vs.
Respondent.
) Case No. 04-4151
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, P. Michael Ruff, held a final hearing in the above-styled case in Pensacola, Florida, on February 16, 2005.
For Petitioner: Janis L. Rosenthal, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Station No. 3 2727 Mahan Drive, Building 3
Jonathon Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 Park Avenue North, Suite 100 Post Office Box 2011
The issues to be resolved in this proceeding concern whether the Respondent is guilty of a violation known as a "Class II violation" or "deficiency" and, if so, whether a
$2,500.00 fine and conditional licensure status should be imposed upon the Respondent facility.
This cause arose based upon a survey conducted by the above- named agency on July 20, 2004, which was a nursing home compliance survey. In the course of the survey or upon its conclusion the Agency for Health Care Administration cited the facility, Respondent, for failure to comply with 42 CFR Section 483.25(h)(2), the federal regulation applicable to this proceeding. This was deemed by the Agency to amount to a "Class II deficiency."
Because of this preliminary investigatory finding, the Agency filed an Amended Administrative Complaint against the facility seeking to impose a $2,500.00 fine and a conditional licensure status based upon the violation. It is the position of the nursing home, the Respondent, that the fine and conditional licensure rating are not justified and that the deficiency upon which those sanctions are sought to be imposed did not exist or at least did not exist of the severity of a Class II deficiency.
formal proceeding before the Division of Administrative Hearings. The cause ultimately came on for hearing as noticed at which the parties presented testimony and evidence. The Petitioner Agency presented the testimony of three witnesses and offered 16 exhibits. Exhibits P-1 through P-10, P-12, P-13, and Composite P-16 were admitted into evidence for all purposes. Exhibit 15 was admitted as corroborative hearsay only. The Respondent presented three witnesses and three exhibits, all of which were admitted into evidence. Upon conclusion of the proceeding a transcript thereof was ordered and the parties requested the opportunity to file proposed recommended orders. Thereafter an extension on the filing time for proposed recommended orders was stipulated to by the parties and granted by the undersigned. The Proposed Recommended Orders have been timely filed, therefore, and considered in the rendition of this Recommended Order.
The Agency for Health Care Administration (AHCA or Agency) is the regulatory agency charged with licensure and enforcement of all applicable statutes and rules governing skilled nursing facilities and the appropriate provision of nursing and other elements of care in such facilities in Florida.
The Respondent Haven of Our Lady of Peace, Inc., (Haven) owns and operates a skilled nursing facility, which is a 120 bed facility located in Pensacola, Florida.
On July 20, 2004, a survey was conducted by AHCA of the Haven facility. One Agency representative was on the premises on July 20, 2004, to investigate a complaint received by the Agency. When the survey was made the facility was operating under a standard license (Number SNF11970951) issued by the Agency, with an effective date of July 1, 2004 through June 30, 2005.
Haven was cited for a Class II deficiency and issued Notice of a Conditional License and a $2,500.00 fine as a result of the survey. It chose to contest this initial Agency action by availing itself of the right to a formal proceeding pursuant to Section 120.57(1), Florida Statutes.
The basis of the charged Class II deficiency was an incident involving Resident 3, in which she fell from a seated position in a wheelchair, injuring her head. At the time of the incident an order had been written by the treating physician assigned to Resident 3, which read as follows:
D/C lap buddy. D/C lateral supports. Velcro torso support while in w/c [wheelchair]. Release Q2 for toileting, exercise, repositioning.
As a result of the survey, the Agency provided Haven with a "Statement of Deficiencies" stating upon what basis the purported Class II deficiency was believed to exist.
Resident 3 experienced a fall when she turned over her wheelchair in July 2003 by leaning to far to the right. Haven,
in response to this experience, tried several approaches to help Resident 3 when she was in the wheelchair. Lateral supports and "lap buddy" were the first two interventions. The lap buddy caused the resident aggravation and therefore was discontinued and the torso support device was implemented. The torso support was not a restraint, but rather was applied to assist Resident 3 in maintaining good position while in her wheelchair. While Resident 3 had fallen on several occasions, she had never fallen or leaned forward prior to the subject falling incident. If Resident 3 had previously leaned forward, then other devices, such as wedge cushions, would have been used rather than the torso support. The torso support is not a good device to use if a resident falls forward. The torso support was not intended to directly prevent falls.
