The Issue The issues are whether Respondent violated Sections 458.331(1)(m) and/or 458.331(1)(t), Florida Statutes (2005), and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is a licensed Florida physician. He practices medicine as a board-certified surgeon in Niceville, Florida. His medical license number is ME 82923. At all times relevant here, Mark Schroeder, M.D. shared office space with Respondent in Niceville, Florida. Dr. Schroeder is a primary care physician. He has been board- certified in internal medicine since 1989. At all times relevant here, Patrick J. Anastasio, D.O., was a practicing physician in Fort Walton Beach, Florida. Dr. Anastasio is dual board-certified in internal medicine and infectious disease. In November 2005, Patient A.R. was a 35-year-old female. Her primary care physician was Dr. Schroeder. As part of her medical history, Patient A.R. reported to Dr. Schroeder that she was allergic to Amoxil/Amoxcillian. On November 2, 2005, Patient A.R. had an appointment with Dr. Schroeder. Patient A.R. complained that she suffered from constant nausea and stomach discomfort associated with her meals. On November 4, 2005, Patient A.R. underwent a gallbladder ultrasound to rule out her gallbladder as the cause of her nausea. The ultrasound indicated that Patient A.R.’s gallbladder was normal. On or about November 29, 2005, Patient A.R. had a blood test. The test results showed a positive result for Helicobacter pylori (H. pylori), which is a bacterium that infects the stomach. H. pylori causes gastritis, ulcers, and possibly even gastric cancer in some people. Other people infected with H. pylori may never have these symptoms or problems. On December 6, 2005, Dr. Schroeder prescribed a 14-day regimen of antibiotics to treat Patient A.R.’s gastritis and H. pylori infection. Specifically, Dr. Schroeder prescribed Tetracycline, Flagyl, and Nexium (a proton pump inhibitor). Patient A.R. took the medicine as prescribed for two days. She then called Dr. Schroeder’s office, requesting an alternative treatment plan due to severe nausea and sleeplessness. Before providing Patient A.R. with an alternative treatment plan, Dr. Schroeder consulted with Dr. Anastasio. Dr. Schroeder explained that Patient A.R. was allergic to Amoxil and that she had not been able to tolerate the regimen of Tetracycline and Flagyl. After this consultation, Dr. Schroeder prescribed a 7-day regimen of the following: (a) the antibiotic Biaxin to substitute for the Tetracylcine; (b) Tigan to help with Patient A.R.’s nausea; and (c) Xanax to relieve Patient A.R.’s anxiety. On December 13, 2005, Patient A.R. had a follow-up office visit with Dr. Schroeder. Dr. Schroeder understood that Patient A.R. was doing better overall on the Biaxin-based treatment regimen. On December 21, 2005, Patient A.R. reported to Dr. Schroeder that she had almost finished her antibiotics but was still not feeling well. Patient A.R. also reported that she might have oral thrush and needed a prescription to treat it. On December 27, 2005, Dr. Schroeder prescribed Nexium for Patient A.R. Despite missing some days of work, Patient A.R. completed the treatment therapy consisting of Biaxin, Flagyl, and Nexium. On January 3, 2006, Patient A.R. had another follow-up office visit with Dr. Schroeder. Dr. Schroeder’s records indicate that Patient A.R. was doing well and that her gastritis had resolved. Dr. Schroeder prescribed continued use of Nexium. On or about January 23, 2006, Patient A.R. called Dr. Schroeder’s office to report problems with persistent nausea and to request a referral for a “scope of her stomach.” She made the request based on prior discussions with Dr. Schroeder as to the next option if the Biaxin-based treatment regimen was not successful. Dr. Schroeder referred Patient A.R. to Respondent for a possible esophagogastroduodenoscopy (EGD or upper endoscopy). On February 13, 2006, Patient A.R. presented to Respondent with complaints of epigastric and abdominal pain and nausea. Respondent’s record of the visit indicates that Patient A.R. had a history of H. pylori infection in a post-treatment status. The record also indicates that Patient A.R. was allergic to Amoxil. On February 22, 2006, Respondent performed an EGD on Patient A.R. After the procedure, Respondent diagnosed Patient A.R. with moderate to severe gastritis. A pathology report dated February 23, 2006, confirmed that Patient A.R. was suffering from a H. pylori stomach infection. On February 28, 2006, Patient A.R. had an office visit with Respondent to discuss the pathology results. During this visit, Respondent inquired about Patient A.R.’s reported and documented allergy to Amoxil. Patient A.R. told Respondent that when she was 15 years old and suffering from mononucleosis, her family physician prescribed Amoxil for her. Patient A.R. took Amoxil for about a week with no indication of a reaction or sensitivity. When she began the second bottle of the antibiotic, Patient A.R. developed a head- to-toe rash and swelling. The delayed onset rash did not present an anaphylactic or life-threatening reaction. The symptoms resolved after cessation of the drug with no need for further medical intervention. There is a known interaction between ingestion of amoxicillin and mononucleosis. The reaction manifests itself in a delayed development of a rash occurring on the patient’s trunk and extremities. Children who take amoxicillin while infected with mononucleosis experience this symptomatic interaction in a great percentage, almost 100 percent, of cases. Respondent discussed Patient A.R.’s previous history of allergy to Amoxil with Dr. Schroeder. Respondent’s record states as follows: . . . She has an allergy to penicillin and failed other non-penicillin based drug regimens for H. pylori treatment, specifically, [T]etracycline/Flagyl and Biaxin/Flagyl both prescribed by Dr. Mark Schroeder. . . . * * * I immediately discussed this case with Dr. Schroeder. Ms. [R.] and her husband should both be treated with antibiotics for Heliocobacter pylori infection concurrently. After careful review of her previous history with Dr. Schroeder, there is a possibility that she is not allergic to amoxicillin, as she developed a rash while she had a mononucleosis infection, which is a common side effect. Dr. Schroeder recommended a trial of amoxicillin/Biaxin as she has exhausted all other H. pylori treatments that are not penicillin based. She will take her amoxicillin judiciously, and if she does develop any side effects will stop it immediately and report this to either myself or Dr. Schroeder. Otherwise, she will follow up with me in six months for consideration for repeat upper endoscopy. Based on the determination that Patient A.R. possibly was not allergic to Amoxil, Respondent prescribed her a 14-day treatment regimen of Amoxicillin and Clarithromycin (Biaxin), along with Nexium. As Patient A.R. left Respondent’s office, Respondent told Patient A.R. to take the treatment, assuring her that she absolutely was not truly allergic to Amoxcil. Patient A.R. did not begin taking the Amoxil treatment regimen until March 25, 2006. She delayed starting the treatment because she knew the treatment would be “rough.” She was concerned that she would miss work and be unable to enjoy a visit