STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-537

) ELIZABETH ANN BOARDING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 28, 1981 in Jacksonville, Florida.

APPEARANCES

For Petitioner: Paul C. Doyle, Esquire

Department of Health and Rehabilitative Services

District IV Legal Counsel Post Office Box 2417-F 5920 Arlington Expressway

Jacksonville, Florida 32231

For Respondent: Julian S. Pinkston, Esquire

4244 Atlantic Boulevard

Jacksonville, Florida 32207

By letter dated February 17, 1981 the Department of Health and Rehabilitative Services, Petitioner, proposes to assess an administrative fine in the amount of $200 against Mrs. Lillian Morris, owner, Elizabeth Ann Nursing Home (hereafter referred as to the Respondent or facility). As grounds therefor it is alleged that Respondent committed a Class III violation in negligently failing to obtain proper medical attention for a resident of the facility injured on the premises.

At the hearing five witnesses were called by Petitioner and five exhibits were admitted into evidence.

FINDINGS OF FACT

1. Elizabeth Ann Boarding Home is an adult congregate living facility licensed by Petitioner.

2. On the evening of November 6, 1980 Leatrice Carpenter, a 56 year old female resident at this facility, fell in her room and struck the back of her head on the door leaving a cut in the scalp some two inches long running vertically near the center of the back of the head from the hairline up.

   
   

3. She was found shortly thereafter by Rebecca McPherson (Becky), a 70 year old maid, who lived and worked at the facility. Becky saw Ms. Carpenter had a cut in the back of her head which was bleeding slowly. Becky put a wet towel around Ms. Carpenter's head, helped her into a chair which she pushed over the bed and then helped Ms. Carpenter into the bed. Becky did not notify Ms. Morris because Ms. Morris had been sick with heart trouble. Becky did dial Ms. Carpenter's daughter but received no answer.

   
   

4. During the night Becky checked on Ms Carpenter off and on when Becky would get up.

   
   

5. Ms. Carpenter is subject to epileptic seizures; however, her malady is under control with medication consisting of phenobarbitol and dilantin. Despite the medication she is still subject to focal seizures during which her eyes roll back but she retains control of her other bodily functions.

   
   

6. Ms. Carpenter is also a member of the Senior Citizens Day Treatment Program run by St. Vincent's Hospital. She and others similarly unable to fully take care of themselves are transported to St. Vincent's Monday through Friday where they are placed in programs to occupy their day and help them cope with their situation. Ms. Carpenter is also given her medication of phenobarbitol and dilantin at St. Vincent's. She is given only one dosage to take with her when she leaves St. Vincent's in the afternoon.

   
   

7. When Ms. Carpenter did not get off the bus at St. Vincent's the morning of November 7, Linda Hartley, the LPN in charge of Ms. Carpenter while she is at St. Vincent's, became concerned and went to the facility to find out what was wrong. When she arrived she found Ms. Carpenter in bed with the towel still wrapped around her head. Ms. Carpenter was comfortable and alert. When she removed the towel Ms. Hartley observed dried blood on the towel and blood-matted hair on the back of Ms. Carpenter's head. She saw the cut in Ms. Carpenter's scalp was not bleeding but believed it required medical attention. She talked to Becky and to Ms. Carpenter who told her the latter had fallen the previous evening shortly after supper and thereby obtained the injury. Ms. Hartley got Ms. Carpenter's daughter's (Ms. Watson) telephone number and returned to St. Vincent's to call Ms. Watson's residence. When she didn't get an answer she called the school at which Ms. Watson taught and left a message for Ms. Watson to call her as soon as possible. Both of Ms. Watson's phone numbers were in the St. Vincent's records for Ms. Carpenter. Early after lunch Ms. Watson returned Ms. Hartley's call and was told about her mother's accident.

   
   

8. Ms. Watson proceeded to the facility to her mother who she found still in bed. When she saw the cut on Ms. Carpenter's head she helped her dress and took her to the emergency room at St. Vincent's where the wound was cleaned, dressed and sutured. This emergency room treatment is recorded on Exhibit 4. Eight stitches were required to close the cut.

   
   

9. In late January, 1981, after Ms. Carpenter had been moved to a different adult congregate living facility, St. Vincent's Day Care Center reported to Petitioner the events surrounding the injury Ms. Carpenter had received. Later the same day Ms. Hartley called Petitioner to confirm the information (Exhibit 1). Two days later, on January 28, 1981 Ms. Watson

   complained to Petitioner regarding the failure of the facility to provide proper medical treatment when her mother was injured (Exhibit 1).

   
   

10. An investigation conducted by Petitioner confirmed the facts above noted and resulted in the February 17, 1981 letter notifying Respondent of the intent to impose an administrative fine.

    
    

11. Then the investigator talked to Ms. Morris, the owner of the facility, she found it difficult to focus Ms. Morris' attention on the November incident involving Ms. Carpenter. Ms. Morris recalled a fall Ms. Carpenter had taken in April, 1980 while she was away from the facility and kept referring to this incident as she was being questioned about the November accident. No notation regarding the current accident had been entered in the facility's records.

CONCLUSIONS OF LAW

12 The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

1. Section 400.414, Florida Statutes (1980 Supp) provides a department [of HRS] may impose an administrative fine against an adult congregate living facility for various grounds including:

   
   

   (2)(a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

   
   

2. Section 400.419, Florida Statutes (1980 Supp) authorizes the imposition of a fine upon a facility not in compliance with the requirements of this part. This section defines a Class III violation as:

   
   

   (3)(c) Class "III" violations as those conditions or occurences related to

   the operation and maintenance of a facility which the department determines indirectly or potentially threaten the physical or emotional health, safety, security of facility residents, other than Class I or II violations. A Class III violation shall be subject to a civil penalty of not less than $100

   and not exceeding 500 for each violation. A citation for a Class III violation shall specify the time

   within which the violation is required to be corrected. If a Class III violation is corrected within the time specified, no civil penalty shall be imposed unless it is a repeated offense.

   
   

3. The cut sustained by Ms. Carpenter as the result of the fall on November 6, 1980, was of sufficient severity to require medical attention. Failure to provide such medical attention is the type of negligence proscribed by Section 400.414 above quoted and constitutes a Class III violation as defined by Section 400.417. No willfulness was involved and it is evident that Becky McPherson did what she thought was the correct thing to do. The fact that she

   did not notify Ms. Morris immediately following the accident, when considered in the light of her reason for not doing so and the testimony of Ms. Frye (Petitioner's investigator) relating to her conversation with Ms. Morris, raises questions whether anybody is really of charge of this facility who is capable of making important decisions affecting the health and welfare of the residents.

   
   

4. From the foregoing, it is concluded that Respondent failed to take appropriate action to provide medical attention to Ms. Carpenter following her injury on November 6, 1980, and that this negligence seriously affected the health and welfare of Ms. Carpenter and constituted a Class III violation. It is, therefore

RECOMMENDED that Ms. Morris, owner of Elizabeth Ann Boarding Home, be assessed an administrative fine of $100.00.

ENTERED this 1st day of May, 1981 in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Paul C. Doyle, Esquire

HRS District IV Legal Counsel Post Office Box 2417-F

5920 Arlington Expressway

Jacksonville, Florida 32231

Julian S. Pinkston, Esquire 4244 Atlantic Boulevard

Jacksonville, Florida 32207

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1981.

Docket for Case No: 81-000537

Orders for Case No: 81-000537