STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONNA M. CAMERON CONNOLLY, R.N., C.R.N.A.,
Petitioner,
vs.
DEPARTMENT OF HEALTH, BOARD OF NURSING,1/
Respondent.
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FINAL ORDER
On May 23, 2006, Petitioner, Donna M. Cameron Connolly, R.N., C.R.N.A, filed a motion for attorney's fees and costs pursuant to Sections 57.041 and 57.111, Florida Statutes (2005), in relation to the outcome in Department of Health, Board of
Nursing, Petitioner v. Donna M. Cameron Connolly, R.N., C.R.N.A., Respondent, DOAH Case No. 05-3268PL/DOH Case No. 2004- 34970. Petitioner in this cause claims to be a "prevailing small business party." § 57.111(3)(c), Fla. Stat. (2005). The motion is treated as an application for the award of attorney's fees and associated costs. § 57.111(4)(a)2., Fla. Stat. (2005).
On June 26, 2006, a telephone conference was held with counsel for the parties. Through that discussion it was decided that the case would be presented without an evidentiary hearing on the application. Instead the necessary record for entry of
the Final Order was established by filings by the respective parties. § 57.111(4)(d), Fla. Stat. (2005). Following the establishment of the record, the parties were allowed to submit written arguments to support their positions.
APPEARANCES
For Petitioner: Damon A. Chase, Esquire
Chase Law Offices, P.A.
250 International Parkway, Suite 250 Lake Mary, Florida 32746
For Respondent: Katharine E. Price, Esquire
Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
PRELIMINARY STATEMENT
After the application for attorney's fees and associated costs had been filed, Respondent filed a series of Motions to Dismiss the application with Exhibits "A" through "C." Those motions will be resolved through the conclusions of law reached in this Final Order.
On June 28, 2006, an order was entered establishing the basis for submission of evidence and written arguments as to timing. The schedule was amended in an order dated August 3, 2006. The August 3, 2006, order extending the time for provision of evidence and written argument was in response to a motion by Respondent to allow additional time to take depositions of non-party witnesses.
On August 25, 2006, Petitioner noticed the filing of 2003 tax return information related to Petitioner as Exhibit "A." On that same date, Respondent filed a notice of filing additional documents with the attached documents, Exhibits "A" and "B."
On August 28, 2006, separate orders were entered in response to Petitioner's motion for the filing of the deposition transcript of Petitioner and a motion for official recognition. Both orders denied relief.2/
On August 31, 2006, an order was entered receiving transcript Exhibits "A" and "B" offered by Petitioner. On that same date, an order was entered receiving Exhibit "A," presented in a separate motion by Petitioner, which exhibit was constituted of a breakout of work performed by Petitioner's counsel. It was later corrected by an order entered on September 6, 2006. That order allowed the filing to remain in place, while providing leave for Respondent to submit a counter- affidavit to the reasonableness of the fees charged by Petitioner's counsel on or before September 15, 2006. On September 25, 2006, Respondent's counter-affidavit of Edwin Bayo, Esquire, was filed in accordance with an order entered September 14, 2006.
On September 5, 2006, Petitioner filed a proposed order.
On that same date Respondent filed a written argument in support
of denial of the petition for attorney's fees and costs. Both submissions have been considered in preparing the Final Order.
On September 20, 2006, Petitioner's counsel filed a supplemental affidavit for attorney's fees and costs.
The evidence received to support the respective cases is as follows:
For Petitioner
The attached affidavit of Damon A. Chase, Esquire, as to reasonable attorney's fees and costs;
The attached affidavit of Paul C. Perkins, Jr., Esquire, as to reasonableness of attorney's fees and costs, also supporting the Petition;
The Exhibit "A" to the notice of filing the 2003 Individual Income Tax Return for Joseph
F. Connolly and Donna C. Connolly;
The Exhibit "A" time entry report by Petitioner's attorney;
The deposition transcript of Donna M. Cameron Connolly taken July 28, 2006, as Exhibit "A" to a motion for its admission, together with Exhibit "B" to the motion, the transcript of proceedings in DOAH Case No.
05-3268PL for the hearing held October 18, 2005; and
The September 20, 2006, supplemental affidavit by Petitioner's attorney for fees and costs.
For Respondent
Exhibits attached to the several motions to dismiss the Petition, Exhibit "A" pages 76-
81 to the October 18, 2005, hearing
transcript in DOAH Case No. 05-3268PL and Exhibit "B" the Probable Cause Panel transcript dated June 20, 2005, that led to the administrative complaint referred to in DOAH case No. 05-3268PL;
Exhibits attached to Respondent's Notice of Filing Additional Documents: Exhibit "A," the deposition of Erwin Velbis, C.R.N.A., A.R.N.P., taken August 10, 2006; Exhibit "B," the affidavit and Probable Cause materials related to the investigation and Probable Cause determination associated with DOAH Case No. 05-3268PL/DOH Case No. 04-
34970 and the counter-affidavit on reasonableness of fees and costs by Edwin Bayo, Esquire.
