STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-2453

)

JOSE PROENZA-SANIFEL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in Orlando, Florida, on August 20, 1997, before the Honorable Daniel M. Kilbride, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Laura P. Gaffney, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Charles B. Tiffany, Esquire

120 Broadway, Suite 203 Kissimmee, Florida 34741

STATEMENT OF THE ISSUES

Whether Respondent committed the acts alleged in the Administrative Complaint filed by the Petitioner, and, if so, what penalty should be imposed.

PRELIMINARY MATTERS

On January 31, 1997, Petitioner issued an emergency order suspending the Respondent’s license to practice nursing.

On April 4, 1997, Petitioner filed an administrative complaint against the Respondent alleging the same facts as set forth in the emergency order and charging the Respondent with unprofessional conduct in the practice of nursing by violating the confidentiality of patients' records and also with being unable to practice nursing with reasonable skill and safety to patients. Respondent denied the allegations and requested a formal hearing. Respondent also filed an Answer to the Administrative Complaint and a Motion to Strike. This matter was referred to the Division of Administrative Hearings for adjudication on May 16, 1997. Discovery ensued, and Petitioner filed a Notice (motion) of Compelled Mental and Physical Examination on June 4, 1997. The motion was denied.

At the hearing, Petitioner voluntarily dismissed Count I of the Administrative Complaint; Petitioner called four (4) witnesses and offered into evidence three (3) exhibits.

Respondent testified in his own behalf and offered no exhibits into evidence. All exhibits were admitted.

The transcript was prepared and filed on September 2, 1997. Petitioner filed its proposed recommended order on September 12, 1997. Respondent filed his proposals on September 29, 1997.

Both parties' proposals have been given careful consideration.

FINDINGS OF FACT

1. Petitioner, Department of Health is the state agency charged with regulating the practice of nursing pursuant to

   Chapter 20, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 464, Florida Statutes.

2. Respondent is, and has been at all times material hereto, a licensed registered nurse in the State of Florida, having been issued license number RN 2523862. Respondent’s last known address is 4210 POW’s and MIA’s Memorial Drive, St. Cloud, Florida 34772-8142.

3. As a licensed registered nurse, Respondent is governed by Chapter 455 and 464, Florida Statutes, including Section 455.667(5), formerly 455.241(1), Florida Statutes, and Chapter 59S, Florida Administrative Code.

4. At a date unknown, Respondent obtained possession of a computer from a secondhand thrift store. It was subsequently determined that the hard drive contained a database storing confidential patient names, addresses, dates of administration, types of addiction, treatments, and psychiatric disorders for individuals treated at Charter Behavioral Health System Orlando (“Charter”). Charter is a sixty (60) bed, full-service, psychiatric treatment hospital where patients are examined, diagnosed and/or treated for drug, alcohol and/or mental health issues.

5. Respondent has prior experience as a psychiatric nurse and was well aware of the possible ramifications of allowing confidential psychiatric patient information to be accessed or viewed by unauthorized persons.

6. At no time did Charter authorize the release of, or place in Respondent’s possession, the computer and/or database which identified confidential patient information.

   
   

7. However, Charter failed to ensure that the confidential information contained on the hard drive had been erased prior to its release to the thrift shop.

8. Respondent contacted law enforcement agencies in an attempt to have them investigate Charter for the alleged negligence in the release of the data. When he could not obtain their involvement, he turned to the news media.

9. Respondent contacted multiple news media in the Orlando area and allowed some members of the news media access to the information. Respondent indicated to them that they were to blur the information if a news story was going to be aired.

10. As a result of the Respondent’s allowing news media access to the confidential psychiatric records of the former patients of Charter, two news reports aired in Orlando and its adjacent viewing area on or about January 23, 1997.

11. In at least one of the foregoing news reports, a computer screen was shown to the general viewing public via videotape played over the air. Patient names as well as diagnoses were readily identifiable during the broadcast.

