STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-4310

) GULF CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties by the undersigned on January 16, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Destin, Florida on April 9, 1986. The issue for consideration was whether the Respondent, Gulf Convalescent Center, was guilty of a Class II deficiency, as indicated in the DHRS Form 553E for the visit conducted on August 28, 1985, as a violation of Rule 10D-29.108 (3)(e), Florida Administrative Code.

APPEARANCES

For Petitioner: Donna Harkness, Esquire

Department of Health and Rehabilitative Services

160 Governmental Center Post Office Box 12836 Pensacola, Florida 32576

For Respondent: Mrs. Louise McCasland

Administrator

Gulf Convalescent Center

114 Third Street, Southeast

Fort Walton Beach, Florida 32548 BACKGROUND

On September 18, 1985, the Petitioner, Department of Health and Rehabilitative Services (DHRS), informed the Respondent, Gulf Convalescent Center (Gulf), of the findings of a licensure, medicare, medicaid and civil rights survey conducted on August 26-28, 1985, at the Respondent's facility in Ft. Walton Beach, Florida.

Certain discrepancies were listed. On September 26, 1985, the administrator of Respondent's facility requested that the one Class II citation indicated on the report of survey be changed to a less severe classification. DHRS chose to treat that as a request for hearing and on December 17, 1985, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer.

At the hearing, Petitioner presented the testimony of James L. Myrah, a hospital consultant and Christine Denson, a registered nurse. Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Mrs. McCasland and introduced Respondent's Exhibits A through D. The Hearing Officer took official recognition of Section 400.23(4) (b), Florida Statutes.

Both Petitioner and Respondent filed post hearing submissions which purported to contain proposed findings of fact. These submissions were thoroughly considered and evaluated in the preparation of this Recommended Order and so far as was possible, specific rulings were made on each proposed finding. These rulings are incorporated in the appendix attached hereto.

FINDINGS OF FACT

1. During the period August 26-28, 1985, James L. Myrah, a hospital consultant for DHRS, accompanied by Ms. Christine Denson, a registered nurse, and other consultants in various disciplines from the Petitioner's office of licensure and certification, conducted a licensure, medicare, medicaid and civil rights survey at the Respondent's facility in Ft. Walton Beach, Florida. During the course of this survey, Mr. Myrah followed the normal procedure for such inquiries which included an entrance conference with the administrator, and a survey process which includes looking at various items for as many days as is required to do a thorough job.1 As a part of the survey, the team looks at every resident physically but examines patient charts on the basis of a random sample. In the

   instant case, examination of the patient records kept by the Respondent revealed only one variance. That was brought to the attention of the Petitioner's Office of Licensure and Certification by the Local District I omebudsman who commented about a particular patient, whose name will not be recited to preserve patient confidentiality, but whose initials, M.C., will be used as identification. By the time the survey was conducted, M.C. had already been transferred to another nursing home and was not physically present. Therefore, the inspection team was unable to examine her. However, they did examine her medical records and chart closely.

   
   

2. This examination resulted in Petitioner drawing the conclusion that Respondent was in violation of the require ment for notification to the patient's physician whenever there is a substantial significant change in the patient's condition.

   
   

3. The patient's chart was not entered into evidence. The report form identifying the deficiency (HRS Form 553E) was prepared by the inspection team based on its evaluation of the patient records. This was not objected to by Respondent, and in the absence of any objection to its entry, it was accepted. The entry for the 11 p.m. to 7

   a.m. shift on May 22, 1985, reflects,2 "Total care given, nothing per os (by mouth) past midnight. Dr.'s appointment in am--resident seems very listless not talking as usual. Several small bruises noted on lower extremities (rt.) foot very discolored." This entry is, in the opinion of Ms. Denson, important because it relates to the fact that the patient was to go to the doctor in the morning. The use of the term "listless" might indicate a serious medical condition and a change of condition which should have been reported to the person next in charge. The term, "not talking as usual" shows a change that would require comment. In addition, the comment regarding the discoloration of the foot should have been reported to someone and not allowed to remain uncommented on until the visit with the doctor the next morning.

