The Issue The issues are whether Respondent withdrew controlled substances from the narcotics dispensing system and failed to document the administration or wastage of those substances; if yes, whether this conduct fails to conform to minimum acceptable standards of prevailing nursing practice; and, if yes, what penalty should be imposed on Respondent's license as a registered nurse.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing in the State of Florida. Respondent Marla Gunderson ("Respondent") is, and has been at all times material hereto, a licensed registered nurse in the State of Florida, having been issued license number 2832622 by the Florida Board of Nursing in 1994. Respondent was employed by Lee Memorial Health Care System Rehabilitation Hospital ("Lee Memorial") as a registered nurse from about January 29, 2001, until about March 22, 2001. During the first three or four weeks of Respondent's employment, she participated in a full-time training program through Lee Memorial's education department. A part of this training included training in the administration of medications to patients. After completing the three or four-week training program, Respondent began working directly with patients. From about mid-February 2001 through early-March 2001, Respondent had no problems with documenting the administration of medications to patients. Some time in or near the middle of March 2001, Melanie Simmons, R.N. ("Simmons"), Lee Memorial's Nursing Supervisor, received a complaint from the night nurse following Respondent's shift. The complaint alleged that a patient's wife reported that the pain medication her husband was given by Respondent was not the Codeine that had been ordered by the physician. Pursuant to Lee Memorial's policies and procedures, Simmons conducted an investigation into the allegations of the above-referenced complaint regarding the Respondent. Lee Memorial's policies and procedures set out a specific method for conducting investigations regarding the administration of medications to patients. First, the physician's orders are checked to see what medications have been ordered for the patient. Next, the Pyxis records are pulled to determine if and when medications were withdrawn for administration to patients. The Pyxis system is a computerized medication delivery system. Each nurse has an assigned user code and a password, which must be entered before medication can be withdrawn from the Pyxis system. Then, medication administration records (MARs), the documents used by nurses to record the administration of medications to patients, are checked to verify whether the nurse documented the administration of the medications to the patients for whom they were withdrawn. Finally, the Patient Focus Notes, the forms used by nurses to document non-routinely administered medications, are also checked to determine if, when, and why a medication was given to a patient. If after comparing the physician's orders, Pyxis records, MARs, and Patient Focus Notes, it is determined that medications were not properly administered or documented, the nurse making the errors is advised of the discrepancy and given an opportunity to review the documentation and explain any inconsistencies. Simmons' investigation, which included comparing the physician's orders, Pyxis records, MARs and Patient Focus Notes, revealed discrepancies in medications withdrawn by Respondent and the MARs of the three patients under her care. The time period covered by the investigation was March 12 through March 17, 2001. Of the six days included in the investigation period, Simmons determined that all the discrepancies had occurred on one day, March 13, 2001. Nurses are required to record the kind and amount of medication that they administer to patients. This information should be recorded at or near the time the medication is administered. It is the policy of Lee Memorial that should a nurse not administer the medication or the entire amount of the medication dispensed under his or her password, that nurse should have another nurse witness the disposal of the medication. The nurse who serves as a witness to the disposal of medication would then enter his or her identification number in the Pyxis. As a result of that entry, the nurse who observed the disposal of the medication would be listed on the Pyxis report as a witness to the disposal of the medication not administered to patients. Such excess medication is termed waste or wastage. The physician's order for Patient F.R. indicated that the patient could have 1 to 2 Percocet tablets, to be administered by mouth, as needed every 3 to 4 hours. On March 13, 2001, at 14:06 Respondent withdrew 2 Percocet tablets for Patient F.R. However, there was no documentation in the patient's MAR, focus notes, and other records which indicated that Respondent administered the Percocet tablets to Patient F.R. The physician's order for Patient G.D. indicated that 1 to 2 Percocet tablets could be administered to the patient by mouth as needed every 4 to 6 hours. On March 13, 2001, at 11:18 Respondent withdrew 2 Percocet tablets and on that same day at 17:16, Respondent withdrew another 2 Percocet tablets for Patient G.D. However, there was no documentation in the patient's MAR, focus notes, or any other records which indicated that Respondent administered the Percocet tablets to Patient G.D. The physician's order for Patient T.G. indicated that 1 to 1.5 Lortab/Vicodin tablets could be administered to the patient by mouth as needed every 4 to 6 hours. On March 13, 2001, Respondent withdrew 2 Lortab/Vicodin tablets for Patient