The Issue The matters presented for consideration in this instance concern an Administrative Complaint brought by the Petitioner against the Respondent seeking to suspend, revoke or take other disciplinary action against the Respondent's license, in particular, against her license as a Registered Nurse. The substance of the Administrative Complaint is contained in five (5) counts. Count I to the Administrative Complaint alleges that on or about March 10, 1981, Respondent signed out a controlled substance, to wit: two (2) ampules of Demerol, between the approximate hours of 7:00 P.M. to 7:15 P.M. for a patient, DeFrisco [sic]. DeFrisco [sic], reputedly states that she did not receive the Demerol. Based upon the foregoing alleged facts, Respondent has purportedly violated Subsection 464.018 (1)(d), Florida Statutes (1979), by making a false report of record which she knew was false and in addition has violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with the minimal standards of acceptable and prevailing nursing practice. 1/ Count II to the Administrative Complaint alleges that on or about March 5, 1981, the Respondent administered a controlled substance, to wit: Demerol, in excess of that ordered by the attending physician and for that reason violated Subsection 464.018(1)(f), Florida Statutes (1979), in that she failed to conform with the minimal standards of acceptable and prevailing nursing practice. 2/ Count III alleges that the Respondent wasted, without a witness, certain controlled substances, in violation of hospital policy, as follows: On 2/28/81 Dilaudid, 1 mg On 2/23/81 Demerol, 100 mg. On 2/22/81 Demerol, 50 mg. On 2/16/81 Demerol, 100 mg. On 2/22/81 Morphene Sulphate 3 mg. On 1/28/81 Demerol, 25 mg. On 1/22/81 Demerol, 100 mg. Based upon these alleged facts, the Respondent purportedly violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with minimal standards of acceptable and prevailing nursing practice. Count IV to the Administrative Complaint alleges that on or about March 5, 1981, Respondent signed out a controlled substance, to wit: Demerol, at approximately 9: 02 A.M., and at 12:15 P.M., for the use of patient Theodora Durham. It is further alleged that patient Durham states that she did not receive the above mentioned Demerol. Based upon those alleged facts Respondent purportedly violated Subsection 464.018(1)(d), Florida Statutes (1979), in that she made a false report of record which she knew was false. Further, Respondent, based upon those facts, has allegedly violated Subsection 464018(1)(f), Florida Statutes (1919), by failing to conform with minimal standards of acceptable and prevailing nursing practice Count V alleges that on or about April 12, 1981, the Respondent reported to her place of employment, Beaches Hospital, under the influence of alcohol to the extent that it affected her body coordination Further, it is contended that Respondent's supervisor; Joyce Strarnes, did not allow her to complete her work shift because she, Respondent was unable to function safely and to conform with minimal standards of acceptable nursing practice Based upon these allegations, the Respondent has purportedly violated Subsection 464018(1)(f), Florida Statutes (1979), for failure to conform to the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established. 3/
Findings Of Fact This case is presented for consideration based upon the aforementioned Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Nursing, against the Respondent, Rebecca Lael Calhoun. The Petitioner, agency, is a regulatory body which has been granted the authority by the State of Florida to license, regulate and discipline those persons who practice nursing in the State of Florida. The Respondent Rebecca Lael Calhoun has been issued a license to practice as a Registered Nurse in the State of' Florida and at all times pertinent to this Administrative Complaint, has held that license issued by the Petitioner. Calhoun was employed at St. Luke's Hospital, in Jacksonville, Florida, between the months of December, 1980, and March 10, 1981. Her position with that institution was that of Registered Nurse. On March 10, 1981, the Respondent worked at the St. Luke's Hospital on Ward 1-C. In that capacity, she had responsibility for the medication cart where controlled substances and other medications were kept for patient use. One of the patients who was on Ward 1-C on March 10,1981, and for whom controlled substances and other medications were made available by physician's orders was one Barbara L. DiFrancesco. On that date, DiFrancesco had an operative procedure known as dilatation and curettage performed and after the procedure, was brought to room 161, which was a room on the ward where the Respondent was on duty. It was 4:30 P.M. when the patient was placed in that room. After DiFrancesco returned to her room, between the hours of 4:30 P.M. and 8:00 P.M. on March 10, 1981, she did not receive any form of controlled substance, in particular, Demerol. The Demerol was in fact removed from the hospital inventory in DiFrancesco's name and Respondent knew that the patient did not receive the Demerol. Nonetheless, the Respondent documented that the patient DiFrancesco had the