n STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4897

)

CAROLLE L. BAYA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on December 18,

1991 in this case which was initiated by an Order of the Deputy Secretary for Health and State Health Officer revoking the license of the Respondent in the practice of midwifery.

APPEARANCES

For Petitioner: William A. Frieder, Esq.

Department of HRS

1323 Winewood Boulevard Building One, Room 497 Tallahassee, FL 32399-0700

For Respondent: Carolle L. Baya, pro se

8025 Baymeadcws Circle E. Apartment #2103 Jacksonville, FL 32i256

STATEMENT OF THE ISSUES

Whether the Respondent committed the acts attributed to her and whether such acts constitute a violation of the statutes and rules.

PRELIMINARY STATEMENT

On July 9, 1991, the Deputy Secretary for Health issued an Order revoking the license of the Respondent to

practice midwifery. That Order noticed the Respondent of her right to request a formal hearing on the issues, and she timely requested such a hearing.

On August 19, 1991, a hearing was held to consider the Petitioner's Motion to Dismiss the Respondent's request for a hearing, denominated by the Petitioner as a "Petition". It was determined by an Order of that date that the Department of Health and Rehabilitative Services was the Petitioner and that Ms. Baya

was the Respondent; and the constitution prohibits requiring the Respondent to provide more than a general denial of the changes. That Order directed that the style be altered.

After several continuances, the final hearing was

held. At that hearing, the petitioner called Sharon Nixon of the Bureau of Vital Statistics and Ann M. Richter of the Petitioner's Regulatory Staff. The Petitioner introduced four (4) exhibits, which were received into the record. Ms. Baya's daughter, Holly Baya, testified regarding her mother's activities which were run from Ms. Baya's house, where her daughter lived. Neither party filed proposed findings and a transcript was not ordered.

FINDINGS OF FACT

1. Carolle L. Baya is a licensed lay midwife holding a license issued by the Petitioner.

   
   

2. Exhibit 1 is a composite of certified copies of

   birth certificates of babies at whose births Ms. Baya attended. Ms. Baya was very late on over 17 occasions in initiating the registration of the birth of a child whom she had delivered. On two additional occasions, she was so late that a delayed certificate of birth had to be prepared.

   
   

3. Frances Friedl was seen by Dr. Sudesh Metah, M.D.,

   at the hospital on April 9, 1988, at 8:30 a.m., for delivery of her first baby. She had been admitted through the emergency room and referred to obstetrics where Dr. Metah was the on-call doctor. When initially seen at the hospital, Ms. Friedl was in active labor. From the admission notes prepared by the labor and delivery nurse, Ms. Friedl started labor between 5:00 and 6:00

   p.m. on April 8, 1988; and her water broke about 12:30 a.m. on April 9, 1988.

   
   

4. Ms. Baya stated to Dr. Metah when Ms. Friedl was admitted that she had done a pelvic examination at 3:30 a.m. and had determined that Ms. Friedl was in second stage labor. The patient confirmed this information. Although Ms. Friedl had been and was pushing, the birth of the baby had not and was not progressing.

   
   

5. At 8:30 a.m. when the doctor saw her, she was fully dilated and the baby had not descended into the birth

   canal. Ms. Friedl had remained in second stage labor over four

   1. hours before admission to the hospital.

      
      

6. Dr. Metah considered two (2) hours of second stage labor long enough, with medications, epidural anesthesia, and with progress towards delivery by the patient. Dr. Metah considered three (3) hours to be the maximum for a woman to remain in second stage labor without medical intervention.

   
   

7. Dr. Metah had to rotate the baby, who was in a vertex posterial presentation, in order for the baby to be

   delivered. The baby was a female, 7 pounds, 5-1/2 ounces, with Apgars of 9-10 or 9-9. 1/ She was born 1-1/2 hours after the

   mother's admission to the hospital. The baby was delivered as soon as possible at the hospital.

   
   

8. Ms. Baya did not transport Ms. Friedl to the

   hospital until four hours after Ms. Friedl was fully dilated and in second stage labor.

   
   

9. Annette Louise Zivkovic was admitted to Memorial Medical Center emergency room with obstetric complications in

   active labor. Her physician, Dr. Sager, was present when she was admitted. Ms. Baya, her midwife, was also present when Ms.

   Zivkovic was admitted.

