STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1782

) MUNROE REGIONAL HEALTH SYSTEM, ) INC., f/k/a BIG SUN HEALTH )

CARE SYSTEM INC., d/b/a ) MUNROE REGIONAL MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 11, 1996, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 North Dale Mabry Highway No. 100 Tampa, Florida 33614

For Respondent: Thomas D. Watry, Esquire

1500 Marquis Two Tower

285 Peachtree Court Avenue Northeast Atlanta, Georgia 30303

STATEMENT OF THE ISSUES

1. Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, he then had an "emergency medical condition," as defined by Section 395.002(8)(a) F.S.

   
   

2. Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, MRMC provided to the patient appropriate "emergency services and care," including an appropriate "medical screening, examination and evaluation," as defined by Section 395.002(9) F.S., and as required by Section 395.1041 F.S., and if not, how shall MRMC be disciplined?

PRELIMINARY STATEMENT

Petitioner Agency for Health Care Administration (AHCA) seeks to impose the maximum disciplinary administrative fine of $10,000 upon MRMC by proof of the allegations contained in its administrative complaint dated March 15, 1996 and more fully described in the following Conclusions of Law.

The parties entered into a Joint Prehearing Stipulation which has been utilized as Hearing Officer (sic: Administrative Law Judge) Exhibit A.

Petitioner presented the testimony of Richard Fuller, R.N., an AHCA investigator, the patient J.B., his wife L.B., and Richard S. Slevinski, M.D. (by deposition), who was accepted as an expert in emergency and general medicine.

Respondent presented the oral testimony of Geraldine Sweeney, R.N., who was accepted as an expert in hospital emergency nursing, Respondent MRMC's Administrator and Chief Executive Officer Paul Clark, and Barry Kaplan, M.D. (by deposition), who was accepted as an expert in neurosurgery and general medicine.

AHCA presented AHCA Exhibits A-1 through A-3, all of which were attached to the deposition of Dr. Slevinski. MRMC presented MRMC Exhibits 1 through 3 attached to the deposition of Dr. Kaplan, and MRMC Exhibit 4, offered for demonstrative purposes only.

Provision was made for counsel to confer post-hearing and redact personal patient information from all exhibits prior to those exhibits being finally submitted by late-filing.

A transcript of the proceedings was filed in due course. All timely proposed findings of fact and conclusions of law have been duly considered.

The previous obligation to comment on the fact proposals found within the proposed recommended orders through inclusion of an appendix to the recommended order was repealed on October 1, 1996, when Chapter 120, F.S., was amended by Chapter 96-159, Laws of Florida. Therefore, this recommended order has been entered without an appendix

FINDINGS OF FACT

1. At all times material, J.B. was a 42 year old male employee of an Ocala music store. In that capacity, he had been moving pianos for years. As a result, he had experienced neck, shoulder and back pain off and on for years. The pain and stiffness was worst upon awaking in the mornings and frequently required two days' bed rest before he could return to work.

   
   

2. In the week preceding Monday, May 22, 1995, J.B.'s neck and shoulder pain had intensified. On Friday, May 19, 1995, J.B. went to a walk-in clinic, CARE-ONE, because his primary care physician was out of town. He was examined by a physician; x-rays were taken; he was issued a soft cervical collar; and he was prescribed a muscle relaxer and pain medication, both of which are "scheduled" drugs. The CARE-ONE physician also advised him to see a neurosurgeon for further evaluation and treatment.

   
   

3. Despite his use of the prescribed drugs, J.B.'s pain intensified further over the weekend, to the point he was weeping and vomiting on occasion. He also had new pain in his left arm.

4. At all times material, Respondent MRMC in Ocala, Florida, was licensed as a Class I general hospital with an emergency department. MRMC's emergency department handles upwards of 40,000 patient visits annually.

   
   

5. At 8:15 a.m. on Monday, May 22, 1995, J.B.'s wife, L.B., took him to the MRMC emergency department.

   
   

6. The term, "triage", generally refers to a means of sorting and prioritization of patients based on a superficial initial examination to determine how rapidly they will be seen in a mixture of patients who have differentiated complaints.

