STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1774

) HCA RAULERSON HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on June 12, 1990, in Okeechobee, Florida.

APPEARANCES

For Petitioner: John Rodriguez, Esquire

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

For Respondent: Robert L. Hinkle, Esquire

Aurell, Radey, Hinkle & Thomas Suite 1000, Monroe-Park Tower

101 North Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should be sanctioned for an alleged violation of Chapters 395 and 401, Florida Statutes (1989).

PRELIMINARY STATEMENT

On February 7, 1990, the Petitioner, State of Florida, Department of Health and Rehabilitative Services ("HRS") issued an Administrative Complaint against Respondent, HCA Raulerson Hospital ("HCA Raulerson" or the "Hospital"), seeking to impose a fine of $10,000 for an alleged violation of Sections 395.0142, 395.0143 and 401.45, Florida Statutes (1989) arising from the care rendered by the Hospital to a 28 year old male patient who was suffering from a gunshot wound to the lower leg. (In order to preserve the patient's confidentiality, he will be referred to as "K.H." or the "Patient".) The Hosptial timely filed a Petition for Administrative Hearing challenging HRS' proposed action. The case

was referred to the Division of Administrative Hearings which noticed and conducted a formal administrative hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, Petitioner presented the testimony of Connie Cheren, the Director of the Office of Licensure and Certification for HRS. Petitioner offered five exhibits into evidence, all of which were accepted. Petitioner's Exhibit 4 was a copy of the Hospital Emergency Service Violation Report filed by St. Mary's Hospital. The parties stipulated to the authenticity of the report, however, Respondent objected to the hearsay contents of that document. The exhibit was accepted under the provisions of Section 120.58(1)(a), Florida Statutes (1989), which permits hearsay evidence to be used in an administrative proceeding for the purpose of supplementing or explaining other evidence.

Petitioner's Exibit 5 was the deposition of Dr. Richard S. Slevenski. A transcript of Dr. Slevenski's deposition was not available until the day of the hearing. Respondent requested and was granted leave to raise objections to Dr. Slevenski's testimony by motion subsequent to the hearing. By Notice filed on June 21, 1990, Respondent advised that it had no objection to the admission of the entire deposition. Dr. Slevenski was proffered as an expert in emergency medicine. After reviewing the deposition, it appears that Dr. Slevenski qualifies as an expert witness as defined in Rule 1.390, Florida Rules of Civil Procedure. Therefore, he is accepted as an expert in emergency medicine.

Respondent presented the testimony of five witnesses: Roy Vinson, the former Administrator of the Hospital; Wendy Jones, an emergency room technician at the Hospital; Dr. Zafar Kureshi, an orthopedic surgeon with staff privileges at the Hospital; and Gary Cantrell, the current Administrator of the Hospital.

Respondent offered four exhibits into evidence, all of which were accepted. Respondent's Exhibit 1, was the deposition of Dr. William Douglas Henderson, an orthopedist. Because Dr. Henderson's deposition was not transcribed until immediately prior to the hearing, Petitioner was granted leave to raise objections to the testimony by motion subsequent to the hearing. By Notice filed on June 21, 1990, Petitioner advised that it had determined not to object to admission of the entire deposition.

At the conclusion of the hearing, Respondent proffered certain portions of the deposition of Petitioner's witness, Connie Cheren pursuant to Rule 1.330(a)(2), Fla. R. Civ. P. Petitioner requested and was granted an opportunity to review those excerpts and to designate additional portions of the deposition for consideration within ten days of the conclusion of the hearing pursuant to Rule 1.330(a)(4), Fla. R. Civ. P. By Notice filed June 21, 1990, the parties jointly stipulated to and submitted portions of the deposition for consideration. Those portions have been reviewed and considered in the preparation of this Recommended Order.