   
   

10. Admission notes state that Ms. Baya assisted the patient for three hours but that the patient was unable to deliver. Dr. Sager was present at admission and performed a vaginal examination. He determined that Ms. Zivkovic was dilated to "Station 4."

    
    

11. The patient stated that she was very scared and her arms and legs were stiff when she had contractions. The

    patient was unable to push effectively and assist in delivery.

    
    

12. The admission notes indicate she was in active

    labor three hours before being taken to the hospital. The Labor and Delivery Summary indicates that the patient was admitted at 4:25 p.m. on January 2, 1989. She was delivered at 4:41 p.m.

    She had been in labor since 1:00 p.m.

    
    

13. There is no evidence that Ms. Baya knew that Ms. Zivkovic was staining or that she did not have Ms. Zivkovic assessed.

    
    

14. The Petitioner's expert midwife, Ms. Richter, testified. A delay of over two hours in referring a patient who was in active labor and had not delivered was unprofessional conduct.

    
    

15. Karen Evans was admitted to the hospital via the emergency room and delivered by C-section by Dr. Wooden because the baby was in fetal distress. When delivered, the baby's head was molded into the pelvis. A bad odor from the uterus indicated interuterus infection. Ms. Evans had a high white blood count which was consistent with an infection.

    
    

16. Ms. Evans reported to the doctor that she had been leaking fluid for two weeks.

    
    

17. Ms. Evans was admitted to the hospital by the emergency squad, who had been requested by Ms. Baya. The doctor stated that the midwife called the medical squad when she realized that she had a complicated patient in labor with fetal distress.

    
    

18. Ms. Evans' labor-began at 10:30 a.m., according

    to Ms. Baya's reports to the patient; and Ms. Evans was admitted to the hospital at 10:30 p.m. for emergency delivery of the baby

    by C-Section. The baby was delivered approximately 1-1/2 hours later, at 11:57 p.m.

    
    

19. The Petitioner's medical expert's opinion was

    that Ms. Evans should have been referred when it was determined that her water was leaking and should have been referred to the doctor long before she had been in active labor for 12 hours.

    There was no evidence that Ms. Baya knew or should have known that Ms. Evans was leaking ambiotic fluid.

    
    

20. The baby's head being molded into the pelvis is a sign of prolonged labor.

    
    

21. There is evidence that Ms. Baya knew that Ms. Evans had been in active labor for over 12 hours.

    
    

22. There is no evidence that Ms. Baya knew that Ms. Evans had unexplained vaginal bleeding.

    
    

23. There was no credible evidence that Ms. Baya

    failed to do metabolic screening on M.K. 2/ failed to provide accurate information on the birth certificate of M.K.'s child; or provided care to M.K., who was at high risk.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57, Florida Statutes.

    
    

25. The Petitioner charges that Ms. Baya violated Section 467.203(1)(d),(e),(f),(g), and (i), Florida, Statutes, which provides as follows:

    
    

    1. Making or filing a false report or record, which the licensee knows to be false; intentionally or negligently failing to file a report or record required by state or federal law; or willfully impeding or obstructing such filing or inducing another to do so. Such reports or records shall include only those which are signed in the midwife's capacity as a licensed midwife.

    2. Advertising falsely, misleadingly, or deceptively.

    3. Engaging in unprofessional conduct, which includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice of midwifery as established by the department, in which case actual injury need not be established.

    4. Being unable to practice midwifery with reasonable skill and safety to patients by reason of illness; drunkenness; or use of drugs, narcotics, chemicals, or other materials or as a result of any mental or physical condition. A midwife affected under

       this paragraph shall, at reasonable intervals, be afforded an opportunity to demonstrate that he can resume the competent practice of midwifery with reasonable skill and safety.

       (i) Willfully or repeatedly violating any provision of this chapter, any rule of the department, or any lawful order of the department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued-subpoena of the department.

       
       

26. There was no evidence that Ms. Baya advertised in any fashion. She did not violate Section 467.203(1)(e), Florida Statutes.

    
    

27. The only evidence of Ms. Baya's alleged abuse of alcohol or drugs is in the deposition of Karen Cooper. This witness was in Jacksonville, Florida, and there was no reason given why she could not attend the hearing. Although her deposition was received at the hearing, the credibility of this witness could not be assessed. Her deposition testimony falls short of saying that Ms. Baya practiced under the influence. She says that Ms. Baya had "hangovers" which interfered with her providing prenatal care.

