The Issue Whether the Respondent is guilty of unprofessional conduct. Whether her license as a registered nurse, certificate no. 8829 should be suspended or revoked or whether Respondent should be put on probation.
Findings Of Fact The Respondent, Christine Richter, who holds license no. 88294-2 was employed as a registered nurse at Tallahassee Memorial Hospital, Tallahassee, Florida, during the month of February, 1977. She worked as a certified nurse and anesthetist under Ann Marie Connors, the chief nurse anesthetist. The chief nurse anesthetist reported to the Associate Executive Director April 11, 1977, that there were gross discrepancies in the narcotics record kept by the Respondent and at that time she presented him with some of the records. On April 12, 1977, Respondent was requested by the Associate Executive Director to report to his office for a conference. Nurse Connors, the chief nurse anesthetist, was also called to be present at that conference. At the conference the Associate Executive Director asked Respondent for an explanation as to the discrepancies between the narcotic and barbiturate administration record and the patient records. In reply the Respondent stated that she needed a hysterectomy and could not afford it. Upon the insistance of the Associate Executive Director that she give an explanation for the discrepancy in the hospital records, she indicated that she needed to improve her charting. She gave no explanation for discrepancies in the narcotics chart which she signed, and indicated that she would resign. The Director stated that he would accept her resignation and she left the conference. The Respondent mailed her written resignation to the Tallahassee Memorial Hospital the following day. The Accreditation Manual for Hospitals, 1976 edition, published by the Joint Commission on Accreditation of Hospitals "Anesthesia Services" pages 59 through 64 is used as the standard for anesthetic procedure. A department standard book approved by the American Hospital Association and the joint commission on the accreditation of hospitals is required to be read by each employee of the Tallahassee Memorial Hospital as it pertains to the department in which the work is to be performed. The instructions in the department standards book are the same as in the Accreditation Manual for Hospitals as far as anesthesia services is concerned. Medical records of eight patients were introduced into evidence together with Narcotic and Barbiturate Record no. 081291. This shows the date, time, patient's name, room number, doseage, attending physician and administering nurse. The doseage of drugs secured by and signed for by the Respondent, Christine Richter, was more than the records show was administered to the various patients. No accounting was made for the difference between the amounts of drugs secured and the amounts, if any, administered to the patients, although it is the duty of the nurse checking out drugs to account for its use in writing on a form provided for that purpose. The Respondent offered no verbal explanation for the missing drugs when given the opportunity to explain her actions by the Associate Executive Director at Tallahassee Memorial Hospital and her immediate supervisor, Ann Marie Connors, chief nurse anesthetist.
Recommendation Revoke the license of Christine Richter. DONE AND ENTERED this 12th day of December, 1977, in Tallahassee, Florida. DELPENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Rivers Buford, Jr., Esquire Post Office Box 647 Tallahassee, Florida 32302
Findings Of Fact Margie Leverson, petitioner, was registered with the Florida State Board of Nursing in 1978 as a licensed practical nurse holding license number 13107-1. On the evening of March 9, 1978, petitioner was assigned to work the 11 p.m. through 7 a.m. shift in the critical care unit of Palm Springs General Hospital, Homestead, Florida. An audit of administration records at the Hospital disclosed that petitioner failed to properly chart medications administered to a number of patients, that she failed to complete the nurses' notes of patients under her care, and that she did not sign the medication administration profile sheets or nurses' notes for any of the patients under her care during the time at issue. The importance of conforming to these requirements is to assure that all medications have been given when scheduled and to assure continuity in evaluating a patient's illness. With critically ill patients, it is necessary to be able to ascertain when a condition or problem was noted and how it was treated. Otherwise, continuity is lost, and it is possible that decisions as to treatment may not be accurately made, and the nurse in charge cannot in every case be identified unless her signature appears on the documents. Failure to chart medications administered to patients. On two occasions, petitioner failed to chart medications administered to patients. Specifically, Juan Pinera was to receive 2 million units of penicillin intravenously every four hours, including twice during the time he was in petitioner's care. However, the prescribed medication was not charted as having been given to the patient during this