The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is 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, which states that "[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." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which 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 has 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. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency”) regarding Certificate of Need (“CON”) Application No. 10202, which sought the establishment of a 100-bed acute care hospital in Broward County, District 10, that had been filed by East Florida Healthcare, LLC (“East Florida”), in the second batching cycle of 2013. The Agency preliminarily denied the application. On December 30, 2013, East Florida filed a petition for formal hearing contesting the denial, which was forwarded to the Division of Administrative Hearings (“DOAH”). In January 2014, the above-named intervenors filed motions to intervene, which were granted. On April 15, Filed April 22, 2014 4:57 PM Division of Administrative Hearings 2014, East Florida filed a notice of voluntary dismissal and the DOAH issued an order closing the file and relinquishing jurisdiction back to the Agency. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The denial of CON Application 10202 is upheld. ) ORDERED this 5@Any of pur . 2014, in Tallahassee, Florida. , Secretary Agency For Héalth Care Administration
Findings Of Fact On November 17, 1987, Petitioner was awarded CON 3746 to construct a 60-bed addition to its existing facility, Suwannee Health Care Center, in Live Oak, Florida. On July 14, 1988, Petitioner filed the application in the instant case. Petitioner proposes to transfer the 60 beds authorized by CON 3746 to Florida Land Trust Number Seven (the Land Trust). The Land Trust is the owner of a 60-bed nursing home in Live Oak, Florida, called Surrey Place Nursing Center of Live Oak (Surrey Place). Surrey Place is operated by Health Care Associates (HCA), which is owned by the beneficiaries of the Land Trust. The construction of Surrey Place was authorized by CON 3395 and Surrey Place opened in January, 1988. The application for CON 3395 was filed on July 16, 1984. Petitioner's proposal is for the 60 beds to be constructed as a 60-bed addition to Surrey Place. By letter dated August 11, 1988, HRS returned the application for expedited review of the transfer to Petitioner. The letter states that the proposal by Petitioner "is not merely a transfer of a CON, but rather an addition of beds to an existing facility which would change the scope and operation of the existing nursing home. Therefore, the addition of beds requires a full batched review." Petitioner's Exhibit 3. HRS did not review the application on its merits prior to issuing the August 11, 1988 letter. Suwannee Health Care Center and Surrey Place are both located in the same planning subdistrict and are located within one-half mile of each other. Transfer It is HRS's policy that a "transfer" occurs only when a new owner agrees to take over a project and implement it exactly as originally approved. Also, it is HRS's policy that the transferee should be the applicant for a transfer. In the past, however, HRS has accepted for review and approved transfers where the application was filed by the transferrer. Also, HRS in the past has approved transfers which involved more than just a mere change of ownership. These transfers resulted in the combination of the beds approved by the CON to be transferred with the beds approved by other CONs with the end result being the construction of a larger nursing home facility than was contemplated under either CON. Combination During the 1988 Session of the Florida Legislature, Health Quest Corporation (Health Quest) advocated to the Legislature that certain legislation amending Chapter 381, Florida Statutes, be enacted. Health Quest drafted the proposed legislation and lobbied for its enactment. Health Quest wanted the amendment because it had a CON for a 180-bed nursing home to be built in Sarasota County which it wanted to divide into a 120-bed freestanding facility and a 60-bed addition to an existing facility in Sarasota County. During the 1988 Legislative Session, HRS and Health Quest entered into an Agreement. The entire Agreement provides that: AGREEMENT This Agreement is made between Health Quest Corporation ("Health Quest") and the Department of Health and Rehabilitative Services ("HRS") this 31st day of May, 1988. RECITALS Health Quest holds CON No. 3278 ("the CON") authorizing a 180-bed nursing home in Sarasota County. Health Quest operates a 53-bed nursing home ("the Facility") adjacent to the Lake Pointe Woods retirement complex in Sarasota. On September 29, 1987, Health Quest filed with HRS an application seeking expedited review for its proposal to divide the CON into a 60-bed component and a 120-bed component. As set forth in the application, the 60-bed component is for an addition to the Facility and the 120-bed component is for a freestanding facility. Since on or before September 4, 1987, it has been the Department's position that such division or consolidation could be accomplished only through batched comparative review. Currently pending before the Division of Administrative Hearings ("DOAH") is a Section 120.57(1) petition filed by Health Quest contesting the refusal of HRS to review Health Quest's September 29, 1987 application as a project subject to expedited review. The Florida Legislature is considering the enactment of the Affordable Health Care Assurance Act of 1988 ("the Act"). The Act would amend Section 381.706(2), Florida Statutes, to add subsections (j) and (k), providing for expedited review of applications to divide a single approved facility or to consolidate two or more approved certificates of need into a single facility. The Act would also add Section 381.705(3) to limit the criteria for review of certain applications filed under Section 381.706(2)(j) or 381.706(2)(k) and would add Section 381.710(2)(d) providing for extension of the validity period of CONs for which applications under Section 381.706(2)(j) or 381.706(2)(k) are filed. Contingent upon passage of the Act, HRS and Health Quest wish to settle the DOAH proceeding and other litigation involving the September 29, 1987 application to divide CON 3278. TERMS HRS acknowledges that an applicant would be entitled, under