Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a clinical laboratory supervisor's license without examination be DENIED. Respectfully submitted and entered this 15th day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Joan Marie Bartoe 1 Plaza Manor Venice, Florida 33595 Anthony DeLuccia District VIII Counsel Department of HRS Post Office Box 2258 Ft. Myers, Florida 33902 Secretary David H. Pingree Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 67443, based on a two-count violation, Sections 458.331(1)(m) and (t), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and the testimony of witnesses presented in this proceeding, the following facts are found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 67443 by the State of Florida. At all times material hereto, Respondent practiced as an emergency room physician. When treating a patient, an emergency room physician has a duty to rule out the most serious life- threatening conditions. Pulmonary embolism is a blood clot, which forms in or travels to the lungs. It is a life-threatening condition. A thrombus is a blood clot that forms at a particular site, while an embolus is a piece of a thrombus that breaks off and wedges itself in another artery. The most common type of thrombus that causes pulmonary embolism is a deep vein thrombus, which originates in the lower extremities (legs). Once a thrombus forms in the leg, an emboli can break off from the thrombus, travel through the bloodstream and wedge itself in the lungs, creating a pulmonary embolism. On June 13, 1995, Patient R.D. presented to the emergency room of the Daytona Beach Medical Center in Daytona Beach, Florida, at approximately 7:35 p.m. Patient R.D. was a 41 year-old obese male who weighed 305 pounds. Patient R.D. presented to the emergency room complaining of chest pain (rated 3-4 on a scale of 10) and shortness of breath beginning at 8:30 a.m. that day. The patient was seen by a nurse who prepared a "triage nursing assessment." The nurse documented the following about Patient R.D.: Chief complaint of nausea and diaphoresis (cold sweat) earlier in the day; pulse rate of 112, which indicated tachycardia; elevated respiratory rate of 28; labored breathing; clear breath sounds; and trace pedal edema. The "Implementation: Nursing Action" noted that Patient R.D. had marked dyspnea (labored breathing). He was immediately placed on oxygen. At 7:40 p.m., Respondent, the emergency room physician on duty, examined Patient R.D. During Respondent's subjective examination of Patient R.D., Respondent documented: Chest pain all day, heaviness in the center of the chest with some nausea, negative vomiting; negative numbness and sweating; negative history of this [sic]; positive shortness of breath all day with chest pain, but can work; negative history of asthma; negative history of heart disease; family history positive for cardiac disease (mother in her 60's); social history (smoked a joint 24 hours ago). The patient reported that despite his complaints, he was still able to work. Patient R.D. was obese and had recently smoked marijuana, two of the secondary risk factors associated with pulmonary embolism. Patient R.D. did not present to Respondent with the classic signs and symptoms of pulmonary embolism. While taking Patient R.D.'s history, Respondent did not document any history of cholesterol levels, cigarette smoking, recent leg injury, prior blood clots, or sedentary time periods. Respondent failed to document important aspects of Patient R.D.'s family and social history. Respondent failed to adequately document the history taken. Respondent performed a complete physical examination of the patient, including an examination of his legs. During Respondent's objective examination of Patient R.D., Respondent documented: lungs clear to auscultation (no rattles or wheezing) with good alveolar BS bilaterally; cardiac S1S2 and distant; abdomen obese and negative tender; legs with 1+ pedal edema; negative CVA tender (no tenderness over kidneys); no nuchal rigidity (no neck stiffness). The patient had no diaphoresis in the emergency room. Respondent then ordered a chest X-ray, an electrocardiogram (EKG), blood work (CBC), and electrolyte panel and cardiac enzymes. Respondent also had a pulse oximetry performed. Major risk factors of pulmonary embolism include: history of malignancy, recent leg injury, prior blood clots including deep vein thrombosis, and sedentary time periods. Secondary risk factors include: obesity and smoking, including marijuana smoking, and elevated cholesterol levels. The signs and symptoms of pulmonary embolism include, but are not limited to, shortness of breath, chest pain or pressure, diaphoresis (sweating), increased respiratory rate, and tachycardia (abnormal rapid heart rate). Although Respondent testified that he considered pulmonary embolism as one of his top five differential diagnoses, the patient's clinical signs and symptoms were insufficient for Respondent to have to rule out a pulmonary embolism. As the signs and symptoms of a pulmonary embolism can wax and wane, it is not an easy diagnosis to make. When examining the legs of a patient suspected of having a pulmonary embolism, the standard of care requires a physician to look for swelling, edema, tenderness and a cord, which would be a clotted vein. In order to determine tenderness, a physician must palpate the legs of the patient. Also, when examining the legs, a physician should perform an examination by stretching the calf to look for tenderness (called Homan's sign). Respondent performed a palpation of the patient's legs, but did not perform an examination for Homan's sign. Respondent's physical examination of Patient R.D. was adequate under the circumstances. The standard of care requires that a physician document pertinent positives and negatives in the medical records. Swelling, edema, tenderness and