    
    

28. The Petitioner did prove that Ms. Baya was late in filing birth certificates, and this constitutes a violation of Section 467.203(1)(d), Florida Statutes. She did this on 19 occasions which constitutes a violation of Section 467.203(1)(i), Florida Statutes.

    
    

29. The Petitioner proved that Ms. Baya was late on three occasions in referring patients to the doctor when the patients' labor was delayed. This conduct is contrary to minimal standards of practice, and violates Section 467.203(1)(f), Florida Statutes.

    
    

30. The Petitioner failed to prove that Ms. Baya failed to refer patients in a timely fashion after their water broke or leaked because the Petitioner failed to prove that Ms. Baya knew that Ms. Evans' water leaked. In the other case involving the patient's water, it broke as part of labor. Although Ms. Baya delayed in referring the patient, this was covered in the violations discussed above and constituted one of the incidents of unprofessional conduct.

    
    

31. Similarly, the Petitioner did not show that any of the patients had any unusual vaginal-bleeding or that Ms. Baya knew that they had any unusual vaginal bleeding.

    
    

32. The Petitioner did not prove that Ms. Baya's records were incomplete or that she failed to refer patients for checkups.

33. The facts show a pattern of treatment of patients

    which indicates that Ms. Baya is not taking care of patients in a professional manner. There is some innuendo this may be because her practice is impaired by alcohol or drug abuse.

    
    

34. The Petitioner has proven multiple violations of the statutes and repeated violations of individual standards. This is not the first disciplinary action taken against Ms. Baya. Section 467.203(2) provides:

1. When the department finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

   1. Refusal to approve an application far licensure.

   2. Revocation or suspension of a license.

   3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

   4. Issuance of a reprimand.

   5. Placement of the midwife on probation for such period of time and subject to such conditions as the department may specify- including requiring the' midwife to submit to treatment; undertake further relevant education or training; take an examination; or work under the supervision of another licensed midwife, a physician, or a nurse midwife licensed under chapter 464.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that:

1. The Petitioner revoke the license of the Respondent; and

   
   

2. The Petitioner suspend the revocation upon demonstration by Ms. Baya that she has taken refresher courses in midwifery and can practice safely and in accordance with all applicable statutes and rules.

DONE AND ENTERED this 17th of February, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 17th day of February, 1992.

ENDNOTES

1/ Both 9-10 and 9-9 are recorded as Apgar scores at different places in the notes and testimony. These are good scores indicating a healthy baby.

2/ This patient was identified by initials in the order of revocation issued by the Petitioner, but no evidence was introduced indicating a patient with those initials, or if it was introduced in the documents presented, the Petitioner's counsel did not draw the Hearing Officer's attention to it.

COPIES FURNISHED:

Sam Power, Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

William A. Frieder, Esq. Department of HRS

1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

Carolle L. Baya

8025 Baymeadows Circle E. Apartment #2103

Jacksonville, FL 32256

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TOS UBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. AL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. AND EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF STATE OF FLORIDA HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 91-4897 RENDITION NO. HRS-92-38-FOF-HO

vs.

CAROLLE L. BAYA,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of the Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:

In his preliminary statement the Hearing Officer commented that "... the constitution prohibits requiring the respondent to provide more than a general denial of the changes [sic]." This comment is not adopted.

After hearing the evidence, the Hearing Officer concluded that multiple statutory violations were proved, including repeated violations of individual standards, and that there is a history of prior disciplinary action against respondent. Cumulatively, the violations were deemed serious enough to conclude "... that Ms. Baya is not taking care of patients in a professional manner."

After reciting the disciplinary options; to wit: reprimand, probation, fine, suspension, or revocation; the Hearing Officer concluded that the most severe sanction, license revocation, is appropriate in this case. I concur. I find no basis in law for the Hearing Officer's subsidiary recommendation that in the future the revocation could be suspended upon a showing by respondent that she took refresher courses and was able to practice midwifery safely. The subsidiary recommendation is rejected.

Based upon the foregoing, it is

ADJUDGED, that respondent, Carolle L. Baya's license to practice midwifery be REVOKED.

DONE and ORDERED this 16th day of March , 1992, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

William Frieder, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

Carolle L. Baya, pro se

8025 Baymeadows Circle, East Apartment #2103

Jacksonville, FL 32256

Stephen F. Dean Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 19 day of Mar , 1992.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 (904)488-2381

Docket for Case No: 91-004897

Orders for Case No: 91-004897