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
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992. Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking her respiratory care practitioner license number TT 0006767. DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183 Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert B. Dell, P.A. 4801 South University Drive Fort Lauderdale, Florida 33328
The Issue The issue in this case is whether Respondent committed certain disciplinary violations and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed dentist in the State of Florida, holding license number DN 0008830. He was granted a parenteral conscious sedation permit on February 27, 1988. Respondent has been licensed in the State of Florida since August 3, 1981. There is no evidence that he has been the subject of prior disciplinary proceedings. J. C. was born November 28, 1980. J.C. died August 17, 1989, at 7:10 p.m. due to anoxic encephalopathy, which is brain damage from lack of oxygen. Anoxic encephalopathy was due to complications of preparation for dental extractions. Two years prior to visiting Respondent, J. C. had been seen by another dentist, Alexander S. Nurrell. Complaining of a toothache, J. C., who was six years old, was seeing a dentist for the first time. The medical and dental history, which was provided by J. C.'s mother, revealed nothing material to this case. The mother noted that the child had never experienced an "unhappy" reaction of a dental or medical procedure. Following an examination, Dr. Nurrell determined that J. C. had been "neglected," at least in terms of her dental needs, which were considerable. Due to the scope of the work required by J. C., which involved repairs to 11 teeth, Dr. Nurrell intended to hospitalize J. C. in order to provide the necessary dental treatment. About one week after the visit to Dr. Nurrell, J.C.'s father took her to another dentist, Peter Weisbruch. Again, her complaint involved a toothache, which apparently had not been treated by Dr. Nurrell. Dr. Weisbruch commenced a dental treatment plan that J. C. followed for some time. Dr. Weisbruch administered a local anesthetic to J.C. on three occasions. On the first visit, Dr. Weisbruch administered an anesthetic, but failed to record the type or amount. On April 26, 1988, Dr. Weisbruch, while extracting one of J.C.'s teeth, administered 0.9 cc of 3% Carbocaine, which is a brand name of mepivicaine. On May 14, 1988, Dr. Weisbruch administered 0.9 cc of 2% lidocaine, as well as 0.9 cc of 1:100,000 epinephrine solution. On no occasion did J. C. exhibit an unusual reaction to any local anesthetic. She was, however, an uncooperative patient. On June 1, 1988, J. C.'s father informed Dr. Weisbruch's office that J. C.'s mother would be resuming responsibility for ensuring that J. C. received adequate dental care and that J. C. would not be returning to Dr. Weisbruch's office. Financial constraints limited the ability of J.C.'s parents to obtain dental services for their daughter. By June, 1989, however, her mother was prepared to recommence J.C.'s dental treatment. She looked for a dentist in the yellow pages based on physical proximity to their home. When she found Respondent's advertisement, she was impressed by its emphasis upon patient comfort, including such features as stereo headphones and anaesthesia. Aside from her dental problems, J. C.'s health at the time that she first saw Respondent was good. She had been seen periodically by a pediatrician for a well visit and then for a couple of common viral complaints. When she first contacted Respondent's office, J.C.'s mother told the receptionist that she needed to be able to pay for the dental work by periodic payments. The receptionist advised the mother to bring in J. C. for an initial consultation. J. C. and her mother first visited Respondent on June 29, 1989. The medical and dental history revealed nothing unusual except that J. C. had "extensive" dental complaints. Respondent took x-rays and fitted J. C. for a retainer on her first and second visits, with the latter taking place on July 5, 1989. J. C.'s mother paid $157 on July 10, leaving a balance of $125, which was to be paid over 90 days. As a result of his examination of J. C.'s teeth, Respondent advised J. C. and her mother that J. C. should have eight primary teeth removed. He apparently prescribed an antibiotic to treat a dental infection, but this treatment is irrelevant to the case. In any event, Respondent's office gave J. C. an appointment for August 9, 1989, for the extraction of the eight teeth. On August 8, Respondent's receptionist called J.C.'s mother and told her that Respondent had decided to put J.C. asleep during the extractions. Thus, he wanted an early morning appointment. They agreed to reschedule the appointment for August 16 at 8:30 a.m. J. C. was excited about going to the dentist. She intended to go out for the cheerleading squad once school started. She and her mother arrived at Respondent's office just before 8:30 a.m. J. C. sat on her mother's lap and was a little nervous, but they did not have to wait long. J. C. weighed 50- 55 pounds at this time. No later than 8:30 a.m., dental assistant Terri Neff came out to the waiting room and took J. C. and her mother into Operatory #2. Operatory ##2 and 3 are identical in terms of equipment and size. Respondent, who apparently was the only dentist practicing in his office, also used a third operatory, which is smaller and lacked a dental assistant chair. Ms. Neff was, at the time of the incident, a certified dental assistant. She had been for the preceding five years and had assisted in dental procedures and monitored patients in anaesthesia. She also held current certification in dental radiology, the administration of nitrous oxide, and cardiopulmonary resuscitation (CPR). As was the case with all of Respondent's employees, Ms. Neff had never attended the course entitled "Guidelines for Teaching Comprehensive Control of Pain and Anxiety." Just before J. C. was seated in the examination chair, Ms. Neff gave her a glass of water, which J. C. drank. As Ms. Neff explained to J.C.'s mother, the water contained five ml of Phenergan, which Respondent had prescribed to control the nausea occasionally experienced by patients from nitrous oxide. J. C. drank the Phenergan solution at 8:35 a.m. Phenergan, or promethazine, is an antiemetic used to control nausea in patients about to receive nitrous oxide. A central nervous system depressant, Phenergan is an antihistamine with a minor sedative effect. The drug manufacturer's literature, which is inserted into each box or carton of the drug, warns that the sedative action of Phenergan is "additive to the sedative effects of central nervous system depressants; therefore, agents such as . . . narcotic analgesics . . . should either be eliminated