On July 17, 2004, Kathy Anderson, a Certified Nursing Assistant (CNA), was preparing Resident 3 for bed. Ms. Anderson took Resident 3 from the living room, at which Resident 3 had a torso support on, in her wheelchair to the bathroom in Resident 3's room. The torso support was taken off so that the resident could use the bathroom. Ms. Anderson, as she had done on many occasions while caring for Resident 3, then placed her in a good position in the wheelchair, without applying the torso support and pushed her several feet into the bedroom and placed the wheelchair perpendicular to her bed, with the wall at the right
side of the wheelchair (to prevent the feared fall to the right based upon a past tendency of the resident to lean to the right). Ms. Anderson had leaned Resident 3 back in the wheelchair prior to moving her from the bathroom. During the many times
Ms. Anderson had cared for Resident 3 she had never leaned forward in her wheelchair.
Ms. Anderson determined, while in the bathroom, that the resident's diaper was wet and a dry diaper was needed. The diapers were located in a closet just outside the bathroom.
Ms. Anderson, standing at the back of the wheelchair, when it was positioned as described above in the resident's room, was able to reach into the closet and obtain a diaper without losing sight of the resident. It was not necessary for Ms. Anderson to walk to the closet, as the distance was close enough for her to reach the diaper without other movement. As she had done in the past, Ms. Anderson had instructed the resident that she was getting a diaper. The resident was still sitting in the wheelchair when Ms. Anderson had the diaper in hand. The resident then suddenly leaned forward and fell from the wheelchair and struck her head on the bottom of the bed. Ms. Anderson tried to catch the resident when she saw her falling, but was unsuccessful.
Ms. Anderson then called a nurse, Joyce Parks, and Resident 3 was placed in her bed. Dr. Holmes' order (and his testimony)
provided that the supports should be released at least every two hours.
The torso support is not worn when the resident is in bed. The torso support must be removed to change the resident's clothes. There was no reason for the torso support to be re- applied after the resident used the bathroom.
Ms. Anderson provided appropriate supervision of Resident 3 and her actions did not violate Dr. Holmes's order. The fall that occurred on July 17, 2004, was unforeseeable as the resident had never leaned forward before, but had always leaned to the right after she had been sitting for a long time and grew tired. Further, the resident had been placed in the bed after using the bathroom by Ms. Anderson using the same procedure during the two months that Ms. Anderson had cared for the resident. Resident 3 was in the nursing home for about two years.
Dr. Holmes advocated that the residents be restrained as little as possible. According to Dr. Holmes, Resident 3 was a "delightful lady" and the applying of a restraint would have negatively impacted her quality of life. The relevant regulation applicable to nursing facilities requires that anything that restricts a resident be classified as a restraint; therefore, Haven was required to list the torso support as a restraint. In
actuality, the torso support was not and did not function as a restraint.
A torso support is applied to position the resident more straight and in a better position in a wheelchair. A torso support allows a resident to sit more straight for a longer period of time, to be more comfortable and thereby enjoy a better quality of life.
It was reasonable for Ms. Anderson to be standing behind the wheelchair when she wheeled Resident 3 out of the bathroom and into the bedroom. The resident's ability to reach her highest practicable mental, physical and psycho-social well- being was not compromised by the Haven staff in this instance. Resident 3 received adequate supervision and assistance devices on July 17, 2004, when this incident occurred.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).
42 CFR Section 483.25(h)(2), provides that each resident must receive supervision and assistance devices to prevent accidents.
Section 400.23(8), Florida Statutes (2004), requires the Agency to classify alleged deficiencies "according to the nature and scope of the deficiency" and to cite the scope as
"isolated, patterned or widespread." Section 400.23(8) provides the definition of an isolated deficiency as:
. . . a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff . . .
