The Issue The issues for determination are whether allegations of the two four-count Administrative Complaints filed by Petitioner against Respondent are correct, and, if so, what penalty is appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002); and the record compiled herein, the following relevant and material facts are found herein below: AHCA, at all times material hereto, is the agency for the State of Florida charged with licensing nursing homes in Florida pursuant to Section 400.021(2), Florida Statutes (2002), and the assignment of a licensure status pursuant to Section 400.23(7), Florida Statutes. AHCA is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. AHCA is also responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288 that, in part, states, "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." Pursuant to Section 400.23(8), Florida Statutes, AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Section 400.23(2), Florida Statutes, are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." AHCA surveyors use the "State Operations' Manual" (SOM) as guidance in determining whether a facility has violated the Federal regulation, 42 C.F.R. Chapter 483. The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe have been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance violation. Abbey is a nursing home located in St. Petersburg, Florida, licensed pursuant to Chapter 400, Florida Statutes. On October 8, 2002, AHCA conducted a complaint investigation3 survey of Abbey. As to the federal compliance requirement, AHCA alleged in the four-count Administrative Complaints that Abbey did not comply with certain requirements, which are significant for this proceeding. In Count I, AHCA alleged failure to implement written policies and procedures regarding advanced directives in violation of 42 C.F.R. Section 483.10(b)(8), Tag F-156. In Count II, AHCA alleged failure to implement written policies and procedures to prohibit neglect of residents in violation of 42 C.F.R. Section 483.13(c), Tag F-224. In Count III, AHCA alleged failure to provide or arrange services that meet professional standards of quality of care in violation of 42 C.F.R. Section 483.20(k), Tag F-281. In Count IV, AHCA alleged failure to ensure that residents are free of any significant medication errors in violation of 42 C.F.R. Section 483.25(m), Tag F-333. As to state licensure requirements of Section 400.23(7) and (8), Florida Statutes, and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that Abbey had failed to comply with state established rules. Under the Florida classification system, AHCA classified the noncompliance in Tag F-156, Tag F-224, and Tag F-281 as Class I deficiencies and classified the noncompliance in Tag F-333 as a Class II deficiency. When AHCA finds violations in a facility, it assigns a classification based on the severity of the specific violation. The classifications are Class I, Class II, Class III, or Class IV, with Class IV being the least severe. Class I means a deficiency in which immediate corrective action is necessary because noncompliance has caused or is likely to cause serious injury, harm, impairment, or death to a resident. Class II means a deficiency which has compromised the resident's physical, mental, or psychological well being, but which does not require immediate corrective action. AHCA also assigns a "scope" rating to an alleged deficiency. Scope is either "isolated," "patterned," or "widespread." An isolated deficiency is a deficiency that affects one or a very limited number of staff or is a situation that occurs only occasionally or in a very limited number of locations. A widespread deficiency is a deficiency in which the problems are pervasive in the facility or which represents systemic failure that has affected or has the potential to affect a large portion of the facility's residents. Based upon the three Class I deficiencies and the one Class II deficiency discovered during the complaint investigation survey, AHCA assigned a "Conditional" licensure status to Abbey commencing October 8, 2002, through October 28, 2002. As of September 15, 2002, Resident 1 was housed in the Windmoor Healthcare drug rehabilitation treatment center located in Clearwater, Florida. While there, her rehabilitation program included taking the following prescribed medications: Effexor, Trazodone, Depakote and Zyprexza, for mood swings and depression. On September 19, 2002, Abbey admitted Resident 1 for the limited purpose of undergoing a pain management program. Resident 1's pain management treatment consisted, in part, of the prescribed medication Vicodin (brand name for the generic drug hyrdocodone/acetaminophen) in preparation for her future endometriosis surgery. At the time of her admission, Resident 1, a 23-year- old female, weighed approximately 190 pounds; had multiple diagnoses, including bipolar disorder, depression, polycystic kidney disease, cystitis, herpes, endometriosis, and infections; and had a history of drug abuse. She was ambulatory, competent, alert, oriented, and independent, requiring no special assistance or treatment, and was assigned a semi-private room. Resident 1 was not restricted to the facility. She was free to leave the facility only during the day and was required to return each evening. During one or more days, she left the facility and returned each night material to this proceeding. Resident 1 designated herself a "full-measure" resident. A "full-measure" resident is one whose admission medical record contains the resident's election that requires immediate initiation of "compressions and breathing" assistance including Cardio Pulmonary Resuscitation (CPR) and other life- saving efforts, if at any time the resident is found to be non- responsive and/or not breathing. Abbey's policies and procedures required staff to first assess a non-responsive resident; have someone ascertain if the resident is Do Not Resuscitate (DNR) or No Do Not Resuscitate (NO DNR), and if NO DNR initiate "compressions and breathing" assistance including CPR and other life-saving efforts immediately.4 As used by the witnesses in this case, the term "full measure" is synonymous with NO DNR; therefore, Abbey's staff is required to initiate “compression and breathing" assistance immediately on "full- measure" residents. Resident 1 did not self-medicate. Harold Hawkins, M.D. (Dr. Hawkins), Resident 1's treating physician, previously prescribed two Vicodin tablets every eight hours as needed for pain before Resident 1's admission to Abbey. The most frequent adverse reactions of the prescribed medication Vicodin are vomiting, lightheadedness, dizziness, drowsiness, constipation, sedation, nausea, sleepiness and spasm of the urethra, which can lead to difficulty in urination. Abbey's Prescriber Medication Orders policy and procedures required its nursing staff to inquire, to know, to assess and to administer the correct prescribed medication to its residents.5 On September 23, 2002, five days after her admission into the facility, Dr. Hawkins visited Resident 1. During his midday visit, Resident 1 was somewhat lethargic but responsive. At the conclusion of his visit, Dr. Hawkins entered a written medication change order in Resident 1's medical chart regarding her pain management treatment program. He reduced Resident 1's dosage from two Vicodin tablets every eight hours as needed for pain to one Vicodin tablet every eight hours as needed for pain. To evaluate the effect of the reduction in her medication dosage, Dr. Hawkins entered a physician's order requiring staff to take urine samples from Resident 1 throughout the night. This physician's order was not followed by staff nor did staff contact the physician and inform him of their failure. On September 23, 2002, at approximately 7:30 p.m., some six hours after Dr. Hawkins ordered reduction of medication to one Vicodin tablet as needed for pain, the 3:00 p.m.