The Issue The issue is whether Respondent should exempt Petitioner from disqualification for employment in a health care facility pursuant to Section 435.07, Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a health care facility pursuant to Sections 435.06 and 436.07. Petitioner seeks the exemption to work in a nursing home. A nursing home is a health care facility for which Respondent is the licensing agency within the meaning of Section 435.02(3). Respondent is the agency responsible for conducting background screenings for employees of health care facilities. The evidence submitted by Respondent shows that Petitioner entered a plea of nolo contendere to an offense specified in Section 435.04. On February 15, 1999, Petitioner pled nolo contendere to a charge of possession of cocaine in violation of Section 893.13(6)(A). Possession of cocaine is a third degree felony and a disqualifying offense within the meaning of Section 435.04(2)(mm). The Circuit Court in Seminole County, Florida withheld adjudication of guilt. Petitioner failed to submit any evidence or law showing that he satisfies the requirements for an exemption in Section 435.07. Petitioner failed to cite any legal authority for waiving the three-year waiting requirement in Section 435.07(1)(a) and (2). Petitioner failed to show that he otherwise satisfies the conditions for exemption prescribed in Section 435.07(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for exemption. DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2000. COPIES FURNISHED: Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Suite 3431 Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308 Rufus Bradley, Jr. 2180 Airport Boulevard Sanford, Florida 32771 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Number Three Tallahassee, Florida 32308
Findings Of Fact Ms. Weatherford is a licensed registered nurse in the State of Florida, holding license RN 1062952 at all times material to the Administrative Complaint. She was employed as an on-call nurse at CPC Fort Lauderdale Hospital, a psychiatric facility. Ms. Weatherford reported for duty at the hospital on July 14, 1990, at approximately 3:00 p.m. to work on the 3:00 p.m. - 11:00 p.m. shift on the second floor open adult psychiatric and chemical dependency unit. Patients in the unit are admitted for treatment of substance abuse, detoxication and depression. Given the nature of the patients in the unit, one R.N. and one L.P.N. or mental health technician should be present in the unit at all times. On June 14, 1990, Ms. Weatherford was the charge nurse for the unit, and was assisted by Sherri Dzaba, a license practical nurse. As the charge nurse, Ms. Weatherford was responsible for the administration of medications to the patients in the unit. At the start of her shift both Ms. Weatherford and Ms. Dzaba received a report on the status of the patients in the unit that afternoon. Ms. Weatherford received the medication keys for the distribution of medications during the shift. On the 3:00 p.m. - 11:00 p.m. shift the Shift Supervisor, Nelson Ross, R.N., was also functioning as the charge nurse on the fourth floor adult locked psychiatric unit that evening, with the assistance of a mental health technician. There were approximately eleven or twelve patients in the locked wing who were in the process of detoxication during that shift. After Ms. Weatherford and Ms. Dzaba received the report, Ms. Weatherford was asked to go to the Office of the Director of Nursing for the facility, Pearl Van Houtteghem, R.N. Ms. Weatherford arrived at Ms. Van Houtteghem's office at about 4:00 p.m. Ms. Van Houtteghem had called Ms. Weatherford to the office to discuss complaints Ms. Van Houtteghem had received about Ms. Weatherford's interaction with other hospital employees, who had complained that Ms. Weatherford was gruff or rude. Ms. Van Houtteghem specifically explained that she had received complaints from the occupational therapy staff, other staff nurses Ms. Weatherford had worked with, the Clinical Program Director and the Medical Director, and that Ms. Weatherford had the right to defend herself. Ms. Van Houtteghem listened to Ms. Weatherford, and then told Ms. Weatherford what Ms. Van Houtteghem expected in Ms. Weatherford's performance in the future. The conversation took approximately thirty minutes, and when the conversation ended Ms. Weatherford was angry. After Ms. Weatherford finished her conversation with Ms. Van Houtteghem she returned to the nurses' station at her unit, where she spoke with the head nurse for the floor, Ann McGill, R.N. for about forty minutes regarding the conversation she had had with Ms. Van Houtteghem. When Ms. McGill asked Ms. Weatherford to complete paperwork on two patients who had been admitted during Ms. Weatherford's shift on June 13, 1990, Ms. Weatherford informed Ms. McGill that she would not be doing any work, that she was ill and was going home. At around 5:00 p.m., Ms. Weatherford called Mr. Nelson Ross, the nursing supervisor for the 3:00 p.m. - 11:00 p.m. shift. She asked Mr. Ross to come down to Ms. Weatherford's second floor unit, which he could not do immediately. A little later, Ann McGill also called Mr. Ross to ask him to come down to the second floor to speak with Ms. Weatherford. It took Mr. Ross fifteen to thirty minutes to arrange for the technician to take