STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4548F

)

1. E. R., )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   This case was heard pursuant to notice on October 26, 1990, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Rodney M. Johnson, Esquire

   Department of Health and Rehabilitative Services

   Post Office Box 8420 Pensacola, Florida 32505-8420

   
   

   For Respondent: Kim Wright, Esquire

   Legal Services of North Florida, Inc.

   124 North Eglin Parkway

   Fort Walton Beach, Florida 32548 STATEMENT OF THE ISSUES

   Whether the Respondent, M.E.R., should be awarded expenses of her litigation in Case No. 89-1874C.

   
   

   Can a partial award be made upon a finding that a part of the complaint was frivolous?

   
   

   PRELIMINARY STATEMENT

   
   

   Although the parties are denominated in Case No. 90- 4548F as they were in Case No. 89-1874C, M.E.R. has the burden of proof. The entire case file in Case No. 89-1874C is made a part of this record. The parties both submitted proposed findings which were read and considered. The Appendix attached hereto and by reference incorporated herein states which findings were adopted and which were rejected and why. Also attached hereto is a copy of the Recommended Order entered in Case No. 89-1874C.

   FINDINGS OF FACT

   
   

   1. On or about December 14, 1988, the Department of Health and Rehabilitative Services ("DHRS") began an investigation of M.E.R.'s treatment of her aged mother, E.C.

      
      

   2. An investigation of the treatment of E.C. by M.E.R. was conducted by an investigator of DHRS during December, 1988 and January, 1989. An investigative summary was prepared by the DHRS investigator, who recommended that M.E.R.'s name be placed in the abuse registry.

      
      

   3. The investigative report was reviewed by the appropriate authorities, and M.E.R.'s name was placed in the adult abuse registry. M.E.R. was notified of her right to request expunction of her name. She requested expunction. Her request was denied, and she was advised of her right to a hearing on the denial.

      M.E.R. made a timely request for hearing. The matter was referred to the Division of Administrative Hearings, where the parties were directed to file a pleading stating the factual allegations upon which they relied.

      
      

   4. In response to that order, the DHRS filed a pleading alleging that:

      
      

      1. M.E.R. did not fill a prescription for Dilantin for E.C. for five days; and

      2. M.E.R. did not feed E.C. sufficient food.

         
         

   5. Review of the investigative summary, which was prepared at the conclusion of the investigation, reveals that the DHRS investigator had been told by M.E.R. that she (M.E.R.) did not have money to purchase the prescription for E.C. but had requested assistance from Catholic Social Services ("CSS"). The investigative summary reflects that the pharmacist advised the investigator that he was contacted by CSS, that CSS did take care of the bill, and that M.E.R. obtained the prescription as soon as CSS acted on her request. See the second page of investigative summary, Exhibit No. 1 to deposition.

      
      

   6. The investigator, the investigator's supervisors, and the Department's attorney knew or should have known that M.E.R. had a valid reason for not immediately filling the Dilantin prescription when they put her name in the registry and denied expunction, and when the pleading was filed asserting this was a grounds for placing her name in the registry. The DHRS failed to delete this charge although it had evidence from the first that M.E.R. had a valid reason for not having filled the prescription.

      
      

   7. The DHRS asserted that the other reason that M.E.R. was charged was the failure to feed E.C. This charge related primarily to E.C.'s weight loss.

      
      

   8. There was evidence to substantiate an allegation that E.C. had lost weight. The investigative summary reveals that the investigator knew that E.C. was getting meals on wheels; however, the records and interviews which she conducted revealed that E.C. suffered a weight loss. Only upon cross- examination at final hearing were the facts fully brought out. This charge was the only one of the two raised in the pleadings based upon substantive fact.

      
      

   9. Reasonable expenses for legal fees in this case were $15,150.00, based upon the records of the attorney's time records and the testimony of David Dunlop, an attorney practicing in northwest Florida. The record shows 90 hours of time by attorneys and 103 hours by paralegals. The rate for an attorney per hour for this type of litigation is $125.00, and $50.00 for a paralegal.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties pursuant to Section 120.57(1)(a), Florida Statutes, and over the subject matter pursuant to Section 120.57(1)(b), Florida Statutes. Section 120.57(1)(b) provides for expenses required to reply to a frivolous pleading.