time. Another patient, Peter L. Garcia, was scheduled to receive ampycillin 500 mg. at midnight and 6 a.m., and garamycin 40 mg. at midnight. Such administrations, if given, were not charted by petitioner. Failure to adequately and properly chart the nurses' notes of patients in the nurse's care. In the case of four patients under the care of petitioner, no nurses' notes were kept. (Exhibit Nos. 1, 2, 5, & 6). For the other three patients, the notes were of minimal, if any, value because they did not provide any evaluation or explanation of the problems noted. (Exhibit Nos. 3, 4 & 7). Petitioner herself acknowledged that the words were written in her hand writing and were of no value to anyone attempting to determine the patient's condition. Failure to sign medication administration profile sheets and nurses' notes. The petitioner failed to sign the medication administration profile sheets and nurses' notes for any of the patients under her care during the time at Issue. In mitigation, petitioner had earlier completed a 3 p.m. through 11 p.m. shift at another hospital on the same date. She arrived on duty at the Hospital around 11:30 p.m. Because of an argument with a co-worker, she was transferred by her supervisor to another unit around 1:00 a.m. and claims she cannot be held accountable for the failures as to the seven patients who were under her care. Petitioner stated she ultimately left the hospital on leave around 3:00 a.m. due to a pinched nerve in her back.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED the application of Margie Leverson for reinstatement of her license as a licensed practical nurse be granted subject to the conditions set forth in conclusion 14 above. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Margie Leverson 4030 Northwest 190th Street Opa Locka, Florida 33055 Frank A. Vickory, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
The Issue This case involved the treatment of and records maintained on Veronica Tuthill while she was a patient at Padgett's Nursing Home from May of 1979, until February, 1980. There were certain factual matters in dispute, to include: Did Veronica Tuthill receive preventive treatment for decubitus ulcers? Did Mrs. Tuthill have a physical-therapy assessment, and was it recorded? Were records on Mrs. Tuthill properly maintained by the nursing staff? Was the transfer document completely prepared when Mrs. Tuthill was transferred from Padgett's Nursing Home to Bay to Bay Nursing Home? Did Mrs. Tuthill receive proper treatment for decubitus ulcers? The primary legal issue is whether the Respondent, Rubin Padgett, is legally responsible for any of the deficiencies alleged. Because of the voluminous quantity of evidence produced and the many proposed findings, the findings herein are limited to those which were at issue. Significantly conflicting testimony regarding issues of fact have been indicated, together with the specific finding. The Board showed that there were certain specific instances when the nursing staff failed to chart or to chart completely the nursing care and treatment rendered Mrs. Tuthill, that a nursing staff member failed to properly complete the transfer document, and that Mrs. Tuthill developed decubitus ulcers while a patient at Padgett's Nursing Home. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence or not being a finding of fact. Only those materials received into evidence at hearing were considered as part of the record and formed the basis for these findings. FINDINGS OR FACT The Respondent, Rubin Padgett, is a licensed nursing home administrator and has extensive experience in this field, to include service on the state regulatory board. Respondent is not a registered nurse, medical doctor or related health care professional. Veronica Tuthill was brought to Florida by her daughter, Barbara Magee, who discovered her mother in a nursing home in Virginia. Mrs. Tuthill had been placed in the Virginia home by an unidentified daughter. Ms. Magee was vague about her mother's past medical history, and Mrs. Tuthill was apparently unable to provide her treating physicians with an adequate medical history. However, Mrs. Tuthill was in poor medical condition with contractures, a poorly healed and misaligned fractured hip, malnutrition, anemia, chronic pulmonary disease, arteriosclerotic heart disease and one decubitus ulcer (bedsore) when Ms. Magee brought her to Florida. On April 18, 1979, Mrs. Tuthill was admitted to Centro Espanol Hospital. She was given treatment for her various problems, to include transfusions and treatment for her decubitus ulcer. She was discharged from the hospital on May 10, 1979, with her condition improved; however, she still had the chronic problems described above and a decubitus ulcer the size of a quarter on her left hip. On May 10, 1979, Mrs. Tuthill was admitted to Padgett's Nursing Home (PNH). During her stay at PNH, Mrs. Tuthill's original decubitus ulcer broke down again. She also developed additional ulcers on her left and right buttocks and on her right foot. In many instances the nursing records for Mrs. Tuthill were not adequate because they did not fully and in every instance reflect the treatment