Friday Florida Law Update- An Episode of Legal Realism


Since I have been so bad to the fans of late, today’s blog is in reality a “two-fer,” as we will have a mini-retro pop review down below!  Today’s case involves a classic case of “legal realism,” a concept I learned and latched onto in my first year “Legal Process” class taught by the great Christopher Yoo at Vanderbilt Law School, who once scolded me in the school parking lot one gusty Friday morning on the way to his class for cutting the Torts class that came immediately before his.  Professor Yoo did not appreciate my response of, “Considering how hung over I am, you should be proud that I’m not cutting YOUR class!”   Fortunately though, he did not call on me that day. 

Ahem, so where were we?  Ah yes, Legal Realism.  This concept stands for when a court considers the facts, arrives at the result it WANTS to reach first, then finds a legal hook for doing so. 

In Georges v. Department of Health, 2011 WL 5169407 (Fla. 2d DCA Nov. 2, 2011), Florida’s Second Circuit Court of Appeals reversed a Board of Nursing decision to revoke a nurse’s license and assess $15,703 in costs against a nurse for stealing $10 from a patient.  The Board of Nursing had reversed the recommended finding of the assigned administrative law judge, which was a $250 fine and probation.  On appeal, the Second DCA cited to Florida’s Administrative Code regulations, which called for a maximum $150 fine, reprimand and suspension followed by probation for a first offense absent proof of aggravating factors.  The appellate court found that Nurse Georges was denied her “due process” rights by having such a lofty fine assessed plus revocation of her license without proof of such “aggravating” factors. 

What exactly are aggravating factors in addition to stealing from a patient?  Hiding their pants so they have to go out in the cold in one of those backless hospital gowns?  Putting a laxative in their Jello? 

I submit that the Court simply said to itself, “You know what?  $15,000 and a lifetime ban from the profession over a $10 ‘mistake’ is a bit harsh.  I think this woman’s learned her lesson!”, and figured out a way to reverse it. 

On another note, any case involving a nurse will likely make me dig for a good picture of Nurse Ratched (see above) from the movie, One Flew Over the Cuckoo’s Nest, Milos Forman’s oscar-winning adaptation of the Ken Kesey novel.  Depending on the mood you’re in, Cuckoo’s Nest can range from the funniest movie you’ve ever seen to the creepiest movie you’ve ever seen to the most depressing movie you’ve ever seen.  If you have never seen it, make it a priority. 

Jack Nicholson plays a walking misdemeanor pretending to be crazy to stay in the otherwise cozy confines of a mental institution as opposed to serving jail time while getting under the skin of the entire hospital staff, most notably the hard Nurse Ratched, played by Louise Fletcher.  Jack Nicholson is the only actor who of our lifetime who could have pulled off this role except for maybe Robert DeNiro, though DeNiro would have spent 2 years studying for the role and probably would have oversold it.  My first watch of this movie came while hanging with my brother Neil, and we were both howling with non-stop laughter for the first hour before things got a little more serious. 

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