-to- 11:00 p.m. shift nurse, unaware of Dr. Hawkins' ordered reduction in the prescribed medication dosage of Vicodin, gave Resident 1 a dosage of "two" Vicodin tablets. After ingesting two Vicodin tablets, Resident 1 went onto the facility's smoking porch. There she fell asleep in a chair and from approximately 7:40 p.m. until approximately 11:30 p.m., she snored loudly while asleep. Janice Dellaert (Dellaert), registered nurse (RN), was the 11:00 p.m.-to- 7:00 a.m. duty nurse on September 23 and the morning of September 24, 2002. On September 23, 2002, the 3:00 p.m.-to- 11:00 p.m. shift nurse informed Dellaert when she came on duty that Dr. Hawkins had visited with Resident 1 earlier that day. The 3:00 p.m.-to-11:00 p.m. shift nurse shared with Dellaert her opinion that during her shift, Resident 1 "was somewhat 'sleepier' than usual and to keep an eye on her to make sure she was alright during the night." The evidence demonstrated that Dellaert did not heed the cautionary advice given her. At 11:30 p.m., the nursing staff aroused Resident 1 from her four- hour nap. Once awakend, Resident 1's condition was described as somewhat dizzy, slightly disoriented, and able to ambulate to her semi-private room without assistance. Once in bed, Resident 1 went to sleep and resumed her loud snoring throughout the night of September 23, 2003. The credible evidence demonstrated that on September 23, 2002, at approximately 11:30 p.m., Resident 1 was in the condition of being responsive to stimulated arousal efforts and was capable of being aroused from sleep after ingesting two Vicodin tablets some three hours and 50 minutes earlier. Based upon credible and material evidence adduced, a reasonable inference is that Resident 1's 11:30 p.m. capacity to be aroused apparently began to diminish throughout the night and continued diminishing into the early morning hours. Resident 1's gradual diminishing of responsiveness was either undetected or ignored by the night duty nurse. At approximately 3:00 a.m., on the morning of September 24, 2002, Robert Miller (Miller), an experienced certified nursing assistant (CNA), came on duty. Following his normal service routine to those residents assigned to him, he would enter each resident's room, fill the ice-water jug and pass out new drinking cups. He briefly observed each resident when he entered each room. Miller observed Resident 1 when he entered her room, but noticed only that she was snoring loudly. Thus, at 3:00 a.m., four hours after having been aroused and put to bed, Resident 1 was alive. Dellaert recalled from memory that between 11:30 p.m. on the 23rd to 6:30 a.m. on 24th of September 2002, she entered Resident 1's room on three different occasions, awakened her, and attempted to give her medication and take her urine samples. According to Dellaert, Resident 1 was uncooperative, refused to take the medication, and refused to give urine samples on each occasion. During her three visits with Resident 1, Dellaert recalled that she observed no change in Resident 1's condition from her earlier condition (aroused-then sleeping and snoring loudly) at 11:30 p.m. on September 23, 2002. Dellaert, however, chose not to assess Resident 1 by taking her vital signs and chose not to call Dr. Hawkins regarding Resident 1's alleged lack of cooperation in giving urine samples. She chose not to inform him of the medication error of administering two Vicodin tablets to Resident 1. Dellaert's decisions violated Abbey's Prescriber Medication Orders policy. Comparing Dellaert's recollection testimony of her actions and those of Resident 1 the morning of September 24, 2002, to her nurses' note entries covering five hours from 12:00 a.m. to 5:00 a.m. revealed contradictions. Dellaert's initial nurses' note entry covered an hour and 15 minutes from 5:00 a.m. to 6:15 a.m., on September 24, 2002. In that single entry Dellaert entered: "[I] attempted X3 to arouse resident [1] and unable to arouse-snoring very loudly on bed during this time." (emphasis added) This entry contradicts her recollection testimony in paragraph 29 hereinabove. Confronted with a loudly snoring resident, who was non-responsive to stimulated arousal throughout an approximate six-hour period as reflected in her nurses' note entry hereinabove, Dellaert chose not to inform Dr. Hawkins of her inability to get the ordered urine sample from this resident. She chose not to inform the doctor that she had not taken the vital signs of the resident. Dellaert chose not to inform the doctor that Resident 1 had been given two Vicodin tablets instead of one Vicodin tablet as ordered. It was the responsibility of Abbey's nursing staff to inform the physician that Resident 1 would not take the prescribed medication nor give the ordered urine sample. The above choices made by Dellaert exemplified her failure, as an experienced, professional nurse, to provide nursing care in conformity with required professional nursing care standards. Credible evidence established that staff made no attempt to arouse and awaken Resident 1 during the six-hour period between approximately 12:00 a.m. to the early morning hours of approximately 5:30 a.m. on September 24, 2002. The evidence supports a reasonable inference that if staff had attempted to arouse Resident 1 three times and could not do so, the failure to investigate and to determine the cause of Resident 1's non-responsiveness was not an oversight, but was intentional. If, however, one accepted Dellaert's recollection that Resident 1 was aroused on three separate occasions and intentionally refused to take medication or give urine samples, one is led to conclude that Dellaert's failure to report Resident 1's refusals to her treating physician was also intentional. Based on the foregoing, viewed either independently or collectively, and upon reasonable inferences, the evidence convincingly demonstrated that Resident 1 had undergone a change from her responsive condition at 11:30 p.m. to a non-responsive condition at 6:15 a.m. As a direct result of staff's failure and/or refusal to recognize and to note this change in Resident 1's condition, there was created and continued to exist the distinct possibility of "impending harm" to Resident 1. Taking no action under these particular circumstances exemplified nursing care conduct beneath the standard of care required of an experienced, knowledgeable, and professional nursing staff. Between 6:45 a.m. to 7:00 a.m. on September 24, 2002, Edwina Burke (Burke), RN, came on duty to relieve Dellaert. Dellaert recalled informing Burke that she had awakened Resident 1 several times throughout the night and that the resident repeatedly refused to take medication and give a urine sample. Upon entering the resident's room at approximately 6:34 to 6:40 a.m., Burke found Resident 1 on the floor of her bedroom, between the bed and the nightstand, lying on her stomach with vomitus "coming" out of her mouth. At the time she was found, staff described Resident 1's condition as "lips appeared bluish in color, her fists were clenched, and her feet were warm." Burke did not take Resident 1's pulse nor did she check her vital signs when she found her on the floor. Burke did not initiate CPR when she found Resident 1 on the floor. Her initial response was to give instructions to Dellaert to "call 911 and to get paper work prepared to send Resident 1 to the hospital" and to find Miller because "she needed him on the floor to help her with something." From