substance withdrawn for the patient's benefit and had received such a controlled substance. The false documentation was discovered by Kathleen Lawson, Assistant Director of Nursing at St. Luke's Hospital who was investigating possible "discrepancies" on the part of the Respondent in the recordation of entries on the controlled substance forms kept by the hospital. On the evening of March 10, 1981, Lawson checked the controlled substance form at approximately 7:00 P.M., which pertained to Ward 1-C where the Respondent was working. This controlled substance form may be found as a part of the Petitioner's Composite Exhibit No. 1, admitted into evidence. (The entries on that form pertain to the time of the sign-out, name of patient, room number, nurse's signature, dosage amount, amount of wastage, if any, and signature of a witness to wastage, and the description of the medication or controlled substance signed out by the practitioner) Lawson's review of the controlled substance form on March 10, 1981, at around `1:00 P.M. did not indicate that Demerol had been signed out for the benefit of DiFrancesco; however, when Lawson returned to Ward 1-C at approximately 7:15 P.M. on that same evening, she observed an entry on the controlled substance form which had been made by the Respondent. This entry indicated that Demerol in the amount of 50 mg. had been signed out for the benefit of DiFrancesco at approximately 5:30 P.M. When confronted with the discrepancy of having failed to make a timely entry of the sign-out of the controlled substance, Demerol, for the benefit of the patient DiFrancesco, that is to say the fact that the 7:00 P.M. check revealed no sign-out and a 7:15 P.M. check revealed a sign-out post-timed to 5:30 P.M.; the Respondent was than asked to perfect all necessary documentation to conform all records on the question of the administration of a controlled substance for the benefit of the patient DiFrancesco. In response to this request, the Respondent made an entry on the nurse's notes portion of the patient DiFrancesco's medical chart, to the effect that at 5:00 P.M. Demerol in the amount of 50 mg., IM, intramuscular, was administered to the patient DiFrancesco for "cramping." A copy of those nurse's notes may be found in Petitioner's Composite Exhibit No. 3, admitted into evidence. Some of the aforementioned "discrepancies' that officials at St. Luke's Hospital had been concerned about in terms of the Respondent's reporting procedures pertained to the controlled substance form, related to wastage of Schedule II controlled substances. St. Luke's Hospital had a written policy dealing with this subject as may be found in Petitioner's Exhibit No. 6, which is a copy of that policy related to unit doe drug distribution. That written policy was to the effect that when Schedule II controlled substances are wasted, or partially administered to the patient, the wastage or partial administration is recorded on the controlled substance form through the name of the patient; room number; the nurse who wasted material; the material; the amount injected and/or the amount wasted. The substance is shown to a witness in the process of recording the incident description as set forth herein. Pursuant to the written policy, there is also a line on the controlled substance form for the placement of . Off initials of that person who witnessed the accountability of the wasted Schedule II controlled substance, when the substance is only partially administered. In addition, the Respondent and other nurse practitioners in the hospital underwent an orientation which apprised the Respondent and others of the matters pertaining to wastage of Schedule II controlled substances as set forth in the written procedures and the utilization of the controlled substance form. Also, a customary practice within the hospital was established in which totally wasted narcotics were witnessed by initials placed by the witness on the controlled substance form, in the same fashion as partially wasted substances. Having been made aware of the requirements of that drug distribution handout, the utilization of the controlled substance form and custom, the Respondent did, in fact, on occasion have wastage which was recorded on the controlled substance form and initialed by another nurse practitioner as may be seen in a review of Petitioner's Composite Exhibit No. 1, which is a series of controlled substance forms for various dates. Notwithstanding her knowledge of procedures and customs within the hospital, there were a number of dates in which the Respondent failed to have a witness initial the wastage of Schedule II controlled substances Those occasions were as follows: Date: January 28, 1981 Patient: Pinkney Dose: 50 mg. Demerol Waste: 25 mg. Demerol Witness: No entry Date: February 16, 1981 Patient: Gression Dose: 100 mg Demerol Waste: 100 mg. Demerol Witness: No entry Date: February 22, 1981 Patient: Perry Dose: 50 mg. Demerol Waste: 50 mg. Demerol Witness: No entry Date: February 23, 1981 Patient: Fraser Dose: 100 mg. Demerol Waste: 100 mg. Demerol Witness: An entry made to the effect that a witness was unavailable Date: February 28, 1981 Patient: Bergdorf Dose: 1 mg. Dilaudid Waste: 1 mg. Dilaudid