vs. ) CASE NO. 82-2926
Respondent. )
This matter came on for hearing in Apalachicola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 24, 1983. The hearing finished the following day. Transcripts of the proceedings were received by the Division of Administrative Hearings on April 12, 1983. The parties were represented by counsel:
For Petitioner: Steven W. Huss, Esquire
For Respondent: Van P. Russell, Esquire
By amended administrative complaint, filed November 24, 1982, petitioner alleged, in addition, that:
David Kelly, certified since 1973 as an emergency medical technician and as an ambulance driver, does business as Franklin Ambulance Service, under contract to the Franklin County Commission. Franklin Ambulance Service held ambulance service license No. 221 from February 2, 1982, through February 1, 1983. An application for renewal of this license, dated January 19, 1983, has been filed with petitioner Department of Health and Rehabilitative Services (HRS).
Franklin County itself owns the two ambulances respondent operates. One ambulance had been driven 160,000 miles at the time of hearing; and the other had been driven more than 200,000 miles. They both require maintenance frequently. The ambulances are converted vans with no barrier between the driver and the back of the vehicle. Typically one ambulance is stationed in Apalachicola and the other in Carrabelle. Cases that Weems Memorial Hospital in Apalachicola is not prepared to handle are generally taken to Tallahassee
Memorial Regional Medical Center from the eastern part of the county, and to Bay Memorial Regional Medical Center from the western part of the county.
TELEPHONE ACCESS
When the ambulance based in Apalachicola is not in use or being serviced, Mr. Kelly keeps it at his residence on 26th Street in Apalachicola. He has a telephone in his house. In addition, according to Mr. Kelly:
The County has a volunteer phone system. That means that it is answered by volunteers in the community. There is four phones in Apalachicola, four phones in Carrabelle that are manned by volunteers.
In the event that someone is not going to be at the phone and a call comes in, a recorder is put on the telephone to tell the people of Carrabelle, if they need an ambulance, to call the ambulance number in Apalachicola, and the recorder in Apalachicola is very rarely put on, but whenever it is put on, it tells them to call the Weems Memorial Hospital, and the Weems Memorial helps them secure an ambulance. (T. II. p. 77).
The ambulances maintain direct radio contact with Weems Memorial Hospital when in service. This system has not always worked perfectly. About noon on September 23, 1982, calls were placed to the ambulance telephones in Apalachicola and in Carrabelle, in an effort to secure an ambulance, but to no avail.
Both in Carrabelle and in Apalachicola, volunteers sometimes answered the telephone for Franklin Ambulance Service. Debra Johnson, when she had completed her training as an emergency medical technician but before being certified, was such a volunteer in October of 1982. At the time, Nelson Noble worked for Mr. Kelly and had responsibility for ambulance service in Carrabelle and the eastern part of the county generally, as well as being pastor of the Church of God in Apalachicola.
On October 9, 1982, Mr. Noble asked Ms. Johnson to answer the telephone while he went to Apalachicola, leaving an oxygen tank, bandages, air splints and instructions to stabilize any patient who needed it, until he could get back from Apalachicola. On Sunday, October 10, 1982, Mr. Noble had the ambulance at his church. He was gone all day and did not return to relieve the volunteer manning the telephone until ten o'clock that night. At about half past noon on October 12, 1982, Mr. Noble asked Ms. Johnson to answer the telephone and to tell callers that the ambulance was on a run to Tallahassee. At 6:30 or 7:00 that evening, Ms. Johnson was told that Mr. Nelson and the ambulance were at Mr. Noble's house in Carrabelle. She called and complained that he had not kept her informed of his whereabouts. On one occasion, the ambulance went to Tallahassee with a patient and did not return for six hours. Mr. Noble "had been shopping, and had bought parts for his truck. . ." T. 1 p. 151.
There was no showing that these particular incidents or other specific interruptions of continuous telephone access by the Carrabelle public were brought to Mr. Kelly's attention at the time. There was no showing that the Apalachicola ambulance was inaccessible to the public at any time, except for good reason.
DRIVER ATTENDS WHILE EMT DRIVES
On June 27, 1982, two cars travelling in opposite directions across Gorrie Bridge collided head on. Archie Brooks Holton, a Franklin County deputy sheriff, was the first law enforcement officer on the scene. He radioed his dispatcher asking that a fire truck and at least one ambulance be sent to the bridge. Twenty or thirty minutes later the Apalachicola ambulance driven by Mr. Kelly arrived. Seated next to him was James Clark Tomlin.
