STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATORS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2686

)

RUBIN PADGETT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 16, 1982, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Board of Nursing Home Administrators against the Respondent, Rubin Padgett, alleging that Respondent had violated Rules 10D-29.38(1), (4),(8), (14) and (16), Florida Administrative Code, and Section 468.1755(1)(k) and (m), Florida Statutes.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

517 East College Avenue Tallahassee, Florida 32301

For Respondent: Edward P. de la Parte, Jr., Esquire

705 East Kennedy Boulevard Tampa, Florida 33602

ISSUES

This case involved the treatment of and records maintained on Veronica Tuthill while she was a patient at Padgett's Nursing Home from May of 1979, until February, 1980. There were certain factual matters in dispute, to include:

1. Did Veronica Tuthill receive preventive treatment for decubitus ulcers?

   
   

2. Did Mrs. Tuthill have a physical-therapy assessment, and was it recorded?

   
   

3. Were records on Mrs. Tuthill properly maintained by the nursing staff?

   
   

4. Was the transfer document completely prepared when Mrs. Tuthill was transferred from Padgett's Nursing Home to Bay to Bay Nursing Home?

   
   

5. Did Mrs. Tuthill receive proper treatment for decubitus ulcers?

The primary legal issue is whether the Respondent, Rubin Padgett, is legally responsible for any of the deficiencies alleged.

Because of the voluminous quantity of evidence produced and the many proposed findings, the findings herein are limited to those which were at issue. Significantly conflicting testimony regarding issues of fact have been indicated, together with the specific finding. The Board showed that there were certain specific instances when the nursing staff failed to chart or to chart completely the nursing care and treatment rendered Mrs. Tuthill, that a nursing staff member failed to properly complete the transfer document, and that Mrs.

Tuthill developed decubitus ulcers while a patient at Padgett's Nursing Home.

The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence or not being a finding of fact. Only those materials received into evidence at hearing were considered as part of the record and formed the basis for these findings.

FINDINGS OR FACT

1. The Respondent, Rubin Padgett, is a licensed nursing home administrator and has extensive experience in this field, to include service on the state regulatory board. Respondent is not a registered nurse, medical doctor or related health care professional.

   
   

2. Veronica Tuthill was brought to Florida by her daughter, Barbara Magee, who discovered her mother in a nursing home in Virginia. Mrs. Tuthill had been placed in the Virginia home by an unidentified daughter. Ms. Magee was vague about her mother's past medical history, and Mrs. Tuthill was apparently unable to provide her treating physicians with an adequate medical history. However, Mrs. Tuthill was in poor medical condition with contractures, a poorly healed and misaligned fractured hip, malnutrition, anemia, chronic pulmonary disease, arteriosclerotic heart disease and one decubitus ulcer (bedsore) when Ms. Magee brought her to Florida.

   
   

3. On April 18, 1979, Mrs. Tuthill was admitted to Centro Espanol Hospital. She was given treatment for her various problems, to include transfusions and treatment for her decubitus ulcer. She was discharged from the hospital on May 10, 1979, with her condition improved; however, she still had the chronic problems described above and a decubitus ulcer the size of a quarter on her left hip.

   
   

4. On May 10, 1979, Mrs. Tuthill was admitted to Padgett's Nursing Home (PNH).

   
   

5. During her stay at PNH, Mrs. Tuthill's original decubitus ulcer broke down again. She also developed additional ulcers on her left and right buttocks and on her right foot.

   
   

6. In many instances the nursing records for Mrs. Tuthill were not adequate because they did not fully and in every instance reflect the treatment and nursing care given the patient. These deficiencies included failure to chart the size, condition, etc., and treatment given Mrs. Tuthill's decubitus ulcers. However, it is specifically found that Mrs. Tuthill received the

   ordered treatment and preventive measures regularly taken to prevent the formation of decubitus ulcers. The development of decubitus ulcers on opposite sides of Mrs. Tuthill's body and buttocks while she was at PNH supports the testimony of the nursing staff treating her that she was turned properly as ordered, although said care was not always recorded in the nursing records. The records of treatments rendered also support the staff's testimony.

   
   

7. A physical therapy assessment was performed and an appropriate entry charted in the nursing notes. The report of the therapist was not found in Mrs. Tuthill's file when it was reviewed by inspectors from the Department of Health and Rehabilitative Services (HRS). When this was reported to the director of nurses, she requested and received a copy of the report from the physical therapist which was placed in Mrs. Tuthill's file. This report reflects that Mrs. Tuthill was assessed for physical therapy and was determined not to be capable of receiving any benefit from physical therapy. Moreover, at the time of her assessment the results were reported to Mrs. Tuthill's physician, who discontinued his orders for physical therapy. This was annotated in the nursing notes at the time.

   
   

8. Mrs. Tuthill was transferred from PNH to Bay to Bay Nursing Home on February 25, 1980.

   
   

9. The transfer form on Mrs. Tuthill was not properly completed by the nursing staff at PNH at the time she was transferred to Bay to Bay Nursing Home.

   
   

10. On March 5, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery on her decubitus ulcers. She was discharged on March 19, 1980, after the ulcers were debrided. On March 24, 1980, Mrs. Tuthill was again admitted for surgical closure of the ulcers as had originally been planned. She was discharged on April 7, 1980, with all her ulcers closed and healed.

    
    

11. On August 10, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery to close two decubitus ulcers which had developed during her stay at Bay to Bay Nursing Home.