On October 4, 2006, Petitioner filed a reply opposing the Bayo counter-affidavit on attorney's fees and costs. Respondent moved to strike the reply. Petitioner then moved to accept the reply as timely. Given the timing of the reply, lacking permission to offer the reply, the reply is stricken.
FINDINGS OF FACT
§ 57.111(3)(f) Fla. Stat. (2005)
"state agency"
The Department of Health meets the definition found within Section 120.52(1)(b)1, Florida Statutes (2005), as an "agency."
§ 57.111(3)(b)2. and 3., Fla. Stat. (2005)
"initiated by a state agency."
On June 21, 2005, an Administrative Complaint in Department of Health, Petitioner, v. Donna M. Cameron Connolly, R.N., C.R.N.A, Respondent, DOH Case No. 2004-34970 was signed
and served on Nurse Connolly. It accused the Respondent of violating Section 464.018(1)(n), Florida Statutes (2002), in the treatment and care of Patient M.M. Nurse Connolly elected to contest material facts within the Administrative Complaint. On September 9, 2005, the case was referred to the Division of Administrative Hearings (DOAH) to conduct a hearing pursuant to Section 120.57(1), Florida Statutes (2005). It became DOAH Case No. 05-3268PL. The hearing was held, and, on December 8, 2005, a Recommended Order was entered with a recommendation that the case be dismissed.
§ 57.111(3)(c)1., Fla. Stat. (2005)
"prevailing small business party"
On February 27, 2006, the Department of Health entered a Final Order dismissing the Administrative Complaint against Nurse Connolly.
§ 57.111(3)(d)1a., Fla. Stat. (2005)
"small business party"
The incident involving Patient M.M. that related to the Administrative Complaint took place on March 13, 2003.
On the date Nurse Connolly cared for Patient M.M. She did so at Endosurg Outpatient Center (Endosurg) in Lady Lake, Florida, a gastroenterologist practice. She was providing anesthesia to the patient during a colonoscopy. She was acting as an independent contractor for a limited period of time in her
engagement with Endosurg. It is her routine to take temporary positions in providing her services.
Nurse Connolly works through placement agencies who serve clients who have the need for anesthesia coverage by a
C.R.N.A. The placement agency, Nature Coast Anesthesia Providers (Nature Coast), had contacted Respondent to determine her interest in working for two weeks at Endosurg. For the services provided at Endosurg, Nurse Connolly had a verbal agreement with Nature Coast that formed the basis for her pay. The equipment and materials necessary to perform her duties at Endosurg were to be provided by that entity.
In addition to the equipment provided by Endosurg, Petitioner Connolly had certain equipment of her own, including a stethoscope and an ambu-bag.
At the time that the incident involving Patient M.M. occurred, Nurse Connolly had worked for Endosurg in two separate facilities for seven days.
After the incident involving Patient M.M., Petitioner worked for Endosurg for an additional three days.
For the year 2003, Petitioner Connolly and Joseph F. Connolly filed a Joint Form 1040 U.S. Individual Income Tax Return, with a Schedule C, representing profit or loss from a business naming Donna C. Connolly as a proprietor, "anesthesia
provider," reflecting income and expenses with a net profit of
$34,506.00.
In 2003, Nurse Connolly's proprietorship carried business insurance through Bloom Insurance Services with a policy written by Evanston Insurance Company.
Nature Coast paid Nurse Connolly for services provided at Endosurg. No insurance coverage was provided to Nurse Connolly from Nature Coast for the work done at Endosurg, nor was she entitled to any form of benefits from Nature Coast for that work. Nurse Connolly gave Nature Coast an invoice reflecting the services provided at Endosurg for which she requested payment and was paid.
Nurse Connolly had other arrangements with agencies in 2003 to place her. Those agencies were Nation Wide Anesthesia Services and MDA Associates. Arrangements with the latter two agencies were under terms set forth in written contacts.
At all times relevant Nurse Connolly did not advertise her services as a sole proprietor. She did provide business cards that set forth her address, telephone number, and e-mail.
When performing her duties as an anesthesia provider in outlying locations, Nurse Connolly deducts meals, hotel expenses and her malpractice insurance for purposes of her income tax return.
During the relevant period in time, Nurse Connolly had no other employees working for her. Her net worth was not more than two million dollars.
§ 57.111(4)(b)1., Fla. Stat. 2005
"itemized affidavit"
To support Nurse Connolly's application for attorney's fees and costs, an affidavit has been provided by her counsel setting forth a claim for 105.1 hours of work performed by the law firm at a charge of $350.00 per hour for legal services, with an additional $45.08 in costs for federal express expenses in relation to her defense against the Administrative Complaint in DOAH Case No. 05-3268PL/DOH Case No. 2004-34970. The affidavit was prepared on May 23, 2006. Counsel for Petitioner Connolly also provided an itemized statement of work done between June 7, 2005, and February 5, 2006, as to the dates and nature of the services and time necessary to perform the incremental services totaling 105.2 hours, a discrepancy compared to the affidavit of .1 hours.