from out-of-town family. Patient A.R. began the treatment on a Saturday to give her body “a couple of days to adjust to the medication.” Within three hours of taking the Amoxil, Patient A.F. experienced a tingling and stinging sensation in her left middle finger. Because she had been working in the yard, Patient A.R. believed that a bee might have stung her. She did not suspect an allergic reaction because she had not had a localized reaction to Amoxil when she was fifteen years old. On Sunday, March 26, 2006, Patient A.R. continued to take the Amoxil. Her finger continued to tingle, so she soaked it in a saltwater solution. On Monday, March 27, 2006, Patient A.R.’s finger looked terrible; it was red and purple in color and swollen to twice its normal size. As previously instructed by Respondent, Patient A.R. called his office and spoke with a nurse. The nurse suggested that Patient A.R. call an immediate care facility because Respondent was in the operating room that morning and had a “room full of patients” to see in the afternoon. On March 27, 2006, Patient A.R. ultimately saw a physician or a physician assistant at Gulf Coast Immediate Care. She was diagnosed with cellulites in the finger and prescribed a cream to put on it twice a day. Patient A.R. was advised to continue taking the Amoxil. On March 28, 2006, Patient A.R.’s finger continued to get worse, turning “purplish black” in color. Patient A.R. continued to take the Amoxil-based treatment regimen because she did not have a head-to-toe rash or swelling like she did when she took the drug as a teenager. On Wednesday, March 29, 2006, Patient A.R. woke up with a head-to-toe rash, swelling, and tightness in her chest. Realizing that she was suffering from an allergic reaction to the Amoxil, Patient A.R. went to the emergency room of the Fort Walton Beach Medical Center around 7:00 a.m. The emergency room physician noted his clinical impression of Patient A.R. to be an acute allergic reaction and cellulites in her third left finger. He immediately treated her intravenously with Benadryl, Pepcid, and Solumedrol. After the trip to the emergency room, Patient A.R. stopped taking the Amoxil. Patient A.R.’s rash and the problem with her finger subsequently resolved. On or about March 31, 2006, Patient A.R. saw Leo Chen, M.D., an orthopaedic surgeon. Dr. Chen examined Patient A.R.’s finger on a referral from Respondent. On or about April 3, 2006, Patient A.R. presented to Respondent for the last time. Regarding that visit, Respondent’s notes state as follows: Again I discussed this case with Dr. Schroeder while the patient was in my office, and a phone consultation was obtained with Dr. Patrick Anastasio of Infectious Disease. The patient did have an allergic reaction to amoxicillin, and this has now been confirmed. She developed an allergic reaction to amoxicillin approximately twenty years ago while she had mononucleosis, and this was thought to be a side effect due to the combination of mononucleosis and amoxicillin, however this apparently is not the case. She did seek appropriate treatment at the emergency room and was placed on appropriate drug therapy, and seems to be resolving quite well at this time. The patient will be sent for an infectious disease consultation with Dr. Patrick Anastasio, who will take on treating the patient’s Helicobacter pylori infection, which will need to be some form of unconventional treatment or desensitization to penicillin. . . . On or about May 4, 2006, Patient A.R. presented to Dr. Anastasio at Emerald Coast Infectious Diseases. Dr. Anastasio prescribed “quadruple therapy” including the antibiotics Biaxin and Flagyl for 14 days, along with Nexium and Bismuth Subsalicylate, commonly known as Pepto Bismol. Patient A.R. completed the treatment prescribed by Dr. Anastasio. An August 2006 stool sample confirmed that the treatment had eradicated the H. pylori stomach infection. Subjecting Patient A.R. to Amoxil in 2006 was a challenge to her reported allergy. Her allergic reaction was more serious than when she was a teenager because it involved a localized reaction in her finger. This time the challenge to the allergy did not lead to anaphylaxis and death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent violated the statutes as charged, issuing a letter of concern, imposing a $10,000 fine, and requiring five hours of continuing medical education. DONE AND ENTERED this 5th day of July, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of July, 2007. COPIES FURNISHED: Matthew Casey, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Thomas F. Gonzalez, Esquire Beggs and Lane Post Office 12950 Pensacola, Florida 32591-2950 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to chapters 429 and 408, Part II, Florida Statutes. At all times material hereto, Kipling Manor was licensed by AHCA as an assisted living facility. Kipling Manor is located in Pensacola, Florida, and operates a 65-bed facility, license number 7285, and holds a specialty limited health license. Norma Endress is a registered nurse employed by AHCA. She conducts surveys of nursing homes and assisted living facilities for compliance. Ms. Endress is supervised by Patricia McIntire, a nurse consultant supervisor for AHCA. Ms. McIntyre has been with AHCA for 13 years. Belie Williams is the administrator of Kipling Manor. He has been involved with health care services for approximately 35 years, and has been an administrator of ALFs for approximately 15 years. He has been involved with the Florida Assisted Living Association (FALA) and served on its board. Mr. Williams helped implement training sessions for ALFs in conjunction with FALA for the past eight years. Kipling Manor has two nurses who visit the facility to provide care to the residents. Elizabeth McCormick is an advanced nurse practitioner (ARNP) in family, psychiatric and mental health. She has been a nurse since 1983 and has extensive experience dealing with inpatient and outpatient psychiatric residents in long-term facilities. Nurse McCormick works with a VA facility providing inpatient and outpatient care on a high intensity psychiatric unit. She was also an assistant professor at the University of West Florida in the Mental Health Nursing Program. Nurse McCormick provides medical and mental healthcare for residents at several ALFs in Pensacola, including Kipling Manor. She sees patients at Kipling Manor several times a month. She manages the healthcare of residents, diagnoses illnesses, and writes prescriptions as needed. She describes Kipling Manor as not being a typical setting because her patients there are seriously mentally ill, which presents huge challenges. Angela Lavigne is a registered nurse certified by Medicare to provide psychiatric care to patients. She is employed by a company called Senior Care. Among other things, she works with assisted living facilities providing therapeutic counseling, assisting doctors with adjusting medication, and providing in-service training to staff of these facilities in regard to psychiatric care. Nurse Lavigne has been seeing patients at Kipling Manor for almost three years. She visits Kipling Manor approximately four times a week. At the time of the survey, she visited the facility once or twice a week. She provides