the Act, to expedited review of applications not only to divide or consolidate CONs but to do both at the same time, e.g., divide 60 beds from CON 3278 and consolidate these beds into the existing beds at the Facility now operated by Health Quest. At such time as the Act becomes law and Health Quest files an application substantially similar to its September 29, 1987 application, HRS agrees that the validity period of CON 3278 shall, due to litigation involving the division and consolidation of CON 3278 commenced on February 17, 1988, be extended 168 days to January 17, 1989. This Agreement does not constitute a waiver on the part of Health Quest of any right to additional extension of the validity period after August 2, 1988 if the Department fails to approve the application on or before said date. Upon approval of the application, Health Quest shall dismiss the DOAH proceeding and the District Court of Appeals proceeding involving the division of CON 3278. The Agreement was signed by J. Robert Griffin, M.A., J.D., HRS's Deputy Assistant Secretary for Regulation and Health Facilities, and Charles M. Loeser, Health Quest's Vice President and General Counsel. The amendments referred to in the Agreement were enacted by the Legislature and are now codified in Sections 381.706(2)(j) and (k), 381.705(3) and 381.710(2)(d), Florida Statutes (1988 Supp.). On July 1, 1988, Health Quest submitted to HRS a second application for expedited review of its proposal to divide 60 beds from a 180-bed CON and add the 60 beds to an existing 53-bed facility which it owned. HRS reviewed the application using the review criteria set forth in Section 381.705(3), Florida Statutes (1988 Supp.), approved it, and issued CON 5655 on August 5, 1988. Notwithstanding the passage of the 1988 Amendments, the Agreement, and the issuance of CON 5655, HRS's interpretation of Section 381.706, Florida Statutes (1988 Supp.), is that the addition of beds to an existing facility requires full comparative batched review and, therefore, cannot be approved by expedited review. HRS interprets the provisions of Section 381.706(2)(j) as requiring that at least two CONs be in existence at the time of the proposed combination. In HRS's view two CONs can only exist if the two facilities approved by the CONs have not been built, since it is HRS's policy that a CON ceases to exist when a license is issued for the facility to begin operation. Review Criteria The proposed addition of 60 beds to Surrey Place is financially feasible. The Land Trust and its principals have the financial resources to complete the project and are capable of developing and managing the project. The Land Trust and its principals have previous experience successfully operating nursing homes in Florida and have a history of providing quality care. Surrey Place was built with the expectation that it would eventually consist of 120 beds. Except for the addition of the 60 beds, the scope and operation of Surrey Place will not change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order approving Petitioner's application. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE DIEZ-ARGUELLES 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 14th day of March, 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1.-10. Accepted. Some of these proposed findings of fact are subordinate to facts found. 11. Irrelevant. 12.-27. Accepted. Some of the proposed findings of fact are subordinate to facts found. 28.-30. Accepted, except to the extent they imply that the approval was for the addition of beds to an existing facility. 31-34. Rejected as irrelevant; what final action HRS would have taken is unknown. Irrelevant. True but irrelevant; HRS is free to change its policy if it can explicate it at hearing. 37.-39. Accepted. 40.-42. Accepted, except last sentence of 42 which is rejected. The Careage transfer was for an addition of beds to a facility not yet built. 43.-47. Rejected as irrelevant. 48-54. Accepted. 55.-59. Accepted. 60.-61. Accepted, but the policy manual describes HRS's past unwritten policy. 62. Rejected as argument. Rulings on HRS'S Proposed Findings of Fact Accepted. Accepted, but subordinate to facts found. Accepted. However, there is sufficient evidence to conclude that the Land Trust through its trustee and beneficiaries will be able to fund the project. Accepted. 5.-6. Accepted that this is HRS's policy and interpretation of the statutes. However, see Conclusions of Law. Accepted. Accepted that this is HRS's basis for its interpretation. However, in this case, the competitive environment is not changed. Rejected. The Department was directed to issue the CON because there was need in the area and not because of the uniqueness of the facility. First sentence accepted to the extent that Petitioner did not specifically mention Section 351.706 in its application. However, by the time of hearing the applicability of the statute was not in question and an issue in the case was whether the proposal met the language of the statute. Rest of paragraph accepted as HRS's policy. 11.-14. Accepted as HRS's policy. True, but irrelevant. Rejected as argument. Irrelevant, since no final action on the merits was taken. Accepted that this is HRS's policy, but see Conclusions of Law. Accepted that this is HRS's current policy. However, HRS has in the recent past accepted and approved transfer applications filed by the transferee. First two sentences accepted. Last sentence rejected; HRS knew enough to enter into the agreement and failed to present any evidence that what it knew then somehow changed. Accepted. Rejected as irrelevant and argument. Rejected as argument. COPIES FURNISHED: Boone, Boone, Klingbeil and Boone, P.A. Stephen K. Boone, Esquire 1001 Avenida del Circle Venice, Florida 34284 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing home sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Petitioner, Glen Oaks, is a licensed nursing facility located in Clearwater Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On February 2 and 3, 1998, the Agency conducted a complaint investigation at Glen Oaks in a matter unrelated to the issue that is the subject of this proceeding. As a result of that investigation, the Agency determined that the allegations in the underlying complaint were unfounded. While the Agency surveyor was at Glen Oaks investigating the complaint, she also