STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITAITVE SERVICES ) HEALTH PROGRAM OFFICE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-938

)

MIRACLE HILL NURSING AND )

CONVALESCENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing in the above-styled cause was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration, in Room 103, Collins Building, Tallahassee, Florida on the 14th day of October, 1976 at 9:00 a.m.

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

Health Program Office Department of Health and

Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231

For Respondent: John K. Folsom, Esquire

122 South Calhoun Street Tallahassee, Florida 32301

ISSUES

1. Whether there was negligence involved in treating Lewis Dougal, a patient in the Miracle Hill Nursing and Convalescent Home.

   
   

2. Whether the Respondent kept records in compliance with the statutes and the requirements of Chapter 10D-29 of the Florida Administrative Code.

INTRODUCTION

The Petitioner contends that a mentally retarded patient, Mr. Lewis Dougal, sustained second and third degree burns of the genitalia and buttox; that the injuries were not properly dIscovered and treated in a timely manner by the personnel at the Miracle Hill Nursing and Convalescent Home; that records at the Nursing Home, and in particular the records of Mr. Dougal, were not properly kept.

Respondent Miracle Hill cursing and Convalescent Home contends that it has not been established that the nursing personnel at Respondent's nursing facility was in fact negligent in the treatment of Lewis Dougal and that the medical record documentation kept by the personnel was the most informative, if not the required, type of documentation.

FINDINGS OF FACT

1. The Miracle Hill Nursing and Convalescent Home had Lewis Dougal, an adult mentally retarded male, as a patient in January of 1976.

   
   

2. On Thursday, January 29, 1976, Mr. Dougal was taken to Tallahassee Memorial Hospital for a neurological brain scan. His exact whereabouts have not been established during the period of time from 10:00 a.m. until 3:00 p.m. on that day, but he was in the emergency room area or in the radiology area of the hospital. At approximately 3:00 p.m. he was returned to the Respondent nursing home.

   
   

3. At approximately 7:00 p.m. on January 30, a nurses aide discovered that Lewis Dougal had a reddened and swollen penis, a swollen scrotum and red marks on the buttocks. She called the charge nurse, an L.P.N., who did not call the doctor, but noted on the "nurse's log" that the patient should see a doctor the following day. No notation was made on the patient's individual medical record at that time. Mr. Dougal was transferred to Tallahassee Memorial Hospital late in the morning of January 31, 1976, whereupon he received a 50 mm injection of demerol for pain upon his admission to the hospital. He was released February 25, 1976.

   
   

4. An investigative team from the Office of Health Facilities of the Department of Health and Rehabilitative Services, which consisted of a Hospital Nursing Home Consultant and a Registered Nurse, investigated the circumstances surrounding the incident on February the 25th and 27th, 1976. The injuries sustained by Mr. Dougal and his hospital records from the date of his admission, January 31, 1976, to the hospital, to the date of his release, February 25, 1976, were reviewed.

   
   

5. The investigative team thereupon visited the Miracle Hill Convalescent and Nursing Home on February 27, 1976 and requested all medical records of the patient, Lewis Dougal. No medical records had been kept and the only reference to the incident was made on the "nurse's log" January 30 and 31, 1976. These entries were made subsequent to the dates thereof. Other information was placed on the records long after the incident occurred.

   
   

6. On March 26, 1976, Petitioner State of Florida, Department of Health and Rehabilitative Services, issued an order charging Respondent with two violations:

   
   

7. The first being in violation of Section 400.102(1)(a), Florida Statutes, and Chapter 10D-29.11(7), Florida Administrative Code, to-wit:

   
   

   "1. That the facility failed to protect a patient from neglect and abuse, in that a mentally retarded patient, incontinent of bowel and bladder, was allowed to acquire burns of the scrotal area, genitalia and buttocks, of sufficient severity to require hospitilization, such burns being caused by

   inadequate and improper nursing care on the part of the nursing service staff of the facility.

   
   

   As a result of the subject burns, the patient was hospitalized for treatment and care during the period January 31, 1976, and February 25, 1976, at Tallahassee Memorial Hospital. The admission diagnosis for this patient at the hospital in part was, "burns of the genitalia and buttocks." The admitting physician further noted that the admission examination revealed an obvious burn in the skin from the scrotum which had already desquamated indicating the burn had occurred some time previously, maybe as much as a couple of days. Further, a circular burn involving the buttocks was observed with the notation that it appeared the patient

   had been sitting in some very hot solution.

