STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY CONVALESCENT CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1089

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing in the above-styled cause was held in the City Commission Room, City Hall, 2nd Floor, Nine Harrison Avenue, Panama City, Florida, beginning at 10:30 a.m., on September 22, 1978, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Respondent: Donna Stinson, Esquire

District Legal Counsel Department of Health and Rehabilitative Services 2369 North Monroe Street Tallahassee, Florida 32302

For Petitioner: Bert A. Davenport, Esquire

406 Magnolia Avenue

Panama City, Florida 32401 ISSUES

1. Whether Respondent failed to meet the requirements for nursing home operations as defined in Chapter 400, Florida Statutes, and the rules promulgated thereunder.

   
   

2. Whether Respondent should be fined or other corrective action taken.

FINDINGS OF FACT

In general, the posture of this case is as follows:

1. The Petitioner is Bay Convalescent Center, Inc., a nursing home in Panama City, Florida, licensed by the Department of Health and Rehabilitative Services, the Respondent.

   
   

2. Mrs. Lula Carroll was first admitted to the nursing home as a patient on December 20, 1973, at which timed she was eighty-eight (88) years old. She was a resident of the nursing home during the months of April and May, 1978,

   when severe bruises were noticed on her body and entered on the nursing home records on April 25.

   
   

3. Subsequent to the original observation of bruises, a niece complained that Mrs. Carroll had bruises on parts of her body. The complaint reached the office of Licensure and Certification of the Department of Health and Rehabilitative Services. Respondent sent an employee on May 5, 1978, to investigate the complaint. Respondent found that Petitioner:

   
   

   "was negligent in that they failed to notify the attending physician"

   and

   "the record-keeping function was not consis- tent with the established and recognized standards in that personnel failed to exe- cute an incident report when the patient was found in an unusual condition."

   
   

4. A fine of $500 was levied and the Petitioner requested an Administrative Hearing.

5. The nurse's notes of April 25, 1978 indicate that: "Bruise area noted to pts. R. breast, ex-

   tending from the upper R. quadrant of chest

   and of R. breast. This was reported to the Director of Nursing, Mrs. Sanders."

   
   

6. A further note stated, "bruised area black and red and R. breast and underarm."

   
   

7. Mrs. Ruth Sanders, the Director of Nursing, observed the bruises on or about April 25, and reported them to Dr. Byron McCormick, a physician for Bay Convalescent Center, Inc. Dr. McCormick examined Mrs. Carroll, but made no notes and it is uncertain which day he was notified or examined the bruises on Mrs. Carroll because there is neither doctor or nursing home records as to the examination.

   
   

8. Mrs. Carroll was taken to the Gulf Coast Community Hospital in Panama City by ambulance on April 27, 1978. She remained in the hospital from April 27, 1978 until May 2, 1978 and was then returned to the Bay Convalescent Center, Inc.

   
   

9. A niece from out of state had been notified that Mrs. Carroll was being taken to the hospital and upon her arrival found that Mrs. Carroll had many deep bruises and some abrasions on her body. A complaint was made to Mrs. Grace Rickell, a social worker in Panama City, Florida, who notified the Department of Health and Rehabilitative Services, which sent an inspector, Hattie King, R.N., from Jacksonville to Panama City to examine Mrs. Carroll and investigate the complaint. Mrs. King arrived at the Petitioner nursing home on May 5, 1978, interviewed the staff and took photographs of the bruises on Mrs. Carroll.

   
   

10. No evidence was submitted to show that the admission to the hospital was related to the bruises on the body of Mrs. Carroll, which were observed by Mrs. Sanders and Dr. McCormick and were indicated by the convalescent center records of April 25, 1978. The admission summary stated,

    "This 92 year old white female was trans- ferred by Bay Convalescent Nursing Center because of no blood pressure, fever and chills. Patient is unable to give any his- tory. It is known that she has organic brain syndrome with generalized arterio- sclerosis and had a CVA in the past."

11. Upon release from the hospital the record on Mrs. Carroll stated, "gave us much difficulty in the hospital in

    that she was not cooperative, thrashed about and required restraints. She continued as she became more alert, to be irrational, uncooperative, requiring a Posey belt. We got to where we could fed her and returned her back to the Nursing Home.

    
    

12. The observation of the bruises on Mrs. Carroll by her niece and the complaint that led to the investigation of Respondent was after Mrs. Carroll had been admitted to the hospital. The investigation by the Respondent was after Mrs. Carroll had been returned from the hospital to the Petitioner, Bay Convalescent Home, Inc.