performed a focused review at the facility. The focused review involved a matter unrelated to the complaint and came to the Agency surveyor's attention while she was touring the facility. During a tour of the facility, Claire R. Hoagland, R.N., the Agency surveyor, accompanied by Marlice Nix, R.N., an employee of Glen Oaks, entered the room of Resident No. 8. Once they were in the room, the resident complained to her primary care charge nurse, Marlice Nix, of soreness in the buttocks area. The charge nurse and the Agency surveyor, with the permission of the residence, looked at and noted redness on the resident's buttocks. This redness appeared to be excoriation associated with incontinence, rather than with any stages of pressure sores. In addition to the redness on the resident's buttocks, the surveyor and Ms. Nix identified an 0.5 centimeter linear shaped open area, equivalent in size to a pinpoint, measuring 0.1 centimeter in width with a zero depth located in the Resident No. 8's gluteal fold. Surveyor Hoagland believed that the red pinpoint size area on Resident No. 8 was a Stage II pressure sore. Upon review of the clinical record of Resident No. 8, Ms. Hoagland found no documentation that the facility had assessed the skin integrity of Resident No. 8 since December 20, 1997. Ms. Hoagland then spoke to the facility's administrator and its Director of Nursing. According to the administrator and Director of Nursing, the facility performed skin assessments on Resident No. 8, but had not documented all of the assessments. However, at the time of the Agency's visit to Glen Oaks, Resident No. 8's most recent annual "Minimum Data Set" (MDS), dated June 1997, documented the absence of any pressure sores. An MDS is a comprehensive assessment tool. During the April 1998, complaint investigation, the Agency surveyor learned that there were times when Resident No. 8 refused to be changed. For example, occasionally, when Resident No. 8 was watching her favorite television show, she asked not to be disturbed. The surveyor viewed this as "non-compliance" by Resident No. 8 and cited the facility because the resident's care plan did not specifically provide that staff would turn, re-position, or change the resident when her favorite television program was not on. Following the complaint investigation, the Agency cited Glen Oaks with an alleged failure to comply with the Omnibus Budget Reconciliation Act of 1987 (OBRA) regulatory requirements set forth at 42 C.F.R., Section 483.25 (c)(1). This requirement is also referred to on the Form 2567 as Federal Tag F-314 (the deficiency). According to that OBRA provision, the facility must ensure: (1) that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and (2) that a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. The Agency alleged that Glen Oaks failed to comply with the above-cited OBRA provision in that (1) the facility did not document and/or perform weekly skin assessments on Resident No. 8, and that (2) Resident No. 8's care plan did not address her non-compliant behavior. Based on the facility's alleged deficiencies, it was the Agency's position that Resident No. 8 had developed a pressure sore that was avoidable. During the exit interview, the Agency Surveyor informed Glen Oaks that the deficiency would be classified as a Class III deficiency and would not affect Glen Oaks' superior licensure status. However, the Agency notified Glen Oaks on February 13, 1998, through the telephone call of its employee, Pat Silar, that its deficiency classification would be changed from a Class III to a Class II, resulting in a conditional rating for its nursing home license. By letter dated February 16, 1998, the Agency issued a Form 2567 setting forth the alleged deficiency; the findings supporting the deficiency; assessing the scope and severity of the deficiency at G; and classifying the deficiency as a Class II deficiency. In making her determination, Surveyor Hoagland used the surveyors' guidelines contained in the State Operating Manual (SOM). Appendix P of the SOM, entitled "Guidance to Surveyors," is the federal interpretative guideline to state surveyors regarding the OBRA regulations. Moreover, Surveyor Hoagland relied on the interpretive guidelines of F-314, including the booklet, Pressure Ulcers in Adults: Prediction and Prevention. There are two components to determining whether the development of an open area constitutes non-compliance with the OBRA requirement. First, the open area must, in fact, be a pressure sore. Second, if a pressure sore exists, the Agency must next determine if the development of the pressure sore was unavoidable. The SOM guideline corresponding to the OBRA Requirement governing pressure sores defines a pressure sore as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer." The SOM defines a Stage II pressure ulcer or sore as "a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister, or shallow crater." Based on the definition in the SOM, a pressure sore is located over a bony prominence where the area would be subject to pressure. The pinpoint-size open area on Resident No. 8 was not located over a bony prominence, but rather in the gluteal fold. Also, the area was not the deep, dark, dusty red, with a purple center, that is associated with a Stage I or II pressure sore. Moreover, a Stage II pressure sore does not typically resolve in ten days as was the case with the area in Resident No. 8's gluteal fold. Due to the factors noted in paragraph 16 above, it is found that the pinpoint-size open area in Resident No. 8's gluteal fold was not a pressure sore. Even if it is assumed that the mark was a pressure sore, the Agency must next determine whether the pressure sore was unavoidable. In assessing whether a pressure sore was unavoidable, surveyors are to apply the "probes" set forth in the SOM. These probes are: Did the facility identify the resident as being at risk for pressure sores? Did the facility provide aggressive/appropriate preventative measures and care specific to addressing the resident's unique factors (e.g., if serum albumin is below 3.4 mg per dl, provide additional protein in daily snacks)? Was the preventative care plan implemented consistently? In the instant case, the answer to the first "probe" is yes. Resident No. 8 was admitted to Glen Oaks on March 4, 1994. At the time of admission, the resident had a Stage IV