vs. ) CASE NO. 79-1983
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on March 7, 1980, at Blountstown, Florida.
For Petitioner: John L. Pearce, Esquire
For Respondent: Stephen D. Milbrath, Esquire
Dempsey & Slaughter, P.A. Eola Office Center, Suite 610 605 East Robinson Street Orlando, Florida 32801
Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
By Administrative Complaint dated September 5, 1979, the Petitioner (hereinafter "Department"), seeks to impose a civil penalty of $3,050.00 upon Respondent (hereinafter "Nursing Home") for alleged violations of Florida statutes and Department rules.
The Department's Complaint alleges that the Nursing Home (1) failed to provide health care consistent with community standards and Department rules to a patient who was injured by a fall on July 4, 1979, and (2) from June 1-July
21, 1979, the Nursing Home operated with a shortage of one nurse on the night shift in violation of Department rules. The Department further alleges that these violations created an imminent danger to the Nursing Home's patients, or guests, presented a substantial probability of death or serious physical harm, or had a direct or immediate relationship to the health, safety, or security of the patients.
By Notice of Hearing dated October 12, 1979, this case was set for hearing on December 5, 1979. However, upon motion and stipulation of the parties, both it, and a subsequently scheduled hearing were continued, and final hearing was set for March 7, 1980.
At final hearing, the Department called Margaret Z. Brock, James L. Myrah, Christine Densen, Howard Chastain, and Dr. Manuel E. Lopez, as its witnesses, and offered Petitioner's Exhibit Nos. 2 and 3, inclusive, each of which was admitted into evidence. The Nursing Home called, as its witnesses, Dora M. Keifer, Carl M. Knight, Dr. Manuel E. Lopez, Dr. E. B. White, Jerry W. Hinson, Gene Bailey, and Margaret Z. Brock. It offered Respondent's Exhibit Nos. 1, 2, and 3, inclusive, into evidence. Except for Exhibit No. 2 (objection to which was sustained on the ground of relevancy), each was admitted into evidence.
Counsel for the parties submitted posthearing memoranda and Proposed Findings of Fact and Conclusions of Law, by April 2, 1980.
Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined:
Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock)
Injury to and Standard of Care Provided Myrtle White
On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer)
After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the
patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White)
Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer)
At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock)
Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White)
Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez)
Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer)
Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or
seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White)
At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White)
It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White.
Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue.
As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah)
Shortage of One Nurse on Night Shift
During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah)
During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2)
The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring
skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook)
The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook)
Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock)
The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock)
The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1) Florida Statutes.
This proceeding arises from the Department's filing of an Administrative Complaint against the Nursing Home. At hearing on such a Complaint, the burden is upon the agency to affirmatively support its charges by a preponderance of the evidence. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976).
The Department's Administrative Complaint contains two charges. First, it alleges that the Nursing Home violated Sections 400.022(1)(g) and
400.141, Florida Statutes (Supp. 1978), and Rules 10D-29.38(5) and 10D-29 43(2), Florida Administrative Code, by failing to provide adequate health care to Myrtle White on the morning of July 4, 1979.
Section 400.022(1)(g), Florida Statutes (Supp. 1978) grants patients residing in nursing homes:
"(g) The right to receive adequate and appropriate bee 1th care consistent with established and recognized practice standards within the community and with rules as promulgated by the department." (Emphasis supplied)
Section 400.141, Florida Statutes (Supp. 1978), requires, inter alia, every nursing home to "comply with all applicable standards, rules and regulations of the Department "
Department Rule 1013-29.38(5), Florida Administrative Code, provides that the duties of the directors of nursing at nursing homes include:
"(5) Calling for a physician when necessary and obtaining orders for medication and treatments."
Finally,, Department Rule 1013-29.43(2), Florida Administrative Code, provides in pertinent part, that:
"No medications or treatments shall be administered to any patient except on direct order from a physician
At hearing, the Department failed to support, by a preponderance of evidence, its allegations that the Nursing Home unlawfully failed to provide adequate health care to Myrtle White on July 4, 1979. The evidence indicates, to the contrary, that the Nursing Home provided Myrtle White with care on the morning of July 4, 1979, which was consistent with (1) the standing order of her doctor, (2) the established and recognized health care standards of the Blountstown area, and (3) Department rules.