or given in reduced dosage in the presence of [Phenergan]." The drug insert advises that the dose of meperidine or Demerol be reduced by one-quarter to one-half. The drug insert also advises: [Phenergan] may lower seizure threshold. This should be taken into consideration when administering to persons with known seizure disorders or when in combination with narcotics or local anesthetics which may also affect seizure threshold. Five ml of Phenergan contains 6.25 mg of promethazine. Used in isolation, this dosage of Phenergan was appropriate and bordered on the low end of a safe and effective dosage. For preoperative medication, the recommended dose is 0.5 mg per pound in combination with an equal dose of meperidine and an "appropriate dose of an atroprinelike drug," according to the drug insert. In J. C.'s case, the recommended dose is thus 27.5 mg, and she received only about 23% of the recommended maximum dose of Phenergan. The same amount is the recommended dose when Phenergan is used in isolation to control nausea. Ms. Neff next placed a nasal mask over J. C.'s nose preparing to administer nitrous oxide. The mask was supposed to have a bubble gum smell, which is intended to please pediatric patients. When Ms. Neff asked J. C. if she could smell the bubble gum, the girl said she could not, so Ms. Neff replaced the mask with a strawberry-scented one. J. C. said she could smell this one, although her mother thought she might be humoring them. The nasal mask does not cover the mouth. It is made of rubber and is not heavy. The mask, which was a child's size, fit tightly on J. C.'s face. The nitrous oxide machine has settings for nitrous and oxygen. Each unit represents one liter of gas delivered per minute. Pursuant to Respondent's direction as to initial mix and time of commencement, Ms. Neff turned on the nitrous oxide machine shortly after placing the mask on J. C. The initial setting was 1:3 nitrous to oxygen. Nitrous oxide is a central nervous system depressant. J. C. was fidgety in the chair. After the mask was applied, she touched the mask frequently. She said that the mask felt funny and made her nose itch. She remained quite talkative. After the nitrous oxide had been administered to J. C. for about 30 minutes, Respondent entered the operatory to check on the girl. He waited awhile, noting that J. C. was still not calm enough to proceed. He then advised Ms. Neff that they would need to give J. C. an injection of Demerol. At about 9:02 a.m., Respondent gave J. C. an injection of 50 mg Demerol, or meperidine, in her right deltoid muscle. J. C. cried upon receiving the injection. Demerol is a narcotic analgesic similar in effect to morphine. Demerol is a central nervous system depressant. The drug insert warns prominently that "[Demerol] should be used with great caution and in reduced dosage in patients who are concurrently receiving . . . other CNS depressants . . .. Respiratory depression, hypotension, and profound sedation or coma may result." In isolation, the maximum dose is 0.8 mg per pound of body weight when the drug is used as premedication, which is how Respondent used the drug in this case, although the drug insert states that the "usual dosage" is 0.5 mg per pound when Demerol is used for preoperative medication. Using the rate of 0.8 mg per pound, the maximum dosage was 44 mg., if the Demerol had been used in isolation. No expert opined that the amount of Demerol administered to J. C. would have been excessive, if the drug had been used in isolation. However, when used, as here, in connection with one or more other central nervous system depressants, the dosage of Demerol was excessive, especially when combined with the administration of mepivicaine, as discussed below. J. C. cried when she received the injection. Respondent left the room, and J. C., evidently agitated, asked her mother, "is this how Grandma died?" Her mother tried to reassure her that everything was alright. After receiving the injection, J.C. began to rub around her eyes and face. This itchiness was due to a combination of one or more of the following: fidgetiness, continued resistance or possibly minor reaction to the mask, and a short-term release of histamines caused by the administration of the Demerol. However, the itchiness was not evidence of a serious allergic or anaphylactic reaction for reasons discussed below. Respondent's testimony that he noticed itchiness to an extent that he had not previously seen is discredited by, among other things, his failure to chart what would have been an unprecedented observation. At about the time of the Demerol injection, the nitrous oxide mix was changed, by Respondent's instructions, to 3:5. 1/ Ms. Neff remained with the mother and J. C. for about 30 minutes, waiting for J. C. to relax sufficiently so Respondent could proceed to administer the local anesthetic and begin the extractions. J. C. remained talkative during this period. While Ms. Neff was waiting with the mother and J.C. for the Demerol to take effect, someone told Ms. Neff that she was needed by another patient. Another assistant, Sarah Staley, joined J. C. and her mother at this time. At about this time, J. C. began to become more subdued. Aside from the receptionist, Ms. Staley was the least trained of Respondent's employees. First employed by Respondent about one year earlier, Ms. Staley had no prior dental experience. She had not undergone any formal training as a dental assistant or in CPR. Her position was best described as a business assistant/clerk. Ms. Staley was not trained to recognize any symptoms of a patient in sedation. At about 9:35 a.m., Respondent returned to Operatory #2. Finding J. C. sufficiently calm to proceed, Respondent began the process of administering mepivicaine. Mepivicaine, which is also a central nervous system depressant, is a local anesthetic. The drug insert warns: "Great care must be exercised in adhering to safe concentrations and dosages for pedodontic administration." The drug insert adds: If sedatives are employed to reduce patient apprehension, use reduced doses, since local anesthetic agents, like sedatives, are central nervous system depressants which in combination may have an additive effect. Young children should be given minimal doses of each agent. Injection of repeated doses of mepivicaine may cause significant increases in blood levels with each repeated dosage due to slow accumulation of the drug or its metabolites, or due to slower metabolic degradation than normal. Tolerance varies with the status of the patient. Debilitated, elderly patients, acutely ill patients, and children should be given reduced doses commensurate with their weight and physical status. As to adverse reactions, the drug insert states: Reactions involving the central nervous system are characterized by excitation and/or depression. Nervousness, dizziness, blurred