Witness: No entry There were no facts presented other than those related to the patient Fraser on the presence of a witness to the events of wastage and destruction of the Schedule II controlled substances. In addition to the incident with DiFrancesco, there were two other occasions in which the Respondent had signed out a controlled substance and indicated giving that controlled substance to a patient, when in fact the patient did not receive the controlled substance. This pertained to incidents on March 5, 1981, involving a patient on Ward 1-C, where the Respondent was employed as a Registered Nurse at St. Luke's Hospital. On the aforementioned date, i.e., March 5, 1981, the patient Theodora Durham was in the hospital for procedures related to curettage and packing of the uterus. She was assigned to Room 158 on Ward 1-C as her patient's room. The controlled substance sign-out form for March 5, 1981, which is found as part of Petitioner's Composite Exhibit No. 1, indicates that at 9:02 A.M. and 12:15 P.M., Demerol in the amount of 50 mg. on each occasion was signed out for the benefit of the patient Durham. The sign-out and other entries were made by the Respondent. The Demerol was in fact removed from the hospital inventory. The patient's chart, a copy of which may be found as Petitioner's Composite Exhibit No. 2, admitted into evidence, also indicates nurses notes authored by the Respondent stating that the 50 mg. amounts of Demerol were administered intramuscular to the patient Durham at 9:00 A.M. and 12:00 Noon. In fact, the patient Durham never received the Demerol on either of the occasions referred to herein. The Respondent knew the patient had not received the Demerol. Following her employment at St. Luke's Hospital, the Respondent received employment at Beaches Hospital in Jacksonville Beach, Florida. On April 12, 1981, she reported work as a Registered Nurse at Beaches Hospital for the 11:00 P.M. to 7:00 A.M. shift. During the transition from the prior shift into the shift of the Respondent, two (2) fellow employees noticed the aroma of what they felt to be alcohol on the breath of the Respondent. The employees having reported their observation to the nurse supervisor, the Respondent was summoned into the office of the nurse supervisor and under questioning admitted that she had been "drinking." This response was related to the issue of whether the Respondent had been consuming an alcoholic beverage. The nurse supervisor detected an unkempt appearance about the person of the Respondent and the fact that the Respondent's eyes were bloodshot Following this discussion, the Respondent was asked to leave the hospital because she could not afford patient care to those patients on her ward, due to the fact that she had been consuming an alcoholic beverage before coming on duty which was contrary to the policy of the hospital.
Findings Of Fact At all times material hereto, Petitioner, Joyce Lovasz, was employed as a nurse by Respondent, Boca Raton Community Hospital (Hospital). In 1987, after a medical leave of absence, the Hospital decided not to place Petitioner in the position she held prior to her leave. Petitioner was originally hired by the Respondent in 1970 as a staff nurse. She was promoted to a charge nurse position and then to supervisor of the home health unit. In 1974, she left the Hospital for a position at another hospital. Then, in 1979, Petitioner was asked to return to the Hospital by Tracy Reichert, then, the Director of Nursing Services Administration. Petitioner was selected as head nurse of the I.V. therapy team and began this service on February 12, 1979. In the summer of 1983, Ms. Reichert became aware that there was a significant amount of dissension within the I.V. team and considerable unhappiness on the part of the employees working under Petitioner's supervision with respect to their management by Petitioner. Also, beginning in the summer of 1983, members of the I.V. team met with Terrance Braun, the Hospital's Personnel Director, and discussed their problematic treatment by Petitioner. Their concerns continued, however. Around the same time, some of the I.V. team's members consulted Donna Hearn, who was, then, in charge of the Hospital's Employee Assistance Program. The team members sought Ms. Hearn's counsel because of their concern for Petitioner's well-being, as well as a concern for themselves and their job security. At the meeting with Ms. Hearn, the I.V. team members disclosed behavior of Petitioner which could be characterized as unprofessional. They also talked of Petitioner's favorable actions toward some members of the team. Petitioner's behavior was splitting the team and causing great dissension within it. Some of the Petitioner's actions which caused concern included Petitioner's tape recording of conversations with employees, maintaining a hidden tape recorder in her drawer, taking unexplained absences from the Hospital during scheduled work time, making abrupt scheduling changes, announcing changes in procedures in the middle of doing an I.V. application, and writing different memos to the favored and disfavored factions of the I.V. team concerning the same subject, including constructive memos to the favored team and