The Department produced only one witness, Christine Denson, who it proffered as capable of giving opinion testimony on whether nurse Keifer's actions the morning of July 4, 1979, were consistent with health care practices within the community. However, Ms. Denson was not qualified, or accepted as an expert for the purpose of giving such an opinion after she admitted that she had made no inquiry and had no actual knowledge concerning the standards of nursing practice and patient health care existing in Calhoun County or the Blountstown area. Although she was a licensed public health nurse, she had never practiced in a rural area or small community, such as Blountstown, and she testified that she did not know if the health practice standards common to such rural communities were different from those of urban communities. The strict rules of evidence do not generally apply to administrative proceedings. However, to be admissible, evidence must be of such quality to justify reliance by reasonably prudent persons in the conduct of their affairs. Section 120.58(1)(a), Florida Statutes (1979). Without a more adequate foundation, the opinion testimony of Ms. Denson could not meet such a standard, and was not accepted.
Secondly, the Department's Complaint alleges that the Nursing Home violated Section 400.141, Florida Statutes (Supp. 1978), and Rule 10D-29.39(1), Florida Administrative Code, from June 1 through July 21, 1979, by failing to employ more than one licensed nurse during the night shift.
The evidence presented by the Department affirmatively established this violation. During the time in question, the Nursing Home was providing
nursing care to skilled nursing patients and was subject to the night shift nursing staffing requirements of Rule 1013-29.39(1), Florida Administrative Code: one licensed nurse to 60 patients.
The Department construes this rule as requiring the employment of more than one licensed nurse when the nursing home serves more than 60 residential patients. An agency's interpretation of its own rule should be given great weight. Fla. Jur 2d, Administrative Law, Section 58 (1977). Here the Department's interpretation is not unreasonable and should be followed. Since, during the 51-day period, the nursing home served more than 60 patients, Respondent is guilty of violating Department Rule 1013-29.39(1), Florida Administrative Code, and Section 400.141, supra.
In order to impose a civil penalty for a violation described in Paragraph 4 above, the Department must classify the violation and indicate the classification of the deficiency on the face of its notice of deficiency. Section 400.23(4), Florida Statutes (Supp. 1978). Here, the Department alleged in its Complaint that the violation constituted a Class "I" deficiency when considered in the aggregate with the first charge, or, alternatively, a Class "II" deficiency. See Section 400.23(4)(a)(b), Florida Statutes (Supp. 1978).
A Class "I" deficiency must present "an imminent danger to the patients or guests" or "a substantial probability that death or serious physical harm" would result there from. A Class "II" deficiency must have a "direct or immediate relationship to the health, safety, or security of the nursing home facility patients." Section 400.23(4)(a)(b), supra. No competent and substantial evidence was presented by the Department to establish that the violation established in Paragraph 4 above, satisfied either the Class "I" or Class "II" substantive standards.
Paragraph 4 of the Administrative Complaint includes the following statement:
"The Department notes that the deficiencies are not amenable to correction in that the events constituting violations have passed and cannot be revisited or corrected."
Subsections 400.23(4)(b) and (c), supra, require that a citation for a Class "II" or "III" deficiency specify the "time within which the deficiency is required to be corrected." If the deficiency is corrected within the time specified, "no civil penalty shall be imposed." Id. Here, there was no evidence that the Nursing Home was provided with a specific period of time within which to correct the deficiency. See Petitioner's Exhibit 3, and Administrative Complaint.
Furthermore, the Department provided no evidence to support its contention that the deficiency described in Paragraph 4 above could not be corrected. In fact, the nursing staff deficiency was corrected by the Nursing Home prior to the hearing. The fact that a deficiency must occur at a fixed point of time that cannot be "revisited" is not a basis to conclude that the deficiency is not "correctable" within the meaning of Section 400.23(4), supra. To require nursing home to correct a deficiency, ab initio (in order to avoid mandatory civil penalties), would be to require the impossible and negate the legislative intent expressed in Section 400.23 (4), supra.
A failure to meet Department nursing home staffing requirements is, per se, correctable. The Department's failure to allow the Nursing Home a specified time within which to correct the deficiency, as required by Section 400.23(4), supra, and the Nursing Home's "correction" of the nurse staffing deficiency prior to hearing, support a conclusion that the mandatory imposition of a civil penalty is unwarranted and inappropriate under the circumstances of this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED.
DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
John L. Pearce, Esquire District II Legal Counsel Department of Health and
Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