and nursing care given the patient. These deficiencies included failure to chart the size, condition, etc., and treatment given Mrs. Tuthill's decubitus ulcers. However, it is specifically found that Mrs. Tuthill received the ordered treatment and preventive measures regularly taken to prevent the formation of decubitus ulcers. The development of decubitus ulcers on opposite sides of Mrs. Tuthill's body and buttocks while she was at PNH supports the testimony of the nursing staff treating her that she was turned properly as ordered, although said care was not always recorded in the nursing records. The records of treatments rendered also support the staff's testimony. A physical therapy assessment was performed and an appropriate entry charted in the nursing notes. The report of the therapist was not found in Mrs. Tuthill's file when it was reviewed by inspectors from the Department of Health and Rehabilitative Services (HRS). When this was reported to the director of nurses, she requested and received a copy of the report from the physical therapist which was placed in Mrs. Tuthill's file. This report reflects that Mrs. Tuthill was assessed for physical therapy and was determined not to be capable of receiving any benefit from physical therapy. Moreover, at the time of her assessment the results were reported to Mrs. Tuthill's physician, who discontinued his orders for physical therapy. This was annotated in the nursing notes at the time. Mrs. Tuthill was transferred from PNH to Bay to Bay Nursing Home on February 25, 1980. The transfer form on Mrs. Tuthill was not properly completed by the nursing staff at PNH at the time she was transferred to Bay to Bay Nursing Home. On March 5, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery on her decubitus ulcers. She was discharged on March 19, 1980, after the ulcers were debrided. On March 24, 1980, Mrs. Tuthill was again admitted for surgical closure of the ulcers as had originally been planned. She was discharged on April 7, 1980, with all her ulcers closed and healed. On August 10, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery to close two decubitus ulcers which had developed during her stay at Bay to Bay Nursing Home. During her hospitalizations, Mrs. Tuthill received blood transfusions to increase her hemoglobin in order that she could receive anesthesia. This also improved her overall health, positively affecting her anemia, nutrition, pulmonary disease and arteriosclerotic circulatory problems, thereby assisting in the treatment of her ulcers. Expert medical testimony was conflicting on whether proper nursing care can prevent the formation of decubitus ulcers. It is specifically found that bedridden patients can develop decubitus ulcers while receiving the best of nursing care and treatment. This finding is supported by the fact that Mrs. Tuthill developed ulcers in both nursing homes and under two different treatment regimes. Expert medical testimony was conflicting on the appropriate medical treatment for decubitus ulcers. Mrs. Tuthill's medical treatment at PNH was within the limits of the conservative approach to treatment of decubitus ulcers. Her treating physician altered his treatment, increasing the strength of the medications and efforts to reduce and heal the patient's ulcers. Surgery is also an acceptable treatment for moderate-to-severe ulcers; however, Mrs. Tuthill's ulcers at the time of her discharge from PNH were at the moderate stage of development. Respondent had appointed a qualified medical director and a qualified nursing director, and had developed written procedures as required prior to Mrs. Tuthill's admission. These directors were directly responsible for the supervision of their particular services. Respondent was responsible for the overall administration of the nursing home; however, he was dependent upon the specific professional judgment and knowledge of his subordinate staff directors. Although PNH was inspected annually, and some failings regarding charting of medications were discovered and reported, these failings were not sufficient for HRS to deny licensure. Respondent took remedial action to improve the performance of his staff after these inspections. No evidence was introduced that there were significant departures from the standards of care established by the applicable rules and regulations or prevailing professional standards in the care of other patients. At the time the HRS personnel investigated Mrs. Tuthill's case, they did not investigate other patient files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Rubin Padgett, is found not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes, it is recommended that the Administrative Complaint against him be dismissed. DONE and ORDERED this 13th day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Mildred Gardner, Executive Director Board of Nursing Home Administrators 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, Guy Hendricks, III, R.Ph., is subject to discipline pursuant to Subsection 465.016(1)(e), Florida Statutes, for violating Rule 64B16-28.120(2), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Guy R. Hendricks, III, R.Ph., is a Florida-licensed