curt, nonconstructive memos to the disfavored group. The problems persisted, and members of the I.V. team continued to seek counsel from Ms. Hearn throughout the remainder of 1983, and all of 1984 and 1985. Ms. Hearn, who was trained as a counselor, was convinced of the truthfulness of the reports she was receiving from the I.V. team members. As a result of her meetings with the I.V. team, Ms. Hearn discussed the Petitioner's behavior towards I.V. team members with Mr. Braun and Ms. Reichert. Ms. Reichert disclosed to Ms. Hearn that she had concerns about Petitioner's management style and that she would talk to Petitioner. During this period, Ms. Reichert began a dialogue with Petitioner about her management style and problems in supervising the I.V. team. At Ms. Reichert's encouragement, Petitioner visited with Ms. Hearn but was not willing to discuss topics that related to her management of the team. Ms. Reichert had numerous other discussions with Petitioner concerning their difference of opinion on Petitioner's management of her employees and the continuing dissension within the I.V. team. Petitioner grew increasingly critical of Ms. Reichert in front of I.V. team members and was frequently critical of nursing administration in general. In the summer of 1985, Ms. Reichert and Petitioner engaged in a lengthy conversation relating to Petitioner's management of her team. Petitioner asked Reichert if she wanted her to vacate the I.V. head nurse position. Reichert declined on the condition that Petitioner change her management style of supervising the unit. As a result of this meeting, Ms. Reichert decided to assign Ann Capron, Assistant Director of Nursing, to be the immediate supervisor of Petitioner to see if she could influence Petitioner to change her management style and alleviate the problems in the I.V. team. At that point, Ms. Reichert decided to give Ms. Capron six months to work with Petitioner closely and if the problems did not resolve, Ms. Reichert would recommend the termination of Petitioner. The problems continued, however. Ms. Reichert communicated her decision to terminate Petitioner to Normand Guilbault, then Vice President of the Hospital, Mr. Braun and Ms. Capron. However, before action could be taken to implement her decision to terminate Petitioner, Petitioner was diagnosed with ovarian cancer, and in February, 1986, she went on a medical leave of absence which was to last for nearly one year. During her leave of absence, Petitioner was replaced by Trish Hawkins, who had been her unofficial assistant. Under Ms. Hawkins's supervision, the problems which had persisted in the I.V. team for several years disappeared. Ms. Reichert determined that this was due to the absence of Petitioner and to the leadership of Hawkins. Petitioner was eligible for the Hospital's "30, 90, 365 day" leave of absence policy which provided that an employee is guaranteed the same job during the first 30 days of a leave of absence. After the first 30 days and prior to 90 days of a leave of absence, an employee is guaranteed a position with the Hospital at the same rate of pay. If an employee has been employed by the Hospital more than three years, the employee is eligible for long term disability benefits. These benefits guarantee the employee a position with the Hospital even after 90 days of leave of absence up to one year after the start of the leave but not necessarily at the same rate of pay. The Hospital's policy manual contains a second policy which relates to leaves of absence and which supplements the "30, 90, 365 day" policy and which Petitioner argues is somewhat inconsistent. The second policy states that the Hospital reserves the right to fill a vacancy created by a leave of absence but will make every effort to place an employee in a same or comparable position when he or she is able to return to work. The Hospital's experience in applying these policies to employees in comparable supervisory or management positions to Petitioner has been uniformly to bring those comparable employees, including Petitioner, back to a position in the Hospital other than the one they held prior to a leave of absence. Of the supervisory employees who have been on a leave of absence of more than 90 days, none has returned to the same position. This policy has been applied to employees with nonmedical leaves of absences as well as medical leaves. The Hospital has had numerous employees other than Petitioner take medical leaves of absence due to cancer conditions and return successfully from those leaves of absence to a position with the Hospital. At least one such person left the Hospital and came back to a higher position after a bout with cancer. Around January, 1987 and prior to the end of 365 days after her leave of absence began, Petitioner informed Ms. Reichert that she was released by her doctor, recovered from her cancer condition, was healthy and ready to return to work. However, the previous November, after consultation with Mr. Braun, Ms. Reichert had decided not to return Petitioner to the head nurse position of the I.V. team because of Petitioner's lack of success in managing the team. Instead, she decided to retain Ms. Hawkins on a permanent basis. Ms. Reichert