   
   

7. Emergency department Board-certified physicians established MRMC's medical triage protocols in 1989. In so doing, MRMC has melded the concept of initial patient evaluation and "triage" into one process, and has authorized registered nurses, among other health care professionals, to perform both functions. MRMC's emergency department staff numbers 75 FTEs at all times, plus physician and physician assistant components. Physicians are available on the premises 24 hours a day for any consultation that may be required.

   
   

8. At all times material, Geraldine Sweeney was an MRMC Clinical III Emergency Department Triage Nurse. As such, she maintains 24 hours of continuing education units per years (twice the number required to maintain her

   R.N. license). She also regularly participates in in-service training in emergency department nursing. These courses regularly include neurological topics and she has encountered and assessed numerous neurological cases over her

   16 years in MRMC's emergency department, six of them as triage nurse since MRMC established its dedicated triage system in 1989. Ms. Sweeney has both an associate of arts and an associate of science degree in nursing; is a fully licensed Registered Nurse; and has never had any disciplinary action taken against her license. She was accepted as an expert in hospital emergency nursing.

   
   

9. At formal hearing, J.B. did not remember being seen by any health care professional at MRMC on May 22, 1995. His wife, L.B., was attending to registration procedures with an MRMC admittance clerk in a different room and was not present when J.B. was assessed at MRMC's emergency department on that date, but she knew he was taken to a different room by a female hospital employee whom L.B. presumed to be a nurse. Geraldine Sweeney, R.N., did not recognize J.B. at formal hearing. She has "triaged" at least 1,000 patients since May 22, 1995. However, despite these three witnesses' lapses in memory or lack of opportunity to observe and/or lack of independent recollection, MRMC's documentation for May 22, 1995, in Ms. Sweeney's handwriting and bearing her signature, shows that Ms. Sweeney is the only MRMC health care professional who performed its initial, and only, assessment of J.B. at MRMC on May 22, 1995.

   
   

10. Ms. Sweeney's contemporaneous documentation of her examination of J.B. shows he arrived at MRMC's emergency department at 8:15 a.m. and was "triaged" at 8:15 a.m. She wrote down that subjectively, he presented with a "history of neck problems with spasms; now has pain into left arm; seen at CARE-ONE Friday; had x-rays; given valium and lortab; advised for neurosurgeon." His objective vital signs were recorded by Ms. Sweeney as, "temperature 36.4 C., pulse 62, respiration 20, blood pressure 130/75." No weight was recorded. The only other significant objective triage data Ms. Sweeney recorded was, "Wearing soft collar; ambulates well; grips equal."

11. Ms. Sweeney classified J.B. according to MRMC's physician-established protocols as "Class I, not requiring immediate attention," and he was released from the MRMC emergency department at 8:25 a.m., just ten minutes after his arrival. At that time, he was provided with a written list of other treatment locations to which he could go, including CARE-ONE again, and his personal physician. This list did not name any other hospital emergency department.

    
    

12. Richard S. Slevinski, M.D., is Board-certified in emergency medicine and is director of the emergency department at Baptist Hospital in Pensacola, Florida, which includes a Level II Trauma Center. He was accepted as an expert in emergency and general medicine.

    
    

13. Dr. Slevinski and Nurse Sweeney testified that a loss of function is a significant phenomenon that should have been recorded in a proper evaluation. Ms. Sweeney testified that if J.B. had identified loss of function as a symptom to her or if she had discovered a loss of function during her examination, she would have noted that and followed up with additional tests, but J.B. did not subjectively describe loss of function and she did not objectively observe any loss of function.

    
    

14. Dr. Slevinski and Nurse Sweeney testified that a change in function or location of pain, increase in intensity of pain or recent onset of pain are subjective indicators that should be recorded if related by the patient during an examination and evaluation. Ms. Sweeney testified that she would have recorded any of these subjective symptoms if J.B. had related them to her, but he did not.