patient care as well as in-service training to the staff regarding psychiatric issues. She also runs group sessions with the residents to make them feel more independent and feel more like they are in their homes. On July 12 through 14, 2011, Nurse Endress conducted an unannounced complaint survey of Kipling Manor that gave rise to the Amended Administrative Complaint and to this proceeding. Count I--Resident 8 Count I alleges that Kipling Manor failed to provide incontinent care for Resident 8 and failed to provide nail and facial care for Resident 6. Ms. Endress observed Resident 8 walking with a "med tech" to the "med room" to receive her medications. Ms. Endress observed wetness on Resident 8's clothes, and noticed the smell of urine. The med tech gave Resident 8 her medications, then assisted her to an open area where Resident 8 sat down. Ms. Endress observed Resident 8 for about two hours. Ms. Endress approached a personal care assistant (PCA), who was a new employee, and inquired of the PCA as to whether the resident was incontinent. As a result of this inquiry, Ms. Endress believed that this resident was incontinent. After approximately two hours had passed, Ms. Endress called this to the attention of the PCA, who then changed Resident 8 immediately. Ms. Endress determined that Respondent was "not providing care for this lady, incontinent care. They were not monitoring her." This determination was based in large part on her belief that Resident 8 was incontinent. However, Resident 8's health assessment indicates that Resident 8 needed supervision while toileting, but did not carry a diagnosis of incontinence. Ms. Endress acknowledged at hearing that supervision with toileting is not the same thing as being diagnosed with incontinence. Resident 8's health assessment also reflects diagnoses of personality disorder, dementia, and Alzheimer's among other conditions. Ms. McCormick provided health care services to Resident 8. She quite frequently is involved with residents who have toileting issues. Had Resident 8 developed skin problems because of toileting issues, she would have been aware of it. Ms. McCormick noted that the records indicated that Resident 8 received a skin cream three times a day to prevent such skin problems. Both Ms. Endress and Ms. McCormick are of the opinion that, while it is better to change a resident as soon as possible, a two-hour check is appropriate for someone with toileting issues. According to Ms. McCormick, if she were looking to determine whether there existed a direct physical threat to Resident 8, there would be monitoring for skin breakdown, redness or irritation, or a possible urinary tract infection (UTI). Neither Ms. McCormick nor Ms. Lavigne were notified or saw any signs of a skin infection, other skin problems, or a UTI regarding Resident 8. There was no evidence presented that Resident had any skin problems or UTI as a result of this incident or her toileting issues. Erica Crenshaw is a "med tech" and a supervisor employed by Kipling Manor. She provided care for Resident 8 and was on duty the days of the survey in question. Ms. Crenshaw verified that Resident 8 was on a two-hour check at the time of the survey. This involved checking to see if Resident 8 was wet or dry. If she were found to be wet, staff would take off the resident's brief, change and wipe the resident, put on a new brief noting the date and time, as well as recording the staff person's initials. When changing Resident 8, staff would apply a barrier cream, and check to see if any bed sores developed. Ms. Endress determined that this was a Class II violation because of the potential for skin breakdown and infection as well as potential for emotional harm, in that she perceived this as a dignity issue for Resident 8. Ms. Endress based this opinion in large part on her mistaken belief that Resident 8 was incontinent. Her supervisor, Ms. McIntyre, reviewed the classification recommended by Ms. Endress and concurred that Class II was appropriate because "[r]esidents, in particular elderly residents, left sitting in urine, there is a great potential for them to experience skin breakdowns, which would certainly have a severe negative impact on their physical health." Mr. Williams saw Resident 8 while Ms. Endress was conducting her inspection. He saw that she was wet from urine on the back of her clothes. He did not detect any strong odor of urine although he was close to her. Count I--Resident 6 Count I also includes allegations regarding Resident Ms. Endress observed Resident 6 with long facial hair (Resident 6 is female) and long, dirty fingernails. Ms. Endress interviewed Resident 6 regarding these observations. Based upon this interview, Ms. Endress believed that staff did not cut her facial hair or trim her nails, despite Resident 6 wanting them to do so. Ms. Endress estimated Resident 6's nails to be approximately one-quarter inch long but could not recall the length of her facial hair. Resident 6's health assessment reflects a diagnosis of dementia with poor short term memory, and that she needs assistance bathing, dressing, and grooming. Erica Crenshaw described Resident 6 as "a little difficult to work with." Staff works on nails, hands and feet, two days a week. If at first Resident 6 was resistant to having her nails trimmed, they would "give her space" then approach her again later. She described Resident 6's nails as "pretty decent." Resident 6 received health care from both Ms. Lavigne and Ms. McCormick. Both nurses are of the opinion that staff worked with Resident 6 to keep her nails in good shape. As a resident of an ALF, Ms. McCormick noted that Resident 6 had the right to refuse nail care and decide whether her nails needed to be trimmed. Ms. Lavigne informed staff that they needed to work with Resident 6 at her own pace, and to be careful not to make her combative. Ms. Lavigne treated Resident 6 for a wrist problem in mid-summer of 2011, when Resident 6 was in a splint for approximately six weeks, and received physical therapy. She described Resident 6's nails as "nice, round, nothing broken, nothing chipped. Every once in a while she's actually let staff put nail polish on them but as far as cutting them down, it's like an act of Congress to get her to sit down enough to trim them." There is no evidence as to what could have been under Resident 6's nails when Ms. Endress saw her. However, the evidence establishes that Resident 6's nails were tended to by staff on a regular basis, and that her treating nurse was not aware of any problem with them. Regarding facial hair, Ms. Lavigne never noticed any facial hair on Resident 6 other than having "a couple little whiskers here and there." Ms. Lavigne was Resident 6's treating nurse in the general time-period around the survey in question, and was never informed about any problems with Resident 6 regarding nails or facial hair, nor noticed any. Ms. Endress classified the findings she made regarding Resident 6's nails and hair as a Class II violation because she perceived it as a "dignity issue because women do not like facial hair on them." Ms. McIntyre confirmed the class determined by Ms. Endress, although the record is not clear why. Count II--cleanliness and maintenance Count II of the Amended Administrative