STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1292

) MRS. GLORIA MILLER GILBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on July 29, 1981, in Palatka, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: James A. Sawyer, Esquire

Sub-District Counsel Department of Health and

Rehabilitative Services 3001 Southwest Broadway

Ocala, Florida 32671

For Respondent: Mrs. Gloria Miller Gilbert, pro se

418 Emmet Street Palatka, Florida 32077

BACKGROUND

These proceedings began on April 17, 1981 when Respondent Mrs. Gloria Miller Gilbert requested an administrative hearing. Petitioner on March 27, 1981 had given her notice that it proposed fining her $1,000 for an alleged act of negligence which seriously affected the health of a resident in her licensed Adult Congregate Living Facility (ACLF). On May 4, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

At the final hearing Petitioner presented as its witnesses, Mrs. Gloria Miller Gilbert (adverse), Mr. Tommy Carlton and Mr. Amos Carlton. Petitioner offered Exhibits 1-5 which were received into evidence. Respondent presented herself and Mr. Wilbert J. Gilbert as her witnesses. She did not offer any exhibits.

At the beginning of the hearing it was stipulated by the parties that Respondent operated Miller's ACLF and she was served with the Administrative Complaint on April 16, 1981. It was further stipulated that Respondent is licensed by Petitioner to operate an ACLF and she is a registered nurse.

At the conclusion of the hearing the parties were informed of their right to file proposed Findings of Fact and proposed Recommended Orders. While Petitioner expressed its intention to file a proposed Recommended Order neither party has made such a filing. At the request of the Hearing Officer, because of the conflicting testimony, the Petitioner supplied a transcript of the final hearing which was filed on November 17, 1981.

FINDINGS OF FACT

1. Respondent, Mrs. Gloria Miller Gilbert, operates an Adult Congregate Living Facility known as Miller's ACLF. She is licensed to operate that facility by Petitioner Department of Health and Rehabilitative Services and has been so licensed since December 14, 1980.

   
   

2. Mrs. Gilbert is a registered nurse. She has more than twenty-two years of nursing experience. Her specialities are obstetrics and geriatrics.

   
   

3. Mr. Harley L. Carlton, who is 83 years old, was a resident at Miller's ACLF on December 14, 1980. Mr. Carlton had in the past been a regular resident at Miller's but most recently was living at home with his son. His son had requested that Mrs. Gilbert keep Mr. Carlton for the weekend of December 13-14, 1980. She agreed to make an exception to her normal policy of not accepting short term residents only because she knew Mr. Carlton from the past. At approximately 8:30 AM., on December 14, 1980 he was walking down a stairway in Respondent's facility. Mr. Carlton abruptly fell and hit his head on an open door. Mrs. Gilbert, who was standing near the bottom of the stairs, immediately ran over to where he lay. She asked him if he was all right. He said, "Yes." He stood up and Mrs. Gilbert brought a wheelchair for him to sit in.

   
   

4. She then took him into the kitchen to examine his head under a good light. She observed a laceration of his scalp which looked as though the scalp had been scuffed and torn back. At this point Mrs. Gilbert decided that Mr. Carlton needed to go to the hospital emergency room for treatment. In her opinion the laceration required sutures.

   
   

5. Mrs. Gilbert then told Mr. Carlton that she was going to call the emergency squad to take him to the hospital. He replied, "No, I am not going to the hospital. Call Amos. Get Amos over here." Amos is Mr. Carlton's son. Mr. Carlton was fearful that if he went to the hospital his hair would be cut in order to treat his head. Throughout the morning he refused Mrs. Gilbert's repeated offers to take him to the emergency room.

   
   

6. Between 9:00 to 9:30 A.M., Mrs. Gilbert made a telephone call to contact Mr. Amos Carlton at his home. Tommy Carlton, Amos' son, answered the call and explained that Amos was in Sunday School. Amos was not expected home until 11:30 A.M. or noon.

   
   

7. Believing that she could persuade Mr. Carlton to go to the emergency room, Mrs. Gilbert told Tommy that she would take his grandfather there. Her belief was incorrect. Mr. Carlton was adamant in his refusal to go for treatment. Tommy went to the hospital and waited approximately one and one-half hours but neither Mr. Carlton nor Mrs. Gilbert appeared. Tommy then left the

   hospital and went to Miller's ACLF where he saw his grandfather. Mrs. Gilbert who had taken a wheelchair across the street was not present when Tommy arrived.

   
   

8. When Tommy saw his grandfather he observed the laceration on his head and saw two stitches across the wound. There was no evidence presented to show that Mr. Carlton did not have any sutures in his head when he was accepted for the weekend at Miller's ACLF. Mr. Carlton was unresponsive to Tommy's attempts to converse with him. This is not Mr. Carlton's usual behavior. Although he showed signs of what a layperson would call senility, he was usually willing to talk with Tommy. Tommy then went home at 12:30 P.M. and met with his father, Amos.

   
   

9. Together the Carlton men returned to Miller's ACLF. Again Mrs. Gilbert was not present. Upon seeing the two stitches in Mr. Carlton's wound both Amos and Tommy believed that he had already seen a physician. They asked an aide at Miller's for the name of the doctor who put the stitches in so they would know who should later remove them. The aide who said she was not present at the time of Mr. Carlton's fall did not know.

