STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NURSING HOME ADMINISTRATORS ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1182
)
JOSEPH G. VICTOR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was convened in Courtroom C, Lee County Courthouse, Ft. Myers, Florida at 11:00 am., January 25, 1977 to consider charges brought against the Respondent by the Nursing Home Administrators Examiners.
APPEARANCES
For Petitioner: Ronald C. LaFace, Esquire For Respondent: Joseph G. Victor, pro se
The Complaint filed in this matter alleges that the Respondent, Joseph G. Victor, holds License No. 724 and at the time specified in the charges was administrator of the Lee Convalescent Center, Ft. Myers, Florida. There are nine separate counts in the Complaint. They charge:
That Joseph Victor, in October 1975, had a patient, David Kernaghan, removed without cause from Lee Convalescent Center by police;
That Joseph Victor knew of an incident wherein a patient by the name of Charles Whitaker was threatened by a member of the staff and was put in a shower room on the night of February 1, 1976, causing the patient great anguish;
That the Respondent ordered the sedation of "wandering patients" when in fact the Respondent was not medically qualified to make determinations as to what patients should receive medication. Further, a patient known as Lizzie White was found on March 22, 1976, to have in her possession a drug alleged to be Phenathen when there was no physician's order for said drug;
That the patients between periods in 1975 and 1976 did not receive proper nutritional care; that the orange juice and cranberry juice were watered down;
That the Lee Convalescent Center failed to provide Amy Miller a required itemized statement specifying the nature of charges or expenses incurred by the patient. Further, that she was charged for physician's services
when in fact the total amount of that charge was not entirely for physician's services;
That during 1975 and 1976 inventory shortages of the Lee Convalescent Center were improperly and illegally charged to the patients;
That for periods in 1975 and 1976 patients were admitted to the Lee Convalescent Center without having a legal representative executing a contract at the time of admission or prior thereto;
That in April of 1976, patients in the Lee Convalescent Center received negligent care with disregard to their health, safety, and welfare; and
That Joseph Victor during years 1975 and 1976 exercised a policy of racial discrimination in hiring and discharging employees.
Since the Complaint issued in this case contains a group of separate and mostly unrelated counts, each will be considered separately in this Order. With regard to those the following findings are made.
FINDINGS OF FACT
In October of 1975 the Respondent, Joseph Victor, the administrator of Lee Convalescent Center, came upon an elderly gentlemen in the lobby of the center. Victor saw the man enter and inquired of him what he was doing there. Apparently, Victor did not get a straight answer or one that was satisfactory to him and after consulting with Dorothy Nobles, the admitting secretary, came to the conclusion that this gentlemen was a vagrant. In actuality he was David Kernaghan, a patient at the center. Apparently, Mr. Kernaghan did not have identification bracelets on him at the time and was staggering and incoherent. Mr. Victor did not make an inquiry as to whether Kernaghan was in fact a patient at the convalescent center even though many patients were permitted to be ambulatory and to "wander" around the convalescent center. Victor called the police who took Mr. Kernaghan to the Lee County Hospital . About two hours later his identity was learned and he was returned to the convalescent center.
In January of 1976 a patient by the name of Charles E. Whitaker was being extremely unruly in his room which he shared with two other patients. The patient had been noisy, disruptive and behaving in such a disorderly manner that the other patients were being deprived of their sleep. Mr. Whitaker would continually disrobe and expose himself and had been publicly masturbating in his room. The nurses on the floor, after repeated efforts to clam down Mr. Whitaker, wheeled him into what had been described as the supervised bathroom. Whitaker was kept in his bed in this bathroom where he could be observed and isolated from the other patients. At the time this was done all the other isolation rooms where patients would normally be brought to be isolated were being used. The room in which he was brought was heated and except for being a shower room or bathroom it was not in any way demonstrated to be an unsatisfactory room in which to isolate a patient. No evidence was presented that at the time this was done Mr. Victor knew of this action taken by the floor nurses. Furthermore, no evidence was presented that isolating the patient Whitaker in this manner was in any way detrimental to his health or was an unprofessional decision. Testimony was given by Mr. Whitaker's daughter-in-law to the effect that he had been threatened by a nurse with being isolated in this bathroom several days before this happened but such testimony was pure hearsay and cannot be the basis for a finding of fact. Furthermore, in the opinion of this Hearing Officer, the isolation of the patient Whitaker, under the
circumstances above described and in the manner in which it was done, was perfectly justified.
