The Issue The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Thomas B. B. Benton, was a licensed medical doctor having been issued license number ME 0053353 by petitioner, Department of Professional Regulation, Board of Medicine (Board). Benton is a 1985 graduate of the University of Florida College of Medicine and has been licensed in this state since 1988. He is also licensed in the State of Texas. He has been a board certified pediatrician since 1989. When the events herein occurred, respondent was practicing as a pediatrician in Gainesville, Florida with privileges at Alachua General Hospital, Inc. (AGH) and North Florida Regional Hospital and an affiliation with Shands Teaching Hospital (Shands) as clinical faculty. Finally, respondent has never been subjected to disciplinary action by the Board or any other medical authority. On September 15, 1989, M. P., then an eighteen year old female, delivered a newborn infant by Caesarian Section (c-section) at AGH. Immediately after delivery, the infant was transferred to respondent's care and placed in the AGH nursery with approximately seventeen other infants. Around 1:15 a.m. on September 16, the infant was found face down in the crib not breathing. After efforts to resuscitate the infant were unsuccessful, it was pronounced dead. An autopsy was performed but the cause of death was not determined. An AGH peer review of the incident concluded that respondent did not act inappropriately. However, because a death had occurred, a "serious incident report" was filed with the Department of Health and Rehabilitative Services which then contacted the Board. This resulted in the Board conducting an investigation and, after determining by a 2-1 vote that probable cause existed, filing an administrative complaint against respondent on February 6, 1991, charging him with having failed to maintain adequate medical records and with failing to adhere to the appropriate standards of care and skill while treating the infant. That prompted respondent to request a hearing to contest the charges in the complaint. The Mother and Her Medical Background The unmarried mother of the deceased infant became pregnant in late 1988 or early 1989. On April 5, 1989, she visited the offices of Dr. Andrew M. Muskus, II, a Gainesville obstetrician and gynecologist. During that visit, M. P. was examined by a nurse and a history was taken. On April 26, Dr. Muskus saw the patient for the first time. She was then approximately seventeen weeks pregnant. Doctor Muskus found her past medical history to be "significant" because M. P. was single, smoked cigarettes, had previous surgery on her femur, had a history of bronchitis and pneumonia, had chronic mild anemia, and had once used alcohol and "street" drugs. However, there is no indication that the mother used drugs or alcohol during her pregnancy. A standard prenatal profile revealed nothing significant except that M. P. had lordosis, or a curvature of the spine. Through the use of an ultrasound imaging taken on May 16, Dr. Muskus determined a due date of October 5, 1989. The ultrasound also indicated the possibility of an early hydrocephalus, that is, enlarged ventricles in the infant's brain, and a low spinous defect. Because of this, Dr. Muskus made an appointment for the patient to have a second tertiary level ultrasound performed at Shands. After those results became available, Dr. Muskus intended to offer the patient the opportunity to terminate the pregnancy if such testing resulted in a poor prognosis for the baby. On May 17, 1989, the ultrasound was performed at Shands and the following findings were made: There is clearly dilatation of the posterior horns with CSF medial to the depending choroid plexus. The cerebellum and other intracranial structures appear normal. The third ventricle does not appear enlarged. The spine appears normal. Amniocentesis was performed under ultrasound guidance and the impression was ventricularmegaly of the posterior horns of the lateral ventricles. The patient was referred to genetic counseling. Although a total of seven ultrasounds were eventually performed, four by Shands and three by Dr. Muskus, no definitive diagnosis was ever made. However, Shands concluded there was a nonexpanding hydrocephalus and "felt" there was a "possibility" of a form of holoprosencephaly and agenesis (absence) of the corpus callosum, a central structure in the midbrain. The absence of this structure meant the baby would have a congenital brain malformation, although such a neurological deficit is not necessarily critical or disabling and may be compatible with continued life. Even so, neither Dr. Muskus nor Shands had an opinion on the infant's prognosis and Dr. Muskus acknowleged that there was some "hedging" by both he and Shands on this issue. After the initial evaluations were concluded, Dr. Muskus spoke to M. P. and indicated there was a problem with the baby. He asked her to make a decision on whether she wanted to continue to term or abort the pregnancy. However, by the time all of the evaluations were concluded, it was too late to terminate the pregnancy and the patient had no choice in the matter. Doctor Muskus accordingly formulated a treatment plan with the assistance of the Shands doctors. The Shands physicians and Dr. Muskus agreed the baby was growing properly, and except for a possible problem with the brain, they forsaw no other difficulties. In addition, they agreed the baby could be delivered vaginally. Although Shands offered to deliver and care for the baby, M. P. had become "disenchanted" with the Shands staff and strongly desired to have the delivery at AGH at the earliest opportunity. Acceding to her wishes, Dr. Muskus agreed to perform a c-section at 39 weeks, or on September 28, 1989, and to have the baby transported to Shands in the event it became necessary. He also made arrangements to turn the care of the baby over to respondent at the time of the delivery. This was because respondent was a pediatrician designated by M. P.'s health insurance carrier (Av-Med). Prior to the delivery, Dr. Muskus spoke to Dr. Benton in the hospital hallway one day to make sure he felt comfortable assuming care of the baby. Respondent replied that he had no problem in doing so. Also, Dr. Muskus sent a letter to respondent on August 18, 1989, a copy of which has been received in evidence as respondent's exhibit 2. The letter read in relevant part as follows: Miss P. is an 18 year old white female who at approximately 20 weeks in the pregnancy was noted to have an abnormal ultrasound which suggested possible early mild hydrocephalus. Subsequently she was referred to Shands Teaching Hospital where a second opinion was requested. An amniocentesis was done at that time and a normal 46XY chromosome analysis was reported along with a normal alpha fetoprotein screen. Dilatation of the posterior horns of the lateral ventricles was noted at that time as well. Subsequently she was followed at intervals by Shands with ultrasounds. Except for the defect noted in the head, the fetus seemed normal otherwise. Most recently, the diagnosis of possible agenesis of corpus callosum was noted. Additionally, although the posterior horns were dilated, the head was not enlarged and the fetus seemed to be growing appropriately. No other ultrasound determined defects were noted. Presently the patient is at 34 weeks in her pregnancy and is due on October 5th. She is quite dissatisfied with her management at Shands, feeling that she has been given contradictory information. She strongly wishes to be delivered at Alachua General by c-section to be done probably in late September. Tom, I wanted to give you some advance information about the patient who really is quite pleasant and also quite nervous about this pregnancy. If any additional information is necessary which you feel I can provide you, please feel free to call upon me. We will make arrangements with your office to coordinate the timing of the c-section. After receiving the letter, and in view of the reference therein to the absence of a corpus callosum, respondent reviewed a pediatrics textbook to familiarize himself with that particular neurological condition. In this way, he became aware of the condition and its ramifications prior to the c-section. It should also be noted here that both of petitioner's expert pediatricians reviewed pediatrics textbooks to familiarize themselves with the same neurological term prior to giving standard of care testimony at hearing. Doctor Muskus considered M. P. to have a "high-risk" pregnancy because of the mother's social problems (she continued to smoke and had once used alcohol and street drugs) and the obvious anatomic problems with the baby. Events Immediately Prior to Delivery Because of lower back ache, nausea, low-grade fever, uterus instability and cramping, which had persisted for several days, M. P. was admitted to AGH on September 14, 1989. However, the patient presented no indication that she was in labor. This was approximately two weeks before her scheduled c-section. On admission, M. P.'s temperature was 101.2 degrees. Standard blood studies and cultures were ordered for the patient but the blood studies revealed nothing (except a mildly elevated blood count) to assist Dr. Muskus in determining "what was going on with the patient". Because Dr. Muskus suspected (but could not confirm) that she may have had pyonephritis, a urininary tract infection, particularly since she had been exposed to a nephew with viral symptoms, he ordered that antibiotics (Rocephin IV) be administered intravenously. As a result, in six hours her temperature reading was brought down to 100.2 degrees. In addition, even though M. P. was not in labor, Dr. Muskus prescribed Terbutaline subcutaneously for uterus irritability. After conferring with two associates, Dr. Muskus decided to delay formulating a treatment plan until he saw the results of the cultures which were due back two days later. However, he later came to the conclusion that even though there was no fetal distress, the patient "looked in obvious distress", and he should move the c-section up from September 28 to the next day, or Friday, September 15. Doctor Muskus accordingly contacted Dr. Benton on the morning of September 15 to advise him that M. P. was in the hospital and of the rescheduled delivery. By this time, the mother's fever had subsided for some twenty-four hours. The Delivery Because respondent only learned of the patient's admission to the hospital and the new delivery date a few hours before the operation, he had only one brief opportunity to speak with M. P. as she lay on the c-section table just prior to being rolled into the operating suite. The nature of that conversation is not of record. 1/ The c-section was a typically planned one - a primary low, transverse-type section. The fetus was monitored until the section was actually started and the infant (a male) delivered in the usual fashion around 12:47 p.m. weighing five pounds, twelve ounces. This was approximately thirty hours after M. P. had been admitted to AGH. Because a very light meconium stain was noted at the time of delivery, the baby's nose, mouth and stomach were suctioned while the head was through the incision. This is a normal procedure when meconium is present. There was no meconium detected below the vocal cords. After the placenta was removed, Dr. Muskus observed a substantial amount of clotting behind the placenta which was caused by a placenta abruption. This means there was a premature separation of the placenta from the uterine wall. The doctor believed there to be a thirty to forty percent abruption and this was later confirmed by the pathology department. However, the mother's actual blood loss related to the c-section was quite low, being about 300 CCs, and there was no need to transfuse her. Further, there was no loss of blood by the fetus. After the baby was delivered, Dr. Muskus clamped the cord and handed the baby to Dr. Benton. According to Dr. Muskus, the baby appeared "like a healthy baby" and he felt that M. P. was "fortunate to get such a healthy- looking child". Indeed, Dr. Muskus noted at hearing that he could not see any difference between M. P.'s baby and any other healthy newborn baby in the maternity wing. He added that there was never any indication of fetal distress in the baby. Events Immediately After Delivery As noted above, when the baby was delivered, meconium staining was observed. Also, the infant required some resusitative techniques. Respondent, who was present in the delivery room, administered oxygen with a bag and mask and suctioned the airways "deeply" with an Ambu intratracheal incubation suction. This produced immediate responsiveness on the part of the baby. Once respondent considered the baby to be stable, he carried the newborn to the head of the operating table and showed it to the mother. The baby was then transferred from the operating suite to the newborn nursery. Just after the delivery occurred, and while still in the operating suite, the baby was examined to determine its Apgar score. An Apgar score is a quantitative scoring system to summarize an infant's condition at birth for the purpose of showing whether intervention by the doctor is appropriate. Five criteria are used with each criterion given a score of zero, one or two. The scores are then totaled with zero meaning a lifeless baby and ten meaning perfectly normal. A score of three and below indicates the baby is in a life- threatening condition while a score of four to seven demonstrates the need for immediate intervention. Anything above seven indicates the baby is normal. In this case, at one minute after birth the infant had an initial score of four due to a "depressed" condition which meant that prompt intervention (resuscitation) was required. After resuscitation was given, the infant's Apgar score was raised to eight within five minutes, which is a normal score. The baby was given a physical examination by respondent within thirty minutes after birth. The examination revealed that the baby was not significantly outside the normal ranges in any examined area. Indeed, all vital signs were stable. More specifically, respondent's examination found no problem with the infant's skin color and tone, head, neck, eyes, ears, nose, throat and heart. Although the baby's respiratory rate was slightly higher than normal, this was not unusual because the mother had previously been given Terbutaline, which tends to increase the heart rate of both mother and fetus. The Nursery AGH had a nursery that was divided into two sections. The front section was for so-called "well-babies" and was designed to hold between fifteen and twenty babies during the transition period immediately after birth. Behind the front section was a smaller intermediate care section with special equipment (respiratory, apnea and cardiac monitors) to handle from six to eight babies who required more attention. Generally, but not always, a newborn is placed on a monitor only with specific orders from the attending pediatrician. It