    
    

15. Nurse Sweeney also testified that none of the objective vital signs she recorded during her examination of J.B. on May 22, 1995 indicated severe or intense pain. This was corroborated by neurosurgeon Dr. Barry Kaplan. (See Finding of Fact 32)

    
    

16. I accept Dr. Slevinski's expert opinion that as a medical physician, he has found that if a service was provided in an emergency department it should be documented, and that it is the duty of the emergency department professional who performs patient screenings, examinations and evaluations to inquire adequately of a patient to find out what is going on with him or her and to make a chart so that later someone else can read the chart and see what the examiner did, and I reasonably infer from this expert testimony that, absent some strong evidence to the contrary, if a service has not been documented, the service has not been performed. This analysis, however, does not support a finding that

    J.B. actually told Nurse Sweeney on May 22, 1995 that his overall pain or his left arm pain was newly onset, that his pain had intensified, or that his pain was more localized in his left arm. J.B. has described his pain as chronic or recurring over a long period of time in testimony and when he saw Dr. Kaplan, a neurosurgeon, on June 1, 1995 (see Findings of Fact 27, 29), and J.B. can remember nothing about what he told Nurse Sweeney on May 22, 1995. Therefore, this is a situation in which Nurse Sweeney's testimony about what J.B. did not tell her is unrefuted, rather than the classic situation, described by Dr. Slevinski, in which a patient testifies as to what symptoms he told a health care professional and the chart shows the health care professional failed to record what the patient said.

    
    

17. However, upon the evidence as a whole, it is found that no full neurological evaluation of J.B. was done by anyone at MRMC; that Nurse Sweeney did not individually feel each of his fingers to ascertain if he had sensation and similar temperature in each; and that she did not administer any muscle

    resistance tests. Rather, she had J.B. perform a "grip test". This "grip test" is performed by having the patient lift and cross his arms and reach out to the examiner. It tests whether the patient is able to maneuver both his own hands forward and grab onto the examiner's fingers with equal pressure, thereby indicating lack of loss of arm function. The test permits skin to skin contact so that any loss of sensation in the patient's hands or any change or inequality of skin temperature in the patient's hands or digits can be noted by the examiner. Upon her education, training, and experience, Nurse Sweeney thereby determined that J.B.'s grips were equal and his skin was a normal temperature, indicating no loss of function, sensation, or failure in circulation.

    
    

18. Dr. Slevinski testified that, if J.B. had presented his CARE-ONE x- rays to her, Ms. Sweeney should have had the CARE-ONE x-rays read by a qualified physician, preferably a neurologist. Ms. Sweeney denied that J.B. brought his

    x-rays with him to MRMC, stating that if he had done so, she would have recorded that on the assessment form and would have had them read by a qualified physician instead of just recording, "had x-rays," which she had meant to show that J.B. had had x-rays taken the Friday before at CARE-ONE. J.B.'s testimony is clear on this single point to the effect that he had his wife take him to get the CARE-ONE x-rays and had them with him at MRMC. Marion Community Hospital documented that J.B. had the CARE-ONE x-rays with him at that facility at 9:23

    a.m. (See Findings of Fact 24-25) This is corroborative of J.B.'s testimony on this issue. I therefore find that Ms. Sweeney overlooked those available CARE- ONE x-rays as part of her evaluation of J.B.

    
    

19. Dr. Slevinski opined that MRMC, through Nurse Sweeney, did not provide an adequate medical screening examination for J.B.'s presenting complaint on May 22, 1995 because he was not given an appropriately sophisticated neurologic assessment or examination of the involved extremity (left arm) by a physician, preferably a neurologist; because the CARE-ONE x-rays J.B. brought with him were not reviewed by a qualified person; and because his pain was not stabilized. Specifically, Dr. Slevinski faulted Ms. Sweeney's use of a "grips" examination instead of an examination of J.B.'s status of sensation, strength of fingers, or reflex capabilities. He opined that Ms. Sweeney's examination, as documented, was insufficient to rule out that J.B. had a condition that was going to cause him further damage.

    
    

20. It was Dr. Slevinski's opinion that "triage", as generally understood by the community of health care professionals, without more, cannot constitute an adequate or appropriate medical screening, examination, and evaluation.

    
    

21. In Dr. Slevinski's view, severe pain alone qualifies as an emergent or emergency condition until an adequate examination proves that it is not. However, Dr. Slevinski conceded that pain is highly subjective and is only an "emergency medical condition" if the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to the patient's health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts.