over the fourth floor locked ward for him to be able to go down to Ms. Weatherford's unit on the second floor. When Mr. Ross arrived Ms. Weatherford told him that she would be leaving and she promptly left. I reject Ms. Weatherford's contention that Mr. Ross did not object to her departure, but assented to it. Mr. Ross was not given the opportunity to object; moreover, it is not credible that Mr. Ross would have willingly assumed the responsibilities on both the locked unit on the fourth floor and for Mr. Weatherford's unit on the second floor. Ms. Weatherford did not give a report on the status of the patients in her unit to Mr. Ross or to anyone before she left. Ms. McGill was still briefly at the second floor completing some paperwork when Ms. Weatherford left Ms. McGill. She was not, however, on duty and had other commitments which prevented her from remaining. This left only the L.P.N., Ms. Dzaba, on the second floor unit where Ms. Weatherford was to be working, and a mental health technician on the locked fourth floor adult unit, with Mr. Ross to attempt to act as the R.N. for both units. After Ms. Weatherford left, a female patient who was very intoxicated was admitted to the second floor unit where Ms. Dzaba was working. When she became combative in her room, Ms. Dzaba had to try to get help, but by the time Ms. Dzaba returned, the patient had broken the window in the room and jumped from the second floor and escaped from the hospital. The patient was ultimately picked up by the Fort Lauderdale Police Department. When a registered nurse is unable to continue shift due to illness, it is the nurse's duty to notify the nursing supervisor (Mr. Ross) or the Director of Nursing (Ms. Van Houtteghem), and then wait until a replacement nurse can be found to cover the floor. The nurse then gives a report on the status of the patients in the unit to the replacement nurse before leaving. Ms. Weatherford did not follow these professional standards in this case. Her dissatisfaction with the criticism she had received from Ms. Van Houtteghem had made her decide to leave, and she did not take the steps necessary to insure appropriate care for the patients in her unit before she left.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board of Nursing finding Ms. Weatherford guilty of unprofessional conduct, placing her license on probation for a period of one year, and fining her $250. RECOMMENDED this 19th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0320 The proposed findings of fact of the Board of Nursing have generally been accepted. With respect to the proposed findings of Ms. Weatherford, I reject the finding concerning Mr. Ross' failure to object to Ms. Weatherford's decision to leave the unit and his failure to communicate to her any difficulty he had in finding coverage for Ms. Weatherford's shift. Ms. Weatherford left rather abruptly, which did not permit Mr. Ross the time to articulate any objections to Ms. Weatherford. While Ms. Weatherford may have assumed that the staffing pattern at the hospital was often "skeletal" she did not know that Mr. Ross was already acting as the head nurse on the locked psychiatric unit. He could not function as her replacement. She gave him no report on her patients. The protocol for leaving would have required her to wait until coverage could have been obtained. She left so quickly that Mr. Ross was not able to explain to her the problem that he had with attempting to cover both her unit and the locked fourth floor unit. COPIES FURNISHED: Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Bette J. Weatherford, pro se 222 Waverley Drive Fern Park, FL 32730 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact In August 1983 Deborah K. Grove, Respondent, was employed by Polk General Hospital as a registered nurse. On August 21, 1983, Respondent was the charge nurse in the nursery at Polk General Hospital. During the mid-morning of August 21, Polk General received a report that a premature baby had been born in the women's toilet at the jail in Bartow and mother and child were enroute to the hospital by emergency vehicle. Preliminary report was that the infant was having difficulty breathing, was somewhat cyanotic, but had a good pulse. This information was passed to the nursery to enable them to prepare to receive this infant. Respondent telephoned the duty pediatrician, Dr. Pilapil, who was in charge of the pediatric section that day to inform him of the pending arrival and to get instructions. For a baby born outside the hospital the general practice is to place the baby in isolation to guard against infecting other babies in the nursery. Dr. Pilapil told Respondent to place the baby in an incubator in isolation and that he would come to the nursery shortly. At the time this call was received Dr. Pilapil was standing by in surgery to receive a baby to be delivered by Caesarean section. At this time that patient had not been anesthesized. Dr. Rahn Shaw was a resident at Polk General Hospital in Family Practice Residency Program and was assigned to pediatrics. Shaw had graduated from medical school some two months before and had been at Polk General for approximately two weeks on August 21, 1983, when he was advised of the expected arrival. Shaw was described by other doctors as a very good resident, but he had never before faced a crisis situation