pressure sore which had healed by January, 1995, without surgical intervention. However, due to her medical history, Resident No. 8 was identified on the Resident Assessment Protocol as being at risk for the development of pressure sores. Because Resident No. 8 was identified as being at risk for developing pressure sores, the second "probe" requires that the Agency determine whether the facility provided aggressive appropriate preventative measures and care to the resident. Routine preventative care is defined by the SOM as turning and proper positioning; application of pressure reduction or relief devices; providing good skin care (i.e., keeping the skin clean, instituting measures to reduce excessive moisture); providing clean and dry bed linens; and maintaining adequate nutrition and hydration if possible. Resident No. 8's care plans dated June 1997, September 1997, and December 1997, were based on a comprehensive assessment of the resident; addressed the potential for alterations in skin integrity; and, provided for appropriate aggressive preventative measures and care. These preventative measures and care included turning and re-positioning at least every two hours; providing pressure relief mattress in both the Resident's bed and wheelchair; application of good skin care, including application of Vaseline care cream as a moisture barrier; and maintaining adequate nutrition and hydration, including the addition of the protein supplement Promod, and daily supplemental protein snacks and vitamins. These preventative skin care measures were also consistently implemented and effected the expedient healing of Resident No. 8's Stage IV pressure sore, present upon her admission to Glen Oaks in 1994. Furthermore, the consistent implementation of the prescribed preventative skin care measures prevented the development of any pressure sores for the period between January 1995 and February 1998, inclusive. The third probe requires a determination of whether the preventative care plan was implemented consistently. Here, Glen Oaks consistently implemented the preventative care plan measures listed in Resident No. 8's care plan. Thus, the third probe is answered in the affirmative. In the instant case, each of the inquiries or probes listed in paragraph 18 above is answered in the affirmative. Glen Oaks identified Resident No. 8 as being at risk for pressure sores; provided aggressive/appropriate preventative measures and care specific to address the residents unique risk factors; and, implemented the preventative care plan consistently. Accordingly, the development of the pinpoint-size open area in Resident No. 8's gluteal fold was unavoidable. Neither the applicable OBRA regulations governing pressure sores nor the SOM interpretative guidelines require weekly skin assessments for residents at risk for developing pressure sores. Thus, the failure to document all skin assessments does not constitute non-compliance with the OBRA requirements. Notwithstanding the Agency's findings to the contrary, Glen Oaks consistently implemented the care plan developed for Resident No. 8. However, Resident No. 8's care plan did not require a weekly skin assessment. Rather, the care plan required only that the Resident's skin be assessed for changes and that any changes be reported to the charge nurse/physician. Skin assessments were performed on Resident No. 8 more frequently than weekly. They were performed on Resident No. 8 several times a day during brief changes and twice a week during whirlpool baths performed by Charge Nurse Nix. However, because Resident No. 8's care plan did not so require, the benign assessments were not routinely documented. Typically, only changes or abnormal findings in a Resident's skin condition were documented in the resident's clinical records. Although the benign findings relative to skin assessments were not routinely recorded, the January 1998 Monthly Nursing Assessment for Resident No. 8 documented that the skin was intact; however, that report also noted the red area on the buttocks referred to in paragraph 4 above. On the other hand, two health care providers, charged with caring for Resident No. 8, observed no abnormal findings with regard to the resident's skin on January 30 and February 1, 1998. In the latter instances, the nursing staff did not record their findings that Resident No. 8's skin was intact. The Agency acknowledged that if skin assessments were performed on Resident No. 8 every day, there was no problem with the care provided. A care plan should address compliance only when a resident's non-compliance is frequent and becomes a habitual problem. Resident No. 8's non-compliance was not a habitual problem, and did not occur on a daily basis. Rather, Resident No. 8 was only "occasionally" non-compliant with regard to brief changes, turning and repositioning. In most cases, Resident No. 8's non-compliance required only that the charge nurse or Director of Nursing speak with the patient before the resident would comply. Occasionally, when Resident No. 8 was watching television, she refused to comply with the turning and re-positioning schedule and requested that the nursing staff come back when the television program was over. In these situations, the nurse complied with the resident's request, but would return soon thereafter to turn and re-position the resident. Resident No. 8's conduct cannot be deemed to be non- compliant and, therefore, there was no need to have the issue of non-compliance addressed in Resident 8's care plan.