vision, or tremors may occur followed by drowsiness, convulsions, unconsciousness, and possible respiratory arrest. . . . Reactions involving the cardiovascular system include depression of the myocardium, hypotension, bradycardia, and even cardiac arrest. Allergic reactions are rare and may occur as a result of sensitivity to the local anesthetic. . . . As with other local anesthetics, anaphylactoid reactions to Mepivicaine have occurred rarely. The reaction may be abrupt and severe and is not usually dose related. The drug insert states that the "lowest dosage needed to provide effective anesthesia should be administered." The drug insert specifies the dosage as follows: "A dose of up to 3 mg per pound of body weight may be administered." Respondent injected mepivicaine into the area of the upper and lower jaws. Neither Ms. Staley nor the mother noted the number of cartridges of anesthetic that Respondent used. As the injections started, J. C. began to cry, and her mother held her hand to calm her. A cartridge, or carpule, is a glass tube containing medication in solution form. The cartridge in this case contained a 3% solution of mepivicaine. Each cartridge contained 1.8 cc of the medication or 54 mg. of mepivicaine. The cartridge is placed in the syringe, a negligible amount is expressed to eliminate any air bubbles and to ensure proper operation of the syringe, and then the remainder is available to be injected into the patient. The evidence is contradictory as to the amount of mepivicaine actually injected into J. C. There are two reasons for this. First, there is conflicting evidence as to the number of cartridges. Second, there is some evidence that less than an entire cartridge was injected each time. Although not arriving in the operatory until at least 10 minutes after the completion of the mepivicaine injections, dental assistant Kathleen Lyttle charted the entry, "mepivicaine 3%." Respondent later charted the remaining information concerning the number of cartridges of mepivicaine. Respondent first noted that he had used eight cartridges from 9:30 a.m. to 9:50 a.m. He made entries showing injections into the upper and lower left and right jaws. Although no number was placed next to each location, obviously a pair of injections in each of the four locations would result in eight cartridges. Respondent then made two interlineations. First, he wrote above the notes for the two upper-jaw entries the following notation: "x2," meaning that two cartridges each were injected in the upper left and right jaw for a total of six cartridges. The effect of this addition is to imply that only one was injected lower left and right jaw. Second, Respondent crossed out the number "8" and added, above the crossed-out "8," the notation, "5-6," meaning that a total of five to six cartridges were injected. In a conversation with the Orange County Medical Examiner shortly after the incident, Respondent stated that five to six cartridges were administered. Respondent told the medical examiner that he first completed the injections into the upper and lower left and right jaws, then injected a little more. In a written statement to the medical examiner, Respondent stated that six cartridges were administered. Petitioner has proved by clear and convincing evidence that Respondent administered to J. C. no less than six cartridges of mepivicaine. This number is consistent with the written statement that Respondent provided the medical examiner. This number is also consistent with the detailed itemization Respondent noted on the dental chart where he showed one injection each in the lower left and right jaw and then two injections each in the upper left and right jaw. The second issue is whether Respondent injected the entire contents of each cartridge. In his practice, Respondent often did not empty a cartridge of local anesthetic but instead left up to 20% of the contents uninjected. Petitioner has proved by clear and convincing evidence that Respondent injected the entire contents of the first four cartridges used in the upper right and left jaw, except for the negligible amount expressed for the reasons set forth above. Respondent had concluded that J. C. was an uncooperative patient. He had already chosen what he testified was the "upper limit" for the Demerol, which in fact was excessive in view of the prior administration of Phenergan. Respondent had also increased the nitrous oxide ratio to administer more nitrous. Most important, Respondent testified that, during his eight-year career, he had ignored maximum recommended dosages of local anesthetics. Nothing in the record suggests that, in the use of local anesthetics and central nervous system depressants, Respondent subscribed to the maxim, "Start low, go slow." Also, the consequences of the administration of the mepivicaine, which, as noted below, demonstrate local anesthetic toxicity rather than allergic reaction, are strong proof that Respondent administered a dosage of mepivicaine far in excess of the maximum recommended dosage. As to the final two cartridges, Petitioner has proved by clear and convincing evidence that Respondent did not withhold more than 20% of the contents of each cartridge. There is substantial evidence, as set forth in the preceding paragraph, that Respondent withheld less in this case. However, the results would be the same, based on the following findings. Respondent's testimony that he administered no more than about 200 mg of mepivicaine is discredited. This would represent the contents from 3.75 cartridges. By the time that Respondent spoke with the medical examiner, he had had more than enough time to reflect on the possibility that J. C. may have suffered a toxic reaction to a local anesthetic. Given that possibility, and the obvious ramifications that it held for Respondent, he certainly would have carefully reflected upon the actual amount of mepivicaine administered to J. C. It is inconceivable that if, instead of 5-6 cartridges, he determined that he had injected only 3.75 net cartridges, he would not have so informed the medical examiner at that time. It is more likely that the netting process, in order to reflect the unused contents of a cartridge, resulted in a reduction from eight to six cartridges. Based on the foregoing, the least amount of mepivicaine that Respondent actually injected into J. C. is four full cartridges into the upper and lower jaws followed by not less than four-fifths of a cartridge each injected into the upper right and left jaw. This yields a total of 5.6 cartridges or about 300 mg of mepivicaine. The finding of 5.6 cartridges or 300 mg of mepivicaine corresponds to Respondent's estimate of 5-6 cartridges. Petitioner has proved by clear and convincing evidence that Respondent's estimate is already reduced by at least the amount of medication that Respondent actually withheld. There is significant evidence, although not clear and convincing, that Respondent injected eight cartridges, which, assuming a 20% reduction even in each injection, means that he administered 6.4 cartridges or about 345 mg of mepivicaine. When used in isolation, mepivicaine is administered at the rate of not more than three mg per pound of body weight. 