With regard to Count III, considerable testimony was given by nurses who work at the Lee Convalescent Center that Respondent, Victor, often inquired as to whether patients that were continuously wandering around the convalescent center could be given something to calm or quiet them down. It was the clear impression of many of these witnesses that Victor was advocating the indiscriminate tranquilizing of the patients. If that indeed was his intention the evidence is not sufficiently clear to make such a finding. Victor, as all these witnesses acknowledged, did not have the authority to order the administration of drugs to a patient without the consent of the patient's doctor, nor was there any evidence that he attempted to so do. Comments made by Whitaker appear to have been no more than a half-hearted attempt on his part to suggest to nurses on duty to consider getting a doctor's permission to sedate a patient. This is not what is charged in the Complaint, which is that the Respondent ordered the sedation of "wandering patients". Further, it is significant that in the examples that were testified to at the hearing none of the nurses followed Victor's "suggestions" and Victor did not make any attempt to follow-up to see if any patients had been sedated. In all other respects no other evidence was submitted regarding the other allegations in Count III and it is specifically entered as a finding of fact herein that such other allegations were not proven.
Evidence was presented that for about a period of one month during the time in question the orange juice at the convalescent center was watered down. No evidence was presented that Mr. Victor was aware that the orange juice had been watered down and no evidence was presented that this was in any way intentional or was done with Mr. Victor's permission. Victor himself testified that when he discovered the orange juice was not being mixed at the proper strength he told those responsible to correct the situation. He also expressed the opinion that the kitchen staff inadvertently misread the directions on the orange juice concentrates. All other testimony with regard to Count IV indicated that the meals at the center met all nutritional standards and always passed inspections performed by state regulatory agencies.
With regard to Count V, which deals with providing the patient Amy Miller with the required itemized statement listing the specific charges incurred at the convalescent center, the evidence indicates that it was the practice of the convalescent center to refer to prescription charges by a number which would be verified by consulting the pharmacists issuing the medication.
In addition, the convalescent center added a $2.00 charge for all physician services, and the billing to the patient did not reflect this surcharge. Victor claimed this was a reasonable charge for processing a doctor's bill.
Furthermore, the convalescent center received a discount for medications which discount was not passed on to the patient.
With regard to Counts VI and VII, testimony was received from Janet Sue Welch who worked at the Lee Convalescent Center for nine months in the administrative offices. She testified that she observed several items being charged to patients merely because those items had been missing from the inventory of the center. She further testified that admitting papers for patients were forged upon the arrival of several patients. Ms. Welch stated she had no personal knowledge that Respondent Victor was aware of these practices, but assumed that he was. She stated most of the items were charged to patients who were for the most part incompetent. Ms. Nobles, the admitting secretary, testified that there had been occasions where patients had been readmitted to
the convalescent center and had no legal representative to sign them in. She said in those cases she did trace their signatures on to the re-admission papers. She believed this was authorized because the patient had previously been admitted to the convalescent center. Also, Nobles testified that to her knowledge Victor was unaware of this practice.
From the above it is concluded that occasionally items were charged to patients by the convalescent center without being used by that patient. It is also found that on occasion patients were admitted without proper authorization. However, no evidence was presented which would indicate the Respondent, Victor, was responsible for or even aware of this practice. Nor was any evidence presented that he should have been aware of this practice.
Count VIII involves the allegation that patients received negligent care with disregard to their health, safety or welfare. The only evidence which was presented which might have a bearing on this charge was that on a few occasions patients were observed in soiled bed clothes without a nurse or other attendant to help them. No evidence was presented that patients at the convalescent center received negligent care and on the occasions above described testimony was very general and gave no indication how long the patients in question were without a nurse's attention. From the evidence presented in this case, it is clear that a convalescent center cannot be run with a nurse or attendant in constant contact with each patient. Times will arise where nurses must attend to patients on a priority basis. The instances where patients were described to be lacking attention were not the type of situations where it could be said anyone was at fault or that the patients suffered any threat to their health, safety or welfare. The patients may have experienced a certain degree of discomfort, but nothing was presented which would even remotely indicate a breach of professional responsibility.
In fact the overwhelming evidence at this proceeding strongly indicates that the quality of health care given at the Lee Convalescent Center was quite good. Numerous state investigators of the Department of Health and Rehabilitative Services and other agencies and several physicians all indicated that the convalescent center was a well-run establishment that satisfactorily cared for its patients.