unsupervised. In the meantime Respondent had directed the incubator be connected to heat and oxygen and prepared for the baby's arrival. Upon receipt of the initial report Respondent believed the baby would be dead on arrival or expire shortly thereafter. Some ten minutes later the ambulance arrived with the mother and child. When wheeled in the hospital the baby was lying on its mother's abdomen and the umbilical cord had not been cut. Dr. Shaw severed the umbilical cord and proceeded toward the nursery with the baby. At this time the baby was gasping for breath, was cyanotic but had a strong heart beat. Shaw was led to the isolation section by Respondent who took the infant from Shaw, put her in the incubator and closed the top of the incubator. There was a great amount of dispute at this point in time regarding the infant's continued need for suction. The paramedics who accompanied the infant in the ambulance had suctioned the baby's mouth and nose and had given the infant oxygen enroute to the hospital. Upon arrival of the infant at the hospital, after the cord had been severed, Shaw was given an OB pack which contained a suction bulb he used to suction the infant. Before the infant arrived at the incubator the suction bulb had been dropped on the floor and was no longer available for use. Shaw testified the baby needed continued suction, the paramedics testified additional suctioning was not needed when they arrived at the hospital, and other witnesses testified on both sides of this issue. The most accurate condition is believed to be that additional suctioning was indicated but was not essential. Partly as a result of a provision in Polk General Hospital's policy manual regarding premature infants (Exhibit 2), several nurses were under the distinct impression that only pediatricians could give orders in the nursery. Since residents could practice only under the supervision of a licensed doctor, the authority of a resident to give orders in the nursery was even more suspect. When news of the imminent arrival of the baby born in the jail toilet was announced, and Shaw was the doctor in charge, Respondent told another nurse that she would not take orders from Shaw. Enroute to the pediatric isolation section with the infant in his hands, Shaw attempted to help the infant's breathing by holding its head down slightly to help remove mucus and to resuscitate the infant by pressing on the rib cage. When he handed the infant to Respondent, saw the infant placed in the incubator with no further attempt to help the baby deemed to be in critical condition, Shaw opened the incubator and recommenced resuscitation. When he felt what he thought to be a slowing of the heartbeat, he started chest massage to increase the heartbeat. At this time Shaw was a very concerned and frightened young doctor who wasn't getting the help he expected and needed from the Respondent. Respondent was disturbed that Shaw was interfering with her duties to care for the infant as she had been directed by Dr. Pilapil. Respondent believed the infant would be all right if left in the warm incubator with adequate oxygen and that chest massage was not necessary or indicated on such a small baby. She also feared that Dr. Shaw would attempt to intubate the infant and she did not believe he had sufficient experience to do so on a premature infant. Shaw, on the other hand, believed the infant would die if left to its own resources in the incubator. All witnesses agree that the choice of an incubator in which to place the infant was a poor one and that the infant could have been better cared for had an isolette been used. The latter would allow the infant to be handled through the ports of the side of the isolette and not disturb the warmth and oxygen supply to the infant which results when the incubator is used and the top is lifted to work on the infant. Shortly after Shaw removed the infant from the incubator he asked Respondent what the gestational age of the infant was. Respondent didn't know, but, to provide information needed for future procedures, placed the baby on the scales and recorded a weight of 1 lb. 14 ozs. This procedure should have been delayed until the infant had passed the critical phase. After Shaw commenced working the infant in the incubator Respondent again telephone Dr. Pilapil, who advised her he would be there shortly. Again there was conflicting testimony as to events immediately following. Shaw testified he was left alone with the infant for ten minutes, that he became so concerned and frustrated that he began to cry; that his request to Respondent for help was rebuffed, and that when she did return he told her "If you're not going to help me, get the hell out of the room." Shaw also thought of intubating the infant. Respondent testified that when she left the isolation room to get supplies or call Dr. Pilapil she always ensured someone else was present with Shaw, that she complied with all of Shaw's orders to get necessary equipment, that she provided a bubble blanket, ambu bag and oxyhood for the baby, and that Shaw had worked on the baby for ten minutes before she realized that he was not going to let her do her job. Other witnesses affirmed that Shaw was crying and that he was left alone only for a very brief period, if at all. When the baby was first taken to the isolation section and the top of