her initial actions and instructions, viewed either independently or collectively, and upon reasonable inference, Burke then considered Resident 1 to have been (alive and) in need of immediate hospitalization. Likewise, from the acquiescence by Dellaert, a reasonable inference is that Dellaert agreed with Burke; Resident 1 was (alive and) in need of hospitalization. This inference is buttressed by the fact that Burke and Dellaert chose not to do an assessment, initiate CPR or any other compression breathing assistance on Resident 1 at any time during their presence in Resident 1's room, in violation of Abbey's CPR policy and procedures. At all times material, Burke did not know whether Resident 1 was DNR (no CPR) or NO DNR (CPR) (i.e. “full measure”). Burke's lack of knowledge was the result of her failure to dispatch someone to review Resident 1's resident care plan file as required by Abbey's CPR policy and procedures. It is significant to note here that Resident 1's resident care plan and medical records identified her as a "full-measure" resident (i.e. when found non-responsive-Abbey's policy and procedures require staff to immediately initiate "compression and breathing" assistance, including initiating CPR and other life- saving efforts). Abbey's CPR policy and procedures do not include the specific term "full-measure" resident. This lack of specificity coupled with only requiring ascertaining whether a non-responsive resident is DNR (no CPR) or NO DNR (CPR), could create confusion among staff. When Miller arrived, Burke instructed him to "get a sheet, come, and help me get her off the floor and back in bed." Miller, trained in administering CPR, did not initiate CPR on Resident 1. When the crash cart arrived, neither Burke nor Dellaert, utilizing the equipment thereon, attempted breathing assistance or attempted revival of this resident. The evidence established that Abbey's three CPR qualified staff members (Burke, Dellaert, and Miller) were simultaneously present in Resident 1's room on the morning of September 24, 2002, and not one initiated "compression and breathing" assistance, CPR nor any other life-saving efforts on Resident 1 (a full-measure/NO DNR resident). When she returned to the resident's room, Dellaert observed her colleagues place Resident 1 in bed and, at that time, concluded Resident 1 was dead. According to Dellaert, Burke informed her that she had tried but did not get a pulse (presumably during her absence from the room) from Resident 1. Between 7:00 a.m. and 7:05 a.m., Dellaert made a nurses' note entry that stated: "CPR was initiated before the paramedics arrived." When questioned, Dellaert acknowledged that "someone" (unnamed in the record) told her to make that entry but she had no personal knowledge of anyone "initiating CPR before the paramedics arrived." Dellaert, continuing: "When I returned from calling 911-I told them not to move Resident 1 because that's what the paramedics instructed me-but Edwina Burke and Miller had already turned her over on her back." Dellaert had no personal knowledge of what occurred, if anything, when she was not present in the room. Following removal of the resident's body, Abbey conducted its internal investigation of the circumstances surrounding the death of Resident 1. After completing its investigation, Abbey's director of nursing, Lyn Homicillada, reviewed the investigative findings. She concluded Dellaert and Burke to have been negligent-"in their failure to follow written policies and procedures regarding advanced directives"- while on duty the night and morning of Resident 1's death. Because of their negligence while on duty (by their joint failure to follow policies and procedures regarding advance directives), Abbey terminated Burke on October 2, 2002, and Dellaert on October 9, 2002. Dellaert understood her termination was--"because of the particular resident (Resident 1) passing away." The expert opinion testimony of Lyn Homicillada that nursing decisions made by Dellaert and Burke were appropriate under Abbey's advance directives and, therefore, permissible decisions is contrary to the facts and to the written policies and procedures regarding advance directives and is therefore rejected. Through interviews conducted with three randomly selected staff members, AHCA clearly demonstrated those staff members: (1) were unable to determine whether a resident was "full-measure" (use every attempt to resuscitate) because the color code system6 did not have a color code to identify a "full- measure" resident; (2) understood the yellow dot meant do not resuscitate (DNR) when found non-responsive; (3) were unable to identify a color code symbol regarding full-measure advanced directives; and (4) were unable to identify the specific locations of the crash carts within the facility. Through a random check of several residents' medical records, AHCA proved that three of those residents on the DNR list did not have DNR identifying yellow dots (policy/procedure required each DNR resident to have a yellow dot sticker in their medical records, on their bed-side medical charts and on their arm/wrist bands). To assist the staff's identification of each color of the color-coding system, staff I.D. tags worn during duty had colored coded dots on the back of each I.D. tag. Even though Abbey had in place a system of identification regarding the DNRs, there existed a lack of consistency in its application and a lack of understanding, among at least three staff members, of the DNR/advanced directives system regarding what to do when confronted with a non-responsive resident who had elected "full- measure" treatment. Neither the advance directives nor the color code system included "full-measure" residents. Through the admissions of three staff members, it was established that Abbey's policies and procedures did not include provisions nor had Abbey provided training for its staff on the critical issue of "when to" initiate CPR on "full-measure" (NO DNR) residents who were found non-responsive. AHCA proved that Abbey failed to include in its policies and procedures an essential written proviso regarding: first, the term "full measure," also used to identify a NO DNR resident; and second, the critical issue of "when to" initiate CPR on "full-measure" residents as a life-saving effort based on advanced directives as alleged in Tag F-156. Abbey's policy and procedures did not include the term "full-measure" residents. AHCA alleged in Tag F-281 a "failure to meet a quality of care requirement by failing to meet professional standards of practice." Specifically, AHCA alleged that Abbey (1) failed to continually assess Resident 1 throughout the evening and early morning hours preceding her death; (2) failed and/or refused to notify Resident 1's physician, Dr. Hawkins, of the resident's "failure to respond" after three attempts to arouse her were made; (3) failed to correctly administer pain medication; and (4) failed to initiate CPR on a "full-measure" resident. In violation of Abbey's written policy and procedures regarding Prescriber Medication Orders and CPR General Guidelines for Assessment. Between 7:00 a.m. and 7:05 a.m., Dellaert made a nurses' note entry that stated: "CPR was initiated before the paramedics arrived." By admission, Dellaert acknowledged that "someone" (unnamed in the record) told her to make that entry but she had no personal knowledge of anyone "initiating CPR before the paramedics arrived." In explaining this nurses' note entry, Dellaert admitted she was "wrongly assuming the other nurse [Burke] started CPR-but she didn't." AHCA proved that Abbey's nursing staff: (1) failed to continually assess Resident 1 throughout the evening