STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY HEALTH AND REHAB FORT ) PIERCE, AND FORT PIERCE HEALTH ) CARE, )
)
Petitioners, )
)
vs. )
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
Case No. 02-1588
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on July 17, 2002, in Fort Pierce, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Davis Thomas, Qualified Representative
Broad & Cassel
Post Office Box 11300 Tallahassee, Florida 32302
For Respondent: Nelson Rodney, Esquire
Agency for Health Care Administration
355 Northwest 53rd Street Miami, Florida 33166
STATEMENT OF THE ISSUE
The issue in this case is whether the nursing home facility previously owned and operated by Beverly Health and Rehab Fort
Pierce, and later owned and operated by Fort Pierce Health Care, ("Nursing Home") was entitled to a standard license during a period in which the Agency for Health Care Administration ("AHCA") assigned it a conditional license.
PRELIMINARY STATEMENT
At the final hearing conducted on July 17, 2002, the AHCA presented the testimony of four witnesses1 and offered one exhibit, which was received in evidence. The Nursing Home presented the testimony of four witnesses2 and offered nine exhibits, all of which were received in evidence.
At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript of the final hearing within which to file their respective proposed recommended orders. The Nursing Home was also allowed until that same deadline within which to file a motion seeking costs and attorney's fees, and the AHCA was allowed until ten days thereafter within which to file its response to any motion for costs and attorney's fees. The transcript was filed with the Division of Administrative Hearings on July 31, 2002. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Those proposals have been carefully considered during the preparation of this Recommended Order.
On August 12, 2002, the Nursing Home also filed a Motion for Attorney's Fees and Costs. The asserted ground for the motion is that the AHCA's prosecution of this matter "is done for an improper purpose and entitles Fort Pierce to an award of its attorney's fees and costs in this matter." The statutory provision cited as authorizing the relief sought in the motion is Section 120.569(2)(e), Florida Statutes.
On August 19, 2002, the AHCA filed a document titled Respondent's Objection to Motion for Attorney's Fees. In that document the AHCA argues that the Motion for Attorney's Fees and Costs is insufficient to show entitlement to the relief sought by the Nursing Home and that the motion should be denied.
On October 2, 2002, the Nursing Home filed a response to the AHCA's objections to the motion. The response is, in essence, a summary of the position of the Nursing Home on each of the incidents that form the basis for the Administrative Complaint.
On October 7, 2002, the AHCA filed Respondent's Motion to Strike Petitioner's Response. In its motion to strike, the AHCA presents numerous procedural and substantive arguments in support of the proposition that the response filed by the Nursing Home should be stricken and that the underlying relief sought by the Nursing Home should be denied.
FINDINGS OF FACT
Stipulated and admitted facts
Beverly Health and Rehab Fort Pierce operated a skilled nursing facility located at 611 S. 13th Street, Fort Pierce Florida, until November 30, 2001. Fort Pierce Health Care is an entity unrelated to Beverly Health and Rehab Fort Pierce that purchased the facility on November 30, 2001, and has operated it since that date. At all times material to this case, both Beverly Health and Rehab Fort Pierce and Fort Pierce Health Care have been licensed by the State of Florida to operate the subject nursing home pursuant to Chapter 400, Part II, Florida Statutes.
The AHCA completed a survey of the nursing home on November 8, 2001. At the conclusion of the survey, the ACHA alleged, relevant to the matters at issue in this case, that there were three separate Class II violations of 42 Code of Federal Regulations Sections 483.15(e)(i), 483.20(k)(3)(i), and 483.25(c). The AHCA filed an Administrative Complaint in this matter which sets forth the factual allegations upon which the ACHA reached the conclusion that there were three Class II deficiencies.
Based upon the identification of the Class II deficiencies, the AHCA issued a Notice of Intent to Change Beverly Health and Rehab Fort Pierce's licensure rating from
Standard to Conditional, effective November 8, 2001. The AHCA issued Fort Pierce Health Care a Conditional license rating on November 30, 2001, when operation of the facility was transferred.
Fort Pierce Health Care timely filed a petition challenging AHCA's intent to assign it a Conditional rating.