the incubator was lifted by Shaw, he and Respondent started arguing about the proper care for the infant. Respondent testified that she didn't need orders to provide oxygen and warmth to the infant and that she did provide both. She also told Shaw that she would not obey his orders. At the hearing Respondent testified that she did obey the orders she received from Shaw relating to getting equipment for the infant. Nursing procedures require nurses to follow doctors' orders. If the order is patently erroneous, or if the nurse believes the order to be wrong, it is appropriate for the nurse to delay carrying out the order while a supervisor is called to the scene. The evidence was unrebutted that orders given by a doctor not on the scene may be modified by the nurse when a crisis situation, not anticipated by the off-scene doctor, arises. Pursuant to this principle, when the infant arrived in a crisis condition the infant should have been placed in that part of the nursery providing all the equipment needed rather than in an incubator in isolation. Had an isolette been taken to the isolation section, better care could have been provided for the infant, or the infant could have been placed in an isolette in the observation part of the nursery. On the other hand, isolettes are in a limited supply and, if the infant had died in the isolette (as Respondent apparently thought might happen), the isolette would have to be "sunned" which consists of placing the isolette in the "sun" for three days after cleaning it before it is again used. When Dr. Pilapil finally arrived and relieved Shaw, he had the infant placed in an isolette. The infant survived without apparent further difficulty. It is evident that had Dr. Pilapil been at the nursery when the premature infant arrived the events leading to the charges here being considered would not have occurred. When the infant did arrive Respondent accurately relayed the infant's symptoms to Dr. Pilapil. Had he come to the nursery then, this hearing would not have been necessary. Shaw reported the incident to Dr. Caltenco, an obstetrician on the staff at Polk General, who told Shaw to write down the events as he recalled them. Caltenco advised the hospital authorities of the incident. Respondent called Juanita Lott, R.N., assistant director of nursing at Polk General, at her home to tell her of the incident and that she (Respondent) might be in trouble, but did not advise Frances Bass, R.N., the head nurse at obstetrics at Polk General, who was Respondent's supervisor on duty at the time the incident occurred. Ms. Bass learned of the incident while on duty that day and called the Director of Nursing, Laurie McCranie. Ms. McCranie told Ms. Bass to submit what she knew in writing, have Respondent do the same thing and present these statements to her when she arrived at the hospital on Monday. At a meeting among Respondent, Ms. McCranie, and others involved in the incident of August 21, 1983, Respondent admitted to Ms. McCranie that she had told Shaw she would not follow his orders and that she would not follow the orders of anyone in the pediatrics ward who was not a pediatrician. When Respondent persisted in her position that she had done nothing wrong and would do the same thing again in similar circumstances, despite being warned that such persistence would result in her discharge from employment at Polk General Hospital, Respondent's employment was terminated. Respondent is an excellent clinical nurse, well versed in nursing practices and procedure and was considered to be an excellent member of Polk General Hospital's nursing staff before the August 21, 1983, incident. In her exit evaluation (Exhibit 6) Respondent received the highest mark on the form (Excellent) but for block 5 -- ability to get along with others -- in which she was marked "good."
The Issue Whether or not Respondent, Walter Ray Deal, M.D., violated Subsection 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. Respondent, Walter Ray Deal, M.D., is and has been, at all times material to the Administrative Complaint filed in this matter, a licensed physician in the State of Florida, having been issued license number ME 0056589. At or around 6:25 p.m. on April 6, 2000, Patient E.R. presented at the Emergency Room of Morton Plant Mease Health Care/North Bay Hospital, with pain and swelling in the right lower extremity. The Emergency Triage/Assessment Form, which is completed by nurses in the Emergency Room, reports that Patient E.R., who was first seen at 6:30 p.m., was 73 years old and had a chief complaint of "pain to RLE [right lower extremity] for a very long time, swollen . . ." This form also contains information on Patient E.R.'s current medical status including medications and a medical history. Respondent first examined Patient E.R. at approximately 7:15 p.m.; she reported her chief complaint to be chronic pain in the right knee which had worsened since Dr. Zaidi, a rheumatologist, had drained the knee. During his examination, Respondent checked (placed a checkmark) on the Emergency Physician Record indicating that in his examination he found the patient's heart had regular rate and rhythm and normal heart sounds. At 7:30 p.m., Respondent noted in Patient E.R.'s treatment plan: "Labs, Pain Meds, IV Antibx." This record reflects that Respondent ordered that the patient be administered 