With regard to the last count in the Complaint, Count IX, some testimony was presented that the Respondent, Mr. Victor, has expressed displeasure with certain employees allegedly because they were black and that he did not like them. Testimony on this point is conflicting because Mr. Victor alleged that he observed the employees in question breaking rules of the hospital such as eating food from patients' plates and admitting unauthorized visitors. Apparently, these employees were fired by Mr. Victor. It is hard to see, however, how the evidence indicates a discriminatory practice on behalf of Mr. Victor for all of the employees in the department where the two in question worked were black. It is hard to imagine how an individual could practice racial discrimination on such a selective basis. On the other hand, as the administrator of the hospital, Mr. Victor certainly had the prerogative to fire employees he felt were not performing adequately.
Other evidence of racial discrimination involved the "coding" of employment applications. Mr. Victor told Janet Sue Welch to mark employment applications in pencil with a "B" or "W" to indicate the particular race of the applicant. Aside from the marking of the employment applications (done in pencil to that they could be erased at a later time), no evidence was presented as to whether the applications were used in a discriminatory manner or that
other discriminatory practices were put into effect by the Respondent. There was no indication on the record as to whether during the period of time that the applications were coded that the Respondent hired a greater proportion of whites or did anything of a discriminatory nature.
With regard to the coding of employment applications it is certainly apparent that by marking or having marked employment applications to indicate the race of the applicant one could easily engage in discriminatory hiring practices. However, there was no evidence presented which would indicate this was done. At all times relevant to the issues in this hearing, it is clear that the center had a very high percentage of minority employees on the staff. Also, there was no indicating of Victor hiring in a discriminatory manner. In fact, there was direct evidence given of a promotion given to a black employee over others among whom were white applicants. Therefore, Victor is found not guilty of discriminatory hiring practices.
CONCLUSIONS OF LAW
Each count in this Complaint deals with various violations of different statutes and rules. The general statute in question for the revocation of the license of a nursing home administrator is Section 468.175, F.S., which states that a licensee may be disciplined for the following reasons:
"(1)(a) Upon proof that such licensee is unfit or incompetent by reason of negligence, insanity, physical or mental conditions, or other causes;
Upon proof that such licensee has willfully or repeatedly violated any of the provisions of this part or the rules adopted in accordance therewith or willfully or repeatedly acted in a manner inconsistent with the health and safety of the patients of the facility in which he is the administrator;
Upon proof that such licensee is guilty of fraud or deceit in the practice of nursing
home administration or in his admission to such practice;
Upon proof that such licensee has been convicted of a felony in a court of competent jurisdiction, either within or without this state;
Upon proof that such licensee was issued incorrectly or in error."
In Count I Victor is charged with violation of Rule 10D-29.11(7), and 21Z-4.03(2) and (15), F.A.C. Clearly, Chapter 10D-29.11 does not apply to this case. That rule requires nursing homes to implement written policies dealing with patient care. For Mr. Victor to have violated this rule he must have failed to adopt policies and he is not charged with that. Chapter 21Z-4.03(2) and (15), F.A.C., requires him to have willfully or repeatedly violated provisions of law or rules and to have failed to exercise true regard for the health, safety and welfare of the patients.
After consideration of all the evidence regarding Count I, which deals with David Kernaghan, a patient mistakenly turned over to the Lee County Sheriff's Office, it is clear that the Respondent did not exercise the amount of
caution he should have before turning over Mr. Kernaghan to the Sheriff's Office. Respondent should have determined whether Mr. Kernaghan was a patient of the .center before concluding he was a vagrant. Such action on behalf of Mr. Victor was negligent. However, Rule 21Z-4.03(15), above noted, which is cited as authority for the revocation of a license on grounds of simple negligence is not consistent with Section 468.175(1)(a), F.S., which only permits the revocation of a license for incompetence by reason of negligence. It is beyond question that one instance of negligence does not itself demonstrate incompetence, particularly with regard to the evidence in this case which convincingly demonstrated that the Respondent, Victor, was competent and performed satisfactorily as a nursing home administrator. While the statute requires the finding of incompetence the rule in question would authorize the revocation of a license for simple acts of negligence. As such, the rule conflicts with the statute and is determined to be invalid and unforceable as authority for revoking Respondent's license.
With regard to Count II, as it has been determined that the activities of the staff with regard to the placing of a patient in the "supervised bathroom" was proper under the circumstances, no guilt can be found on the basis of the evidence.
With regard to Count III, the evidence does not justify finding Victor guilty of any violations of any statute or rule.
