STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3555

)

DENA WADZINSKI, R.T.T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Carolyn S. Holifield, held a formal hearing on the above-styled case on October 25, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Kevin W. Crews, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Grover C. Freeman, Esquire

Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether the Respondent violated Section 468.365(1)(p), (u), and (w), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice respiratory therapy.

PRELIMINARY STATEMENT

By Administrative Complaint filed June 26, 1995, Petitioner, the Agency for Health Care Administration, charged that the Respondent, Dena Wadzinski, R.T.T., violated Sections 468.365(1)(p), (u), and (w), Florida Statutes. Specifically, the Administrative Complaint alleges that the Respondent was guilty of the following: (1) gross or repeated malpractice or the failure to deliver respiratory care services with the level of care which is recognized by a reasonably prudent respiratory therapist with similar professional training as being acceptable under similar conditions and circumstances; (2) performing professional services which were not duly ordered by a physician and which were not in accordance with established hospital protocol; and (3) failing to keep written respiratory care records justifying the reason for the action taken.

Respondent denied the allegations and timely requested a formal hearing.

By letter dated July 10, 1995, the matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer.

At the beginning of the hearing, Respondent challenged the Petitioner's jurisdiction to prosecute this matter, asserting that the agency is unconstitutionally comprised. The Hearing Officer acknowledged that the issue is pending before the Florida Supreme Court, noted Respondent's reservation with regard to the agency's constitutionality, and proceeded with the formal hearing.

At hearing, Petitioner presented the testimony of seven (7) witnesses: Respondent, Dena Wadzinski, R.T.T.; Sandra Smith, R.R.T, expert witness: Daniel Schwartz, M.D.; Ashok Modh, M.D., expert Witness; Claire Glade, R.N.; Jan Sweetman, R.N.; and Steve Horne. Petitioner offered six (6) exhibits, five of which were accepted into evidence.

Respondent presented the testimony of nine (9) witnesses: Dena Wadzinski R.T.T., Respondent; James Wadzinski, C.R.T.T.; Daniel Schwartz, M.D.; Hernando Bernal, M.D.; Dolores Alverez; Kathy Fernandez; Victor Alteri, R.T.T.; Sheryl Diaz, R.N.; and Tammy Laurito, R.T.T. Respondent offered two (2) exhibits which were accepted into evidence.

The transcript of the hearing was filed on November 13, 1995. Proposed findings of fact and conclusions of law were filed by both parties on November 27, 1995. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Dena Wadzinski (Respondent), was at all times material hereto licensed as a certified respiratory therapist in the State of Florida, having been issued license number TT 0005509. She has been licensed to practice as a respiratory therapist since November 1990.

   
   

2. Respondent was employed as a respiratory therapist by University Community Hospital (UCH) as a respiratory therapist in November 1993, working three twelve (12) hour shifts per week. Respondent worked continuously at UCH until January 6, 1995, when she went on maternity leave for eight weeks.

   
   

3. On March 3, 1995, Respondent returned to her position as respiratory therapist at UCH. Respondent reported to work at approximately 6:25 a.m., and proceeded to the conference room where respiratory therapists receive their work assignments. Steve Horne, supervisor of respiratory therapist at UCH, assigned Respondent to the progressive care unit at UCH designated 3 North. Respondent was scheduled to work a twelve hour shift, from 7:00 a.m. to 7:00 p.m.

   
   

4. At the time Mr. Horne gave Respondent the assignment, he apologized for having to assign her to 3 North on her first day back from maternity leave. 3 North, sometimes referred to as the "hell floor," is a very busy unit. This progressive care unit has ventilator patients and those classified as DNR (do not resuscitate). While the patients on 3 North do not meet the criteria for admission to an intensive care unit, they are too ill to be on a regular floor. Due to their conditions, these patients often require more attention from the respiratory therapists than patients on regular floors.

5. After receiving her floor assignment, Respondent remained in the conference room and waited for Lisa McClure, the respiratory therapist assigned to 3 North on the preceding shift. At UCH, the normal procedure was for a respiratory therapist completing a shift to meet with the respiratory therapist who was relieving her to give a report regarding the patients on the assigned floor.

