Case No. 20-4678
vs.
Respondent.
Pursuant to notice, an administrative hearing took place on February 23, 2021, before Robert L. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (“DOAH”), by Zoom webcast.
Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330C St. Petersburg, Florida 33701
Cohn Slater, P.A.
Whether Petitioner proved by clear and convincing evidence that Respondent committed a Class II violation as alleged in the Administrative Complaint, by failing to perform cardiopulmonary resuscitation (“CPR”) on a resident at its facility.
On June 11, 2020, the Agency for Health Care Administration (“AHCA” or “Agency”) filed a two-count Administrative Complaint alleging that Pelican Garden, LLC (“Pelican Garden”), had violated a resident’s rights by failing to perform CPR after the resident was found unresponsive. AHCA notified Pelican Garden that it was seeking to impose administrative fines in the amount of five thousand dollars ($5,000.00) and assess survey fees in the sum of five hundred dollars ($500.00).
Pelican Garden took exception to this determination and disputed the material facts outlined in the Administrative Complaint. The case was referred to DOAH for the assignment of an ALJ.
A formal evidentiary hearing took place on February 23, 2021. The Agency and Pelican Garden called the same witnesses: Tikel Wedges-Phoenix, Health Facility Evaluator Supervisor; Anastasia Stanton, Health Facility
Evaluator II; Michelle Dillehay, Registered Nurse Consultant; the relative representative of resident number one (“R #1”); Margaret Conti, Pelican Garden Administrator; Dalia Portugal, Pelican Garden employee;
Marie Andre, Pelican Garden employee; Mimose Francois, Pelican Garden employee; and Kerri Conklin, a former Pelican Garden employee.
The undersigned admitted Agency Exhibits 1 through 21 into evidence.
Pelican Garden offered, and the undersigned admitted over objection, Composite Exhibit A, which was a collection of police reports and police photographs of the resident as she was found by the police in her bed.1
1 The pictures were relevant and probative regarding the condition of the resident when the staff arrived in her room and made quick and important response decisions which are the crux of Petitioner’s case and Respondent’s defense.
Respondent’s Motion to Determine Confidentiality of Court Records filed February 22, 2021, was GRANTED by separate Order. All documents and photographs contained in Respondent’s Exhibit A shall remain sealed and confidential and not accessible to the public and non-parties without notice to the parties and approval of the undersigned.
A Transcript of the proceeding was filed on March 17, 2021. The undersigned granted Pelican Garden’s unopposed request for an extension of time to file proposed recommended orders. The parties timely filed their proposed recommended orders which were reviewed and considered in the preparation of this Recommended Order.
All references to statutes, rules, or policies are to those versions in effect on the date of the occurrence, act, or omission.
The Agency completed a complaint survey of Pelican Garden on or about December 4, 2020.
The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALF”) and enforcement of applicable state statutes and rules governing ALFs pursuant to chapters 429, Part I, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-36.
Pelican Garden was, at all times material hereto, an ALF under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes.
The Agency’s surveyor cited Pelican Garden with a Class II deficient practice on or about December 4, 2020.
On or about July 24, 2019, R #1 was a resident at Pelican Garden’s facility.
Pelican Garden’s procedure for honoring a resident’s Do Not Resuscitate (“DNR”) Order includes circling the “DNR” located on the face sheet (information sheet) if a copy of the DNR is received and is on file at the facility.
Pelican Garden’s admission paperwork includes a “Memo” initialed by the resident or representative to acknowledge that the facility has requested a copy of the resident’s DNR Order, if one exists.
Pelican Garden’s DNR policy requires that a resident or representative provide the facility with a copy of a DNR Order on yellow paper, and then the facility files the order and places the resident on the Do Not Resuscitate Order (“DNRO”) list.
Pelican Garden’s DNR policy requires that if a resident has a DNR on file, the facility will place a “butterfly” on the back of the resident’s door in their room with the resident name on the butterfly to notify staff to not perform life saving measures including but not limited to CPR.