There is no dispute that the scope of the alleged deficiency in this case is isolated.
Section 400.23(8), Florida Statutes (2003), also allows AHCA to classify every alleged deficiency in terms of a class in accordance with statutory definitions of classes, which are set forth below:
(b) A Class II deficiency is a deficiency that the Agency determines has compromised the resident's ability to maintain his/her highest practicable physical, mental, and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provisions of services. A Class II deficiency is subject to a civil penalty of $2,500.00 for an isolated deficiency, . . . A fine shall be levied notwithstanding the correction of the deficiency.
* * *
Section 400.23(7)(b), Florida Statutes (2004), permits the Agency to impose a conditional license on a nursing home provider which receives a Class II deficiency.
The Agency has the burden of proving by a preponderance of the evidence, the existence of a violation as to the conditional rating and the Agency has the burden of
proving, by clear and convincing evidence, the existence of a violation as to the fine case. Department of Banking and
Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). Clear and convincing evidence requires that the evidence ". . . must be found to be credible; the facts to which the witnesses testified must be distinctly remembered; the testimony must be precise and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Inquiry Concerning Judge Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz v. Walker, 429 So. 2d
797, 800 (Fla. 4th DCA 1983)).
The Agency must demonstrate by clear and convincing evidence both the existence of a violation and the classification of the deficiency alleged in the Administrative Complaint. Agency for Health Care Administration v. Blue-Haven
Retirement, Inc., DOAH Case No. 02-4170 (final order pending). See also Agency for Health Care Administration v. Marisa's Home Care, Inc., DOAH Case No. 03-0162 (May 2003).
Moreover, the Agency is limited to the allegation in the Administrative Complaint, the charging document. See Tampa Health Care Center v. Agency for Health Care Administration,
DOAH Case No. 01-0734 (August 2001). "Notice of intent to assign conditional licensure status constitutes the charging document which . . . only matters placed in issue by the Notice of Intent to assign conditional licensure status were considered during the hearing, and in the preparation of this Recommended Order." See Vista Manor v. Agency for Health Care
Administration, DOAH Case No. 00-0547 (September 2000). "Evidence of any alleged deficiency not contained in the express terms of the charging document are not relevant and material to the allegations in the charging document."
In the instant proceeding the Agency did not establish by clear and convincing evidence or by a preponderance of the evidence that Resident 3's ability to reach the highest practicable mental, physical and psycho-social well-being was compromised by the staff of Haven.
The Agency did not prove by clear and convincing evidence or by a preponderance of the evidence that the resident did not receive adequate supervision and assistance devices on July 17, 2004. The Agency also did not prove by clear convincing or a preponderance of the evidence that the matters alleged in Count I of the Complaint constituted a Class II deficiency.
Deficiencies purportedly discovered during surveys must be classified as Class I, II, III, or IV deficiencies.
Sanctions may be imposed based upon certain classifications of deficiencies. A conditional license may be assigned if the facility has a Class I, Class II, or an uncorrected Class III deficiency. The Agency may also impose a fine if the facility has a Class I, II or uncorrected Class III deficiency.
Deficiencies originally classified as Class III and corrected or, as Class IV, whether they are corrected or not, do not result in a conditional license or fine.
In deciding the issue in this proceeding as to whether there was a violation of Tag F324, and thus whether the facility failed to maintain the highest practicable physical, mental, and psycho-social well-being of Resident 3, federal decisions as well as state decision which are germane may be considered because Tag F324 is based on 42 CFR Section 483.25(h)(2), which has been adopted by virtue of Florida Administrative Code Rule 59A-4.1288. A single violation of Tag F324 was purportedly found by the Agency, in the July 20, 2004 survey, based upon the one resident who fell. The Agency contends that it was a Class II level of deficiency and thus proposes imposing a conditional license and a fine against the Respondent. The Respondent contends that the fall was accidental and did not constitute a violation. Tag F324 states:
(h) Accidents. The facility must ensure that- . . .