AHCA changed Fort Pierce Health Care's Conditional licensure rating to Standard, effective December 13, 2001. Facts about call bells
During the survey of the subject nursing home facility in November of 2001, a group interview of residents was held on November 6, 2001. Eleven residents participated in the group interview. Nine of the eleven residents participating in the group interview reported to the surveyors that sometimes it can take more than one hour for call bells to be answered. Five of the residents participating in the group interview said that on some occasions they had been incontinent because they could not wait an hour to be helped into the bathroom. One of the residents participating in the group interview has a roommate who has a colostomy. The bag sometimes breaks and comes away from the stoma. On such occasions both roommates will ring their call bells. On several occasions it has taken more than an hour for help to come.
During that same group interview, nine of eleven residents participating in the interview stated that their call bells are often not in reach. This can be because the nursing home staff fails to put the call bells within reach, or because the call bells fall on the floor or fall behind the bed.
During a tour of the nursing home facility on November 5, 2001, it was observed that the call bells were
either on the floor, behind the bed, and/or out of reach of the residents in sixteen of the rooms inspected.
Facts about long toenails
During the survey of the subject facility during November of 2001, Resident 15 told one of the surveyors that upon admission to the subject facility the resident had requested the staff of the nursing home to arrange for a podiatrist to come cut the resident's toenails. The resident's toenails are all very long and needed to be cut. The resident's physical condition was such that he/she could not cut his/her toenails, and because the resident suffered from diabetes, it was necessary to have the toenails cut by a podiatrist. During the course of the survey the records of the facility did not document any effort to obtain the services of a podiatrist for Resident 15.
At the time of the survey in November of 2001, all of Resident 15's toenails were thick, were approximately two inches
long (measuring for where the nail changes color from pink to white), and were curving around the tips of the toes. The evidence was inconclusive as to whether the length and shape of the toenails interfered with Resident 15's ability to walk or to perform any other activities of daily life.
Facts about order for oxygen
On October 30, 2001, a physician wrote an order for oxygen to be delivered through a tracheal collar to Resident 23. On November 5, 2001, during the AHCA survey of the subject nursing home, one of the survey team members observed that for a period of approximately ten or fifteen minutes Resident 23 was not wearing his tracheal collar and, therefore, was not receiving the oxygen ordered by his physician. When the matter was brought to the attention of nursing home staff, the tracheal collar was placed on Resident 23 and he once again received the oxygen ordered by his physician. There is no persuasive evidence in the record as to whether Resident 23 did or did not suffer any harm as a result of not having his oxygen equipment in place during the time period observed by the survey team member. Similarly, there is no persuasive evidence in the record as to why Resident 23 was not wearing his tracheal collar when he was first observed by a member of the survey team.
Facts about physician order for Foley catheter
Resident 18 suffered from, among other things, urinary and bowel incontinence. Because of those conditions he wore incontinence briefs. On October 17, 2001, his physician wrote an order for a Foley catheter to be inserted in Resident 18. The purpose of the Foley catheter was preventative--to reduce the risks of infection and to prevent or reduce the likelihood of the development of pressure sores. At the time the order for the Foley catheter was written, Resident 18 did not have any pressure sores.3
Upon receipt of the physician's order for a Foley catheter for Resident 18, a facility nurse attempted to insert the catheter into Resident 18. The nurse was unsuccessful in her efforts because Resident 18 appeared to have an obstruction that made it impossible for her to complete the task. In that situation, good nursing practice requires the nurse to cease efforts to insert the catheter and to contact the Resident's physician, which she did. The physician then directed the nurse to schedule an appointment with a urologist so that the urologist could insert the Foley catheter. Following some delays due to the unavailability of the urologist originally suggested by the resident's physician, an appointment was made to have a urologist insert the Foley catheter in Resident 18. The urologist was unsuccessful the first time he saw
Resident 18, but a few days later, on November 12, 2001, the urologist successful inserted the catheter.