R #1’s executed contract, dated November 2, 2018, revealed a DNR form was requested from the resident’s representative as shown by the representative’s initials on the DNR policy and procedure page.
R #1’s resident face sheet (Information Sheet), dated November 2, 2018, did not have a circled DNR Order, indicating that the resident did not have a DNR on the date of R #1’s death.
R #1 did not have a DNR Order on file with Respondent on the date of
R #1’s death.
On or about July 24, 2019, at approximately 7:24 a.m., R #1 was found unresponsive in the resident’s room, with half of the resident’s body off the side of the bed with her legs on the ground and her head between the grab bar (removeable side rail) and the mattress, by Pelican Garden’s staff members “A,” “B,” “C,” and “D.”
On or about July 24, 2019, Pelican Garden’s staff member “C” was instructed by staff member “A” to take R #1’s roommate to the bathroom and then leave the room with the roommate.
On or about July 24, 2019, at approximately 7:24 a.m., Pelican Garden’s staff members “A,” “B,” and “D” worked to reposition R #1 to begin performing CPR and staff member “A” checked the resident’s pulse, observed the resident was pale and the resident’s skin was cold to the touch and made the determination that the resident had already passed.
On or about July 24, 2019, Pelican Garden’s staff member “D” helped reposition R #1 and then left the room.
On or about July 24, 2019, Pelican Garden’s staff member “D” was certified in CPR.
On or about July 24, 2019, Pelican Garden’s staff members “A,” “B,” “C,” or “D” did not perform CPR on R #1.
On or about July 24, 2019, at approximately 7:36 a.m., Pelican Garden’s staff member “A” dialed 911 at approximately 7:38 a.m. and, at approximately 7:39 a.m., stated it’s too late for CPR for R #1.
On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s staff member “A” called Pelican Garden’s Administrator who instructed staff member “A” not to administer CPR to R #1.
On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s Administrator had no firsthand knowledge of the condition of R #1.
On or about July 24, 2019, at approximately 7:42 a.m., the Emergency Medical Services (“EMS”) arrived at Pelican Garden’s facility.
On or about June 24, 2019, at approximately 7:45 a.m., the Emergency Medical Technician (“EMT”) pronounced R #1 as dead.
Pelican Garden’s staff member “A” received a basic life support CPR and automated external defibrillator (“AED”) certification dated October 5, 2017, with an expiration date of October 2019.
Pelican Garden’s staff member “A” was certified to perform CPR at the time of R #1’s death.
Pelican Garden submitted a Plan of Correction dated January 22, 2020.
Before, during, and after July 24, 2019, Pelican Garden’s policy to respond to an unresponsive resident without a DNR was to start CPR.
Pelican Garden retrained staff on the response to an unresponsive resident without a DNR after the December 4, 2019, AHCA survey.
On or about July 24, 2019, to December 4, 2019, Pelican Garden had more than one resident who did not have a DNR.
Other Material Facts Established at the Hearing
Dalia Portugal (“Portugal”) had worked at Pelican Garden for eight years. Marie Andre (“Andre”) is a home health aide. She has worked as a caregiver at ALFs for more than a decade. Mimose Francois (“Francois”) is also a home health aide. Francois had been a caregiver at another facility for 13 years.
On July 24, 2019, when Portugal first arrived at work, there had been a shift change of staff at 7:00 a.m.
This incident involved a 96-year-old resident at Pelican Gardens ALF. The resident, R #1, had moved into the facility at Pelican Garden in November 2018. The documents revealed that she suffered from a variety of ailments and diseases including: dementia, hypertension, high cholesterol, gastro reflux disease, was a fall risk, had macular degeneration, and was hard of hearing. Pet. Ex.14, at 14b.
Shortly after her arrival, at approximately 7:22 a.m., Portugal took a call from R #1’s roommate. She advised her that R #1 was on the floor and she didn’t know how long she had been on the floor.