results of palpation are pertinent positives and negatives. Although Respondent performed an adequate physical examination of Patient R.D., Respondent failed to adequately document the physical examination. In this case, the pertinent positives or negatives should have included the results of the leg examination including, but not limited to, swelling, tenderness, palpation for cords and tenderness, and motion of the foot. Specifically, Respondent did not document whether he palpated the legs of Patient R.D., or whether the examination revealed any swelling or tenderness in the legs. Moreover, Respondent did not document Patient R.D.'s respiratory status. Also, Respondent did not document any history of deep vein thrombosis (DVT), which is a pertinent positive or negative. An EKG reveals the rhythm of the heart. Respondent ordered an EKG and reviewed the computer printout of the EKG results, which revealed non-specific ST changes. Respondent noted the non-specific ST changes in his notes. The EKG also revealed sinus tachycardia and S1-Q3-T3 changes. Tachycardia on an EKG is abnormal, unless the cause is determined. In order to treat tachycardia, a physician must determine the underlying cause, which directs the physician to the appropriate treatment plan. Respondent did not determine the underlying cause of Patient R.D.'s tachycardiac condition. S1-Q3-T3 reveals a strain on the right side of the heart. Respondent did not document the tachycardia or S1-Q3-T3 changes, or determine their underlying cause. Respondent did not recommend admission for Patient R.D. even though Patient R.D. had an abnormal EKG. Respondent also ordered blood work, a chest X-ray, and a pulse oximeter test. Respondent and the Radiologist interpreted the chest X-ray as negative. The patient's pulse oximeter initially revealed a 91 percent rating, a subsequent pulse oximeter revealed a 92 percent. A 91-92 percent pulse oximeter is low in a 41 year-old male, unless the patient has a long standing history of chronic lung disease. Respondent did not order arterial blood gases or a lung scan for Patient R.D. An arterial blood gas test is more accurate than a pulse oximeter. Respondent should have ordered an arterial blood gas only if the pulse oximeter did not improve. After the breathing treatment, Patient R.D.'s pulse oxmeter was 96 percent, which is a significant improvement. A physician must order a lung scan after looking at a constellation of all factors put together, including increased heart rate, low pulse oximeter, increased respiratory rate, abnormal EKG and symptoms of chest pain and shortness of breath. Respondent did not order a lung scan for Patient R.D., even though it could have been ordered. A lung scan is the standard regimen for diagnosing a pulmonary embolism. At approximately 8:00 p.m., Patient R.D. was nauseated and vomited light green bile. Respondent treated Patient R.D. with Proventil, a nebulizer, which is used to treat and relieve bronchospasms. Patient R.D. felt better after the Proventil treatment. Respondent diagnosed Patient R.D. with Hyperactive Airway Disease and Diabetes. Although an emergency room physician does not admit patients, an emergency room physician can recommend to the private physician that a patient be admitted for further evaluation. A private physician relies heavily on the information presented by the emergency room physician. If the private physician disagrees with the emergency room physician recommendation, then the private physician must come to the hospital to personally examine and discharge the patient. Respondent contacted the patient's family physician, advised him of the patient's condition, but did not recommend Patient R.D. be admitted. In the early morning hours of June 14, 1999, Patient R.D. died as a result of a bilateral pulmonary embolism. Respondent's care and treatment of this patient was supported by the testimony of two experts. They indicated that the major risk factors for pulmonary embolism are malignancy, surgery or any trauma to the long bones; none of which were present in this case. The secondary risk factors are pregnancy, cigarette smoking and obesity. Pulmonary embolism is seen most often in orthopaedic surgery patients and, secondarily, in patients with fractured long bones or multiple trauma including the lower extremities. The only sign and symptom that is seen with any regularity in the presentation of pulmonary embolism patients is shortness of breath. Other signs and symptoms occur with such infrequent regularity as to be non-specific and can occur in a plethora of other illnesses. Patient R.D. did not have any of the primary risk factors for pulmonary embolism and any reasonable physician would not think of pulmonary embolism as a primary diagnosis or even as a conceivable diagnosis in a patient with these present symptoms. The experts agree that Patient R.D.'s relatively minor complaints of shortness of breath would have even given Respondent a clinical suspicion of pulmonary embolism. When examined, Patient R.D. was not diaphoretic or apprehensive, had normal color, with skin warm to the touch. The patient simply did not present as one in acute distress secondary to sudden pulmonary embolism as the Petitioner contends. At discharge the patient had improved so significantly that his oxygen saturation rate was near normal and respiration rate near normal. Dr. R. Latanae Parker had reviewed the autopsy and drew several conclusions from it. He interpreted the medical examiner's microscopic examination of the clot to indicate that they were "fresh" and mobilized within minutes of death. Dr. Parker testified that this patient died of a sudden death by a sudden pulmonary embolism that was massive enough to occlude blood flow such as there was not adequate profusion to the coronary system and to the cerebral system. Based on Patient R.D.'s condition before discharge