At the conclusion of the hearing, the record in this proceeding was left open in order for Respondent to submit the deposition testimony of Dr. Charles Vasser, an emergency room physician who treated the Patient. Dr. Vasser was scheduled to testify on the second day of the hearing. However, because all the other testimony was concluded during the first day of the hearing, the parties jointly requested and were granted the opportunity to present Dr. Vasser's testimony by deposition taken subsequent to the hearing. A transcript of Dr.

Vasser's deposition was filed on July 20, 1990.

A transcript of the proceedings has been filed. Both parties have timely submitted proposed recommended orders which have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties proposed findings of fact is included in the Appendix attached to this Recommended Order.

Respondent filed notices of supplemental authority on October 9, 1990 and November 9, 1990. The legal precedents cited in those notices have been reviewed and considered.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. HCA Raulerson is the only hospital in Okeechobee County, Florida. As such, it serves all of Okeechobee County and parts of the surrounding counties. It is a small community hospital that is best characterized as a primary care receiving facility as opposed to a secondary hospital or a tertiary care or trauma center hospital. The Hospital does not provide heart-bypass surgery, cardiac catherization, neuro-surgery services or even obstetrical services (other than the emergency delivery of babies.) The Hospital provided approximately three million dollars in uncompensated care to indigent residents of Okeechobee County in the year preceding the incident involved in this case.

   
   

2. Under existing Florida law, a hospital is not required to provide either orthopedic surgery services or peripheral vascular services and there is no requirement for a hospital to have on its medical staff any orthopedic surgeons or peripheral vascular surgeons.

   
   

3. The Hospital does not have the angiography equipment necessary for peripheral vascular surgery. As a result, the Hospital does not provide peripheral vascular surgery and there are no vascular surgeons on staff. Such services were not offered at the Hospital for at least several months prior to the incident in question.

   
   

4. The Hospital has a single orthopedic surgeon on staff, Dr. Zafar Kureshi. Dr. Kureshi is board certified in orthopedic surgery. He has been engaged in the private practice of medicine in Okeechobee, Florida since October of 1986. While many of Dr. Kureshi's patients are treated at the Hospital, Dr. Kureshi is not employed by or under contract with the Hospital. This arrangement is not unusual since surgeons, including orthopedic and vascular surgeons, do not typically become employees of hospitals or enter into contracts with hospitals.

   
   

5. The Hospital has tried to recruit additional orthopedic surgeons and other specialists for its medical staff, but has been unsuccessful. There is a shortage of orthopedic surgeons in Florida, especially in rural areas, and recruiting orthopedic surgeons to such areas is extremely difficult. It is unrealistic to expect that the Hospital would be able to recruit or retain any orthopedic surgeons if it required them to be "on call" at all times.

6. For a short time after he first obtained staff privileges, Dr. Kureshi provided "on call" services for the Hospital's emergency room several nights per month. On those occasions, he treated patients irrespective of their financial status. At the time of the incident in question, however, Dr. Kureshi had ceased providing "on call" services. His decision was consistent with the Hospital medical staff by-laws.

   
   

7. The by-laws of the Hospital medical staff state that, if there is only one physician on staff in a specialty, then that specialty does not have to make emergency department call rosters available to the emergency room. Since he was the only specialist on staff in his area of practice, Dr. Kureshi was not required to provide "on call" coverage. Subsequent to the incident involved in this case, Dr. Kureshi, at the request of the Hospital, has voluntarily agreed to be "on-call" several nights per month.

   
   

8. Even when Dr. Kureshi is not formally "on call," the emergency room staff often contacts him when a patient presents at the emergency room in need of orthopedic care. On some such occasions, Dr. Kureshi will treat the patient if he was capable of doing so.

   
   

9. When an orthopedic patient or a peripheral vascular patient presents at the Hospital and Dr. Kureshi can not or will not treat the patient, the Hospital

   (1) provides such care as can be rendered by the emergency room physician or others on HCA Raulerson's medical staff, (2) stabilizes the patient for transfer, (3) calls hospitals and their on-call physicians to arrange transfer, and (4) arranges suitable transportation and transfers the patient.