In further support of the request for attorney's fees and costs, the application is accompanied by an affidavit provided by Paul C. Perkins, Jr., Esquire, as to the reasonableness of the fees requested for 105.1 hours of time expended. He comments, that recognizing the complexity and novelty of the issues in the case, an hourly rate for attorney
work performed would range from $250 to $400 an hour. Attorney Perkins, like Petitioner Connolly's counsel, practices law in Florida.
The affidavit by attorney Perkins refers to his admission to the Florida Bar and license to practice in the State of Florida for a period of 14 years. The affidavit was executed before a notary in Seminole County, Florida. In particular, he speaks to the complexity of the underlying case involving the administrative prosecution of Nurse Connolly, as a matter where expert testimony in the areas of pharmacology, anesthesiology, and cardio-pulmonary health were considered. In addition, the underlying case involved medical ethics and extensive research, according to attorney Perkins.
On September 20, 2006, Nurse Connolly's attorney in this case, Damon A. Chase, Esquire, filed a supplemental affidavit as to attorney's fees and costs in the matter, asking that he be reimbursed for his fees at a rate of $350.00 per hour. Attached to the affidavit was a rendition of the services provided in the present case from July 12, 2006, through September 5, 2006, totaling 24.4 hours. A second affidavit by attorney Perkins has not been filed to support the additional
24.4 hours.
§ 57.111(4)(c), Fla. Stat. (2005)
"opposition affidavit"
Respondent in this cause filed a counter-affidavit in opposition to Petitioner's attorney's affidavit for fees and costs. The counter-affidavit was provided by Edwin A. Bayo, Esquire, who practices in Leon County, Florida, where he has practiced for the last 22 years. The majority of his practice was in the Office of the Attorney General, State of Florida. Attorney Bayo served as Board counsel for professional regulatory boards to include the Boards of Pharmacy, Dentistry, Osteopathic medicine, Chiropractic medicine, Veterinary medicine and Professional Engineers. His law practice has involved significant administrative law litigation. In response to the original request for reimbursement of attorney's fees in relation to the 105.1 hours, his opinion is that the appropriate hourly rate for the type of work performed in the case, as reviewed by Attorney Bayo, would be from $200 to $325 an hour, with the higher rate of charge being associated with counsel who has had more experience in administrative litigation, that is to say in excess of 15 years. Attorney Bayo contrasts that number of years with the amount of time that counsel for Nurse Connolly has been in practice in Florida, which attorney Bayo represents as being three years. Ultimately attorney Bayo offers the
opinion that the rate of reimbursement for Attorney Chase should not exceed $225 per hour.
§ 57.111(4)(d)1., Fla. Stat. (2005)
"nominal party"
When the Department of Health undertook its prosecution directed to Donna M. Cameron Connolly, R.N., C.R.N.A., it was not acting as a nominal party.
§ 57.11(3)(e), Fla. Stat. (2005)
"substantially justified"
Exhibit "B" to Respondent's Notice of Filing of Additional Documents in the present case, as filed August 25, 2006, is constituted of the investigative report by the Department of Health, with exhibits. It includes patient records and expert opinions in DOH Case No. 2004-34970, all the material being mailed to the Probable Cause Panel which decided in favor of Probable Cause to bring the Administrative Complaint in the case. Exhibit "B" also contains the written response to the investigation provided by Nurse Connolly. The information available to the Probable Cause Panel continues in this discussion.
On April 8, 2003, a confidential code 15 report was received by the Health Facility Regulation Hospital and Outpatient Services, within the State of Florida, Agency for Health Care Administration. In content, it pertained to Patient M.M. The report was made in compliance with Section
395.0197(8), Florida Statutes (2002). The report concerned the incident on March 13, 2003, which forms the basis of the administrative prosecution that underlies the present case. The Code 15 report was acknowledged by an Investigation Specialist with the Department of Health in a letter to the reporter dated July 1, 2003. Beyond that date, the Department of Health undertook its investigation into the matter concerning
Patient M.M. and her treatment on March 13, 2003. After the investigation commenced, a Uniform Complaint Form was executed by the Investigation Specialist for the Department of Health, in a setting were Donna Connolly was named as the Respondent in relation to the March 13, 2003, incident. Generally, it summarized the events of that day and the withdrawal of life support from Patient M.M. on March 16, 2003, followed by the patient's death on March 17, 2003. The focus of the investigation was on a possible violation of Section 464.018(1)(h), Florida Statutes (2002), and Florida Administrative Code Rule 64B9-8.005(2)(i).
In pursuing the investigation, the Department of Health made contact through its investigator with an official at Endosurg in Lady Lake, Florida. The investigation was facilitated by a subpoena issued October 8, 2003, calling for the release from Endosurg of medical information about
Patient M.M. and the care received at Endosurg. The subpoena
duces tecum that was sent to Endosurg on October 8, 2003, asked for the outpatient center to provide a copy of the medical records for the March 13, 2003, admission in relation to Patient M.M.