After accident victims had been placed in the ambulance, Mr. Kelly drove off, with Mr. Tomlin attending the patient in the rear of the ambulance. En route to the hospital, one of the patients threw up and Mr. Tomlin cleared
out vomitus with his fingers, then used a suction device. At all pertinent times, Mr. Tomlin was a certified ambulance driver, but was not certified as an emergency medical technician. Explaining why Mr. Tomlin, rather than he, attended the patient in the back of the ambulance as they left the Gorrie Bridge accident, Mr. Kelly testified:
Whenever I started to leave the accident scene, Jim Tomlin told me that he had left his glasses. He did not have his glasses with him, and he is required on his driver's license, to drive with glasses, and he said that he could not see to back off that bridge and pass those cars and turn around without his glasses, that the glare was too much for him. (T. II. p. 68).
Another traffic accident, on State Road 67 five miles north of Carrabelle, resulted in another accident victim's being transported by the Apalachicola ambulance on or about August 31, 1982. Again Mr. Kelly drove and Mr. Tomlin rode in back. Whether or not a physician's assistant was also in the back of the ambulance while it travelled to Dr. Sands' office, Mr. Tomlin and the patient were alone in the back of the ambulance while Mr. Kelly drove it from Dr. Sands' Franklin County office to Tallahassee Memorial Regional Medical Center. Mr. Kelly explained:
On the way to the ambulance, Jim Tomlin told me that he had gotten nauseated and sick from working. It was a hot night and he said that he was nauseated and sick to his stomach, and he didn't think that he would be able to drive, and I told him that I would drive him on to
the doctor's office, and we would see, when we got there, if he thought he'd be able to drive on to Tallahassee. . .Jim, at that time, informed me that he was not able. . .to drive on to Tallahassee, that he still felt too bad. I told him that, since the patient was stabilized, we had the splints on the patient, to watch him and inform me if anything went wrong, and I would drive on to Tallahassee. (T. II. pp. 61-62).
According to Messrs. Kelly and Tomlin these two occasions were the only ones on which Mr. Tomlin rode in the back of the ambulance with a patient while Mr.
Kelly drove the ambulance.
The weight of the evidence was otherwise. At various times, including November 1, 1982, Vicki Lynn Holton, a nurse at Weems Memorial, saw the Apalachicola ambulance arrive at the hospital with Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance. Dr. Photis Nichols has on several occasions seen the ambulance leave Weems Memorial with Mr. Tomlin attending the patient in the back and Mr. Kelly driving. Some time in 1981 or 1982 Mr. Kelly drove an ambulance to Tallahassee Memorial Regional Medical Center with a mother and newborn infant in the back attended by Mr. Tomlin. On September 3, 1982, an ambulance left St. Teresa with a patient, his wife, and Mr. Tomlin in the back of the ambulance and Mr. Kelly driving. Dora Lee White, PBX operator at Weems Memorial, has seen Mr. Kelly driving an ambulance and Mr. Tomlin in the back attending a patient from time to time over the last three
years. Ms. Julia Barber, another PBX operator at Weems Memorial, can see the ambulance arrive and depart from her work station. Over the last three years, Mr. Kelly has almost always driven and Mr. Tomlin has almost always attended the patient in the back of the ambulance, as far as she has observed. A former employee of the ambulance service, Nancy Cone, observed Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance, on ten or fifteen occasions.
The evidence overwhelmingly established that Mr. Kelly routinely drove the ambulance, leaving Mr. Tomlin to take care of patients. Because of the van configuration, the two men could communicate. In a sense, the licensed driver, Mr. Tomlin, was in the presence of a certified emergency medical technician, Mr. Kelly, when he attended patients in the back of the ambulance Mr. Kelly was driving.
When Mr. Noble was hired to take charge of ambulance operations in Carrabelle, he was certified as an ambulance driver, but not as an emergency medical technician. (He was nevertheless paid one third again as much as the two emergency medical technicians he replaced earned between them, perhaps because part of his duties was "public relations.") Mr. Noble had been previously certified as an emergency medical technician and was recertified on October 15, 1982. While working for Franklin Ambulance Service, but before his recertification as an emergency medical technician, Mr. Noble drove or rode in the Carrabelle ambulance numerous times when patients were being transported and without a duly certified emergency medical technician on the ambulance. Mr. Noble's testimony that this occurred only once has not been credited.