   
   

10. In the months preceding the incident in question, the Hospital arranged the transfer to other hospitals of approximately eleven patients who presented at the Hospital's emergency room in need of orthopedic care. Four of those patients were "paying" patients covered by third party insurers, four were covered by Medicare or Medicaid and the remaining three were self-pay patients. There is no indication that financial status and/or the ability to pay in any way influenced the Hospital's actions with respect to these patients.

    
    

11. HRS contends that Sections 395.0142, 395.0143 and 401.45, Florida Statutes, require a hospital that provides any given specialty service (e.g., orthopedic surgery services) to arrange 24-hour a day, seven day a week coverage for that service, either by providing coverage through physicians on staff or entering into advance transfer agreements with other hospitals to cover any such patients who may present in need of such services.

    
    

12. The Hospital has attempted, but has been unsuccessful in its attempts, to obtain advance transfer agreements from other hospitals regarding the transfer of patients presenting themselves at the Hospital's emergency room in need of orthopedic surgery services or in need of peripheral vascular surgery services. The Hospital has limited bargaining power in attempting to induce other hospitals to enter into an advance transfer agreement. Because the Hospital is a small rural hospital, virtually all the services it offers are already available at the neighboring hospitals which are potential transfer partners. The only advance transfer agreements that the Hospital has been offered would require the Hospital to assume full responsibility for payment for services rendered to transferred patients by the transferee hospital. Those proposals have been rejected because the financial burden of such an arrangement would probably cause the Hospital to close.

13. As of August 24, 1989, the date of the incident which is the subject of the Administrative Complaint in this case, HRS had not notified the Hospital of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes.

    
    

14. As of August 24, 1989, HRS had not adopted any rule which stated a specific requirement that hospitals which provide orthopedic surgery must staff or provide on-call orthopedic surgery services on a continuous basis, i.e. twenty-four (24) hours per day, 365 days per year or have in place an agreement with another hospital(s) to provide such coverage. HRS contends that this requirement is imposed by the clear language of the statutes.

    
    

15. On the evening of August 24, 1989 at approximately 7:45 p.m., K.H., a

    28 year old male, presented himself at the Hospital's emergency room for treatment of a shotgun wound to his lower left leg.

    
    

16. Dr. Charles Vasser, the emergency room physician on duty when K.H. arrived, stabilized the Patient and provided all the treatment that could be provided by an emergency room physician not trained in orthopedic surgery or vascular surgery.

    
    

17. The radiology report prepared at the Hospital diagnosed the Patient's condition as follows: "focal soft tissue injury, with multiple metallic fragments of variable size, super imposed over soft tissues of distal right leg are noted. Comminuted compound fracture of distal tibial shaft, as well as linear fracture through distal fibula at same site, are observed. Findings are due to gun shot injury with residual bullet fragments within soft tissues. Correlation with patient's clinical findings is recommended."

    
    

18. Because of the nature of the injury and the extent of the damage to the soft tissue of the Patient's lower leg, Dr. Vasser and the attending staff were concerned about the possibility of vascular damage. They frequently checked and charted the Patient's distal pulses. While the distal pulses appeared normal, the presence of distal pulses does not rule out vascular injury. A vascular injury is possible with a comminuted fracture even when the distal pedal pulses appear normal. A vascular problem is especially likely when the wound was inflicted by a shotgun blast and numerous metallic fragments are involved.

    
    

19. After providing initial emergency room services to the Patient, Dr. Vasser felt that the assistance of appropriate specialists, i.e., an orthopedic surgeon and at least a consult with a vascular surgeon, would be required for further treatment.