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 rescinding the conditional rating. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1998. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Rebekah N. Plowman, Esquire Long, Aldridge and Norman, LLP 303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Respondent, Randall B. Whitney, is a licensed medical doctor having been issued license number ME 000 8859 by petitioner, Department of Professional Regulation, Board of Medical Examiners. He presently resides in Port Orange, Florida and operates a family planning center in Daytona Beach. Respondent is a 1959 graduate of Tulane University Medical College. After interning at a Jacksonville hospital, he served three years in the U.S. Air Force as a flight medical officer and flight surgeon. He then took a two- year general residency in California. He began private practice in Mount Dora, Florida in 1965, the same year he received his license to practice in Florida. Although he was once board certified in family practice, he is not presently board certified in any specialty. He is not a member of the Florida or American Medical Associations and he does not hold privileges on the staff of any hospital. Prior to the initiation of this proceeding he did apply for emergency room privileges at a hospital in Daytona Beach but his application was denied. Therefore, he cannot admit patients to hospitals. When the events herein occurred, respondent had a financial interest in and was medical advisor to the Childbirth Center (CBC) in Daytona Beach. He also provided medical services on a contract basis to the Woman's Health Center (WHC) in Orlando and Holly Hill and the Aware Woman Clinic, Inc. (AWC) in Cocoa Beach. All four are birthing centers where women receive care and treatment during pregnancy and where the actual labor and delivery occur. Additionally, the facilities provide annual check-ups, IUD services, abortions, and advice for birth control. He divided his time between the four clinics, visiting each place one day of the week except the Orlando clinic, which he visited two days per week. In the spring of 1981, respondent became acquainted with one Eric Niederschmidt, an enlisted man stationed at Patrick Air Force Base who also worked weekends or nights at Aware Woman Clinic as an "assistant". Eric complained of pain in his knee from an internal knee derangement caused by stress and requested a pain medication to ease the pain. Whitney wrote several prescriptions for percocet between March and September, 1981. He also permitted Eric on several occasions to fill out the prescription pad, then bring it to him for review, and then sign the prescription. The evidence is conflicting as to whether respondent kept pre-signed blank prescription forms at the Aware Woman Clinic, which were later used by Niederschmidt to obtain drugs. Although respondent admitted he pre-signed such forms to a Department investigator during an interview in November, 1981, he denied he did so during the final hearing, and it is found the greater weight of credible evidence supports a finding that he did not. The CBC is not equipped to handle emergency situations or to care for "high-risk" pregnancies. Instead, it is designed to handle the routine low-risk pregnancy which has no complications. Indeed, the CBC has no internal monitoring devices, x-ray equipment or cesarean section devices, all of which are needed when complications in preqnancy set in. Its medical equipment consisted primarily of nitrous oxide and oxygen in large H-cylinder tanks with a nasal applicator mask, a fetal Doptone monitor to monitor for fetal heart tones, an Isolette to provide a controlled environment for babies distressed prior to transfer, outlet forceps, intracoths, emergency suction apparatus and the like. A supply of various kinds of medicine, including adrenalyn, ephedrine and pitocin were kept on hand. In 1979, one Joyce Ann Geeson became a patient of respondent at CBC. She was cared and treated for during her pregnancy in the months of June through a part of December, 1979. Around 3:30 a.m. on Saturday, December 8, 1979, Geeson awoke with ruptured membranes. She did not begin labor until almost 22 hours later. After labor pains commenced that night and early Sunday morning, Geeson reported to the CBC at noon on Sunday. After 38 hours of labor with little progress, Whitney ordered that pitocin be administered to Geeson. That drug serves to stimulate contractions of the uterus. However, this drug should only be used in a hospital setting since it can cause a tetanic contraction of the uterus and cut off the blood supply to the baby. It can also cause a rupture of the uterus. Therefore, it was inappropriate for Whitney to use pitocin in his facility. This is confirmed by instructions in the Physicians Desk Reference, 1979 edition, as to the use of the drug as well as uncontradicted expert testimony presented by petitioner. In Geeson's case the pitocin was continued for some 18 hours until a decision was made to transfer the patient to a hospital after the patient had made very little progress. Geeson was finally admitted to the emergency room at Halifax General Hospital around 11:10 p.m. on December 10, 1979. Whitney accompanied her to the hospital. When Geeson's temperature rose to 102.3 around 6:00 a.m. on December 11, she was immediately sent to the operating room where a C-section was performed. An examination of Geeson indicated her membranes had been ruptured for approximately 68 hours prior to admission to the hospital, that the patient had given signs of such a rupture by the excretion of a green tinged fluid (meconium), and that Geeson had stopped progress in delivering the baby some 24 hours prior to the hospital admission. Whitney's failure to recognize and properly handle premature rupture of the membranes, to promptly repond to meconium staining (which is a sign of possible fetal distress), and the use of pitocin in a non-hospitaL setting were deviations from the level of care, skill and treatment that would be recognized by a reasonably similar prudent physician as being acceptable under similar conditions and circumstances. Sandra Vigue was a 33 year old patient of the CBC in the fall of 1979. She first visited the clinic in her third trimester in September, 1979. Vigue told CBC personnel that her last menstrual period was mid-December, 1978 which would have indicated an expected date of confinement (EDC) of mid or late September, 1979. The clinic initially noted her EDC as being late September or early October. A nurse later noted in the records that on September 19 the patient was approximately 35 weeks gestation, or 5 weeks before the due date. When the baby had not come after weekly visits to the clinic in October, a nurse simply placed a question mark next to Vigue's EDC. By this time (42 weeks), according to expert medical testimony the fetus comes at high risk because of post-maturity syndrome. On October 21, 1979, Vigue began labor around 7:00 p.m. Around 8:30 p.m. a nurse noted the presence of a greenish substance being discharged in the vaginal area while performing an examination at Vigue's home. She noted in the patient records that it had the appearance of meconium. The nurse immediately