from the emergency department, Dr. Parker testified it was not necessary for Respondent to have pulmonary embolism as one of his differential diagnoses or to have otherwise ruled out that condition. Petitioner has presented no credible testimony which would establish that the deep vein thrombosis (DVT) seen on autopsy was diagnosable in the emergency room by gross exam, palpation or otherwise. The DVT seen on autopsy was silent and, therefore, undiagnosable in the emergency room as Patient R.D. did not have a history of trauma, swelling, inflammation or discoloration of his lower extremities. The autopsy supports Dr. Parker's testimony because the leg circumferences were found to be equal and there was no indication of swelling, discoloration or evidence of trauma. Petitioner's standard of care expert, Dr. Jay Edelberg, provided testimony which actually refutes several allegations in Petitioner's complaint. Specifically, Dr. Edelberg agreed that Respondent's initial assessment of Patient R.D.'s heart was adequate and that Respondent did not ignore Patient R.D.'s cardiac status. Dr. Edelberg also agreed that it was not inappropriate for Respondent to have provided this patient with the Proventil breathing treatment and that a diagnosis of a chronic airway condition was unnecessary in order to treat with such nebulizer. Dr. Edelberg also agreed that Respondent accurately interpreted the EKG and chest X-ray and his findings were properly recorded in the chart. Respondent appropriately diagnosed Patient R.D.'s condition and pursued the appropriate plan of treatment of the patient's condition. Respondent appropriately evaluated the patient's history and complaints which the patient had provided to the triage nursing staff. Respondent performed an appropriate assessment of the patient in the emergency room including obtaining a history of his subjective complaints; his pertinent medical history; and an objective physical evaluation of the patient while in the emergency room. Respondent appropriately ordered the necessary tests to evaluate the patient's condition, based on his examination including an EKG, portable chest X-ray, blood chemical profile, complete blood count, cardiac enzymes and pulse oximeter test. Respondent appropriately interpreted the aforementioned diagnostic studies and tests in establishing his diagnosis and treatment of the patient. Respondent appropriately diagnosed the patient with hyperactive airway disease (i.e., bronchospasm) and properly treated that condition with Proventil while in the emergency room. Respondent appropriately diagnosed the patient with diabetes based on his elevated blood sugars and appropriately coordinated the treatment of that condition with the patient's family practitioner on the following day. Respondent appropriately assessed the patient's risk factors for pulmonary embolism, including his examination of the patient's legs to determine the presence of any signs of deep vein thrombosis. Respondent did consider the patient's report to the triage nurses that he had been diaphoretic earlier in the day. Respondent did consider the patient's complaints of chest pain and appropriately treated him for that condition. Respondent appropriately considered the patient's cardiac status and fully assessed the possibility that the patient's condition was of cardiac origin. Respondent appropriately interpreted and considered the non-specific changes in the patient's EKG in the course of his diagnosis and treatment of Patient R.D. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by not referring the patient to a cardiology or pulmonary specialist. Respondent appropriately discharged the patient from the emergency room, as admission to the hospital was not indicated under the circumstances based on the patient's significant improvement. Respondent's treatment plan for Patient R.D. was appropriate for his presenting complaints. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with that level of care, skill or treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the case of Patient R.D. Respondent did not adequately maintain medical records which justified his plan of treatment for Patient R.D. to include the history; examination results; test results; drug prescribed, dispensed and administered; and documentation of his having conferred with Patient R.D.'s reported primary care physician.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Medicine enter a final order, in which: Respondent is found not guilty of violating Section 458.331(1)(t), Florida Statutes. Respondent is found guilty of violating Section 458.331(1)(m), Florida Statutes. Respondent be disciplined, as follows: Administrative Fine of $500.00. Reprimand. DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 27th day of December, 1999. COPIES FURNISHED: Carol A. Lanfri, Esquire Kristy Johnson, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Art C. Young, Esquire Rissman, Wiesberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street, 15th Floor Orlando, Florida 32801 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner filed application for a clinical laboratory supervisor's license on March 31, 1977. Attached to this application as Exhibit 1 are transcripts of college credits, a certificate from the University of Chicago Hospitals and Clinics and a letter dated November 2, 1977 from the Executive Director of the Joint Review Committee for Respiratory Therapy Education (JRCRTE). Petitioner's claim for credit for the seven years experience required for licensure is dependent upon him being given credit for the advanced accelerated program he took at the University of Chicago Hospitals and Clinics. The University of Chicago Hospitals and Clinics is not a part of the University of Chicago. The JRCRTE is the arm of the American Medical Association which accredits various training courses and programs