    
    

20. Dr. Vasser called the only orthopedic surgeon on the Hospital's medical staff, Dr. Zafar Kureshi, at 8:50 p.m. Dr. Kureshi was not on call that evening. Based on Dr. Vasser's description of K.H.'s condition, Dr. Kureshi stated that he was not capable of treating K.H. without the backup availability of a vascular surgeon and advised that K.H. should be transferred. This recommendation was made not only because Dr. Kureshi was not on call, but also because Dr. Kureshi was not capable of treating the Patient at an acceptable level of medical care without the availability of a vascular surgeon. As indicated in Findings of Fact 3 above, there are no vascular surgeons on staff at the Hospital and the Hospital does not offer vascular surgery services.

21. In determining whether a patient needs the services of a physician in a particular specialty, the Hospital relies upon the medical judgment of the attending physician and any consulting physician. The Hospital did not and should not have ignored the medical determination made by the emergency room physician, in consultation with Dr. Kureshi, that the Patient, K.H., needed vascular backup in order to be properly treated.

    
    

22. With the assistance of emergency technician Wendy Johns, Dr. Vasser began placing calls to other hospitals and their on-call physicians at 9:15 p.m. in an effort to arrange a transfer of the Patient.

    
    

23. The first physician contacted through another hospital, Dr. Floyd, indicated that he would be unable to treat the Patient because of the extent of the soft-tissue injuries and the corresponding likelihood of vascular involvement.

    
    

24. A number of additional hospitals and physicians were contacted and they also refused to accept the transfer of the Patient. All told, nineteen different physicians and/or hospitals were contacted between 9:00 p.m. and 12:00

    a.m. A variety of reasons were cited by those who refused to accept the transfer. Many of the reasons given for refusing the transfer were arguably a pretext and/or contravened the language and intent of Sections 395.0142, 395.0143 and 395.0144, Florida Statutes.

    
    

25. Several of the doctors who were contacted confirmed that the treatment of the Patient would require the availability of a vascular surgeon as well as an orthopedist.

    
    

26. After numerous unsuccessful attempts to transfer the Patient, Dr. Vasser contacted a general surgeon on the Hospital's medical staff, Dr. Husain, at approximately 12:10 a.m. Dr. Vasser and Dr. Husain again contacted Dr. Kureshi. The three physicians concurred that they were unable to treat the Patient because of the need for a vascular backup and the Hospital's inability to provide the necessary vascular backup.

    
    

27. After he talked to Dr. Kureshi the second time, Dr. Vasser resumed calling other hospitals and their on-call physicians. The next call was to a vascular surgeon, Dr. Viamentes. Dr. Viamentes was reached through his beeper, but was unable to accept the transfer because he was out of town.

    
    

28. At approximately 12:30 a.m., a social worker for the Hospital, Terry Cooper, contacted St. Mary's Hospital in West Palm Beach. After some discussion and deliberation, St. Mary's agreed to accept the transfer of K.H. The Patient was transferred in stable condition via ambulance to St. Mary's Hospital where he arrived at approximately 3:00 a.m. Surgery was initiated at approximately 4:30 a.m.

29. After the Patient was admitted to St. Mary's Hospital, the administration of that hospital filed a complaint with HRS pursuant to Section 395.0142, Florida Statutes. That complaint recites the facts surrounding the transfer of the Patient and the refusal of several other hospitals to accept the transfer. It is not clear whether St. Mary's was questioning the medical necessity of the transfer or simply the refusal of the other hospitals to accept the transfer. HRS initiated an investigation of the transfer of the Patient and submitted the Patient's medical records from both HCA Raulerson and St. Mary's to its expert, Dr. Slevenski, for review. Dr. Slevenski is an emergency room physician who has no specialized training in orthopedic surgery or vascular surgery.

    
    

30. Dr. Slevenski testified that he saw no evidence in the Hospital's medical records that a vascular evaluation or consultation was necessary to treat this Patient and that the Hospital inappropriately transferred the Patient to another hospital. Dr. Slevenski's opinions are rejected. Dr. Slevenski erroneously assumed that the Hospital had not attempted to contact an orthopedic surgeon regarding the Patient. In fact, the Hospital contacted Dr. Kureshi, the only orthopedic surgeon on its staff, who indicated he was not qualified to treat the Patient's injury.