registered pharmacist, so licensed in 1972; he was licensed as a consultant pharmacist in 1974. Registered pharmacists typically dispense medications at a community pharmacy, for example, Eckerds and Walgreen's. Consulting pharmacists oversee a pharmaceutical distribution system in a long-term care nursing home facility with a Class I institutional permit. In addition to his employment at the Arbors in Orange Park (the Arbors), Respondent is engaged in the development of "cutting edge consultant computer programs" and "research and development in the field of software platforms which will lead to a fully integrated consultant software package." (Respondent's vita, Petitioner's Exhibit 2) On August 1, 1996, Respondent became the consulting pharmacist for the Arbors. The AHCA survey, which is the genesis of the allegations of the Amended Administrative Complaint in this case, was conducted later that same month. The Arbors is a sub-acute care facility which has a Class I institutional pharmacy permit. Florida Statutes and Florida Administrative Code rules restrict the type of medicinal drugs and drug preparations allowed in Class I institutional pharmacies. One of the consulting pharmacist's responsibilities is to see that the applicable Florida Statutes and Florida Administrative Code rules are followed within the Class I institutional pharmacies, subject to pharmacist's control. The Arbors utilized a Baxter SureMed Dispensing Machine (SureMed machine) which is a computerized dispensing machine that stores medications and allows the pharmacist to track when medications are taken from the machine, by whom they are taken, what dosage is dispensed, and to whom the medication is administered. It has a complete computerized tracking system. It is a "modern tool of pharmacy" used to provide a high level of pharmaceutical care for nursing home residents. Florida Statutes and Florida Administrative Code rules require that nursing homes, such as the Arbors, provide "reasonable and consistent quality of life for residents" and that "reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home." Florida Administrative Code rules allow the Arbors to adopt policies and procedures regarding drugs to meet the needs of residents and to maintain an Emergency Medical Kit(s), the contents of which shall be determined by the facility's medical director, director of nursing, and pharmacist, and "it (the medical kit) shall be in accordance with facility policy and procedures"; the "emergency medical kit" may contain medicinal drugs and drug preparations which are not otherwise allowed within Class I institutional pharmacies. Respondent testified that the SureMed machine was being used as one of the Emergency Medical Kits of the Arbors. The drugs contained in the SureMed machine were determined by the Arbors staff before Respondent was employed as consulting pharmacist. During the August 27-28, 1996, AHCA Survey, the surveyor concluded that the SureMed machine was being used inappropriately by the Arbors. The survey revealed that the SureMed dispensing unit was used as an emergency medication kit. Review of the SureMed Policy and Procedure stated "Medications stored in SureMed are intended for emergency stat orders, late admission first dose, new orders and missing doses" (part of Petitioner's Exhibit 5) contrary to the approved use of medicinal drugs used in facilities with a Class I Institutional Pharmacy Permit. An inventory list provided by the facility revealed in excess of 300 medications in the SureMed unit and this unit had been accessed 22 times in the 24 hours prior to surveyor review. Further review of the usage log revealed that an unsampled resident received Norixin from the SureMed unit on 8/26/96 at 23:04, 8/27/96 at 22:21 and 8/28/96 at 22:21 instead of receiving a resident specific labeled medication from the provider pharmacy. Respondent suggests that a "typographical error" may have occurred in the facility's SureMed policy and procedure in that, if the word "not" is inserted after the words "emergency stat orders," the policy and procedure would conform to the limitations proscribed for Class I institutional permitees. While this explanation is plausible, it is not accepted as credible. This portion of the Arbors' SureMed policy and procedure, referenced by the AHCA surveyor, does not follow Florida law. If the foregoing policy and procedure language is the only language considered, the surveyor's conclusions may be justified; however, the surveyor failed to note the following language which immediately follows the quote from the same SureMed policy and procedure. "SureMed is not intended to be a routine source of medication. The pharmacy must be informed of all new admissions, new orders, refill orders, and missing doses." When a nursing home resident is first admitted to the Arbors, the admittee does not bring medications but brings new prescription orders which must be filled by the provider or back-up pharmacy. Home Care Pharmacy in Orlando, Florida, provides medications to the Arbors; it is 140 miles from Orlando to Orange Park. Deliveries are made two times a day. There were occasions in 1996 when patients were out of