Complaint alleges that Kipling Manor failed to honor the rights of residents by not providing a safe and decent living environment to prevent the spread of disease for all residents. The Amended Administrative Complaint alleges in pertinent part as follows: In an interview resident #3 on 7/12/11 at 9:00 am stated this place was not clean. He stated the cook will have gloves on his hands when he leaves the kitchen. The cook continues rolling the food down the hallway to the dining room while simultaneously rolling the open garbage container which is soiled. Without changing his gloves he will serve the food to the residents.1/ An observation of lunch on 7/12/11 at 12:00 pm revealed the cook serving turkey with gloved hands not using a utensil. Without changing his gloves he handled silver ware, moved a gallon of milk and was touching the dining room table. He was using the same gloved hand to serve corn bread. While serving food he never changed his gloves between clean and dirty. Other staff wearing gloves were serving lunch to residents and cleaning tables and pouring beverages without changing gloves. They were serving beverages touching the rims of glasses without changing clothes [sic]. During the survey, the following was seen: Bathroom floor for room 9 on wing 1 was dirty with build-up of dirt in the corners. Lounge area at the end of wing 1 had a broken recliner that was being used by a resident. The floor and furniture were soiled. Room and bathroom #3 on wing 1 had dirty floors with build-up of dirt along baseboards and the toilet lid was too small for the tank. Vents were clogged with dust. The door was too short for the opening; wood was missing on door frame and the threshold had broken tile. Dining room bathroom at the end of wing 2 had dirty floors with build-up of dirt along baseboards; around bottom of the toilet was black and the seal was cracked. Dining room floors were dirty and walls had dried food on them. Room 27 had filthy floors with build up along baseboards; dried spills were noted and the drywall had a hole in it. Wing 2 had drywall that was pulling away from ceiling and the ceiling had brown water spots: soiled dirty walls; dirty baseboards with build up of dust; spills on walls and vents dusty. Wing 2 had no baseboard near the shower; the cabinet had mildew on the outside surface; the wood was warped and peeling. The sink was soiled with dried brown substance. The door to the cabinet would not close. The baseboard wood near sink was split and the drywall had an indentation of the door knob. Room 21 floors were filthy and smelled of urine. Soiled clothes laid on the floor with soiled underwear which were observed while medication technician was assisting resident. No action was taken by the medication technician. Laundry room floors were filthy. There was no division between clean clothes and dirty clothes. Clothes were lying on the floor.2/ Based upon this complaint, Ms. Endress observed the dining room during a meal and toured the building. At hearing, Ms. Endress acknowledged that she did not see the cook touch the garbage pail or garbage and then touch food. She maintained, however, that she observed the cook while wearing gloves, touch food then touch "dirty surfaces," then go back and touch food on plates and touch the rims on glasses. Ms. Endress did not specify at hearing what she meant by "dirty surfaces," but in her report which was the basis for the Amended Administrative Complaint, she noted that the cook would touch food and then touch surfaces such as moving a gallon of milk, touching the dining room table, and handling silver ware. She also testified that she saw other staff wearing gloves who were serving residents, cleaning tables, and serving beverages without changing their gloves. Deborah Jackson is a personal care assistant (PCA), food server, and laundry worker at Kipling Manor. Ms. Jackson and one other PCA serve meals for about 60 residents. She received training in food service. She was working at Kipling Manor the days Ms. Endress was there for the survey. Ms. Jackson always wears gloves when serving the residents. If she touches anything besides food she changes gloves. For example, if she moves chairs, she changes gloves before resuming food service. She has never seen the other PCA touch other items then serve food. She was trained never to touch the rims of the glasses but to pick up glasses and cups from the side. She goes through "probably a whole box" of gloves in a day. According to Ms. Jackson, the cook stands behind the area and puts the food on the plates, preparing two plates at a time. She watches him prepare the plates of food. She and the other PCA then serve the food to the residents. The garbage can is kept in the back, not where food is being served. She has never seen the cook touch the garbage can then prepare plates of food. When he has finished, he takes all "his stuff" out on a cart, while the PCAs clean up. If a resident spilled food, the PCAs, not the cook, would clean it up. L.N. was the cook at the time of the survey inspection. L.N. was hired in April 2011 and received training in infectious control and food service sanitation. L.N. no longer works for Kipling Manor.3/ Billie Williams, as administrator of Kipling Manor, confirmed Ms. Jackson's description of the cook's role in serving dinner. That is, that the cook prepared plates of food and the PCAs then served the residents. At hearing, Ms. Endress essentially reiterated her findings regarding the other allegations in count II dealing with the cleanliness and condition of the facility. No further proof was offered regarding these or any other allegations in the Amended Administrative Complaint. Mr. Williams' testimony contradicted much of what Ms. Endress described regarding the cleanliness and condition of the facility. Specifically, Mr. Williams noted that on the day of the survey inspection, maintenance men were repairing a ceiling leak. The ceiling leak was the cause of the "drywall pulling away from the ceiling" and the "brown water spots" on the ceiling cited in the Amended Administrative Complaint. These conditions were the result of the water leak and were in the process of being repaired at the time of the survey. The workers arrived early in the morning and cut drywall from the ceiling where the water dripped down on it. They necessarily used a ladder to do the ceiling repair work. A maintenance man stood at the bottom of the ladder and, if a resident approached, would escort the resident around the ladder. Regarding the issues of cleanliness, Mr. Williams has two housekeepers, a person who does the laundry, and two maintenance men. Mr. Williams acknowledged that there may be a small wax buildup along baseboards or on the inside corner of a door. However, the two maintenance men wax, strip, and buff the floors throughout the building. The floors are swept and buffed every day. The baseboards (wall to floor) are dust mopped twice a day. Regarding the allegation that there was black around the bottom of the toilet and the seal was cracked in the bathroom off the dining room area, Mr. Williams went to that room with the maintenance men to personally inspect it. He observed some discoloration on the floor where the toilet may have overflowed