an d co n f irm ed b y g as ch r o ma t o g rap h y -m ass sp ectro m etry testin g p erf o rm ed b y an o u tsid e lab

. D em ero l is th e b ran d n am e f

o r th e n arco tic M ep erid in e. 4¶8. Hobson a ppealed the Hea r i n g p anel’s decision to the f ull m em bership of the Board pursuant to Mississippi Annotated Code section 73-15-31 (Rev. 2012). T he f u ll Board af f irm ed t h e p a n e l’s decision. Hobson then appealed the Board’s f i nal decision to the Chancery Court of Grenada C ounty

. The chancery court reversed the Board’s suspension of Hobson’s license and all other f orm s of discipline im

posed. The Board now appeals. STANDARD OF REVIEW ¶9. Our judicial r eview of this adm inistrative appeal is lim ited. Miss. State Bd. of Nursing

v. W ilson , 624 S o. 2d 485, 489 (Miss. 1 993). “The Court’s consideration is lim ited t o determ ining whether or not the Board’s decision (1) was supported by substantial evidence; (2) was arbitrary or c apricious; (3) was bey o n d t he power o f the agency to m ake[ ;] or (4) violated som e statutory o r constitutiona l r i g h t o f the Appellant.” Miss. Bd. o f Nursing v. Hanson , 70 3 S o . 2 d 239, 242 (¶8) (Miss. 1997) (citing Miss. State Tax Comm’n v. Mississippi-Alabama Stat e F a i r , 222 So. 2d 664, 666 (Miss. 1969)); Harris v. Miss. Real
Estate C omm’n , 500 So. 2d 958, 962 (Miss. 1 986); E idt v. C ity o f Natchez , 4 21 So. 2d 1225, 1231-32 (Miss. 1982). ¶10. “ O u r c o u r t s are not perm itted to m ake adm inistrative decisions a nd perf o r m t h e f unctions of an a dm ini s t rative agency .” Id. “The judicial ey e looks to see whether a f air-m i nded f

act[ -]f inder might have f

o und the evidence clear and convinci n g t h a t t h e o ff ense had o ccurred, and, where that m ay be said, we w i l l n o t disturb t he Board’s j udgm ent.” Riddle v. Miss. State Bd. of Pharmacy , 592 So. 2d 37, 41 (Miss. 1991) (em p hasis added).

5A NALYSIS AND DISCUSSION

I. Should the record include the Board’s Final Order? ¶11. Bef

ore reaching the m e rits of this appeal, w e w ould note that Hobson r aises an issue with the record—specif

ically , the inclusion of the B oard’s Final O rder. Hobson argues that because the Board’s Final Order w as not entered until August 29, 2017, af ter the Board f

iled its certif ied Adm inistrative Record on Appeal with the c hancery court, it was not considered by the chancery court and should not be deem ed a p art of the record bef ore this C o u r t

. Hobson f urther a rgues that the chancery court could not have substituted its judgm ent f or the Board’s decision without the order’s f indings having been included as a part of the record. ¶12. But, Hobson received the o rder by certif ied m ail, and the o rder w as subm i tted to the chancery court f

o r c onsideration af

ter its entry

. During oral a rgum ent, the State represented that o n Septem

b er 5, 20 1 7 , H o b s on subm itted a supplem ental appeal to the circuit court, ref erencing the order she now seeks to exclude. Hobson adm ittedly had actual knowledge of t he order, and it l ogically f ollows that she was aware of any perceived procedural def ects with r e g a r d t o the entry o f the o rder into the record on appeal; no objection(s) w ere raised until now. Theref

o re, we f ind t h i s i s s ue was n ot raised at the chancery -court level and theref ore m ay not be raised f

or the f irst tim e with this Court.
II. Was the Board’s decision supported by substantial evidence? ¶13. Turning to the t horoughly brief ed argum ents bef

ore t h i s C o u r t , H o b s o n relies on Hogan v. Miss. Bd. of Nursing , 457 S o. 2d 931 (M i s s. 1 984), reasoning that the Board’s