   
   

8. The second charge was alleged to be in violation of Chapter 10D- 29.11(10) and (13) 1.(c), of the Florida Administrative Code in the following language:

   
   

   "(2) In that the required medical record documentation concerning how or when the above injuries occurred to this particular patient was lacking, and the investigating team was unable to determine just how or when the burns occurred or the specific person responsible for this."

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 400.102(1)(a), Florida Statutes, Action by department against facility; grounds-

   
   

   "(1) Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative Services against a facility:

   1. An intentional or negligent act materially affecting the health or safety of residents of the facility."

10. Chapter 10D-29.11(7), F.A.C., Patient Care Policies in Nursing Homes. "Each Nursing Home shall have, and implement,

    written policies governing patient care and

    other services provided to a patient. These written policies shall be developed with the advice and assistance of a professional policy group consisting of at least one of the con- sultant physicians, the licensed administrator and the director of nurses or the nurse in charge of the nursing service. These policies

    shall be reviewed at least annually, amended and dated as necessary, and shall include the following:

    * * *

    (7) Provision for protection of patients from abuse or neglect."

    
    

11. Chapter 10D-29.14(1), F.A.C., Physician Services in Nursing Homes, provides:

    
    

    "(1) Each Nursing Home shall have the regular consultative and emergency services of at least two physicians licensed in the State and as many additional licensed physicians as the size and patient care needs in the home may require as determined by the administrator.

    They shall be responsible for development of general medical policies and standing orders, including stop orders for medications. There shall be designated, in writing, physician(s) to provide emergency service to patients when the patient's own physician cannot be reached."

    
    

12. The evidence showed that the patient, Lewis Dougal, did in fact have second and third degree burns and suffered therefrom. How or when or where he received the burns or from what substance has not been established, and it is impossible to tell from the evidence presented or from the testimony heard whether the patient suffered abuse and neglect. Whether in fact the burns were an emergency has not been established and the judgment of the L.P.N. as to whether the doctor should have been called cannot be held to be erroneous.

13. Section 10D-29.11(10), F.A.C., Patient Care Policies in Nursing Homes: "Each Nursing Home shall have, and implement,

    written policies governing patient care and other services provided to a patient. These written policies shall be developed with the advice and assistance of a professional policy group consisting of at least one of the con- sultant physicians, the licensed administrator and the director of nurses or the nurse in charge of the nursing service. These policies shall be reviewed at least annually, amended and dated as necessary, and shall include the following:

    (10) Recording and reporting every accident and incident occurring to the patients. It shall be fully described on the accident or incident report which shall be filed in the administrator's office, and pertinent infor- mation shall be incorporated in the patient's record on the nurses notes by the individual observing, hearing, or witnessing the inci- dent or accident."

    Subsection (13)a 1(b) provides:

    "The medical record shall be composed of all data for which the physician is responsible, i.e., physical examinations, progress notes, diagnoses, prognosis, all orders for treat- ment, drugs and other procedures, related reports and a discharge summary or certifi- cation of death as appropriate."

    
    

    Subsection (13)a 1(c) provides:

    "The nursing record shall contain a compre- hensive nursing appraisal of the patient's condition upon admission, all subsequent observations, treatments, drugs, other nursing procedures, accidents, incidents, and periodic nursing evaluations of the patient's condition."

    
    

14. The evidence shows that the medical records, when they were entered, were kept in a haphazard, negligent manner in violation of the above cited rules.

RECOMMENDATION

Section 400.121(1) (8), Florida Statutes, Denial, suspension, revocation of license; procedure.-

(1) "The [department] may deny, revoke, or suspend a license or impose an administrative fine for a violation of any provision of s.

400.102 only after written notice to the applicant or licensee setting forth the particular grounds for the proposed action and a hearing, if demanded by the applicant or licensee."

(8) The [department], as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to separate fine. An action for recovery of the fine may be maintained in

the circuit court of the county in which the facility is located, and appeal from any judgment rendered shall be in the manner and within the time provided by the Florida Appellate Rules for reviewing judgments rendered by circuit courts in action at law."

Record keeping is such an important and necessary adjunct to nursing home care the Respondent should suffer a fine of at least $200 for violation of the foregoing statutes and rules.

DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert M. Eisenberg, Esquire Health Program Office Department of Health and Rehabilitative Services

Post Office Box 210 Jacksonville, Florida 32201

John K. Folsom, Esquire

122 South Calhoun Street Tallahassee, Florida 32301

Docket for Case No: 76-000938

Orders for Case No: 76-000938