should also be noted that the evidence supports a finding that the use of monitors is not always a reliable method for detecting a problem with an infant. Indeed, one of petitioner's experts acknowledged that an experienced nurse can be better than a monitor. The well-baby section was always staffed by three nurses at any time. Each nurse was responsible for no more than six babies. According to the Guideline for Perinatal Care, this ratio (6:1) is the accepted or normal nurse- to-baby ratio in hospitals. Conversely, the intermediate care section had one nurse for every two babies. As a general rule, a nurse would rotate from baby to baby during her duty shift to verify that the baby was not in trouble. Among other things, the nurse would check the baby's vital signs, color and responses to external stimuli. Although some nurseries have a practice of checking on the "normal" babies every four hours, the AGH nursery staff examined the babies more frequently. AGH is an experienced hospital in terms of delivering and caring for babies. In 1989 alone, there were some 2,000 babies delivered at the hospital. The nurses who were on duty in the nursery on the evening of September 15, 1989, included one with more than twenty years of experience and others who had several years experience in newborn nurseries. There is no evidence to suggest or support a finding that the nurses on duty that evening were not competent and qualifed personnel. Treatment While in the Nursery When the baby was transferred to the nursery, respondent gave a routine standing order that the baby be monitored like all other newborns and that he be immediately notified by the nursery if any unusual event occurred with respect to the infant. He did not order that the infant be placed on a monitor or in the intermediate care portion of the nursery. Finally, he did not advise the nursery staff of the baby's neurological deficit although this information could be easily found in the baby's medical chart. Around 4:00 p.m. that same afternoon, Dr. Muskus briefly visited the nursery to see the baby. He observed that the baby's breathing was unlabored, it had a good pink color, it was moving all extremities well, and it "looked quite comfortable in the crib". At that time, Dr. Muskus told the head nurse that she might want to ask Dr. Benton about the possibility of placing the baby on a monitor given his medical history. Doctor Benton visited the nursery around 4:45 p.m. on September 15 to check on the infant's condition. After he examined the infant and found no problems, the head nurse mentioned to him the suggestion by Dr. Muskus regarding the use of a monitor. Respondent declined to order a monitor on the ground his research on the subject of an absent corpus callosum reflected no mention of associated respiratory or cardiac problems. Since he had no reason to suspect apnea or cardiac arrest, he concluded there was no reason to use a monitor. During the transition period, that is, the first four hours after the baby was born, it was monitored once each hour by the nursing staff. During that time, it was necessary for a nurse to warm the baby with warm water gloves due to a low body temperature. However, this was not unusual for a newborn who has cooled off in the delivery room and has very little fat. During the next seven hours prior to its death, the infant was fed four times and his vital signs were checked on three occasions. Except for a rash, which is common to all newborn babies, and a minor elevation of pulse and respiration, there were no signs of any problems. The baby's vital signs were last checked just before midnight on September 15 and were found to be stable. The baby was found not breathing at 1:10 a.m. the following morning. The cause of its death has never been determined. /2 Failure to Order Further Tests The amended administrative complaint alleges that respondent deviated from the standard of care while treating the infant in a number of respects. One such alleged deviation is his failure to order laboratory studies or x-rays to ascertain if the newborn had sepsis (infection) or anemia. As framed in the complaint, this charge is predicated principally on the factual allegations that "the mother had a fever at delivery" and she suffered a "placental abruption" and thus further tests were warranted. Initially, it is noted that the mother did not have a fever at delivery. While it is true that M. P. had a temperature of 101.2 degrees on admission to the hospital, antibiotics had dissipated the fever within six hours. Moreover, Dr. Muskus's initial suspected diagnosis of pyonephritis had proven to be incorrect, 3/ and the results of cultures, both preliminary and final, confirmed that the mother did not have an infection. Both of petitioner's experts suggest that given the maternal fever and the uncertainty as to its cause, respondent should have ordered such supplementary tests as a complete blood count (CBC), cultures, urine screen (for strep antigen), and chest x-ray to ascertain whether the baby had an infection. However, the more credible and persuasive evidence supports a finding that respondent had no reason to suspect the baby had an infection and therefore such tests were not necessary given the circumstances present here. Respondent reached this conclusion because the mother no longer had a fever and initial tests suggested rather strongly that the mother did not have an infection. Indeed, respondent's judgment was borne out by the mother's culture results which reflected that the mother did not have an infection. In addition, at the time of delivery respondent had the benefit of information from Dr. Muskus that initial reports (after 30 hours) of M. P.'s urine cultures were negative. It should also be noted here that no evidence was submitted by petitioner, including the pathologist's post-mortem report, to establish that the infant had an infection. Finally, because the infant's vital signs were stable, and there was no sign of distress, it was appropriate to merely closely monitor the infant without the benefit of further work-up. Petitioner's experts have also asserted that respondent erred by failing to perform additional tests to determine if the infant was anemic. Anemia is of course blood loss and this occurs most frequently in a newborn in conjunction with a complete separation of the placenta from the uterine wall. Under those circumstances, both parties agree that a CBC with a hemoglobin hemacrit is appropriate. However, a free flow of blood into the uterus or vagina does not occur unless the placenta is lifted completely off of the uterine. In this case, there was only a partial abruption or separation of the placenta from the uterine wall and therefore the possibility of anemia was slight at best. Although anemia cannot be determined solely by physical appearance, the color of a baby is nonetheless a good indicator. Here, a physical examination of the child immediately after delivery revealed that the infant had a good pink color and no abnormal signs, and there were no clinical features of anemia in the baby. Further, petitioner offered no evidence to establish that the infant was anemic. Accordingly, it is found that respondent did not deviate from the appropriate standard of care by failing to order additional tests on the infant to confirm or deny the existence of anemia. Failure to Use Monitor or Intermediate Care Section in Nursery The amended complaint also alleges that respondent deviated from the standard of care by failing "to adequately monitor or (place) said Patient #1 either with cardiac/apnea monitor or placing said Patient in an intermediate care nursery". As noted earlier, respondent chose not to place the infant on a monitor or in the intermediate care nursery. Petitioner's experts have criticized this decision on the ground the baby's history and danger signals justified closer observation than that given in the well-baby portion of the nursery. Respondent did not place the child on a monitor because this action was not indicated. Indeed, there was no suggestion of any increased respiratory risk for the infant, respondent knew that the infant would be checked more frequently than every four hours by an experienced and competent nursing staff, the infant's vital signs were stable, and there was no correlation between the infant's neurological deficit and the conditions for which monitors are used (apnea and cardiac arrest). Therefore, it is found that respondent did not deviate from the standard of care by failing to place the child on a monitor or in the intermediate care nursery. Instructions for the On-Call Physician Paragraph 22 of the amended complaint alleges that respondent "left the hospital (on the evening of September 15) without informing the on-call physician of Patient #1's presence in the nursery, nor informing this physician of Patient #1's multiple medical problems" and that this omission constituted a deviation from the standard of care. It is a common practice in the medical profession for a physician to share on-call coverage with other doctors. This means that when the primary physician is absent, another doctor will cover his patients. Under accepted practice in the medical community, if a newborn is in the well-baby nursery, and its vital signs are stable, there is no requirement that the primary physician give detailed information regarding the infant to the on-call doctor. Further, if an on-call doctor is not expected to have to deal with a problem, no special communication is necessary. In this regard, the judgment of the physician is especially important. Conversely, if special tests have been ordered for the infant, or other unusual circumstances are anticipated, a doctor would generally be expected to telephone or otherwise communicate in some way to the on-call doctor the nature of those circumstances. When the events herein occurred, respondent shared "on-call coverage" with Dr. Sally J. Martin, then a Gainesville pediatrician, and two of her associates. As it turned out, respondent left Gainesville for the week-end after he last saw the infant late on the afternoon of September 15, and Dr. Martin was on-call for his patients. Respondent left no instructions or other information with Dr. Martin concerning this infant. Doctor Martin received a telephone call from the nursery early on the morning of September 16. Upon arriving at the hospital, Dr. Martin found the baby being given resuscitation. However, these efforts were unsuccessful and the baby was pronounced dead at 1:30 a.m. According to Dr. Martin, she was unaware of any "brain problem" with the infant until she reviewed the medical charts that night at the hospital. She found no specific orders in the notes except that respondent planned to monitor the infant closely. Prior to being called, Dr. Martin had no indication from the nursery that the baby was in difficulty or experiencing any problem. However, this was to be expected since the infant's vital signs were stable when it was last checked just before midnight. Respondent did not apprise Dr. Martin of the baby's condition because, in his judgment, he did not believe there was an issue she would have to deal with while she was on-call. Further, the baby presented stable vital signs, appeared healthy, was not in distress, and was being monitored on a frequent basis by an experienced nursery staff. Therefore, respondent's failure to specifically apprise Dr. Martin of the baby's condition was not a deviation from the standard of care. Medical Records The amended complaint also charges respondent with having inadequate medical records in that they indicated "(n)o definitive treatment plan for Patient #1. Specifically, Respondent's only references to the treatment of Patient #1 were to 'monitor closely' and obtain neurological follow-up after discharge". The complaint goes on to allege that respondent failed to keep adequate medical records "justifying the course of treatment" and his actions were inconsistent with the records. Respondent's written records concerning the treatment of the baby include an entry made on September 15, 1989. The entry is found on page 96 of petitioner's exhibit 3. To the extent the undersigned was able to decipher respondent's handwriting, those notes are set forth below: 9/15/89 1:15p Asked to attend c/sect for this 37 1/2 wk old (illegible) Ultrasound dx of hydrocephalus (static) and absent corpus callosum. Mother presented with severe pain R/O (illegible) at 36 hrs (illegible) Meconium stain at delivery (illegible) but none below cords - 40% abruption; Initially no resp effort but responded to bag & mask vent and vigorous stimulation. Apgar 4, 8. Plan to monitor closely, will need neurological follow up after D/C. (Emphasis added) The underscored language constituted respondent's treatment plan. In this regard, petitioner's experts and the complaint allege that (a) Dr. Benton failed to keep adequate medical records justifying the course of treatment and (b) although respondent indicated he was going to monitor the baby closely, he took a different course of action and did nothing other than routine newborn care. According to respondent, the treatment plan meant that after discharge the infant would need closer than normal monitoring and follow-up care, including a referral to a neurologist and perhaps other specialists. The referral to a specialist would be made several months later. There is no evidence to support a finding that respondent made an inaccurate or false statement in his records. Further, there is insufficient evidence to support a finding that respondent failed to document his course of treatment. According to Drs. Hutto and Pashayan, whose testimony has been accepted on this issue, the appropriate course of treatment for this infant, as indicated in the notes, would be to closely monitor the infant in a regular nursery and to follow up as to the congenital defects between six and nine months after birth. Moreover, a regular nursery would be appropriate because the AGH nursery provided more frequent monitoring of the newborns than in other hospital nurseries. In addition, the accepted meaning within the medical community of the words "monitor closely" is that the physician is going to initially closely monitor the baby in the regular nursery to determine if any changes occur, and after discharge, to continue to monitor the child in an out- patient setting for growth, neurological development, and the like. If and when other conditions develop, at that point a different protocol would be required. Thus, it is found that respondent's medical records were adequate in terms of justifying his course of treatment, a neutral third party could glean from the records what transpired during the course of treatment, and respondent's actions did not deviate from the treatment plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against respondent be dismissed, with prejudice. DONE and ENTERED this 7th day of November, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of November, 1991.