2/ In the case of J. C., the maximum recommended dosage would have been 165 mg of mepivicaine, if the drug had been used without any other medications. When used in connection with other central nervous system depressants or sedatives, like Phenergan, nitrous oxide, and Demerol, mepivicaine's maximum recommended dosage is not more than two mg per pound of body weight. In this case, then, the maximum recommended dosage for J. C. was 110 mg because the drug's effect would be potentiated by the other medications already given J. C. If J. C. had not been given other drugs, the dosage that she received was 1.8 times more than the recommended maximum dosage. Because she had already received other central nervous system depressants, the dosage that she received was 2.7 times the recommended maximum dosage. 3/ Respondent injected the mepivicaine from 9:35 a.m until about 9:52 a.m. He then left the operatory. As the mother and Ms. Staley watched over J. C., she said, "I love you, mommy." She then turned her head to the side and seemed to fall asleep, lying back in the chair. Respondent's testimony that, immediately following the injections, J. C. began to experience extremely bad itching around her eyes and face is discredited. If J. C. had experienced such a remarkable response, Respondent would have at least charted it, if not remained in the operatory until the phenomenon resolved itself. At best, Respondent has confused the onset of the itching, which in fact began with the application of the nitrous oxide mask. After Respondent left the operatory, the mother and Ms. Staley chatted about their preparations for the new schoolyear. Suddenly, at about 9:57 a.m., J. C. sat straight up in the chair with her eyes open unnaturally wide, trying to catch a breath, but unable to do so. After a few seconds, she slumped back into the chair and her arms and legs began shaking violently. After a few more seconds, her posturing and convulsions ended. Ms. Staley immediately summoned Respondent. Ms. Neff had by chance just been entering Operatory #2 at the moment that J. C. had sat upright in the chair. Ms. Neff immediately turned the nitrous oxide machine to 100% oxygen at its maximum setting of 10+ liters per minute. Ms. Neff testified that she was unaware that anything was wrong at this time and only thought that J. C. might need to go to the bathroom. Even after a few moments in the operatory, Ms. Neff continued to think that the they simply had "a nervous little girl in the chair." Another dental assistant, Lisa Ann Barlette, who was in the operatory across the hall, happened to see out of the corner of her eye J. C. when she had sat upright. Ms. Barlette had almost two years' experience as a dental assistant and was currently certified in CPR and dental radiology. Immediately excusing herself from her patient, Ms. Barlette started to walk across the hall into Operatory #2 and saw J. C.'s hands trying unsuccessfully to push the nitrous oxide mask up over her nose. Respondent entered the operatory immediately ahead of Ms. Barlette, who remained in the doorway. Respondent and Ms. Staley were telling J. C. to calm down. Upon entering Operatory #2, Respondent immediately tilted J. C.'s head back and chin up so as to establish an airway and eliminate any upper airway obstructions. He also began to take her pulse. Respondent noted that J. C. was in "severe respiratory distress." At about 10:03 a.m., J.C. had a second seizure in which she stiffened and then shook violently. She had a third seizure at about 10:04 a.m. and a fourth at about 10:05 a.m. She suffered a fifth seizure, of somewhat lesser intensity, at about 10:07 a.m. and a more intense seizure at about 10:09 a.m. During these seizures, J. C. gasped, as though sobbing, and continued to breathe as though she was trying to catch her breath. Between seizures, she responded to her mother with eye movements and by squeezing her hand. When told by her mother or Respondent to relax, J. C. responded by relaxing her grip. These were the limits of J. C.'s responses following the onset of the convulsions. At about 10:04 a.m., Respondent ordered that a rubber bite block be inserted to help control the upper airway during the seizures. After a few minutes following the first seizure, Ms. Staley began to suction mucous secretions from J. C. and continued to do so while J. C. remained in the chair. Entering Operatory #2 shortly after the clinical emergency began, Kathleen Lyttle, who later charted the mepivicaine, asked Respondent if he wanted her to take J.C.'s vital signs. Respondent nodded yes, and, because the blood pressure cuff in Operatory #2 was behind Ms. Staley and difficult to reach, Ms. Lyttle obtained one from another operatory. Ms. Lyttle was currently certified in dental radiology and CPR. She seemed to be the most experienced among Respondent's employees in handling a clinical emergency. Respondent administered at about 10:12 a.m. 4/ one cc of Narcan (0.4 mg/ml) by injection into the jaw. Narcan is a narcotic antagonist capable of counteracting the Demerol within seconds. At this time, J. C.'s respirations were beginning to decrease and she began to become cyanotic from a lack of oxygen. About a minute after injecting the Narcan, Respondent administered one ml of adrenalin chloride 1:1000 in the form of epinephrine solution by injection below the tongue. Attaching the blood pressure cuff on J.C.'s right thigh, Ms. Lyttle took her first reading of J. C.'s vital signs at about 10:13 a.m. J. C.'s blood pressure was 160/90, her pulse was 160, and her respiration was irregular. The vital signs were unchanged one minute later. By 10:15 a.m., the pulse and respiration were unchanged, but the blood pressure had dropped to 115/44. The interval between seizures was increasing, the seizures seemed to be lessening in intensity, and J.C. continued to respond between seizures in the manners described above. At about this point, Ms. Lyttle then turned to the mother and asked if J. C. had epilepsy. When told that she did not, Ms. Lyttle said, "Well, she's having an epileptic seizure." Since the first seizure, the mother had been standing in front of J. C. holding her arms or, as instructed by Ms. Lyttle shortly after she entered the operatory, massaging her daughter's chest. She could see her daughter's eyes moving wildly, then focusing as though on something in the distance that the rest of them could not see. Sometime after Ms. Lyttle had asked about epilepsy, which probably was after 10:15 a.m., the mother told