The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S 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 22nd day of June, 2007.
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact The Respondent in this case is Robin Karoly. Two horses, Daisy and Sugar, were the subject of this proceeding. Both Daisy and Sugar were infected with EIA. The Respondent knew Daisy and Sugar were both infected with EIA. Neither Daisy nor Sugar had received a negative Coggin's Test since being diagnosed with EIA. EIA or "Swamp Fever" is an equine disease. EIA is spread by blood sucking insects biting an infected horse and thereafter biting an uninfected horse. The disease can also be spread by the use of hypodermic needles contaminated with the blood of infected horses. There is no known cure for EIA. Once infected, a horse has EIA for the rest of its life. Chapter 585, Florida Statutes, and Rule 5C-18, Florida Administrative Code, provide that horses infected with EIA can be dealt with in one of three ways. An infected horse can be quarantined at a Department-approved site and its movement controlled by the Department; or the horse can be euthanized or sold for slaughter. The meat of horses which are destroyed with the use of drugs cannot be sold; however, the meat from horses which are shot may be sold. When a veterinarian diagnoses a horse with EIA, a report is made to the Department. The standard test for EIA is the AGIE Test, commonly known as a Coggin's Test. The results of the Coggin's Test are reported to the Department on VS Form 10-11. When an infected horse is diagnosed it is given an identification number by the Department and the identification number is freeze branded or tattooed on the left side of the horses neck. A Coggin's Test is considered valid for twelve months. In the state of Florida, a negative Coggin's Test must have been performed within the previous twelve months before a horse may be sold or possession transferred. The EIA disease control program seeks to control EIA by quarantining infected animals or destroying the infected animals. A horse infected with EIA cannot be moved from a quarantine location until a permit is issued by the Department. Infected animals can only be moved to approved quarantined sites. Quarantined sites are approved by the Department. On June 24, 1994, the Respondent and Paula Elmore took possession of four horses which were infected with EIA. Two of the horses were named Daisy and Sugar. See Petitioner's exhibit 6. At that time the Respondent and Paula Elmore were engaged in a personal relationship, and both were active in the care of horses infected with EIA. The Respondent knew that Daisy, an eight-year-old gray mare, ID Number 58 1556 and Sugar, a twenty-four-year-old paint, ID Number 58A6009, were both infected with EIA. See stipulated facts. On June 25, 1994, Daisy and Sugar were quarantined at the R.K. Isolation Lot, also known as the R. K. Ranch, a EIA quarantine site approved by the Department, located at 10200 NW 138th Street, Miami Lakes, Florida. See Petitioner's exhibit 7. Subsequently, uninfected horses were moved into a pasture adjoining R. K. Ranch, and the Department determined that the infected horses at R. K. Ranch would have to be moved. Discussions regarding moving the infected horses were on-going between the Department and Respondent and Elmore. The Respondent was officially notified by the Department on or about April 1, 1996, that the EIA-infected horses would have to be removed from the R.K. Ranch. The notice provided that the horses would have to be moved to another approved quarantined site or disposed via of euthanasia or slaughter. The Respondent testified at hearing. By the end of March 1996, the Respondent and Paula Elmore had severed their personal relationship and the Respondent urged Elmore to comply with the Department's demands to move the horses by having the horses euthanized or slaughtered. On or about March 30, 1996, Elmore called the Respondent and advised that she had arranged for the horses to be slaughtered. Towards that end, the Respondent met with Elmore to receive money from her prior to meeting the person responsible for slaughtering the horses and disposing of their bodies. The Respondent met with Elmore during his work day, received the money, and went to the R.K. Ranch where he met a Hispanic man to whom he delivered the money for the slaughter and disposal of the horses. Prior to the horses' disposal, the Respondent left and returned to his place of work. The Respondent faxed to the Department to the attention of Dr. Jeter two forms showing that Sugar and Daisy had been euthanized on March 30, 1996. The Respondent had nothing further to do with the horses. These certificates, which were introduced as the Department's exhibits 5 and 6, state as follows: This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314 (Name and Address) was euthanized on 3/30/96 (Date) Same as above (Name and Title) and the carcass disposed of by Hoof & Halter Foundation of Fla. (Means of disposal) Animal Identification: Sugar Paint 25 Gelding Name or Registry No. Breed Age Sex 58A6009 (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity. \Robin Karoly\ (Signature) 4/2/96 (Date) This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314 (Name and Address) was euthanized on 3/30/96 (Date) Same as above (Name and Title) and the carcass disposed of by Hoof & Halter Foundation