   
   

6. Typically, the meeting between the respiratory therapists would take place at the time one shift began and the other shift ended. In light of this, given the assigned shifts of Respondent and Ms. McClure, the meeting should have occurred around 7:00 a. m. on March 3, 1995. However, Ms. McClure did not arrive at the conference room to give Respondent the report until approximately 7:35 or 7:40 a. m. After receiving a brief generalized report from Ms. McClure, Respondent reported to 3 North.

   
   

7. Although Respondent was excited about returning to work, she was anxious about her first day back on the job. As to her mental state, Respondent was "overwhelmed," felt pressured to complete all her assigned job responsibilities, and "just wasn't in sync." Except for the maternity leave, since becoming a respiratory therapist, Respondent had never been away from the job for such an extended period of time. Also, this was the first time Respondent had been away from her baby since he was released from the hospital.

   
   

8. Upon arriving at 3 North, Respondent went to the nurse's station, where she picked up her first chart and read an order for Patient F.P. Respondent admitted that she did not read the entire chart, nor did she look at any other charts at the nurse's station.

   
   

9. Respondent reviewed the physician's March 3, 1995, order for Patient

   F.P. The order, written by Dr. Ashok Modh, indicated that Patient F.P. was to be placed on a trach collar with 40 percent oxygen from 8:00 a.m. to 8:00 p.m., as tolerated by the patient. Patient F.P. was on an intermittent mechanical ventilator rate (IMV) of 6 and PS of 10 from 8:00 p.m. to 8:00 a.m., the evening before. The IMV indicates the amount of breaths a ventilator gives the patient and the PS indicates the patient's own breaths. The ventilator actually counts all the breaths a patient takes regardless of how those breaths are achieved. The order Respondent reviewed on March 3, 1995, is consistent with Patient F.P. having been off the ventilator on previous days.

   
   

10. The ventilator order for Patient F.P. indicated that the patient's ventilator settings should be as follows: tidal volume of 700, respiratory rate of 6 breaths per minute, and an inspired oxygen concentration of 40 percent.

    
    

11. After reviewing Dr. Modh's order and leaving the nurse's station, Respondent turned left instead of right, and entered the room of Patient L.A. rather than the room of Patient F.P. Respondent believed she was in Patient F.P.'s room.

    
    

12. Patient L.A. was seriously ill upon re-admission to UCH on December 6, 1994. Patient L.A. had a history of an abdominal aortio aneurysm, chronic obstructive pulmonary disease, and possible congestive heart failure and cerebrovascular disease. Patient L.A. was expected to live only a few weeks to a few months. Due to the Patient L.A.'s condition and prognosis, at the family's request, the patient was in a DNR (do not resuscitate) status.

    
    

13. Patient L.A. was ventilator dependent without prospect of weaning. During the entire time he was at UCH, except for the brief time periods when the

    hospital staff attempted to wean him, Patient L.A. was on a ventilator. All attempts to wean Patient L.A. were unsuccessful.

    
    

14. On the morning of March 3, 1995, Patient L.A.'s condition prevented him from being able to breathe without the assistance of a ventilator.

    
    

15. On March 3, 1995, the physician's orders for Patient L.A. included the following ventilator settings: tidal volume of 750, respiratory rate of 22 breaths, and an inspired oxygen concentration of 50 percent.

    
    

16. Patient L.A. was one of the patients on 3 North whom Respondent was assigned to care for on March 3, 1995. This was the first time that the Respondent had cared for Patient L.A.

    
    

17. When Respondent entered Patient L.A.'s room, Nurse Glade was in the room near the medicine cabinet located in the patient's room. The two engaged in small talk, including some conversation about Respondent's baby. Respondent and Nurse Glade did not engage in any formal discussion regarding Patient L.A. or his condition.

    
    

18. Respondent looked at Patient L.A. (thinking he was F.P.) and introduced herself. Patient L.A. did not acknowledge Respondent's presence, but just looked around the room. Respondent indicated to Nurse Glade that she was going to begin weaning the patient, although it is unclear whether Nurse Glade heard Respondent. After the statement by Respondent, Nurse Glade indicated that she would get the patient something to relax him because "he gets this way". Nurse Glade was referring to Patient L.A.'s apparent restlessness. However, in her conversation with Respondent, Nurse Glade did not specify the medication she intended to administer to Patient L.A.