offered by medical education schools. The University of Chicago Hospitals and Clinics offered a two year course which has now been reduced to 18 months in respiratory therapy which is accredited by the JRCRTE. In addition, this school also offers an accelerated advanced standing program to qualified individuals with prior experience. This is the program completed by Knize. The program is concluded in five weeks and upon successful completion of the program the National Board for Respiratory Therapy, Inc. accepts graduates as qualified for admission to the Registry Examination for Respiratory Therapists, the same as they accept graduates from the two year or 18 months regular program. The JRCRTE accredits only programs of normal duration and for Respiratory Therapy than is approximately 2 years. However, they encourage the use of advanced standing principles. The letter of November 2, 1977 from JRCRTE above referred to, stated: It is of great concern to the Committee that a state agency would not recognize a graduate who has received advanced standing through an accredited program since the United States Office of Education in its criteria for accrediting agencies mandate that we encourage such activities. This comment may be compared to a prior sentence in the same letter which states "The [JRCRTE] has no mandate at this time to accredit formal advanced standing programs." To date the program completed by Knize has not received accreditation by the JRCRTE. By letter dated October 13, 1977 (Exhibit 6) HRS inquired of the University of Chicago Hospitals and Clinics if it considered its Advanced Respiratory Therapy course the equivalent of its former two year and present 18 month courses. No response to that inquiry was received.
The Issue Should Petitioner suspend or revoke, restrict the practice, impose an administrative fine, reprimand or place on probation the Florida Certificates as Paramedics and/or Emergency Medical Technicians (EMTs) held by Respondents, based upon alleged violations of Sections 401.27(12) and 401.411(1)(a), (f) and (g), Florida Statutes (2000), as well as Florida Administrative Code Rule 64E-2.009(1)(b) (2000)?
Findings Of Fact Factual Admissions by Respondent Box Respondent, Steven R. Box, possesses Florida paramedic license/certificate number 200933. Respondent was issued Florida paramedic license/ certificate number 200933 on February 6, 2001. Respondent possesses Florida emergency medical technician license/certificate number 86759. Respondent was issued Florida emergency medical technician license/certificate number 86759 on October 18, 2000. Respondent's current mailing address is 308 Heron Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven B. Thomas, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. The document was (then) returned to Respondent. Time to review the document existed after it was returned. Respondent failed the National Registry Exam that he took on December 13, 2000. Respondent was notified by mail that he failed the December 13, 2000, National Registry of EMTs paramedic examination in January 2001. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified by mail that he failed the February 23, 2001, National Registry Exam in March 2001. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on January 26, 2001. Factual Admissions by Respondent Bates Respondent, William Bates, possesses Florida paramedic license/certificate number 201154. Respondent was issued Florida paramedic license/ certificate number 201154 on May 8, 2001. Respondent possesses Florida emergency medical technician license/certificate number 40414. Respondent's current mailing address is 76 Toby Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven B. Thomas, Stephen R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the State of Georgia at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry of EMTs Exam that he took on February 23, 2001. Respondent was notified that he failed National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on April 27, 2001. Factual Admissions by Respondent Williams Respondent, Matthew Williams, possesses Florida paramedic license/certificate number 201152. Respondent was issued Florida paramedic license/ certificate number 201152 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 80942. Respondent's current mailing address is 24701 Highway 301 North, Lawtey, Florida 32058. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven Thomas, Steven R. Box, and William Bates attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Factual Admissions by Respondent Thomas Respondent, Steven Thomas, possesses Florida paramedic license/certificate number 201150. Respondent was issued Florida paramedic license/ certificate number 201150 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 72189. Respondent's current mailing address is 575 South Waukeenah Street, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry of Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Facts Admitted by Petitioner Paramedic instructor Mike Taylor solicited Robert Vick to sign said applications. Respondents completed the paramedic education program given at Southwest Georgia Technical College. Additional Facts The Florida Bureau of Emergency Medical Services never approved the program provided by Thomas Technical Institute, or Southwest Georgia Technical College in Thomasville, Georgia, to educate paramedics. Neither of the Georgia institutions received a Florida Certificate of Approval for their paramedic training program. None of the Florida officials affiliated with the Florida Bureau of Emergency Medical Services who testified at hearing are familiar with the details of the paramedic training received by Respondents in Georgia. As of May 17, 2005, the Georgia Department of Human Resources, Division of Public Health, Office of Emergency Medical Services/Trauma certified that