Respondent to call the hospital, but no one responded. Ms. Barlette had earlier expressed the possibility of contacting emergency medical services. At about 10:00 a.m., Ms. Barlette caught Respondent's eyes and mouthed the words, "Do you want me to call?" She did not give voice to the words to avoid further alarming the mother. Staring at him, Ms. Barlette saw no response. It is not clear that Respondent comprehended what Ms. Barlette was trying to communicate. Within 30 seconds after her voiceless request, Ms. Barlette, noting that J. C. was turning red, caught Respondent's attention and asked audibly, "Do you want me to call 911?" About one minute later, or no later than 10:02 a.m., by which time J.C. had turned purple, Ms. Barlette repeated her request. Responding to neither request, Respondent evidently was so preoccupied that he either did not hear the requests or their meaning did not register with him. Despite the clear clinical emergency, the only vital sign taken was J. C.'s pulse until 10:13 a.m., when Ms. Lyttle first read J. C.'s vital signs. Surprisingly, the chronologies prepared by Respondent, the dental chart, and the testimony fail to disclose any meaningful activity during the period from 10:15 a.m. through 10:30 a.m. By the end of this 15-minute period, the seizures, which had evidently decreased in frequency and intensity, reintensified to the degree to which they resembled the early seizures. The next entry on the chart following 10:13 a.m. is 10:30 a.m., at which time J. C.'s vital signs are blood pressure 115/44, pulse 180, and respiration irregular. The notes add, "cardiac irreg[ular with] arrhythmia." Respondent's oral and written statements to the medical examiner add that J. C. was cyanotic or becoming cyanotic at this time. Five minutes later the vitals are 90/54, 200 and climbing, and irregular respiration. In the meantime, at about 10:34 a.m., Ms. Neff took the mother out of the room so she could make any telephone calls that she thought necessary, such as to alert J.C.'s father. The mother went into a nearby conference room for a few minutes, but was unable to make any calls because she could not remember anyone's telephone number. At 10:36 a.m., the chart notes for the first time "bronchial spasms [with] laryngeal spasms." The vitals are 60/44, 200 and climbing, and irregular respiration with tachycardia. The pulse is now thready and shallow. At 10:38 or 10:39 a.m., Ms. Lyttle stated that the blood pressure had "bottomed out." J. C. was in respiratory and cardiac arrest. Ms. Lyttle asked, "Call 911?" Respondent answered, "Go." Ms. Lyttle called 911 at about 10:41 or 10:42 a.m. and summarized the situation. Ms. Barlette later helped with the call. In the meantime, Respondent had taken J. C. from the chair and placed her on the floor where he could begin CPR. She vomited and aspirated the vomit and some mucous before Respondent cleared the vomit from her mouth and upper throat. Respondent began mouth-to-mouth and Ms. Lyttle, who had left Ms. Barlette with the phone, returned and immediately commenced compressing J. C.'s chest. As the mother was returning to Operatory #2, the mother heard Ms. Barlette on the telephone saying something about "Demerol." When she reentered the operatory, she saw that her daughter was now on the floor undergoing CPR. Although still without any pulse, J. C.'s color began to return to normal. The first ambulance arrived at 10:51 a.m. The paramedics found that J. C. was unconscious. Her lung sounds were clear, her pupils dilated, and her skin warm and dry. She still had no pulse, respiration, or blood pressure. Within a couple of minutes, the paramedics, after one failed attempt, successfully intubated J. C. and began ventilating her with an ambu bag that is attached to a portable oxygen cylinder. J. C. tried unsuccessfully to take a couple of breaths. After placing MAST pants on her to force the blood from her lower extremities, the paramedics quickly placed her on a rigid back board and transported her to Florida Hospital-- Altamonte Springs. From Florida Hospital--Altamonte Springs, J. C. was transferred by helicopter to Florida Hospital--South. However, she never regained consciousness and expired the evening of the following day. At 11:09 a.m., Respondent's office informed Florida Hospital-- Altamonte Springs of the medications given. In addition to noting aspects of the emergency treatment that J. C. received from the paramedics while still in Respondent's office, including being placed on oxygen under a positive pressure delivery system, the dental chart notes at the bottom: "1) anaphylactic response . . . to Demerol." Under this entry is "2) mepivicaine." The second entry is then crossed out. The internal examination of the autopsy revealed, as to the lungs, "moderate pulmonary congestion and edema . . .." As to the brain, there was "marked generalized brain swelling and softening." As for the brain-stem, cerebellum, and portion of the cerebrum, there was "severe generalized edema and softening." Upon microscopic examination, the autopsy reveals, as to the central nervous system, no evidence of chronic hypoxia, but "diffuse marked edema and hypoxic injury . . .." The lungs show "much pulmonary edema and congestion . . . with multifocal early bronchopneumonia . . .." The report continues: The changes in the lungs are consistent with acute bronchopneumonia, due to gastric aspiration, or due to reduced pulmonary toilet from being on a respirator with a greatly decreased mental status with or without gastric aspiration. Numerous factors compel the rejection of Respondent's theories that J. C. suffered an allergic, anaphylactic, or anaphylactoid reaction, perhaps in combination with an asthma attack. The evidence is clear and convincing that Respondent administered J. C. mepivicaine in excess of the maximum recommended dosage and, as a result of the overdose, J.C. suffered a toxic reaction to the local anesthetic. In dentistry, the overadministration of a drug, including a local anesthetic, accounts for about 85% of all adverse drug reactions. Drug allergies account for only about 15% of adverse drug reactions. Drug overdoses are even slightly more common in children than in adults. The central fact is that Respondent administered an overdose of mepivicaine to J. C. of 2.7 times the maximum recommended safe dosage. The patient's young age raised the possibility of higher blood levels per unit dose due to the greater likelihood that the functions of absorption, metabolism, and excretion in a child may be imperfectly developed. Another predisposing factor of which Respondent was aware was the stress and anxiety that J.C. has previously displayed. The local- anesthetic seizure threshold is reduced in such patients. The ensuing signs and symptoms are further evidence that J. C. died due to local anesthetic toxicity caused by the