The Issue Whether the Department of Health and Rehabilitative Services should take disciplinary action against the respondent for the reasons set out in the administrative complaint?
Findings Of Fact In the name of "Antoinette Aspenleiter, Owner/Operator of MAE's Preschool and Day Care," Respondent was issued a license by the Department on July 9, 1993, to operate a child care facility to serve a maximum of fifteen children in Homosassa, Florida. Prior to securing the license, Ms. Aspenleiter had operated a registered family day care center in her home with a maximum capacity of five children under the age of 5 and five children over the age of 5. A family child care operation in one's home is not required to be licensed, merely registered with the Department. Kerry Hahn is the Children and Family Counselor assigned to Day Care Licensing operating out of the Department's Inverness office. At all times in this case she acted appropriately to carry out the responsibilities of her position. Ms. Hahn first met Ms. Aspenleiter when she registered her family day care center. When complaints were received about over-capacity at Ms. Aspenleiter's registered family day care center, it was Ms. Hahn's duty to investigate them. Complaints of over-capacity, together with Ms. Aspenleiter's desire to provide day care at reasonable prices for families not able to afford day care otherwise, led Ms. Aspenleiter to apply for a license to operate a child care facility. A licensed capacity of 15, in her view, would end complaints about over-capacity. When Ms. Aspenleiter applied for the license, Ms. Hahn gave her a copy of the applicable rules, Chapter 10M of the Florida Administrative Code. Ms. Hahn worked with the prospective licensee extensively to assist her in understanding the rules and after the license was issued, offered her continued assistance. Part of the assistance offered by Ms. Hahn was to show Ms. Aspenleiter how to set apart approximately one-quarter of the largest room in the facility with a partition of plastic milk crates. The partition creates a space for infant care apart from a space for care of the older children. This arrangement allowed the facility to meet the Department's square footage requirements. Had the room been partitioned by a wall instead of the crates, the square footage occupied by the wall would not have been allowed to count as useable square footage for the facility and the facility would have been short of meeting the square footage requirement. On July 12, 1994, the newly-licensed facility opened for business. Ms. Hahn dropped in on the facility shortly after it opened as a routine courtesy she extends to newly-licensed facilities prior to the first quarterly inspection in order to prepare the licensee for such an inspection. She noticed that the isolation area required for licensing and necessary to house children who become ill on the premises had been dismantled. Ms. Hahn explained the importance of the area to the prevention of communicable disease and told Ms. Aspenleiter that it had to be restored. Exactly one month after the opening, Ms. Hahn, at Ms. Aspenleiter's request, visited the facility and reviewed the procedures and requirements for screening new employees. Several weeks later, on Friday, September 3, 1993, Ms. Aspenleiter received a call from her father in New York. He asked her to come home immediately because her mother had been told by her doctor that she was in danger of imminent death. Ms. Aspenleiter had never before left children ordinarily in her care in the care of someone else. But in the face of closing the facility with little notice to the low income families who depended on her in order to visit her mother in New York, she decided to leave the facility open in the charge of two employees, both under the age of 21, who had worked for her for three or four weeks: Bernadette Figueroa and Gina McLaughlin. She assumed that her husband, whose customary role is to assist in care of the children, would help the two out. But he would not be in charge nor would he fill the need for someone at least twenty-one year old to be in charge on the premises. On Saturday, September 4, 1993, Ms. Aspenleiter met with Bernadette, Gina and her husband to give them instructions on operating the facility in her absence. In addition to writing down a typical day's schedule, Ms. Aspenleiter instructed Bernadette and Gina to call Ivy Tendler, a prospective employee over the age of 21 who had been interviewed recently. If she were unavailable, the instructions were to call two other women who were either "certified" or "have clearance." Respondent's Ex. No. 1. Shortly thereafter, Ms. Aspenleiter left by automobile for New York. The instructions stated that if the employees were unable to reach Ivy Tendler or the others that Ms. Aspenleiter should be called in New York on Tuesday. Although she made calls to the facility on the following Monday and Tuesday, neither her employees nor her husband informed her of any problems on those two days. Monday, September 6, 1994, was Labor Day. Ms. Aspenleiter called in the morning and talked to Mr. Aspenleiter but there were hardly any children in attendance for the entire day. On Tuesday, September 7, 1994, a call was made in the afternoon by Ms. Aspenleiter. On Wednesday, September 8, 1994, Ms. Hahn arrived at the day care facility at 8:30 a.m. in order to conduct the first quarterly inspection. There were 10 children, two infants and eight older children, present in the care of Bernadette Figueroa and Gina McLaughlin. The two employees were assisting the eight older children in craft activities. The two infants were asleep in two cribs in the infant care space. The infant care space had been created by the partition of milk crates. The crates were stacked on their sides so that the open top of the crates are exposed to the room in which the older children were cared for. The crates serve the double function of the partition wall and storage. Empty, one can see through the partition because of the open spaces formed by the crosshatched construction of the bottom of the crates. But filled with dolls and toys, as it had come to be by that morning, it is difficult, although possible to see through the partition. Nonetheless, the two infants lying in their cribs below the level of the top of the milk crates could not be clearly seen from the older children's side of the room, particularly because of the visual obstruction of the milk crates' crosshatched bottoms and the articles stored in the crates. To see them clearly from where Ms. Hahn first found the two employees, it was necessary to look over the top of the partition or walk a few feet over to the side of the partition and look over a third crib which formed a partial "third wall" of the infant space. The two employees, without doing so, did not have clear, unobstructed views of the sleeping infants. Ms. Hahn informed the two employees that one of them must be in the infant area with clear vision of the infants at all times. The employee who commenced to comply with the direction left the area on two occasions and had to be directed back. A third time she attempted to leave and Ms. Hahn had to call her back. Photographs introduced into evidence establish that the infant area is in close proximity to the area in which the two employees were located when Ms. Hahn arrived. In reality they are part of the same room; they are separated only by the makeshift partition suggested by Ms. Hahn that, by the photographs, can be, at most, barely 4 feet high and does not stretch much more than halfway across the room. It is not good practice, even dangerous and possibly life-threatening, as established by Dr. Rilea's expert testimony, to fail to keep a constant eye on infants when asleep. But, there is no evidence that Ms. Aspenleiter's employees were not checking on the infants at intervals every so often if not every few minutes, something they could easily do because of the closeness of their location, just a few feet, from the cribs. Ms. McLaughlin answered that she was "probably" in charge, in response to Ms. Hahn's question. Ms. Hahn asked if there were someone over the age of 21 who was coming in and asked for Mr. Aspenleiter to be contacted. When he could not be located, Ivy Tendler was called. Ms. McLaughlin stated that Respondent had told her Ms. Tendler could be called if assistance was needed. Ms. Tendler arrived at the facility between 9:30 and 10:00. Mr. Aspenleiter had been taking his son to school and had done some errands. He arrived at the school after Ms. Hahn. Ms. Aspenleiter called again on Wednesday morning at 9:20 a.m. to see how things were going. Ms. Hahn got on the phone and explained to Ms. Aspenleiter the gravity of not having someone over the age of 21 at the facility. In the meantime, Ms. Hahn examined the facility's personnel records and discovered required background screening had not been completed on either Ms. McLaughlin or Ms. Figueroa. Only one of the two had completed the tuberculosis testing required. Neither had first aid and CPR certification. Ms. Hahn found one of the rooms in the facility which was necessary to be useable space for meeting the total indoor square footage requirements partially blocked by a chalk board. The room had been used that morning by children who left for school and was typically used by these same children after school. The chalk board left space for the children in the facility during the day to enter the room where children of mixed ages played when the "after- schoolers" were present late in the day. Ms. Hahn also found that there was no isolation area in the facility, despite the earlier entreaties to Ms. Aspenleiter in July. In the area for diaper changing, there was an uncovered waste can containing soiled diapers within reach of the children. The outside metal container was so full of soiled diapers that the top could not be secured and no additional diapers could be added from the uncovered container inside. The Department classifies infractions of the child care licensing rules on the basis of the severity of an infraction and the danger it represents to the health and safety of the children. Class I infractions are the most severe and immediate, followed by Class II and Class III infractions. Fines are always imposed for Class I infractions. Fines may be imposed for a first-time Class II infraction, depending on the degree of training and assistance provided by the Department before the infraction. Three of the charges allowed to stand against Respondent were Class I violations: the lack of a staff member over the age of 21, the staff to child ratio, and the lack of direct supervision. The remainder of the charges fall into Class II. The requirement of having a person over 21 is considered a Class I condition, because there must be a person with sufficient experience and maturity to react appropriately in an emergency situation with the children at all times. The requirements that there be an appropriate staff ratio present with respect to the ages of each group of children and direct supervision of children, and especially infants, are considered Class I infractions because infants and children can be seriously injured in a matter of seconds. Direct supervision of infants and the presence of a staff member with infants, even when the infants are napping, are required because infants may choke or become entangled in their covers while asleep. There is also the danger of SIDS, sudden infant death syndrome. The actual number of children in a child care facility varies during the course of a day according to the varying schedules of parents and guardians. Some leave for school from the center; they and others may attend the center after school. In fact, several older children had departed for school shortly before Ms. Hahn arrived and other children were brought in by their parents after the time Ms. Tendler was able to get to the facility. For this reason, the square footage requirement is based on the total number of children authorized and not the exact number of children present at any one particular point in time. The staff-to-child ratio can also vary throughout the day as children come and go. Ms. Tendler had only tried out as a staff member for Respondent for a part of a day before the time Respondent left for New York. Respondent had not formally hired Ms. Tendler or started the background screening or TB testing procedures for Ms. Tendler. Although Ms. Tendler informed Ms. Hahn that she had been screened and tested for a prior job, Respondent had not made an effort to have the clearances transferred to her facility before leaving. Ms. Tendler was certified in first aid and CPR. When Respondent left for New York, she knew or should have known that her husband could not possibly be present the 18 hours a day, from 6:00 a.m. to midnight, the facility was licensed to remain open. Moreover, being in charge was not a role he had ever fulfilled. Respondent also could not reasonably have expected Ms. McLaughlin and Ms. Figueroa to have provided appropriate staff supervision every day, 18 hours a day, for up to 15 children of varying ages Although Respondent asked Ms. McLaughlin to contact Ms. Tendler, Respondent told Ms. Tendler that she would contact her on Sunday, September 5, 1993, about possibly coming to work the next week. Respondent did not attempt to contact Ms. Tendler herself before leaving for New York on Saturday, as would have been most appropriate. Respondent, albeit in the throes of an emergency, relied on two teenagers who had been working for her for less than a month and who were not adequately responsible to assume Respondent's obligation to insure that adequate staff members and a person over the age of 21 were present at all times the facility was open.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding respondent to have violated four rules: Rules 10M-12.002(1)(d)(2), 10M-12.002(2)(a), 10M- 12.002(3)(a) and 10M-12.003(7), Florida Administrative Code. For the violation of Rule 10M-12.002(2)(a), Florida Administrative Code, a Class I infraction, respondent should be fined $100.00. For the remaining three violations, all Class II infractions, respondent should be fined $30.00, apiece, or $90.00, for a total fine to be imposed in this case of $190.00. If not inconsistent with Department policy, Ms. Aspenleiter should be given two months to make the payment in the amount of $95.00 per month. The remaining charges in the Administrative Complaint should be dismissed. DONE and ORDERED this 27th day of May, 1994, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6581 Petitioner's proposed findings of fact Nos. 1 -13, 15, 17 - 19, 21 - 26 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 14 is adopted, in substance, insofar as material with the exception of when respondent first called the facility after leaving for New York. She first called the facility on Monday, September 6, 1993. With respect to Petitioner's finding of fact No. 16, the room to the side of the main room was never completely blocked off and children were observed going to and from the room at different points during the day. Petitioner's Finding of fact No. 20 is rejected as immaterial in light of the dismissal of the charge intended to relate to an "unsafe" outdoor area. COPIES FURNISHED: Ralph J. McMurphy Attorney at Law 3001 West Silver Springs Boulevard Ocala, Florida 34475 Antoinette Aspenleiter Pro Se 7536 Grover Cleveland Boulevard Homosassa, Florida 34446 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Did Mary Moshier violate Section 464.21(1)(b) , Florida Statutes, as alleged in the Administrative Complaint?
Recommendation It is noted as a fact in mitigation that Moshier was suspended for 21 days by the hospital where she worked for the incidents that gave rise to this Administrative Complaint. Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that Mary Moshier be placed on probation for a period of six months for the violation of Section 464.10(1)(f) , Florida Statutes, by using profane language regarding a patient in the vicinity of the patient. DONE and ORDERED this day of May, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Joseph S. Farley, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Beard of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
Findings Of Fact Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. There is competent substantial evidence to support the findings of fact.