50 mg of Demerol and 50 mg Phenergan and 500 mg of Leviquin intramuscularly and the ESR (erythrocytic sedimentation rate), which is a nonspecific test for inflammatory responses. The pain medication appears to have been administered almost immediately (7:35 p.m.); the antibiotic at approximately 8:12 p.m. There is controversy about what "Labs" were ordered by Respondent. His testimony indicates that he ordered the CBC, the comprehensive metabolic, and the urine laboratory chemistries. The hospital records indicate that the following additional diagnostic tests were ordered: Cardiac Enzymes and Troponin chemistries, an E.K.G. and portable chest x-ray. It appears from the hospital records that a different writing instrument (the ink colors are different) and, perhaps, a different hand ordered the diagnostic tests mentioned in this paragraph. The results of the chemistries ordered by Respondent are reported on the Emergency Physician Record; the Emergency Physician Record does not contained results of an E.K.G. or x- ray. In addition, laboratory reports for non-cardiac-related chemistries are on Lab Acn# 54968; laboratory reports for cardiac related chemistries are on Lab Acn# 54984. While the sample collection time for the blood tests is 7:20 p.m., the cardiac-related tests were conducted later in the evening than the non-cardiac related tests. The controversy regarding what tests were ordered by Respondent is further clouded by the testimony of Rajesh Dave, M.D., who in the late evening of July 6, 2000, admitted Patient E.R. to the hospital, and Respondent's narrative letter dated February 1, 2001, directed to the Agency for Health Care Administration, in which he acknowledges ordering all of the diagnostic tests mentioned hereinabove. Prior to hearing, Respondent retracted the admission contained in his letter to the Agency for Health Care Administration to ordering the Cardiac Enzymes and Troponin chemistries, the E.K.G. and chest x-ray. The retraction was based on confusion between Respondent and his attorney which was confirmed by the testimony of Edward Copeland, Esquire, the attorney who prepared the narrative letter signed by Respondent. I find that the testimonies of Respondent and Mr. Copeland are credible and find that someone other than Respondent ordered the diagnostic tests which are in question. Dr. Dave denied ordering the cardiac-related tests; he denies even being in the hospital that evening. His testimony is in conflict with Respondent's and Emergency Room Nurse Don Giffin's nursing notes, which state: "Dr. Dave here to examine patient and wrote orders." Dr. Dave became responsible for Patient E.R.'s care and treatment when she was ordered admitted to the hospital at 9:45 p.m. Respondent testified that he had two conversations with Dr. Dave on July 6, 2002; the first, a telephone conversation, immediately prior to first seeing Patient E.R. and the second, a face-to-face conversation, at approximately 9:30 p.m. at the front desk of the Emergency Room. After the second conversation, Respondent wrote orders to admit Patient E.R. for a "23 hour admission" to the hospital as Dr. Dave's patient and ordered consultations with other physicians. He wrote other admission orders, ordered medications and "ivf d5 1/2 NS 40 meq kcl/l @ 125cc hr" (intravenous fluids one-half normal saline with 40ml equivalents of potassium chloride per liter at 125 cc per hour). North Bay Hospital protocol does not allow an Emergency Room physician to admit a patient to the hospital. Respondent was acting as a scrivener for Dr. Dave when he entered the orders admitting Patient E.R. to the hospital. At 8:17 p.m. the laboratory reported to the Emergency Room that Patient E.R. had a low serum potassium level. Petitioner's expert witness opined that Respondent fell below the standard of care when, after becoming aware of the low serum potassium level (which the expert deemed "critically low"), he did not immediately order an E.K.G. to determine the appropriate speed of potassium supplementation. He further opined that Respondent either did not read the E.K.G. or did not properly evaluate it. He further opined that the rate of potassium supplementation as ordered by Respondent was completely inadequate. The results of the Cardiac Enzymes and Troponin tests were normal. The E.K.G. test was given and the results simultaneously published at 10:04 p.m. The E.K.G. showed a run of non-sustained ventricular tachycardia which is a potentially fatal arrhythmia. After being ordered admitted as a 23-hour admission as Dr. Dave's patient at 9:45 p.m., Patient E.R. arrived at the 23- hour floor at 10:30 p.m. The hospital records reflect that at 10:20 p.m., the floor nurse was advised by the Emergency Room nurse of the low serum potassium, of the physician's orders for potassium supplementation, and that the potassium supplementation ordered was not available in the Emergency Room. The 23-hour floor nurse's notes reflect that she "advised that we have none at this time." Following Patient E.R.'s admission, at approximately 10:45 p.m., Dr. Dave was called and advised of the admitting orders including the rate of potassium supplementation. While he changed some of the orders, he did not change the rate of potassium supplementation. He did change Patient E.R.'s admission from a 23-hour admission to a full admission which