Among the items that Endosurg gave the Department of Health concerning the care received by Patient M.M. on March 13, 2003, were the nursing assessments, pre-op and post-op information, the endoscopy report for the procedure being performed on the patient, the anesthesia record, the endoscopy procedure record, the past medical history of the patient, information concerning the provision of anesthesia in advance of its provision, a pre-operative evaluation questionnaire including the history of present illnesses, physical examination and a cardio-pulmonary resuscitation report form in relation to the CPR team who responded to the patient's arrest, which the report form refers to as occurring around 7:45 a.m. on March 13, 2003. It describes the CPR team responding to the incident as Nurse Connolly; Nurse Mayhew, who was a registered nurse; and the attending physician, who performed the colonoscopy.
The Department of Health also issued a subpoena duces tecum to Lake Sumter Emergency Medical Services of Mt. Dora, Florida, who responded to the incident, providing care and transport for Patient M.M. on March 13, 2003. In response the Medical Services Agency provided transport information in
relation to Patient M.M., who had suffered the cardiac arrest and was taken to the Villages Regional Hospital (Villages Hospital). A copy of a report reflecting the intubation and treatment provided by the agency to the patient was also given to the Department of Health, with a code summary critical event record.
The patient was taken to the Villages Hospital for emergency treatment. The Department of Health issued a subpoena duces tecum to the hospital. The response to the subpoena included a written record of the diagnosis, including cardiac arrest, anoxic brain damage. Information from the Villages Hospital included physicians' orders, history and physical, laboratory studies, diagnostic studies, etc. The clinical indication at the time the patient was cared for in the Villages Regional Hospital was that the status was post-cardiac arrest, altered mental status. On that same date, March 13, 2003, the patient was transferred from the Villages Hospital to Lake Regional Medical Center (LRMC) in Leesburg, Florida.
LRMC also provided records related to Patient M.M.
The information received from LRMC was pursuant to a subpoena duces tecum. The death summary provided by LRMC, where Patient M.M. expired on March 17, 2003, referred to a discharge diagnosis as, severe anoxic encephalopathy following cardio- respiratory seizure, and cardiac arrest secondary to ventricular
fibrillation. The patient expired when life support was withdrawn. LRMC patient information included physician's orders, patient progress notes, medication administration record, etc.
On March 21, 2003, an associate medical examiner for the District Five Medical Examiner's office located in Leesburg, Florida, determined that the cause of Patient M.M.'s death was hypertensive and arteriosclerotic heart disease.
On October 20, 2004, a medical malpractice investigator for the Department of Health wrote to Donna Connolly, A.R.N.P., advising her of Complaint No. 2004-3490. That correspondence referred to an enclosed document that had been determined sufficient for investigation pursuant to Section 456.073, Florida Statutes (2004), and extended an invitation to Nurse Connolly to file a written response or to call in and schedule an interview within 20 days of receiving the letter. Nurse Connolly was reminded that any response "will be made a part of the file and will be considered by the Department and the Probable Cause Panel in determining whether a formal Administrative Complaint should be filed in the matter." Nurse Connolly was also advised that she was not required to answer any questions or give statements and that she could be represented by counsel.
On November 12, 2004, as received by the Department of Health on November 15, 2004, Nurse Connolly responded in writing to the ongoing investigation addressing the documents involved in the investigation. She provided an explanation of her recollection of the events on March 13, 2003, related to the care she provided Patient M.M., disavowing any unprofessional conduct on her part.
On June 1, 2005, an Order of Emergency Restriction of the license of Donna M. Cameron Connolly, A.R.N.P., C.R.N.A, was entered by the Secretary of the Department of Health. The significance here, is that C. Erwin Velbis, C.R.N.A., A.R.N.P., performed a review of what was referred to at that time as Case No. 2004-3490. On February 4, 2005, utilizing an outline provided by the Department of Health, he performed the medical review related to the overview of the March 13, 2003, case involving Patient M.M., the colonoscopy and the eventual death of the patient on March 17, 2003. In response to the question in the form, Question 3, which says:
The applicable standard of care, step by step in this case is
He replied:
Preanesthesia Care, Basic Standards for
Basic Anesthetic Monitoring, Standards for
Safe use of Propofol
Appropriate level of sedation (Monitored Anesthesia Care vs. Conscious Sedation vs. Deep Sedation/Analgesia vs. General Anesthesia
Postanesthesia Care, Basic Standards for
Documentation of Anesthesia Care
Nurse Velbis indicated that Nurse Connolly, in providing care to Patient M.M. on March 13, 2003, failed to meet the standard of care set out in the questionnaire by:
Subject's PACU arrival vital signs do not reflect what was first documented by nursing staff which revealed hypotension and bradycardia that was treated with romazicon and trendelenburg positioning.