6d e c i s i o n was not supported by clear and convincing evidence. As articulated above, t h e

standard of review on appeal dif f ers f rom that of the original hearing body

. W h ile the Board

was indeed required to m ake a f inding based on clear and convincing evidence, Hobson is

m istaken i n transf

erring t hat s tandard to this Court. Like the chancery c ourt, we a re tasked wit h r e v i e w i ng t he record f or substantial evidence to support t he Board’s decision. Substantial evidence has been d e f ined as “such relevant evidence as r easonable m inds might accept as adequate to support a conclusion”; the evidence m ust be m o re than a “m ere scintilla

or suspicion.” D elta CMI v. S p eck , 586 So. 2 d 768 , 7 7 3 ( Miss. 1991); Miss. Real Estate Comm’n v. Anding , 732 So. 2d 192, 196 (¶13) (Miss. 1999). ¶14. In Hogan , Patricia was also a CRNA charged in a c a se involving m i ssing Dem erol. Hogan , 457 So. 2d at 9 32. The Board f o und that Patricia was “ unable to reasonably account f or m issing narcotics,” but unlike Hobson, “ there w as absolutely no proof tha t she had converted those narcotics to her own use.” Id. at 935. ¶15. Here, H obson was n ot only responsible f or the m ishandling a nd m i splacem ent of the
Dem erol, but she had the m issing drug in her sy stem without m edical explanation. 2 ¶16. Hobson does not deny that the positive result is s u bstantial evidence, but she contends the dam n ing results were im properly assigned to her. Hobson a sserts that Gail Bley f ailed to correctly f

ollow procedures f

o r specim en collect i o n , w h ich rendered Hobson’s test results

2 H o b so n d id n o t h av e a p rescrip tio n f o r D em ero l an d h ad n o t b een th e s u b j e ct o f an y recen t su rg eries at th e tim e th e test w as ad m in istered

. 7unreliable. Bley adm ittedly had the em ploy ees sign t he container labels bef o re placing t hem

on the specim ens (despite protocol instructions that the labels be signed af ter placem ent on the specim en co n tainers). During the Board hearing, the State’s expert, Dr. Barry Lublin, explained that t his m inor devia t i o n i s com m on and a m ere technicality that i m parts no notable ef

f ect on the chain-of

-custody

. 3 ¶17. Bley testif

ied that e ach of the tested emp l o y e e s r e m ained in the room with her and watched as she c om

pleted the labeling process and s ealed their respective specim ens in the

t a mp e r p r o o f container. Hobson testif ied to the contrary , claim ing t hat s he was not in the

r o o m w h e n her sam

ple was sealed; however, the record i ndicates otherwise. A chain- o f

custody f orm , which Hobson signed and i n itialed, indicates the “specim en container(s) was/were sealed with tam

per-proof seal(s) in [ her] p resence.” Despite this acknowledgm ent, Hobson suggests t hat the urine e ither belonged to a dif f e rent em p loy ee or that the hospital

tam pered with her sam

ple. W e are unconvinced. ¶18. The theory advanced by Hobson is analogous to one presented i n Curtis v. Mississippi Employment Security Commission , 878 So. 2d 1 094 ( M i s s . C t

. A pp. 2004). Curtis, an

em ploy e e at Juvenile Rehabil i t a t i o n i n B r o o k h a v e n , M i s s i s s i p p i , t e s ted p ositive f o r m arijuana during a random drug screening and was consequently term inated. Id. at 1094 (¶1). Curtis’s appeal ensu e d af

ter he was denied unem ploy m ent benef

its because of the drug related

3 T h e S tate’s ex p ert, D r. L u b lin , testif ied th at m o st co llecto rs w i ll so m etim es allo w test p atien ts to sig n th e lab els p rio r to p lacem en t o n th e co n tain ers b ecau s e it is e a sier to sig n th em o n th e lev el su rf

ace p ro v id ed b y

th e f o rm s. 8discharge. Id.

¶ 19. Curtis argued a s im ilar conspiracy theory , claim ing that he was “set up” and that his specim en was swapped with s om e one else’s. Id. at 1095 (¶5). Curtis, l ike Hobson, alleged f laws in the collection procedures as well. Id. The Court f ound that the p ositive test result

was s u f f icient e vidence to support the decision to deny C urtis benef its because of the purported m isconduct. Id . at 1095 (¶11). ¶20. In support of h er “set u p” theory , Hobson also cites the f act t hat h e r d r ug test was negative f or Meperidine’s m etabolite, Norm eperidine. H obson argues that if i ngested on the day i n q uestion, the Meperidine s hould have m etabolized by the tim e the d rug test sam