necessitated transferring Patient E.R. to the Third Floor of the hospital. At 11:10 p.m. the 23-hour floor nurse received a bed assignment on the Third Floor and gave a report to the Third Floor nurse; the 23-hour floor nurse's notes include the following: "report . . . including low K [potassium] and need for D5 1/2 NS c 40 meq KCL [the ordered potassium supplementation] she said they had on 3rd floor and will be able to start fluids." The 11:55 p.m. Third Floor nurse's notes reflect that the "IVF started." Patient E.R. expired shortly after 3:00 a.m. Respondent's expert witness opined that Respondent did not fall below the standard of care in his treatment of Patient E.R.; that is, that Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. He opined that Respondent rendered appropriate treatment to Patient E.R., who presented with knee pain and had no cardiac or respiratory complaints. He further opined that, while the serum potassium level was low and needed to be addressed, no symptoms or complaints were demonstrated pertaining to low potassium level and nothing was evident that raised cardiac issues; the low potassium was not critically important in this clinical situation and was a common presentation for an older person. He opined that based on the clinical evaluation and findings by the Emergency Room staff and physician, even with the low potassium, no E.K.G. was warranted. I find the opinion rendered by Respondent's expert witness to be more credible than the opinion offered by Petitioner's expert witness and accept the opinion of Respondent's expert. Respondent's expert's opinion was reinforced, in part, by the continuing treatment afforded Patient E.R. by Dr. Dave after she was admitted to the hospital.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is not guilty of violating Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229, Mail Stop 39A Tallahassee, Florida 32317-4229 William Taylor, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent, Colonial Palms, Inc., is licensed to operate Colonial Palms Nursing Home in Pompano Beach, Florida, as a nursing home facility, pursuant to Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On December 15, 1981, two representatives from the Petitioner visited the Respondent's facility in connection with its annual license survey. On this occasion the following conditions were found which were in violation of the applicable provisions of the Florida Administrative Code. Supervision of all details of nursing care to patients was not being fulfilled by the Nursing Supervisor in that: The charge nurses were not monitoring the functions of the clean and soiled utility rooms, as evidenced by mixed clean and soiled functions in the rooms. Personal luggage of patients was stored in a soiled utility room, clean foam padding was stored on a shelf in a soiled utility room. Three weeks staffing was reviewed. There was no RN on duty during the AM shift on 4 out of 21 days, 11/22, 11/28, 11/29, 12/12/81, when the average census was 74 patients. Patients' rights were violated in 4 charts reviewed in that the patients were not advised of their full rights as promulgated by the 1980 Legislature. Written consultation reports from a consulting dietitian to the Administrator were not available for review for the months of April, May, June, July, 1981. The dietary department lacked the required test kit that measures the parts per million concentration of the sanitizing solution used to sanitize the patient trays, as well as the multi use pots and pans. The hood above the cook's range, the sprinkler system, and the electric lights were soiled with a grease encrustation. Medications being administered by the nursing staff consisted of controlled and prescription drugs which were not stored in locked cabinets, but were stored on side carts exposed and accessible to all patients. The soiled utility room in the south wing was not equipped with a flushing rim clinical service sink having a wide area service trap with bedpan flushing equipment. The Respondent nursing home was given until January 15, 1982, to correct all of the conditions described above. On February 8, 1982, a follow-up visit was made to the Respondent nursing home. On this occasion the conditions described above at subparagraphs (a), (c), (d) and (f) had been corrected. The conditions described at subparagraphs (b), (e), (g) and (h) above had not been corrected. The flushing sink mentioned in subparagraph (h) above had been ordered from the nursing home's supplier on December 20, 1981. However, due to a delay in shipment, it was not received until July or August, 1982. It is now in place, as required. The remainder of the conditions which existed on February 8, 1982, are now corrected.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Colonial Palms, Inc., d/b/a Colonial Palms Nursing Home, be found guilty of four separate violations on one occasion after the specified date for correction, and that Colonial Palms, Inc., be assessed an administrative fine in the amount of $400.00. THIS RECOMMENDED ORDER entered on this 30 day of November, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of November, 1982. COPIES FURNISHED: Harold Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 William L. Pace Administrator of Colonial Palms Nursing Home 51 West Sample Road Pompano Beach, Florida 33064