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.
Substantial Compliance
In determining whether a licensure requirement has been violated the concept of substantial compliance must be applied. Facilities need not achieve perfection. They must substantially meet the requirements of law.
The concept of substantial compliance is adopted in several cases. In Agency for Health Care Administration v. Oak Terrace Specialty Care Center, it was stated by Judge Davis:
"A standard rating must be issued to a facility if there are no Class I or II deficiencies, no Class III deficiencies that have not been corrected within the time set by AHCA, or the facility is in 'substantial compliance' with all applicable regulatory standards. A facility is in 'substantial compliance' with regulations even if deficiencies are identified, provided these deficiencies present 'no greater risk to resident health or safety than the potential for causing minimal harm.'
Citing 42 CFR § 488.301; and Tampa Health Care Center v. Agency for Health Care Administration, DOAH Case No. 01-0704 (Final Order April 30, 2002) cited at page 30 of Agency for Health Care Administration v. Oak Terrace Specialty Care Center, DOAH Case Nos. 01-1607, 01-1985 (Final Order, March 6, 2003).
Foreseeability
A facility cannot be held strictly liable for every incident that occurs. It must take steps to prevent accidents and provide assistive devices where appropriate when the incident is foreseeable.
Both parties agree that Resident 3 was identified as at risk for falls. In fact, facility records document that the resident had had falls in the past. However, the fall upon which the Agency based this deficiency was a fall forward from a wheelchair and this resident had never experienced a fall of that nature in the past.
Prior to the July 17th fall, the resident had fallen to the right, pulling over her wheelchair. She had a tendency when she had been sitting for extended periods of time to become tired and lean to the right. This caused her to view the world in a horizontal position. As a result, her attending physician, Dr. Holmes, prescribed a torso support, which had the effect of maintaining her erect posture. By not leaning to the right she had not pulled her wheelchair over again after this assistive device was applied.
Dr. Holmes' order required that Resident 3 be released form this support every two hours for a "toileting, etc." He testified that he wrote the order in this way to assure that the resident was released a minimum of every two hours. He
anticipated that she would be released at other times and he felt that would be better for this resident and her quality of life.
When the occurred, Resident 3 had been released to use the bathroom, prior to going to bed. Her aide then moved her out of the bathroom and placed her in the wheelchair in her room. The aide did not re-apply the torso support because she was in the process of preparing the resident for bed. It is important to note that the right side of the wheelchair was placed against the wall so if the resident had leaned to the right, she could not have pulled her wheelchair over and fallen.
The area where the wheelchair was placed was an adult arm's length wide. The closet was immediately opposite the wall where the resident sat. Ms. Anderson reached over to get the resident a brief or diaper from the closet. As she watched the resident, the resident pitched forward and hit her head against the bed. Ms. Anderson was simply not able to grab her quickly enough, even though she was standing right next to the wheelchair and the resident.
Ms. Anderson had cared for Resident 3 on a number of occasions and was familiar with her. Neither Ms. Anderson, nor any other person who testified in this proceeding had ever known the resident to fall in a forward direction from her wheelchair. The resident's records show no fall in a forward direction.
AHCA has relied on two cases to support its legal position. Both cases are distinguishable. There are two examples in The Moorings, Inc., d/b/a The Chateau at Moorings Park v. Agency for Health Care Administration, DOAH Case Nos. 02-4795 and 02-4796 (August 7, 2003). The example relied upon by AHCA is distinguishable from the case at bar, but the second example, in which the ALJ found no liability is on point. In the example in the Chateau case relied upon by AHCA, a resident was walking from his bathroom into his room with an aide. The resident had previously fallen in the bathroom. The fall upon which the deficiency was charged in that case occurred while the resident was walking, an activity for which he had been identified as "at risk." His CNA had left him at the bathroom while she retrieved his glasses. The CNA involved had taken a couple of steps away from the resident to get his glasses and had averted her eyes away from him when he fell.