did not make Ms. Hawkins appointment permanent until after Petitioner returned from her leave nor did Ms. Reichert tell Petitioner about her decision. Ms. Reichert felt that the announcement might cause a set back in Petitioner's recuperation. Ms. Reichert did tell Mr. Braun and Mr. Guilbault, however. Then, on January 19, 1987, Petitioner met with Ms. Reichert at the Hospital. They chatted for a while about the changes at the Hospital, but Ms. Reichert did not tell Petitioner about her decision not to return her to the I.V. team. She told Petitioner to show up ready for work in her lab coat on January 22, 1987, which Petitioner did. Ms. Reichert was convinced that Petitioner had fully recovered from her condition and was not suffering from a disability of any kind. Petitioner herself was convinced that she was fully recovered from her condition and was not suffering from any disability. On January 22, 1987, Ms. Reichert told Petitioner that she decided to replace her as head nurse because of her poor performance as manager which they had discussed on numerous occasions before Petitioner went out on her leave of absence. Instead, Ms. Reichert, being aware of the hospital's policy, offered Petitioner a staff nurse job at the same rate of pay as the head nurse position. Although a staff nurse is essential to patient care, appointment to a staff nurse position after having held a head nurse position was considered a demotion by Mr. Braun. Petitioner refused the position and met with Mr. Braun, who reviewed with her potential positions which the Petitioner was qualified to fill. Mr. Braun located three potential positions. Although the first two positions did not work out because of budget problems, Mr. Braun was acting in good faith in attempting to find a position for Petitioner. The third of the three options proposed by Mr. Braun, a home health I.V. position, showed more promise to Petitioner. Petitioner was asked to do a feasibility study on I.V. therapy as part of the home health agency. She began the study sometime in February, 1987 and worked on it for approximately two and one-half months until April, 1987. Numerous problems arose during the course of this feasibility study. In April, 1987, the Hospital determined that a home health I.V. therapy function was not economically feasible and decided not to pursue that matter further. At that point, the Hospital's top administrative staff and Mr. Braun met and made good faith review of all potential available positions for Petitioner. They were unable to locate a position for which the Petitioner was qualified other than a staff nurse position, for which there were numerous openings. Petitioner was re-offered a staff nurse position at her head nurse salary, even though under the Hospital policy, the Hospital was not required to continue to pay Petitioner her head nurse salary since she had been absent more than 90 days. Petitioner was also offered an orientation period and training to reacquaint her with floor nursing since she had been an administrative nurse for several years. Petitioner was unhappy with this offer. For the first time since she had been back to work, she complained of tingling and numbness in her hands as an excuse not to take the staff nurse position. Mr. Braun asked Petitioner for a doctor's report that she was capable of coming to work full-time, which she had obtained without any difficulty. Also, at the time that Ms. Reichert hired Petitioner in 1979, she was aware that Petitioner had suffered with back problems and had undergone one or more Pap smears. However, the proof failed to demonstrate any connection between these suggestions of problematic health and the employment decisions made by the Hospital concerning Petitioner. Consequently, the offer of a staff nurse position was renewed. The Petitioner declined the offer and declined to report to work on instructions from her attorney. Petitioner voluntarily left her employment at the Hospital. During the first years of her employment, Petitioner had received satisfactory to exemplary performance evaluations. Then, during her final full year, the year prior to her leave of absence, Petitioner received a less than satisfactory evaluation. However, the evaluation system at the hospital had changed during that time. The Hospital's evaluation system had undergone criticism because the assessments were too high and did not properly reflect an employee's performance. A new system was implemented. The system became more criteria based and resulted in lower evaluations throughout the Hospital. It was under this new system that Ms. Capron assessed Petitioner's performance during 1985, her last full year of employment. Unfortunately, due to Petitioner's illness and leave of absence, her evaluation for 1985 was not delivered to her or formalized until she returned from her illness in 1987. No credible evidence was offered at the hearing which suggested that Petitioner suffered from a handicap at the time the Hospital made the decision not to return her to the head nurse position in the I.V. therapy team. In fact, the decision was based on Petitioner's poor performance as a manager of the I.V. team.