of Fla. (Means of disposal) Animal Identification: Daisy Mixed 9 Mare Name or Registry No. Breed Age Sex Bay 58 1556 (Color) (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity. \Robin Karoly\ (Signature) 4/2/96 (Date) The business card of Halter and Hoof was included with each faxed certificate. On or about June of 1997, Debbie Beye Barwick observed a horse in a pasture near I-75 and Sheridan Street in Broward County which she identified as Daisy. The basis of the identification was the horse's color and a distinctive injury to the horse's leg. Jimmy Cangemie an inspector for the Department, inspected the horse which was suspected to be Daisy in the pasture at I-75 and Sheridan Street. Cangemie identified the horse by the unique freeze brand on the horse's neck. Cangemie, who was the Department's agent in Broward and Dade Counties, had not approved the movement of Daisy from the R.K. Ranch to the Sheridan Street and I-75 pasture, and had not approved the I-75 and Sheridan Street pasture as a quarantine site. As the Department's agent, Cangemie was charged with the duty of approving all quarantined sites in Broward and Dade Counties. Linda Baca testified that she saw a horse which she identified as Sugar in the I-75 and Sheridan Street pasture; however, neither Baca nor any of the other witnesses were able to positively identify the horse with its unique freeze brand.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That no action be taken against the Respondent. DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 5th day of June, 1998.
The Issue Whether or not Tags F224 and F281 were appropriately cited by Respondent, Agency for Health Care Administration, during a May 25 and 26, 2000, complaint survey; if so, if they warranted designation as Class I deficiencies with a severity of "J"; and, as a result, was a "conditional" licensure status appropriately issued to Petitioner, Quality Health Care Center.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: At all times material hereto, Quality was a licensed nursing home located in North Port, Florida. AHCA is the state agency charged with periodically evaluating nursing home facilities and making a determination as to the nursing home facilities' degree of compliance with applicable federal regulations, state statutes, and rules. As a result of an evaluation, the nursing home facility is given a licensure status described in Subsection 400.23(7), Florida Statutes (1999). Subsection 400.23(7)(a) and (b), Florida Statutes (1999), defines "standard" or "conditional" licensure status based on the presence of one or more "classified deficiencies." Subsection 400.23(8)(a)(b) and (c), Florida Statutes (1999), establishes the deficiency classifications (Classes I, II, and III). Ralph Ham, Quality Administrator, testified that "Quality had received superior [sic] ratings for ten years prior to the May 25-26, 2000, survey" and "had received a zero deficiency survey a month or a month and a half" prior to the May 25-26, 2000, survey. As a result of a complaint it received from Florida Adult Protective Services, a state agency, that a Quality resident (Resident 1) "had been neglected in that she had been bitten by fire ants," AHCA conducted the complaint survey on May 25-26, 2000, to review the care and treatment of Resident 1 concerning the incident. The standard form used by AHCA to document survey findings is known as a "2567" form, titled "Statement of Deficiencies and Plan of Correction" (Agency Exhibit 2). A nursing home facility deficiency is noted on the 2567 form and referred to as a "tag." The tags cited on the 2567 form for the May 25-26, 2000, survey were tags F224 and F281. Tag F224 incorporates 42 C.F.R. Section 483.13 regarding "Staff Treatment of Residents" and states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. Tag F281 incorporates 42 C.F.R. Section 483.20(k)(3)(i) regarding "Resident Assessment" and states, "The services provided or arranged by the facility must meet professional standards of quality." Resident 1 was an 87-year-old female who was "actively dying." Upon readmission to Quality on May 15, 2001, from a hospitalization, her admitting diagnosis included congestive heart failure, chronic obstructive pulmonary disease, chronic renal failure, Alzheimer's' Disease/dementia, lung congestion, edema of both upper and lower extremities, skin tears, bruising, and weeping through her skin. On the evening of May 17, 2000, a renal function test indicated "acute renal failure" which usually means that death is eminent. The following is reported in a summary sheet which is a part of Resident 1's medical record (Quality Exhibit 1): She was resting at intervals during the night of 5/17/00, receiving incontinent care and was repositioned x2 until approximately 5:00 a.m. on 5/18/00, when she began calling out to her daughter once again. The CNA repositioned her and provided incontinent care. The CNA stated she did not observe anything unusual at this time. She also stated that the only thing in . . . bed was a beige stuffed animal. At 6:30 a.m. it was noted that she was "resting quietly." At 8:00 a.m., she was found by a staff member to have "ants" on her upper body. Several staff members, including C. Curtis, LPN, M. Richmond, CNA, (PN) J. Norman, RN, D. Waszielewski, CNA, J. Derrikson, R.N., Jeri Maxfield, R.N. and D. Francois, CNA entered room and immediately removed her from