and early morning hours preceding her death on September 24, 2002; (2) failed to initiate CPR; (3) failed to correctly administer pain medication; and (4) failed and/or refused to notify Resident 1's physician, Dr. Hawkins, of Resident 1's "refusing medication and lack of response." These failures constitute violations of Abbey's policies and procedures regarding CPR, Prescriber Medication Orders, and Physician Notification requirements. Dellaert acknowledged a familiarity with Abbey's written policies and procedures regarding residents who did not sign advanced directives and those residents who have a DNR and those residents who elected "full measure." She had prior training on Abbey's policy and procedures regarding "how to" administer CPR. When a non-responsive resident is discovered, the facility's written policy and directives require staff to: assess (checking vital signs) and determine the resident's non-responsiveness (breathing or not breathing) by tapping or gently shaking the resident and shouting, "Are you okay”; call out for help; and (3) delegate a specific individual to check the resident care plan for DNR (do not administer CPR) or NO DNR (administer CPR) order and call paramedics, attending physician, and administrative personnel. The above "procedures" to assess and determine Resident 1's non-responsiveness, to notify the attending physician, and to determine a reason for her breathlessness when she was discovered on her bedroom floor were not followed by either Burke or Dellaert. It is significant and noted that the above-referenced procedure makes no mention of a NO DNR resident who is identified by the term "full-measure" as opposed to residents who are identified by acronyms DNR or NO DNR. Dellaert, again from memory, disavowed any knowledge of Abbey's policies and procedures booklets containing instructions to the nursing staff on "when to" administer CPR to a non-responsive resident (to include a "full-measure" resident). She had not attended nor did she know of any staff training on "when to" initiate CPR on a non-responsive, "full- measure" resident. A reasonable inference is that Dellaert did not fully understand the term "full measure" to have the same meaning, regarding CPR treatment, as the acronym NO DNR. AHCA proved that Abbey failed to implement written policies, procedures, and training regarding advanced directives, by omission of clearly written policy and procedures regarding "when to" initiate CPR to residents who are identified by the term "full-measure" resident. Abbey's policies and procedures do not provide a system to inform and alert staff working the facility floor of the resident's election of "full- measure" (i.e. NO DNR) immediate CPR treatment. The "full- measure" information is contained in a resident's medical files and required checking the non-responsive resident's medical record file before administering CPR to the resident. The delay, to the determent of the non-responsive "full-measure" resident, is to determine if CPR is to be administered to the resident based upon the resident's election of DNR or NO DNR. Upon finding Resident 1 non-responsive, on the bedroom floor between the nightstand and bed, staff did not check for a pulse, did not take vital signs, and did not send anyone to check her medical records. Staff did not initiate CPR nor call Resident 1's physician. Staff did not use the crash cart equipment when it arrived. Confronted with these specific circumstances in the early morning hours of September 24, 2003, Abbey's nursing staff chose to return Resident 1 to her bed. After returning Resident 1 to her bed, Abbey's nursing staff called 911 for Emergency Medical Technicians (EMTs) who arrived some three to eight minutes after receiving the call. The EMT took Resident 1's vital signs, initiated CPR, got no response, and pronounced Resident 1 dead at approximately 7:10 a.m. on September 24, 2002. Abbey's nursing staff's failure to assess the non- responsive resident and the failure to initiate compression breathing and other life saving measures, including initiating CPR, to the "full-measure" (NO DNR) resident constituted a violation of Abbey's existing policy and procedures regarding discovery of a non-responsive resident. The policy and procedures required checking for vital signs, determining from the medical chart whether the resident is DNR or NO DNR, and following through with compression breathing and other life saving measures or not. It is reasonable to assume that finding a "full- measure" resident non-responsive and face down on the floor created the time and the occasion for a professional nursing staff to conclude that such time was the appropriate time and appropriate occasion "when to" initiate CPR on a non-responsive resident. The assumption is valid whether or not staff knew, at that moment, if the resident was identified "full-measure" or NO DNR. The finder of fact is not determining whether CPR would have revived or would have prevented Resident 1's death. The unrefuted evidence demonstrated that upon finding the resident on the floor of her bedroom, Resident 1 was not clinically dead. Confronted with those circumstances, staff made no attempt to ascertain whether the resident was "NO DNR," "DNR" or "full-measure"; failed to administer resuscitative efforts; and, thereby, failed to attempt and failed to provide care and services that met professional standards of quality of care of a professional nursing practice. Abbey's argument that Resident 1 was in rigor mortis at approximately 7:00 a.m. when discovered on her bedroom floor is a false cause argument without foundation in fact and summarily rejected by the fact finder. Assuming arguendo that the expert opinion of Abbey's director of nursing--"rigor mortis occurs after a person is dead and, for a person the size of Resident 1, it would take less than two hours [i.e. between 5:00 a.m. and 7:00 a.m.]" is accepted; Resident 1's death would then have occurred during the 5:00 a.m. to 6:15 a.m. time span. During this very time span, Dellaert testified and included in her nurses' notes that Resident 1 was (alive and) "snoring very loudly." Based upon credible evidence, AHCA proved that Abbey's staff failed to assess and to continually assess Resident 1 throughout the night of September 23, 2002, from 12:00 a.m. through the early morning hours of September 24, 2002, between 6:15 a.m. and 7:00 a.m. AHCA proved that Abbey's nursing staff failed and refused to notify Resident 1's physician, Dr. Hawkins, of Resident 1's "failure to respond" during the time span of 12:00 a.m. through 6:30 a.m. to 7:00 a.m. on September 24, 2002. 