    
    

31. The evidence established that both the emergency room physician and the orthopedic surgeon who was contacted at home felt that a vascular consult was necessary. These opinions were reasonable under the circumstances. The testimony of Dr. Henderson, the Respondent's expert, is accepted and confirms that the opinions of the emergency room physician and the orthopedic surgeon were reasonable under the circumstances and given the nature of the Patient's injury.

    
    

32. There is no evidence that the Patient's care was deficient in any respect at either St. Mary's or the Hospital. The Patient progressed normally and a good result was achieved.

    
    

33. In sum, the evidence established that the Hospital secured appropriate treatment for K.H. by providing an on-site emergency room physician and supporting staff who (1) provided immediate emergency care and stabilized the patient for transfer, (2) confirmed with the orthopedic surgeon on the Hospital's medical staff that a transfer was medically necessary, (3) called hospitals and their on-call physicians to arrange the transfer, and (4) arranged suitable transportation and transfer of the patient. The Hospital provided all the care that it could within its service capability. In view of his injury, the Patient's best interests were served by transferring him rather than treating him at the Hospital.

    
    

34. The evidence did not establish whether K.H. was a paying or nonpaying patient. The evidence did establish that the decision to transfer K.H. was not based on his financial status.

    
    

    CONCLUSIONS OF LAW

    
    

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

36. HRS has charged the Hospital with violating Sections 395.0142, 395.0143, and 401.45, Florida Statutes. HRS relies for support of its position in this proceeding solely on these statutes. HRS does not claim the Hospital violated any HRS rule or non-rule policy.

    
    

37. Section 395.0142, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. LEGISLATIVE INTENT. -- The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals to every person in

       need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the department vigorously enforce the ability of persons to receive emergency services and care and that the department act in a thorough and timely manner against hospitals which deny persons emergency services and care.

    2. DEFINITIONS.-- As used in this section:

       * * *

       (b) "Department" means the Department of Health and Rehabilitative Services.

       * * *

       1. "Emergency services and care" means medical screening, examination, and evaluation by a physician, or to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition

          or active labor exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

       2. "Stabilized" means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.

    3. EMERGENCY SERVICES: DISCRIMINATION; LIABILITY OF FACILITY OR HEATH CARE PERSONNEL.

       1. Every hospital which has an emergency department shall provide emergency services and care for any emergency medical condition or for active labor when:

          1. Any person requests emergency services and care; or

          2. Emergency services and care are requested on behalf of a person by:

             1. An emergency medical services provider who is rendering care to or transporting the person; or

             2. Another hospital , when such hospital is seeking a medically necessary transfer for a patient who has been stabilized, when such transfer meets the requirements of s.395.0144 and applicable federal law.

             * * *

             (c) Neither the hospital nor its employees, nor any physician ... shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination, exercising reasonable care, that ... the hospital does not have the appropriate facilities or qualified personnel available to render those services.

             * * *

             1. RECORDS OF TRANSFERS; REPORT OF VIOLATIONS. --

                * * *

                (b) Any hospital employee, physician, or other licensed emergency room health care personnel, or certified prehospital emergency personnel who knows of an apparent violation of this section or the rules adopted hereunder shall report the apparent violation to the department on a form prescribed by the department within one week following its occurrence.

                * * *

             2. PENALTIES. --

             (a) The department may deny, revoke, or suspend the license or impose an administrative fine, not to exceed ten thousand dollars per violation, for the violation of any provision of this section or rules adopted hereunder. (emphasis supplied)

38. Section 395.0143, Florida Statutes, provides as follows: Emergency treatment; when required. ---

    No general hospital licensed under this part, and no specialty hospital with an emergency room, shall deny any person treatment for any emergency medical condition which will deteriorate from a failure to provide such treatment. A hospital or its employees, or any physician or dentist, responding to an apparent need for emergency treatment pursuant to this section shall not be held liable in any action arising out of a refusal to render emergency treatment or care if reasonable care is exercised in determining the condition of the person and in determining the appropriateness of the facilities and the qualifications and availability of personnel to render such treatment.