The physician who originally ordered the insertion of the catheter was kept advised of the status of efforts to accomplish what he had ordered. The physician clarified that the insertion of the Foley catheter was not an emergency matter and that there was no urgency in having the catheter inserted. The physician was satisfied with the action taken by the nursing home staff in response to his order regarding the catheter and was of the opinion that the action taken by the nursing home staff in that regard constituted a timely and appropriate response to what he had ordered. Resident 18 did not suffer any harm as a result of the delays in inserting the Foley catheter. Facts about pressure sores
During the course of the survey of the nursing home facility in November of 2001, one of the survey team members observed that Resident 18 had what appeared to the survey team member to be pressure sores high on the back of each thigh, at about the area where the upper thighs meet the lower part of the buttocks. These sores were at approximately the location where the resident's upper thighs would rub against the edges of the incontinent briefs worn by the resident.
Wound care notes maintained by the nursing home facility stated that Resident 18 developed a Stage II pressure
sore on the right back thigh on October 24, 2001, and a Stage II pressure sore on the left back thigh on October 30, 2001. The wound care notes also indicated that Resident 18 did not have any similar wounds prior to October 24, 2001.
The wound care nurse who prepared the notes regarding the two Stage II pressure sores has since had second thoughts about the matter. The wound care nurse is now of the view that the wounds she saw on October 24 and 30 of 2001 and described at that time as pressure sores were in fact bullous pemphigoid sores. At certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The wound care nurse also clarified in her testimony that the two wounds she observed on the backs of Resident 18's thighs were not located over a bony prominence.
Review of the clinical record for Resident 18 reveals that the resident was admitted to the facility with the following diagnoses: Alzheimer's Disease, hypertension, and bullous pemphigoid.
Physician notes regarding Resident 18 prepared on October 17, 2001, note the presence of "decubitus ulcers to perineal groin and genital areas."
The physician who prepared the notes regarding the "decubitus ulcers" also has since had second thoughts about the matter. The physician is now of the view that the wounds he saw
on October 17, 2001, and described as "decubitus ulcers" were in fact bullous pemphigoid sores. The physician agrees with the wound care nurse that at certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The physician also clarified in his testimony that the two wounds he observed on October 17, 2001, were not located over a bony prominence.
The AHCA has prepared a manual to be used when its employees are conducting surveys of nursing home facilities. That manual includes the following definition:
"Pressure sore" means ischemic ulceration and/or necrosis of tissue overlying a bony prominence that has been subjected to pressure, friction or shear. The staging system presented below is one method of describing the extent of tissue damage in the pressure sore.
CONCLUSIONS OF LAW
Basic matters
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57, Florida Statutes.
At all times material to this case, Section 400.23(7) and (8), Florida Statutes, read as follows, in pertinent part:
(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as
a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home.
A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
In evaluating the overall quality of care and services and determining whether the facility will receive a conditional or standard license, the agency shall consider the needs and limitations of residents in the facility and the results of interviews and surveys of a representative sampling of residents, families of residents, ombudsman council members in the planning and service area in which the facility is located, guardians of residents, and staff of the nursing home facility.
The current licensure status of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional licensure status for a facility
shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval.
Each licensee shall post its license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility.
The agency shall adopt rules that:
Establish uniform procedures for the evaluation of facilities.
Provide criteria in the areas referenced in paragraph (c).
Address other areas necessary for carrying out the intent of this section.
The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall
indicate the classification on the face of the notice of deficiencies as follows:
A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency,
$12,500 for a patterned deficiency, and
$15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency.
A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of
$2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of
$1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
A class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. If the class IV deficiency is isolated, no plan of correction is required.
The AHCA has adopted by rule the federal regulations regarding nursing home standards that appear at Title 42 Code of Federal Regulations, Chapter 483.
The federal regulations at 42 Code of Federal Regulations Section 483.15, include the following:
Accommodation of needs. A resident has the right to--
Reside and receive services in the facility with reasonable accommodation of
individual needs and preferences, except when the health or safety of the individual or other residents would be endangered; and
Receive notice before the resident's room or roommate in the facility is changed.
The federal regulations at 42 Code of Federal Regulations Section 483.20(k)(3)(i) and (ii), include the following:
The services provided or arranged by the facility must--
Meet professional standards of quality; and
Be provided by qualified persons in accordance with each resident's written plan of care.