Subject left an unstable patient upon arrival to PACU
no documented ECG rhythm strips support what dysrhythmia patient was having that required ACLS.
Under the response to question number 6 in the form, Nurse Velbis opines that Nurse Connolly should have done the following:
Stayed with patient upon arrival in the PACU after a bp 74/42 and p40 was assessed
Initiated defibrillation more quickly once the airway was secured (10 minutes had expired before the Fire and Rescue Paramedics defibrillated the patient).
Provided clear ECG documentation.
In this review, Nurse Velbis indicated items that might increase or lessen Nurse Connolly's culpability to the
effect:
gastroenterologist assumed "captain of the ship" regarding responsibility and accountability in the anesthesia care team model
no supplemental oxygen was applied to the patient at PACU nor were [sic] there documentation of the SpO2
dose of Romazicon given by PACU nursing staff is unknown from the records. Was the dosage appropriate for the level of sedation?
Nursing staff should have called the subject if Ramazicon was necessary to awaken a previously conversant patient
What is the patient to staff ratio in the combined holding area in PACU? Depositions illustrate providers physically too far away from the patient in this case (this is an obese patient with a BMI of 35, no supplemental oxygen, and in trendelenburg position). Patients can resedate and become apneic without continual stimulation.
Nurse Velbis was also asked to comment on the Emergency Restriction Order in draft form, which took into account his expert opinion that had been rendered in his written review as a means to make certain that the Emergency Restriction Order accurately reflected his expert opinion. There was also a reference in April 4, 2005, correspondence to Nurse Velbis concerning the addition of a paragraph 19 to the Emergency
Restriction Order describing Nurse Connolly's failure to utilize the bag-valve mask immediately as a failure to meet applicable standards of care. This correspondence also describes some discrepancy between the author and Nurse Velbis concerning information that he had reflected in his written review about vital signs associated with Patient M.M. when the patient first arrived at the PACU at Endosurg. On April 21, 2005, Nurse Velbis responded in writing to the April 4, 2005, correspondence, giving advice to omit paragraph 19c to the Emergency Restriction Order for reasons stated in the written response noting in the end that Nurse Connolly "remains justfully [sic] culpable for the underlying cause, primarily hypoxia, of M.M.'s PEA rhythm."
Nurse Velbis, who had been called upon to review materials associated with the investigation into Nurse Connolly's conduct on March 13, 2003, in treating Patient M.M., had access to the Department of Health's investigative report that included medical records.
Nurse Velbis' assessment of the circumstances in relation to care of Patient M.M. received on March 13, 2003, at Endosurg, contrasts with the January 11, 2005, memorandum from Kay Frank, R.N., B.S.N., a nurse consultant whose recommendation was "close complaint against D.C. (Donna Connolly) no violation.
Consider further investigation of recovery and resuscitation of this client."
The investigative report form by the Department of Health that addressed the complaint that was made October 15, 2004, was completed when approved on December 30, 2004. By its table of contents, it refers to written records received from the various sources under subpoena duces tecum to Endosurg, Lake Sumter Emergency Medical Services, Villages Hospital, and LRMC, with a summary of the impression gained from a review of these materials. The investigative report also includes summaries of interviews conducted with the Endosurg Risk Manager Consultant; the Nurse Administrator at Endosurg; the Risk Manager of the Villages Hospital; Maureen Mayhew, R.N. at Endosurg, who was in the PACU when Patient M.M. was transferred to that unit from the procedure room; and the Risk Manager for LRMC, as well as a summary of Nurse Connolly's response to the investigation.
On June 20, 2005, a Probable Cause meeting was convened in which panel members Maria Seitz and Jeanne Stark participated. As the transcript of that meeting establishes, the panel members confirmed that they had had sufficient time to review the materials that have been described in aid of their deliberations. Among the cases on the agenda was the subject case involving Donna Connelly. Attorney Judy Law from the Department of Health, who participated in the panel discussion,
noted that the panel members had been provided with complete case files including the investigative reports, attached exhibits, all patient medical records, and any expert opinion, as well as any material provided by a licensee to respond to the Department investigation. It was indicated that the panel members had been provided a draft of the Recommended Administrative Complaint in the Connolly case.
Attorney LeeAnn Gustafson for the Board of Nursing, who participated in the meeting for probable cause, explained to the Probable Cause Panel members, that if they had questions concerning interpretation or the application of any provision within Chapters 456 and 464, Florida Statutes, they should direct them to her, as well as any of the specifics concerning the cases that were on the agenda at that time, to include the case involving Nurse Connolly.
There is a reference in the probable cause transcript to a scrivener's error that needed clarification in the Administrative Complaint related to Nurse Connolly and a need to correct numbers in the paragraphs to the Administrative Complaint without changing the underlying facts. The panel members agreed to these corrections.