administration of an overdose of mepivicaine. The first effect of a toxic reaction to mepivicaine would be to depress the central nervous system. This effect manifested itself in J. C.'s case by the first objective signs: posturing and convulsions. Characteristic of toxic reactions to local anesthetics, such as mepivicaine, is a central nervous system excitatory phase. The reason for an excitatory phase is that the neurons in the central nervous system associated with excitation or stimulation are the last to be depressed by plasma levels of local anesthetics. Once unrestrained by the now-depressed inhibitory neurons, the electrical activity proceeds freely along the stimulatory pathways and stimulates muscle tissue, which may result in convulsions. The patient suffering an allergic reaction would not experience seizures until he had suffered hypoxia, which is an oxygen deficiency. At the time of J. C.'s initial seizures, which were due to the depression of aspects of the central nervous system, her breathing was still sufficient to preclude allergy-induced hypoxia. The depression of the central nervous system also affects respiration and blood pressure, as basic brain activities begin to decrease. During the early stages of the clinical emergency, J. C. continued to try to breathe. Contrary to Respondent's assertions, these efforts coupled with labored breathing were not evidence of an allergic reaction, but were entirely characteristic of central nervous system depression. The course of a toxic reaction to a local anesthetic proceeds to respiratory depression, where, as Respondent acknowledges, the desire to breathe is decreased. Then, the patient proceeds to respiratory arrest, followed by cardiac depression and cardiac arrest. This process is the result of reduced oxygen to the brain. The central nervous system depression initiates the reduction of oxygen to the brain. The seizures themselves exacerbate the problem. The convulsing brain requires increased oxygen to continue functioning. During the seizure, the patient breathes little, if at all. Once the brain activity has been impaired to the extent that respiratory depression begins, obviously the flow of oxygen is impaired even further, which further raises the likelihood of seizures. The flow of oxygen to the brain obviously ends completely with respiratory arrest. Within four to five minutes, the oxygen-deprived brain sustains irreversible damage. The evidence of allergy, including an anaphylactic reaction, is insubstantial. As noted above, Respondent administered an excessive amount of mepivicaine to J. C., and allergic reactions are very rare relative to drug overdoses. In addition, seizures and central nervous system excitement are not typically associated with allergic or anaphylactic reactions. Likewise, high blood pressure readings are uncharacteristic of allergic or anaphylactic reactions. The patient suffering an allergic reaction, such as an anaphylactic reaction, typically suffers only depressed blood pressure. The person suffering a toxic reaction to a local anesthetic experiences, as did J. C., first high blood pressure and then decreased blood pressure. Respondent asserts that several signs suggest the presence of an allergic or anaphylactic reaction. Itching is a classic sign of an allergic reaction. However, the itching in this case has been explained above. At most, J. C. may have experienced a minor reaction to the Demerol or a substance in the mask. The timing of J. C.'s subsequent symptoms is too delayed to be attributed as an allergic or anaphylactic reaction to the Demerol, nitrous oxide, or mask itself. Because the itchiness preexisted the administration of the mepivicaine, the local anesthetic could not have caused the itching. Another classic sign of an allergic reaction is a rash, but no rash was reported in this case. The tenacious mucous that Respondent reports did not appear initially. Such mucous is nonspecific and normally attends dental procedures, especially when the patient is a child under sedation. Moreover, when the body is undergoing a crisis of the type suffered by J.C., such mucosal secretions are normal. There is no reliable evidence of significant pulmonary edema, which is the accumulation of fluids within the air cells of the lungs, until at a stage of the clinical emergency at which the sign becomes quite nonspecific. Although associated with allergic reactions, pulmonary edema and congestion may also accompany local anesthetic toxicity, especially following the onset of respiratory depression. In any event, pulmonary edema and congestion are extremely common when persons die other than suddenly, as edema and congestion are associated with the failure of the respiratory and cardiovascular systems. The evidence of bronchial spasms and wheezing offered by Respondent is unpersuasive. Although normally associated with allergic or anaphylactic reactions, bronchial spasms and wheezing, to whatever extent they existed at all, do not appear to have been defining signs or symptoms of J. C.'s clinical emergency. A case report appearing in the November-December 1991 issue of the Journal of Dentistry for Children describes a case featuring many similarities with that of J. C. In the reported case, a five year old girl was being prepared for multiple extractions. After receiving five minutes of nitrous oxide at an unknown concentration, she then received five cartridges of 3% mepivicaine or 270 mg of the drug. Ten minutes later the girl experienced "'stiffening and shaking' of all extremities that lasted approximately ten seconds." She then underwent another convulsive episode, after which she was placed on 100% oxygen. After a third convulsive episode, the patient was still breathing on her own but was no longer responsive to verbal commands. Ten minutes after the first convulsion, she was transferred to a physician's office where she arrived in cardiac and respiratory arrest. Following CPR, the patient was given sodium bicarbonate, epinephrine, calcium gluconate, and atropine about 55 minutes after being given the local anesthetic. She was then transferred to a hospital where she was intubated due to lack of spontaneous respirations. Four days later, she was declared brain dead due to anoxic brain injury secondary to cardiopulmonary arrest following an overdose of mepivicaine. The article quotes "Malamed," who is the author of Respondent Exhibit 2, as advising that the maximum safe dose of mepivicaine is two mg per pound of body weight. 