Conclusions The Administrative Complaint has charged, concerning patient No. 1, that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent failed to perform the procedure to which the patient consented, a bilateral salpingo- oophorectomy. He did not document in the record that he informed or explained to her that the procedure was not performed and why. His records do not show why the procedure was or was not medically necessary. Additionally, he performed a D&C procedure which was not authorized by the patient; and the records contain no documentation of the fact that he informed her of performing that procedure nor the medical reasons why it was indicated, if it was. Because of this and because he failed to perform the procedure to which the patient had consented, the BS&O, without explanation in his records, it has been proven by clear and convincing evidence that the Respondent is guilty as charged in Count I of violating Section 458.331(1)(t), Florida Statutes, by departing from the medical practice standard mentioned in the paragraph above. It was not established, however, that he failed to inform the patient that the procedure which she consented to was not performed, the records merely do not show that she was informed. Moreover, although her eventual death from ovarian cancer stemmed from the organs which he failed to remove surgically when the patient had authorized them to be removed, it was not shown that they were in a cancerous or pre- cancerous condition at the time he performed the surgery or otherwise that the lethal cancer condition resulted directly from his failure to remove the organs at the time of the surgery some five years prior to the patient's death. It was not shown that he should, for some reason, have foreseen that the organs might become cancerous and ignored the risk or that their removal was then medically necessary. In light of the above Findings of Fact, which are supported by the clear and convincing evidence of record, it has been established that Section 458.331(1)(n), Florida Statutes (1979), now substantially reenacted as Section 458.331(1)(m), Florida Statutes, has been violated by the Respondent's failure to keep written medical records justifying his course of treatment of patient No. 1 by failing to document any reasons for his plan to perform the BS&O procedure, to document any symptoms or complaints by the patient, or to document why he changed his plans and did not perform the planned procedure authorized by the patient. This situation is distinguished from that of Breesman v. Department of Professional Regulations, 567 So.2d 469 (1st DCA 1990), which held that the above statutory section was not violated where a physician failed to document other courses of treatment which he elected not to employ. Here, the Respondent planned the BS&O procedure and then changed his plan during surgery. The basis for the change was unexplained in his records. He did not keep written records containing any description of the patient's fallopian tubes or ovaries, as observed during the operation, nor why he performed a D&C to which the patient had not consented, or why the procedures performed were not discussed with the patient. Concerning Count III, the Petitioner has shown by clear and convincing evidence, which culminated in the above Findings of Fact, describing in detail the Respondent's practice and treatment related to patient No. 2, that the Respondent is guilty of violating Section 458.331(1)(q), Florida Statutes, by administering the legend drug, marcaine, to patient No. 2 other than in the course of his professional practice. The administering of a legend drug inappropriately (here, by epidural catheter) or in excessive or inappropriate quantities (12 milliliters of a 0.75% solution in a patient described as, and under the circumstances of, the above Findings of Fact) was not in the best interest of patient No. 2 and was thus not within the proper course of the Respondent's professional practice. The inappropriate administration and the excessive concentration and volume of marcaine for patient No. 2 prescribed and administered under the circumstances delineated in the above Findings of Fact constitutes a violation of Section 458.331(1)(t), Florida Statutes, as charged in Count IV, because the Respondent has been proven by clear and convincing evidence to have failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under those conditions and circumstances in light of the above factual findings pertaining to this patient. Count V of the complaint involves the charge that the Respondent failed to keep written medical records justifying his course of treatment of patient No. 2. This is a violation of former Section 458.331(1)(n), Florida Statutes (1983), now substantially reenacted as Section 458.331(1)(m), Florida Statutes. The above Findings of Fact, supported by clear and convincing evidence of record, demonstrate that the Respondent failed to document any justification for using a highly-concentrated and dangerous agent, such as marcaine, in a volume which was excessive under the circumstances with which the patient presented (regardless of the allowable maximum dose indicated in a general fashion in the PDR). It was an excessive volume for a patient of this size and weight and medical circumstance, including the circumstance that she gave every indication of being able to accomplish a routine vaginal delivery and thus clearly did not need such an excessive volume and concentration of this drug, given the attendant risks, delineated in the above Findings of Fact, which, indeed, came to pass. The Respondent additionally failed to keep any anesthetic record concerning his evaluation of the patient, a description of his anesthetic technique, nor any justification for his anesthetic plan. Unrefuted testimony from an expert anesthesiologist (Dr. Cross) establishes that an obstetrician who prescribes, dispenses, and administers the anesthetic during a surgical, obstetrical procedure is held to the same standard with regard to anesthetizing patients, caring for patients, and documenting the anesthesia portion of his practice with regard to a patient, as is an anesthesiologist. In Count VI, the Respondent is charged with a violation of Section 458.331(1)(t), Florida Statutes, concerning patient No. 3. As delineated in more detail in the above Findings of Fact, the Respondent failed to take an adequate history and to document the performance of an adequate physical examination of this patient. He failed to correctly assess the patient's laboratory results, to obtain appropriate diagnostic studies and failed to adequately assess, monitor, or treat the patient's pregnancy-induced hypertension, as elaborated in greater detail in the above Findings of Fact. He failed to obtain an adequate or complete history and failed to perform an adequate physical examination. He did not adequately assess or monitor the pregnancy-induced hypertension, failed to adequately treat that condition, failed to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong the patient's pregnancy, failed to adequately assess the patient's laboratory test results, and when there was evidence that the baby was in distress, failed to deliver the pregnancy immediately. The above Findings of Fact show, based upon clear and convincing evidence, that the Respondent prescribed, dispensed, administered, mixed or otherwise prepared legend drugs inappropriately or in excessive or inappropriate quantities, not in the best interest of the patient, by prescribing aldomet for the patient. This may have decreased placental perfusion or blood flow. Prescribing lasix for the patient also can decrease placental blood flow and create electrolyte imbalances. It was also inappropriate to prescribe yutopar to prolong the high-risk pregnancy and to prescribe a corticosteriod cream for the patient as treatment for her condition (swelling), which the Respondent had never diagnosed nor assessed. This amounts to prescribing, dispensing, administering, etc. legend drugs not in the course of the Respondent's professional practice, in violation of Section 458.331(1)(q), Florida Statutes. Concerning Count VIII of the complaint, clear and convincing evidence, supportive of the above Findings of Fact, established that the Respondent's written medical records do not justify the course of his treatment of patient No. 3, including, but not limited to, the patient's history, examination test results, and the failure to document any justification for the Respondent's failure to adequately assess, monitor and treat the PIH. They do not contain justification for the failure to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong pregnancy; the failure to assess and diagnose the swelling and the failure to adequately treat the patient during the C-section. They contain inaccurate documentation to the effect that the patient had a "saddleblock" anesthesia, when other medical records reveal that it was an epidural anesthesia. The records do not document that the patient's laboratory test results were adequately assessed; and there is no documentation of either an initial assessment of the infant or his resuscitation efforts shortly after delivery. This recordkeeping deficit amounts to a violation of Section 458.331(1)(n), Florida Statutes (1981) (now Section 458.331(1)(m), Florida Statutes). Concerning Count IX of the complaint, for all of the reasons delineated in the above Findings of Fact with regard to patient No. 4, it has been demonstrated that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This is shown by the failure to obtain an adequate or complete history, to perform an adequate physical examination on the various dates delineated above, to adequately assess, diagnose and treat the patient by failing to attempt a vaginal delivery, and the failure to obtain informed consent from the patient for sterilization prior to C-section. Additionally, the Respondent failed to adequately assess, diagnose and treat the lacerated cervix, and failed to adequately treat the patient during her postoperative recovery period. Thus, a violation of Section 458.331(1)(t), Florida Statutes, has been established by clear and convincing evidence in these particulars. It has also been so demonstrated that by prescribing the antibiotic, garamycin, without ordering attendant renal function studies (because of the potential for kidney damage) and by changing the route of that medication to a less effective means (oral), even though the patient remained febrile, amounts to prescribing, dispensing, administering, etc. a legend drug, other than in the course of his professional practice and inappropriately, for purposes of Section 458.331(1) (q), Florida Statutes (Count X). Concerning Count XI, it was established, as shown by the above Findings of Fact, that the Respondent failed to keep written medical records justifying the course of treatment of patient No. 4. He failed to document a complete history of the patient and failed to make an adequate or complete physical examination. He recorded no justification for the failure to attempt to deliver the patient vaginally; to document any justification for continued use of the nasogastric tube after the patient began eating; to document any justification for not ordering renal function studies with the use of the above- named antibiotic and failed to document any justification for changing the route of administration of that antibiotic in a febrile patient. He recorded statements in the discharge summary which are directly contradicted by the Respondent's statements in the medical records; and failed to document any explanation for the contradictory statements contained in these records. This constitutes a violation of Section 458.331(1)(m), Florida Statutes. Concerning Count XII of the complaint, the Petitioner has demonstrated by clear and convincing evidence, culminating in the above Findings of Fact, that the Respondent is guilty of unprofessional conduct, incompetence, and negligence, in violation of Section 458.1201(1)(m), Florida Statutes (1977), now incorporated into Section 458.331(1)(t), Florida Statutes (1989). Unprofessional conduct shall include any departure from or the failure to conform to the standards of acceptable and prevailing medical practice within a physician's area of expertise, as determined by the Board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of a physician's practice. There is no question, given the above Findings of Fact, that the Respondent did not conform to standards of acceptable and prevailing medical practice within his area of expertise in his conduct of the care and treatment of patient No. 5. Thus, he has committed a violation of Section 458.331(1)(t), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, as well as the disciplinary guidelines and the consideration of aggravating and mitigating circumstances as provided for in Rule 21M-20, Florida Administrative Code, official recognition of which was taken; to wit, the exposure of the patient to injury or potential injury, the number of counts of separate offenses proven, and the disciplinary history of the licensee, it is therefore, RECOMMENDED that the Respondent be found guilty of violating Subsection 458.331(1)(g), Florida Statutes, as concluded hereinabove, with regard to Case No. 90-2680, but, in consideration of the above-referenced circumstances, that no penalty be imposed. With regard to Case No. 89-6489, it is RECOMMENDED that the Respondent be found guilty of violating the above enumerated subsections of Section 458.331(1), Florida Statutes, as concluded above, and that the Respondent's license to practice medicine in the State of Florida be revoked. DONE AND ENTERED this 9th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-6489 and 90-2680 Petitioner's Proposed Findings of Fact Case No. 90-2680 1-5. Accepted. 6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-8. Accepted. Rejected, as not in accordance with clear and convincing evidence. Accepted. 11-12. Accepted. 13. Rejected, as not in accordance with clear and convincing evidence. 14-20. Accepted. Case No. 89-6489 1-7. Accepted. 8. Rejected, as it was not established with clear and convincing evidence what the patient believed. 9-13. Accepted. 14. Rejected, as not entirely supported by the evidence and as subordinate to the Hearing Officer's findings of fact. 15-28. Accepted. 29-69. Accepted. 70-83. Accepted. 84-95. Accepted. 96. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 97-103. Accepted. 104-120. Accepted. Respondent's Proposed Findings of Fact Case No. 89-6489 Accepted, except as to time period noted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Case No. 90-2680 Accepted, in part, but subordinate to the Hearing Officer's findings of fact. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mary B. Radkins, Esq. Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Elliott F. Monroe, M.D. 2709 Arden Panama City, FL 32401
The Issue Whether Respondent violated Section 65C-22.001(5)(a), Florida Administrative Code, as set forth in the Administrative Complaint, and if so whether a civil penalty in the amount of one hundred Dollars ($100.00) should be imposed.
Findings Of Fact Respondent is a duly-licensed day care facility, licensed by Petitioner, in accordance with Sections 402.319, Florida Statutes, and has been in operation for eight years. Respondent has never been cited for any prior violation. Respondent has elected to provide child care for both infants and toddlers as a convenience for its patrons. Petitioner's rules provide that toddlers must be physically separated form infants. Respondent has accomplished this physical separation by taking a portion of the room in which it keeps toddlers, and creating a separate area for infants using low bookcases to physically separate the toddlers form the infants. This has been the subject of debate and controversy between Petitioner and Respondent over time; however, it was concluded that this met the conditions established in the rule regarding separation and the two areas met size limitations. It was determined that Respondent would have to meet the staffing requirements by maintaining a staff ration of 1:4 in the infant area and a staff ratio of 1:6 in the toddler area. On August 10, 2001, an incident occurred which resulted in Petitioner's staff reviewing video footage of activities in the toddler/infant room. The instant complaint arises from those observations. At formal hearing, the video was introduced and watched by the trier of fact. This video shows most of the toddler/infant room as seen from above and behind the infant section. The video covers a period of time of approximately twenty minutes around 1:35 p.m.1 In summary, the video shows the person in charge of toddlers leave the toddlers/infant room leaving the infant care supervisor holding an infant in the infant area. The infant care worker steps over the barrier between the two areas of the room, and changes the infant at a changing station located in the toddler area of the room. The toddler supervisor returns and the infant supervisor leaves to go to the bathroom returning several minutes later. All of these events occurred during the period designated on the facility's schedule as "nap time." During the period in question, not all the toddlers or the infants were asleep, and one of the toddlers was in a high chair eating a snack the entire time. Petitioner alleges, based upon the foregoing, a violation of Rule 65C-22.001(5)(a), Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint should be dismissed. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 12th day of September, 2002.