39. Section 401.45, Florida Statutes, provides as follows:

    
    

    1. No person shall be denied treatment for any emergency medical condition which will deteriorate from a failure to provide such treatment at any general hospital that has an emergency room.

    2. A hospital or its employees or any physician or dentist responding to an apparent need for emergency treatment pursuant to this section shall not be held liable in any action arising out of a refusal to render emergency treatment or care if reasonable care is exercised in determining the condition of the person and in determining the appropriateness of the facilities and the qualifications and

       availability of personnel to render such treatment.

       
       

40. HRS contends that the foregoing statutes require a hospital that provides a given specialty service, such as orthopedic surgery, to arrange 24- hour a day, seven day a week coverage for that service either by providing the coverage itself or by entering into advance transfer agreements obligating other hospitals to accept the transfer of any such patients that may present. HRS argues that such coverage is contemplated by the statutory requirement that the hospital must exercise reasonable care in determining whether it has the appropriate facilities or qualified personnel available to render the specialty services that may be required by an emergency. More specifically, HRS contends that a facility "providing a certain treatment, care or surgery to its patients has the 'service capability' to provide those services when requested to relieve or eliminate an emergency medical condition". HRS has not adopted any rules setting forth this interpretation. HRS argues that it is merely applying the clear language of the statutes.

    
    

41. The statutory construction urged by HRS is rejected. Section 395.0142(2)(d), Florida Statutes, requires the provision of "emergency services and care" only to the extent that such services and care are "within the service capability of the facility." "Service capability" is not defined in the statute. This statutory provision does not, as suggested by HRS, necessarily require 24 hour per day coverage of all specialties offered by the hospital. Indeed, such an interpretation of the statutory scheme can not reasonably be discerned from the existing statutory language. HRS' efforts to impose the interpretation suggested in this case is a legally impermissible attempt to impose requirements that are not expressly or impliedly contained in the law and must be rejected. See, Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 15 FLW D3041 (Fla. 1st DCA, December 21, 1990).

42. Arguably, HRS could implement the policy it seeks to apply in this case through validly promulgated rules. However, no such rules have been adopted. 1/ Furthermore, HRS has not offered any evidence to support the reasonableness or factual accuracy of its non-rule policy. As stated in the St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d 1351 (Fla. 1st DCA 1989)

    
    

    When an agency seeks to validate agency action based upon a policy that is not recorded in rules or discoverable precedents, that policy must be established by expert testimony, documentary opinions, or other evidence appropriate to the nature of the issues involved and the agency must expose and elucidate its reasons for its discretionary action. [citations omitted] The agency may apply incipient or developing policy in a section 120.57 administrative hearing, provided the agency explicates, supports and defends such policy with competent, substantial evidence on the record in such proceedings [citation omitted] . . . We recognize that an agency interpretation of a statute which simply reiterates the Legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purports to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rule making. However, in this case, HRS' policy does not simply reiterate a legislative mandate and is not readily apparent from a literal reading

    of the statutes involved and thus, HRS was required to show the reasonableness and factual accuracy of its policy. . . .

    (emphasis supplied)

    
    

    In this case, HRS' interpretation of the statute is not readily apparent from the language of the statute and HRS has not offered sufficient record predicate or otherwise provided a reasonable explanation for its policy. 2/ Therefore, the Administrative Complaint must be dismissed.

    
    

43. The evidence in this case indicates that HRS has not seriously analyzed the potential impacts of the statutory interpretation that it has urged. If HRS's current view were to prevail, it is likely that the Hospital would have to discontinue providing orthopedic surgery services because it would have no feasible way of complying with HRS's view of the law and could not reasonably subject itself to a $10,000 fine each time a patient presented himself at the emergency room in need of orthopedic surgery services. The discontinuation of orthopedic surgery services at the Hospital would not be in the best interests of the public or potential patients in Okeechobee County.