At 7:24 a.m., Pelican Garden’s staff members Portugal, Andre, Francois, and Kerri Conklin arrived at R #1’s room and found her
unresponsive. She was positioned with half of her body off the side of her bed. Her legs were on the ground and her head was positioned between the horizontal bedrail and the mattress.
Together, Portugal, Andre, and Francois took hold of R #1 and worked to reposition her up on to her bed in an effort to begin performing CPR.
Immediately after getting her on the bed the staff made several close observations of R #1. One staff member, Francois, testified that R #1 had no pulse, was pale, was not breathing, her face was smashed, and her body temperature was cold--“cold like ice.”
Portugal made similar observations. She stated that R #1’s body temperature was cold--freezing cold--she had no pulse, was pale, not breathing, her nose was tilted to one side, and there was blood on the bed.
The other staff member who responded, Andre, testified in a similar fashion. She added that R #1’s face was “smooshed.” After placing her on the bed, Andre said no CPR was conducted because “she was already dead.”
When Portugal, Andre, and Francois repositioned R #1 on the bed in order to start CPR, they were unable to lay R #1 flat because her legs were stiff and stuck in the bed side kneeling position in which they found her.
The photographs admitted as part of Respondent’s Exhibit A were insightful and provided compelling evidence that when the staff discovered R #1 she was already dead.2
The evidence was overwhelming and without serious dispute that R #1 was dead when she was discovered by the staff on the morning of July 24, 2019.
During the course of the hearing the parties and witnesses frequently used the term “unresponsive” to describe R #1’s condition when she was discovered. However, the common understanding and plain meaning of this term in a medical emergency context implies an individual who may be in
2 The photographs also supported the testimony of the aides concerning the condition in which they found R #1.
medical distress, but is revivable, i.e., one who does not respond to questions, touch, or neurological or sensory stimulation.
Sadly, however, R #1’s cold, pale, lifeless, and stiff body was more than just “unresponsive” when she was first discovered by the staff. The facts, and reasonable inferences from the facts, established that she could not have been revived. She was lifeless and dead.
Additionally, the reasonable inferences from the location where she was found, the medical problems she had, and the fact that she had been observed sleeping in bed during a 5:23 a.m. bed check indicate that she had gotten out of bed, attempted to walk somewhere in the room, had fallen near her bed, and severely injured her face during the fall. Resp. Ex. 14, at 14D.
She had been dead on the floor long enough when the staff discovered her to cause her body to go cold and begin to stiffen.
The clear and convincing evidence established that she was dead and unrevivable when she was discovered by the staff at 7:24 a.m.
No amount of cardiopulmonary resuscitation would have revived or aided R #1. Such efforts would have been futile, pointless, and of no use.
After the staff called 911 and the facility administrator, EMS arrived at Pelican Garden at approximately 7:42 a.m. Notably, even the EMTs did not attempt to perform CPR on R #1.
Approximately three minutes after arriving, the EMTs pronounced R #1 dead.
Law enforcement arrived shortly after the EMTs and conducted an investigation. The officers questioned Pelican Garden staff and took several photos of R #1 as she appeared after Pelican Garden staff repositioned her on her bed.
The officers noted “a large amount of bloody purge” coming from R #1’s mouth on the right side of the bed, and a small amount of bloody purge on the pillows and the bed on the left side of R #1’s head. Resp. Ex. A at 8.3
After receiving Pelican Garden’s report detailing the circumstances surrounding the death of R #1, the Agency conducted its own survey of the facility on December 4, 2019.
The AHCA surveyor spoke to Portugal and Conklin.
The AHCA surveyor spoke with R #1’s physician and learned that R #1 had died of a heart attack. The surveyor also spoke with someone at the Medical Examiner’s Office and learned that no autopsy had been performed.
The AHCA surveyor did not speak with the EMTs or the police officers that responded to Pelican Garden.
The AHCA surveyor completed the investigation and cited Pelican Garden for violating R #1’s resident’s rights by failing to perform CPR when R #1 was found “unresponsive” since R #1 did not have a DNR in place.