Findings Of Fact Florida originally licensed respondent Gladys Milton as a midwife in October of 1959. In almost three decades as a lay midwife, she delivered more than 2,000 babies, including about 50 in the last three years. Until HRS suspended her license in November of 1988, on the same grounds alleged in the original administrative complaint at issue here, but without a hearing, she operated the separately licensed Milton Memorial Birthing Clinic, adjacent to her home at Flowersville, in Okaloosa County, near Paxton. No other lay midwife practices in Okaloosa or Walton Counties. Originally, Ms. Milton, who had already worked several years in a hospital, delivered babies at their mothers' homes, after training arranged by the county health department; a Walton County public health nurse recruited her as a midwife. At the time, Ms. Milton believes, there were those who did not want poor black women giving birth to "contaminate" (T.II.105) hospitals in the area. But R.L., W.S., A.H. and Vickie McNeely are all of fair complexion, and "half of [respondent's] patients now could [afford to] go anywhere they wanted to go." T.II.114. Born "in the Cane Creek area" (T.II.102) of Walton County some 64 years ago, Gladys Milton is herself the mother of seven children. A daughter, Maria, who has trained as a lay midwife and was awaiting the results of a licensure examination at the time of hearing, assisted her mother professionally. Dr. Tariq Abdullah, a son, duly licensed as a physician in Florida, practices in Flowersville. His office is "right next door to the clinic." T.II.98 Agreed Supervision Extending an earlier agreement, HRS entered into a supplemental agreement with respondent dated March 14, 1986. In pertinent part the agreement provided: 2. Milton shall present all current patient records for review . . .once per month, at the Walton County Health Department. . . The review as described in paragraph 2 shall continue until Milton demonstrates substantial compliance with the rules and laws governing lay midwifery for three consecutive months. . . 6. HRS shall have the right to verify Milton's risk assessment during the term of this Agreement by either sending a representative to the patient's home or at the Health Center. In the event that the first five risk assessment validations performed by HRS verify Milton's proper assessment according to the rules governing lay midwives, then HRS may only verify an additional two patients. If the first five risk assessment validations reflect that Milton improperly assessed one or more of said patients, then HRS may continue its risk assessment for a total of ten patients. HRS shall promptly notify Milton of any assessments which differ from Milton's. Such notice shall be in writing. In the event that the risk assessment validations are not completed prior to the period of time for record review as described aforesaid expires, then this Agreement shall remain in force and effect, although solely with respect to this paragraph, until said risk assessment validations are performed by HRS. HRS may designate representatives from the Walton County or Okaloosa County Public Health Units to make the assessments. The failure of HRS or the aforementioned County Public Health Units to confirm a risk assessment after reasonable notice of the name and address of the patient by Milton shall constitute a "validation" for purposes of this paragraph. Impossibility of performance shall not result in validation. Petitioner's Exhibit No. 2. As Ms. Milton understood it, she was to refer at least five of her clients to the Walton or Okaloosa County Public Health Units, in order that HRS personnel there could verify the clients' low risk status. Respondent Milton referred several expectant mothers to one or the other county health department for verification of their low risk status. She asked them to present themselves for evaluation. The evidence did not show whether she gave formal, written notice of their names and addresses. Penelope Linda Carter, an advanced registered nurse practitioner who works at the health department in Okaloosa County, verified that four or five of the people Ms. Milton sent were properly classified as being at low risk. As far as the record reveals, she did not conclude that Ms. Milton had so classified anybody improperly. When Dr. Ramos, a physician employed by the health department in Okaloosa County, evaluated one of the patients respondent Milton sent to the health department, she indicated on a written form that she needed more records from Ms. Milton, before deciding whether the patient had properly been classified as being at low risk. But she did not, apparently, communicate with Ms. Milton about this patient. Other people who presented themselves for verification of low risk status were not initially evaluated because they did not bring records with them. Some of those turned away for this reason may have failed to return to the health department. On at least one occasion, Ms. Carter called Ms. Milton and asked for more records, which Ms. Milton sent. In light of the provision that the "failure of HRS or the . . . County Public Health Units to confirm a risk assessment after reasonable notice of the name and address of the patient by Milton shall constitute a `validation' for purposes of the, "Petitioner's Exhibit No. 2, parties' agreement, the evidence did not show that respondent Milton failed to comply with paragraph (6) of the agreement. The patients' voluntary, physical presence made any formal, written notice of their names and addresses superfluous. The evidence did not show and HRS did not allege that respondent failed to make timely, periodic submissions of her records, during the first three months the parties' 1986 agreement was in force. Nor did HRS prove that respondent had in any other way failed to demonstrate "substantial compliance with the rules and laws governing lay midwifery for three consecutive months." Petitioner's Exhibit No. 2. Failure to send records to the health department along with expectant mothers did not make evaluation impossible, since the records were available for the asking. No evidence suggested that respondent miscategorized any of the expectant mothers whose risk assessments were verified under the agreement. R. L. As a general rule, the uterus elongates one centimeter for every week of gestation. Ms. Carter, the nurse practitioner at the Okaloosa County Public Health Unit who was following R.L.'s pregnancy, had not diagnosed intrauterine growth retardation, but was concerned about the possibility, when she suggested R.L. make arrangements with a physician for delivery. The health department offers eligible expectant mothers prenatal care, but does not deliver babies. Although R. L. decided she wanted Gladys Milton's services, she also sought prenatal medical care. But, when she appeared for her appointment at the Northwest OB/GYN Clinic, and "informed them that she was going to a midwife for delivery. . prenatal services were not provided." T.I.178. Ms. Milton remarked the apparent discrepancy between fundal height and gestation age that was the basis of Ms. Carter's concern. Under Gladys Milton's care, R.L.'s uterus was eventually six centimeters shorter than might have been anticipated, given the supposed duration of her pregnancy. In progress notes she kept, she used the hieroglyph "S =/ D" to represent a "size for dates" discrepancy. After Ms. Milton asked her son, Tariq Abdullah, to arrange for a sonogram, Dr. Prevost ordered the test, which revealed less than an average amount of amniotic fluid in the uterus on August 19, 1988. The sonogram report estimated fetal weight at 2841 grams and "place[d] the EGA at 38 weeks." Petitioner's Exhibit No. 14, P. 87. The finding that the volume of amniotic fluid was "at the lower limits of normal," Petitioner's Exhibit No. 14, p. 87, tended to dispel the suspicion of intrauterine growth retardation which had inspired the test. Whether a reduction in amniotic fluid of this magnitude could account for the entire six centimeters was not clear from the record. Ms. Milton asked Dr. Abdullah to order a "nonstress test" to monitor the fetus' movement and heartbeat under ordinary conditions. The results of this test were "NR," Petitioner's Exhibit No. 13, p.28, (not remarkable), according to respondent's progress notes. Id. Meanwhile HRS personnel enlisted respondent's cooperation in persuading R.L. to go for another "nonstress test" at Sacred Heart Hospital in Pensacola. At the urging of Ms. Milton and others, R.L. went for a second test. After seeing the results of the second "nonstress test," the doctors ordered yet another test, a "stress test," then diagnosed "asymmetric intrauterine growth retardation." Until then, apparently, no practitioner had diagnosed intrauterine growth retardation. On September 1, 1988, during the same hospital visit that yielded the diagnosis, R.L. was taken into surgery, and a Caesarean section was performed. Mother and baby did well. Whether the newborn girl weighed more or less than the six pounds eight ounces that her older sibling weighed at birth, Petitioner's Exhibit No. 14, p. 93, the record did not establish. W.S. W.S. gave birth to her third child at the Milton Memorial Birthing Clinic. Entering the world, the baby left her with a third or fourth degree laceration, "a complete tear about five centimeters up the rectum." Deposition of Crotzer, P. 7. W.S. did not