STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEMORIAL HOSPITAL, JACKSONVILLE, ) CRITICAL CARE UNIT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2214

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 5 and 6, 1979, in Jacksonville, Florida. Following the close of the hearing, counsel for the parties submitted memoranda of law which were received and considered by the undersigned in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Kenneth F. Hoffman, Esquire

Rogers, Towers, Bailey, Jones & Gay Post Office 8ox 1872

Tallahassee, Florida 32302

For Respondent: Steven W. Huss, Esquire

Staff Attorney

Central Operations Services Florida Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the other evidence of record, the following relevant facts are found.

FINDINGS OF FACT

1. Memorial Hospital of Jacksonville, Petitioner, seeks, via a variance, approval of an intensive care/coronary care unit (ICU/CCU) in excess of the 5,000 square foot requirement of the 1973 Life Safety Code, which has been adopted and is enforce by the Department of Health and Rehabilitative Services (Respondent herein), pursuant to Rule 10D-28.79, Florida Administrative Code.

2. The unit size in question is approximately 11,540 square feet, which is, of course, approximately twice the size of the ICU/CCU unit size permitted by the 1973 Life Safety Code. The Respondent disapproved the Petitioner's request for a variance based inter alia on the fact that the Petitioner's plans, as presented, exceeded the 5,000 square foot requirement by approximately 6,000 square feet and due to the fact that the number of feet from the patient beds to the exits was in excess of the 50 feet exit requirement set forth in the 1973 Life Safety Code.

   
   

3. Rudolph Nudo, Petitioner's Director of Engineering for approximately thirteen years, studied the plans presented for approval by Respondent and has been involved in the variance request from the outset. During January of 1978, Petitioner engaged the architectural firm of Ellerbe and Associates to arrive at a design that would be efficient both in terms of space utilization and in terms of cost efficiency. Based on its studies, Ellerbe decided upon a triangular design. The working drawings, plans and specifications were submitted to the City of Jacksonville for approval, which approval has been granted. The City of Jacksonville`s code is patterned largely from the 1973 Life Safety Code. During a meeting with the Respondent's agents during August of 1978, Respondent's officials voiced concern about the excessive square feet contained in the ICU/CCU unit and, based therein, formally submitted a letter of denial to Petitioner based on the excessive square feet. Presently, exterior construction has commenced on the proposed unit and Petitioner is now awaiting approval of its interior construction plans. Petitioner has indicated its desire to comply fully with all other requirements in terms of the necessary time/ratings for the fireproofing of walls, et cetera. In terms of other safety precautions, the Petitioner regularly conducts safety inspections and fire drills. Petitioner has not been cited for any safety infractions by the Respondent.

   
   

4. Don Benson, the architect employed by Ellerbe and Associates assigned to this project, has been engaged in the design of medical facilities since approximately 1964. The plans, as submitted, have space to accommodate approximately twenty-four beds for coronary and intensive care patients. As stated, the design is triangular and the monitoring station is semi-circular. (See Petitioner's Exhibit A.) The burn factor for the wall is rated by Underwriters Laboratories (UL) for a period of up to two hours. The facility as planned is a one-story unit and is designed for easy ingress and egress to other adjacent units.

   
   

5. Dr. Kay E. Gilmore, M.D., a cardiologist who has specialized in heart and vascular diseases for approximately seven years, was a member of the Petitioner's in-house committee charged with studying and implementing the design for the proposed ICU/CCU unit. Prior to submittal of the proposal, Dr. Gilmore visited various sites to study other ICU units which were operational. Dr. Gilmore, as did other witnesses, noted that in ICU units, a primary concern is that of complete visualization and monitoring of patients at all times. Dr.

   H. Azcuy, M.D., who has been engaged in the practice of pulmonary medicine since approximately 1964, is Petitioner's Director of Respiratory Therapy. Dr. Azcuy is a member of the Critical Care design unit committee and has been instrumental with the planning for the proposed facility. Dr. Azcuy remarked that most patients which he treats have respiratory problems and that all patients in the intensive care unit are prohibited from smoking due to the presence of oxygen in the critical care units.

