STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3681

) EDEN PARK MANAGEMENT, INC., d/b/a ) PORT ST. LUCIE CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on May 31, 1984, in West Palm Beach, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: K. C. Collette, Esquire

Department of Health and Rehabilitative Services

District IX Legal Counsel

111 Georgia Avenue, 3rd floor West Palm Beach, Florida 33401

For Respondent: Mark W. Hoffman, Esquire

HOFFMAN and BERNINI, P.A.

87 Columbia Street Albany, New York 12210

This cause arose on an administrative complaint filed by the Department of Health and Rehabilitative Services against the Respondent, in which it is alleged that on or about July 26, 1983, an investigation revealed that the Respondent, a licensed nursing home, had failed to enter on certain patient medical records, the patients' condition prior to administration of "prn" medication and failed to record the patients' responses to that medication, and/or failed to document all medications, treatments and services rendered those patients. This conduct or omission is alleged to be in violation of Section 400.141, Florida Statutes, and Rule 10D-29.118(6)(b) and (c), Florida Administrative Code. The Petitioner seeks to levy a $100 fine against the Respondent for the alleged violation under authority of Section 400.121(1) and (2), Florida Statutes, because the Respondent has allegedly violated minimum standards, rules and regulations of the department and the conduct described would justify denial or revocation of a license to operate a nursing home.

At the hearing the Petitioner presented witness Stanley Charles Peake, a hospital consultant for the Petitioner's Office of Licensure and Certification;

and Petitioner's Exhibits 1 and 2, both of which were admitted. The Respondent presented the testimony of Dora Mae Anspaugh, the Respondent's Director of Nurses, and Francis T. O'Brien, the Administrator of Port St. Lucie Convalescent Center, the Respondent. The Respondent presented no exhibits.

At the conclusion of the hearing, the parties availed themselves of the right to file proposed findings of fact and conclusions of law, which were timely filed by the Petitioner on June 18, 1984. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

The issue to be resolved concerns whether the Respondent is guilty of the omission charged under the authority cited in the administrative complaint, and if so, what, if any, monetary fine is warranted.

FINDINGS OF FACT

1. The Respondent is a nursing home licensed by the Petitioner, Department of Health and Rehabilitative Services, pursuant to Chapter 400, Part I, Florida Statutes. The Petitioner is an agency of the State of Florida charged with enforcing the provisions, as pertinent hereto, of Chapter 400, Part I, Florida statutes and section 10D-29.118(6), Florida Administrative Code.

   
   

2. On or about July 26, 1983, an investigation was conducted by Stanley Charles Peake, a hospital consultant for the Petitioner's Office of Licensure and Certification, at the Respondent's facility. It was discovered on that date (and established by witness Peake's testimony) that Nurse Sally Albury, a nurse employed by the Respondent, had failed to properly document the administration of medication to two patients who were residents of the Respondent's nursing home, the Port St. Lucie Convalescent Center. Entries recording the administration of medications to the two patients were not made, nor was any record made of the patients' condition prior to the administration of the "prn" medications. Further, the medications were to be on the "prn" or "as-needed" basis, and yet the medications were ultimately recorded as late entries showing that the medication was administered at the same time every day, when instead it was supposed to have been a "prn" medication. Further, the late entries made by Nurse Albury not only did not reflect any explanation of the patients' conditions, but no changes in condition were recorded to justify that medication (Thorazine) and the particular amounts involved. The appropriate way to correct a nursing chart concerning medication when the entry is made "after the fact" is to clearly indicate in the record that it is a late entry, which was not done by Nurse Albury in this case.

   
   

3. Finally, the Respondent agreed in the course of the proceeding, that Nurse Albury had failed to follow the requirements of Rule 10D-29.118(6) concerning the nurses recordkeeping responsibilities. The subject deficiencies were only noted as to two charts pertaining to two patients, and immediately upon being informed of the deficiencies caused by Nurse Albury, the facility reprimanded her and ultimately terminated her employment at the Respondent's facility.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Subsection 120.57(1), Florida Statutes.

5. Subsection 400.141(6), Florida Statutes (1983), requires that a nursing home situated as the Respondent

   
   

   keep full records of resident admissions and discharges; medical and general health status, including medical records, personal and social history, and identity and address of next of kin or other persons who may have responsibility for the affairs of the residents; and individual resident care plans including, but not limited to, prescribed services, service frequency and duration, and service goals. . .