According to the AHCA surveyor, there are circumstances where it would be inappropriate or unnecessary to perform CPR on a resident who was found unresponsive. Specifically, when staff cannot get to the resident or position the resident for some reason. The surveyor also agreed with counsel that it “wouldn’t make sense” to perform CPR on a resident who, for example, was found decapitated.
AHCA’s professional witness, Michelle Dillehay (“Dillehay”), is a nurse consultant employed by AHCA. She was questioned about the general obligation to perform CPR when an individual is found unresponsive and does not have a DNR in place.
3 The contents of the Sebastian police report and photographs are reliable, relevant, and supplement or explain other evidence. As a result, they were admitted and have been considered by the undersigned. See generally §§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat.
In her opinion, based on the application of recognized standards within the community, CPR must be initiated on an “unresponsive” individual except in limited circumstances not applicable to this case.
She was not questioned, however, using hypothetical questions about the specific circumstances of this case. Likewise, the undersigned was unable to conclude that she was knowledgeable about R #1’s pre-existing medical problems or physical condition, or her appearance at the time of her discovery, or when she was photographed by the police on the bed. More to the point, there was no persuasive evidence that Dillehay had seen or reviewed the police report or pictures of R #1 taken by the Sebastian Police Department. Resp. Ex. A.
In short, Dillehay gave a broad opinion without being specifically or thoroughly questioned or briefed about the unique circumstances of this case, or how that might affect her view of the actions taken by the Pelican Garden staff on July 24, 2019.
The scope of her opinion was limited and not necessarily specific to the facts of this case. She opined that in those instances where a person does not have a DNR, they must be given CPR when found in an unresponsive state. She went so far as to state that CPR must be initiated even on a dead person.
While her testimony was instructive in a very general sense and no doubt sincere, the undersigned affords little weight to it because a broad application of the CPR/DNR requirement explained by Dillehay cannot, or should not, be applied in all cases--especially when a person is discovered dead and in a stiffened, cold, and lifeless state with no pulse or respiration. Otherwise, such a requirement would be unreasonable and lead to absurd results.
To the extent Dillehay’s opinion means or suggests that the Pelican Garden staff was required to initiate CPR on R #1 under the facts of this case, it is rejected as unsupported by a reasonable and correct interpretation of the law. Further, it is up to the undersigned to determine the weight and
credibility given to an expert’s testimony. Behm v. Div. of Admin., State Dept. of Transp. 336 So. 2d 579 (Fla. 1976).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of these proceedings and the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat.
AHCA is the state agency charged with licensing and regulating ALFs in Florida in accordance with chapters 408 and 429, part I.
The Agency seeks to take action against Pelican Garden’s ALF license. This action is penal in nature. Therefore, the Agency must prove its allegations and case by clear and convincing evidence. Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987)(“‘Clear and convincing evidence’ is an intermediate level of proof that entails both a qualitative and quantitative standard. It requires the evidence to be credible and the memories of the witnesses to be clear and without confusion. In addition, the total sum of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.”).
Another equally important rule involves the construction of penal statutes that sanction a business or individual, or imposes penalties.
Cadet v. Department of Health, 255 So. 3d 386 (Fla. 4th DCA 2018), involved an enforcement action against an individual’s nursing license. The court recognized that an agency’s discretion to sanction a person’s license is not unfettered and reviewing courts are not required to defer to implausible and unreasonable interpretations by the agency.
The court added that “because disciplinary statutes and rules are penal in nature, they must be construed strictly with any ambiguities resolved in favor of the licensee.” Id. at 388. This rule applies with equal force in this case.
The Agency’s enforcement action against Pelican Garden is premised, in part, on a violation of the following statute which is commonly referred to
as the Resident’s Bill of Rights. Section 429.28(1) and (2), Florida Statutes (2019), provides:
No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:
Live in a safe and decent living environment, free from abuse and neglect.
Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
Retain and use his or her own clothes and other personal property in his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents.
Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations.
Freedom to participate in and benefit from community services and activities and to pursue the highest possible level of independence, autonomy, and interaction within the community.
Manage his or her financial affairs unless the resident or, if applicable, the resident’s representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the
facility to provide safekeeping for funds as provided in s.429.27.
Share a room with his or her spouse if both are residents of the facility.
Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather.
Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident.
Assistance with obtaining access to adequate and appropriate health care. For purposes of this paragraph, the term “adequate and appropriate health care” means the management of medications, assistance in making appointments for health care services, the provision of or arrangement of transportation to health care appointments, and the performance of health care services in accordance with s. 429.255 which are consistent with established and recognized standards within the community.
At least 45 days’ notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least
45 days’ notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction.
Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. Each facility shall establish a grievance procedure to facilitate the residents’ exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups.
Section 408.813(2)(b) characterizes the different violation levels and provides:
(2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. The scope of a violation may be cited as an isolated, patterned, or widespread deficiency. An isolated deficiency is a deficiency affecting one or a very limited number of clients, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency in which more than a very limited number of clients are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same client or clients have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the provider. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the provider or represent systemic failure that has affected or has the potential to affect a large portion of the provider’s clients. This subsection does not affect the legislative determination of the amount of a fine imposed under authorizing statutes. Violations shall be classified on the written notice as follows:
* * *
(b) Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation.
Section 429.19(2)(b) outlines the fines available and provides:
(2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:
* * *
(b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than
$1,000 and not exceeding $5,000 for each violation.
Finally, Section 429.19(7) provides:
(7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted to verify the correction of the violations.
Other relevant statutory sections are applicable to ALFs. Section 429.255(4) addresses a DNRO.
Facility staff may withhold or withdraw cardiopulmonary resuscitation or the use of an automated external defibrillator if presented with
an order not to resuscitate executed pursuant to
s. 401.45. The agency shall adopt rules providing for the implementation of such orders. Facility staff and facilities may not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation or use of an automated external defibrillator pursuant to such an order and rules adopted by the agency. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation or use of an automated external defibrillator as otherwise permitted by law.
Further, rule 59A-36.009, entitled DNROs provides, in relevant part:
POLICIES AND PROCEDURES.
(a) Each assisted living facility must have written policies and procedures that explain its implementation of state laws and rules relative to Do Not Resuscitate Orders (DNROs). An assisted living facility may not require execution of a DNRO as a condition of admission or treatment. The assisted living facility must provide the following to each resident, or resident’s representative, at the time of admission.
DNRO PROCEDURES. Pursuant to section 429.255, F.S., an assisted living facility must honor a properly executed DH Form 1896 as follows:
In the event a resident experiences cardiac or pulmonary arrest, staff trained in cardiopulmonary resuscitation (CPR) or a health care provider present in the facility, may withhold cardiopulmonary resuscitation (artificial ventilation, cardiac compression, endotracheal intubation and defibrillation).
In this case, there is no charge or evidence to prove that Pelican Garden did not have written DNR policies and procedures in place, or that it failed to properly train its employees regarding the proper protocols when a DNRO exists. Likewise, Pelican Garden provided all the required notices to R #1 regarding her right to sign or not sign a DNRO.
Further, there is no allegation that the Pelican Garden staff failed to timely respond to the call from R #1’s roommate or was otherwise dilatory in its response in terms of the time, personnel, and resources devoted to R #1 for the incident on July 24, 2019. These are not the issues or basis of the Administrative Complaint.
Rather, AHCA alleges that R #1’s rights were violated, and a Class II violation occurred when the staff failed to perform CPR on R #1.
More specifically, AHCA alleges that the decision of Pelican Garden not to initiate CPR on R #1 upon finding the resident unresponsive was in violation of the resident’s right to access adequate and appropriate healthcare and to be free from abuse and neglect. Rights, it alleges, which are guaranteed to residents of ALFs under the provisions of section 429.28.