       
       

   11. The investigative summary reveals that the investigator had enough information to eliminate the charges that M.E.R. had failed to purchase Dilantin promptly. M.E.R. told the investigator that she had not had the money to fill E.C.'s Dilantin prescription and had asked CSS to help. The pharmacist told the investigator that he had filled the prescription and that CSS had provided payment for the Dilantin. This confirmed M.E.R.'s statement. Financial inability to provide care is a defense to the allegation, particularly when charitable assistance is requested to obtain the care required.

       
       

   12. The investigative summary was available for review by the appropriate authorities in the DHRS before expungement was denied. The investigative summary was available for the DHRS's counsel to review before the pleading was filed. Although the allegation was clearly not sustainable on the facts, DHRS alleged M.E.R. did not fill E.C.'s prescription for Dilantin for five days as grounds for placing her name in the registry. Continuing to allege spurious charges constitutes a frivolous pleading which increases the costs of litigation after information is developed which refutes the allegation. The DHRS should be liable for these increases in the cost of litigation.

       
       

   13. In summary, with regard to the charges, the investigator had developed facts which objectively showed that the charge against M.E.R. could not be sustained. Only the charge related to feeding and weight loss was supported by substantive fact. The other charge was frivolous and added to the expenses of

       M.E.R. in defending this case. She is entitled to relief pursuant to Section 120.57(1)(b)5., Florida Statutes. See, Jess Parrish Hospital v. PERC, 364 So.2d 777 (Fla. 1st DCA 1981); and Oliveri v. Thompson, et al., 308 F.2d 1265.

       
       

   14. Because of the inability to apportion the time and expense spent in preparation specifically related to the individual charges, the costs are apportioned in accordance with the total number of charges brought. The total charges were $15,150.00; 50 percent of $15,150.00 is $7,575.00.

Based upon DHRS pleading a charge which could not be sustained upon the facts known to it when the pleading was filed and increasing the cost of litigation to M.E.R., the award of attoneys fees and expenses to M.E.R. is granted in the amount of $7,575.00.

DONE and ORDERED this 14th of December, 1990, in Tallahassee, Florida.

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 14th of December, 1990.

APPENDIX TO FINAL ORDER IN CASE NO. 90-4548F

Petitioner's Proposed Findings of Fact:

1-3. Rejected as irrelevant.

1. Rejected as contrary to facts.

2. Adopted.

3. Partially adopted, partially contrary to fact, and partially irrelevant.

7-9. Adopted.

10. Rejected as irrelevant.

Respondent's Proposed Findings of Fact: 1-2. Rejected as irrelevant.

3. Adopted.

3A.-3E. Rejected as irrelevant. 3F. Adopted.

3G. True, but not related to pleadings. 3H. Rejected as irrelevant.

4-6. Adopted.

COPIES FURNISHED:

Rodney M. Johnson, Esq. Department of Health and

Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505-8420

Kim Wright, Esq.

Legal Services of North Florida, Inc.

124 North Eglin Parkway Fort Walton Beach, FL 32548

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris, Esq. General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

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

DEPARTMENT OF HEALTH AND

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE of FLORIDA

REHABILITATIVE SERVICES, NOT FINAL UNTIL TIME EXPIRES

TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 90-3821.

DOAH CASE NO. 90-4548F

M. E. R.,

Appellee.

/ Opinion filed July 25, 1991.

An appeal from an order of the Division of Administrative Hearings. W. Douglas White, Assistant District Legal County, Pensacola, for appellant.

Kim White, and Jack L. McLean, Jr., Legal Services of North Florida, Ft. Walton Beach, and Cindy Huddleston, Florida Legal Services, Tallahassee, for appellee.

PER CURIAM.

AFFIRMED.

BOOTH, WIGGINTON, and BARFIELD, JJ., CONCUR.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Stephen F. Dean, Hearing Officer, Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

vs.

M. E. R.

Case No. 90-3821

Your Case No. 90-4548F

The attached opinion was rendered on July 25, 1991.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol on this

15th day of October, 1991

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 90-004548F

Orders for Case No: 90-004548F