the bed and took her to the shower where all ants were removed. All dressings were removed to assure there were no further ants under any dressings. Reddened areas were noted at this time on her right upper torso. While the incident of Resident 1's being bitten by fire ants while bedridden, is characterized as "catastrophic," the incident itself is not the subject of this hearing; the subject of the hearing is Quality's response to the incident. Tag F224 Amplifying the general requirements of 42 C.F.R. Section 483.13(c) stated in paragraph 7, supra, the 2567 form indicates that This Requirement is not met as evidenced by: * * * The facility failed to identify the catastrophic event of "over a hundred ant bites" to a terminally ill resident, continuously assess the severity of the trauma which resulted from the ant bites, and satisfactorily eradicate the ant infestation around the outside of the building. AHCA provided no evidence regarding the allegation that Quality failed to "satisfactorily eradicate the ant infestation around the outside of the building" other than statements contained in the 2567 form. Quality offers evidence that it had a monthly pest control service for both the interior and exterior of the facility (Quality Exhibit 2) and that the service had been on-going (Quality Exhibit 3). The Quality maintenance man testified that he checked the building and grounds for ants three times per week and that he baited ant mounds when found outside. He testified that he examined the area immediately outside Resident 1's room and did not find any ants although he found ants on the floor of Resident 1's room exiting under a baseboard after the incident. He removed the baseboard but did not find a hole. Quality had never had an ant problem prior to this incident. The Quality nursing staff responded immediately upon discovery of the ants. No less than seven nursing personnel, including three registered nurses came to Resident 1's assistance. She was immediately showered, redressed, and moved to another room. All dressings were removed to ensure that no ants were in the dressing. AHCA expert witness, Marilyn Steiner, who was qualified as a health facility evaluation surveyor, testified that the facility neglected Resident 1 in that "they did not identify the incident of the ant bites as separate from her terminal condition." This opinion is purportedly supported by her opinion that there was a significant change in Resident 1 that the facility saw as part of the terminal process and handled it accordingly, versus seeing it as a significant event of the ant bites. AHCA suggested in documents and testimony that Resident 1 suffered anaphylactic shock as a result of the ant bites. Anaphylactic shock may occur in some individuals bitten by ants. It is an almost immediate acute allergic reaction that is characterized by difficulty in breathing, occasioned by swelling in the laryngeal region, hypothermia (reduced body temperature), a drop in blood pressure, abdominal cramping, muscle constriction, and other dramatic physical reactions. Both Victor Rodriquez, M.D. and Alexia Parker, R.N., who were accepted as expert witnesses testified that Resident 1's record revealed no evidence of anaphylaxis. None of the treating nurses observed any evidence of anaphylaxis. Both experts addressed apparent changes in Resident 1's condition and interpreted those changes as being part of the Resident 1's general organic failure, not changes caused by reaction to ant bites. This testimony is accepted as being more persuasive by the undersigned; no credible evidence has been presented that Resident 1 suffered anaphylaxis or a severe allergic reaction to the ant bites. Tag F224, written by AHCA expert witness Steiner, further states that the facility failed to "continuously assess the severity of the trauma which resulted from the ant bites." Ms. Steiner testified that Jean Norman, R.N., Quality's Assistant Director of Nursing, said that Tammy Lindner, L.P.N., documented an assessment in the nurse's notes and that she was not responsible for the assessment. Steiner was further critical of the fact that Norman did not have any contact with Resident 1's treating physician from the time of the ant bites until Resident 1's death. Norman denies having told the surveyors that she had no personal contact with Resident 1 and denies having stated when asked if she did an assessment, "No, the LPN did one." Norman was one of the seven nursing personnel who responded to the ant bite call. She was directly involved in placing Resident 1 in the shower by getting the shower chair. She went to Station 2 where Resident 1 was to be transferred and prepared the staff for her arrival. She then assisted in moving Resident 1. She and two other nurses placed Resident 1 in a new bed. Her bandages were removed and Resident 1 was moved so Norman could look at her skin. Reddened areas were observed on her shoulder, on her upper right body, under her breast and along her abdomen. Resident 1 was not in distress, pain, nor did she itch. Norman says that she was observing/assessing Resident 1 this whole time. She directed LPN Tammy Lindner to call Resident 1's treating physician. She directed the other nurse to contact Resident 1's family. About one-half hour elapsed from the actual incident until Resident 1's treating physician was called. Norman stayed with Resident 1 to see if she was going to have any