58.. AHCA proved that Abbey's nursing staff failed to correctly administer prescribed pain medication to Resident 1, by proving that staff gave her a dosage of two Vicodin tablets within six hours after Dr. Hawkins ordered her medication be reduced to one Vicodin tablet dosage as needed for pain. AHCA proved that Abbey's nursing staff failed and refused to follow Abbey's directives and policy upon discovering Resident 1 on the floor non-responsive. The policy and procedures required staff, when a resident is found non- responsive (without specific reference to NO DNR or DNR), to make an assessment (check vital signs) to determine responsiveness (have someone ascertain from medical records if resident is DNR or NO DNR), and if NO DNR, immediately initiate "compression and breathing" assistance, to include immediate initiation of CPR and other life-saving efforts. Staff chose to ignore all of the above policy and procedural requirements. Tag F-333 alleged that Abbey failed to ensure that Resident 1 was free of any significant medication error. Resident 1 was not given the correct medication as ordered by her treating physician, Dr. Hawkins, during his earlier visit on September 23, 2002. Within less than six to eights hours after Dr. Hawkins' medication change order of September 23, 2002, staff gave Resident 1 two tablets of the prescribed drug Vicodin. It is significant that no evidence of record suggests that Dellaert or Burke knew of the medication change order. Additionally, the fact that Resident 1's certificate of death report list the cause of death as "morphine toxicity" and the manner of death as an "accident" does not absolve nor mitigate Abbey's responsibility to administer the correct dosage of medication as ordered by the resident's physician and contained in her residential medical record. At all times material, Abbey had in place written policies and procedures regarding: CPR, Resuscitator (Manual, Portable),7 Prescriber Medication Orders, and Physician Notification. Other than the written requirement that a resident's election of "full-measure" treatment be included in that resident's care plan file, the omission of any references to "full-measure" (compared to NO DNR) resident elsewhere in Abbey's policies and procedures under consideration herein is systemic and the primary causation factor in this case. The only implied reference to a "full-measure" resident is found in the provision requiring staff to: "delegate a specific individual to check resident care plan for DNR or No DNR [and “full measure”] order." Abbey's CPR policy and procedures does not include the term "full-measure" (NO DNR) residents and does not include nor refer to a color code system as a means of identifying a "full- measure" resident, thereby enabling an immediate identification and determination when a "full-measure" resident is found breathless to initiate CPR. AHCA proved by evidence that is clear and convincing that Abbey's staff was negligent in their failure to immediately identify Resident 1 as a "full-measure" (NO DNR) resident and to immediately implement CPR procedures when Resident 1 was found non-responsive on the floor. The evidence is equally clear that the staff did not initiate CPR or any other compression breathing procedures on Resident 1 at any time during the morning of September 24, 2002. AHCA assigned a Class I deficiency to Tag F-156 (advance directives), Tag F-224 (neglect of residents), and Tag F-281 (beneath standard of quality of care). The staff demonstrated inconsistency in their knowledge of the facility's DNR/advance directive system. Tag F-224 generally alleged failure to provide or arrange services that meet professional standards of quality care through the implementation of the policy that prohibits neglect of residents. When Abbey's nursing staff found Resident 1 non-responsive on the floor, staff made two decisive choices. Staff chose not to take her vital signs to assess her condition and staff chose not to initiate "compression breathing" or CPR. As a result of Resident 1's death, Abbey investigated and dismissed both nurses for not following Abbey's policies and procedures regarding advanced directives that were directly related to the critical time period preceding the death of Resident 1. Immediate corrective action is necessary to prevent similar reoccurrences that would cause or is likely in the future to cause serious injury, harm, impairment, or death to other "full-measure" residents found non-responsive in the facility. The evidence clearly and convincingly demonstrated that at every critical juncture, staff chose to neglect the appropriate care of Resident 1. Staff did not recognize or chose to ignore clinical signs of distress (continuous loud snoring) and/or pending death (inability to be aroused over an extended time period). Staff chose not to assess Resident 1's condition by taking her vital signs when confronted with a non- responsive resident. Staff chose not to notify Resident 1's physician and inform him of her condition and inform him of the amount of medication administered to her. Staff chose not to seek advice, direction and medical instructions from the physician. In view of the cited conduct of Abbey's professional nursing staff, immediate corrective action is necessary because staff's non-compliance and lack of training caused or is likely in the future to cause serious injury, harm, impairment, or death to "full-measure" residents found non-responsive in this facility. Tag F-281 generally alleged failure to meet a quality of care requirement by the failure to meet professional standards of practice. Staff chose not to assess and continually assess Resident 1, the night of September 23, 2002, and early morning hours of September 24, 2002. Staff chose not to check or not to accept or lacked the ability to identify non- responsiveness of Resident 1 as a "change in condition." Staff did not possess knowledge and/or training of "when to" initiate "compression breathing," CPR, or other life saving efforts on a "full-measure" (NO DNR) resident found on the floor of the facility. Staff was negligent in administering the incorrect dosage of a controlled drug pain medication with the known side effect of "sleepiness." Staff chose not to inform the physician that his patient, who was snoring loudly, had been administered incorrect medication. Immediate corrective action is necessary. Non-compliance by staff resulting from either omissions in facility policies and procedures and/or staff's lack of knowledge and training regarding the above-cited areas of professional responsibility has caused or is likely in the future to cause serious injury, harm, impairment, or death to another "full-measure" (NO DNR) resident similarly situated. Tag F-333 generally alleged that Abbey had failed to ensure that Resident 1 was free of any significant medication errors. The physician's medication order decreased Resident 1's level of Vicodin from two tablets to one tablet approximately seven hours before staff gave two tablets to Resident 1. The two-tablet medication error contributed to an increase in one of its side effects- "sleepiness." Earlier, when Resident 1 was given one Vicodin tablet she was capable of being aroused and awakened four hours later. When she was given two Vicodin tablets at approximately 11:30 p.m., assuming staff did attempt unsuccessfully to arouse Resident 1 on three occasions thereafter throughout the night, staff chose not to inform the attending physician of the change, from 11:30 p.m. (arousal) to early morning (non-arousal), in condition Resident 1 had undergone. The admitted failure of staff to administer the correct medication dosage caused actual harm to Resident 1. Though the seven-hour delay from administering the incorrect dosage of medication to the jeopardy in which Resident 1 was put may not have been immediate; the medication error was none the less a contributing factor to her increased "sleepiness." Resident 1's inability to be aroused, after three attempts, if made, is a change from the 11:30 p.m. condition when she was aroused, awakened, and put to bed. Abbey's nursing staff chose not to report the difficult-to-be-aroused change in the resident's condition to her physician. This choice was a direct violation of Abbey's Physician Notification policy in effect at the time. AHCA also assigns a "scope" rating to an alleged deficiency. A scope can be "isolated," "patterned," or "widespread." Tag F-156 alleged and AHCA proved that Abbey's policy and procedures did not contain directives to staff regarding "when to" initiate CPR on a resident whose medical records reflect their election of "full-measure" when found by staff to be non-responsive. Through interviews with at least three other