experience "extreme pain," she testified, or the excessive bleeding which is normally associated with such an injury. Unaware of the severity of the perineal tear, Ms. Milton mistakenly told W.S. that it was a "small tear." (T. II. 17). There is some possibility that swelling and scar tissue made the diagnosis unusually difficult: W.S. suffered a similar laceration in the course of giving birth to her second child. But Ms. Milton conceded at hearing that she had made an error. When Ms. Milton offered to refer W.S. to her son, Dr. Abdullah, to be sewn up, W.S. said she did not want to be sewn up unless it was necessary: "not if I don't have to be." T.II.17. But her decision was undoubtedly influenced by respondent's mischaracterization of the tear as "small." When the extent of the injury became clearer to her, she agreed to its repair, which had already been scheduled, at the time of the hearing. H. At eight weeks and 180 pounds, A.H. went to an obstetrician, Thomas H. Moraczewski, who practices in Ft. Walton Beach. Later, when she decided she wanted to be delivered by a midwife, Dr. Moraczewski saw no medical reason why she could not be. Dr. Moraczewski wrote A.H. on August 17, 1988, as follows: This letter will serve to document your recent decision of July 29, 1988 visit to no longer continue your obstetrical care with our office but to have the remainder of your pregnancy managed and your delivery with the nurse [sic] mid-wife, Gladys Milton. Your pregnancy, as you know, has been excellent to date and we certainly anticipate at this time no major problems. We certainly wish the remainder of your pregnancy well and we hope that the labor and delivery experience will be positive for you. As I discussed in the office, I have no professional affiliation with the mid-wife nor do I serve as an emergency back up for her patients. Should problems in your labor arise, the mid-wife will have to make arrangements for physician evaluation with her usual back up doctor, which I presume is her son. His obstetrical experience is unknown to me. During her pregnancy, A.H. gained more than 50 pounds. When her daughter was born at the Milton Memorial Birthing Clinic, she weighed eleven pounds twelve ounces (which is in excess of 5,000 grams.) An experienced midwife should not misjudge fetal weight by 1,000 grams more often than once in 50 or 100 deliveries. But obstetricians, as well as midwives, do make such misjudgments. An obstetrician might have been surprised at the size of A.H.'s baby, despite fundal heights of 35 centimeters at 33 weeks, 38 centimeters at 35 weeks, and 40 centimeters at 37 or 38 weeks. (The records are ambiguous.) Neither A.H. nor anybody else criticized the way respondent handled the shoulder dystocia that complicated the delivery. Although the child has some loss of feeling or function or both in one of her arms, which A.H. attributes to the manner of her birth, no medical opinion supported that connection; and A.H. does not hold Gladys Milton responsible in any way. Shoulder dystocia is unpredictable and difficult to manage even in a hospital setting. Stillbirth On what was apparently her last visit to his office, a gynecologist in Crestview told Vickie McNeely (now Stevens) she was pregnant. Later, at Tallahassee Memorial Regional Medical Center's family planning clinic, she saw Dr. Johnson, who recommended a repeat ultrasound, in order better to gauge the fetus' age, and a spondylolisthesis consult. After seeing Dr. Johnson, she went to the Wakulla County Public Health Unit for prenatal care there. Although Ms. McNeely had moved to Crestview in November of 1986, she still owned a house in Wakulla County jointly with her estranged husband, and, at least until her car "blew up," travelled to the area, in connection with her work as a jewelry salesperson. Back in Crestview, she went to the Okaloosa County Public Health Unit for prenatal care, before and after going to the Milton Memorial Birthing Center. But she had gone without prenatal care between the tenth and 35th weeks of her pregnancy. Lacking health insurance or other means to pay for the services of an obstetrician and near the end of her pregnancy, Ms. McNeely considered and rejected the idea of a home birth with only her mother and boy friend on hand. After she heard about Gladys Milton (at the Okaloosa County Fair) she sought her out. Initially, on November 19, 1987, Ms. Milton declined to accept Ms. McNeely as a patient, because she lacked written evidence of a physician's evaluation. But Ms. McNeely told her that she had been seen in Tallahassee by a physician, at about ten weeks. Ms. Milton asked her to secure documentation of her visit to Dr. Johnson, which she did. She also showed Ms. Milton unsigned reports of two sonograms that revealed no abnormalities. T.11.69. The same Tallahassee cousin who somehow arranged the original sonogram for free arranged for a second, free "unofficial" ultrasound procedure in the sixth or seventh month of her pregnancy. No spondylolisthesis consult ever took place. What significance this omission might have with regard to any hazard of birth the record did not disclose. With respect to her spondylolisthetic history, Dr. Johnson had written, "I do not foresee any problem." T.11.169. Ms. McNeely told Ms. Milton that she smoked ten cigarettes a day, information she said she also gave public health personnel in Wakulla and Okaloosa Counties. Okaloosa County Public Health Unit staff, who knew she had decided to be delivered by a lay midwife, did not tell her the fetus was too large or that such a delivery would be unwise or unlawful for any other reason. On November 30, 1987, after Ms. Milton had accepted her as a client, but before her second scheduled examination, Vickie McNeely, Matthew Stevens (whom she married February 20, 1988, once her existing marriage was dissolved) and Sharon Hooper, Vickie's mother, headed north from Fort Walton Beach to Flowersville, arriving shortly after midnight, perhaps as late as one o'clock in the morning on December 1, 1987. Roughly two hours later, at approximately three o'clock, amniotic fluid began to trickle down Ms. McNeely's legs "not a gushing," T.11.172, but proof membranes had ruptured. "Labor means the onset of regular contractions, generally five minutes apart, that lead to progressive dilatation and effacement of the cervix and descent of the presenting part." T.I.211-2. Hoping to induce labor, Gladys Milton told Ms. McNeely to walk around, and she diligently complied. Eventually, Maria Milton told her she need not walk continuously, and urged her to rest from time to time. These instructions did not represent a dispute between Gladys and Maria about Ms. McNeely's walking. T.II.72. Early on in her stay at Milton Memorial Birthing Center, Ms. McNeely ate chicken and dumplings and drank Pepsi- Cola she was given. Later she, her mother, Gladys and Maria Milton and Matthew Stevens all drank red raspberry tea. Ms. Milton offered none of this food and drink to induce labor or for any other medicinal purpose. Gladys Milton gave Ms. McNeely about a half dozen vaginal examinations, during her final day and a half stay at the Center. At two o'clock on the afternoon of December 1, 1987, contractions occurred at intervals of 7 to 10 minutes. The cervix was 20 percent effaced and dilatation had occurred to the extent of three centimeters. Progressively from that point, although slowly, the contractions grew in intensity and frequency, occurring at five minute intervals at 12:15 a.m. on December 2, 1987, and culminating in the baby's birth, at half past ten o'clock (10:32) on the morning of December 2. Because Dr. Abdullah had set out for Panama City about an hour earlier, he was not present when shoulder dystocia interrupted the baby's egress: a shoulder lodged so that the baby did not rotate and come out the rest of the way even after his head had been delivered. Maria, at her mother's direction, applied suprapubic pressure as Vickie lay supine on the only bed in the Milton Memorial Birthing Center. When this did not avail, Gladys asked Vickie to get on her hands and knees. When she had done so, Maria renewed the suprapubic pressure, while Gladys attempted the "corkscrew maneuver," but they failed to dislodge the baby. Vickie resumed a supine position and Maria again applied suprapubic pressure. Only after Gladys Milton performed the first and only episiotomy of her career was Michael born. Ms. Hooper saw him turn blue, darker blue, virtually black before he made a complete entry into the world. Gladys cleared his air way with a DeLee suction device before trying briefly to resuscitate him with an "ambu-bag," but that did not work very well, and she resorted to mouth to mouth resuscitation, which did not avail, either. The child may have been irretrievable before he escaped his mother's birth canal. At the hospital to which he was taken, he was pronounced dead from asphyxiation. There was no proof that the records were altered in any way. There was no credible evidence that Ms. Milton urged non-cooperation on anybody's part with any health or other authority. Since Ms. McNeely was not obese, palpitation should have permitted an experienced midwife to predict, even in the absence of a size for dates discrepancy or any extraordinary weight gain, that her baby would probably weigh more than 4,000 grams, a likelihood to which the length of her labor also pointed. In fact, the baby weighed 4,660 grams.