In the case at bar, the aide never took her eyes off the resident but was clearly supervising her. The resident had never fallen forward, but only to the side. Ms. Anderson had placed the wheelchair against the wall which would prevent the resident from falling to the right as she had done in the past.
In the instant case, the very function performed by Ms. Anderson had been performed before without incident. In the Chateau case the resident's care plan was specific that he
needed close supervision while ambulating, which is what he was doing when he fell. There is no such specificity in the case at
bar.
There was a second incident in the Chateau case; one
for which the ALJ did not find the facility liable. In that situation, the resident was also identified as at risk for falls and, in fact, had fallen on several occasions. She needed verbal cuing for her posture. She would commonly sit round shouldered with her head forward and leaning to the left. She had balance problems and was assessed as needing total assistance when toileting.
Among resident's previous falls was one in which she slid to the bathroom floor while an aide was assisting her in dressing. She tended to lean back and to the left while she was on the toilet and had fallen backward but never had fallen forward in her wheelchair.
In the incident in that case the resident had been taken to the bathroom and placed on the toilet. The aide left the room. The resident fell forward off the toilet injuring herself.
The resident had a three-sided commode to prevent her from falling back or to the side, an anticipated outcome absent intervention. She had no protection for the front of the commode because she had never fallen in that direction before.
Likewise, in the instant case, Resident 3 had a torso support to keep her from leaning to the right in her wheelchair, the only known balance problem she had demonstrated. The aide who was in the process of preparing her for bed placed the wheelchair with the right side against the wall, which would prevent her from falling to the right. She was appropriately protected from the danger which has previously been identified for her.
Resident 3 was able to sit for periods of time without leaning. She leaned only when she was tired and had been sitting for a long time. There is no evidence that the resident was tired or had been sitting for any significant period of time. There was every reason to believe that the resident would be safe in the situation involved where Ms. Anderson was preparing her for bed.
There is no evidence that Ms. Anderson failed to properly supervise Resident 3. She maintained eye contact on the resident at all times and was never in a position where she could not reach the wheelchair. She was standing within arm's length of the wheelchair and the resident when the accident happened. The accident happened so quickly that Ms. Anderson could not react quickly enough to break the fall. The resident was supervised; however, supervision does not require constant hands-on care.
It is clear from the facts in this case that it more closely parallels the second example in the Chateau case for which the administrative law judge found no liability.
The second case cited by the Agency, Agency for Health Care Administration v. Life Care Center of Port St. Lucie, 2002 WL 1592255 (Fla. Div. Admin. Hrgs.) is also distinguishable from the instant case. In that case, a resident fell from a shower chair. On June 5, 2001, a nurse observed the resident leaning forward in her wheelchair, which was a new behavior for her. Three days later, her physician observed the same behavior. On the next day she was observed leaning so far forward that she was almost falling out of her chair. On June 9, her doctor ordered a "lap buddy," a device designed to prevent leaning forward in a chair. The lap buddy was in use on June 11, 2001. On that evening, the resident had been showered and was seated in the shower chair wearing her night gown. The CNA moved to the back of the shower chair to push the resident to her room. The lap buddy was not then in place. The resident fell forward and was injured.
The judge in that case found several points upon which the facility had been deficient. First, her identified tendency to lean forward was not noted on her care plan so the staff could be aware. In the case at hand, the records appropriately reflect the resident's tendency to lean to the right.
In the Life Care case, the necessity for the lap buddy was not noted in the resident's records. Here there was an order for the supportive device, but no order for a lap buddy, because the resident had never fallen forward before. A lap buddy had been used in the past, but was determined to be too restrictive for her and since she did not fall forward, was discontinued. As Dr. Holmes testified, using restrictive devices hampers the resident's quality of life so he did not order a lap buddy.
In the Life Care case, a lap buddy would not have been appropriate for the shower chair, but there are other assistive devices that could have been used to prevent what was there a previously recognized danger. Further, the former Director of Nursing testified in that case that the CNA was a new employee and had not been properly briefed regarding this resident. He lack of knowledge contributed to the fall. In this case, neither of these factors exist.