staff members and the testimony of two nurses, AHCA proved that five staff members did not know "when to" initiate CPR on non- responsive residents. Likewise, Abbey had not trained those five staff members on how to assess and identify situations such that they would know "when to" initiate CPR on non-responsive, "full-measure" residents. A lack of knowledge and a lack of staff training by the facility contributed to staff's failure to administer CPR to Resident 1 when she was discovered in a non- responsive condition. Abbey has the obligation and responsibility to educate and train its staff. Abbey's failure to educate and train its staff resulted in five staff members not knowing "when to" administer CPR to a non-responsive resident. Such lack of training is pervasive and widespread among staff. The scope of the negative effect of this lack of training includes every "full-measure" (NO DNR) resident found non-responsive. This lack of training poses a real and potential impact on every non-responsive, "full-measure" resident found in the facility. The omission of advance directives specifically including identification, assessment, and treatment of a "full-measure" resident in Abbey's policies and procedures is systemic.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Upholding the assignment of the Conditional licensure status for the period of October 8, 2002, through October 28, 2002, on Respondent's facility and imposing costs of $6,000 for costs associated with the six-month survey; Finding that Respondent failed to implement written policies and procedures regarding advanced directives addressing treatment of "full-measure" residents, in violation of 42 C.F.R. Section 483.10(b)(8), as alleged in Tag F-156 and imposing an administrative fine of $15,000 for non-compliance found in Count I of the Administrative Complaint; Finding that Respondent failed to implement written policies and procedures to prohibit neglect of residents in violation of 42 C.F.R. Section 483.13(c), as alleged in Tag F- 224, and imposing an administrative fine of $10,000 for non- compliance found in Count II of the Administrative Complaint; Finding that Respondent failed to provide or arrange services that meet professional standards of quality care in violation of 42 C.F.R. Section 483.20(k), as alleged in Tag F- 281 and imposing an administrative fine of $10,000 for non- compliance found in Count III of the Administrative Complaint; and Finding that Respondent failed to provide or arrange services that meet professional standards of quality care in violation of 42 C.F.R. Section 483.20(k), as alleged in Tag F- 281, and imposing an administrative fine of $2,500 for non- compliance found in Count VI of the Administrative Complaint, for a total of $43,500. DONE AND ENTERED this 25th day of February, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 25th day of February, 2004.
The Issue The issue presented herein is whether or not the Respondent's licenses as a registered and practical nurse should be revoked, suspended or otherwise disciplined based on allegations that she violated various provisions of Chapter 464, Florida Statutes, as more specifically set forth hereinafter, in detail, as alleged in the Amended Administrative Complaint filed herein.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. At all times material herein, Respondent was licensed as a registered and practical nurse having been issued license numbers 76324-2 and 28359-1 by the State of Florida. (Petitioner's Exhibit 1.) Between November 13, 1978 and October 1, 1979, Respondent was employed as a nurse at Broward General Medical Center. On October 1, 1979, Respondent's resignation was requested by Julia Trenker, Director of Nursing Services and Assistant Administrator of Nursing Services for Broward General Medical Center. The reason for the resignation request by Ms. Trenker was alleged discrepancies in the charting of narcotics performed by Respondent. The practical effect of the resignation request of Respondent was the same as a termination inasmuch as Respondent was given the option of either voluntarily resigning or being terminated. (Tr. pages 97, 190, 193 through 197.) By letter dated October 2, 1979, Ms. Trenker notified the Florida State Hoard of Nursing of Respondent's employment termination from Broward General Medical Center due to charting discrepancies. (Tr. page 193 and Petitioner's Exhibit 25(a).) On or about March 22, 1982, Respondent completed an application for employment as a registered nurse with Doctor's Hospital of Hollywood, Inc. On the employment application, Respondent listed her previous employment with Broward General Medical Center and gave as the reason for leaving the need for increased salary because she gave was head of her household. (Petitioner's Exhibit 19.) At no time prior to employment with Doctor's Hospital 2/ of Hollywood, Inc. did Respondent notify Doctor's Hospital of the true reasons for the severance of her employment relationship with Broward General Medical Center (charting discrepancies). (Petitioner's Exhibit 2 and Tr. page 132.) Respondent admitted to Lucille Markowitz, an investigator with the Petitioner and Maureen Lake, then the Assistant Director of Nursing for Doctor's Hospital of Hollywood, Inc., that she had been terminated from Broward General Medical Center because of her failure to chart. Respondent did not list that reason on her employment application because she considered that it would have been too hard for her to be considered for employment. (Tr. 41.) Respondent was employed as a registered nurse at Doctor's Hospital of Hollywood, Inc. from March, 1982 through October, 1982. While employed at Doctor's Hospital, Respondent worked in Unit 2 East. Patient care was provided in that Unit under the "team care concept." Each team consisted of a registered nurse, licensed practical nurse and an aide. The team leader was responsible for overseeing team members, administering medications, setting up IVs, and administering IV medications, performing charting for the aide that the LPN could not do, coordinating patient x-rays, operating room (OR) and doctor's orders, transcribing such orders, taking telephone orders and making "rounds" with physicians. (Tr. pages 153 to 154.) There were two nursing teams on Unit 2 East at Doctor's Hospital of Hollywood, Inc. and the patient census was, at maximum, 35. Patients on Unit 2 East were split evenly between the two teams. The team leader was responsible for the "hands-on care" of at most four patients. The remaining patients were assigned to the other team members and assignments were overseen by the team leader. (Tr. pages 149 through 153.) Medications for each team are kept in separate medication carts. Each cart contained patient drawers for each patient on that team. The medication cart contains a narcotic drawer which is locked with the keys for each narcotic drawer kept by the cart's team leader or the LPN for that team when the team leader was unavailable. The medication administration record (MAR) and a 24- hour narcotic control drug record (narcotics sheet) is placed on each cart. The policy at Doctor's Hospital with reference to the administration of medications was that medications would be administered to a team: s patient only from that team's medication cart. Patients were not to be cross-medicated from other carts. (See Petitioner's Exhibit 2) The Policy and Procedure Manual for Doctor's Hospital of Hollywood, Inc. states that "when a medication is given, it is to be charted." (Tr. page 185.) At Doctor's Hospital, it was the team leader's responsibility to remove all post-operative orders for patients returning to Unit 2 East from surgery