at some time and got underneath the tile. The maintenance men cleaned this immediately and replaced the tile. Regarding the allegation that there was mildew on a bathroom cabinet, Mr. Williams inspected the black mark and found it to be a tire mark from a wheelchair. He found no mold or mildew. The black mark was removed. There is a separate laundry room where washers and dryers are located. Any clothes on the floor are for sorting or separating by color or other reason prior to washing. Once clothes are washed, they are taken back to the residents' rooms immediately. Clean sheets, towels, and wash cloths are placed on wooden shelves that were built for that purpose. There is no evidence that establishes that clean and dirty clothes were mixed on the floor. Mr. Williams also inspected the recliner. The recliner has snap-on armrests and one had been snapped off. The maintenance men snapped the armrest back on the chair, and it was easily repaired. Regarding the allegation that the drywall in a bathroom had an indentation of the door knob, Mr. Williams inspected that and found that the doorstop on the bottom had broken off. There was an indentation in the wall the size of a doorknob where the door had been opened hard. This was repaired by the maintenance men. Regarding the allegation of vents being clogged with dust in a room and bathroom, Mr. Williams found "a little" dust on a vent which was cleaned immediately by staff. He then instructed staff to check the vents daily for dust build-up. Mr. Williams could not find a door that was too short for the opening, and noted that this would be a fire code violation. Kipling Manor is current on fire and health safety inspections. In general response to the allegations regarding cleanliness and maintenance and to a question asking whether he keeps a well-maintained building, Mr. Williams stated: We try our best. I mean, I have--you know, when you have incontinent residents who are demented, who are bipolar or suffering from depression, they will do things. And, yes, they do. And like, I think in one of the reports she wrote up, there was wet clothes on the floor. Well, if a resident, some of them are semi-independent, too. I mean, they take care of their own needs. If they had an incontinent issue that morning, and they took their clothes off and left it there on the floor, you know, they expect the staff to pick it up and take it to a laundry room when they come through. You know, we do, I think, we do a darn good job given the -- a lot of my residents have been homeless, have never had any structured living. Nobody else in town takes them, but I have. Ms. Endress classified the alleged violations in Count II as Class II "because of the potential for harm to residents which could occur from an unsafe environment and potential spread of infection." Ms. McIntyre agreed with Ms. Endress that "the totality of all the findings are what drove the deficiency to be considered a Class II." Count III--Resident 4 medications Count III alleges that Kipling Manor failed to administer medications according to the medication observation record (MOR) for 1 out of 9 sampled residents (Resident 4). During lunch, Ms. Endress observed Resident 4 become agitated, rub his face, and complain loudly in the dining room. Following an observation of this resident and a conversation with him, Ms. Endress reviewed Resident 4's medication observation record (MOR) and health assessment. Ms. Endress determined that Resident 4 had not been given one of his medications, Interferon, when scheduled. The MOR shows a time for administration as 8 a.m. According to Ms. Endress, on the date this took place, July 12, 2011, the MOR was blank in the box that should be initialed when the medication was administered. The MOR in evidence, however, reflects initials in that box (i.e., it is not blank). When a drug is self-administered, the staff member initials the box for that day. Erica Crenshaw recognized and identified the initials in the box for that day as those of former unit manager Tekara Levine, who trained Ms. Crenshaw. According to Mr. Williams, Ms. Levine, was certified in the self- administration of medications and was a trustworthy employee. Ms. Endress observed Resident 4 wheel himself from the dining room to the medication room and self-administer his medication. This occurred around noon that day. Ms. Endress determined this to be a Class II violation as she believed it directly threatened the resident emotionally. She based this in part on the resident's demeanor before the medication and afterwards, and the comments the resident made to her. Resident 4 is one of Nurse Lavigne's patients. Resident 4 has a diagnosis of MS, major depression, post traumatic stress disorder, a paranoid psychosis, and anxiety and affective disorder. He receives Interferon for his MS. It is injectable and he self-administers it every other day. According to Nurse Lavigne, there is no doctor's order stating that the Interferon must be given at 8 a.m. or any other particular time. The injection can be administered at any time during the day. Resident 4 sometimes gets confused about his medications. He gets extremely upset if he thinks he has not gotten his medications. He will sometimes tell her (Nurse Lavigne) that he did not receive a particular medication when he, in fact, did receive it. Once he is shown the MOR indicating that he has received his medication, he visibly calms down. He does not like to leave his room because he thinks somebody is changing stations on his TV. Regarding his once-a- day medications, staff will wait until he is ready to come out of his room because he can get agitated. He sometimes gets upset if there are a lot of people around him, such as in the dining room. Nurse Lavigne does a full assessment when she sees Resident 4. She was not aware of any problems with Resident 4 during that time period regarding his medications. While the record is unclear as to why Resident 4's MOR shows an administration time of 8 a.m., the evidence established, through Nurse Levine, his treating nurse, that there is no doctor's order requiring that the drug be administered at that particular time. The evidence also established that Resident 4 self-administered his medication at noon on July 14, and that this was initialed by a staff member on his MOR. Count IV--Resident 1 medications As a result of a complaint received, Ms. Endress interviewed residents about their medications and spoke to a new staff member. Based upon these interviews, Ms. Endress determined that one of Resident 1's medications (Flexeril) had not been available for one dose on July 13, 2011, and another of this resident's medications (Visteril) had not been available from June 23 until July 12, 2011). Ms. Endress classified this alleged violation as a Class II because she determined that that it directly affected the resident psychologically and physically. Resident 1 had a diagnosis of COPD and has an anxiety disorder. She is alert and oriented. Resident 1 was prescribed Flexeril to be administered every evening, and Vistaril and Ativan for anxiety. She is to receive Ativan twice a day and PRN (as needed) and Visteril before bed and PRN. Each day a medication is administered, the residents' MORs are initialed