medication or Home Care Pharmacy was not delivering as ordered. While the Arbors has only a Class I institutional permit which limits drugs readily available to residents, the facility accepts residents who are "sub-acute" care patients, for example, patients with chronic disease, post-surgical patients, and patients with "super" infections, all of whom require continuity of pharmaceutical therapy. Frank May, a registered pharmacist and certified HCFA surveyor for AHCA, testified that while the Arbors' SureMed policy and procedure were "out of compliance," nevertheless, it was appropriate to "take a drug out of the machine or out of the emergency medication kit if it cannot be provided by the provider pharmacy or if that provider pharmacy is a long way off or by a back-up pharmacy in a timely manner for the next dosage of that medication." May also testified that "there is nothing wrong" with utilizing the SureMed machine as an emergency medical kit or maintaining drugs, otherwise not permitted in a Class I institution permit, in the machine. May further testified that without examining each instance wherein the SureMed machine was accessed immediately prior to the AHCA survey, it would be impossible to determine whether or not an "emergency" existed warranting the use of the particular drug obtained from the SureMed machine. May testified that in 1996, the use of automated drug dispensing machines was becoming very prominent in nursing homes; and problems, such as addressed in this case, were "fairly prevalent." Respondent maintains that the facility's use of the SureMed machine was on a bona fide emergency basis only. The Arbors' SureMed policy and procedure were changed immediately following the August 1996 survey. Respondent sent AHCA a July 20, 1997, letter in response to the AHCA licensure investigation in which he identified the SureMed machine as a "computerized emergency system," a "modern tool of pharmacy," and "our only solution" "to treat our residents' sub acute conditions" when "some local pharmacies . . . could not provide medications." The SureMed machine was removed from the Arbors in November 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of March, 2001. COPIES FURNISHED: Guy Hendericks, III Post Office Box 4173 Sebring, Florida 33871 Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 John Taylor, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue By its Administrative Complaint, dated October 14, 1980, Use Petitioner seeks to impose an administrative fine in the amount of $1,500.00 upon the Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center for alleged violations of Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. Specifically, the Petitioner charges the Respondent with allegedly failing to provide patients in its nursing home with adequate care consistent with their right to receive adequate health care in accordance with the established and recognized practice standards in the community and with rules promulgated by the Department pursuant to Section 400.022 (1)(g), Florida Statutes. The Petitioner charges also that the Respondent failed to maintain its premises and equipment and conduct its operations in a safe and sanitary manner as required by Section 400.141(4), Florida Statutes. The Respondent is concomitantly charged with violations of Rules 10D-29.33(4) and 10D-29.38(1), and Rule 10D-29.52(4) Table (36), Florida Administrative Code, in the area of patient health care. A violation of Rule 10D-29.49(1), Florida Administrative Code is alleged on the ground that no effective maintenance plan was promulgated or implemented by the Respondent. The charges at issue relate to an August 22, 1980 complaint investigation and surveillance visit conducted by personnel from the Tampa Office of Licensure and Certification of Petitioner's Department. On that visit it is charged that the Petitioner's personnel observed a patient and her bed linens soiled with fecal material and another patient who had soil accumulations on the right hand and was in need of hand care. Additionally, the Petitioner's personnel allegedly observed nurse paging cords missing or not attached to beds in approximately twelve rooms and observed various fixtures and equipment in need of repair. The issues are thus whether the acts or omissions charged occurred, and whether they constitute violations of the above-cited legal authority and concomitantly, whether an administrative fine is appropriate pursuant to Section 400.102(c) and Section 400.121(2), Florida Statutes. Two witnesses were called by the petitioner and five by the Respondent. Ten exhibits were introduced into evidence. The Respondent moved to dismiss the Administrative Complaint. The Motion to Dismiss will be treated in the Conclusions of Law hereinbelow. The Respondent has filed 248 proposed findings of fact and has requested separate rulings upon each. In that regard, the Hearing Officer has considered all proposed findings of fact, conclusions and supporting arguments of the parties. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant, dispositive or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings and conclusions herein, it is not credited.