none of the Respondents had ever received what Georgia refers to as an EMS license, for these purposes equivalent to a Florida Paramedic Certificate. Likewise, on May 23, 2005, the National Registry of Emergency Medical Technicians provided information establishing that Respondents were never nationally registered as paramedics. In the year 2000, Florida required non-Florida candidates seeking certification to become a Florida paramedic to submit two documents. The first document was referred to as an Emergency Medical Services Profile Data Form Paramedic Certification Application (the Profile Data Form). The second document was referred to as a Statement of Good Standing from State Certifying Agency or National Registry (the Statement of Good Standing). The title for the second document pertaining to state certifying agency was in relation to another state than Florida. In the instance where an out of state applicant made application to take the Florida exam for certification to become a paramedic, there was also the expectation that he or she attach a copy of the out of state certificate issued from the other state or a copy of his or her National Registry Certification as a paramedic, as a pre-condition to sitting for the Florida exam. In the event that some of the information called for in the application documents were missing, the proper course would be for the reviewing agency to return the application documents, with an explanation to the applicant of the deficiencies found within the application documents. David Jacobson is the Program Director of the Certification Unit within the Medical Quality Assurance Division of the Department of Health. He refers to the documentation necessary for non-Florida applicants to sit for the paramedic examination in Florida during the year 2000. There would need to be information about out-of-state certification provided through the Statement of Good Standing, together with a copy of the Georgia certification card that enabled the Respondents to work in the state of Georgia. This pertains to the need for a certificate number and the expiration date of the certificate, as well as a copy of the Georgia certification card. In the absence of this information, the Respondents should have been issued a deficiency letter asking for clarification of the missing information. The application documents provided by Respondents to support their request to take the Florida examination to become a Florida paramedic were processed through Shroeder Measurement Technology (Shroeder), a contracting agent for the Florida Bureau of Emergency Medical Services. Its status as agent called for Shroeder to follow legal requirements for application review, to include the return of deficient application documents with an explanation of the problems found in reviewing the materials. In pertinent part the Profile Data Form in effect in the year 2000 stated: Exam Purpose & Level Florida Exam & Certification Paramedic - Total Fee $85 * * * Professional Education (Attach copy of certificate and CPR or ACLS card.) Enter Training Program Code From Back of Form Name of Florida Training Program Competition Date MO DAY YEAR Out-of-State Certified: (Name of State) (Certificate Number) (Expiration Date) Nationally Registered: (National Registry Number) (Expiration Date) * * * E. HIV/AIDS Training 4 hours minimum inservice required. Professional Rescuer Card No. Hours Date Completed For EMT and two man CPR Card, for paramedic an ACLS card. (Issuing Organization) (Course Level) Renewal Date) OATH: I certify (A) I am free from addiction to alcohol or any controlled substance and that (B) I am free from any physical or mental defect or disease that might impair my ability to perform as an emergency medical technician or paramedic. I understand that any fraudulent entry may be considered as cause for rejection or subsequent voiding of certification. I understand that applications are public records and must be received 30 days prior to the exam date. Applicant Signature: Sworn to and subscribed before me this day of , . In relation to the Statement of Good Standing, it set forth: Applicants with out-of-sate certification are to complete Part I and mail this form to the issuing state certification board or National Registry. Part II is to be completed by the state certifying agency or National Registry, P.O. Box 29233, Columbus, OH 43229. The agency will then mail or fax this form to Florida EMS per instructions in Part III. Part I. To be completed by applicant: I, the below named EMT/paramedic, am requesting Florida Certification based on training and current certification in the State of or by National Registry of EMTs. Name: S.S#: Applicant's Current Address: Certificate Type: EMT-Basic Paramedic Certificate No. Other: Expiration Date Part II. To Be Completed by National Registry or State Certifying Agency. Please assist by verifying this individual is certified and in good standing according to your certification policies. Is the above certificate current and valid in the EMS Office or with the National Registry of EMTs? (State) Yes No If no, why not? Has the above certificate ever been revoked or suspended? Yes No If yes, please explain Has the above individual ever been convicted of a felony? Yes No Unknown Do you know of any reason certification in Florida should be denied? Yes No If yes, why? Verifying Person's Name: Title: Agency Name: Phone Number: Part III To be mailed to: Date: The return of this form is necessary before processing can be completed. Mail or Fax to Shroeder Measurement Technologies, Inc., 2494 Bayshore Blvd., Suite 201, Dunedin, FL 34698, or Fax to (727) 738-8522. Direct questions to EMS, 2020 Capital Circle Southeast, Bin C18, Tallahassee, FL 32399-1738, (850) 487-1911. Michael Taylor, who holds certification as a paramedic in Florida and Georgia, instructed Respondents in their paramedic