by staff in a box indicating each day of the month. However, if the resident runs out of a drug, the staff member will put a circle in the box representing that day and makes a note on the back of the MOR. No circles or notes appear on Resident 1's MOR indicating that either drug was not available. Resident 1 is a patient of Nurse McCormick. Resident 1 becomes anxious or agitated if she does not receive her medication for her anxiety disorder. Nurse McCormick considered Resident 1's anxiety disorder well controlled by the medications. Resident 1's MOR reflects that she received Visteral from June 1 through 30 at night as ordered and received it PRN several times prior to June 23, 2011, but did not receive it PRN the rest of the month of June or July 1 through 14. She also received Ativan twice a day routinely in June and July and five times PRN during the period June 23 through 30, 2011, and four times during the period July 1 through 14. According to Nurse McCormick, either medication was appropriate for controlling Resident 1's anxiety disorder. Resident 1's MOR reflects that she received Flexeril on June 30, 2011. Nurse McCormick was not made aware at any time that Resident 1 was not receiving any of her medications. As the treating and prescribing nurse, missed or unavailable medications would have come to Nurse McCormick's attention. Resident 1 was not anxious, nervous or agitated when interviewed by Ms. Endress on July 12, 2011. There is no competent evidence that Resident 1 displayed any signs of anxiety, nervousness or agitation during the survey or during the times that the Amended Administrative Complaint alleges that she did not receive her medication. Nurse McCormick found the staff of Kipling Manor to be careful with all residents. She has been to the facility at various times of the day from early in the morning to late into the evening. Nurse McCormick is of the opinion that the staff takes care of all its residents and provides them with dignity. Despite Kipling Manor's resident population of seriously mentally ill residents, Nurse McCormick is of the opinion that the facility manages its residents with dignity and care. Count V--Background Check The Amended Administrative Complaint alleges that one staff member of Kipling Manor, the cook, had not been background screened. Based upon record review and staff interview, Ms. Endress determined that the facility did not complete a level 2 background check for 1 out of 8 sampled staff members. A record review revealed that this employee had been hired in April 2011. On April 26, 2011, the employee in question signed an Affidavit of Compliance with Background Screening Requirements, using AHCA form #3100-0008. By signing this form, the employee attested to never having been arrested for, pled nolo contendere to, or convicted of certain disqualifying offenses. Mr. Williams did not complete a background check on the cook because he did not think the cook was covered under the law. That is, he did not think the law applied to the cook because of the lack of personal contact with the residents. The cook is present during meal times serving plates of food to the dining workers who then directly serve the residents. The living areas are accessible to the cook. This employee no longer works at Kipling Manor. The record is not clear as to when he stopped working there. Ms. Endress determined that this constituted a Class II deficiency as she believed that it could potentially lead to harm to residents of the facility. According to Ms. McIntyre, AHCA always imposes a Level II deficiency for failure to have a level 2 background screening for employees. Both Ms. Endress and Ms. McIntyre testified at hearing regarding what constitutes Class II and Class III deficiencies. In several instances, Ms. Endress classified a violation or deficiency that could potentially result in harm to a resident as a Class II. Ms. McIntyre testified that "a potential harm to a resident could be a class II deficiency." She described a Class III as one that "indirectly threatens the physical, emotional health or safety of a resident. . . . indirectly or potentially." The Agency provided a mandatory correction date of August 1, 2011, for all five counts in the Administrative Complaint.
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 imposing a fine of $2,000, imposing a survey fee of $500, and dismissing the remaining allegations of the Amended Administrative Complaint against Respondent, Kipling Manor. DONE AND ENTERED this 1st day of May, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2012.
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (‘the Agency") concerning the preliminary approval of Certificate of Need (“CON”) Application No. 10220, submitted by Palm Coast Behavioral Health, LLC’s (“Palm Coast”) to establish a 63- bed adult inpatient psychiatric hospital in Service District 4, Flagler County. 1. On June 9, 2014, the Agency published its preliminary approval of Application No. 10220 submitted by Palm Coast Behavioral Health, LLC’s (“Palm Coast”) to establish a 63- bed adult inpatient psychiatric hospital in Service District 4, Flagler County. 2. In response, Halifax Hospital Medical Center (“Halifax”) filed a petition for formal hearing contesting the approval of CON Application 10220. The case was forwarded to the Division of Administrative Hearings. 3. Halifax subsequently voluntarily dismissed its petition for formal hearing. It is therefore ORDERED: 1. The preliminary approval of CON Application No. 10220 is upheld subject to the conditions in the State Agency Action Report for Application No. 10220. Filed October 2, 2014 11:06 AM Division of Administrative Hearings ORDERED in Tallahassee, Florida, on this 27 _ day ot Seem foec ans Elizabeth Dutek, Secretary Agency for Health Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- on named persons by the method designated on this ate PRAL 2014. CSCO Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Jan Mills Lorraine M. Novak, Esquire Facilities Intake Unit Agency for Health Care Administration Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) James McLemore, Supervisor Marisol Fitch Certificate of Need Unit Health Services & Facilities Consultant Agency for Health Care Administration Certificate of Need Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) 2 Karen A. Putnal, Esquire Susan C. Smith, Esquire Robert A. Weiss, Esquire Corinne T. Porcher, Esquire Moyle Law Firm, P.A. Geoffrey D. Smith, Esquire Kputnal@moylelaw.com Smith and Associates Rweiss@moylelaw.com Susan@smithlawtlh.com (Electronic Mail) Corinne@smithlawtlh.com Geoffi@smithlawtlh.com (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Findings Of Fact The Respondent, Gertrude Delman Levin, R. N., holds License No. 71014-2 as a registered nurse in the State of Florida. She has practiced her profession as an employee of Bethesda Memorial Hospital in Boynton Beach, Florida, Cypress Community Hospital in Pompano Beach, Florida, and North Medical Center, Inc. in Fort Lauderdale, Florida, during the time pertinent to this hearing. On January 9, 1979, an administrative complaint was issued by the Petitioner Board seeking to place on probation, suspend, or revoke the license of Respondent Levin for alleged