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Human Rights Commission issue a Final Order that Petitioner has failed to establish that Respondent discriminated against her on the basis of handicap in violation of the Human Rights Act of 1977, as amended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1990. JANE C. HAYMAN 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 27th day of April, 1990. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-4386 The following represents the rulings of the undersigned on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact. PETITIONER Adopted in findings 2 and 25. Adopted in findings 2 and 25. Adopted, in relevant part, in findings 11, 17 and 23. Adopted in finding 13. Adopted, in part, in findings 14 and 18; in part, rejected as conclusion of law. Adopted in finding 20. Adopted, in part, in findings 15 and 16; in part, rejected as not supported by competent substantial evidence. Adopted, in relevant part, in finding 25. Rejected as not supported by competent substantial evidence. Adopted in finding 25. Rejected as not supported by competent substantial evidence, RESPONDENT Adopted as subordinate to the findings of fact. Adopted in finding 2. Adopted in finding 23. Adopted in finding 3. Adopted in finding 4, Adopted in finding 5. Adopted, in relevant part, in finding 6. Adopted, in relevant part, in finding 6. Adopted in finding 7. Adopted in finding 8. Adopted in finding 9. Adopted, in part, in finding 9. Adopted, in part, in finding 9. Adopted in finding 10. Adopted in finding 10. Adopted in finding 11. Adopted in finding 12. Adopted in finding 12. Adopted in finding 13. Adopted in finding 14. Adopted in finding 15. Adopted in finding 16. Adopted in finding 17. Adopted in finding 18. Adopted in finding 18. Adopted in relevant part in finding 20. Adopted in relevant part in finding 19. Adopted in finding 21. Adopted, in part, in finding 21; in part, rejected as not supported by competent substantial evidence. Adopted in finding 21. Adopted in finding 22. Adopted in finding 22. Adopted in finding 22. Adopted in finding 23. Adopted in finding 24. COPIES FURNISHED: Glen J. Torcivia, Esquire One Clearlake Centre, Suite 1404 250 Australian Avenue South, West Palm Beach, Florida 33401 Michael D. Malfitano, Esquire MacFarlane, Ferguson, Allison Kelly P.O. Box 1531 Tampa, Florida 33601 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in these cases is whether Respondent failed to provide appropriate emergency care for a nursing home resident in respiratory distress in violation of 42 Code of Federal Regulation (CFR) Section 483.25 and Florida Administrative Code Rule 59A-4.1288. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the State of Florida. Respondent operates a licensed nursing home at 830 West 29th Street, Orlando, Florida (the facility). Petitioner conducted a complaint survey of the facility on September 14, 2001. The survey cited the facility for a deficiency described in F309, and rated the deficiency with a scope and severity of "G" and Class II, respectively. The deficiency classifications authorized in Subsection 400.23(8) range from Class I through Class IV. Class I deficiencies are not relevant to this case. The statute defines the remaining classifications as follows: A Class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . . A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being as defined. . . . A Class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. . . . Rule 59A-4.1288 requires nursing home facilities licensed by the state of Florida to adhere to federal regulations found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, Rule 59A-4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. The "G" rating adopted by Petitioner for the scope and severity rating of the deficiency alleged in F309 is a rating authorized in relevant federal regulations. A "G" rating means that the alleged deficiency was isolated. Applicable state law authorizes Petitioner to change a facility's licensure rating from standard to conditional whenever Petitioner alleges that a Class II deficiency exists. Petitioner alleged in the survey report that a Class II deficiency existed at the facility and assigned a conditional rating to the facility's license. The conditional rating was effective September 14, 2001, and continued until substantial compliance was achieved. When Petitioner proves that a Class II deficiency exists, applicable law authorizes Petitioner to impose a civil money penalty. Petitioner filed an Administrative Complaint against Respondent seeking to impose a fine of $2,500.00 and subsequently filed an Amended Administrative Complaint. The allegations on which both the change in license status to a conditional license and the proposed fine are based are set forth in F309. The deficiency alleged in F309 is set forth on CMS Form 2567, entitled "Statement of Deficiencies and Plan of Correction" (the 2567). The 2567 that Petitioner used to charge Respondent with the deficiency described in F309 involved only one resident. In order to protect this resident's privacy, the 2567, F309, the Transcript, and all pleadings refer to the resident as Resident 1. F309 alleges that the facility failed to satisfy the requirement of 42 C.F.R. Section 483.25. In relevant part, the federal regulation provides: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Use F309 for quality of care deficiencies not covered by 483.25(a)-(m). F309 alleges that the facility failed to satisfy the requirement of 42 CFR Section 483.25 because: Based on interview and record review the facility neglected to provide appropriate emergency care for [Resident 1] in respiratory distress and failure. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the Manual). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The facility admitted Resident 1 to the pediatric long-term care unit on November 20, 2000. The admitting diagnosis was cerebral palsy, pneumonia and convulsions, a tracheostomy, and a gastrostomy. Resident 1 could breathe on her own and was being weaned from the trach. She could breathe through her nose at times. She was not on a ventilator but could breathe room air. At all times, Resident 1 was making respiratory effort. Resident 1 was on an apnea monitor. Resident 1 had three stomas. Stomas are the openings for the tracheostomy tube. Her throat structures were very frail. She had received numerous throat reconstructions. She had significant scar tissue and a granuloma at her stoma sites. A granuloma is a tumor-like growth. The granuloma was vascular, and the blood vessels were easily broken. Resident 1 was spastic as a result of her cerebral palsy. On September 7, 2001, at 2:50 a.m., Resident 1's apnea monitor alarm sounded. Staff immediately responded to find that Resident 1 had pulled out her tracheostomy tube and was bleeding profusely. Facility staff called 911 and notified the treating physician and the parents. An ambulance was dispatched to the facility at 2:51 a.m. on September 7, 2001. While awaiting the ambulance, the Registered Nurse on duty (RN) could not detect an apical or radial pulse. The RN did not administer CPR. Rather, the RN established an airway by successfully replacing the tracheostomy tube. Securing a patent airway was the first thing that the RN should have done for Resident 1 under the circumstances. No oxygen can be given without a patent airway. It was difficult for the RN to visualize the trach opening because of the profuse bleeding. The RN was able to tactilely reinsert the tube. Vital signs taken by the RN showed that Resident 1 was alive when EMT personnel arrived on the scene. CPR is not appropriate when vital signs are present. The ambulance and EMT personnel arrived shortly after the RN reinserted the trach tube. At 2:56 a.m., EMT personnel took over the care of Resident 1. EMT personnel worked on Resident 1 for 23 minutes before transporting her to the hospital. Resident 1 died at the hospital at 3:35 a.m., 38 minutes after the EMTs took responsibility for her care. EMT personnel generated EKG strips indicating that Resident 1's heart was beating at some point after they took over. Two sets of x-rays subsequently taken at the hospital substantiate that Resident 1 was alive when EMT personnel took over her care. EMT personnel removed the trach the nurse had inserted and replaced it with an endotracheal tube. Removing the trach eliminated the airway that the RN had established for Resident 1 before EMT personnel arrived. The endotracheal tube was 22 centimeters long and significantly longer and larger than the regular trach tube used for Resident 1. The physician's order for Resident 1 stated that nothing should go past 6 centimeters into Resident 1's trach. It took the EMTs three attempts to get the endotracheal tube placed. The EMTs should have hyperventilated Resident 1 before placing the endotracheal tube. They did not do so. The x-ray taken at 3:42 a.m. in the hospital, shows that the endotracheal tube was improperly positioned in Resident 1's lung. All steps taken by the RN were appropriate for Resident 1 under the circumstances. Petitioner failed to show a nexus between any act or omission by the facility and the harm to Resident 1. The care plan for Resident 1 called for suctioning of her tracheal tube. Care plans are to be followed under normal circumstances. Emergency procedures take precedence in critical situations. Suctioning for Resident 1 was appropriate under normal circumstances when she had a patent airway. If Resident 1 did not have an airway, the first priority is to establish an airway. The RN first established a patent airway for Resident 1. It would have been inappropriate for the RN to suction Resident 1 before establishing an airway because it would have sucked out the air remaining in Resident 1's lungs. Suctioning also could have caused a vasovagal response that could stop the heart and could have caused tissue damage. After the RN opened an airway for Resident 1, the next priority would have been for the RN to check for vital signs. The RN checked Resident 1's vital signs after opening an airway, and the vital signs showed that Resident 1 was alive when EMT personnel arrived on the scene. The presence of vital signs made it inappropriate for either the RN or EMT personnel to administer CPR. CPR is appropriate only in the absence of vital signs. When EMT personnel arrived, they continued the same procedure that the RN had followed. EMT first established an airway by removing the trach tube used by the RN and replaced it with an endotracheal tube. The resident had vital signs after placement of the trach and CPR was inappropriate. F282 relates to failure to implement a care plan. Respondent was not cited under F282. Petitioner stipulated in the Prehearing Stipulation that both the conditional license and fine were based on F309 alone.