5/ The case report notes that higher blood levels of mepivicaine, resulting from more high overdoses, may result in convulsions due to an initial blockage of inhibitory neurons in the CNS, thus leaving the excitatory neurons firing unopposed. Still further increases in blood levels lead to unconsciousness and respiratory depression. The cardiovascular effects of a local anesthetic overdose include vasodilation, which in turn can lead to a drop in systemic blood pressure. There is also a direct depressant effect on the myocardial cell membrane, which can cause a progressive bradycardia and full cardiac arrest. Death can occur due to either respiratory depression or cardiac arrest. It is also important to realize the narcotic sedative regimens lower the convulsive threshold of local anesthetic and increase the likelihood of respiratory depression. The case report explains that average peak blood levels of 3% mepivicaine usually appear within 15-30 minutes following injection, and the plasma half-life is 90-120 minutes. The report concludes that, based on injection volumes, the maximum safe dosages are more rapidly reached with 3% mepivicaine than with 2% lidocaine plus epinephrin, which extends the effectiveness of the local anesthetic. In addition to confirming signs and symptoms described above, the article provides evidence that, in terms of the timing of signs and symptoms, J.C. suffered from a toxic reaction to an overdose of a local anesthetic. The first seizure took place 22 minutes after the first injection and five minutes after the last, which corresponds both to the timeframe for average peak blood levels and the 10-minute delay in the reported case. Not only did Respondent clearly fail to attain the minimum standards of performance in diagnosis and treatment when measured against prevailing peer performance (Standard of Care) in administering an overdose of mepivicaine to J. C., he then failed to attain the Standard of Care in equipping himself for detecting and managing such a clinical emergency and in the actual management of the crisis. The preparation of J. C. in this case is an example of the use parenteral conscious sedation. Parenteral conscious sedation, which alters a patient's awareness, does not render the patient unconscious or affect his active reflexes, such as a choking response. This type of sedation is defined further in the Conclusions of Law. First, Respondent's office lacked a pulse oximeter. This noninvasive device constantly measures the subject's pulse and oxygen saturation level in the peripheral blood. The failure to have and use a pulse oximeter while administering parenteral conscious sedation is in itself a failure to attain the Standard of Care. With such a device in J.C.'s case, Respondent probably would have been able to detect reduced oxygen levels, as a result of central nervous system depression, well in advance of the first convulsion. With proper treatment, Respondent possibly could have prevented the convulsions and averted the ensuing clinical emergency. Second, Respondent's office lacked a positive pressure oxygen delivery device. Unlike the pulse oximeter, which is a diagnostic device, the positive pressure oxygen device is used to treat certain patients who are suffering respiratory distress. The importance of this device is underscored by the fact that it is not unusual for a patient under parenteral conscious sedation to stop breathing or require breathing assistance. The dentist must then inflate the patient's lungs, typically using one of two devices: the demand valve mask or the breathing bag. The failure to have a positive pressure oxygen delivery system during the parenteral conscious sedation of a patient is in itself a failure to attain the Standard of Care. A dentist with ready access to a pulse oximeter and positive pressure oxygen delivery device should have been able to manage J. C.'s toxic reaction to the mepivicaine without the loss of life or even serious injury. Even without a pulse oximeter, a dentist should have been able to manage this clinical emergency without the loss of life or even serious injury. The proper management of the clinical emergency requires a thorough understanding of the process by which the body reacts to an overdose of a local anesthetic. Respondent tragically failed to apprehend the significance of the mepivicaine overdose that he had administered, evidently thinking instead that J. C. was exhibiting signs of an allergic or anaphylactic reaction, possibly to the mepivicaine. The Standard of Care requires that a dentist determine in the first five minutes following a convulsion if he is going to require emergency medical services and, if so, to summon such services at that time. The first thing the dentist must do after a patient suffers a convulsion is to establish an airway, which is a direct line from the patient's mouth to his lungs. If all that is required is to tilt the head back and chin up, as Respondent did, then such action is of course is sufficient. If, as here, such action is insufficient, the Standard of Care demands that a dentist using parenteral conscious sedation be prepared and able to insert an endotracheal tube or nasal airway in order to create a path for oxygen to reach the lungs. Responding to a question concerning Respondent's care in diagnosing and treating J. C. after the onset of convulsions, Respondent's expert, Dr. Wecht, conceded that Respondent failed to attain the Standard of Care: I think, with the time sequence here, given the circumstances, the panic, the anxiety, you know, were all understandable. I don't see anything dramatically negligent here in terms of wanton gross neglect, criminal negligence and so on. I just don't see it. Could this case be argued in the context of plain, unadorned negligence, could it be a bona fide malpractice case? Those are reasonable observations and inquiries, and I would be the first one to say that the answer to that could, indeed, be yes . . .. Respondent Exhibit 6, page 43. Respondent failed to manage the clinical emergency in a manner consistent with the Standard of Care. The evidence is overwhelming that he did not in fact maintain an effective airway. He was critically handicapped by the absence of a positive pressure oxygen delivery system. Switching the nitrous oxide machine to 100% oxygen did not help J. C., whose inspirations had become so impaired that she required ventilation. Had Respondent commenced CPR within the first few minutes of the onset of the convulsions, rather than about 45 minutes later, the brain injury might have been minimal. However, by the time Respondent commenced CPR, it was too late. By this time, ventilating the patient with 100% oxygen, as the paramedics did upon their arrival 12 minutes later, could do nothing for the severe brain damage that J. C. had already suffered. Respondent again failed to attain the Standard of Care by not summoning paramedics for about 45 minutes after the initial convulsion. Had he heeded the request of Ms. Barlette to call 911, there is a good chance that J. C. would not have died, notwithstanding Respondent's administration of an overdose of mepivicaine, absence of vital equipment, and evident inability to diagnose