    
    

13. Mrs. Ruth Sanders, the Director of Nursing, testified that she observed the bruises on Mrs. Carroll, but did not feel the bruises or the condition of Mrs. Carroll required the immediate attention of a doctor. She informed the doctor at his next visit, which time period was not definitely established, but was after the time of the report on April 25, and before Mrs. Carroll was sent to the hospital. Mrs. Sanders did not know what had caused the bruises.

    
    

14. Mrs. Sanders had not felt the bruises were sufficient to warrant an incident/accident report. Mrs. Sanders and a registered nurse, Mrs. Bruton, viewed the photographs taken on May 5, and testified that some of the bruises shown by the photographs were not there at the time Mrs. Sanders and Dr. McCormick had originally examined Mrs. Carroll.

    
    

15. Dr. Byron McCormick testified that he examined Mrs. Carroll and tee bruises, although he had made no notes about her condition. Dr. McCormick did not know what had caused the bruises, but his testimony was that he did not feel the bruises warranted the preparation and filing of an "incident/accident report". He testified that the bruises could have been caused by restraint, by the Posey belt, by Mrs. Carroll thrashing about, or from the routine handling of her in and about her bed, inasmuch as she had fragile skin and a tendency to bruise.

    
    

16. Mrs. Hattie King, who observed and examined Mrs. Carroll and took photographs of the bruises did not know how Mrs. Carroll was bruised, but it was her opinion that an incident report should have been filed. Mrs. Earline Gibbons, who examined Mrs. Carroll with Mrs. King and who aided Mrs. King in the taking of the photographs, testified that the bruises as shown by the photographs and on her examination had been sufficiently severe to warrant the immediate attention of a physician.

17. The Hearing Officer further finds:

    
    

    1. The evidence shows that the patient, Mrs. Lula Carroll was severely bruised.

       There is no evidence to show bow Mrs. Carroll was bruised.

    2. The investigation by the Respondent was subsequent to the initial bruising and subse- quent to the release of the patient from the convalescent home to the hospital and the return to the convalescent home. There is no evidence to show that the patient was not additionally bruised subsequent to the bruises suffered in April and the time of the investigation on May 5th.

    3. Testimony of the Director of Nursing and the doctor who examined the patient was taken at the hearing and both of these witnesses called by the convalescent home testified

       that in their opinion, no incident report was required. There is no competent evidence to show that there was an accident or an incident.

       
       

       CONCLUSIONS OF LAW

       
       

18. Chapter 400, Florida Statutes, authorizes the Department of Health and Rehabilitative Services to penalize nursing homes which violate either the provisions of Chapter 400 or the provisions of the rules and regulations adopted pursuant to said Chapter.

19. Chapter 10D-29.38(5), Florida Administrative Code, provides for: "(5) Calling for a physician when necessary

and obtaining orders for medication and

treatments."

"(15) Preparation of accident and incident reports.

20. 10D-29.41(10) provides for:

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

21. 10D-29.46(d) provides:

"An accident and incident record, containing a clear description of each accident and any other incident involving hazardous or deviant behavior of the patient, resident or staff

member, with names of individuals involved, description of medical and other services provided, by whom such services were provided and the steps taken, if any, to prevent reoccurrence."

1. There is no competent, substantial evidence to show that any individual observed, heard or witnessed the bruising or that the Petitioner violated the foregoing rules by failing to call for a physician for Mrs. Carroll when it was necessary, or that an accident or incident involving hazardous or deviant behavior involving Mrs. Carroll occurred.

   
   

2. Section 400.121(1), "The Department of Health and Rehabilitative Services may deny, revoke or suspend the license or impose an administrative fine for a violation of any provision of Section 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."

   
   

3. In the absence of a showing that Petitioner, Bay Convalescent Home, Inc., was negligent in its duties toward the patient or that an incident/accident report should have been filed, the Respondent had no authority to impose an administrative fine. The physician and the Petitioner should have kept a record of the time of his visit of the patient and should have made some notation as to his examination on the bruises but such deviation is not necessarily a negligent act materially affecting the health or safety of the residents of the facility as prohibited by Section 400.102, Florida Statutes.

RECOMMENDATION

Dismiss the Administrative Complaint.

DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Donna Stinson, Esquire 2639 North Monroe Street Suite 200-A

Tallahassee, Florida

Mr. William Riddle Administrator

Bay Convalescent Center 1336 St. Andrews Boulevard Panama City, Florida 32401

Hon. Jerry W. Gerde

406 Magnolia Avenue Panama City, Florida

Docket for Case No: 78-001089

Orders for Case No: 78-001089