   
   

10. Both Amos and Tommy took Mr. Carlton home. After half an hour they became concerned about his condition and took him to the emergency room at Putnam Community Hospital. The two sutures of unknown origin which had been placed in Mr. Carlton's wound here removed by the attending physician, Dr. McIntyre. He resutured the laceration. Mr. Carlton was then released to go home with Tommy and Amos. Several days later it was necessary for Mr. Carlton to return for an examination of neck pains and to have the sutures in his head wound removed.

    
    

11. At the time of his injury Mr. Harley Carlton had not been adjudicated mentally incompetent. He had no legal guardian.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

    
    

13. This case may be tried on only the specific allegations of the Administrative Complaint. Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923, 926 (Fla. 1st D.C.A. 1977); Department of Health and Rehabilitative Services v. Golden Shores Convalescent Center, Inc., Case Nos. 80-341 and 80-342 (Florida Division of Administrative Hearings, Recommended Order April 10, 1981); adopted, 3 FALR 1280A (Florida Department of Health and Rehabilitative Services, Final Order June 10, 1981). In its operative portions the instant Administrative Complaint charges:

    
    

    1. The respondent has violated the provisions of Chapter 400, Part II, F.S., in that:

       1. The facility violated 400.414(2)(a),

          F.S. in that an act of negligence was committed which seriously affected the health, safety, and welfare of a resident of the facility.

    2. A member of our District Office, Mr. Sam Collins, accompanied by Mrs. Lorraine Reddick, representing the Long Term Care

       Ombudsman Committee, did conduct an investigation of a complaint against your facility on January 21, 1981. This investigation did reveal the following:

       1. On December 14, 1980 a resident of your facility, Mr. Harley L. Carlton, did fall, lacerate his scalp, and fracture two (2) ribs. You as responsible party did not arrange or cause to be arranged necessary medical attention in a timely fashion as required by 400.402(8) to Mr. Carlton. Subsequent medical attention of Mr. Carlton did include numerous sutures to a 15 - 20 centimeter laceration of his scalp.

       2. Upon Mr. Harley L. Carlton's arrival at Putnam Community Hospital three (3) unaccounted for sutures were removed from the laceration. These sutures were observed by Mr. Amos Carlton and his son, Tom Carlton, while Harley L. Carlton was in your facility.

          
          

          I note that Section 400.402(8), Florida Statutes (Supp. 1980) does not require the provision of medical attention as alleged in the Complaint. That section is part of the definitions of Chapter 400, Part II, Florida Statutes. It only describes "personal services" to include arrangement for appropriate medical services.

          
          

14. The Complaint does not charge Mrs. Gilbert or her staff with being responsible for the unaccountable sutures which appeared in Mr. Carlton's wound before he went to the hospital. Without that charge having been made in the Administrative Complaint it is not an issue in these proceedings. Even if the Complaint had charged Mrs. Gilbert with being responsible for them, the necessary facts were not proven here. There is no showing that when Mr. Carlton entered Miller's ACLF he did not have sutures. It was not shown that Mrs. Gilbert or her staff placed them in Mr. Carlton's wound and it was not shown that Mrs. Gilbert was even aware of them at any time pertinent to the acts charged. While a reasonable person might speculate that under the circumstances Mrs. Gilbert had something to do with the unexplained sutures because Mr. Carlton was in her care subsequent to his injury but before his relatives took him to the emergency room, the speculation of a reasonable person will not sustain an Administrative Complaint. Hughes v. Office of the Comptroller, 406 So.2d 73 (Fla. 2nd D.C.A. 1981).

    
    

15. Mrs. Gilbert is charged with being negligent by failing to arrange necessary medical attention for Mr. Carlton. According to Mrs. Gilbert's unrebutted testimony she repeatedly offered Mr. Carlton the opportunity to go to the hospital emergency room. He refused. She did contact his relatives about his need for medical attention but did not tell them they must immediately come to her ACLF to persuade Mr. Carlton that he needed to see a doctor. Instead she gave them the impression that he was on the way to the emergency room. There is no dispute that Mr. Carlton's injury needed medical attention. As soon as she saw his wound Mrs. Gilbert herself decided that attention was necessary. There is no evidence, however, that his laceration was a life-threatening injury.

16. In light of the foregoing considerations I conclude that Mrs. Gilbert did not commit an act of negligence which seriously affected the health, safety and welfare of Mr. Carlton. This conclusion is based on the refusal of Mr. Carlton to accept Mrs. Gilbert's invitations to take him to the hospital. It has not been shown that Mr. Carlton was incapable of making decisions about the treatment of his own body. While he did show signs of approaching senility, he had not been adjudicated mentally incompetent.

    
    

17. The foregoing conclusion does not mean that in hindsight Mrs. Gilbert could not have done better under the circumstances. She should have called the hospital emergency service to her ACLF and given Mr. Carlton the opportunity to refuse medical treatment upon their arrival. He may well have responded differently to their offer of treatment compared to how he responded to Mrs. Gilbert. For example, his son had no difficulty persuading him to go to the emergency room once Amos arrived at Miller's ACLF.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order dismissing the Administrative Complaint against Mrs. Gloria Miller Gilbert.

DONE and ORDERED this 24th day of February, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1982.

COPIES FURNISHED:

James A. Sawyer, Esquire Sub-District Counsel Department of Health and

Rehabilitative Services 3001 Southwest Broadway

Ocala, Florida 32671

Mrs. Gloria Miller Gilbert

418 Emmet Street Palatka, Florida 32077

Docket for Case No: 81-001292

Orders for Case No: 81-001292