and treat the ensuing clinical emergency. Malamed, quoting Goodson and Moore, "Life Threatening Reactions after Pedontic Sedation: an Assessment of Narcotic, Local-Anesthetic, and Antiemetic Drug Interaction," in the Journal of American Dental Association, 107:239, 1983, states that the use of sedative techniques accompanied by the administration of narcotics requires continual monitoring of the cardiovascular and respiratory systems, ability of the practitioner to recognize and control the respiratory arrest and convulsions that are "easily induce[d]" by multiple sedative drug techniques, careful selection of dosages based on the body weight of the patient, and readiness to change the technique of sedation or choice of drugs at a later appointment rather than merely increasing the dosage when the initial dosage proves inadequate. Malamed reports that a recent three-year study attributed most deaths occurring in the dental practice related to the administration of drugs involved three factors: Improper preoperative evaluation of the patient. Lack of knowledge of drug pharmacology by the doctor. Lack of adequate monitoring during the procedure. Id. at p. 299. Malamed concludes: . . . with care on the part of the doctor, the incidence of [an overdose reaction to the administration of CNS-depressant drugs] should be extremely low, and a successful outcome should occur virtually every time. Id. On March 28, 1991, Respondent was indicted for the second degree felony of manslaughter in connection with the death of J. C. In a supplemental statement of particulars, the State of Florida alleged that Respondent administered an inappropriately high dosage of mepivicaine, Respondent's office was not equipped with a pulse oximeter or positive pressure oxygen delivery system, Respondent failed timely to contact emergency medical services, and Respondent thereby displayed a reckless disregard for human life. By plea agreement signed October 31, 1991, Respondent pleaded nolo contendere to the charge of manslaughter and waived his right to appeal any pretrial rulings. He was adjudicated guilty by judgment entered the same day and sentenced, pursuant to the agreement, to six months' community control followed by five years' supervised probation, together with various costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Dentistry enter a final order revoking the license of Respondent. ENTERED this 24th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1992.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner, the Board of Medicine, is the state agency charged with regulating the practice of medicine and respiratory care. Respondent is, and has been at times material hereto, a licensed respiratory care practitioner in Florida, having been issued license number TT 0002632. As a condition of renewal of her certificate/ registration to practice respiratory care, Petitioner requires licensed registrants, as Respondent, to periodically demonstrate their professional competency by completing at least twenty-four (24) hours of continuing education every two (2) years, of which at least three (3) hours shall concern Human Immune Deficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS). The criteria for and content of the continuing education courses are required to be approved by the Board prior to a registrant obtaining credit for such courses. To be accepted, Petitioner requires the registrant to demonstrate, inter alia, that the course was either presented by a live faculty or it was approved by the Board's Advisory Council. As part of her effort to renew her certificate, on or about December 16, 1988, Respondent signed the following statement which was thereafter submitted as part of her renewal request to practice respiratory care: I hereby affirm that I have earned the CONTINUING EDUCATION UNIT hours required by the DEPARTMENT OF PROFESSIONAL REGULATION to renew my license. I understand within the next two years I maybe required to submit a listing of my courses along with proof of completion if my license number is selected for audit. I also understand that it is my responsibility to maintain for a review by the DEPARTMENT, all CONTINUING EDUCATION DOCUMENTATION referenced herein. I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension, or revocation of my license as provided in F.S. 455.2275, F.S. 775.082, or F.S. 775.084. The above statement was required to be completed by Respondent as part of her renewal process for the licensing period from January 1, 1987 through December 31, 1988. Petitioner relied on Respondent's affirmation that she completed the required courses when her renewal application was considered. Without executing that statement, Respondent could not have renewed her license to practice respiratory care in Florida. Respondent successfully renewed her license application to practice respiratory care in Florida, which renewal was, in part, based on Respondent's execution of the above-referenced statement regarding completion of the required continuing education credits. Subsequently, Respondent was the subject of a random audit by Petitioner to verify her continuing education credits for the period in question. On or about June 26, 1990, Respondent submitted verification for twenty-four (24) hours of continuing education. However, four (4) of the courses submitted by Respondent were self-study courses given by videotape, were not approved by the Board, and did not qualify for the required continuing education. The courses that Respondent took through the Department of Health and Rehabilitative Services in Gainesville did not have a provider number from either the AMA, AARC, RJRCTE, nor any other approval body or accredited association. The Advisory Council for Respiratory Therapy never indicated or agreed to accept or use HRS hours for continued education units from Respondent which were not approved. Eight (8) of the hours submitted by Respondent for satisfaction of the continuing educational requirement, in addition to the HRS hours, do not have an appropriate certified provider number. Respondent did not maintain or provide to Petitioner the required documentation for the Board's random audit to verify that she successfully completed the continuing education requirements for the biennium in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: (1) Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00) payable to the Board of Medicine within thirty (30) days of entry of its Final Order, (2) Petitioner impose a requirement in such Final Order that Respondent demonstrate compliance with two (2) future bienniums with additional continuing education requirements in each biennium, and (3) Petitioner issue a written reprimand to Respondent. 1/ DONE and ENTERED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1991.
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.