12. At least one former patient was interviewed by the media. He expressed that he was tremendously distraught over the

    fact that his prior admission to the hospital was not kept confidential and thus exposed to the public at large.

13. The Respondent appeared on both newscasts.

    
    

14. After acknowledging that it would be negligent for a health care professional, who has a duty to maintain confidentiality of patient information, to allow unauthorized non-medical persons to view patient records, the Respondent indicated that he did not have a duty to maintain the confidentiality of the former patients of Charter because he was not employed as a nurse at that time.

15. On or about January 24, 1997, representatives for the Agency spoke with Respondent regarding his possession of the confidential records located on the computer’s hard drive. The Agency representatives requested Respondent to return the confidential patient records to Charter or the Agency; Respondent refused.

16. Kim Everett, Vice President of Risk Management for Charter, spoke with Respondent on or about January 24, 1997, regarding Respondent's returning the confidential patient records to Charter. Respondent indicated that he would not return the information to Charter and/or its representatives. Additionally, the Respondent indicated that he thought that he should be compensated for returning the computer and patient records to Chapter. Ms Everett advised Respondent that the information belonged to the patients and that Charter would only reimburse

    him for the cost of the computer. Respondent indicated that he would consider contacting the patients and selling the information back to them. Ms. Everett again advised the Respondent that the information was not his and that he should not contact the patients. At the conclusion of the conversation information was still in the possession of Respondent.

17. Charter filed for injunctive relief in the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida. On January 27, 1997, the Honorable John H. Adams, Sr., Circuit Court Judge, issued an Order Granting Plaintiff’s Motion for Temporary Injunction wherein the Court made the following Findings of Fact:

    1. Patient confidential information subject to restraint from disclosure under Section 349.459(9), Florida Statutes, is in the custody of persons not unauthorized to possess this information.

       
       

    2. That portions of such information have been disclosed to third parties including the broadcast media.

       
       

    3. That there is an imminent risk of irreparable harm of further disclosure of such confidential information.

       
       

18. Dr. Roger Goetz, M.D., an expert on the handling of psychiatric records by health care professionals has opined that it is below the standard of professional care to allow unauthorized non-medical persons access to confidential patient information. However, this opinion was not supported by other evidence and is not accepted.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has

    jurisdiction over the subject matter and the parties. Sections

    
    

    120.569 and 120.57(1), Florida Statutes.

    
    

20. Petitioner is charged with the regulation of the practice of nursing. The Board of Nursing may discipline a person found guilty of violating the provision of Section 464.018, Florida Statutes.

21. Petitioner must prove the material allegations contained in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

22. Section 455.667(5), Florida Statutes, formerly 455.241(2), Florida Statutes, regarding confidentiality of patient records, provides that patient information:

    may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care providers involved in the care or treatment of the patient, except upon written authorization of the patient.

    
    

23. The release of confidential psychiatric patient information to unauthorized non-medical persons poses a substantial threat to the public. The Respondent admitted that he was well aware that the release of psychiatric patient information to an unauthorized non-medical person would pose a threat to the public as well as cause irreparable harm to the patients. In fact, Respondent opined that it would be negligent behavior for a person or an entity to allow third parties to have access to such information.

24. Because Respondent was having trouble contacting the proper authorities, he became angry and he decided to share his discovery with members of the news media. However, Respondent thought he took measures to ensure his name was not used because he was afraid that, in his own words, it would “upset psychiatric patients seeking me out.” The Respondent then struck a deal with the news media that they could view the information to verify its authenticity so long as they agreed to blur the information during the broadcast.

25. As a result of the Respondent’s allowing the news media access to the confidential patient information, a news story was aired in the Orlando and adjacent viewing area wherein confidential patient information was clearly discernible. Additionally, at least one patient was contacted and interviewed by the media. This patient was distraught over the fact that his confidential patient information was exposed to the public.