    
    

22. Upon further questioning, Dr. Slevinski opined that in general, a medical screening examination or evaluation need not always be done by a physician; that it can be done by a nurse or even a psychological case worker in the appropriate circumstances; and that in some, but not necessarily all patient presentations, there is no reason a triage nurse, within the scope of her license, if authorized to do so by the hospital, cannot perform a medical screening examination simultaneously with triage, although that is not his preference and although that was not appropriate in this case or in all cases.

23. Dr. Slevinski commented also that a failure to correctly diagnose and treat after an appropriate screening, examination, or assessment might subject a hospital or individual health care provider to civil liability but would not violate Chapter 395 F.S.

    
    

24. After J.B., still in pain, had been returned from the examining room, that is, only after Nurse Sweeney had already finished her evaluation of him and determined that he did not have an emergency medical condition requiring further emergency treatment and care, and while J.B. was standing beside L.B. facing the administrative clerk in the registration area of the MRMC emergency department,

    L.B. handed her insurance card to the clerk. The clerk then told L.B. that J.B. could not be treated at MRMC because he did not have either a referral from his primary treating physician or a life-threatening condition. An argument ensued, and L.B. demanded to know where else she could get treatment for J.B. She then drove J.B. directly to Marion Community Hospital's emergency department upon the suggestion of MRMC's admissions clerk.

    
    

25. J.B. was clocked-in at 9:23 a.m. at the emergency department of Marion Community Hospital a/k/a "Columbia" or "HCA", where he was kept for about five hours. He was examined by an in-house neurologist who performed a limited "hands on" physical examination and a neurological examination. His vital signs were taken. He was injected intramuscularly with 30 milligrams of toradol, a "scheduled" pain killer. He was observed and re-evaluated after several hours. Additional x-rays were taken and reviewed by a radiologist who also reviewed the CARE-ONE x-rays J.B. had brought with him. J.B.'s valium and lortab prescriptions were refilled. He was released from Marion's emergency department with instructions to call and schedule an MRI and also to see his own physician and a neurosurgeon.

    
    

26. The only medical "treatment" J.B. received at Marion was for pain. The final result after Marion's extensive and expensive screening examination and evaluation was the same as had occurred at MRMC: that he was released because he had no emergency medical condition requiring further emergency medical treatment in that facility at that time.

    
    

27. Barry Kaplan, M.D., is the Board-certified neurosurgeon who eventually performed successful surgery on J.B. Dr. Kaplan first saw J.B. in his office on July 1, 1995. The length of this visit is not clear on the record. J.B.'s general description to him was that of chronic pain.

    
    

28. Apparently J.B. had gone back to work for part of the time between May 22, 1995 and seeing Dr. Kaplan on June 1, 1995.

    
    

29. On June 1, 1995, Dr. Kaplan did a complete neurologic examination, which included testing J.B.'s muscle actions against resistance. He also felt all of J.B.'s fingers, individually, while asking about sensation in each. These tests revealed only mild weakness or dysfunction in the bicep muscle of J.B.'s left arm and only mild numbness or dysfunction in his left arm. Dr. Kaplan also reviewed an MRI taken of J.B. on May 31, 1995 which demonstrated a chronic arthritic condition of J.B.'s neck, with bone spurs pressing the nerves running to his left arm and spinal cord, which resulted in J.B.'s pain.

    
    

30. In Dr. Kaplan's opinion as an expert in neurosurgery and general medicine, J.B.'s condition on June 1, 1995, could not have developed measurably within the time elapsed since his visit to the MRMC emergency department on May 22, 1995 or even within the last month, because on June 1, 1995, J.B. had no

    acute symptoms of sufficient severity that he then had immediate need of treatment, nor was there any reasonable expectation that lack of treatment could be expected to result in serious jeopardy to his health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts.

    
    

31. On June 1, 1995, Dr. Kaplan believed that J.B.'s condition could be left alone for another four to six months before any permanent injury would occur to his spinal cord, but due to J.B.'s intense and chronic pain and relative youth, he recommended elective surgical removal of certain discs. Dr. Kaplan did the recommended elective surgery at J.B.'s request on July 12, 1995 at MRMC. J.B. has been pain-free since recovery.