    
    

19. On the morning of March 3, 1995, Nurse Glade administered a shot of morphine to Patient L.A. sometime prior to Respondent removing the patient from the ventilator. However, the Respondent neither observed Nurse Glade administering the medication to Patient L.A. nor was Respondent aware of the type of medication Nurse Glade intended to or actually administered to the patient.

    
    

20. Respondent left the Patient L.A.'s room for less than a minute to obtain trach collar, tubing, and oxygen from the supply closet down the hall. Respondent returned to Patient L.A.'s room and spoke to him briefly. Because Respondent noticed no secretions, she did not suction the patient. Respondent listened to the patient's breath sounds. The breath sounds were wheezy, but this was not unusual in a patient with chronic pulmonary disease.

    
    

21. Still believing she was treating Patient F.P., Respondent looked at the ventilator and noticed a rate of 22. Based upon the fact Respondent knew

    F.P. was on an IMV of 6 per Dr. Modh's order, she concluded that the Patient

    L.A. was breathing 18 breaths on his own and thus was doing well. Considering all these factors, Respondent had no reason to believe that the Patient L. A. was not a proper candidate to wean from the ventilator.

    
    

22. After assessing the patient, Respondent removed Patient L.A. from the ventilator and placed the trach collar on his neck. Respondent then hooked the tubing on the collar and then to the oxygen from the wall which was placed on 40 percent per Dr. Modh's order. Respondent observed the patient for approximately one minute after the ventilator was removed. Respondent then asked Nurse Glade who was in the room, whether she would be in the room for a few minutes, because

    Respondent wanted to go across the hall to begin work on another patient. After Nurse Glade indicated that she would be in the room, Respondent proceeded to the patient's room across the hall. Respondent did not anticipate a problem with leaving the patient because she believed that he had been previously weaned from the ventilator.

    
    

23. Assuming that Respondent was carrying out the order on the correct patient, there is no specific time for which a respiratory therapist must remain with a patient after performing a procedure.

    
    

24. About five minutes after leaving Patient L.A.'s room, Respondent heard someone call for respiratory. Having determined that the call was coming from Patient L.A.'s room, Respondent immediately went to the room where she found several nurses, one of whom was ambuing him. Respondent took over the ambuing from the nurse and proceeded to give Patient L.A. 100 percent oxygen.

    
    

25. Dr. Modh, Patient L.A's pulmonary consultant, later arrived to assess the situation. At that time Respondent told Dr. Modh that she was weaning the patient, and "He didn't handle it". Dr. Modh responded, "Doing treatment?" Respondent then repeated, "No, I was weaning him". It was only at this point that Respondent learned that she had been treating Patient L.A., and not Patient F.P.

    
    

26. When Dr. Modh entered Patient L.A.'s room, the patient was in agional cardiac rhythm, a cardiac rhythm which indicates the heart is dying. Dr. Modh ordered Epinephrine for Patient L.A., but when that was not successful, further efforts to resuscitate the patient were discontinued due to Patient L.A.'s DNR status. Patient L.A. was pronounced dead at 8:32 a.m. on March 3, 1995.

    
    

27. Respondent went to speak with her supervisor and the risk manager, who instructed her to fill out an incident report. Several attempts were made by Respondent to complete an incident report, but her initial incident forms were too lengthy. Respondent was instructed to be short and to the point.

    
    

28. Respondent was also directed to complete her charting before she left for the day. Respiratory therapists at UCH must use a computer to do their charting. Respondent sought assistance from Mr. Suggs, of UCH's Risk Management office. In order for a respiratory therapist to chart patient information, a therapy procedure must first be coded into the computer. Because Patient L.A. was to have received an aerosol treatment, Respondent entered an aerosol treatment for Patient L.A. The comment section of the form is limited to three lines. Respondent did not use all the available space, but believed that what she wrote adequately described the treatment she provided Patient L.A. The entry made by Respondent read as follows:

    
    

    "PLACED ON TRACH COLLAR AT 40 percent

    PT DID NOT TOL MORE THAN 5 MIN, PT AMBUED DR, NOTIFIED"

    
    

29. At the time Respondent completed the incident report and charted the information on Patient L.A., she was extremely upset. Prior to March 3, 1995, Respondent had never been involved in a situation that required an incident report.