During the Probable Cause Panel meeting, a Mr. Monte gave a case overview involving the March 13, 2003, incident related to Patient M.M. and commented that the basis for the
case was a failure to meet minimum standards of acceptable and prevailing nursing practice: by leaving an unstable patient; by failing to verify the patient's vital signs upon admission; by failing to stay with the patient long enough to ensure that the patient was stable; by disregarding the patient's unstable vital signs; by failing to provide oxygen via bag, valve or mask, or through incubation (intubation) immediately; by failing to ensure the proper equipment for incubation (intubation) was readily available; by failing to utilize incubation (intubation) equipment in a timely fashion, as necessary to restore breathing in an emergency; and by choosing to use mouth to mouth resuscitation as a first intervention. With this explanation, Ms. Sietz moved to find probable cause, which was seconded by Ms. Starke. There ensued subsequent discussion about the case between the panel members and a possible disposition of the case by way of discipline imposed on Nurse Connolly.
§ 57.111(4)(a), Fla. Stat. (2005)
"special circumstances"
No evidence was presented by Respondent in this case to show that special circumstances exist which would make the award of attorney's fees and costs unjust.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this
case in accordance with Sections 57.111 and 120.57(1), Florida Statutes (2005).
This case arises under the "Florida Equal Access to Justice Act." § 57.111(1), Fla. Stat. (2005). By the action, Petitioner Connolly seeks to recover "attorney's fees and costs" as defined in Section 57.111(3)(a), Florida Statutes (2005) which states:
(3) As used in this section:
The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.
To begin this case Petitioner Connolly had to comply with the procedural expectations in Section 57.111(4)(b)1. and 2., Florida Statutes (2005):
To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the court which first conducted the adversarial proceeding in the underlying action, or to the Division of Administrative Hearings which shall assign an administrative law judge, in the case of a proceeding pursuant to chapter 120, which affidavit shall reveal the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in the proceeding.
The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.
The right to recover "attorney's fees and costs" is premised upon the outcome of a case "initiated by a state agency," according to Section 57.111(3)(b), Florida Statutes, which states:
(3) As used in this section:
* * *
The term "initiated by a state agency" means that the state agency:
Filed the first pleading in any state or federal court in this state;
Filed a request for an administrative hearing pursuant to chapter 120; or
Was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency;
The term "state agency" in Section 57.111(3)(f), Florida Statutes (2005), relies on the definitional statement in Section 120.52(1), Florida Statutes (2005), for the term "state agency." For this case the term "agency" is found at Section 120.52(1)(b)1. and 2., Florida Statutes (2005), where it states:
(1) Agency "means:"
Each:
1. . . . state department and each departmental unit described in s. 20.04.
* * *
3. Board.
A "prevailing small business party" is the only entity that would be entitled to collect "attorney's fees and costs" under the Florida Equal Access to Justice Act. A small business party prevails, according to Section 57.111(3)(c), Florida Statutes (2005):
. . . when:
A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;
A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or
The state agency has sought a voluntary dismissal of its complaint.
As stated in Section 57.111(3)(d), Florida Statutes (2005):
The term "small business party" means:
1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, nor more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or
b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million; or . . .
To be awarded "attorney's fees and costs" in this matter, Petitioner Connolly must show that she was a prevailing small business party in DOAH Case No. 05-3268PL related to the Administrative Complaint in DOH Case No. 2004-34970, initiated by the Department of Health upon its investigation. The proof sustaining the claim for "attorney's fees and costs" must be by a preponderance of the evidence. See Department of Professional Regulation, Division of Real Estate, v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989). According to that case, if the burden is met by Nurse Connolly, then the Department of Health must establish whether it was substantially justified in prosecuting the Administrative Complaint, again by the preponderance of the evidence. The burden residing with Respondent Department of Health is based upon Section 57.111(4)(a), Florida Statutes (2005), which states:
Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.
As can be seen, the Department of Health is also given the opportunity to demonstrate special circumstances making the award of attorney's fees and costs an unjust decision.
Consistent with the expectations found in the statutory provisions, Petitioner Connolly as the applicant for attorney's fees and costs had a decision in her favor in the case before the State of Florida Board of Nursing, Department of Health, Petitioner v. Donna M. Cameron Connolly, R.N., C.R.N.A., Respondent, DOH Case No. 2004-3790/DOAH Case No. 05-3268PL, in a Final Order entered February 22, 2006. From the record presented here no appeal was taken by the Department of Health within 30 days of the final order. § 57.111(3)(c)1. and 120.68(2)(a), Fla. Stat. (2005). On May 23, 2006, the application for attorney's fees and costs was filed, within 60 days of the date the decision was rendered in favor of Petitioner Connolly, resulting from the administrative prosecution. That application met with opposition in accordance with Section 57.111(4)(c), Florida Statutes (2005), to include the provision of a counter-affidavit opposing the hourly rate for attorney's fees and a motion to dismiss the application as amended twice.
If Petitioner Connolly is to receive an award of attorney's fees and costs in relation to the action initiated in the Administrative Complaint pertaining to DOH Case No. 2004-
34970/DOAH Case No. 05-3268PL, the Administrative Complaint case, it shall not exceed $50,000.00. § 57.111(4)(d)2., Florida Statutes (2005).