    
    

32. Dr. Kaplan's opinion also was that none of the objective vital signs recorded by Nurse Sweeney on May 22, 1995 would be consistent with severe pain.

    
    

33. Although he was aware that Nurse Sweeney did not record giving a numbness test, weakness test, or reviewing x-rays on May 22, 1995, Dr. Kaplan also opined that, "Unless somebody has quadriparesis or complete dysfunction of a part from a cervical disc problem, then it is not an emergent condition . . .

    . Unless they have severe weakness or numbness to go along with the pain, there's no indication for emergency intervention."

    
    

34. Dr. Kaplan's opinion also was that no serious jeopardy could have been incurred by J.B. not receiving further emergency services and treatment beyond MRMC's initial assessment on May 22, 1995.

    
    

35. No health care witness set a minimum time necessary to conduct an appropriate examination. All indicated that the time involved and appropriate tests varied from case to case.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

    
    

37. In its proposals, AHCA contends that only physicians, physicians' assistants and certified advanced registered nurse practitioners can appropriately, and thus legally, examine and evaluate patients in an emergency department and that patients' degree of subjective pain and perceptions of the time involved in emergency department evaluations is significant to "appropriate medical screening, examination and evaluation" as defined by statute. AHCA also has obliquely suggested that any health care facility's delegation of screening duties to other health care professionals or shortness of time (however "shortness" may be defined) spent in such screenings, examinations or evaluations constitutes discrimination on the basis of patients' ability to pay. The Respondent hospital's position is that it has established appropriate medical triage protocols which, in the present case, were properly followed by a registered nurse, and that although the hospital's assignment of personnel and length of time devoted to triage may be impacted by economic considerations, no nexus between those types of administrative decisions and any discrimination in electing not to treat patient J.B. has been demonstrated.

    
    

38. Regardless of the parties' respective concepts of the broader legal or social significance of the events herein, the scope of this proceeding is legally limited to what was charged in the administrative complaint and the facts as they occurred on May 22, 1995.

39. The Respondent hospital is charged in the administrative complaint with "failing to ensure that J.B. was seen by a physician or received a medical screening, examination and evaluation followed by appropriate care or treatment to alleviate his emergency medical condition. The Respondent merely provided a cursory assessment by a triage nurse. The Respondent then referred J.B. to another treatment facility in violation of Section 395.1041(3), Florida Statutes

    . . . . An administrative fine of $10,000 for the above violations of Section 395.1041(3), Florida Statutes, is authorized in Section 395.1041(5), Florida Statutes."

    
    

40. The purpose of Chapter 395 F.S. is to discourage hospital emergency departments from refusing to screen, examine, evaluate, and treat true emergency patients and to prevent their dumping true emergency patients into other emergency treatment facilities due to the patients' inability to pay.

    
    

41. The parties concur that neither Florida's statutes nor their federal parent legislation [42 U.S.C. 1395 (d)(d), a/k/a COBRA] provides any definition of the terms, "medical screening examination" or "medical screening examination and evaluation".

    
    

42. However, at Section 395.002(8)(a) F.S., Florida defines the term, "emergency medical condition" in pertinent part as,

    
    

    A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence

    of immediate medical attention could reasonably be expected to result in any of the following:

    1. [Serious] jeopardy to patient health, ... .

    2. [Serious] impairment to bodily functions.

    3. [Serious] dysfunction of any bodily organ or part. [Emphasis supplied]

       
       

       and at Section 395.002(9) F.S. further defines "emergency services and care" to mean,

       
       

       [M]edical screening, examination, and evaluation [by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician], to determine if an emergency medical condition exists and, if it does,

       the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility. [Emphasis supplied]

       
       

43. In light of the foregoing disciplinary charges and statutory definitions, it is apparent that the oversight agency is concerned here with two different stages of alleged refusal of services: First, that Nurse Sweeney's screening, examination, and evaluation, which itself constitutes emergency services and care, was inadequate, and thus an initial discriminatory failure by MRMC to provide emergency services and care under Section 395.1041(3) F.S.; and second, that MRMC's failure to treat J.B. in some manner after Nurse Sweeney's evaluation had already resulted in a determination of "no emergency medical condition," was a second discriminatory failure of MRMC to provide emergency

    services and care under Subsection 395.1041(3) resulting in an improper transfer under Subsections 395.1041(3) and (5) F.S.