44. Regardless of the advisability of the policy HRS has urged, applying the existing statutory language to the facts in this case confirms that the Administrative Complaint should be dismissed. Each of the statutes that the Hospital is accused of violating relieves the Hospital from liability if it exercises reasonable care in determining the appropriateness of its facilities and the qualifications and availability of personnel to render the necessary services. 3/ There has been no showing in this proceeding that the Hospital failed to exercise reasonable care in reaching its determination that the Patient's treatment required vascular backup and that the Hospital did not have the appropriate facilities and staff to provide this treatment. Indeed, the evidence established that the determination to transfer the Patient was made by the physicians and the Hospital had no reasonable basis to ignore or overturn that decision.

    
    

45. The Administrative Complaint in this proceeding is based on the contention that the Hospital did not provide the Patient with the orthopedic services that he required. However, the evidence established that the Patients's treatment required the availability of a vascular consult. Since vascular services were not offered by the Hospital, the Patient had to be transferred.

    
    

46. If a patient requires care beyond the hospital's capability, the provisions of Section 395.0144, Florida Statutes, controls. That statute provides as follows:

    
    

    Effective January 1, 1987, any hospital, as defined in s.395.002(4), which operates a full-time emergency room service shall, upon determination by a licensed hospital physician that a person seeking emergency services shall be admitted, admit such person and shall not refuse to admit such person on the basis of economic criteria or indigency. If, in the medical judgment of the licensed hospital physician responsible for emergency room services, the hospital is unable to render appropriate treatment, thereby necessitating transfer of the patient, the hospital where the patient has presented himself shall:

    1. Within its capabilities, render such emergency services as the circumstances require, which services shall be provided within the scope of generally accepted practices.

    2. Contact an appropriate receiving hospital and notify such hospital that the patient is in transit.

    3. Arrange suitable transportation for the patient, if necessary.

    4. Send to the receiving hospital any available information on the patient's history and condition.

       However, no such transfer shall be authorized until the physician considers the patient sufficiently stabilized for transport.

47. The evidence established that the Hospital complied with the provisions of Section 395.0144, Florida Statutes, in its handling of the Patient, K.H.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the

Administrative Complaint filed against HCA Raulerson Hospital.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of January, 1991.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1991.

ENDNOTES

1/ No rules have been adopted even though there is a legislative directive to adopt rules. See, Section 395.005, Florida Statutes.

2/ There is a significant question as to whether HRS could develop its interpretation of Section 395.0142(5)(a) on an incipient basis. Arguably, due process prohibits disciplinary action from being taken against the Hospital's license without adequate notice to the licensee of the standards of conduct to which it must adhere. See, Breesmen v. DPR, 15 FLW 2249 (Fla. 1st DCA September 5, 1990) (dealing with a professional license issued to an individual). Since no evidence was offered in support of the policy, that question need not be resolved in this proceeding.

3/ Section 395.0142(3)(c), Florida Statutes, provides that the hospital shall not be liable "... in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination, exercising reasonable care, that ... the hospital does not have the appropriate facilities or qualified personnel available to render those services." The last sentences of Section 395.0143, amd 401.45, Florida Statutes, are worded simiarly to the language of Section 395.0142(3)(c), Florida Statutes.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Rejected as irrelevant.

   
   

2. Adopted in substance in Findings of Fact 1.

   
   

3. Subordinate to Findings of Fact 4, 6, 7 and 8.

   
   

4. Adopted in substance in Findings of Fact 15.

   
   

5. Subordinate to Findings of Fact 16-20 and 28.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1.-4. Adopted in substance in the preliminary statement.

1. Subordinate to Findings of Fact 5, 7 and 8.

   
   

2. Adopted in substance in Findings of Fact 5, 6 and 20.

   
   

3. Adopted in substance in Findings of Fact 7.

   
   

4. Rejected as unsupported by competent substantial evidence. However, it is noted in Findings of Fact 6, it is unrealistic to expect the Hospital to be able to recruit and retain any physician if they are required to take call 24-hours per day, seven days per week.