training at Thomas Technical Institute. Before the Respondents enrolled in the training in early 2000, Mr. Taylor was approached by Respondent Bates, Chief of the Jefferson County Fire Rescue Unit. Chief Bates told Mr. Taylor that personnel within the fire rescue unit needed to undergo training in a paramedic training course that had flexible hours for attending the course. An arrangement was made in which the Respondents would attend a couple of days a week and the personnel within the fire rescue unit could leave school to respond to emergencies in Jefferson County, with the understanding that the course work that was missed could be made up later. Jefferson County, Florida, and Thomasville, Georgia, are in close proximity. Chief Bates and other Respondents were told by Mr. Taylor that since they were attending a non-Florida paramedic course that they would have to pass the National Registry Examination before they could sit for the Florida Paramedic examination to become certified as a paramedic in Florida. At that time successful passage of the National Registry Examination served as a basis for certification in Georgia, as well as registration with the United States Department of Transportation. The course undertaken in Georgia at that time was one in which the state of Georgia used the United States Department of Transportation guidelines in preparing the students to sit for the National Registry Examination. Mr. Taylor provided Respondents with copies of the Profile Data Form and Statement of Good Standing necessary to apply to sit for the Florida examination to become a paramedic. Mr. Taylor went over these forms with Respondents early on in 2000 when Respondents began their training in Georgia. Mr. Taylor instructed the Respondents to fill out a portion of the Statement of Good Standing early in the year 2000. They wrote certain information in Part I of the forms and turned the forms back in to Mr. Taylor. They wrote "Georgia" as their training location and place of certification, upon Mr. Taylor's instruction, while providing their names, social security numbers, addresses and checking the box for certificate type as "paramedic." At that time Respondents were not yet and never have been licensed in Georgia as paramedics. Mr. Taylor took the Respondents' Statements of Good Standing and had them signed by Robert D. Vick, Sr., of the Georgia Office of EMS. Mr. Vick was and is the Regional Program Director for that agency. He is an EMTCT, ACLS. Mr. Taylor was proceeding with the understanding that Mr. Vick had the authority to execute the documents. This is in relation to the portion of the Statement of Good Standing which is Part II. These arrangements with Mr. Vick were made in December 2000. Part II to the Statements of Good Standing were signed by Mr. Vick and dated December 8, 2000. He signed under his title as EMS Coordinator/DHR, Region 8 EMS Office/Georgia DHR. Mr. Taylor persuaded Mr. Vick to sign Part II of the Statements of Good Standing realizing that the Respondents were not certified in Georgia. Mr. Taylor persuaded Mr. Vick that Mr. Vick needed to sign the documents before the Respondents could take the Florida Paramedic Examination. Mr. Taylor made Mr. Vick aware that the Respondents had not taken the National Registry Examination when Mr. Vick signed Part II of the Statements of Good Standing for Respondents, contributing to the impression that Respondents were certified as Georgia paramedics. After Mr. Vick signed his name on Part II to the Statements of Good Standing, the documents were returned to the Respondents. Mr. Vick in his testimony verified the requirements for a person to obtain a Georgia paramedic certificate in the year 2000. Georgia used the United States Department of Transportation National Registry Examination as the test instrument for the Georgia certification. In addition to passing the Georgia Paramedic Course in advance of that examination, there was also the requirement for some paperwork in association with a reciprocity arrangement between the Georgia licensing authority and the United States Department of Transportation National Registry. As Mr. Vick recalls his conversation with Mr. Taylor concerning the signing of Part II to the Statements of Good Standing, Mr. Taylor told Mr. Vick that the Respondents had completed the Georgia Paramedic Course and were preparing to take the United States Department of Transportation National Registry Examination within a few days, to be followed by the Florida Paramedic Examination a few days after that. This meant, to Mr. Vick's understanding, the Florida examination was going to be taken at a time before the National Registry Examination results were made known to the Respondents. Mr. Taylor told Mr. Vick that Jefferson County desperately needed, what Mr. Vick refers to as ACLS folks on ambulances. Mr. Vick perceived that participation in this out-of-sequence preparation of necessary documents would speed up the opportunity for the Respondents to sit for the Florida examination and to be certified as paramedics in Florida. Mr. Vick executed Part II to the Statements of Good Standing in the portion that verified his name, title, agency name, phone number and date. Otherwise information imparted within Part II was the product of someone else. Other information in the Statements of Good Standing indicate current and valid Georgia certificates, never subject to discipline, held by a person never convicted of a felony and about whom nothing was known which should cause Florida to deny certification of the applicant. This latter information was contained in the Statement of Good Standing submitted by Respondents in support of their requests to take the Florida Paramedic Examination. This act by Respondents was contrary to the expectation in the documents that Georgia or the National Registry would mail or fax the documents to