T.G. However, Respondent failed to document on the patient's MAR, focus notes, or other records that the medication had been administered to Patient T.G. With regard to the above-referenced medications withdrawn by Respondent on March 13, 2001, there is no documentation that any of the medications were wasted. All the medications listed in paragraphs 13, 14, and 15 are narcotics or controlled substances. Because Respondent did not document the patients' MARs or focus notes after she withdrew the medications, there was no way to determine whether the medications were actually administered to the patients. Proper documentation is very important because the notations made on patient records inform nurses on subsequent shifts if and when medications have been administered to the patients as well as the kind and amount of medications that have been administered. Without such documentation, the nurses taking over the subsequent shifts have no way of knowing whether medication has been administered, making it possible for affected patients to be overmedicated. Respondent has been a registered nurse since 1994 and knows or should have known the importance of documenting the administration of medications to patients. Respondent does not dispute that she did not document the administration and/or wastage of the narcotics or controlled substance she withdrew from the Pyxis system on March 13, 2001, for the patients identified in paragraphs 13, 14, and 15. Moreover, Respondent provided no definitive explanation as to why she did not properly document the records. According to Respondent, she "could have been busy, called away, [or] got distracted." Following Simmons' investigation of Respondent relating to the withdrawal and/or administration of medications, Respondent agreed to submit to a drug test. The results of the drug test were negative. Prior to being employed by Lee Memorial, all of Respondent's previous experience as an R.N. had been in long- term care. Except for the complaint which is the subject of this proceeding, there have been no complaints against Respondent's registered nurse's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order (1) imposing an administrative fine of $250; (2) requiring Respondent to remit the Agency's costs in prosecuting this case; (3) requiring Respondent to complete a continuing education course, approved by the Board of Nursing, in the area administration and documentation of medications; and (4) suspending Respondent's nursing license for two years. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. COPIES FURNISHED: Reginald D. Dixon, Esquire Agency for Health Care Administration General Counsel's Office-Practitioner Regulation Post Office Box 14229 2727 Mahan Drive Tallahassee, Florida 32317-4229 Marla Gunderson 1807 Northeast 26 Terrace Cape Coral, Florida 33909 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Mr. R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The parties to this administrative action have stipulated to certain facts for evidentiary purposes, and with the Exhibits and applicable law, form the bases upon which this case will be decided. The parties agree that the operative facts are as follows: Pursuant to Section 381.494(5), Florida Statutes (1985) and Rule 10.5.08, Florida Administrative Code, a Letter of Intent to apply for a Certificate of Need must be received by the Department and the Local Health Council on or before Monday, September 15, 1986. See Section 381.494(5), Florida Statutes, which provides as follows: [a]t least 30 days prior to filing an application, a letter of intent shall be submitted by the applicant to the local health council and the department respecting the development of a proposed subject to review. Through the affidavit of Ruth Alveranga, Executive Secretary to the Vice President of Operations, Jackson Memorial Hospital, it was established that Ms. Alveranga personally typed and handed the Petitioner's Letter of Intent to a postal employee, who was at the time picking up mail at Jackson, on Friday, September 12, 1986. Both parties were informed by the Postmaster General of Tallahassee, Florida, that under normal circumstances, letters mailed in Miami to the Department on Friday, will be delivered to the Department the following Monday. Because of a staff shortage due to employee absenteeism and the usual large flow of mail which is delivered each Monday, some of the mail received at the Department on Monday, September 15, 1986, was neither identified nor distributed to the various Program Offices, nor was the mail stamped as received on or before September 15, 1986. The mail received at the Department's mail room on or before September 15, 1986 was delivered to the Office of Health Planning and Development and other sections of the Department on September 16, 1986, where it was stamped as being received by the Department on September 16, 1986. The Office of Health Planning and Development has accepted Letters of Intent received after the due date, if it was documented that an agent, such as Federal Express, was negligent in the timely delivery of the Letter of Intent. At the final hearing, the Department raised the issue of whether the Petitioner has timely filed its application with the local health council. However, the local health council did not assert the untimeliness of such filing in this proceeding, but rather urged the Department to accept the application because of the severe over-utilization of the present C.T. scanner being experienced by the applicant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department accept the Petitioner's