    
    

30. Petitioner contends that the medical record prepared by Respondent concerning the events that transpired following the removal of Patient L.A. from the ventilator were inadequate. Specifically, Petitioner contends that

    Respondent should have included whether Respondent was in the room when Patient

    L.A. began to experience respiratory distress and a more detailed description of the patient's condition when Respondent was in the room. Further, it was asserted that Respondent's medical records do not indicate why the Respondent removed Patient L.A. from the ventilator.

    
    

31. On March 3, 1995, UCH had established protocols for mechanical ventilation which included criteria for weaning a patient from mechanical ventilation. The document entitled "Mechanical Ventilation (General Consideration)" provide in part the following:

    
    

    Among the criteria for weaning from mechanical ventilation are:

    1. Therapist confirms order with RN before weaning process.

    2. Therapist checks room number and patient's wrists band before weaning.

    3. The patient's pathophysiological (clinical) condition which was responsible for his being placed on the ventilator has either resolved or is resolving.

    4. The patient while on the ventilator should have an inspired oxygen concentration of less than 40 percent (with good blood gases), should have an inspiratory effect greater than -20 centimeters water pressure, and lungs should be relatively clear.

       
       

32. The protocols are "general guidelines and are not meant to be rigid and apply to every case." Some of the guidelines listed in the protocols related to weaning are variable and are not used as strict criteria for electing to start or discontinue mechanical ventilation of a patient. For example, the protocol calls for a patient to have an inspired oxygen concentration of not less that 40 percent. However, an oxygen concentration of 50 would not necessarily disqualify a patient from being removed from a ventilator.

    
    

33. There are three criterion which must be followed when disconnecting a patient from a ventilator. The respiratory therapist must look at the order in the chart, properly identify the patient, and assess the patient's status.

    
    

34. Prior to removing Patient L.A. from the ventilator, Respondent reviewed the order for Patient F.P. However, Respondent admitted that she did not check the patient's room number and bracelet as required by the UCH protocol for weaning or removing a patient from the ventilator. Respondent assumed that she was in the room of Patient F.P., when she was actually in the room of Patient L.A. She observed no significant secretions which warranted suctioning, and Patient L.A. did not appear to be in any breathing distress. Respondent listened to Patient L.A.'s breath sounds which seemed consistent with the documented lung disease.

    
    

35. Based upon Respondent's assessment and observations, Patient L.A. appeared to be a standard ventilator patient and a suitable candidate for weaning. In the instant case, given her observations and assessment, Respondent had no reason to question the physician's orders in regard to moving the patient from the ventilator. Therefore, Respondent removed Patient L.A. from the ventilator.

36. Respondent did not follow established hospital protocol when she removed Patient L.A. from the ventilator. Specifically, Respondent failed to check the room number and the patient's wristband before weaning him from the ventilator.

    
    

37. Respondent has not worked as a respiratory therapist since March 3, 1995. Although, UCH has never officially terminated Respondent, she has not been allowed to return to work. As a result, Respondent and her family have suffered financial hardship. Before this case, Respondent had practiced respiratory therapy for over four years with no history of any disciplinary action being taken against her license. Furthermore, Respondent has never been disciplined or admonished by a hospital.

    
    

38. Respondent enjoys a reputation as an excellent respiratory therapist among health care professionals, including physicians, administrators, and other respiratory therapists. As a licensed respiratory therapist, Respondent was an exemplary employee with excellent skills and knowledge of respiratory care services.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.

    
    

40. Pursuant to Section 468.365(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license to practice respiratory therapy of any respiratory care practitioner or respiratory therapist found guilty of the acts enumerated in Section 468.365(1), Florida Statutes.

    
    

41. Section 468.365(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts constitute grounds for which disciplinary actions in subsection

    2. may be taken:

    * * *

    (p) Gross or repeated malpractice or the failure to deliver respiratory care services with that level of care, skill, and treatment which is recognized by a reasonably prudent respiratory care practitioner or respiratory therapist with similar professional training as being acceptable under similar conditions and circumstances.