Findings Of Fact The Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center, operates a nursing home facility in Tampa, Florida. The Office of Licensure and Certification (OLC), of the Department of Health and Rehabilitative Services (HRS) is responsible for the investigation of complaints about the operation of nursing facilities such as that of the Respondent, which are licensed by HRS. On August 22, 1980 a complaint investigation and surveillance of the Respondent's facility was conducted by O.L.C. employees Joel Montgomery and Muriel Holzberger. These individuals performed an inspection tour of the Respondent's facility accompanied by staff members of the Respondent to generally observe the level of health care accorded patients and the effectiveness of maintenance and repair operations carried out by the Respondent on its facilities and equipment. Ms. Holzberger, a registered nurse and accepted as an expert in the area of proper nursing care standards, personally observed at least 90 percent of the 176 patients resident at the Respondent's facility. In that connection, witness Holzberger observed patient A. W. who was bedridden at the time. This witness observed a brown stain approximately the size of a half dollar on the top sheet of patient A. W.`s bed. The witness described the stain as appearing to be the color of fecal material and it apparently was dry. She did not touch it, but made a determination by its visual appearance only. The stain only consisted of a brown coloration and no fecal material was observed adhering to the stained area. The sheet of this patient was raised by Nurse Holzberger who thereupon observed wet excrement on the patient's buttocks and on a waterproof pad that had been placed under the patient. Ms. Holzberger opined that at this point and time at least, the patient had not been cleaned. No dried excrement material was observed on the patient or on the waterproof pad however. Patient A. W. had a medical history of constant fecal incontinence and other bowel problems consisting generally of frequent impactions, coupled with constant oozing of fecal matter. Proper nursing care for such a patient was established to consist of changing sheets and washing the patient frequently to avoid the danger of skin breakdown in the anal and coccyx area which can be caused by frequent contact with fecal material. This witness, however, was unable to testify that patient A. W. had not been cleaned frequently inasmuch as she had a constant oozing of fecal material due to her inability to achieve sphincter control. The witness was similarly unable to establish that the wet excrement observed on the patient's buttocks and the waterproof pad beneath her had not been disposited there immediately before her observation of the patient. It was not shown that the patient had remained in a soiled condition for a significant period of time and indeed the witness acknowledged that allowing such a patient to remain in a soiled condition for a short period of time would not, on one or two occasions, affect that patient's health and safety. It is inferred that the soiling could just as likely have occurred immediately prior to Ms. Holzberger's observation inasmuch as it was described to be wet. Ms. Holzberger's observed no patients in the nursing home exhibiting skin breakdown or other ill effects caused by contact with excrement. Nurse Holzberger also observed patient C. M. who had severe contractures of the hands. Ms. Holzberger maintained that she observed soil accumulations in the right hand and the fingernails were in need of trimming. This witness described generally accepted hand care for contractured hands as consisting of washing or soaking in warm water at least daily and that if the contracture is severe, causing pain to open the hand, a washcloth should be wrapped on a tongue blade and inserted into the hand to clean it in that fashion. Drying is accomplished in a similar manner followed by insertion of a soft hand roll at least one inch in diameter to prevent indentation of the nails into the hand and to prevent build up of perspiration and to allow air to circulate. The nails should be trimmed as short as possible. Ms. Holzberger concluded, based primarily on the observance of the soil or stain in the hand, that it had been several days since hand care had been performed on this patient. Nurse Holzberger admitted that she knew nothing of the medical history of the patient C. M., a 97-year-old lady who suffers from severe degenerative arthritis and osteoporosis in both hands. The hand in question is so severely contractured as to be "in a ball." The witness acknowledged that no patient at the facility, including patient C. M., had any wounds caused by long nails, and that patient C. M. did have a gauze pad inserted into her hand. Witness Holzberger acknowledged that the brown stain on the patient's hand could have been due to the use of betadine which is a form of disinfectant medication and indeed Nurses Campanillo and Groves who testified for the Respondent, and were similarly accepted as experts, confirmed that the stain on patient C. M.`s hand was not caused by soil accumulation, but rather the betadine medication applied the day before in the course of regular hand care. Witness Holzberger testified that such hand care should be performed once a day and that she did not know whether it had been performed on the day of the inspection or not. The Respondent's witnesses confirmed that it had not been performed on that day at the time of her inspection shortly after 11:00 a.m., but that within the regular schedule of care for patients, it should be and was performed before 12:30 that day. Witness Holzberger admitted that there was no danger to the health and safety of the patient even if the hand was allowed to remain unclean for a reasonable period of time, which it was not. The Respondent thus demonstrated that the hand care was performed daily and that this patient could not tolerate a hand roll under her fingers to retard perspiration and indentation of the nails into the palm because it was extremely painful to even slide a tongue depresser with a washcloth under her fingers. Consequently, hand care was adequately