    
    

12. During her hospitalizations, Mrs. Tuthill received blood transfusions to increase her hemoglobin in order that she could receive anesthesia. This also improved her overall health, positively affecting her anemia, nutrition, pulmonary disease and arteriosclerotic circulatory problems, thereby assisting in the treatment of her ulcers.

    
    

13. Expert medical testimony was conflicting on whether proper nursing care can prevent the formation of decubitus ulcers. It is specifically found that bedridden patients can develop decubitus ulcers while receiving the best of nursing care and treatment. This finding is supported by the fact that Mrs. Tuthill developed ulcers in both nursing homes and under two different treatment regimes.

    
    

14. Expert medical testimony was conflicting on the appropriate medical treatment for decubitus ulcers. Mrs. Tuthill's medical treatment at PNH was within the limits of the conservative approach to treatment of decubitus ulcers. Her treating physician altered his treatment, increasing the strength of the medications and efforts to reduce and heal the patient's ulcers. Surgery is also an acceptable treatment for moderate-to-severe ulcers; however, Mrs. Tuthill's ulcers at the time of her discharge from PNH were at the moderate stage of development.

15. Respondent had appointed a qualified medical director and a qualified nursing director, and had developed written procedures as required prior to Mrs. Tuthill's admission. These directors were directly responsible for the supervision of their particular services. Respondent was responsible for the overall administration of the nursing home; however, he was dependent upon the specific professional judgment and knowledge of his subordinate staff directors.

    
    

16. Although PNH was inspected annually, and some failings regarding charting of medications were discovered and reported, these failings were not sufficient for HRS to deny licensure. Respondent took remedial action to improve the performance of his staff after these inspections.

    
    

17. No evidence was introduced that there were significant departures from the standards of care established by the applicable rules and regulations or prevailing professional standards in the care of other patients. At the time the HRS personnel investigated Mrs. Tuthill's case, they did not investigate other patient files.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Nursing Home Administrators has authority to discipline the Respondent, who is its licensee, pursuant to Chapter 468, Florida Statutes.

    
    

19. The Board charges Respondent with violation of Rule 10D-29.38(1), (4), (8), (14) and (16), Florida Administrative Code, and also Section 468.1755(1)(k) and (m), Florida Statutes. Rule 10D-29.38, Florida Administrative Code, provides as follows:

    
    

    The administrator of each skilled nursing care home and each intermediate nursing care home, shall designate one registered nurse currently licensed in the State of Florida as director of nursing services who shall be responsible for nursing care of all patients and for the direction of adequate and accurate nursing practices in the home and shall serve only one home

    in this capacity. . . (Emphasis supplied.)

    
    

20. The record shows that Respondent did appoint a nursing director who was responsible for patient care and adequate and accurate nursing practices. Subparagraphs (1), (4), (8), (14) and (16) of Rule l0D29.38, Florida Administrative Code, are concluded to be applicable to the duties and responsibilities of the director of nursing, not the nursing home administrator. The Respondent is not guilty of their violation.

    
    

21. Section 468.1755(1), Florida Statutes, provides that violating Subparagraphs (k) and (m) shall be grounds for discipline. These subparagraphs provide as follows:

    
    

    (k) Repeatedly acting in a manner inconsistent with the health and safety of the patients of the facility in which he is the administrator.

    * * *

    (m) Has willfully or repeatedly violated any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes.

    
    

22. Subparagraph (k) states that the nursing home administrator must repeatedly act in a manner inconsistent with the health and safety of the patients of the facility where he is the administrator. While there is evidence that certain deficiencies occurred in maintaining Mrs. Tuthill's patient records, keeping of those records is the responsibility of the treating nurses. Their supervisor is responsible to ensure the nurses do their jobs. Such staff failings reflect adversely on the administrator if it is demonstrated that he bad knowledge of the situation and did not take effective administrative action to correct the deficiencies.

    
    

23. In this case there was no showing that Respondent had any knowledge of Mrs. Tuthill's case or the deficiencies noted until after her transfer. The failure to chart properly is not an error which an administrator can be expected to discover through personal inspections of a facility. After the Tuthill case was brought to his attention and after annual inspections, Respondent took administrative action to have the staff instructed on what records should be kept and to have his director of nursing inspect the records. This is appropriate remedial action by an administrator. The administrator must rely on his staff and cannot properly perform his duties if he attempts to perform all of the technical services of patient care by himself.

    
    

24. Unlike several cases cited by the Board in which HRS inspectors revealed many dirty patients, dirty rooms and generally poor conditions readily apparent to even a casual observer, this case involves the discovery of failure to keep proper records, many of which required knowledge of a doctor's orders, knowledge of appropriate treatment, and professional judgment. Beyond the legal duty to appoint staff directors and to coordinate the nursing home's activities, the administrator has the duty to be vigilant and to be aware of what is occurring in the home. However, in this instance the deficiencies were not items which an administrator could discover through an inspection of the facility. It would take a detailed inspection of the patient records and some professional training or knowledge to determine the adequacy and completeness of patient records. This is not the responsibility of the administrator to discover but is his responsibility to remedy.

    
    

25. Wherefore, it is concluded that Respondent is not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Rubin Padgett, is found not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes, it is recommended that the Administrative Complaint against him be dismissed.

DONE and ORDERED this 13th day of July, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 13th day of July, 1982.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

517 East College Avenue Tallahassee, Florida 32301

Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard

Tampa, Florida 33602

Mildred Gardner, Executive Director Board of Nursing Home Administrators

130 North Monroe Street Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002686

Orders for Case No: 81-002686