and to fill out a new MAR for that patient. (Tr. page 293.) Charting must be performed in the administration of all narcotics. When a narcotic is withdrawn from the narcotic drawer, the withdrawal must be noted on the narcotics sheet. The narcotics sheet is an audit tool for pharmacy and reflects the withdrawal and addition of narcotics in the narcotic cart. Once a narcotic has been administered to a patient, the administration should be immediately charted on the MAR. Charting involves making a notation on the MAR of the time that the narcotic was given and placing one's signature (who administered the narcotic) in the appropriate space. The MAR is the most accurate record of the administration of medications and the MAR along with the Nurse's Notes, unlike the narcotics sheet, becomes a part of the patient's medical history. In practice, the Nurse's Notes are usually completed within one hour of the administration of the medication and is acceptable if performed prior to the completion of one's shift provided other charting is performed in a timely manner. On September 1, 1982, at approximately 12:10 p.m., patient Katherine Kerwin was returned to Unit 2 East after eye surgery. Respondent's team was responsible for Ms. Kerwin's care on September 1, 1982. Respondent, as team leader for Unit 2E, received Ms. Kerwin from surgery. (Petitioner's Exhibit 7.) Upon Ms. Kerwin's return from surgery, Respondent administered 35 milligrams of demerol intramuscular to Ms. Kerwin. Under the physician's order, Kerwin was to receive that dosage once every six (6) hours as needed for twenty-four (24) hours. Respondent noted the withdrawal of the demerol on the narcotics sheet at or before the time of administration to Ms. Kerwin. (Petitioner's Exhibits 4 and 7.) When Respondent withdrew demerol from the narcotics drawer, she withdrew a 50 milligram vial. Ms. Kerwin was to receive a 35 milligram dosage of demerol. Respondent therefore had to waste 15 milligrams of demerol which wastage was witnessed by Lonna Wlodarczyk, an LPN on Respondent's team. (Petitioner's Exhibit 4.) Although Wlodarczyk witnessed the wastage, she did not inquire and was not required to inquire as to the patient for whom the wastage was performed. At the time of administering demerol to Ms. Kerwin, Respondent did not chart the administration of medication on either the Nurse's Notes or the MAR. Respondent did not prepare an MAR upon Kerwin's return from surgery. Sometime after 1:00 p.m. on September 1, 1982, patient Kerwin requested pain medication from Wlodarczyk. Wlodarczyk asked Kerwin if she had received pain medication and she replied that she had not. Wlodarczyk checked patient Kerwin' s chart to see if any post-operative orders had been taken off and none had been removed. Wlodarczyk further checked the MAR and determined that there was not one for patient Kerwin. Wlodarczyk further checked the Nurse's Notes to see if patient Kerwin had received anything for pain prior to the time Wlodarczyk answered patient Kerwin's buzzer. There was no record in the Nurse's Notes that demerol had been administered to patient Kerwin upon her return from surgery. (Tr. pages 291-292.) After determining that there was no record of the administration of demerol to patient Kerwin on the Nurse's Notes or the MAR, Wlodarczyk drew up 35 milligrams of demerol from a 50 milligram vial. Jean Ellis witnessed the wastage of the excess demerol for patient Kerwin. Wlodarczyk noted the withdrawal on the narcotics sheet and had Ellis sign the narcotics sheet as a witness to the wastage of the excess. (Petitioner's Exhibit 4.) Wlodarczyk did not check the narcotics sheet to determine whether demerol had been withdrawn previously for patient Kerwin. (Tr. page 293.) Wlodarczyk prepared an MAR sheet for patient Kerwin by taking down the post-op orders and placed them on the MAR sheet. After administering the demerol to patient Kerwin, Wlodarczyk charted the administration of demerol on the MAR. When Wlodarczyk went to chart the administration of demerol to patient Kerwin on the Nurse's Notes, after having administered the demerol. Wlodarczyk noted that the Nurse's Notes indicated that an identical dosage of demerol had been previously administered by Respondent. The entry noting said administration by Respondent was not in the Nurse's Notes when Wlodarczyk originally checked them. The entry was made some time between the time Wlodarczyk originally checked the Nurse's Notes and the time that Wlodarczyk went to chart the administration of demerol and give it to patient Kerwin (approximately 1:30 p.m.). (Tr. page 292.) The double dosage of patient Kerwin resulted in an incident. An incident was reported by Wlodarczyk to Marsha Hogg, Supervisor. Supervisor Hogg prepared an Incident/Accident Investigation Report. Hogg counseled Respondent on proper procedures in making out MAR and charting the administration of medications immediately. (Petitioner's Exhibit 21 and Tr. pages 137-138, 362, and 366-368.) On or about September 4, 1982, Respondent administered 75 milligrams of demerol intramuscular to Elizabeth Dobson at 9:00 a.m. and at 2:50 p.m. (See Petitioner's Exhibits 8, 10 and 12.) On September 4, 1982, Respondent was team leader for Team 1, Unit 2 East. Elizabeth Dobson was a patient being cared for by Team 2, Unit 2 East. The team leader for Team 2 was Cecelia Falis. The procedures in effect at Doctors' Hospital during September, 1982 were that when administering medication to patients on another team, it was incumbent upon the staff person administering the medication to first determine whether a team mother for that patient was available to medicate the patient and thereafter if no such person was available to medicate the patient, the patient should be medicated from that team's cart. In administering demerol to Elizabeth Dobson, Respondent withdrew two 75 milligram vials of demerol from her own team's medication cart. Respondent did not withdraw the demerol from the Team 2 medication cart even though Team 2 was responsible for Ms. Dobson's care. (Petitioner's Exhibits 8 and 9.) Respondent did not immediately chart the 9:00 a.m. administration of demerol to patient Dobson on the MAR. When Falis checked the MAR later in the afternoon, the 9:00 a.m. entry was not on the MAR. Falis checked the MAR for patient Dobson at 7:30 and 9:00 a.m., 12:00 and 1:00 p.m., and immediately prior to the close of her shift, 3:00 p.m. (Tr. pages 324 and 332.) At a time uncertain, Respondent charted the 9:00 a.m. administration of demerol to patient Dobson on her Nurse's Notes. However, Respondent did not sign the entry for that administration. (Petitioner's Exhibit 12.) When Falis reported to the incoming 3 - 11 shift employees on September 4, 1982, she first discovered that Respondent had administered two (2) 75 milligram doses of demerol to patient Dobson. Falis looked on the MAR for patient Dobson and discovered that entries had been made documenting the administration of demerol to patient Dobson at both 9:00 a.m. and 2:50 p.m. Prior to the end of the shift, Falis was certain that Respondent had not charted the administration of demerol to patient Dobson on September 4, 1982. On or about September 4, 1982, Joyce Murphy, Administrative Nursing Supervisor for the 7 - 3 shift at Doctors' Hospital, conducted an audit of the charting performed by Respondent on September 4, 1982. After reviewing Respondent's charting with reference to patient Dobson, Supervisor Murphy asked Respondent to go back and complete her charting for patient Dobson. At that time, Respondent had not charted the 2:50 p.m. administration of demerol to patient Dobson on the Nurse's Notes. (Tr. pages 378 through 380 and 