    
    

44. Notwithstanding AHCA's contrary holding in AHCA v. Lake Shore Hospital, Inc. d/b/a Lake Shore Hospital, DOAH Case No. 95-0153 Final Order entered September 6, 1995, I conclude that in a disciplinary proceeding seeking to impose an administrative fine, the agency bears the burden of proof by clear and convincing evidence. See, Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 931 (Fla. 1996).

    
    

45. The agency has not met that stringent burden herein. Clear and convincing evidence requires

    
    

    that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. See, Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956

    (Fla. 1st DCA 1988), citing Slomowitz v.

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

46. The agency's reliance upon Section 464.003 (3)(a) and (3)(d) F.S. so as to prevent registered nurses from performing screenings, examinations, and evaluations under physician supervision is obscure and unpersuasive as a legal argument and factually unsupported herein even by the testimony of its own expert, Dr. Slevinski. (See Findings of Fact 7 and 22)

    
    

47. Clear and convincing evidence also has not been presented in this cause with regard to the adequacy, vel non, of Nurse Sweeney's examination. Although MRMC, through Nurse Sweeney, would have performed a better examination if the CARE-ONE x-rays had been read by a neurologist or radiologist and its final referral had sent J.B. to a neurosurgeon as did the CARE-ONE and Marion discharge orders, those sorts of omissions are not the type of behavior that Chapter 395 F.S. is designed to prevent or discipline.

    
    

48. Dr. Slevinski's comment that a bad diagnosis or assessment may render one civilly liable but will not make one liable under Chapter 395 F.S. for discrimination in emergency treatment is gratuitous and non-binding upon the trier of fact, but is also logical. More to the point, however, is that there is no evidence at all that Nurse Sweeney's evaluation reached the wrong result or that J.B. ever had an "emergency medical condition" on May 22, 1995 as defined by Chapter 395 F.S.

    
    

49. "Severe pain" is included in Section 395.02(8)(a) F.S. as only one of the symptoms that may indicate an emergency medical condition, but the instant case is not one in which there is any expert medical evidence to the effect that severe pain by itself can result in "serious jeopardy to a patient's health, or serious impairment to his bodily functions, or serious dysfunction of any bodily organ or part," as required by the applicable statute. In fact, the evidence shows that despite subjective pain, J.B. underwent four examinations and

    screenings of varying degrees of thoroughness (CARE ONE's examination on May 19, MRMC's examination on May 22, Marion's examination on May 22, and Dr. Kaplan's examination on June 1), all of which determined that J.B. did not have an emergency medical condition at any material time.

    
    

50. MRMC did not turn J.B. away before conducting a screening, examination, and evaluation. Based upon the evidence as a whole, that screening, examination, and evaluation was reasonably adequate.

    
    

51. Clearly, J.B. was not denied emergency services until after Nurse Sweeney's evaluation had already determined that J.B. had no "emergency medical condition."

    
    

52. One good reason for emergency departments not to expend their resources on treating chronic conditions is the need to concentrate their efforts on those patients who present true emergency conditions. Another good reason is to avoid overutilization of resources just to collect a fee.

    
    

53. There is no clear evidence that J.B., who had insurance, was denied either screening, examination and evaluation or more elaborate necessary treatment after evaluation for monetary reasons. There also is no evidence MRMC, as an entity, tried to shuffle him off to another emergency treatment facility. (See Findings of Fact 11 and 24)

    
    

54. Accordingly, the charges as framed by the administrative complaint have not been proven by clear and convincing evidence.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency for Health Care Administration enter a final

order dismissing the administrative complaint herein.

RECOMMENDED this 17th day of December, 1996, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996.

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 North Dale Mabry Highway No. 100 Tampa, Florida 33614

Thomas D. Watry, Esquire 1500 Marquis Two Tower

285 Peachtree Center Avenue Northeast Atlanta, Georgia 30303

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001782

Orders for Case No: 96-001782