The federal regulations at 42 Code of Federal Regulations Section 483.25(c), include the following:
Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that--
A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and
A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
Conclusions as to Count I
In Count I the AHCA charges that the Nursing Home violated 42 Code of Federal Regulations Section 483.15(e)(1) by failing to have call bells properly placed within the reach of residents, by failing to respond to call bells within a
reasonable period of time, and by failing to arrange for the services of a podiatrist to cut the extremely long toenails of one resident. Turning first to the matter of the extremely long toenails, the delay in arranging to have the resident's toenails cut does not rise to the level of a Class II deficiency.
Rather, the facts regarding the long toenails comprise a Class III deficiency.4
The facts regarding the call bells are quite a different matter. Both the failure to locate call bells where the residents can reach them and the failure to promptly respond to call bell signals compromise the ability of the affected residents to maintain or reach their highest practicable physical, mental and psychosocial well-being. This is especially the case with regard to residents who have had to wait an hour or more following a call bell signal for assistance in going to the bathroom. Accordingly, both of these failures constitute Class II deficiencies.5
Conclusions as to Count II
In Count II the AHCA charges that the Nursing Home violated 42 Code of Federal Regulations Section 483.20(k)(3)(i) by failing to follow physicians' orders for two patients. One physician order was for oxygen to be delivered through a tracheal collar to Resident 23. The other physician order was for a Foley catheter to be inserted into Resident 18.
With regard to Resident 23 and the order for oxygen, the evidence presented at hearing leaves many details unaddressed. Specifically, the evidence fails to show such things as (a) why Resident 23 needed oxygen, (b) whether the need was constant or was on an "as needed" or "on request" basis, (c) whether there were circumstances under which it was appropriate or necessary to remove the tracheal collar, or (d) the extent, if any, to which removal of the tracheal collar compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well- being. On the basis of the limited evidence presented at the hearing, the incident involving oxygen for Resident 23 was, at most, a Class III deficiency.
With regard to the Foley catheter for Resident 18, the evidence shows that there was no violation of any kind. The physician who ordered the insertion of the Foley catheter, being fully informed of the efforts that were made to comply with his order, was of the opinion that the actions taken by the nursing home staff constituted timely and appropriate compliance with his order.
Conclusions as to Count III
In Count III, the AHCA asserts that the Nursing Home violated 42 Code of Federal Regulations Section 483.25(c) by failing to prevent the development of two Stage II pressure
sores in a resident identified as a high risk resident. The evidence in this case is insufficient to prove the basic facts upon which this charge is predicated. Some of the evidence conflicts with other evidence, some of the evidence is inconsistent with other evidence, some of the evidence has been recanted, and none of the evidence is persuasive. Such being the case, and the AHCA having the burden of proof, Count III of the Administrative Complaint should be dismissed for lack of persuasive competent substantial evidence.6
Conclusions as to costs and fees motion
Section 120.569(2)(e), Florida Statutes, reads as follows:
(e) All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the party's qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. (Emphasis added)
As is obvious from the portions of Section 120.569(2)(e), Florida Statutes, underscored above, violations encompassed by that statutory language are document specific. Unlike Section 120.595(1), Florida Statutes, which authorizes the imposition of costs and attorney's fees against a nonprevailing adverse party who is found to have participated in a proceeding for an improper purpose, Section 120.569(2)(e), requires identification of a specific document that was filed for an improper purpose. No such specific document has been identified by the Nursing Home in its motion seeking relief under Section 120.569(2)(e), Florida Statutes. Therefore, no relief can be obtained under Section 120.569(2)(e), Florida Statutes.
It is possible that at some later stage in this proceeding the Nursing Home will argue that it was at least implicit in its motion seeking relief under Section 120.569(2)(e), Florida Statutes, that the Nursing Homes was contending that the Administrative Complaint was a document filed for an improper purpose. See Good Samaritan Hospital v. HRS, 582 So. 2d 722 (Fla. 4th DCA) 1991), where the "specific document" found to be filed for improper purpose was an Administrative Complaint. Assuming such to be the case, for reasons set forth below, there is still no basis in the record of this case to support an objective conclusion that the
Administrative Complaint in this case was filed for an improper purpose.