problems. She did not. Resident 1 was "calm," "she had no complaints." Norman stayed with Resident 1 until LPN Lindner returned and told her what medications Resident 1's treating physician had ordered. Norman returned to Resident 1's room three or four times that morning. Norman continued getting information on Resident 1's condition; she did not see any indication that would suggest anything other than the disease process that was already in place. To the extent that LPN Lindner had direct involvement with Norman's activities, Norman's testimony is confirmed by her. Norman testified that in her professional opinion the (ant bite) incident did not require an heightened level of monitoring or evaluation or assessment to ensure that Resident 1 was properly cared for and treated. Juanita Martin, LPN, who was involved in Resident 1's treatment testified that Norman was fully aware of what was going on with Resident 1 and that she was "orchestrating our behavior." She (Norman) was on the floor on multiple occasions speaking with various people. Tammy Lindner, LPN, testified that Norman and another nurse, Charlene Curtis, brought Resident 1 to Station 2. Lindner cut away the dressing on both of Resident 1's arms so Norman could observe. Lindner testified that Norman examined Resident 1 and did a "hands-on" assessment. Resident 1 said she had no pain and was not itching. Lindner observed no anaphylaxis or allergic reaction. Lindner administered Benadryl and applied Hydrocortisone cream per Resident 1's treating physician's order. Resident 1 continued to maintain that she was not in pain and did not itch. Quality has a protocol for the care of terminal patients (Quality Exhibit 4) which appears to have been followed in the care of Resident 1. Quality appropriately assessed the incident wherein Resident 1 was bitten by fire ants and provided appropriate treatment. Resident 1 was not mistreated, neglected, or abused by the care and services provided by Quality staff. Tag 281 Amplifying the general requirements of 42 C.F.R. Section 483.20(k)(3)(i) stated in paragraph 8, supra, the 2567 form indicates: This Requirement is not met as evidenced by: * * * The facility did not ensure that: Assessments were conducted by an RN for one of one residents. 2. Medications were given per physician's order for one of one residents. 3. Licensed nursing staff did not recognize signs and symptoms of anaphylaxis/catastrophic event, therefore, did not report the extent of the incident to the physician. Subsection 464.003(3)(a)(1), Florida Statutes, limits the performance of an "assessment" to a "professional nurse" (Registered Nurse). 42 C.F.R. Section 483.20 similarly requires that "a registered nurse must conduct and coordinate each assessment . . . and a registered nurse must sign and certify that the assessment is completed." In addition, 42 C.F.R. Section 483.20 lists specific occasions when a facility must make a comprehensive assessment. 42 C.F.R. Section 483.20(b)(2)(ii) states: Within 14 calendar days after the facility determines, or should have determined, that there has been a significant change in the resident's physical or mental condition. (For purposes of this section, a "significant change" means a major decline or improvement in the resident's status that will not normally resolve itself without further intervention by staff or by implementing standard disease-related clinical interventions, that has an impact on more than one area of the resident's health status, and requires interdisciplinary review or revision of the care plan, or both.) Expert witness Alexa Parker, RN, testified that there is no standard of care which requires that an assessment of a nursing home patient be done after a significant event unless it is required by 42 C.F.R. Section 483.20. Resident 1 did not suffer a "significant change" in her status, as defined in 42 C.F.R. Section 483.20(b)(2)(ii), as a result of the ant bite incident. She had redness on portions of her body and some pustules, but there was no evidence of anaphylaxis or significant allergic reaction. There was no requirement that a registered nurse conduct a formal assessment and report Resident 1's ant bite incident in her medical record. At the time of Resident 1's readmission to Quality on May 15, 2000, LPN Lindner called Resident 1's treating physician and, after describing her deteriorating condition, was given orders by the physician that medication was to be given Resident 1 by mouth. Following the ant bite incident and after RN Norman, LPN Lindner, and LPN Curtis had examined Resident 1 at Station 2, Norman directed Lindner to call Resident 1's treating physician, report the ant bite incident, and request orders. Lindner call Resident 1's treating physician's office, spoke to a nurse, described the ant bite incident, and received medication orders from the nurse for Benadryl and Hydrocortisone creme. The Benadryl was given to Resident 1 in applesauce or pudding. Lindner believed that the nurse in the treating physician's office who gave her the medication order was a nurse practitioner. It was not unreasonable for Lindner to assume that the nurse, having given medication orders, was authorized to do so. Approximately two hours later, Lindner again called Resident 1's treating physician, reported Resident 1's current condition and from the physician's reported comment, "Don't you have an exterminator," believed that he