Count IV charges violation of rules concerning diet and nutritional care. The evidence however, only indicated a relatively short period of time where fruit juices were believed to have been watered down. Otherwise, the nutritional services at the center were perfectly adequate. With regard to these juices there was no evidence, as the statute requires, that the serving of diluted fruit juice was intentional or repeatedly done with the consent of the Respondent. No testimony was presented that Mr. Victor knew about or was responsible for the serving of diluted fruit juices. If the Respondent's license could be revoked on the grounds that the hospital staff served diluted fruit juices over a relative short period of time, then every other licensee so situated would be holding their license at the pleasure of the board. For over a period of several years it is natural to assume that the staff occasionally makes mistakes of a trivial nature such as this one. It would be grossly unfair to take administrative action on such grounds. Therefore, the Respondent is found not guilty of Count IV.
With regard to Count V, it was undisputed that when bills were prepared for patients prescriptions were not itemized but referenced by a coding of prescription number. Furthermore, bills for physician's services were increased by a $2.00 service charge which was not so referenced, and the discount that the center received from filling prescriptions was not passed on to the patient. Section 395.20(4), F.S., states:
"No physician, dentist, hospital, or nursing home may add to the price charged by any third party except for a service or handling charge representing a cost actually incurred as an item of expense; however, the physician, dentist, hospital, or nursing home is entitled to fair compensation for all professional services rendered. The amount of the service or handling charge, if any, shall be set forth clearly in the bill to the patient."
There is no specific statutory requirement that the nursing home pass on a discount such as received here for pharmaceuticals to the patient, however it is clear that any service charge must be itemized in the bill. This was not done by the center. The charge in this instance was minimal, however technically the convalescent center and Mr. Victor as its administrator is guilty of a violation of this statutory section as charged.
Counts VI and VII are somewhat related where they deal with the charging of inventory shortages to particular patients and the admitting of certain patients without proper authorization. The problem with both of these counts is that there was no evidence to show Mr. Victor was knowledgeable of these practices. While it may be taken as true that an unspecified number of inventory shortages were charged to patients and that patients who were readmitting to the convalescent center without a proper guardian or representative to sign the admitting documents had their signatures traced from previous admitting papers, those were acts on the part of the staff which were not authorized by Victor. Certainly, such occurrences were inappropriate and cannot be condoned, however, again the question reoccurs as to the extent of the Respondent's liability for unauthorized acts on the part of the employees of the convalescent center. Without stronger evidence that Victor was aware of these practices or condoned them he cannot be held personally accountable for them.
On Count VIII there was simply no competent evidence introduced which would lead to the conclusion that a violation of any of the recited statutes or rules had occurred.
The last count, Count IX, deals with alleged discriminatory practices of the Respondent. Concerning the two employees fired by Victor, no direct evidence was presented as to why they were fired except from the testimony of Victor himself. He stated he observed the employees in question violating rules of the hospital and fired them for that reason. As already noted above, the section of the convalescent center in which these employees worked was mostly, if not totally, comprised of black employees. On this type of evidence, a finding cannot be made that Victor engaged in discriminatory practices.
CONCLUSION
It is particularly difficult to evaluate the evidence in this type of case where numerous unrelated charges have been brought. It would be hard to imagine the running of any large complex operation which deals in health services to the elderly and infirm where numerous complaints could not be brought against the most well run institution. As an overview of all the evidence, it is the finding of this Hearing Officer and so entered as a specific finding of fact that the Respondent, Victor, administered the Lee Convalescent Center in a competent, conscientious and responsible manner. Specific instances of lapses or misconduct on the part of the staff as demonstrated through the evidence presented at the hearing in this case do not indicate that the licensee is unfit or incompetent and the law cannot require such a licensee to have his license placed in jeopardy for the isolated mistakes of the entire staff. Therefore, it is RECOMMENDED to the Petitioner, Board of Nursing Home Administrators Examiners that the Respondent be found not guilty of Counts I through IV, guilty of Count V, and not guilty of Counts VII through IX. It is further recommended that the Respondent receive a letter of reprimand for violation of Count V from the Petitioner.
DONE and ENTERED this 23rd day of February, 1977, in Tallahassee, Florida.
KENNETH G. OERTEL, Director
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32304
Mr. Joseph G. Victor 6102 Whiskey Creek Drive Apt. Number 305
Ft. Myers, Florida 33901
| Issue Date | Proceedings |
|---|---|
| Apr. 26, 1977 | Final Order filed. |
| Feb. 23, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 18, 1977 | Agency Final Order | |
| Feb. 23, 1977 | Recommended Order | Respondent nursing care provider was not negligent in his operations. It was not proven to have knowledge of the alleged violations. Recommend reprimand. |