Shroeder. Although he did not provide all called for information within Part II, to the Statements of Good Standing, Mr. Vick realized that the Respondents did not have a current and valid Georgia Paramedic Certificate or recognition by the National Registry. Chief Bates of the Jefferson County Fire Rescue, in his testimony conceded the need to complete the paramedic training course in Georgia and pass the National Registry Examination as a participant in a non-Florida paramedic training program, before submitting his application to Florida to take the Florida Examination. He attended the training course in Georgia because he believed that it was impractical to work a fulltime job and attend the Tallahassee Community College paramedic training course. Chief Bates submitted the Profile Data Form and Statement of Good Standing as part of the process for obtaining a Florida paramedic certificate. Chief Bates remembers the Statement of Good Standing being returned to him in December 2000. He had the opportunity to read the contents of the Statement of Good Standing but did not. Chief Bates realized based upon remarks by Mr. Taylor that the Statement of Good Standing was part of the application to take the Florida examination to become a paramedic. Chief Bates submitted that Statement of Good Standing together with the Profile Data Form to support his request to sit for the Florida paramedic's examination. In reference to the Profile Data Form, Chief Bates filled out Section 1 through 6, but did not provide any information in response to Section 7, Professional Education, or Section 8, Professional Rescuer Cards. This form was signed by him under oath on December 5, 2000. In executing the form Chief Bates realized that he had a duty to provide truthful information. The application process leading to the examination session had been arranged through Shroeder. Chief Bates has no recollection of reviewing Section 401.27(12), Florida Statutes (2000), and he did not review Florida Administrative Code Rule 64E-2.009 in effect when he took the Florida examination, as these laws set out requirements for standing the Florida Examination. Matthew Williams had been employed by the Jefferson County Fire Rescue. He now is employed by the City of Jacksonville Fire Rescue. He attended the Thomas Technical Institute because it was geographically closer to his house than a Florida program. He understood that upon completion of the training to become a paramedic he had to take the National Registry Examination and fill out an application to sit for the Florida examination before becoming a paramedic in Florida. In January following receipt of the Statement of Good Standing, he filled in Part I. He returned the form to Mr. Taylor and next saw it before his graduation in December 2000. He had the opportunity to review the Statement of Good Standing but never did. In particular, he did not review the completed Part II within the Statement of Good Standing. Mr. Williams filled out the Profile Data Form in Sections 1 through 6. He did not provide information in Sections 7 and 8. In completing the Profile Data Form Mr. Williams signed his signature under oath. He along with the other Respondents in completing that form recognized, as the form states, "I understand that any fraudulent entry may be considered in this cause for rejection or subsequent voiding of certification." Steven Thomas is a Lieutenant firefighter paramedic with the Jefferson County Fire Rescue. He understood that he had to take and pass the written and practical parts of the National Registry Examination, to be followed by an application and passage of the Florida Examination before he could be certified as a Florida paramedic. The Florida Examination would follow the submission of an application to Florida. He attended his paramedic training in Georgia because it was close to where he lived. Lieutenant Thomas filled in information in early 2000 concerning the Statement of Good Standing Form, Part 1. The Statement of Good Standing was returned to him near the end of the school term. He did not review the contents of the Statement of Good Standing, although he was provided the opportunity to conduct a review. In executing the Profile Data Form, Lieutenant Thomas filled in information in Sections 1 through 6. He did not fill in information in Sections 7 and 8. He signed the form under oath on December 5, 2000. Lieutenant Thomas failed the National Registry Examination twice. Steven R. Box was employed by the Jefferson County Fire Rescue in 2000 and now works with the Tallahassee Fire Department as a firefighter/paramedic. He understood that to sit for the Florida Paramedic Examination he had to be certified by the National Registry. He understood that completion of the Statement of Good Standing was a necessary prerequisite for taking the Florida examination. When the Statement of Good Standing was filled out in Part 1 as described, Mr. Box gave it back to Mike Taylor to be returned to Mr. Box at the end of the year 2000. Once returned, Mr. Box glanced over the form and noticed that the form had been signed by someone else. That other person was Robert Vick. In filling out the Profile Data Form, Mr. Box made no entries in Sections 7 and 8. He had filled out Sections 1 through 6. He signed the form under oath on December 5, 2000. Mr. Box took the Profile Data Form and the Statement of Good Standing to Shroeder in Dunedin, Florida, at the end of December 2000.