    * * *

    (u) Failing to keep written respiratory care records justifying the reason for the action taken by the certificate holder or registrant.

    * * *

    (w) Performing professional services which have not been duly ordered by a physician licensed pursuant to Chapter 458 or Chapter

    459 and which are not in accordance with protocols established by the hospital, other

    health care provider, or the board, except as provided in ss. 743.064, 766.103, and 768.13.

    
    

42. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 458.331(1), Florida Statutes, by clear and convincing evidence. Ferris V. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

    
    

43. Count I of Petitioner's Administrative Complaint alleges that Respondent violated Section 468.365(1)(p), Florida Statutes, by inappropriately disconnecting Patient L.A.'s ventilator, resulting in the patient's death. Respondent admitted committing the act alleged. Therefore, the allegations in Count I are uncontroverted and Petitioner proved that charge by clear and convincing evidence.

    
    

44. Count II of the Administrative Complaint alleges that Respondent violated Section 468.365(1)(w), Florida Statutes, by disconnecting Patient L.A.'s ventilator without orders and without complying with hospital protocol. In the instant case, Respondent admitted that she disconnected Patient L.A. and that her action was based on a mistake, rather than on a physician's order. Moreover, Respondent admitted that she failed to check the room number and the patient's identification bracelet prior to carrying out the order. As a result of Repondent's errors and omissions, she is guilty of the charges set forth in Count II of the Administrative Complaint. Petitioner has proved those charges by clear and convincing evidence.

    
    

45. Count III of the Administrative Complaint alleges that Respondent violated Section 468.365(1)(u), Florida Statutes, by failing to keep written respiratory case records justifying the course of treatment for Patient L.A. In this case, Respondent made a mistake and acknowledged it as such. There being no justification for her course of treatment, it is not clear what information she was supposed to include in the medical reports. Petitioner failed to prove by clear and convincing evidence that Respondent violated Section 468.365(1)(u), Florida Statutes, and, therefore, Count III shall be dismissed.

    
    

46. The disciplinary guidelines of the Board of Medicine found in Rule 59R-74.001(3), Florida Statutes, establish recommended penalties for violations of Section 468.365(1), Florida Statutes. For violations of Section

    468.365(1)(p), Florida Statutes, the rule allows penalties ranging from one year probation with conditions to revocation or denial and an administrative fine from $150.00 to $1,000.00. The range of penalties for violations of Section 468.365(1)(w), Florida Stautes, is from a reprimand to denial or one year suspension and an administrative fine from $100.00 to $1,000.00.

    
    

47. The incident giving rise to the charges in Count I and Count II are identical. Therefore, notwithstanding the determination that Respondent is guilty of the charges alleged in Count I and in Count II, the imposition of penalties is not enhanced. The penalty imposed pursuant to Count II must run concurrently with the imposition of the penalty established for Count I.

    
    

48. Chapter 59R-74.001(1), Florida Administrative Code, requires the Board of Medicine to take into consideration the following factors in determining the appropriate discipline in each case:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the date of the violation;

    5. The number of previous disciplinary cases filed against the certificate holder or registrant;

    6. The length of time certificate holder or registrant has practiced;

    7. The actual damage, physical or otherwise, to the patient;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the certificate holder's or registrant's livelihood;

    10. Any efforts for rehabilitation;

    11. Any other mitigating or aggravating circumstances.

    
    

49. In arriving at an appropriate penalty in the instant case, consideration has been given to the disciplinary guidelines set forth in Rule 59R-74.001(1), Florida Administrative Code. Based on a balancing of these guidelines, an appropriate penalty in this case is the suspension of Respondent's license for a period of eighteen (18) months, the period of suspension beginning March 4, 1995. Furthermore, the period of suspension shall be followed by a one year period of probation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered suspending the license of Respondent, Dena Wadzinski, for a period of eighteen (18) months, to be followed by a one year period of probation, under such terms and conditions as prescribed by the Board of Medicine.

RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of December, 1995.

CARLOYN S. HOLIFIELD

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1995.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3555

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2. - 7. Subordinate or unnecessary to result reached.