26. The Respondent’s release of the confidential psychiatric patient information to the media was intentional, regardless of whether or not he intended for them to blur the names.

27. This intentional release of confidential patient information to the media was unprofessional and a violation of the statute.

28. When representatives from Charter and the Agency attempted to gain possession of the computer and the records from

    the Respondent, he became belligerent. He indicated that he did not take kindly to being threatened, and refused their request.

29. Section 464.018(1)(1) provides that the Board of Nursing may discipline a licensee for violating Rule 59S- 8.005(1)(e), Florida Administrative Code, by violating the confidentiality of information or knowledge concerning a patient. Petitioner has proved by clear and convincing evidence that Respondent violated Section 464.018(1)(1), Florida Statutes, by violating Rule 59S-8.005(1)(e)12, Florida Administrative Code.

30. Section 464.018(1)(1), Florida Statutes, provides that the Board of Nursing may discipline a licensee for violating Rule 59S-8.005(1)(e)12, Florida Administrative Code, by acts of negligence, gross negligence, either by omission or commission. Petitioner has proved by clear and convincing evidence that Respondent violated Section 464.018(1)(1), Florida Statutes, by violating Rule 59S-8.005(1)(e)12, Florida Administrative Code.

31. Section 464.018(1)(1), Florida Statutes, provides that the Board of Nursing may discipline a licensee for violating Rule 59S-8.005(1)(e)13, Florida Administrative Code, by failing to conform to the minimal standards of acceptable, prevailing nursing practice regardless of whether or not actual injury to a patient was sustained. Petitioner has failed to prove by clear and convincing evidence that Respondent violated Section 464.018(1)(1), Florida Statutes, by violating Rule 59S- 8.005(1)(e)13, Florida Administrative Code.

32. Rule 59S-8.006(3), Florida Administrative Code, provides a penalty range for violations of 464.018(1)(1), Florida Statutes.

33. Section 455.227(1)(k), Florida Statutes, provides that the Board of Nursing may discipline a licensee for failing to perform the statutory and/or legal obligations placed upon licensees pursuant to Section 455.241(2).

34. Respondent has proved by clear and convincing evidence that Respondent violated Section 455.227(1)(k), Florida Statutes, by failing to perform the statutory and/or legal obligations placed upon Respondent pursuant to Section 455.241(2).

35. Section 455.227(2), Florida Statutes, provides a penalty range for a violation of Chapter 455, Florida Statutes, of a reprimand, a fine of up to $5,000 per count, suspension, or permanent revocation of a license.

36. Section 464.018(1)(j) provides that the Board of Nursing may discipline a licensee for being unable to practice nursing with reasonable skill and safety to patients.

37. Respondent has failed to prove by clear and convincing evidence that Respondent violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding the Respondent guilty on Count II for violating Sections 464.018(1)(1), Florida Statutes, by knowingly violating Rule 59S-8.005(1)(e)5, Florida Administrative Code; guilty on Count II, pursuant to Section 464.018(1)(1), Florida Statutes, for knowingly violating Rule 59S-8.005(1)(e)(12), Florida Administrative Code; not guilty of Count IV; guilty on Count V for violating Section 455.241(2), Florida Statutes; not guilty on Count VI; and not guilty on Count VII.

It is FURTHER RECOMMENDED that the Board of Nursing dismiss Counts IV, VI, and VII of the Administrative Complaint and impose the following discipline on the Respondent’s license: administrative fine of $500; administrative costs of the Department; Eighteen (19) month suspension of license with credit for time of suspension already served; and five (5) year probation upon such terms and conditions as the Board may find just and proper.

DONE AND ENTERED this 29th day of October, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1997.

COPIES FURNISHED:

Laura P. Gaffney, Esquire Agency for Health

Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Charles B. Tiffany, Esquire

120 Broadway, Suite 203 Kissimmee, Florida 34741

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary 1317 winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

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: 97-002453

Orders for Case No: 97-002453