unprofessional conduct during the course of her employment at the foregoing medical centers. Respondent requested an administrative hearing on April 9, 1979, and her request was forwarded by the Petitioner Board to the Division of Administrative Hearings on April 13, 1979. An administrative hearing was scheduled for July 18, 1979, in Fort Lauderdale, Florida, by Notice of Hearing dated April 26, 1979. The hearing was continued upon Motion of the Respondent, and rescheduled and heard July 31, 1979. The Transcript of Proceedings was received September 6, 1979. After the hearing was called to order, the Respondent admitted the following allegations of the Administrative Complaint: On or about March 5, 1977, while on duty as a registered nurse at Bethesda Memorial Hospital, Boynton Beach, Florida, Respondent administered a controlled narcotic, to-wit: Morphine Sulphate, intravenously twice to a patient named Gladys Sargent, at approximately 1:15 a.m. and again at approximately 2:10 a.m., contrary to the physician's order which directed that the patient be given Demerol (Meperedine) 50 mg. and Vistaril 25 mg. I.M. every three hours, and failed to chart the administration of same on the medication administration record. On or about March 29, 1977, while on duty at Bethesda Memorial Hospital, Respondent charted on the medication record as having omitted to administer a heart medication, to-wit: Pronestyl Intramuscular to a patient, Phillip Bialer, at 12:00 midnight and 6:00 a.m., and charted in the Nurses Notes that the 6:00 a.m. dose was not given since the patient was unable to swallow, even though the medication was to be administered intramuscularly and not be mouth. The 12:00 midnight dose was charted in the Nurses Notes as having been given without difficulty. On or about May 13, 1977, while on duty as above, Respondent signed out for a prescription drug, to-wit: Talwin for a patient, Mable Larkin, for whom there was no physician's order for said medication. Respondent failed to chart the disposition of said Talwin on either the medication administration record or Nurses Notes. In view of the above medication errors, Respondent was terminated from her employment at Bethesda Memorial Hospital. During the month of April, 1978, while on duty as a registered nurse at Cypress Community Hospital, Pompano Beach, Florida, Respondent committed numerous medication and charting errors with respect to the controlled substance, Demerol (Meperidine), including but not limited to: (g) Signing out on the narcotic control record on April 1, 1978, at 12:30 p.m. for Meperidine 75 mg. for a patient, Lillian Sederquist, when the patient's physician's order called for only 50 mg. of Meperidine, charting on the patient's medication administration record as having administered 50 mg. to the patient and failing to account for the excess. Immediately after the foregoing admissions by Respondent, the Petitioner dropped Allegation 8 of the Administrative Complaint. In reference to the foregoing admitted Allegations 1, 2, 3 and 4, Respondent submitted documentation to show mitigating circumstances. The documentation proported to show that during the period of time from March of 1977, through May of 1977, the Respondent had advised her supervisor at Bethesda Memorial Hospital that she was under medication for an injury and that she was under stress because of her divorce, care of a small child, and other personal problems. Respondent admitted Allegation 5 (g) of the foregoing Administrative Complaint in reference to her work at Cypress Community Hospital. She did not admit "numerous" errors. From evidence and testimony relating to physician's orders, I find that: Respondent Levin signed out the narcotic, Demerol, for a patient, Benjamin Arber, at a time when the physician's order of March 23, 1978, had not been renewed. On April 6, 1978, Respondent signed out the narcotic, Demerol, for a patient, Lillian Sederquist, on then narcotic control record without a physician's orders. On April 25, 1978, Respondent signed out for 50 mg. of Demerol for a patient, Vivian Albapo. No time was indicated, and there were no physician's orders in affect at the time for 50 mg. The order was for 75 mg. of Demerol. On April 6, 1978, there were no physician's orders in effect for Meperidine for patient Sederquist, but Respondent signed out 75 mg. of Meperidine for her at 2:00 o'clock p.m. The medication was not charted on the medication administration record of the patient, and no such entry was made in the nurses notes. On April 7, 1978, Respondent signed out for 75 mg. of Meperidine at 7:00, 8:00 and 11:00 o'clock, but there were no physician's orders in effect. On the PRN record 7:00 o'clock a.m. was written over and 8:00 o'clock a.m. and 3:00 o'clock p.m. noted, but there was no notation for 11:00 o'clock a.m. The nurses notes related to Sederquist do not mention 7:00 or 11:00 o'clock a.m. On April 12, 1978, Respondent Levin signed out twice for narcotics for patient Sederquist without physician's orders and without reflecting the administration of medication to the patient. On April 13, 1978, there was a total of 75 mg. of Meperidine signed out for patient Sederquist, but there were no physician's orders. There was a medical record, but there was no notation in the nurses notes. On April 15 and 17,1978, there was a sign-out at 9:00 o'clock for Meperidine 75 mg., but there were no physician's orders in effect. There was a medication record for April 15, but none for April 17, and there was no notation in the nurses notes. A discharge order for patient Sederquist was written for April 15, 1978, and the nurses notes showed discharge via wheelchair to husband's care at 12:30 p.m. Respondent Levin had signed out for 75 mg. of Meperidine at 12:00 o'clock noon on April 15, 1978, without physician's orders. From evidence relating to wasting, charting and nurses notes, I find that: Respondent signed out for Demerol 75 mg. for a patient, Vivian Sederquist, on April 2, 1978, but it was not administered and was not shown to have been wasted. Respondent signed out for 10 mg. of Morphine on April 7, 1978, and stated it was wasted on the record, but such wastage notation was not co-signed as required. Respondent signed out for 75 mg. of Meperidine for a patient, Carmody, on April 15, 1978, and indicated that the narcotic had been wasted, but there was no indication of a co-signing witness. On April 19, 1978, Respondent signed out for 100 mg. of Demerol for a patient, Bosch, and indicated wastage, but there was no co-signature. On April 20, 1978, Respondent signed out for 100 mg. of Demerol for a patient, Lowery, and indicated that 25 mg. had been wasted, but there was no co-signee. On the same date Respondent signed out 50 mg. of Demerol for patient Bosch and indicated a contaminated needle, but there was no cc-signature. On April 21, 1978, Respondent Levin signed out for 75 mg. of Demerol and indicated a contamination, but there was no co-signature. On April 24, 1978, 50 mg. of Demerol was signed out for a patient, Jones, and 25 mg. was indicated as wasted, but there was no co-signature. On that same day and hour 50 mg. of Demerol was signed out by Respondent and 25 mg. indicated as wasted, but there was no co-signature. On May 25, 1978, 2 mg. of