   
   

6. Vernon Wallace, Petitioner's biomedical engineer, is in charge of the procurement and maintenance of all patient care equipment at the facility. Recognizing that fire hazards are potential problems in all hospitals, Messr.

   Wallace testified that all equipment purchased by Petitioner is of high-level workmanship, most of which operates on very low voltage, thereby reducing the likelihood of fires. Messr. Wallace testified that during his tenure with Petitioner, no fire has occurred at the hospital nor has it been necessary to evacuate patients for any reason.

   
   

7. Mary Nikoden, an R.N. for approximately thirty-three years and Petitioner's Director of Nursing for the past ten years, has been employed in many phases of patient care at hospitals and nursing homes. Ms. Nikoden testified that patients are interchanged regularly from the intensive care units to the critical care units as patient load fluctuates. She cited one problem, i.e., the movement of patients from the ICU/CCU units which is hampered due to the bulky equipment and the necessity to constantly monitor intensive and critical care patients. She opined that if the units were combined, patient care would be enhanced due to the fact that similarly trained employees work in both units. She also pointed out that the proposed design would increase patient care due to the fact that patients can be observed at all times and access will be increased and/or enhanced if the proposed design is approved.

   
   

8. Karen Cornelius, a registered nurse who holds a master's degree in nursing, has been employed at Memorial Hospital since approximately September of 1976. From 1964 through 1967 she was employed at Cornell University Hospital and from 1967 through 1970 she was head nurse in charge of the surgery and intensive care units at Cornell. She was employed at Grady Memorial Hospital in Atlanta from 1970 through 1973, and from 1973 through 1975 she trained personnel in the intensive care and coronary care units at Grady Memorial Hospital. Ms. Cornelius was involved in the input and the design of the room sizes for the proposed unit. According to Ms. Cornelius, one of the basic reasons for the proposed design is to maximize the use of the staffs from the intensive care and coronary care units who are regularly interchanged and cross-coordinated. Ms. Cornelius has visited and compared other area hospital intensive care and coronary care units and is of the opinion that the proposed plan is far superior due to the easy patient visibility and the ability to constantly monitor patients' vital signs.

   
   

9. During the year of 1978, Petitioner submitted a request for an equivalency (waiver) from the Joint Commission on Accreditation of Hospitals, which approval was granted in early March, 1979, with certain recommendations and conditions respecting exit requirements; the necessity to increase the frequency of fire drills, installation of adequate fire extinguishers and smoke exhaust systems and single-story construction (Petitioner's Exhibit 8).

   
   

10. John T. Ludwig, an electrical engineer who holds a Ph.D. in engineering, has had vast experience in various engineering positions. Messr. Ludwig received his Ph.D. in 1954 and relocated to Pinellas County during 1966. Since 1971, he has been employed by the Respondent in the Bureau of Health Facilities, where he is now in charge of the review of plans for nursing homes and hospitals. Messr. Ludwig concluded that the Petitioner's plans as proposed were unsafe due to the "failure to consider fire safety and the undue risks of harm which would result to patients' lives if the proposed plans here approved." Among Messr. Ludwig's concerns were the facts that intensive care and coronary care patients differ with respect to the type of life support equipment necessary to maintain proper patient care; potential problems which might result due to the distance between patient suites and exits; corridor problems (the storing of combustibles in the hallways) and the inability to visualize patients from the central nursing station due to the triangular design.