RECORD KEEPING
Whenever one of the ambulances makes a trip, an employee of the ambulance service filled out a "REMSMO Ambulance Report" form. Even though Mr. Kelly drove and Mr. Tomlin acted as ambulance attendant, the "run reports" indicated that Mr. Tomlin drove and Mr. Kelly acted as the attendant. False reporting of this kind occurred repeatedly, including the night of the accident on Gorrie Bridge.
CONCLUSIONS OF LAW
Respondent's license is renewable annually and the statutes apparently contemplate more than ministerial relicensure. Section 401.25(6), Florida Statutes (1981) "requirements for renewal. . .same as requirements current at the time of renewal for original licensure"). Among the requirements current at the time respondent sought relicensure was that all "drivers, attendants, and services meet the requirements of [The Florida Emergency and Nonemergency Medical Services Act] including appropriate rules and regulations." Section 401.25(3)(b), Florida Statutes (1981). In addition, petitioner HRS is authorized by statute to suspend or revoke a license like respondent's
if it determines that the licensee has failed to maintain compliance with the requirements prescribed for operating an emergency or nonemergency medical transportation service. Section 401.25(4), Florida Statutes (1981).
License revocation cases have been called "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den.
1980).
In license revocation proceedings, the licensing authority has the burden to show by clear and convincing evidence that the licensee should be disciplined. See Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). The alleged dereliction must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Petitioner has met this burden in the present case to show grounds for disciplinary action, without regard to any failure on respondent's part to establish its entitlement to relicensure.
For obvious reasons the rules require that "[e]ach ambulance service must provide continuous telephone access by the public," Rule 10D-66.32(1)(b), Florida Administrative Code, superseded by identical language in Rule 10D- 66.55(2)(c), Florida Administrative Code, which also provides that, "The service must dispatch an ambulance on each emergency call as rapidly as possible after each call is received." Even when no ambulance is available, continuous telephone access is to be provided. The fact that no ambulance will be available for hours could be vitally important information in some circumstances. If the ambulance is being filled with gas or is standing idle outside Mr. Noble's house, and is available, telephone access is the necessary precondition to use of an ambulance, instead of some less satisfactory conveyance.
There is a statutory requirement, when ambulances like respondent's transport persons who are "sick, injured wounded, incapacitated, or helpless," Section 401.27(1), Florida Statutes (1982 Supp.), under emergency conditions, that the ambulance "be occupied by at least two persons, one of whom shall be a certified emergency medical technician, certified paramedic, or licensed physician and one of whom shall be a driver who meets the requirements for ambulance drivers." Section 401.27(4), Florida Statutes (1982 Supp). Former law provided that an ambulance transporting "a sick, injured, wounded, incapacitated or helpless person. . .be occupied by at least two persons, one of whom holds either a valid emergency medical technician's certificate or a medical or registered nursing license. . ." Section 401.27(4), Florida Statutes (1981). Elaborating on the statutory requirements, Rule 10D-66.32(4)(b), Florida Administrative Code, provides:
Every ambulance in which a patient is being transported must have at least one fully certified emergency medical technician (EMT) attending the patient and one certified driver operating the vehicle. If a patient is not being transported, only a driver is required.
Effective November 29, 1982, Rule 10D-66.49(2)(d), Florida Administrative Code, took effect. This provision requires that "every ambulance in which a patient is being transported must have at least one certified EMT attending the patient." Both before and after this change, except in nonemergency situations, failure to have a certified emergency medical technician, registered nurse, paramedic or physician on the ambulance free to attend the patient (rather than
driving the vehicle) constitutes a violation of the Florida Emergency and Nonemergency Medical Services Act including appropriate rules and regulations.
Both under former Rule 10D-66.33(2), Florida Administrative Code, and under current Rule 10D-66.60(2), Florida Administrative Code, ambulance services like respondent were and are obliged to keep records of each run or emergency call. While only Rule 10D-66.60(2), Florida Administrative Code explicitly requires that these run reports be accurate, the requirement of accuracy is implicit in Rule 10D-66.33(2), Florida Administrative Code. Both provisions spell out in detail the information that must be recorded on run report forms and neither requires that records be kept as to who was driving and who was attending. Applying the maxim inclusio unius exclusio alterius, there is no legal requirement that a record or drivers and attendants be kept; but anything that is entered on the forms must be accurate.
That petitioner deny respondent's application for licensure, without prejudice to the filing of a new application 90 days after the effective date of the denial.
DONE and ENTERED this 15th day of June, 1983, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1983.
Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard,
Van P. Russell, Esquire
David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
