STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) MARTIN OPERATING CORP., d/b/a ) MARTIN NURSING AND RESTORATIVE ) CARE CENTER, )

)

Respondent. )

Case No. 02-4413

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on March 3, 2003, in Stuart, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nelson Rodney, Esquire

Agency for Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

For Respondent: Jonathan S. Grout, Esquire

Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

STATEMENT OF THE ISSUES

Whether Respondent, a nursing home, committed the offenses alleged in the three-count administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint containing three counts against Respondent. Petitioner alleged certain facts pertaining to Respondent's care of a female patient who will be referred to as V.S. or as the patient. Petitioner alleged in Count I that Respondent violated Rule 59A-4.109(2), (3), Florida Administrative Code, by failing to develop a care plan for a newly acquired pressure sore which resulted in lack of treatment. Petitioner alleged in Count II that Respondent violated Title 42, Section 483.20(k)(3)i, Code of Federal Regulations, and Rule 59A-4.1288, Florida Administrative Code, by failing to notify the patient's physician that a pressure sore had developed. Petitioner alleged in Count III that Respondent violated Title 42, Section 483.25(c), Code of Federal Regulations, and Rule 59A-4.1288, Florida Administrative Code, by failing to provide care to prevent the development of a pressure sore. For the alleged violations, Petitioner intends to impose administrative fines against Respondent in the aggregate amount of $15,000. It also intends to impose a conditional licensure rating on Respondent.

Respondent denied the material allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of James Eric Johnson, Leyla Gardner, and, by deposition, Mary Kristen Morris. In addition to the deposition of Ms. Morris, Petitioner offered one composite exhibit, consisting of pages P1-P6, which was admitted into evidence.

Respondent presented the testimony of Elizabeth McConnell, Nancy Calise, and Elma Callaway, each of whom is employed by Respondent. Respondent offered two exhibits, both of which were admitted into evidence.

A Transcript of the proceedings was filed on March 11, 2003. Each party filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent operates a skilled nursing home in Stuart, Florida, and is licensed by the State of Florida pursuant to the provisions of Part I of Chapter 400, Florida Statutes.

2. Petitioner is the agency of the State of Florida with the responsibility to license and regulate nursing home facilities in Florida.

3. V.S. is a female born July 13, 1963, who was admitted to Respondent's nursing home with the diagnoses "osteomyelitis to hip and pelvis" and "quadriplegic" [sic]. V.S. was a patient at Respondent's nursing home between March 29, 2002, and

   April 26, 2002.

   
   

4. On April 27, 2002, Mary Kristen Morris, a registered nurse employed by a home health care agency, examined V.S. and filled out a form styled Skin Assessment and Care on which she charted the areas on the patient's body that contained wounds and described each wound. At issue in this proceeding is what Ms. Morris referred to as wound "B", and which she described as being a "tunnel wound" that was one and a half centimeters long, one tenth centimeter wide, and four to five centimeters deep. Ms. Morris testified that she used the term "tunnel" because the wound had a very small opening on the surface of the skin, but it had more depth than one can see without probing the wound. Ms. Morris believed the wound was consistent with a prior surgical procedure that occurred before the patient was admitted to Respondent's nursing home. Ms. Morris did not describe the wound as being a pressure sore or as a bed sore. While it was clear that Ms. Morris did not think this was a new wound, her testimony fails to establish that the wound was visible to caregivers during the time V.S. was a patient in Respondent's nursing home.

5. A copy of the Skin Assessment and Care form completed by Ms. Morris on April 27, 2002, was provided Respondent and became a part of the medical chart for V.S.

6. James Eric Johnson is a registered nurse specialist employed by Petitioner to conduct surveys of nursing homes. Mr. Johnson, on behalf of Petitioner, conducted a survey of Respondent's nursing home on May 8, 2002. Mr. Johnson reviewed the medical chart for V.S., which included the Skin Assessment and Care form prepared by Ms. Morris. Mr. Johnson noted that there was no reference to what Ms. Morris charted as wound "B"

   in the medical records prepared by Respondent's staff. Based on that failure and his assumption that the wound observed by

   Ms. Morris on April 27, 2002, existed and should have been observable to Respondent's staff prior to the patient's discharge, Mr. Johnson prepared the survey report containing the alleged violations at issue in this proceeding. Mr. Morris did not talk to any of Respondent's staff that had provided care to

   V.S. prior to her discharge on April 26, 2002.

   
   

7. Nancy Calise, a registered nurse employed by Respondent's nursing home during the 7:00 a.m. to 3:00 p.m. shift, observed the patient's buttocks on April 24 and 25, 2002, during her shift. Following the patient's bath, Ms. Calise applied a barrier cream to the patient's buttocks. Ms. Calise

   testified, credibly, that V.S. did not have a wound on her buttocks on either April 24 or April 25, 2002.

8. Elizabeth McConnell, a licensed practical nurse employed by Respondent's nursing home during the 3:00 p.m. to 11:00 p.m. shift, observed the patient's buttocks on April 25, 2002. Ms. McConnell testified, credibly, that V.S. did not have a wound on her buttocks on April 25, 2002.

9. Elma Callaway, a certified nursing assistant, employed by Respondent's nursing home during the 7:00 a.m. to 3:00 p.m. shift, bathed the patient on April 26, 2002, the date she was discharged. Ms. Callaway testified, credibly, that V.S. did not have a wound on her buttocks on April 26, 2002.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

11. The deficiencies alleged in this proceeding are premised on Petitioner's factual allegation that the patient had a newly acquired pressure sore that was not properly addressed by Respondent. Each deficiency is a Class II deficiency as defined by Section 400.23(8)(b), Florida Statutes.

12. Petitioner bears the burden of proof, by a preponderance of the evidence, that the Class II deficiencies

    were appropriately cited and that the imposition of a conditional license was warranted. Beverly Enterprises-Florida

    v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999).

13. Petitioner bears the burden of proof, by clear and convincing evidence, that the Class II deficiencies were appropriately cited and justify the imposition of an administrative fine. Department of Banking and Finance v. The Osborn-Stern Company, 670 So. 2d 932 (Fla. 1996).

14. Petitioner has failed to meet its burden of proof in this proceeding. The testimony of Ms. Morris creates a strong inference that the wound she observed on April 27, 2002, existed prior to the patient's discharge from Respondent's nursing home on April 26, 2002. The evidence presented by Respondent rebutted that inference.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint filed against Respondent.

DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2003.

COPIES FURNISHED:

Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

Nelson Rodney, Esquire

Agency for Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116

Tallahassee, Florida 32308

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: 02-004413

Orders for Case No: 02-004413