   
   

6. Section 400.121(1) and (2) provide:

   
   

   1. The department of Health and Rehabilitative Services may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $500 per violation of s. 400.102(1). . .

   2. The department, as a part of any final order issued by it under the provisions of this part, may impose such fine as it deems proper, except that such fine may not exceed

      $500 for each violation. . .

      
      

7. Section 400.102(1) provides in turn, as follows:

   
   

   1. Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative services against a licensee:

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

         * * *

         (c) Violation of provisions of this part or of minimum standards, rules, or regulations promulgated pursuant therto: . . .

         
         

8. 10D-29.118 provides, concerning medical records required by the department to be kept by a nursing home licensee, at (4)(a) et. seq.:

   
   

   Each medical record shall contain sufficient information to clearly identify the patient, to justify the diagnosis and treatment, and to document the results accordingly.

   (b) The content of each medical record shall include, at a minimum, the following data:

   * * *

   1. Medical and nursing history, report(s) of physical examination(s), diagnostic and therapeutic orders, observations and progress notes, and reports of treatments and clinical findings.

   2. Medication records, unless included in the nursing notes.

   
   

9. The rule goes on to provide at Subsection (6) the medical record data for which nursing personnel are responsible, which include at a minimum, the following:

   
   

   1. Documentation of all medications, treatments, and services rendered;

   2. Description(s) regarding the patient's condition prior to 'p.r.n. medication' and the patient's response to the medication; . . .

   
   

10. Thus, Nurse Albury was clearly under an affirmative duty to record the pertinent information, discussed above, concerning the patient's medication, the times it was described, the reasons it was prescribed, the amount administered and pertinent and related information regarding the patient's condition at the time the medication was supposedly administered. This Nurse Albury failed to do, as Respondent admits, and thus Nurse Albury breached an affirmative duty placed upon her as a nurse-practitioner employed at the Respondent's facility and can clearly be concluded to have acted in a negligent manner in failing to perform that duty. So too, the Respondent nursing home had a duty, as indicated by the above rule and statutory authority, to keep complete records of the medical and general health status of patients or residents, including medical information regarding prescribed services and service frequency and duration, medical and nursing histories and reports, including observations and progress notes and medication records (unless included in the nursing notes). Thus, there was a concurrent duty on the part of the nursing home to maintain these appropriate medication records and records of observations and progress notes regarding these patients. The evidence of record reveals that no nursing notes were maintained as to these two patients on the date in question. It is no defense as Respondent urges, that the nurse was solely charged with keeping the subject record and that her failure to do so is not the failure by the Respondent to abide by any duty imposed on it. The Respondent had a concomitant duty to keep such records and maintain them independent of the question of any liability on the part of its nurse-employee for the employee's failure to record and maintain such records.

    
    

11. The nursing home, having failed in its affirmative duty, on this admittedly isolated and minor occasion, to properly insure that the medication, Thorazine, was properly administered and the administration was properly recorded as to each patient, it must be concluded that a negligent act occurred which could be deemed to materially affect the health or safety of these two residents within the purview of the above-cited statutory authority (Section 400.102), because the failure to record such medication or the failure to record it in a timely fashion could result in a later excessive dosage to the patients or alternatively, an insufficient dosage, with potentially severe health consequences to those patients.

    
    

12. The Hearing Officer is mindful of the fact that this was an isolated instance of a failure or breach of the duty imposed by the above authority on the Respondent, and that immediate steps were taken to alleviate the situation and assure that it did not recur. For these reasons, the relatively insignificant fine of $100 sought to be levied against the Respondent is warranted and is well within the statutory authority of the Petitioner.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and arguments of the parties, it is, therefore

RECOMMENDED:

That the Respondent, Eden Park Management Company, Inc. d/b/a Port St.

Lucie Convalescent Center, be found guilty of a violation of Sections 400.141(6), Florida Statutes, 400.102(1)(a) and (c), Florida Statutes, and Rule 10D-29.118, Florida Administrative Code, for which violations a $100 fine should he imposed.

DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984.

COPIES FURNISHED:

K. C. Collette, Esquire Department of Health and

Rehabilitative Services District IX Legal Counsel

111 Georgia Avenue 3rd floor

West Palm Beach, Florida 33401

Mark W. Hoffman, Esquire HOFFMAN and BERNINI, P.A.

87 Columbia Street Albany, New York 12210

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003681

Orders for Case No: 83-003681