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the allegations in F309 and the Administrative Complaint, dismissing the Administrative Complaint, and changing Respondent's conditional license to a standard license effective September 4, 2001. DONE AND ENTERED this 6th day of September, 2002, 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 6th day of September, 2002. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 2180 Park Avenue, North Suite 100 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3116 Tallahassee, Florida 32308
The Issue Whether the Respondent is guilty of unprofessional conduct. Whether her license as a registered nurse, certificate no. 8829 should be suspended or revoked or whether Respondent should be put on probation.
Findings Of Fact The Respondent, Christine Richter, who holds license no. 88294-2 was employed as a registered nurse at Tallahassee Memorial Hospital, Tallahassee, Florida, during the month of February, 1977. She worked as a certified nurse and anesthetist under Ann Marie Connors, the chief nurse anesthetist. The chief nurse anesthetist reported to the Associate Executive Director April 11, 1977, that there were gross discrepancies in the narcotics record kept by the Respondent and at that time she presented him with some of the records. On April 12, 1977, Respondent was requested by the Associate Executive Director to report to his office for a conference. Nurse Connors, the chief nurse anesthetist, was also called to be present at that conference. At the conference the Associate Executive Director asked Respondent for an explanation as to the discrepancies between the narcotic and barbiturate administration record and the patient records. In reply the Respondent stated that she needed a hysterectomy and could not afford it. Upon the insistance of the Associate Executive Director that she give an explanation for the discrepancy in the hospital records, she indicated that she needed to improve her charting. She gave no explanation for discrepancies in the narcotics chart which she signed, and indicated that she would resign. The Director stated that he would accept her resignation and she left the conference. The Respondent mailed her written resignation to the Tallahassee Memorial Hospital the following day. The Accreditation Manual for Hospitals, 1976 edition, published by the Joint Commission on Accreditation of Hospitals "Anesthesia Services" pages 59 through 64 is used as the standard for anesthetic procedure. A department standard book approved by the American Hospital Association and the joint commission on the accreditation of hospitals is required to be read by each employee of the Tallahassee Memorial Hospital as it pertains to the department in which the work is to be performed. The instructions in the department standards book are the same as in the Accreditation Manual for Hospitals as far as anesthesia services is concerned. Medical records of eight patients were introduced into evidence together with Narcotic and Barbiturate Record no. 081291. This shows the date, time, patient's name, room number, doseage, attending physician and administering nurse. The doseage of drugs secured by and signed for by the Respondent, Christine Richter, was more than the records show was administered to the various patients. No accounting was made for the difference between the amounts of drugs secured and the amounts, if any, administered to the patients, although it is the duty of the nurse checking out drugs to account for its use in writing on a form provided for that purpose. The Respondent offered no verbal explanation for the missing drugs when given the opportunity to explain her actions by the Associate Executive Director at Tallahassee Memorial Hospital and her immediate supervisor, Ann Marie Connors, chief nurse anesthetist.
Recommendation Revoke the license of Christine Richter. DONE AND ENTERED this 12th day of December, 1977, in Tallahassee, Florida. DELPENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Rivers Buford, Jr., Esquire Post Office Box 647 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
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 dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984. During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty. Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense. DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN, 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 June, 1985. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Anthony Martin 4041C NW 16th Street Apartment 109 Fort Lauderdale, Florida 33313 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
Recommendation Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 218 East Forsyth Street Jacksonville, Florida 32202 Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922
