STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-2338

)

STEVEN ROWITT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on February 4, 1986, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301 For Respondent: Steven Rowitt, pro se

The issue at the final hearing was whether the Respondent should be required to perform under "direct supervision only" in the area of immunohematology (bloodbanking).

PROCEDURAL BACKGROUND

The Petitioner filed an administrative complaint on June 5, 1985. The Respondent disputed the factual allegations contained in Petitioner's administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1983). This cause came on for final hearing on February 4, 1986. Prior to the hearing, the parties entered into pre-hearing stipulations concerning certain findings of fact and recommendations. The findings of fact and recommendations stipulated to by the parties will be incorporated verbatim into this Recommended Order. The

sole remaining issue for determination at the final hearing was whether the Respondent should be required to perform under "direct supervision only" in the area of immunohematology (blood banking) during the period that he is enrolled in a drug treatment program selected by the Department of Health and Rehabilitative Services. The parties have submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OP FACT

Based upon my observation of the witnesses and their demeanor while testifying, the pre-hearing stipulations, the documentary evidence received and -the entire record compiled herein, I hereby make the following findings of fact:

1. During the times material hereto, the Respondent, Steven Rowitt, was licensed as a Clinical Laboratory Technologist in serology, clinical chemistry and hematology, and was employed at Humana Hospital Cypress in Broward County.

   
   

2. On June 27, 1984 and June 28, 1984 tests were performed by Mr. Rowitt and reported to the floor nursing station at Humana Hospital Cypress. No quality control was reported. All specimens had to be repeated by the chemistry supervisor and reported correctly.

   
   

3. From June 25, 1984 through June 29, 1984, Mr. Rowitt did not filter the ACA chemistry analyzer on his shift at Humana Cypress Hospital. Proper operation of the instrument requires that such balancing occur.

   
   

4. On November 19, 1984, Mr. Rowitt typed a patient, in Humana Hospital Cypress, whose blood type was B negative as B positive.

   
   

5. The parties stipulated that the above acts demonstrated consistent errors in the performance of clinical laboratory examinations and procedures or erroneous reporting and could constitute grounds for revocation of Respondent's license pursuant to Chapter 483, Florida Statutes t1983).

   
   

6. The Respondent voluntarily entered treatment for chemical dependency on May 10, 1985 at the Broward Methodone Maintenance Rehabilitation and Research Facility in Hollywood, Florida. The Respondent is presently enrolled in that program and suffers from chemical dependency syndrome. Respondent has shown progress in dealing with the causes of his dependency and

   the prognosis is good that he will detox from the Methodone program and remain drug free.

   
   

7. On May 15, 1985 the Respondent voluntarily sought counseling at the Christian Mental Health Society in Fort Lauderdale, Florida for his chemical dependency problem.

   
   

8. The Respondent's problems in work performance between June, 1984 and November, 1984 were directly related to his chemical dependency. On November 19, 1984, when he mix-typed a patient, Respondent missed a test tube with a drop of anti serum because he was under the influence of drugs at the time.

   
   

9. Immunohematology is the one discipline in the clinical laboratory which can lead to immediate death or irreparable damage to the patient if the tests are inaccurately performed.

   
   

10. Respondent's mistake in mix-typing the patient's blood type as B positive vice B negative could have been life threatening under certain circumstances. However, those circumstances did not exist at the time the error was made.

    
    

11. The Respondent has approximately 10 years experience in the field of medical technology the last 5 years as a clinical laboratory technologist licensed by the State of Florida.

    
    

12. The Respondent voluntarily signed into the chemical dependency unit of Humana Hospital of South Broward during mid- 1984. The Respondent was hospitalized twice in 1984 for this problem. The second hospitalization occurred immediately following his termination from Humana Cypress in December of 1984. The two hospitalizations ended with only minimal success in treating his condition and on May 10, 1985, Respondent entered treatment at the Hollywood Methodone maintenance facility where he continues to receive medication and counseling. The Respondent entered private counseling on May 14, 1985 at the Christian Mental Health Clinic under the care of J. Balicius, M.D., Psychiatrist.

    
    

13. The Respondent has extensive past experience in blood banking and an impressive educational and work history.

    
    

14. The Respondent graduated from Manhattan Medical Assistants School which required laboratory practicals as a part of the graduation requirements. The Respondent's technical school training at Manhattan Medical Assistants School covered the principles of immunology and immunohematology. Those two areas were combined and taught under the general headings of blood banking, blood typing and serology. Respondent has been a Registered Medical Technologist by the Board of Registry of the

    American Medical Technologists. The American Medical Technologists exam is a competency based, criterion reference examination in which 40 of its test questions dealt with the speciality of immunohematology.

    
    

15. The Respondent is a member in good standing of the American Society for Medical Technology and belongs to the Immunohematology Scientific Assembly.

    
    

16. Respondent has taken continuing education programs including three technical workshops presented by the Florida Association of Blood Banks which is the state representative for the American Association of Blood Banks. Respondent has obtained five college level credits in the area of immunohematology and is close to attaining a bachelors degree through Columbia Pacific University.

    
    

17. The Respondent took part in a Medical Technology, Review Seminar held jointly by the Florida State Society for Medical Technology, American Medical Technologists and the Florida Association of Laboratories. One of the major portions of the seminar encompassed immunohematology.