   
   

4. The patient saw her physician, Dr. Wilson, at 8

   a.m. on May 22, 1985; and returned to the home at 10 a.m. the same morning. Apparently nothing was considered to be wrong with the patient because no prescription for medicine or other treatment was given by the physician who, three days later, on May 25, 1985; when advised by nurses on the

   7 a.m. to 3 p.m. shift of large black and blue areas on the patient's inner groin area, indicated he examined the patient and found nothing new clinically on May 22.

   
   

5. There are repeated instances of comments which Petitioner alleges were not properly reported to the physician. For example, on May 23, personnel on the 11

   p.m. to 7 a.m. shift reflected that the patient "continues to be listless. Right leg turned at a funny angle. Report to D.O.N. (Director of Nursing)." The 7 a.m. to 3 p.m. shift the following morning reported, "Both legs ecchymosis (discolored), hip moves oddly, color pale." The 3 p.m. to

   11 p.m. shift the same day reported, "Color remains pale-- unusual movement and rotation of both legs noted."

6. Additional comments of a similar nature were noted by personnel on the 11 p.m. to 7 a.m. shift on May 24 the 3

   p.m. to 11 p.m. shift on May 24; and the 11 p.m. to 7 a.m. shift which discovered the discoloration to the pelvis as reported previously.

   
   

7. At 4 p.m. on May 25, 1985, personnel reported their concern in reference to the bruises on the patient's groin and lower extremities to the physician and further entries show that at 5:10 p.m., the patient was subsequently returned to the home at 7:30 p.m. after x-rays were accomplished which failed to reveal any fracture.

   
   

8. Nonetheless, because of continued concern by the nursing staff and at the urging of family members, the patient was returned to the hospital at 10 a.m. on May 27, 1985. At this point, she was found to have fractures of both lower extremities and upon release from the hospital was transferred to another convalescent center.

   
   

9. Mrs. McCasland contends that all due care and concern was given to the patient, M.C., consistent with the long standing convalescent center policy governing changes in patient status. This policy statement, dated March, 1975, which is still in effect, requires that "in the event of a significant change in the patient's physical, mental, or emotional status, the attending physician is immediately called by the charge nurse."

   
   

10. As was stated in paragraph 3, above, on May 22, an 11 p.m. to 7 a.m.'s shift nurse noted a small bruise on the left foot of the patient and that the patient was listless. Small bruises are not necessarily significant in geriatric patients (M.C. was 88 years old). Also, often older people do not talk for several days. In any event, the lack of any significant condition was confirmed by the physician who found nothing unusual in the patient's condition during the examination. The doctor's report reflects, inter alia, "physical examination is remarkable for an elderly white female in an involuted state appearing her stated age." Her extremities "show some area of bruising primarily in the upper thighs presumably related to lifting the patient. She has crepitance in the bilateral knees and is unable to fully extend her lower extremities." Neurologically; she was determined to be alert and the physician recommended continuing general support of care.

    
    

11. On May 25, 1985, the charge nurse called Ms. McCasland at home indicating that the patient's legs seemed to be getting bluer. Ms. McCasland, at that moment, told the nurse to call the patient's physician which was done and the doctor indicated at that time that when he had examined the patient several days previously, he found nothing wrong. It apparently was the decision of the doctor to take no further action at that time. However, at approximately 4 p.m.; after the conversation with the physician; the charge nurse contacted the physician again, indicating she thought the patient needed to be x-rayed.

    At 5:10 p.m.; the patient was taken to the hospital; apparently at the order of the physician; for x-rays which showed no fractures. Nonetheless; this action would not have been taken were it not for the attention of the nurse on duty and actions of the Respondent's administrator.