Petitioner Connolly has applied for attorney's fees, and the statute to support that claim abrogates common law. Therefore, Section 57.111, Florida Statutes (2005), is strictly construed. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003).
Petitioner Connolly was the winner in DOH Case No.
2004-34970/DOAH Case No. 05-3268PL, an action initiated by the Department of Health, a state agency. She was not the prevailing small business party within the meaning of Section 57.111(3)(d)1a, Florida Statutes (2005), as she has claimed.
She did not meet the definition of a sole proprietor of an unincorporated business, to include a professional practice whose principal office is in Florida. Petitioner Connolly works upon an assignment basis through various placement agencies who make arrangements with treatment facilities needing services within her specialty, the provision of anesthesia. She has no principal office in Florida. She has no office at all, notwithstanding that she is personally domiciled in the state.
At the time the action was initiated against her, she did not have other employees and did not have a net worth that exceeded
$2 million dollars of either personal or business investments.
The Administrative Complaint in the underlying case was filed against Petitioner Connolly individually and not against a sole proprietorship, even if it were decided that a sole proprietorship existed, a conclusion not reached. Therefore, there is no opportunity for relief that would be afforded a small business party under Section 57.111, Florida Statutes (2005). See Daniels v. Florida Department of Health, 898 So. 2d
61 (Fla. 2005); Daniels v. State Department of Health, 868 So. 2d 551 (Fla. 4th DCA 2004) and Florida Real Estate
Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994). It is significant that the Florida Supreme Court decided that Daniels, as an individual who had been charged in an Administrative Complaint with a violation of Section 467.203(1)(f), Florida Statutes (2001), could not proceed with her claim for attorney's fees and costs pursuant to Section 57.111(3)(1)(b), Florida Statutes (2002), which was reserved for applicants such as her corporation South Beach Maternity. By analogy, Petitioner Connolly was charged under an Administrative Complaint for a violation associated with Chapter 464, Florida Statutes, as an individual, not as a sole proprietor of an unincorporated business as defined in Section 57.111(3)(d)1a., Florida Statutes (2005). Petitioner Connolly is precluded in her opportunities to recover attorney's fees and costs in a manner not dissimilar to Midwife Daniels.
Since Daniels was decided by the Florida Supreme Court, Section 57.111(3), Florida Statutes (2005), has been amended by Chapter 2006-82, Laws of Florida, to include new language describing a "small business party" at Subsection 57.111(3)(c) that addresses:
An individual whose net worth did not exceed
$2 million at the time the action is initiated by a state agency when the action is brought against the individual's license to engage in the practice or operation of a business, profession, or trade.
That amendment is substantive in nature, and it post-dates the present action brought under a prior version of the statute where the attorney's fees and costs would not be authorized. As such, the revised statute may not be applied retroactively to the application for attorney's fees and costs in relation to matters transpiring before the effective date of the recent amendment. See Mullins v. John Kennelly and Patricia Kennelly, 847 So. 2d 1151 (Fla. 5th DCA 2003). Chapter 2006-82, Laws of Florida, became effective June 7, 2006, when approved by the Governor.
Should it have been concluded that Petitioner Connolly was a "prevailing small business party," which conclusion has not been reached, the itemization of services performed by her counsel in the original filing and the supplement to that filing has not been contested as to its details. The $350-hourly rate
charged is supported by an affidavit provided by Paul C. Perkins, Jr., Esquire, concerning the rate for attorney work performed in the area where Petitioner's counsel practices. The counter-affidavit by Edwin Bayo, Esquire, suggesting a $225-per hour rate is for another area in the state. As a consequence, the opinion for attorney Perkins is accepted and the $350-hourly rate is appropriate. The total charges for fees and costs do not exceed the $50,000 cap set forth in Section 57.111(4)(d)2., Florida Statutes (2005).
Had Petitioner Connolly shown that she was a prevailing small business party, it would not matter, in that the Department of Health has shown that it was substantially justified in its decision to proceed with the prosecution at the time it initiated the disciplinary action. To decide the issue of substantial justification, resort is made to information before the Probable Cause Panel at the time it found probable cause. Resort is not made to events that occurred beyond that point. See Department of Health, Board of Physical Therapy
Practice v. Cralle, 852 So. 2d 930 (Fla. 1st DCA 2003); Fish v. Department of Health, Board of Dentistry, 825 So. 2d 421 (Fla. 4th DCA 2002); and Kibler v. Department of Prof'l Regulation,
418 So. 2d 1081 (Fla. 4th DCA 1982). In carrying out its responsibilities, the Department of Health in relation to Petitioner Connolly investigated the complaint concerning the
March 13, 2003, incident with Patient M.M. and considered the response made by the subject of that complaint, Petitioner Connolly, all in accordance with Section 456.073(1), Florida Statutes (2004). The investigative staff wrote a report concerning investigative findings that was made available to the Probable Cause Panel. § 456.073(2), Fla. Stat. (2004)
On June 20, 2005, a Probable Cause Panel consisting of two members was convened, and in that meeting confirmed that they had had sufficient time to review the materials submitted for their deliberations. Counsel, in attendance for the Department of Health there to advise the Probable Cause Panel, noted the information that had been provided to the Panel in discussion at the meeting to include the information from the investigative staff by way of the investigative report, attached exhibits and patient medical records, expert opinions, and materials from the licensee, Petitioner Connolly. Also provided was a draft of the Recommended Administrative Complaint. There ensued some discussion between an attendee, a Mr. Monte, concerning the Administrative Complaint related to Petitioner Connolly describing aspects of the case as to facts reviewed by that participant and suggested to the Panel members that the subject, Petitioner Connolly, failed to meet minimal standards of acceptable and prevailing nursing practice. Based upon those facts it was requested that the Probable Cause Panel authorize
the filing of an Administrative Complaint. One panel member moved to find probable cause and that motion was seconded by the second member.