394.) Pursuant to Murphy's request, Respondent made a "late entry" under Nurse's Notes for patient Dobson, documenting the administration of 75 milligrams of demerol and 25 milligrams of vistaril. (Petitioner's Exhibit 12 and Tr. page 394.) On September 8, 1982 at approximately 8:30 a.m., Respondent administered a percocet tablet to Carmela DeLora, by mouth. Pursuant to the physician's order for patient DeLora, she was to receive one percocet tablet every six (6) hours by mouth, as needed. (Petitioner's Exhibit 15.) Respondent noted the withdrawal of one percocet tablet for patient DeLora on the narcotics sheet some time between 9:00 a.m. and 10:15 a.m. (Petitioner's Exhibit 13.) Respondent also did not immediately chart the administration of a percocet tablet to patient DeLora on September 8th on either the Nurse's Notes or the MAR. (Petitioner's Exhibits 15 and 16 and Tr. page 344.) On September 8, 1982, Crystal Reeves, an RN at Doctors' Hospital, was called to relieve Respondent during lunch for a period of approximately 30 minutes. Reeves and Respondent made a narcotics count and Reeves assumed responsibility for the narcotics keys. While Respondent was at lunch, Carmela DeLora requested pain medication from Reeves. Reeves checked the doctor's orders for DeLora. Reeves thereafter checked the Nurse's Notes and the MAR for DeLora. Reeves found nothing charted for patient DeLora since the night of September 7, 1982. (Tr. page 344.) At approximately 12:00 p.m. after checking both the Nurse's Notes and the MAR for patient DeLora, Reeves administered one tablet of percocet by mouth to DeLora. Reeves charted the withdrawal of the medication on the narcotics sheet and after administering the percocet tablet to DeLora, Reeves charted the administration of percocet on the MAR. (Tr. pages 344, 346 and Petitioner's Exhibits 13 and 15.) Reeves did not chart the administration of percocet on the Nurse's Notes because there was nothing charted on the Nurse's Notes for the entire morning and when serving in a relief capacity, Reeves, following the practice then in effect at Doctor's Hospital, merely filed an oral report with the nurse she relieved, Respondent. When Respondent returned to Unit 2 East on September 8, 1982, Reeves informed her that she had medicated DeLora with percocet. Respondent then advised Reeves that DeLora had been medicated earlier. (Tr. page 347.) Due to this medication error, Reeves completed an incident report at Doctor's Hospital of Hollywood, Inc. The incident report was submitted to Marsha Hogg who prepared an Incident/Accident Investigation Report. Hogg counseled Respondent about the importance of charting on the MAR. Hogg also reviewed procedures for properly administering and charting medications. Finally, Hogg gave Respondent a written warning notice. (Petitioner's Exhibits 22 and 23 and Tr. pages 347, 362- 363, and 369-370.) Respondent offered (to Hogg) no reason for her failure to timely chart the administration of medications on the MAR or Nurse's Notes. On or about September 24, 1982, patient Will LaBree was sent to X-Ray at Doctor's Hospital of Hollywood, Inc. with two name bracelets. Respondent was the team leader responsible for LaBree's total patient care. The responsibility for placement of identification bracelets is primarily a responsibility resting with the Admission's Office. Respondent's Position As to the failure to chart and the failure to timely chart allegations, Respondent contends that Unit 2 East of Doctor's Hospital where she served as team leader was usually at capacity and that in addition to the responsibility for caring for 4 of the 17 or 18 patients, she also had the duties of making rounds with physicians, providing IV therapies, starting IV's, transcription of physician's orders and ensuring that all the treatment plans and care for those patients were completed on her tour of duty. According to Respondent, waiting to chart the MAR was a frequent occurrence and was acceptable at Doctor's Hospital in September of 1982. Respondent admits that while failure to chart the administration of medications upon a patient's MAR was unacceptable, late charting on the MAR by a nurse before she left duty was acceptable. Further, Respondent testified that she faced constant interruptions while team leader at Unit 2E; that it was customary as a team leader to chart Nurse's Notes after making rounds with physicians; that generalized accusations and innuendos were leveled at her and that following such accusations, she generally felt emotionally upset. She testified that this, in fact, happened in the administration of the percocet to patient DeLora, resulting in a failure to chart the MAR. When relieved by nurse Reeves to have lunch, Respondent returned to find that she had not charted the administration of percocet to patient DeLora. As to the allegation respecting the discovery of two arm bracelets upon patient Will LaBree on September 24, 1982, a nurse other than Respondent admitted patient LaBree at 6:30 a.m. onto the floor of Unit 2E and it is herein specifically found that it was not the Respondent's responsibility for ensuring or otherwise making out the patient's name tag for the patient's bed or to make sure that it matched the bracelet on LaBree's arm. As to the Respondent's stated reasons on her employment application submitted to Doctor's Hospital for employment and the given reasons for leaving Broward General Hospital Center as "needed higher salary (head of household)," Respondent contends that she relied upon Investigator Markowitz's representation to her that such would be a satisfactory answer as to her reason for leaving Broward General Medical Center. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's licenses as a registered and practical nurse be suspended for a period of two (2) years. Respondent may apply for reinstatement at the end of one (1) year of said suspension if she submits the following to the Board of Nursing: a satisfactory in-depth psychological evaluation prepared by a qualified psychiatrist, psychologist or other qualified mental health counselor recommending or otherwise representing that Respondent is currently able to practice nursing with reasonable skill and safety to patients; verification of successful completion and documentation that Respondent has successfully completed a refresher course in basic nursing skills including the procedures for charting the administration of medications prior to reinstatement. The terms of the probation are as follows: Respondent shall not violate any federal or state laws or rules or orders of the Board of Nursing. Respondent agrees to submit to random blood or urine tests and shall cause results of analysis to be furnished to the Board if collected by an agent other than an authorized representative of the Department. At such time as the blood and/or urine sample is collected, it shall be Respondent's responsibility to provide pertinent information regarding her usage of prescribed or over-the- counter medication consumed. Additionally, Respondent shall provide documentation of valid prescriptions for any medication or controlled substances consumed for legitimate purposes. Respondent shall not consume, inject or otherwise self- medicate with any controlled substance or prescription drug which has not been prescribed by an duly licensed practitioner. Respondent shall obtain or continue to obtain counseling with a psychiatrist, psychologist or other mental health counselor and shall cause progress reports to be furnished to the Board or probation supervisor every three (3) months during treatment as scheduled by the probation supervisor. RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1984.