was aware of the ant bite incident. Lindner called Resident 1's treating physician later on May 18, 2000, and, at the urging of Resident 1's family, requested Roxanol, a medication given to medicate dying patients for anxiety, restlessness, agitation, and pain. Quality staff's administration of the medications, Benadryl, Hydrocortisone, and Roxanol, was appropriate given Resident 1's medical condition and her treating physician's orders. LPN Juanita Miller testified that she overheard Lindner's call to Resident 1's treating physician's office staff and reported that Lindner said that, "Resident 1 had had multiple ant bites, that we were concerned about her health, and that we had an emergency." No evidence was presented as to what was reported to Resident 1's treating physician by his office staff about the severity of the ant bites. RN Norman did not write anything in Resident 1's chart about her observations related to the ant bites because her standard practice is to read the LPN notes, and if she agrees with those observations, she has no reason to write on the chart. Expert witness Parker testified that it would not be a deviation from the standard of care for a supervising registered nurse to receive verbal information and give verbal instructions and not record it in the chart. Expert witness Parker testified that in reviewing Resident 1's chart that she found no deviation from the community standard of care by the nurses at Quality and that the care of Resident 1 was adequate and appropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Quality Health Care Center did not violate Tag F224 which incorporates 42 C.F.R. Section 483.13(c)(1)(i) and Tag F281 which incorporates 42 C.F.R. Section 483.20(k)(3)(i) and restoring Quality Health Care Center's licensure status to standard for the applicable period that it was conditional. DONE AND ENTERED this 9th 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 9th day of March, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael P. Sasso, Esquire Agency for Health Care Administration 6800 North Dale Mabry, Highway 220 Tampa, Florida 33614 John Gilroy, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Joseph R. Proffitt is a veterinarian licensed by the Petitioner. Except for a period of time between November of 1967 and March of 1970 when Respondent's license was revoked, suspended or on a probationary status by the Board of Veterinary Medicine, Respondent owned and operated The Key West Animal Clinic located at 509 Margaret Street in Key West, Florida between 1965 and December of 1978. Since about 1972, Respondent has also been the track veterinarian for the West Kennel Club. The Respondent's Animal Clinic was located in an older residential area of Key West. Neighbors of the clinic were bothered by noises, odors, flies and other insects emanating from the clinic. During portions of 1977 and 1978, Respondent worked, slept and generally resided at the clinic at a time when it was not equipped with toilet or bathing facilities. Respondent suffers from diabetes and during the latter part of 1977 he became quite ill with diabetic gangrene in one of his legs. He was ultimately hospitalized in December of 1977 or January of 1978 for several weeks for amputation of his leg. When Respondent was quite ill, Lincoln Taylor began helping him care for the animals at the clinic. He observed unclean and unkempt conditions throughout the clinic, as well as a bad odor. Often, there was not enough money available for Respondent to buy food for the animals, and food was provided by donation. Respondent was in terrible pain during this period of time, and could not properly care for the animals. The Petitioner and the Respondent produced the testimony of numerous clients of Respondent who had had their animals treated by Respondent for many years. Petitioner's witnesses noted the messy, unsanitary and smelly nature of the clinic. Respondent's witnesses did not find the Respondent's premises to be any more odorous than other animal clinics and felt Respondent to be a competent and compassionate veterinarian. Respondent's witnesses would take their animals to him today if he still operated a clinic. While Respondent was hospitalized during January of 1978, Arnold and Sheila Farese began working with Lincoln Taylor to clean and maintain the animal clinic. When they first entered the clinic, they observed animals running free in the waiting room, caged animals in the treatment room, flies, maggots, animals in dirty cages without food or water, animals with little hair and skin problems, filthy newspapers strewn about the floors, and a horrendous smell. The Fareses and Mr. Taylor worked at the clinic on a daily basis to clean it up and feed and water the animals. At that time, there were approximately fifty dogs and forty cats in the clinic and on the premises. Three five-week old puppies were found to have considerable hair loss due to sarcoptic mange. Sarcoptic mange is a condition which is easily diagnosed. If a veterinarian were aware of its presence in his clinic or kennel, he would be negligent if he failed to treat the condition. Arnold Farese entered into a business arrangement with Respondent and worked at the animal clinic with him from January through June of 1978. While there, he observed that the autoclave which Respondent used to sterilize surgical equipment had a broken seal. He saw Respondent perform