Recommendation In determining the appropriate penalty to be imposed, Rule 10D-36.055(1), Florida Administrative Code, provides that the following factors shall be considered: the severity of the offense; the danger to the public; the number of repetitions of the offenses; the length of time since the last violation; the number of disciplinary actions taken against the licensee; the length of time licensee has practiced; the actual damages, physical or otherwise, to the patients the deterrent effect of the penalty imposed; the effect of rehabilitation; any other mitigating or aggravating circumstances. Taking these factors into account, to the extent there was evidence on them, it is RECOMMENDED: That the Department of Health and Rehabilitative Services suspend respondent's license as a lay midwife for one year, with credit for the time her license has already been suspended. DONE and ENTERED this 26th day of September, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 2, 6 and 8 have been accepted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, substandard care was not proven in the cases of A.H. and R. L. Petitioner's proposed findings of fact Nos. 3, 4, 5, 7, 10 and 11 have been rejected as unsupported by clear and convincing evidence. With respect to petitioner's proposed finding of fact No. 9, no medical opinion supported the alleged connection between problems with her arm and birth trauma. Respondent's proposed findings of fact Nos. 1, 7, 8, 9, 11, 13, 14, 16-19, 21-26 and 31-34 have been accepted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 2-6, see pp. 5-7 of the recommended order. Respondent's proposed findings of fact Nos. 10 and 12 have been rejected as against the weight of the evidence, or as not established by the evidence. With respect to respondent's proposed finding of fact No. 15, her determination was disputed, although clear and convincing evidence did not show that she was wrong. With respect to respondent's proposed finding of fact No. 20, she should have known the McNeely baby was over 4,000 grams. Respondent's proposed finding of fact No. 29 relates to a subordinate matter. With respect to respondent's proposed findings of fact Nos. 27 and 28, it is appropriate for the midwife to refer to a physician in these circumstances. COPIES FURNISHED: John Miller, Esquire 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Thomas D. Sherman, Esquire 218 Almeria Avenue Coral Gables, Florida 33134 Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact Based upon all of the evidence, including the pleadings and stipulated record, the following findings of fact are determined: On November 7, 1989, the Department of Professional Regulation (DPR) received a copy of a Serious Incident Report (SIR) prepared by Alachua General Hospital in Gainesville, Florida. The SIR was filed pursuant to law and indicated that a newborn infant baby had died at the hospital on September 16, 1989, while under the care of petitioner, Thomas B. B. Benton, a licensed medical doctor and pediatrician. After the SIR was received, a DPR investigator conducted an investigation of the incident, including interviews with petitioner, six involved nurses, the obstretrician at delivery, and the pediatrician who responded to the emergency code at the hospital. The investigator also obtained the medical records of the mother and baby. On February 22, 1990, a one hundred seventeen page investigative report, consisting of the investigator's notes, medical records, SIR, and other related information, was issued. A copy of the investigative report was given to a board certified pediatrician on August 24, 1990, who reviewed the report and records with a focus on petitioner's care and treatment of his patient. The consulting physician was asked to answer nine specific questions, including whether petitioner prepared and kept written medical records justifying the course of treatment of the patient and whether petitioner met the applicable standard of care in his examination, diagnosis and treatment of the patient. Also asked were questions pertaining to whether petitioner had adquately assessed the patient's condition, whether it was inappropriate to place the patient in the regular nursery without a monitor, and whether it was inappropriate for petitioner to not inform the on-call doctor of the patient's condition. In response to this charge, the consultant prepared a twelve page analysis of the case with responses to each of the nine questions. The analysis contained an ultimate conclusion that petitioner had failed to meet the applicable standard of care with regard to his diagnosis and treatment of the baby and, with respect to the adequacy of his records, petitioner had failed to document his medical records with a definitive treatment plan and with reasons for not ordering certain tests on the infant. The investigative report and consultant's analysis were given to a probable cause panel on January 28, 1991. The panel was composed of two doctors and a lay person, all members of respondent, Board of Medicine (Board). After a discussion of the report and analysis, which the record shows was a meaningful inquiry, the panel found, by a 2-1 vote, probable cause that a violation of Subsections 458.331(1)(m) and (t), Florida Statutes, had occurred. Those subsections impose requirements that a physician keep adequate written medical records and adhere to the appropriate standard of care. The panel also recommended that DPR issue an administrative complaint. It is noted that the two panel members voting in favor of prosecution expressly relied on the consultant's report. On February 6, 1991, a two-count administrative complaint was issued by DPR alleging that petitioner had violated subsections 458.331(1)(m) and (t) in several respects. As to subsection 458.331(1)(m), the complaint alleged he had failed to document his reasons for not ordering a cardiac/apnea monitor, had failed to document his reasons for not ordering studies to assess the patient for the possibility of sepsis, and had failed to document a definitive plan of treatment. As to subsection 458.331(1)(t), it need only be said that the complaint alleged generally that petitioner failed to adhere to the standard of care while treating the infant. After petitioner requested a formal hearing to contest the charges, the complaint was forwarded to the Division of Administrative Hearings and was assigned Case No. 91-2367. Several months prior to hearing, DPR amended its first count in the complaint to delete the two allegations that respondent failed to document reasons for not ordering certain tests. In lieu thereof, it added an allegation that there was a contradiction between petitioner's recorded plans to closely monitor the infant and his subsequent conduct, an allegation also based on an alleged violation of subsection 458.331(1)(m). This amendment was made after petitioner had filed a motion to compel discovery seeking the basis for the two factual allegations and whether they contravened the holding in Breesmen v. Department of Professional Regulation, 567 So.2d 469 (Fla. 1st DCA 1990). Conceding as much that they did, the Board thereafter filed an amended complaint. Because the Board was a party to that case, and the issuance of the opinion predated the panel's meeting, it must be assumed that the panel and its counsel were aware, or should have been aware, of the case's holding when the matter was considered. Therefore, the Board's decision to bring the two deleted charges in Count I was not substantially justified. After an evidentiary hearing was conducted, a recommended order was issued on November 7, 1991, recommending that the complaint be dismissed with prejudice. This recommendation was adopted in toto by the Board and a final order dismissing the complaint was issued on February 25, 1992. The recommended and final orders are reported in Department of Professional Regulation v. Benton, 14 F.A.L.R. 1924 (Board of Medicine, February 22, 1992). Because no appeal was taken, the Board's order is now final. Petitioner contends that the consultant's analysis is at odds with the information available to the probable cause panel and thus the panel's reliance on the analysis resulted in a flawed decision to prosecute. More specifically, petitioner focused on that part of the analysis which concluded that he failed to perform certain follow-up tests on the patient, failed to place the patient on a monitor or under closer supervision in the nursery, and failed to inform the on-call physician about the patient's medical problems. All relate to the general charge in Count II that he failed to conform to the appropriate standard of care. To support her conclusion that petitioner failed to perform certain follow-up tests, the consultant noted that at the time of birth, the patient's mother had had a fever for several days and the infant was at risk for sepsis (infection), the infant had known neurologic abnormalities, the mother had experienced placental abruption and thus the child may have had anemia, and the child was at risk for respiratory problems from possible meconium aspiration. Although the medical records showed that the mother's fever had actually subsided before the C-section was performed, the mother had experienced fever for several days just prior to the date of delivery and was on antibiotics. The records also reflected that the child had neurologic abnormalities, meconium staining was present at birth, and the mother had a partial placental abruption during delivery. Therefore, the consultant's analysis as to this allegation was substantially in accord with the medical records, and the panel had a reasonable basis in fact to bring this charge. The complaint also alleged that petitioner failed to adequately monitor the baby after it was placed in the nursery. This allegation was drawn from a recommendation by the consultant, whose conclusions were based on two considerations. First, the infant had known neurologic abnormalities and other risk factors, as discussed in the previous finding. Second, the consultant opined that the regular nursery was a "busy nursery", the nurses did not have "many years of nursing experience", and "all worked (in the newborn nursery) less than one year". The latter opinion was predicated on certain investigative notes and the consultant's review of statements made by six nurses. Petitioner asserts that because the investigator failed to record the work experience of a senior nurse and failed to interview two nurses who were on duty in the nursery the night of the infant's death, and the consultant failed to note that several of the nurses had been licensed for more than two years, the recommendation was flawed. However, it is noted that the consultant did not rely exclusively on the purported lack of experience on the part of the nursing staff in reaching her conclusion but placed equal reliance on the notion that the baby's history and risks warranted giving the baby special post-delivery supervision. Therefore, the report contains a factual basis to support the consultant's conclusion and thus the panel had a reasonable basis in fact to bring this charge. Petitioner next contends that the recommendation to charge him with failing to adhere to the standard of care because of his failure to inform the on-call physician about the patient's condition and history was likewise at odds with the real facts. In making this argument, he points to findings in the recommended order which found in favor of petitioner on this issue and to that portion of the baby's medical records which recorded his condition while in the nursery. Again, however, the consultant reached this conclusion based on the baby's "history and status", and thus she had a factual basis to support her opinion. Therefore, the panel's decision to prosecute this alleged breach of care was substantially justified. The parties have stipulated that petitioner is a small business party as defined by Subsection 57.111(3)(d), Florida Statutes, he was the prevailing party in the underlying disciplinary action, his attorney's fees and costs incurred in defending against the action are reasonable but are limited to the statutory cap of $15,000, and at least $4,000 was incurred in defending Count I while at least $15,000 was incurred in defending Count II. They have further agreed that there are no special circumstances that would make an award of attorney's fees and costs unjust.