Interestingly, and of particular note, is that the parties have not cited, and the undersigned has not discovered, a statute or rule directly addressing what an ALF staff member must do when a DNRO does not exist. Nor is there a statute or rule expressly requiring that an ALF staff member initiate CPR under all circumstances to a deceased resident when there is no DNRO.
Rather, the statutes and rules cited by AHCA carefully set forth what can and may be done when a DNRO exists, but not what must be done if a resident has no DNR, particularly when they are found indisputably dead in their room.4
4 In the absence of a DNRO, a physician may withhold or withdraw CPR “as otherwise permitted by law.” § 429.255(4), Fla. Stat. That same subsection permits a facility staff member to withhold or withdraw CPR if a DNRO exists, but it does not direct a staff member to initiate CPR upon finding a resident who is dead and does not have a DNRO.
While it is true that Pelican Garden recognized that it had the responsibility to initiate CPR under appropriate circumstances, it was reasonable for the staff not to start CPR when it found this resident dead, and the collective judgment of three experienced and well-trained aides on the scene supported the reasonable conclusion that it would be futile to start CPR. Interpreting the statutes and rules any differently would be unreasonable and lead to absurd results.
Relevant Cases on Statutory Interpretation
A case that illustrates this point is Vrchota Corporation v. Kelly, 42 So. 3d 319 (Fla. 4th DCA 2010). In a straightforward case applying well accepted principles of statutory interpretation, the court confirmed an important principle that applies to this case:
The legislature is not presumed to enact statutes that provide for absurd results. If some of the words of the statute, when viewed as one part of the whole statute or statutory scheme, would lead to an unreasonable conclusion or a manifest incongruity, then the words need not be given a literal interpretation.
Id. at 322; See also, Gannon v. Airbnb, Inc., 295 So. 3d 779 (Fla. 4th DCA 2020).
To interpret AHCA’s cited provisions of chapter 429, or rules to require CPR on a resident that had been dead for some time, or to interpret section 429.255 to affirmatively require CPR when the plain words of this statute do not contain this requirement, would be unreasonable and lead to absurd results.
Another corollary rule of statutory construction requires a court to avoid a literal interpretation of a statute that would result in an absurd or ridiculous conclusion. Brown v. Nationscredit Fin. Servs. Corp., 32 So. 3d 66 (Fla. 1st DCA 2010); M.D. v. State, 993 So. 2d 1061 (Fla. 1st DCA 2008)(citing
Maddox v. State, 923 So.2d 442, 446 (Fla. 2006)); and State v. Atkinson, 831
So. 2d 172, 174 (Fla. 2002).
This case presents a prime example of how these principles of statutory interpretation play out. If the cited provisions of chapter 429 were interpreted to require Pelican Garden’s staff to initiate CPR under these circumstances, it would lead to countless situations where an ALF or nursing home would be required to start CPR under the most hopeless and futile of circumstances.5
Chapter 429, and the rules related to honoring a DNRO, must be interpreted to account for the use of common sense, experience, and reasonable professional judgment by trained and experienced staff, particularly under the compelling facts of this case.
Additionally, AHCA is asking the undersigned to engraft on to the existing statute a requirement that does not exist. The statute is clear about what staff can do when a DNRO exists. It also states that a physician may withhold or withdraw CPR even when there is no DNRO.
However, the statute does not specifically require CPR by a staff member when there is no DNRO and the resident is clearly and irreversibly dead. The undersigned cannot add this missing provision to the statute.
Under the unique circumstances of this case, the Agency failed to clearly and convincingly prove that Pelican Garden violated R #1’s resident’s rights by failing to perform CPR.
Other Relevant Law
Other provisions of Florida case law and statutes provide guidance and support the sensible conclusion that R #1 was dead when the staff found her, and that it would be unreasonable to require CPR under these circumstances.