In Beverly Healthcare of North Okaloosa v. Agency for
Health Care Administration, Judge Cleavinger found no basis for the Agency to impose a conditional license or fine upon the provider. In that case, she stated:
Unfortunately, falls are a common occurrence in nursing homes and cannot always be prevented. The goal is to balance the need to prevent falls and the need to keep residents free from restraints given
physical, cognitive, and treatment limitations. Falls can result regardless of adequate supervision. There is no standard of care which requires one-on-one
supervision of any resident. However, such one-on-one supervision would not necessarily prevent all falls.
2003 WL 1816017 (Florida Division of Administrative Hearings Case No. 02-3405).
In the case at hand there was one-on-one supervision but it also could not prevent the fall. Ms. Anderson could not have anticipated that the resident would fall forward. She did protect the resident's right side, the direction in which the resident was prone to lean, by placing the wheelchair against the wall. This was because this tendency had been displayed in the past so the staff was aware of and could take measures to prevent the tendency to lean or fall to the right. Ms. Anderson kept her eyes on the resident and despite the supervision the resident fell forward anyway.
In Vista Manor v. Agency for Health Care Administration, 1999 WL 1486416 (Florida Division of Administrative Hearings Case No. 98-5471), Judge Kilbride held that the regulation cited in that case does not "authorize the Agency to base a deficiency solely on the fact that the resident fell once or multiple times." Finding that the facility was not responsible for the fall in that case, Judge Kilbride held that
the facility cannot be liable unless "there is a specific intervention that [it] should have identified and could have provided to the resident to prevent a fall."
In this case, the facility could not anticipate a forward fall, for which certain restrictive interventions are available, such as a lap buddy. Absent a known need for such an intervention, however, it should not be used because it is an annoyance to the resident and interferes with the resident's quality of life.
There is no strict liability imposed on nursing homes.
Several cases hold that foreseeability must be shown in order to find responsibility. Agency for Health Care Administration v.
Eastbrooke Health Care Associates, LLC, d/b/a Heron Pointe Health and Rehabilitation (Florida Division of Administrative Hearings Case No. 03-0164).
Because the relevant federal regulation cited herein have been adopted into state law through Florida Administrative Code Rule 59A-4.1288, federal decisions are germane to a complete resolution of the issues herein. There are a number of cases involving Tag F324. In none of them was liability found for an unforeseen fall. Running through the cases is a common thread: that a nursing home provider is not an insurer that an accident will not happen; rather, that the nursing home must exercise reasonable precautions in protecting its residents.
In the case of Lineville Nursing Facility, DAB CR 947 (August 30, 2002) a resident had had recurrent falls. The administrative law judge and the Department Appeals Board therein held that Tag F324 was not violated. The resident had been identified at high risk for falls. Nine days after she was admitted to the facility she fell off the toilet. She had been left in the bathroom while a CNA was outside the door, and she experienced injuries. The judge in that case stated:
The regulations do not impose strict liability on a long term care facility with regard to the residents' accidents. A facility is not required to assure its residents never sustain accidents. Rather, the regulations require that the facility provide adequate supervision and assistance devices to its residents as a safeguard against accidents. A facility satisfies the requirements of the regulations if it takes reasonable precautions to protect the health and safety of its residents against accidental injuries.
Further, there is a failure to provide adequate supervision when there is knowledge of a pattern of events or behaviors by a resident which could adversely affect the resident, and there is a failure by the provider or the facility to take steps to prevent accidents. The question is whether there is pre-existing behavior which would have alerted the facility to tighten its procedures related to that particular resident or whether the accident was an event without precedent.
See Lineville at p. 12, citing South Ridge Nursing and Rehabilitation Center, DAB CR 744 (2001).