The Issue The issue is whether Respondent should renew Petitioner's license to operate a child care facility based on an alleged Class I violation of Florida Administrative Code Rule 65C- 22.001(5)(a) and an alleged history of noncompliance with the Florida Administrative Code rules regulating child care facilities.
Findings Of Fact At all times material here, Petitioners owned and operated Child Care 2000, #1 (the facility), located on State Road 44, Sorrento, Florida. Petitioner George Barrett was the licensed child care director of the facility, which had been a child care center for 14 years. The facility had an employee's manual that addresses its policies. The manual contained policies regarding regular staff meetings, parent/teacher conferences, and mandatory initial/in-service training requirements. The manual also included a section on safety, which stated as follows: Do not leave your classroom unsupervised at anytime, indoors or out. All electrical outlets must be covered at all times. Any broken or damaged equipment must be removed or brought to the Director's attention. Remember to count your children every hour. All of these things must be done daily. DO NOT leave children unattended. There will be tolerance for this action. The facility had a time clock, which the employees used to record their time at work. The information from the time clock transferred electronically to the facility's computer, which captured the information for use in a software program that generated payroll. If a teacher's time card was incorrect for any reason, the bookkeeper could manually override the system to correct any error. The facility also used the time clock to log the time that children attended the facility. The attendance records transferred electronically to the facility's computer, which captured the data for use in a software program that generated billing statements. The children's parents used a password to activate the time clock when they dropped off or picked up their children. There is no evidence that anyone at the facility knew how to manually override the children's electronic attendance log. Respondent alleges that its inspector, Glenda McDonald, performed an inspection of the facility on October 27, 2005. The inspection checklist contains allegations that the facility was noncompliant in the following areas: (a) Outdoor Play Area, Florida Administrative Code Rule 65C-22.002(4)(c)(g); (b) Fencing, Florida Administrative Code Rule 65C-22.002(4)(d)(e); (c) Outdoor Equipment/Suitable, Safe, Maintained, Florida Administrative Code Rule 65C-22.002(9)(b); (d) 10-hour In- service, Florida Administrative Code Rule 65C-22.003(6)(a)-(c); (e) Bottles Sanitary and Labeled, Florida Administrative Code Rule 65C-22.005(3)(b)(c); (f) Children's Health/Immunization Records, Florida Administrative Code Rule 65C-22.006(2)(a)-(c); (g) Personnel Records, Florida Administrative Code Rule 65C- 22.006(5)(a)-(c), (e), (f), (6)(e); and (h) Form 5131/Screening Documents, Florida Administrative Code Rule 65C-22.006(5)(d). Respondent did not present Ms. McDonald as a witness at the hearing. Without Ms. McDonald's testimony or an admission by Petitioners, there is no competent evidence by Respondent to show the facility's noncompliance on October 27, 2005. During the hearing, Petitioners did admit that the facility failed to comply with the rules on October 27, 2005, in the following respects: (a) the need to remove or replace a broken swing as required by Florida Administrative Code Rule 65C-22.002(9)(b); and (b) the need to update children's shot records and physicals as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). Petitioners presented testimony that the broken swing was repaired immediately after the October 27, 2005, inspection. Additionally, Petitioners admitted that they found it impossible to keep the children's shot records and physicals updated, but that they corrected the problem in a timely manner after the October 27, 2005, inspection. On January 30, 2006, one of Respondent's inspectors, Debbi Mitchell, performed an inspection of the facility. Ms. Mitchell observed that the facility was noncompliant in the following ways: (a) failure to update children's shot records as required by Administrative Code Rule 65C-22.006(2)(a)-(c); and (b) failure to update personnel screening documents as required by Florida Administrative Code Rule 65C-22.006(5)(d) and Section 435.04, Florida Statutes. There is no evidence to dispute Ms. Mitchell's testimony regarding the January 30, 2006, inspection. The failure to keep the children's shot records updated was a repeated offense. On or about March 31, 2006, Petitioner filed an application with Respondent to renew their license. Petitioners' daughter-in-law was the facility's office manager. When Petitioners were unable to be present at the facility, the daughter-in-law was the person in charge of the child care center. If the Petitioners were absent and the daughter-in-law had to leave the premises, Linda Race, a senior pre-kindergarten teacher was in charge of the facility. Ms. Race would take over as the person in charge when Petitioner's daughter-in-law handed her the facility's telephone. A.B. was the son of the daughter-in-law/office manager and the grandson of Petitioners. In the spring of 2006, A.B. was two-years-old. He attended one of the pre-kindergarten classes at the facility. It was not unusual for A.B. to see his mother during the school day. Sometimes A.B. would become upset and cry if he was not allowed to leave his class and go to his mother in the office. On April 25, 2006, Petitioners were not at the facility. Petitioner Alicia Barrett was taking care of Petitioner George Barrett, who was recovering from a serious illness. On April 25, 2006, Petitioner's daughter-in-law clocked into work at the facility at 8:10 a.m. A.B. arrived with his mother then joined his class. Later that morning, A.B. began crying for his mother. Ms. Race attempted to refocus A.B.'s attention before letting him go to his mother. From that time on, Ms. Race believed that A.B. was no longer participating in her class because he was with his mother. Ms. Race understood that A.B.'s mother was planning to leave the facility in the early part of the morning. On April 25, 2006, Petitioner's daughter-in-law clocked out of the facility at 9:59 a.m. She had been at the facility for one hour and 49 minutes before she clocked out. A.B.'s electronic attendance log for that day indicates that he was in attendance for one hour and 49 minutes. A.B.'s mother did not testify at the hearing. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race and her assistant, another teacher identified as Brittany Russell, were with the children on the facility's porch. As the children prepared to move from the porch to their classroom, Ms. Race and Ms. Russell, began taking a head count. About that time, A.B.'s mother approached Ms. Race and handed the facility's telephone to her. Accepting the telephone with a call on the line, Ms. Race realized that A.B. was not with his mother and that he was at the Circle K, a convenience store and gas station located next to the facility. Apparently, employees of the Circle K had called the facility to see if a child was missing. Ms. Race immediately ran from the facility to the Circle K to retrieve A.B. The totality of the circumstances indicates that A.B. was with his mother when he left the facility. The facility's teachers had no reason to believe otherwise. No one at the facility prepared an incident report relative to the events that occurred on April 25, 2006. However, under the circumstances of this case, it is clear that A.B.'s mother was aware of the emergency that was created when A.B. left his mother and went to the Circle K. On May 12, 2006, Ms. Mitchell investigated a complaint against the facility involving the events of April 25, 2006. The investigation of the complaint resulted in Respondent's issuance of an Intent to Impose Administrative Action for the following alleged violations: (a) inadequate supervision as required by Florida Administrative Code Rule 65C-22.001(5)(a), (b), (d)1.-3.; and (b) failure to document the incident involving A.B. as required by Florida Administrative Code Rule 65C-22.004(2)(d)2. There is no clear and convincing evidence to support these allegations. The facility did not provide inadequate supervision for A.B. because he was with his mother and not under the supervision of the facility when he went to the Circle K. Accordingly, there was no need for the facility to document the incident. On May 12, 2006, Ms. Mitchell also performed an inspection of the facility. During the inspection, Ms. Mitchell observed the following alleged noncompliance: (a) Planned Activities Posted and Followed as required by Florida Administrative Code Rule 65C-22.001(7)(a); (b) Outdoor Equipment/Suitable, Safe, Maintained as required by Florida Administrative Code Rule 65C-22.002(9)(b); (c) First Aid Staff/Supplies as required by Florida Administrative Code Rule 65C-22.004(2)(a)-(c); (d) Accident/Incident Documented as required by Florida Administrative Code Rule 65C-22.004(2)(d)2.- 4.; and (e) Children's Health/Immunization Records as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). On May 12, 2006, the plan of classroom activities/schedule for each age group was posted in entrance to the facility near the office. That area was an appropriate place for all parents entering or leaving the facility to access the plan. On May 12, 2006, the facility's playhouse, which was located on its playground, had broken boards. After Ms. Mitchell's inspection, Petitioner immediately repaired the broken boards. The failure to keep the playground equipment properly maintained was a repeated violation. On May 12, 2006, Ms. Mitchell inspected the facility's fist aid kit, finding it extremely incomplete. Petitioners immediately corrected this noncompliance. On May 12, 2006, Ms. Mitchell determined that Petitioner did not prepared an incident report relative to A.B. leaving the facility on April 25, 2006. However, such documentation was not required because A.B. was with his mother, who had clocked him out of the facility. On May 12, 2006, Ms. Mitchell found that the facility had outdated shot records and/or physicals for four students. This was the third consecutive instance of this type of noncompliance. After the inspection, Petitioner corrected the problem in a timely manner. At the time of the hearing, the facility was closed.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioners' application to renew their license to operate the facility, subject to terms and conditions that Respondent deems appropriate. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2006. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Stella V. Balandran Qualified Representative 95 South Trowell Avenue Umatilla, Florida 32784 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