11. Max C. Karrer, M.D., is an associate of Memorial Hospital who specializes in obstetrics and gynecology. Dr. Karrer is a member of the committee charged with investigating the concept for the proposed critical care/intensive care unit. As a member of this committee, Dr. Karrer visited intensive care and critical care units of Hollywood, California; Pittsburgh, Pennsylvania; the University of Maryland Trauma Center; Machua General Hospital and a hospital in Cambridge, England. Dr. Karrer concluded that the proposed plan was one of the better plans he had observed because, among other things, personnel use would be maximized; better use could be made of patient beds; better care would result based on the number of dollars spent and the utilization of and the interchange of staffs from the intensive care and coronary care units. Additionally, he noted that the proposed plan made possible the ability to constantly visualize patients and was by far the best designed intensive care unit he had seen. During the examination of Dr. Karrer, it was brought out that the hospital dispenses medication on the unit-dosage system and all stored linens in the proposed unit was of the fire-retardant type. Thus, he concluded that the likelihood of a fire was remote in this unit since no combustibles are stored in the corridors as charged by Respondent's agents.

    
    

12. Ben F. Britt, a registered architect licensed to practice in Maryland, Virginia, South Carolina, North Carolina and Florida, has practiced architecture for approximately fifteen years and is presently the Medical Facilities' architect for Area I in Florida. This area has approximately eighty-four hospitals and more than ninety nursing homes. Messr. Britt testified that the spread of fire was the primary reason that the Life Safety Code of 1973 restricted the area for an intensive care or coronary care unit to 5,000 square feet. He also cited the problem respecting the transfer of patients who necessarily had attached to their person monitoring equipment which could not be easily moved from one location to another.

    
    

13. Messr. Rudolph Nudo was recalled to emphasize the fact that the Petitioner reviewed all safety codes when the subject design was implemented and that there were no linens stored which were not of the fire retardant type; that inasmuch as the Petitioner dispenses medication on the unit system, no boxes are stored in the hallways which could be the source of a potential fire hazard. Messr. Nudo also testified that the Petitioner would install the necessary exits to comply with all codes which the Respondent enforces. He testified that the additional size was justified in this case based on the additional safety features which were present in the design and the type of equipment utilized. Messr. Benson was recalled to emphasize the fact that the proposed unit consists of single rooms which were the optimum in coronary care units and that the trend in intensive care and coronary care units is toward centralization of such units.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

15. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

16. Respondent, pursuant to Rule 10D-28.79, Florida Administrative Code, has adopted and enforces the 1973 Life Safety Code. Chapter 10D-28.92, Florida Administrative Code, provides that the Respondent is authorized to grant "requests for exceptions to the rules and standards relating to operational

functions, design and construction of hospitals ... substantiated by the results of authentic research or studies, or innovations of the designing professions having as their purpose the improvement of patient care ... following a request and documentation of the proposed project by the individual sponsor".

Petitioner, in an effort to obtain an exception and/or a variance from the 5,000 square foot requirement rule contained in the 1973 Life Safety Code which Respondent enforces, undertook an exhaustive study and created an in-house ad hoc committee to study the design and come forth with a proposal which would result in the improvement of patient care, giving some thought to the ability; to utilize its employees and staff more efficiently. To this end, Petitioner had several of its staff/employees visit other facilities where intensive care and coronary care units were operational to study the feasibility of proposing a more efficient design. Petitioner has undertaken numerous steps to assure that the level of patient care will be increased. The likelihood of the necessity to evacuate the proposed unit appears, based on the evidence present, remote.

Additionally, Petitioner submitted its plans to the Joint Commission on Accreditation of Hospitals, which approved the proposed plans with various qualifications. Petitioner has indicated a willingness to implement its design to accommodate the exit requirements set forth in the approval given by the Joint Commission on Accreditation of Hospitals. Based on these factors and all the other evidence cited above, the undersigned is of the opinion that competent and substantial evidence was offered to establish that the Petitioner's request for an exception pursuant to Rule 10D-28.92, Florida Administrative Code, should he GRANTED, with the condition that the code provisions respecting exits and travel time be complied with to the extent practical.

DONE and ENTERED this 9th day of April, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

(Mail: 530 Carlton Building) Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1979.

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire

Rogers, Towers, Bailey, Jones & Gay Post Office Box 1872

Tallahassee, Florida 32302

Steven W. Huss, Esquire Staff Attorney

Florida Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 78-002214

Orders for Case No: 78-002214