ple was collected; she asserts that because the sam p le only tested positive f

o r the pure f

orm of the narcotic, it was l ikely tainted. T his assertion was invalidated by Dr. L ublin and Hobson’s expert, Dr. Fredrick Carlton. During cross exam i nation Dr. Carlton testif ied as f ollows: State’s Attorney : Okay . W ould the absence of Norm e peridine in any

way invalidate the screen positive f or Meperidine?
Dr. Carlton: Oh, no, I don’t think so. I think it—I think it’s a positive

screen f or Meperidine. Both scientists testif

ied a t length during the B o a r d hearing and ultim ately a g reed that the absence of the m etaboli t e , N o r m eperidine, does not preclude presence o f Dem erol in a patient’s sy stem . As such, this argum ent is without m e rit. ¶21. T h e B oard f

ound that Hobson’s positive test result p rovided clear and c o n v i n c i n g evidence that she had converted Dem erol to her own use. L ike w i s e , w e f i nd the results

9established substantial e vidence to support the Board’s decision. Unsupported by the record

or even a potential m otive, H obson’s “set up” accusations appea r b a s e l e s s . Based on the f oregoing, we f

ind there was substantial evidence and af f irm the Board’s decision.
III. Was the Board’s decision arbitrary and capricious? ¶22. “An a ct is arbitrary when it is done without adequately determ i n i n g p r i nciple; not done according to reason or judgm en t, but depending upon the will alone—absolute in power, ty rannical, despotic, n on-rational—im ply i ng either a lack of understanding of or a disregard f or the f undam ental nature of things.” Miss. State Dept. of Health v. Sw. Miss. Reg’l Med. Ctr. , 580 So. 2d 1238, 1240 (Miss. 1991). “An action is c apricious if done without reason, i n a whim sical m anner, im ply ing either a lack of u nderstanding of or disregard f o r t h e surrounding f

acts and settled controlling principles.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp ., 743 So. 2d 973, 977 (¶13) (Miss. 1999). ¶23. If an agency ’s decision is supported b y substantial evidence, t hen it is not arbitrary or capricious. Miss. Transp. Comm’n v. Anson , 879 So. 2d 958, 964 (¶17) ( Miss. 2004). Af ter reviewing the r ecord, we f ind that substantial evidence e xisted to s u p p o r t the Board’s decision. Because these i ssues are s o i n t e rtwined, it f ollows that the d ecision was not arbitrary and capricious.
IV . Did the chancery court err in reversing the Board’s decision? ¶24. “ R eview of an order f rom an adm i nistrative agency ’s proceeding is l i m i t e d t o t h e record and the f

indi ngs o f the agency .” Anson , 879 So. 2d 958 at 9 64 (¶18) (citing Miss.

1 0Emp’t Sec. Comm’n v. Pulphus , 538 So. 2d 770, 772 (Miss. 1989)).

¶25. The chancery court reversed the s uspens i o n o f Ann H obson’s license and all other f orm s of discipline the B oard i m posed, noting “concern” with: (1) a birthday party going on

near th e O R room where t he Dem erol was, (2) t he chain of custody regarding t he June 10 drug screen, and (3) the absence of Norm eperidine in the u rine s am ple. Each of these

concerns were previously presented to, weighed by , and accordingly addressed by the Board. ¶26. The question bef

o re the court was not whether the agency ’s decision was subject to “concerns,” as outlined by t he chancellor, but “ whether there was s ub s t a ntial evidence to support the f

inding of the a d

m i n istrative agency ”; the “court[ s] m ay not substitute [ their] own judgm ent f

or that o f the a gency which rendered the decision, nor m ay we re-weigh the f acts

o f the case.” Publ. Emps. Ret. Sys. v. Shurden , 822 So. 2d 2 58, 266 (¶26) ( Mis s . 2 0 0 2 )

. Accordingly , we f

ind the chancery

court erred in reversing the Board’s decision. CONCLUSION ¶27. Finding that the Board’s d ecision was supported by s ubstantial evidence, and thus not arbitrary a nd c apricious, we reverse and render judgm ent reinstating the d ecision of the Mississippi Board of Nursing. ¶28. REVERSED AND RENDERED. BARNES, C .J. , J . WILSON, P.J., GREENLEE, T INDELL, M cDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. CAR L T ON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

1 1