    
    

18. The Respondent has worked as a Blood Bank Technologist at Doctor's General Hospital of Plantation Florida. His responsibilities included the general supervision of the immunohematology bench. The bulk of the bench work was comprised of transfusion services. This included group and RH typing, antibody screening, cross matching and component preparation. Antibody identifications were performed when screens were positive and units cross matched were confirmed to be negative for the corresponding antigen. The hospital had obstetric and neonatal units and the blood bank was called upon to perform

    post-partem and neonatal exchange transfusions.

    
    

19. The Respondent was employed as a full-time staff technologist on the 11 to 7 shift at Cypress Community Hospital. Respondent was in charge of the laboratory transfusion services which included type and screens, cross matching, antibody identification on stat cross matches, and the component preparation for transfusion.

    
    

20. The Respondent also worked with the medical unit of the Broward Correctional Institution for approximately 22 months. Respondent was involved with the opening and organization of the medical laboratory. Respondent received a final evaluation of excellent when he resigned from the Broward Correctional Institution.

21. The Respondent worked for Humana Hospital Cypress, also called Cypress Community Hospital, from November, 1981 to December, 1984. The Respondent's overall work record was excellent at Humana Cypress except for the six-month period when he was experiencing active chemical dependency problems.

    
    

22. The Respondent is presently employed as a Medical Technician at Doctor's Hospital of Hollywood on the 11 p.m. 7

    a.m. shift. If the Respondent were required to have direct supervision while working the blood bank, the Respondent would not be able to cover that area of the laboratory alone, which he presently does and is expected to do.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject of, this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

24. Pursuant to Chapter 483; Florida Statutes (1983), the Department of Health and Rehabilitative Services is charged with the responsibility of regulating and licensing clinical laboratories' and their personnel. The intent of Chapter 483 is aptly stated in Section 483.021 which provides that:

    
    

    "The purpose of this part is to protect the public, health, safety and welfare of the people of this state from the hazards of improper performance by clinical laboratories. Clinical laboratories provide essential services to practitioners of the healing arts by furnishing vital information which is essential to a determination of the nature, cause and extent of the condition involved. Unreliable and inaccurate reports may cause unnecessary anxiety, suffering, financial burdens and even contribute directly to death. The protection of public and individual health requires licensure of clinical laboratories and certain of their employees, the meeting of certain minimal standards, as well as certain other necessary safeguards as authorized by this part."

25. The Department of Health and Rehabilitative Services may deny, suspend, revoke, annul, limit, or deny renewal of a`' license or impose an administrative fine, not to exceed $500 per violation, for the violation of any provision of Chapter 483 or rules promulgated thereunder. The parties have stipulated that the Respondent violated Section 483.201(3) by making consistent

    errors in the performance of clinical laboratory examinations and procedures, and erroneous reporting.

    
    

26. The sole issue for determination at the final hearing was whether the Respondent should work under "direct supervision only" in the area of immunohematology (blood banking) during the period that he is enrolled in the drug treatment program. The parties stipulated to other penalties and restrictions which will be adopted in the recommendations portion of this Recommended Order.

    
    

27. The Respondent has an impressive work history in the area of immunohematology. The Respondent has performed satisfactorily in the field of medical technology for the past ten years with the exception of the six month period in which he was experiencing severe chemical dependency syndrome problems. The severity of the potential harm of the Respondent's violation was indeed great. It is important to note that the Respondent has previously been hospitalized for treatment of his chemical dependency or drug problem without success. In view of such past failure, prudent caution and the overriding concern for the public health, safety and welfare mandated by Chapter 483 dictates that the Respondent should be required to demonstrate rehabilitation from his drug problem before he is allowed to work in the area of immunohematology without supervision. The blood bank is an area in a hospital laboratory where an error in laboratory work could seriously jeopardize a person's life. The Respondent has proven himself to be a very intelligent, bright and capable young man in the field of medical technology. However, the record has shown that his outstanding abilities can be seriously compromised when and if he is under the influence of drugs.

RECOMMENDATIONS

The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows:

1. Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license.

   
   

2. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology.

   
   

3. (There was no agreement as to paragraph 3)

4. Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected.

   
   

5. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program.

   
   

6. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council.

   
   

7. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period.

   
   

8. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening.

   
   

9. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation.

   
   

10. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period.

    
    

11. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License.

    
    

12. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied.

    
    

13. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause."

    
    

14. In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS,

that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first.

DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida.

W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986.

COPIES FURNISHED:

Steven Rowitt

5966 N.W. 28th Street Sunrise, Florida 33313

Harold L. Braynon, Esquire District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Steve Huss, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 4.

2. Adopted in Finding of Fact 10.

3. Adopted in Finding of Fact 9.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Findings of Fact 6 and 7.I

2. Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary.

3. Rejected as subordinate and not supported by competent substantial evidence.

4. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence.

5. Adopted in Findings of Fact 14.

6. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate.

7. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate.

8. Rejected as argumentative.

9. Adopted in Finding of Fact 16.

10. Rejected as legal argument.

11. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.

Docket for Case No: 85-002338

Orders for Case No: 85-002338