8. - 11. Accepted and incorporated.

1. Rejected as not supported by clear and convincing evidence.

2. - 18. Subordinate to result reached.

19. - 27. Accepted and incorporated to extent subordinate and unnecessary.

1. Rejected as not supported by clear and convincing evidence.

2. Rejected as not supported by competent and substantial evidence.

3. - 31. Accepted and incorporated.

32. - 33. Accepted as to Respondent's failure to check room number and patient wristband; remainder rejected as not supported by competent and substantial evidence or clear and convincing evidence.

34. - 38. Accepted and incorporated.

1. Accepted.

2. Accepted as to statement that Respondent required to listen to breath sounds; remainder rejected as not supported by clear and convincing evidence.

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

4. Rejected as not supported by competent and

   substantial evidence or clear and convincing evidence.

5. Accepted.

Respondent's Proposed Findings of Fact.

1. - 20. Accepted and incorporated to the extent not subordinate or necessary.

21. - 23. Accepted and incorporated.

24. Subordinate to the result reached. 25-29. Accepted and incorporated.

30. - 31. Accepted.

32. - 33. Accepted and incorporated.

34. Subordinate to result reached.

COPIES FURNISHED:

Grover C. Freeman, Esquire Freeman, Hunter & Malloy Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

Monica Felder, Esquire Kevin W. Crews, Esquire

Agency for Health Care Administration Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

Dr. Marm Harris, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All 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 consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO. 95-03835

vs. DOAH CASE NO. 95-3555

LICENSE NO. TT 0005509

DENA WADZINSKI, R.T.T.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, February 2, 1996, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order, Petitioner's Exception to the Recommended Order and Respondent's Response to Petitioner's Exceptions to the Recommended Order (Attached as App. A, B and C) in the case of Agency for Health Care Administration, Board of Medicine v. Dena Wadzinski, R.T.T. At the hearing before the Board, Petitioner was represented by Monica Felder, Senior Attorney. Respondent was not present and was represented by Grover C. Freeman, Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

RULING-ON PETITIONER'S EXCEPTION TO CONCLUSION OF LAW

1. The Petitioner takes exception to the Hearing Officer's Conclusion of Law in paragraph 45 of the Recommended Order, wherein the Hearing Officer found that the Respondent did not violate Section 468.365(i)(u), Florida Statutes, by failing to keep written respiratory care records justifying the course of treatment of a patient, in that there could be no justification for the treatment provided by the Respondent that could be placed in the records. The Petitioner argues that the law requires medical records to justify the course of treatment provided to a patient, and if there is no justification, then by definition, the records are inadequate and a violation of Section 468.365(1)(u) occurs. The Petitioner also argues that the medical records must document the mistake hat was made in this case in the course of treatment of the patient to be complete.

   
   

2. The Board adopts the Petitioner's Exception to Conclusion of Law for the reasons stated by the Petitioner, and thus finds that the Respondent violated Section 468.365(1)(u), Florida Statutes, by failing to keep written respiratory care records justifying the-course of treatment of a patient.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 468, Florida Statutes.

   
   

2. The findings of fact set forth above do establish that Respondent has violated section 468.365(1)(p), (w), and (u), Florida Statutes, as charged in the Administrative Complaint.

   
   

3. The Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein, with the exception of the Hearing Officer's Conclusion of Law in paragraph 45, as noted above.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

That the Respondent be suspended for a period of eighteen months, to be followed by a year of probation.

The Board believes that the penalty imposed by the Hearing Officer is appropriate.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 468.365(1)(p), (w), and (u), as alleged in the Administrative Complaint and pursuant to Rule 59R-8,.F.A.C., the Board of Medicine imposes the following:

1. Respondent's license to practice respiratory care in the State of Florida is hereby suspended for a period of eighteen (18) month. Said suspension shall begin March, 4, 1995.

   
   

2. Upon reinstatement, Respondent's license to practice respiratory care in the State of Florida shall be placed on probation for a period of one (1) year, subject to the following terms and conditions:

   
   

   1. Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including 455, 468, and 893, Florida Statutes, and Rules 59R, Florida Administrative Code.