   
   

5. Adopted in pertinent part in Findings of Fact 5.

   
   

6. Adopted in substance in Findings of Fact 5.

   
   

7. Adopted in substance in Findings of Fact 5.

   
   

8. Rejected as unnecessary.

   
   

9. Adopted in substance in Findings of Fact 5, 9 and 12.

35.-38. Subordinate to Findings of Fact 12.

1. Subordinate to Findings of Fact 1 and 12.

   
   

2. Rejected as vague and overbroad. The subject matter is addressed in Findings of Fact 9-12.

   
   

3. Adopted in substance in Findings of Fact 21.

   
   

4. Rejected as unnecessary.

5. Addresed in pertinent part in Findings of Fact 2.

   
   

6. Rejected as unnecessary and not supported by competent substantial evidence. Dr. Slevenski's testimony on this issue is somewhat ambiguous.

   
   

7. Rejected as unnecessary.

   
   

8. Adopted in substance in Findings of Fact 21.

   
   

9. Adopted in substance in Findings of Fact 4.

   
   

10. Adopted in substance in Findings of Fact 11,

    13 and 14.

    
    

11. Rejected as unnecessary.

    
    

12. Rejected as unnecessary.

    
    

13. Rejected as unsupported by competent substantial evidence. The November 15, 1989 letter is ambiguous at best. Arguably, it could be read to approve advanced transfer agreements with other hospitals.

52.-54. Rejected as irrelevant. Although it appears that HRS failed to fully articulate its policy and/or that its policy changed during the period leading up to the hearing, the evolving positions are only relevant in this case with respect to Respondent's Motion for Sanctions a separate Order has been entered on that Motion.

1. Addressed in Paragraph 9 of the conclusions of law.

   
   

2. Addressed in Paragraph 9 of the conclusions of law.

   
   

3. Rejected as irrelevant. See the ruling on Proposed Findings of Fact 52-54 above.

   
   

4. Adopted in pertinent part in Findings of Fact 13 and 14.

   
   

5. Adopted in pertinent part in Findings of Fact 13 and 14. In addition, see the rulings with respect to Proposed Findings of Fact 52-54 above.

COPIES FURNISHED:

John Rodriguez Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert L. Hinkle, Esquire Aurell, Radey, Hinkle & Thomas Suite 1000, Monroe Street

Post Office Drawer 11307 Tallahassee, Florida 32302

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICE

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. DOAH Case No. 90-1774

HCA RAULERSON HOSPITAL,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY THE DEPARTMENT

Counsel excepts to the Hearing Officer's conclusion that the department has unreasonably interpreted the statutes governing emergency room care by requiring continuous emergency room coverage for all specialty services offered by a hospital. The challenged conclusion is -unnecessary to the disposition and is rejected.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on exceptions. The Hearing Officer found that Raulerson does not provide vascular surgery. On the basis of the Hearing Officer's finding that vascular backup was required to treat the patient, Raulerson acted properly in transferring the patient. Thus, Raulerson is not guilty of the violation alleged in the administrative complaint.

Based upon the foregoing, it is

ADJUDGED, that the complaint be DISMISSED with prejudice.

DONE and ORDERED this 11th day of February 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and

Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to:

Teresa Nugent

315 South Calhoun Street Suite 808

Tallahassee, FL 32301

John Rodriguez, Esquire Interprogram & Development Technical Assistance Office 1317 Winewood Boulevard Building One, Room 100 Tallahasse, FL 32399-0700

Robert L. Hinkle, Esquire AURELL, RADEY, HINKLE, & THOMAS

Suite 1000, 101 North Monroe Street Post Office Drawer 11307 Tallahassee, FL 32302

J. Stephen Menton Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named

people by U.S. Mail this 19

day of February

1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-001774

Orders for Case No: 90-001774