telephoned respondent to report this finding. After a discussion, Whitney discounted the fluid as being cervical and not meconium. Meconium is, of course, an indication of fetal distress and that a membrane has prematurely ruptured. This in turn leads to a high-risk situation in terms of the delivery of the baby. Vigue remained at her home overnight and had no apparent progress in contractions. At approximately 1:00 p.m. the next day (October 22) Whitney requested she come to the clinic. She did so and was evaluated by him at 4:00 p.m. Whitney noted the passing of copious malodorous meconium and asked "why" in the charts. He then sent her to a local hospital where she was admitted at 7:50 p.m. the same day. Upon examination by hospital personnel, they noted premature rupture of the membranes and a discharge of meconium. Before further tests could be run, Vigue's condition deteriorated and she was given an emergency cesarean section. A stillborn infant was delivered. Respondent performed no post-maturity syndrome tests on Vigue that are normally given when a woman reaches an age of 42 weeks pregnancy. These tests are essential since a baby at that age may be under stress from lack of nutrients and oxygen. In this regard, he failed to conform to prevailing community standards for physicians. Vigue was apparently quite firm in not wanting her baby delivered in a hospital setting. However, a physician should advise the patient when high risks set in of the potential danger in not doing so, and if the patient refuses, document his records accordingly. Here, Vigue apparently held off until the last possible moment, but Whitney did not adequately document his records to show that he advised her of the potential dangers. Again, he failed to meet acceptable standards of skill, care and treatment that would be recognized by a reasonably similar prudent physician as being acceptable under similar conditions and circumstances. But since this was not a charge within the complaint, it is irrelevant. Finally, Whitney was negligent in the same respect by failing to recognize the meconium staining that occurred on October 21 and asking the patient for a history of rupture of membranes. In July, 1979, Lida Papa became a patient of CBC. Her estimated date of delivery had been established by CBC personnel as December 11, 1979. Papa suffered a ruptured membrane at 3:00 a.m. on December 22, 1979 or three full days prior to being admitted to a hospital. Her labor commenced on December 23. Because of slow progress, Whitney began administering pitocin to Papa around 7:25 p.m. on December 23 at a rate of 8 drops per minute, or a rate of 2 to 3 times that used initially in a hospital setting. The administering of the drug continued in larger dosages until the afternoon of December 24 when he allowed her to rest. It was restarted at 9:30 p.m. that evening and continued until 11:30 p.m. At the same time, the patient records of Papa reflect signs that the baby may have been in distress. She was also given ampicillin, presumably to counteract chills and fever being experienced around 1:30 a.m. on December 25. When her temperature reached 101 degrees Papa was sent to Halifax Memorial Medical Center, a Daytona Beach hospital. It was noted there that Papa had been at 9 or 10 centimeters dilation for some 18 to 19 hours prior to being transported to the hosptial. This is equivalent to complete dilation, and babies are normally delivered within two hours after complete or near complete dilation. Prudent medical care would have dictated that Whitney transfer Papa to the hospital no later than 24 hours after the membranes were ruptured if delivery had not occurred or was not imminent. This would have required admission to the hospital on December 23 rather than December 25. Whitney was also negligent in using pitocin in a non-hospital setting, and in dosages higher than is normally used. But this conduct was not described within the complaint and accordingly is irrelevant. Whitney failed to recognize that the patient was at high risk in a non-hospital setting because of the use of pitocin and the prolonged rupture of the membranes. In these respects, he deviated from the level of care, skill and treatment that would be recognized by a reasonably similar prudent physician as being acceptable under similar conditions and circumstances. Whitney was employed by the Women's Health Center, Inc. (WHC) in Orlando, Florida on a contract basis in 1978. He generally visited the Center either on Tuesday and Thursdays of each week, or Thursday only, depending on his schedule at other clinics. Whitney did not represent himself to the Center as being a urologist although he routinely performed vasectomy procedures. Daniel Hallman wished to have a vasectomy performed, and after searching through the Yellow Pages, selected the WHC. He talked by telephone with an unidentified lady at the Center and asked if the physician who would perform the vasectomy was a "licensed urologist." He was assured that Whitney was. Hallman then made an appointment to have the procedure performed on Thursday, November 16, 1978. On that afternoon, he visited the Center where he first saw a film on vasectomies which briefly touched on complications, procedures and care of patients. He had some preliminary work performed by a nurse and then met with Whitney. He was never advised by Whitney of the risks associated with the operation or complications that could result from the procedure. Whitney testified that although he normally counseled patients, he thought Hallman had "waived counseling in effect" because he was intelligent and seemed to be well-read on the subject. Whitney was not asked nor did he represent to Hallman that he was a "licensed urologist." After the procedure was performed, Whitney told Hallman he could not ride a bicycle to work for awhile and to avoid intercourse for several days. He did not tell him that swelling, bleeding and fever could occur. Hallman left, went home, slept and then awoke later that night with pain, swelling and bleeding. He called the Center and a nurse advised him to apply ice to stop the bleeding. He did so and went back to sleep. Later on, he awoke in extreme pain and noticed his scrotum had swollen to the size of a grapefruit. He again called the clinic asking for Whitney but was told Whitney lived in Cocoa Beach and was unavailable. The nurse