The judge in the Lineville case focused not on whether the resident fell, but rather, whether the facility should have anticipated the fall. The resident in the Lineville case had had previous falls and needed extensive assistance. She had never had a fall in the same manner as the fall which precipitated the deficiency case. In the case at hand the same is true. Resident 3 had fallen but had never shown a tendency to fall forward. Until that occurred the facility could not anticipate the need to supply preventive devices against such a fall. A fall to the right could have been anticipated and it was. Ms. Anderson placed the wheelchair against the wall so as to prevent a fall to the right.
In the Lineville case the judge and subsequently the Department Appeals Board, found that no deficiency existed because:
A facility is not held to strict liability;
The facility need only take reasonable safeguards;
The staff must have had knowledge of the behaviors and history in relation to the fall which occurred.
In this case the facility did impose reasonable safeguards to prevent the type of fall by Resident 3 of which
its staff had knowledge. The fall which occurred was of a type never before observed in this resident. The facility did not violate the regulations relative to this fall because there was no knowledge of any tendency to fall in this manner. Therefore there is no deficiency.
Other Options
The Agency has suggested that had the CNA put the torso support on the resident, the resident would not have fallen. This is speculative. There was no persuasive evidence that a torso support would prevent a forward fall. Haven's witnesses, including the attending physician, testified that they would not use a torso support for this purpose. Also, the torso support was ordered to assist the resident in maintaining an erect posture rather than leaning to the right, as she had done in the past.
The CNA had removed the support in order to toilet the resident and moved her out of the bathroom to prepare to place her in bed. Removing the support at the time and in that manner was appropriate and reasonable. The attending physician testified that he saw nothing wrong with the CNA leaving the support off during the process of preparing the resident for bed. His established that this order for the support, which included removing it every two hours, was inclusive and not exclusive; that is, the more it was removed and the resident
allowed to move about her wheelchair, the better it would be for the resident. He wrote the order so that the support should be removed at least every two hours.
In addition to the physician Dixie May, RN, the facility risk manager, as well as the Director of Nursing found that the process used by Ms. Anderson was appropriate under all the circumstances. Both testified that with all their years of experience they would have done nothing differently than had Ms. Anderson. Ms. Anderson was in the room with the resident, was an arm's length away and had her eyes on the resident which meets the definition of supervision.
The Agency suggested that somehow the supervision was inadequate, yet no witness testified on behalf of the Agency to the effect that the definition of supervision was other than the process actually followed by Ms. Anderson.
The fact that the Agency can suggest alternatives to the actions of the provider is not sufficient to show that the facility erred. None of the witnesses for the Agency knew the resident. Ms. Anderson did know her, having cared for her for a substantial period of time. The opinion of a surveyor who does not know the resident and had little opportunity to observe her, is of less probative value in this situation. Those who know and care for the resident are better equipped to know what behavior to expect and what behavior the resident may exhibit.
See generally Agency for Health Care Administration v. North Florida Living Facilities, d/b/a Willow Grove Living Facility, (DOAH Case No. 01-2503). Thus, those who had much more opportunity to directly observe the resident, such as witnesses Anderson, May, and Laura Ayotte, all of whom testified that no tendency to fall forward had ever been exhibited, gave opinions entitled to more weight regarding the issue of the resident's safety, supervision, and her previously exhibited behaviors.
Thus, the testimony of witnesses Anderson, May, and Ayotte are accepted. See Marianna Convalescent Center v. Agency for Health
Care Administration, (DOAH Case No. 02-0037).
In summary, the preponderant weight of the evidence establishes persuasively that this occurrence was merely an unforeseeable accident. The above-cited authority and legal discussion establish that the facility may not be held accountable for accidents or injuries which were unforeseeable. The fall and the injury suffered by Resident 3 was unforeseeable in this case. The facility should not be cited for it.
Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Agency for Health Care Administration, dismissing the Amended Administrative Complaint in its entirety; that no fine be assessed, and that the Respondent be granted a standard license for the period of time in question.
DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
Janis L. Rosenthal, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Station No. 3 2727 Mahan Drive, Building 3
Karen Goldsmith, Esquire Jonathon Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 Park Avenue North, Suite 100 Post Office Box 2011
William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
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.