Dilaudid was ordered for a patient, Hollinger, but was charted for 3 mg. by Respondent Levin, and there were no nurses notes. On May 26, 1978, at 3:00 o'clock p.m. there was a sign-out for Dilaudid for patient Hollinger by the Respondent, but the nurses notes show the patient was medicated for pain at 2:45 p.m. On May 29, 1978, there was a sign-out for medication for patient Hollinger at 10:30 a.m., but the medication administration record shows 9:30 a.m. On May 30, 1978, Respondent signed out for Dilaudid for patient Hollinger at 9:00 o'clock a.m., but it was not charted on the medication administration record, and there was nothing in the nurses notes. May 18, 1978, there was a sign-out by Respondent Levin for Leritene at 11:30 a.m. for a patient, Kraus, but there is nothing on the patient's medication record or in the nurses notes relative to such drug. On May 19, 22, 24 and 25, 1978, there were sign-outs for Leritene by Respondent, but nothing was noted to this effect on the medication administration record or in the nurses notes kept by Respondent Levin. Hospital policy and good nursing practice require that no narcotics be signed out by a nurse without a physician's order effective at that time. Medication given to a patient by a nurse must be charted by that same nurse. "Wasted" narcotics must be accounted for by the nurse who signs out the drug, and the record of wasted narcotics must be witnessed by another nurse. Nurses notes should be kept by the nurse. There was testimony that at infrequent times the foregoing general hospital policy and good nursing practices were violated, but any such violations are at the peril of the nurse. From the testimony of employee witnesses at the hospitals in which Respondent was employed, it appeared that the hospitals were understaffed during the periods Respondent was employed. Narcotic control and medical records from Bethesda Memorial Hospital, Cypress Community Hospital, North Beach Medical Center and Boca Raton Community Hospital were verified, and copies were placed in evidence. The Incident report from Boca Raton Community Hospital was satisfactorily explained. Respondent Levin submitted a brief and entitled Sections 3 through 7 "Proposed Findings of Fact." There was no memorandum of law or proposed order from the Petitioner Board. The instrument from Respondent was considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the license of Respondent Levin be suspended for a period of not more than two (2) years and until she can show rehabilitation to the satisfaction of the Petitioner Board. DONE and ORDERED this 12th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Robert C. Kain, Jr., Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 Geraldine B. Johnson, R. N. State Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the record evidence, the following findings of fact are made: Respondent is now, and has been since August 17, 1987, licensed to practice practical nursing in the State of Florida. She holds license number 0876721. Respondent was employed for more than a year as a nurse at Martin Memorial Hospital (hereinafter referred to as the "hospital"), a private nonprofit community hospital located in Stuart, Florida. She was suspended from her position for three days on October 25, 1988, for suspected diversion of drugs and falsification of medical records. Upon the expiration of her suspension, she was terminated. At all times material to the instant case, Respondent was assigned to the hospital's sixth floor oncology unit and she worked the day shift (7:00 a.m. to 3:00 pm). Among the patients for whom Respondent cared was S.H. S.H., who is now deceased, had lung cancer. The first five days of S.H.'s stay at the hospital were spent in a room on the hospital's fifth floor. On October 15, 1988, she was moved to the sixth floor oncology unit, where she remained until her discharge at 3:35 p.m. on October 22, 1988. When a patient is admitted to the hospital, the admitting physician provides the nursing staff with written orders regarding the care that is to be given the patient. These written orders, which are updated on a daily basis, include instructions concerning any medications that are to be administered to the patient. The hospital's pharmacy department provides each patient with a twenty- four hour supply of the medications prescribed in the physician's written orders. The supply is replenished daily. In October, 1988, the medications that the pharmacy department dispensed were stored in unlocked drawers that were kept in designated "medication rooms" to which the nursing staff and other hospital personnel had ready access. The hospital's nursing staff is responsible for caring for the hospital's patients in accordance with the written orders given by the patients' physicians. Furthermore, if a nurse administers medication to a patient, (s)he must indicate that (s)he has done so by making an appropriate, initialed entry on the patient's MAR (Medication Administration Record). 1/ In addition, (s)he must note in the nursing chart kept on the patient that such medication was administered. Moreover, if the physician's written orders provide that the medication should be given to the patient on an "as needed" basis, the nursing chart must contain information reflecting that the patient's condition warranted the administration of the medication. The foregoing standards of practice that nurses at the hospital are expected to follow are the prevailing standards in the nursing profession. On October 13, 1988, S.H.'s physician indicated in his written orders that S.H. could be administered Darvocet N-100 for pain control on an "as needed" basis, but that in no event should she be given more than one tablet every six hours. S.H.'s MAR reflects that at 9:00 a.m. on October 18, 1988, the first day that Respondent was assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 18, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date. S.H.'s MAR reflects that at 10:00 a.m. on October 21, 1988, the day Respondent was next assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 21, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date. At some time toward the end of her stay in the hospital, S.H. told one of the charge nurses who worked in the sixth floor oncology unit that she had taken very few Darvocet N- 100 tablets during her stay at the hospital and that she had not taken any recently. S.H.'s physician did not prescribe Darvocet N-100 or any other similar pain medication for S.H. upon her discharge from the hospital. Notwithstanding the entries she made on S.H.'s MAR, Respondent did not give Darvocet N-100 to S.H. on either October 18, 1988, or October 21, 1988. Respondent made these entries knowing that they were false. She did so as part of a scheme to misappropriate and divert the medication to her own use.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violations of Section 464.018(1), Florida Statutes, charged in the instant administrative complaint and disciplining Respondent by taking the action proposed by the Department, which is described in paragraph 9 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1990. STUART M. LERNER 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 26th day of October, 1990.