told him to keep applying ice and he would be okay. When Hallman called a third time on Friday morning, the clinic then contacted Whitney who returned Hallman's call later that morning. Whitney told him he could see him if Hallman would drive to Cocoa. Whitney did not recommend he see another physician since he had no "back-up" in the area. Whitney advised Hallman to continue to apply ice and to see him when he visited the Center the following Tuesday. The following Tuesday, the two met and Whitney prescribed a pain killer (darvon), clipped a stitch and squeezed some dry blood out of the area. He noted it was the worst case of swelling he had ever seen. He also advised Hallman to take warm baths. The two never met again. When the pain killer became ineffective, Hallman contacted a urologist the following Saturday who treated him at the emergency room of an Orlando hospital. The physician found Hallman to have a low-grade fever and prescribed an antibiotic and pain killer. When the procedure was performed, Whitney had no local hospital privileges or a "back-up" physician to handle emergencies. Whitney testified he had no post-operative information to give to Hallman to read. He attributed the problem to a "nicked" varicose vein and stated that he has performed approximately 1,000 such operations routinely since 1965 without a patient ever being hospitalized. Had he considered there to be a danger of infection, he would have referred Hallman to an emergency room. Because Whitney had no back-up physician for Hallman to see should post-operative complications have arisen, he failed to meet the standard of care practiced by similarly prudent physicians in the community. The administrative complaint does not allege, and indeed there is no evidence, that the procedure was improperly performed. Respondent has safely delivered at least 1,000 babies during his medical career. He believed that Vigue, Papa and Geeson were carefully monitored and treated, and were timely transported to the hospital once their risk factors had escalated. In the case of Hallman, Whitney stated he would have seen the patient had he realized an emergency existed, and admitted him to an emergency room if necessary. He justified the use of pitocin on the grounds it was safely administered and the Physicians Desk Reference is not binding on physicians in all cases. Whitney no longer performs childbirths and is not associated with any of the clinics in question. Instead, he now confines his practice exclusively to family planning.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 458.331(t), Florida Statutes, on four occasions as more specifically set out above, and that his medical license be suspended for thirty days, a $2,500 administrative fine imposed, and that he be restricted from performing childbirths except in a hospital setting. All other charges should be dismissed. DONE and entered this 20th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of April, 1984. COPIES FURNISHED: Douglas P. Jones, Esquire John M. Bringardner, Esquire P.O. Box 2174 Tallahassee, Florida 32316 Jack R. Leonard, Esquire 800 North Highland Avenue Suite 202 Orlando, Florida 32803 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Did Golden Shores fail to provide adequate and appropriate nursing care for Mrs. Lindablad because maggots were found in a wound on her right hip and in the wall of her vagina between October 22, 1979 and October 24, 1979? Did Golden Shores violate the terms of either Chapter 400, Part I, Florida Statutes, or Section 10D-29, Florida Administrative Code, by refusing to allow inspection of its facility by an OLC inspection team on January 25, 1980?
Findings Of Fact The Golden Shores Convalescent Center, Inc. is a nursing home facility in Tampa, Florida. Ms. Patricia Gilbert is its Administrator. The Office of Licensure and Certification (OLC) of HRS is responsible for the investigation of complaints about the operation of nursing facilities, such as Golden Shores, which are licensed by HRS. Prior to the OLC investigation in issue the Office had received an anonymous complaint about housekeeping, urine odors, dietary preparation, and staffing at Golden Shores. The Office had also received a complaint from the Chairman of the Ombudsman Committee alleging that portions of the nurses call system were not functioning. As the result of these complaints, Mr. Joel Montgomery, an HRS hospital consultant, Mrs. Dorothy Brown, a public health nurse, and Mrs. Emily Echols, a nutrition consultant, arrived unannounced at Golden Shores on January 25, 1980, at 9:00 A.M. to conduct a complaint survey of the facility. Two days prior to this visit the Tampa Tribune newspaper published a story, described by its author as "sensational", on the occurrence of maggots in a Golden Shores patient. The Golden Shores staff was very agitated about the bad publicity in the article. They felt betrayed by HRS whom they assumed to be the source of the story.3/ It was under these circumstances that the Administrator of Golden Shores, Mrs. Gilbert, refused to allow the inspection team to tour the facility. When the OLC team arrived, Mrs. Gilbert placed a call to the facility's counsel and then informed her staff that the team was there for an inspection but she was seeking legal advice. After her conference with counsel she decided to refuse the team access that morning. She did not want to allow an inspection of the facility without counsel present. She was especially concerned that her staff would comment on the maggot case which she intended to later litigate with HRS.4/ While Mrs. Gilbert courteously offered to allow an inspection of the facility in the afternoon of January 25, 1980, that opportunity conflicted with the schedule of Mr. Montgomery, the inspection team leader. A later inspection was subsequently arranged between the parties. It was satisfactorily conducted on January 31, 1980. In the interim between January 25, 1980 and January 30, 1980, HRS placed a moratorium on new admissions into Golden Shores. This was lifted when Golden Shores agreed to a second inspection. During this inspection it was discovered that except for the nurses call system problem the complaints were unfounded. While the allegations of the anonymous complaint proved to be untrue, the facts alleged in the complaint were directly related to the proper care and health of Golden