      
      

   2. Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, and at such other times requested by the Committee. Respondent shall be notice by Board staff of the date, time and place of the Board's Probation Committee meeting whereat Respondent's appearance is required. Failure. of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order, and shall subject the Respondent to disciplinary action.

      
      

   3. In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does n6t engage in the active practice of respiratory care in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of respiratory care in Florida.

      
      

   4. In the event that Respondent leaves the active practice of respiratory care in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:

      
      

      1. The time period of probation shall be tolled.

      2. The provisions regarding supervision, whether direct or indirect.

      3. The provisions regarding preparation of investigative reports detailing compliance.

         
         

   5. In the event that Respondent leaves the active practice of respiratory care for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate her ability to practice respiratory care with skill and safety to patients prior to resuming the practice of respiratory care in this State.

      
      

   6. Respondent shall not practice except under the indirect supervision of a registered respiratory therapist (R.R.T.) fully licensed under Chapter 468 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring registered respiratory therapist set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring registered respiratory therapist. Respondent shall have the monitoring registered respiratory therapist with him at his first probation

      appearance before the Board's Probationer's Committee. A failure of the Respondent or her monitoring registered respiratory therapist to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring registered respiratory therapist to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring registered respiratory therapist by the Board's Probationer's Committee, the Respondent shall provide to the monitoring registered respiratory therapist a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring registered respiratory therapist by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring registered respiratory therapist. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring registered respiratory therapist is incorporated herein. The responsibilities of a monitoring registered respiratory therapist shall include:

      
      

      1. Submit quarterly reports, in affidavit form, which shall include:

         1. Brief statement of why the licensee is on probation.

         2. Description of probationer's practice.

         3. Brief statement of probationer's compliance with terms of probation.

         4. Brief description of probationer's relationship with monitoring registered respiratory therapist.

         5. Detail any problems which may have arisen with probationer.

         
         

         Respondent shall be responsible for ensuring that the monitoring registered respiratory therapist submits the required reports.

         
         

      2. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per week.

      3. Review 25 percent percent of Respon- dent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random

      review, the monitoring registered respiratory therapist shall go to Respondent's office once every other month. At that time, the monitoring registered respiratory therapist shall be responsible for making the random selection of the records to be reviewed by

      the monitoring registered respiratory therapist.

      
      

   7. The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's supervisory/monitoring registered respiratory therapist. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed supervising/monitoring registered respiratory therapist. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent

      receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 922-3040 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0750. In order to provide time for Respondent's proposed supervisory/monitoring registered respiratory therapist to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's supervising/monitoring registered respiratory therapist has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervising/monitoring registered respiratory therapist is temporarily approved. In the event that the proposed monitoring/supervising registered respiratory therapist is not approved, then Respondent shall cease practicing immediately.

      Should Respondent's monitoring/supervising registered respiratory therapist be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval. Respondent shall not practice medicine until a monitoring-supervising registered respiratory therapist is approved.

      
      

   8. In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring registered respiratory therapist to be approved by the Board or its Probationer' Committee. Such registered respiratory therapist shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising registered respiratory therapist during those periods of time which Respondent's monitoring/supervising registered respiratory therapist is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring registered respiratory therapist or the direct supervision of the alternate supervising registered respiratory therapist, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring/supervising registered respiratory therapist. Respondent shall not practice unless he is under the supervision of either the approved supervising/monitoring registered respiratory therapist or the approved alternate.

      
      

      1. Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

         
         

         1. Brief statement of why registered respiratory therapist is on probation.

         2. Practice location.

         3. Describe current practice (type and composition).

         4. Brief statement of compliance with probationary terms.

         5. Describe relationship with monitoring/supervising registered respiratory therapist.

         6. Advise Board of any problems.

m. Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing

compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 4th DAY OF March, 1996.

BOARD OF MEDICINE

KATHRYN M. GARRETT, M.D. CHAIRPERSON

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Dena Wadzinski, R.T.T., 8649 Himes Avenue North, Number 1313, Tampa, Florida 33614, Grover C. Freeman, Esquire, 201 East Kennedy Boulevard, Tampa, Florida 33602, Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 6th day of March,1996.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 95-003555

Orders for Case No: 95-003555