Case law holds that an objective standard is used to determine improper purpose for the purpose of imposing sanctions on a party or attorney under Section 120.569(2)(e) and predecessor statutes. As stated in Friends of Nassau County,
Inc. v. Nassau County, 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000):
In the same vein, we stated in Procacci Commercial Realty, Inc. v. Department of Health and Rehabilitative Services, 690 So. 2d 603 (Fla. 1st DCA 1997):
The use of an objective standard creates a requirement to make reasonable inquiry regarding pertinent facts and applicable law. In the absence of 'direct evidence of the party's and counsel's state of mind, we must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party's or counsel's shoes would have prosecuted the claim.'
Id. at 608 n. 9 (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1515 (11th Cir.1991)). See In re Sargent, 136 F.3d 349, 352 (4th Cir.1998) ("Put differently a legal position violates Rule 11 if it 'has absolutely no chance of success under the existing precedent.'") Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991)(quoting Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 988 (4th Cir.1987))."
* * *
Whether [predecessor to Section 120.595(1)] section 120.57(1)(b)5., Florida Statutes
(1995), authorizes sanctions for an initial petition in an environmental case turns
. . . on the question whether the signer could reasonably have concluded that a justiciable controversy existed under pertinent statutes and regulations. If, after reasonable inquiry, a person who reads, then signs, a pleading had "reasonably clear legal justification" to proceed, sanctions are inappropriate.
Procacci, 690 So.2d at 608 n. 9; Mercedes,
560 So.2d at 278. (Emphasis added)
And it was held in Mercedes Lighting and Electric Supply, Inc. v. Dept. of General Services, 560 So. 2d 272, 276 (Fla. 1st DCA 1990), that the case law construing Rule 11 of the Federal Rules of Civil Procedure was useful in applying a predecessor statute to Section 120.569(2)(e). The court went on to state:
The rule's proscription of filing papers for an improper purpose is designed to discourage dilatory or abusive tactics and to streamline the litigation process. The rule is aimed at deterrence, not fee shifting or compensating the prevailing party. In short, the key to invoking rule
11 is the nature of the conduct of counsel and the parties, not the outcome. Schwarzer, "Sanctions Under the New Federal
Rule 11--A Closer Look," 104 F.R.D. 181, 185
(1985). A party seeking sanctions under rule 11 should give notice to the court and the offending party promptly upon discovering a basis to do so. Advisory Committee Note to Rule 11. If it may be fairly accomplished, the court should then promptly punish the transgression. In re Yagman, 796 F.2d 1165, 1183 (9th Cir.1986).
See also, Ortho Pharmaceutical v. Sona Distributors, Inc., 117 F.R.D. 170, 173 (S.D.Fla.1986). If an obvious and
recognizable offending pleading is filed, the court at the very least should provide notice to the attorney or party that rule 11 sanctions will be assessed at the end of the trial if appropriate. The purpose of the rule--deterring subsequent abuses--is not well served if an offending pleading is fully litigated and the offender is not punished until the trial is at an end. See In re Yagman, 796 F.2d at 1184-6; and Ortho Pharmaceutical, 117 F.R.D. at 173.
One of the basic tenets of rule 11 enforcement appears to be, not surprisingly, that a party is required to take action to mitigate the amount of resources expended in defense of the offending pleading or motion. In his article, Schwarzer comments:
Normally, although not necessarily always, a claim or defense so meritless as to warrant sanctions, should have been susceptible to summary disposition either in the process of narrowing issues under Rule 16 or by motion. Only in the rare case will the offending party succeed in delaying exposure of the baseless character of its claim or defense until trial.
Permitting or encouraging the opposing party to litigate a baseless action or defense past the point at which it could have been disposed of tends to perpetuate the waste and delay which the rule is intended to eliminate. It also undermines the mitigation principle which should apply in the imposition of sanctions, limiting recovery to those expenses and fees that were reasonably necessary to resist the offending paper. (Emphasis added)
Schwarzer, 104 F.R.D. at 198.
Id. at 276-277.