Shores' patients. On August 28, 1979, Mrs. Alice Lindablad was admitted to Golden Shores from Lykes Memorial Hospital in Brooksville, Florida for long term care. Mrs. Lindablad was in poor physical condition. She had been diagnosed as having arteriosclerotic heart disease, congestive heart failure, and multiple infected decubiti ulcers (bed sores). The ulcers which were present on the patient's legs, feet and hips contained necrotic (dead) tissues and oozed a green fluid. The skin around the ulcers was black. The patient also had a vascular insufficiency which caused her left foot to develop gangrene. The foot became necrotic, foul smelling, and turned black. Dr. Perez was Mrs. Lindablad's attending physician. Because of the condition of her left foot, he transferred the patient on October 5, 1979, to St. Joseph's Hospital for a surgical evaluation. She was determined to be a poor surgery risk and therefore nothing was done toward amputating her left foot. She was returned to Golden Shores and remained there until her death on October 31, 1979. During her care at Golden Shores, Dr. Perez prescribed the following treatment for the decubitus ulcers: wet to dry dressings over the ulcers, q-4 hours 5/; mechanical debridement of the wounds; and the administration of antibiotics. After her return to Golden Shores, Mrs. Lindablad slowly deteriorated. The ulcers remained infected. She became lethargic and exhibited the symptoms of possible septicemia (a local infection spreading throughout the blood stream). The most serious ulcer which was on her right hip was so deep that the bone could be seen. By October 19, 1979, her left foot was completely black. During the 3:00 to 11:00 P.M. nursing shift on October 22, 1979, a nurses aide, Ms. Lorine Rowland and Ms. Dorothy Poore, the evening charge nurse, entered Mrs. Lindablad's room to change her dressings. Because more 4x4 dressings were needed, Ms. Poore left to obtain them. At the same time, as Ms. Rowland removed the dressing on the patient's right hip, she saw maggots in the sore. Ms. Rowland put the bandage back on and told what she saw to Ms. Poore who immediately called Dr. Perez. He responded to the message left with his answering service within five to seven minutes. After Ms. Poore told him what she had seen, he said "good, we'll just cover that with a dry dressing and make sure it is well taped down". The maggots continued to be present in the patient's right hip ulcer until around 9:00 A.M. on October 24, 1979. At that time Ms. Brunjes, director of nursing services, examined the patient and found no evidence of maggots either on the patient's body or in her bed linen. Prior to Ms. Brunjes' examination maggots had been noted by Ms. Suzanne Davis, LPN, on the October 23, 1979, 11:00 P.M. to October 24, 1979, 7:00 A.M. shift in Ms. Lindablad's labia and her vagina. The maggots' presence on Ms. Lindablad was a fortuitous occurrence. They were not purposely applied by either the nurses or by Dr. Perez. But once there, Dr. Perez decided to take advantage of their ability to debride necrotic tissue without damaging live tissue. Maggots are the larva of the common house fly. The presence of maggots indicates that at sometime while she was at Golden Shores a female fly must have landed on Mrs. Lindablad and laid eggs in her right hip ulcer. Flies are attracted to necrotic tissue as a place for them to lay eggs. Because of her numerous sores and rotting left gangrenous leg, Mrs. Lindablad was very attractive to flies. Before the advent of modern antibiotics sterile maggots were used by the medical profession to debride wounds of dead tissue. While this practice is no longer common today, the medical community is still familiar with the use of maggots and their use is not necessarily poor health care. There was a calculated risk in allowing the maggots to remain in the patient here because they had not been raised in a sterile environment and they could spread unknown bacteria. It is not below community medical standards for Dr. Perez to have allowed the continued presence of maggots in Mrs. Lindablad's right hip ulcer and it is not poor health care for Golden Shores to have followed his orders to leave the maggots undisturbed. There is no evidence that near the time of the occurrence of maggots on Mrs. Lindablad Golden Shores had a prevalence of flies in the patient care area, or in any other part of the facility. An occasional fly has however been observed in the wards. No flies were ever observed in Mrs. Lindablad's room. The record here is barren of any showing that Golden Shores either took extraordinary measures to prevent the occurrence of flies or that Golden Shores was careless about insect control. Subsequent to the appearance of the maggots in Mrs. Lindablad's hip decubitus, they were noted around her vagina and in her bed linen. Maggots are attracted to the warm damp mucoid areas of the human body. Dr. Perez on being notified of the maggots initial appearance had ordered a dry dressing over the maggots to be well taped down. It is a reasonable inference that this taping was to prevent the possible migration of the maggots. Again there is no showing that the staff at Golden Shores were either extraordinarily careful about taking measures to prevent the migration of the maggots on Mrs. Lindablad or that they were careless in not preventing the maggots migration. Once the maggots were discovered on the edge of the patient's labia and her vagina, they were washed away by Ms. Davis with a sterile solution and disposed of. The linen on the patient's bed was immediately changed. It is possible that the tape which held the dry dressing on Mrs. Lindablad's right hip became loose from the many times her body had to be turned. A paper tape, rather than ordinary adhesive tape, was used to secure the patient's dressings because her delicate skin could have been harmed by ordinary tape. Mrs. Lindablad's death on October 31, 1979, was not in any way related to the occurance of maggots on her body or in her bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED: That an administrative fine in the amount of $300.00 be imposed on Golden Shores Convalescent Center in Case No. 80-341. It is further RECOMMENDED that the complaint in Case No. 80-342 be dismissed. DONE and RECOMMENDED this 10th day of April, 1981, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 10th day of April, 1981.