surgery on animals with unsterilized tools and without first washing his hands. He observed Respondent become irritable with the animals on occasion, at which times he did not treat or handle them in a gentle, professional manner. In September of 1978, an investigator for the Department of Professional Regulation inspected Respondent's animal clinic. He observed newspapers and trash throughout the clinic and premises, uncontained garbage, animal waste on the floors of the clinic, a leaky roof and wet hallways and shelves, a rusty and dirty surgery table and surgical equipment, filthy cages with animals in them, dead animals which were not in containers placed in a refrigerator which also contained bread and peanut butter, and an unbearable smell. In October of 1978, a sanitation inspector for the City of Key West inspected Respondent's clinic as a result of complaints from neighbors of the clinic. He found fecal matter on the floors of the clinic, a bad odor, a white enamel table with rust on it and an overgrown yard. Pursuant to a search warrant issued on December 13, 1978, Lieutenant Richard Conrady with the Monroe County Sheriff's Department went to the Respondent's animal clinic for the purpose of seizing the animals therein and removing them to the Monroe County Animal Shelter. At the time Respondent appeared to be coherent and responsive to questions asked to him. Conrady smelled a strong odor of "dog droppings" on the floors and observed a filthy and unkempt office. Seventeen cats and twenty dogs were seized. The cats belonged to Respondent's sister. The animals were active and appeared to be in good health. The supervisor and the assistant supervisor of the Monroe County Animal Shelter were also present during the December 13th seizure of the animals. They did not smell an atrocious odor, and observed the animals to be active and healthy, with the exception of skin problems on some of the dogs. The animals did not appear to be hungry or thirsty, and their cages were clean. The dogs were taken to another veterinarian, Dr. William W. Deans, for examination. With the exception of one older dog, Dr. Deans found all the dogs to be in good health with no signs of mistreatment or abuse. He did find that many of the dogs had skin problems. He felt that these skin problems were a result of a flea bite allergy and could be brought on by inbreeding. Skin problems and scabies are more prevalent in Key West than in other areas of Florida, but it is below the minimum standard of care to have uncontrolled fleas or scabies within a veterinary clinic or kennel. On December 22, 1978, an Order was entered by the County Court of Monroe County finding, inter alia, that Respondent was unable to provide adequately for the animals taken from him and was unfit to have custody of said animals. The cats and three of the dogs were released to Respondent's sister, Respondent was permitted to retain possession of one of his dogs and the remaining animals were released to either their owners or sold at a public auction. Respondent was enjoined from retaining or possessing at one time more than the one dog granted to him. It was further ordered that no other animals should be quartered at the Key West Animal Clinic until further order of the Court. The Respondent has complied with the Court's order discussed above. He has continued to be the track veterinarian for the Key West Kennel Club. The general manager of the Club described Respondent as being extremely attentive to his duties at the race track, showing a great interest in his job there and exhibiting more compassion for the racing greyhound than most other veterinarians he has observed at race tracks. Since the filing of the complaint in this cause, Respondent has had his other leg amputated due to diabetic gangrene. Two physicians were of the opinion that Respondent's diabetes is presently under control with daily medication and that Respondent is physically capable of performing duties as a veterinarian.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: Respondent be found guilty of violating Sections 474.31(1),(8),(11),(12) and (23), Florida Statutes (1977); Respondent's, license to practice veterinary medicine be revoked; and the enforcement of the revocation of Respondent's license be suspended for a period of two years, during which time Respondent is to be placed on probation with the following conditions: that the scope of Respondent's practice be limited so as to enable him to continue in his present employment capacity or a similar capacity wherein he does not have the responsibility for lodging, maintaining and caring for large numbers of animals; and (b) that quarterly reports signed by a physician be submitted by Respondent to the Petitioner attesting to the fact that Respondent's physical condition remains stable and enables him to practice veterinary medicine in a competent and professional manner. Respectfully submitted and entered this 22nd day of July, 1980, in Tallahassee, Florida. DIANE D. TREMOR 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 22nd day of July, 1980. COPIES FURNISHED: Bert Harris, II, Esquire Boyd, Harris and Smith, P.A. 210 Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302 Joseph Galletti, Esquire 415 Eaton Street Key West, Florida 33040 Roger McClelland, Esquire 420 Fleming Street Key West, Florida 33040 Nancy K. Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