The actions by the Probable Cause Panel, constituted of two members, were conducted in accordance with Section 456.073(4), Florida Statutes (2005).
In examining the choice by the Probable Cause Panel to proceed with the prosecution, the test applied is one of reasonableness. More specifically in, Fish, 825 So. 2d at 423 the court states:
In assessing the reasonableness of government action, for the Department to be 'substantially justified' in initiating disciplinary action against a licensee, it 'must have a solid though not necessarily correct basis in fact and law for the position it took in the action' McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.
1983). To sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violation had indeed occurred. See Kibler, 418 So. 2d at 1084. The evidence, however, need not be as compelling as that which must be presented at the formal administrative hearing on the charges to support a finding of guilt and the imposition of sanctions. See Dep't of Prof'l Regulation, Div. of Real Estate, v.
Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989).
In the present case, there was a solid enough basis in fact and law for the position taken by the Department of Health in pursuing that case against Petitioner Connolly.
The foundation for the decision to proceed against Petitioner Connolly, based upon a determination of probable cause, was not unsteady when considering facts and law such as to undermine the justification for the choice to proceed. See Department of Health and Rehabilitative Services v. S.G., 613 So. 2d 1380 (Fla. 1st DCA 1993).
The Department of Health had a working knowledge of the applicable statutes under which it was proceeding. Nothing in the record would indicate that the Probable Cause Panel was without the necessary legal insight concerning Chapter 464, Florida Statutes. See Helmy v. Department of Business and Professional Regulation, 707 So. 2d 366 (Fla. 1st DCA 1998). The working knowledge in the matter concerning Nurse Connolly, given the subject matter and the dialogue conducted before determining probable cause to discipline Nurse Connolly was more complete than that portrayed in the Helmy case excerpts taken from the Probable Cause Panel transcript before the Board of Veterinary Medicine in the Helmy case. Thus, it is distinguishable.
The role consulting experts played in the process leading to a determination to find probable cause was integral to the process but not controlling. The opinions of Nurse Velbis tended to support the finding of probable cause. The recommendation by Nurse Frank did not. It was not irregular to
reject the opinion of Nurse Frank and accept that provided by Nurse Velbis when voting to find probable cause. See Department
of Health v. Larry D. Thomas, 890 So. 2d 400 (Fla. 1st DCA 2004).
To support her application and motion for attorney's fees and costs, Petitioner Connolly cited to Section 57.041, Florida Statutes (2005), as authority. That provision states:
57.041 Costs; recovery from losing party.--
The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors of administrators in actions when they are not liable for costs.
Costs may be collected by execution on the judgment or order assessing costs.
That reference is not relevant to Petitioner Connolly's claims.
Based upon the facts found and the conclusions of law reached, it is
The application for attorney's fees and costs in association with DOH 2004-34970/DOAH Case No. 05-3268PL is denied.
DONE AND ORDERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida.
S
CHARLES C. ADAMS
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 24th day of October, 2006.
ENDNOTES
1/ The present case was originally filed as Department of Health, Petitioner v. Donna M. Cameron Connelly, R.N., C.R.N.A, Respondent, DOAH Case No. 05-3268PL/DOH Case No. 2004-34970, a case involving an administrative prosecution that forms the basis for the present case. The style has been corrected to reflect the true status of the parties in the present action.
2/ Notwithstanding the order on official recognition, the December 8, 2005, Recommended Order and February 27, 2006, Final Order in DOAH Case No. 05-3268PL, and DOH Case No. 2004-34970, respectively as maintained by the Clerk of the Division of Administrative Hearings, are considered in this case.
COPIES FURNISHED:
Katharine E. Price, Esquire Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Damon A. Chase, Esquire Chase Law Offices, P.A.
250 International Parkway, Suite 250 Lake Mary, Florida 32746
Dan Coble, Executive Director Board of Nursing
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 2006 | DOAH Final Order | Petitioner was not a prevailing small business party by definition. |