accomplished on a daily basis by inserting a four inch gauze pad beneath her fingers and against her palm soaked with betadine solution and keeping her nails trimmed as short as possible. Witness Joel Montgomery was the hospital consultant on the Department's inspection team. Witness Montgomery observed a leaking air conditioner unit, a broken water closet tank cover, a leaking faucet in a janitor's closet, an inoperative water fountain and a missing baseboard in two of the rooms, as well as the allegation that nurse call cords were missing or not attached to the beds in approximately 12 rooms. The witness conceded that this is a large nursing home and such deficiencies are not unusual for a nursing home of this size and type, and that the staff of this nursing home had made sincere and continuing efforts to make repairs. He has seen improvements in maintenance over conditions existing at previous inspections. The witness was unable to state how many nurse paging cords were severed or missing, but that most of the 12 were simply not attached to the patients' beds. His testimony was not clear as to the existence of a requirement for attaching the paging cords to the beds, but the general tenor of his testimony was that that was the accepted procedure required by the Petitioner in regulating and overseeing patient care in nursing homes. The witness could not recall which, if any, beds were occupied in the rooms where he noticed the call cords were not attached to the beds. The witness also acknowledged that some of the cords were reattached to the beds in his presence, but he did not recall how many. The Respondent has a policy of detaching the cords from the beds when the patients are not in bed in order to change the linen, move the beds or to better allow ingress or egress by the patient from the bed. This witness did not establish that that policy conflicts with any Department policy or rule or constitutes an adverse influence on health care. The Respondent adduced evidence which established that only two call cords were actually inoperative during the inspection and that those were repaired during the inspection. The Respondent's witness to this effect Ann Killeen, the Administrator of the facility, made the inspection tour in the company of witness Montgomery for the Petitioner and corroborated the fact that the cords were clipped to the wall when patients are out of the beds or beds were being changed in order to prevent cords from breaking when the beds are moved, and that she was unaware that this violated any minimum standard promulgated by the Petitioner. The broken toilet tank cover was corrected while the inspector was on the premises, the leaking faucet in the janitor's closet sink was a slight drip causing no standing water inasmuch as the leaking water went down the drain. The leaking air conditioner drip pan was the only one of 89 air conditioners with such a problem. The testimony of this witness, as well as Respondent's witness Robert Cole, the employee of the facility in charge of maintenance, establishes that the inoperative call cords as well as the loose baseboards, the inoperative water fountain and broken water closet tank cover were repaired on the day of the inspection while the inspector was still on the premises with the exception of the air conditioner which was repaired within one week after the inspection and the baseboards which were repaired the day after the inspection. The water fountain was the subject of regular maintenance and had been repaired a number of times and the plumber was summoned to repair it once again after its deficiency was noted by Mr. Montgomery. None of the deficiencies with regard to the nurse call cords, the condensation dripping from the air conditioner, the broken water closet tank cover, the leaking faucet, the inoperative water fountain and the loose baseboards were shown to have been a recurring problem or problem existing for any significant period of time. The Petitioner did not show when these conditions occurred or how long they had been allowed to exist, nor did it show any resultant effect on the health or safety of the patients. The Respondent called Earnest H. Brown as an adverse witness. Mr. Brown is the Supervisor of the Tampa area Office of Licensure and Certification for the Petitioner. This witness admitted that he recommended a fine with regard to witness Holzberger's observance of patient A. W., who was fecally incontinent, because he believed fecal material had been found dried upon that patient's bed sheet. He relied on witness Holzberger's professional judgment in reporting to him. Witness Holzberger's testimony at the hearing, however, does not establish that any dried fecal material was found on patient A. W.`s bed sheet. With regard to his decision to recommend a fine concerning the deficient nurse calling cords, the witness admitted that this was predicated on the other observances of deficient call cords at the Respondent's facility on past inspections. The witness could not recall how many call cords, if any, had been observed to be inoperative or otherwise used improperly on past inspections. It should be noted parenthetically that the Administrative Complaint contains no allegation of such past deficiencies as a predicate to the charge regarding call cords in the Administrative Complaint stemming from the inspection of August 22, 1980 and in support of the fine which the Petitioner seeks to impose for this condition.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings of the parties, it is RECOMMENDED that the Administrative Complaint filed against the Respondent in this cause should be dismissed. DONE AND ENTERED this 27th of April, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981. COPIES FURNISHED: Amelia M. Park, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Richard A. Gilbert, Esquire de la Parte & Butler, P.A. 403 Morgan Street, Suite 102 Tampa, Florida 33602 Steven R. Reininger, Esquire Tew, Critchlow, Sonberg, Traum & Friedbauer 10th Floor Flagship Center 777 Brickell Avenue Miami, Florida 33131
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11 day of October, 1989.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