Applying the foregoing legal principals to the circumstances of this case, it is first noted that the AHCA has prevailed on some of the charges set forth in its Administrative Complaint. To that extent it would appear, when viewed objectively, that there was no improper or frivolous purpose in filing the Administrative Complaint. Further, on some of the other issues on which the AHCA did not prevail, there was nevertheless a reasonable basis for raising the issues, because at the time the Administrative Complaint was filed, the AHCA did not know that two of the key witnesses upon which it relied were going to change their stories. Further yet, if the Nursing Home sincerely felt that the Administrative Complaint was filed for an improper purpose, the issue should have been raised promptly after the filing of the Administrative Complaint, not shortly after the final hearing. And as a final matter, when the matter is viewed objectively, it is clear that an ordinary person standing in the shoes of the AHCA and its legal counsel would have prosecuted the charges. If the Administrative Complaint passes that test, as it does here, it does not violate Section 120.569(2)(e), Florida Statutes. Accordingly, for all of the reasons discussed above, the Nursing Home's motion seeking an award of attorney's fees and costs under Section 120.569(2)(e), Florida Statutes, is DENIED.
On the basis of the foregoing findings of fact and and conclusions of law, it is RECOMMENDED that the AHCA issue a Final Order in this case to the following effect:
Concluding that the violations alleged in Count I regarding the location of and the responses to call bells have been proved by the preponderance of the competent substantial evidence and that those violations are Class II deficiencies;
Concluding that the violation alleged in Count I regarding long toenails is, at most, a Class III deficiency;
Concluding that the violation alleged in Count II regarding providing oxygen to a resident is, at most, a Class III deficiency;
Concluding that the violation alleged in Count II regarding insertion of a Foley catheter should be dismissed for lack of persuasive competent substantial evidence;
Concluding that the violation alleged in Count III regarding pressure sores on a resident should be dismissed for lack of persuasive competent substantial evidence; and
Concluding that the violations described in subparagraph (a), above, provide a sufficient basis for the issuance of a Conditional license to the Nursing Home from November 8, 2001, until December 13, 2001.
DONE AND ENTERED this 3rd day of March, 2003, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2003.
ENDNOTES
1/ Two of the AHCA's witnesses testified at the final hearing. The testimony of the other two was presented by deposition transcript.
2/ Two of the Nursing Home's witnesses testified at the final hearing. The testimony of the other two was presented by deposition transcript.
3/ The evidence as to whether Resident 18 had any pressure sores at any time relevant to this proceeding is full of conflicts, inconsistencies, and confusion. As noted elsewhere in this Recommended Order, the evidence on that issue was neither persuasive nor reliable.
4/ The mere existence of a Class III deficiency without more is an insufficient basis for issuance of a Conditional license.
5/ In reaching this conclusion the hearsay nature of some of the evidence supporting the findings of fact regarding the call bells has not been overlooked. But unlike the usual statutory limitations on the on the use of hearsay evidence in Florida administrative hearings, Section 400.23(7)(c), Florida Statutes, appears to require the AHCA to rely upon, and to base its decision in part upon, certain hearsay evidence. The cited
statutory language provides that in determining whether a facility will receive a conditional or standard license, "the agency shall consider," among other things, "the results of interviews and surveys of a representative sampling of residents." Although the matter is not entirely free from doubt, the statutory requirement that the AHCA include in its decision-making the hearsay statements of residents would appear to give such statements a higher evidentiary status than they are entitled to in other Florida administrative litigation.
6/ Yet another reason for which Count III must be dismissed is that the definition of "pressure sore" used by the AHCA in conducting its nursing home surveys requires that the sore involve tissues "overlying a bony prominence." The sores about which evidence was presented in this case were not overlying a bony prominence. See Agency for Health Care Administration vs. Beverly Healthcare Lake Mary, DOAH Case No. 01-3143 (Recommended Order issued March 5, 2002).
COPIES FURNISHED:
Nelson Rodney, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street
Miami, Florida 33166
Davis Thomas, Qualified Representative Broad & Cassel
Post Office Box 11300 Tallahassee, Florida 32302
Lealand McCharen, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 05, 2003 | Agency Final Order | |
| Mar. 03, 2003 | Recommended Order | Evidence was sufficient to prove two Class II deficiencies at nursing home. |