    
    

12. On the following day, May 26, the charge nurse from the 7 a.m. to 3 p.m. shift again called Mrs. McCasland at home and stated that the patient's legs were; "bad." Ms. MeCasland told the nurse to call the patient's physician who directed she be sent to the hospital for x- rays. The hospital would not accept the patient and as a

    result, the physician came to the convalescent center where he examined her and concluded that there was, in fact, a problem. He directed she be sent to the hospital the following day and when she was x-rayed then; fractures were discovered. It should be noted here that again the contact with the physician which resulted in the ultimate diagnosis of leg fractures, was initiated by the charge nurse at Respondent's center and communicated to the physician and Ms. McCasland by center personnel.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

14. Under the provisions of Section 400.23(4), Florida Statutes:

    
    

    The department shall promulgate rules to provide that, when the minimum standards established under subsection

    (2) are not met, such deficiencies

    shall be classified according to the nature of the deficiency. The department shall indicate the classification on the fact of the deficiencies as follows:

    
    

    * * *

    
    

    1. Class II deficiencies are those which the department determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility or residents other than Class I deficiencies. . . .

       
       

    2. Class III deficiencies are those which the department determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility or residents, other than Class I or Class II deficiencies "

    
    

15. Here, the department has classified the alleged failure by nursing home personnel to report significant changes in patient M.C.'s condition to the physician as a Class II deficiency, describing it as having a direct or immediate relationship to the health, safety, or security of the resident.

    
    

16. Rule 10D-29.108(3)(e), Florida Administrative Code, provides:

    
    

    Responsibilities of the Director of Nursing Services shall include, at a minimum, the following:

    
    

    * * *

    
    

    (7) Assuring that each patient's attending physician(s) and family or responsible party are promptly notified of any significant change in the patient's health status . . ..

    
    

17. In substance, nursing home personnel are required to, as best as can be done, note any significant change in

    a patient's physical, mental, or emotional condition and report this change to the patient's physician for evaluation for possible corrective action or treatment. Here, Petitioner contends that Respondent allowed the patient, M.D.'s condition to deteriorate without reporting the significant interim changes to her physician in a prompt and expeditious manner. This contention is not supported by the evidence of record. It would be impossible for any nursing home to notify a non-resident physician of any change in each patient's condition on a continuing basis. Any physician receiving such repeated and detailed notification would probably terminate that sort of reporting in a short time. What is required is that nursing home personnel exercise due care to insure that patients entrusted to their care are consistently monitored and that in fact significant changes; which may have a substantial bearing on the patient's condition and the physician's ability to evaluate that condition; be brought to the attention of the physician as soon as possible. This does not mean that every change or every observation must be called in.

18. Here it is clear from both the testimony of Petitioner's witnesses as well as that of the Respondent's administrator, that within reason, every significant change was evaluated and brought to the attention of the patient's physician with the least possible delay consistent with the rule requirements and the institution's own policy. It is clear here that Respondent's personnel did all within their reasonable power to properly provide for the patient's well being and there is insufficient evidence to establish, based on the evidence presented, that a deficiency sufficient to warrant corrective action occurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that deficiency number NH77(g); relating to the visit to Respondent's convalescent center on August 28, 1985, be removed.

DONE and ORDERED this 7th day of May, 1986, in Tallahassee, Florida.

_

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 7th day of May, 1986.

ENDNOTES

1/ Mr. Myrah indicated that the usual survey of a convalescent home takes approximately three days.

2/ Eleven p.m. to seven a.m. shifts start at eleven p.m. on the night prior to the day listed, i.e., 5-22-85 shift

actually started at eleven p.m. on 5-21-85.

COPIES FURNISHED:

Donna Harkness, Esq.

P. O. Box 12836 Pensacola, FL 32576

Mrs. Louise McCasland Administrator

114 Third St., S.E.

Ft. Walton Beach, FL 32548

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner

1. Incorporated in F1-10.

2. Accepted in FOF 12.

3. Not a FOF, but a recitation of the evidence.

4. Not a FOF but a recitation of the evidence.

By the Respondent

Respondent's letter of April 14, 1986; is not a series of Proposed Findings of Fact, but more an argument referring to the evidence.

Docket for Case No: 85-004310

Orders for Case No: 85-004310