5 Taking AHCA’s argument to its logical conclusion, there would be no limit to the amount of time a resident could be dead before an obligation to perform CPR would end. Must the staff perform CPR after the resident has been dead for one hour, five hours, or ten hours? This seems an incongruous and illogical result.
For instance, the Florida Supreme Court, applying the common law definition of “death,” concluded that in the absence of a specific statute defining death, “[A] person is dead who has sustained irreversible cessation of circulatory and respiratory functions as determined in accordance with accepted medical standards.” In re: T.A.C.P., 609 So. 2d 588, 594 (Fla. 1992). The evidence, supported by the photographs, was clear and convincing that this was the state in which the staff found R #1--no pulse, no breathing, stiffening limbs, pale complexion, damaged facial areas, and very cold to the touch.
Likewise, “‘Dead body’ means a human body or such parts of a human body from the condition of which it reasonably may be concluded that death recently occurred.” § 382.002(5), Fla. Stat.
Under the circumstances (very cold, pale complexion, damaged facial areas, no respiration, no pulse, and stiffness), it was reasonable to conclude, based on the collective judgment of three experienced aides, that R #1 had died and CPR would have been futile.
Portugal, Andre, and Francois—while not competent to sign a death certificate or determine a cause of death—were entitled to rely on their personal knowledge and years of caregiving in ALFs to determine that R #1 had died. The Agency’s position that only medical professionals can make such a determination is not supported by the law or common sense.6
The Agency’s reliance on the Recommended Order issued in Agency for Health Care Administration v. Pine Tree Manor, Inc., d/b/a Pine Tree Manor, Case Nos. 13-2011, 13-2397 (Fla. DOAH Dec. 5, 2013)(Fla. AHCA Nov. 3, 2014), is understandable but misplaced. The present case is distinguishable.
In Pine Tree Manor, the resident in question walked into a facility common area, sat on the sofa, and began watching television. Pine Tree
6 Nor has AHCA cited any case or statute for this proposition.
Manor, pp. 6-7. At some point, the resident stopped breathing. After discovering the resident, Pine Tree staff failed to check for a pulse, perform CPR, or call 911. Id. at p. 7.
Instead, staff called the administrator and the administrator called 911. Id. at p. 10. When EMS arrived, there was no Pine Tree staff present, and when staff finally arrived, staff refused to answer any questions about the resident. Id. at p. 9. EMTs worked for 30 minutes in an unsuccessful attempt to revive the resident. Id. at p. 8. The ALJ found that the resident was “at all times relevant hereto was in an emergency situation.” Id. at p. 23.
In this case, R #1 was found partially on and off the bed kneeling next to her bed with her head and neck caught between the bedrail and the mattress--the apparent victim of a fall. When found, Pelican Garden staff immediately repositioned her so that they could start CPR. Staff checked her breathing, her pulse, and her body temperature. They called 911 before calling the administrator. They were present when EMS arrived. They answered all questions posed to them. And the EMTs did not perform CPR on R #1 because she was already dead.
Importantly, unlike the resident in Pine Manor, R #1 was not in an emergency situation. She had clearly passed and was dead when the staff arrived.
Under the facts and unique circumstances of this case, the decision of Pelican Garden not to initiate CPR on R #1 upon finding her clearly dead did not violate her right to access adequate and appropriate healthcare, and did not constitute abuse or neglect by Pelican Garden of her rights under the provisions of section 429.28.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that due to the unique circumstances of this particular case
the Agency dismiss the Administrative Complaint filed against Pelican Garden and find that no violation occurred.
DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida.
ROBERT L. KILBRIDE
Division of Administrative Hearings this 19th day of May, 2021.
Dwight Oneal Slater, Esquire Cohn Slater, P.A.
Agency for Health Care Administration 525 Lake Mirror Drive North, Suite 330B St. Petersburg, Florida 33701
Richard J. Shoop, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3
Elizabeth Anne Hathaway DeMarco Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330C St. Petersburg, Florida 33701
Thomas M. Hoeler, Esquire
James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Shena L. Grantham, Esquire
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.