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the paramedic certificates held by Respondents, while dismissing the cases against Respondents Bates, Williams, and Thomas related to their EMT certificates. DONE AND ENTERED this 8th day of September, 2005, 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 8th day of September, 2005. COPIES FURNISHED: Brian J. Stabley, Esquire Assistant Attorney General Administrative Law The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Brandt Hargrove, Esquire Law Offices of Brandt Hargrove 2984 Willington Circle West Tallahassee, Florida 32309 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out." During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency. DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith A. Klausner 1725 Springlake Road Fruitland Park, Florida 34731 Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether Respondent is guilty of being in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 5, 1987, a Florida-licensed respiratory therapist. He holds license number CRT 830. Respondent has a lengthy history of drug abuse. In or about June of 1996, when he was employed as a blood gas laboratory technologist by Miami Children's Hospital (MCH) in Miami, Respondent submitted to a drug screen (performed at the request of MCH) and tested positive for cocaine. 2/ MCH referred Respondent to South Miami Hospital's (South Miami's) addiction treatment program, to which Respondent was admitted on June 6, 1996. Respondent successfully completed the South Miami program. He was discharged from the program on July 3, 1996. Respondent thereafter voluntarily enrolled in the state-approved program for impaired Florida health care practitioners offered by Physicians Recovery Network (PRN). PRN monitors the care, treatment, and evaluation of the impaired practitioners in its program. On July 11, 1996, Respondent entered into an "Advocacy Contract" with PRN, in which he agreed to, among other things, the following: "participate in a random urine drug and or blood screen program through [the] PRN office within twenty-four hours of notification"; "release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate [his] continuing progress in recovery"; "abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medication unless ordered by [his] primary physician, and when appropriate, in consultation with the Physicians Recovery Network"; "attend a self help group such as AA or NA"; "participate in continuing care group therapy"; "attend a 12- step program of recovering professionals"; "notify Physicians Recovery Network in the event of use of mood altering substances without a prescription"; and "be appropriately courteous and cooperative in all contacts with the PRN staff and representatives of PRN." The contract further provided that "[r]elapse will result in re-assessment and possible residential treatment." A "monitoring professional" or "facilitator" was appointed by PRN to assist in Respondent's recovery. PRN "facilitators" are responsible for providing therapy in a group setting to those under their charge and reporting to PRN any suspected failure on the part of a member of their group to adhere to the terms of the group member's "Advocacy Contract." (There are 33 "therapy groups" led by PRN "facilitators" throughout the State of Florida.) In March of 1997, Respondent's "facilitator" reported to PRN that Respondent had started using cocaine again (this time intravenously), resulting in his being fired from his position at Miami Children's Hospital. PRN responded to the facilitator's report by voiding Respondent's July 11, 1996, "Advocacy Contract." Respondent was thereafter involuntarily hospitalized pursuant to the Baker Act at the request of his family. Following his discharge from the hospital, Respondent was reported missing. In June of 1997, Respondent resurfaced and, pursuant to a court order, was admitted to Miami-Dade County's Treatment Alternative to Street Crime (TASC) program. In August of 1997, after Respondent completed Phases I and II of the TASC program, he was evaluated, at PRN's request, by Anthony P. Albanese, M.D., the Co-Director of the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach. Dr. Albanese determined that Respondent was suffering from "cocaine . . . dependence in early remission" and was "medically able to return to work." On September 10, 1997, Respondent entered into a second "Advocacy Contract" with PRN, which was similar to the first contract. In March of 1998, after receiving word that Respondent had again relapsed, as evidenced by the results of a urine screen, which revealed the presence of cocaine metabolites, PRN voided Respondent's second "Advocacy Contract." Subsequent analysis of Respondent's hair confirmed that he had been using cocaine. In July of 1998, Respondent was evaluated by David Myers, M.D., a PRN-approved evaluator and treatment provider. Dr. Myers diagnosed Respondent as having "cocaine dependency, continuous and severe," "marijuana dependency," and "nicotine dependency." On July 7, 1998, Respondent was admitted as a patient in the Tampa-based Healthcare Connection P.I.N. [Professionals in Need] Program (P.I.N. Program). Respondent was referred, through the P.I.N. Program, for treatment at the Salvation Army Adult Rehabilitation Center. On January 8, 1999, after receiving treatment at Salvation Army Adult Rehabilitation Center and successfully completing the P.I.N. Program, Respondent entered into a third "Advocacy Contract" with PRN, which was similar to the first two contracts. In early February of 1999, Respondent's "facilitator" reported that Respondent was not attending required group meetings and could not be located. Based upon the facilitator's report, PRN voided Respondent's third "Advocacy Contract." At no time subsequent to the voiding of his third "Advocacy Contract" has Respondent made contact with PRN. Because of the "continuous and severe" nature of his cocaine dependency, Respondent is presently unable to deliver respiratory care services with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent is in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and disciplining him therefor by revoking his license and fining him $500.00. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of January, 2001.