Letter of Intent as timely filed, expedite review of Petitioner's Certificate of Need and make a determination regarding Petitioner's Application for a Certificate of Need within thirty (30) days from the day the application is declared to be complete. DONE and ENTERED this 5th day of January, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1987. COPIES FURNISHED: Robert L. Blake, Esquire Assistant County Attorney Public Health Trust Division Jackson Memorial Hospital 1611 N.W. 12th Avenue West Wing, 108, Suite C Miami, Florida 33136 John Rodriguez Legal Representative Department of HRS 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner, Christopher Rayborn, is entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Petitioner, Christopher Rayborn, is by training and experience a nurse. He was first hired by Jackson Memorial Hospital (also identified in this record as Jackson Memorial Hospital Public Health Trust) in 1988. At that time Petitioner was employed into a regularly established, full-time position of nurse and was enrolled in the FRS. In 1991 the Petitioner terminated his employment at Jackson Memorial Hospital (Jackson). It is undisputed that Petitioner was entitled to participation in the FRS for the period of employment at Jackson from 1988-1991. In 1994 the Petitioner was again recruited to work at Jackson. Recruiters for Jackson attempted to fill the many vacancies in the nursing staff with permanent full-time employees. Such permanent full-time employees were eligible for benefits including retirement through the FRS. Also available were positions designated as "temporary relief/pool nurse." The "pool" nurses did not receive benefits. They did, however, receive a higher rate of pay. Regardless of the position, new employees were given forms, including the FRS participation form, to complete for Jackson. This Petitioner completed the FRS form and attended the workshop for all new Jackson employees. Had the Petitioner accepted a full-time permanent nurse position, he would have received all benefits then available to Jackson permanent employees including participation in the FRS. The Petitioner would have been subject to disciplinary rules for permanent employees and would have been required to work the shifts and hours designated by the employer. Instead, the Petitioner opted to receive a higher hourly rate of pay. By so doing, the Petitioner selected a position that was designated as a temporary relief/pool nurse that did not provide benefits. The Petitioner did not accrue paid leave and did not receive other benefits available to full-time employees. Any participation contributed for the Petitioner in the FRS for the period 1991 through 1998 was done in error. As a temporary employee he was not authorized to participate. In 1996 the Petitioner's job description was changed to "on call/pool nurse." Again, this position did not provide benefits and provided the Petitioner with a higher rate of pay than the full-time permanent nurse positions paid. As an on call/pool nurse the Petitioner worked 40 hour weeks but did not have to accept any work assignment or schedule which he did not want to work. He was entitled to decline shifts or schedules according to his personal interests. Jackson was required to continue the on call/pool nurse system due to the tremendous shortage in nurses. Had sufficient numbers accepted full-time permanent nurse positions, the use of on call/pool nurses would not have been necessary. In 1998 the Petitioner accepted a full-time permanent nurse position with Jackson. When moved into the full-time position, the Petitioner accepted a lower rate of pay and was entitled to benefits. He was not offered participation in the FRS at that time, however, because effective January 1, 1996, Jackson no longer participated in the FRS. Given the nurse staffing needs of Jackson, the use of on call/pool nurses continued uninterrupted for the period 1991 through 1998. None of the on call/pool nurses receiving the higher rate of pay were eligible for benefits from Jackson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a Final Order denying the Petitioner's request for participation in the FRS for the period subsequent to 1991. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 27th day of October, 2000. COPIES FURNISHED: Roberta Fulton Fox, Esquire Law Offices of Roberta Fox, P.A. Grove Plaza, Seventh Floor 2900 Southwest 28th Terrace Miami, Florida 33133 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent properly cited Petitioner for violating Section 400.0225(11), Florida Statutes, by taking a resident to the emergency room for a mental health evaluation without complying with the requirements outlined in Section 394.463, Florida Statutes, for an involuntary examination.
Findings Of Fact Respondent is the agency responsible for licensing and regulating nursing home facilities under Chapter 400, Part II, Florida Statutes. Petitioner is a nursing home facility in Baker County, Florida. Petitioner is located in the same building as Ed Fraser Memorial Hospital (Ed Fraser). The distance from Petitioner to Ed Fraser's emergency room is approximately 300 feet. Petitioner and Ed Fraser have separate licenses. However, they are operated by the same parent organization. At all times material here, Resident E. E. was one of Petitioner's residents. Resident E. E. had a history of psychological problems but did not require psychiatric inpatient care. Resident E. E. was well enough to be a resident at the nursing home under the care of her attending physician and Petitioner's Medical Director, Angelito Tecson, M.D. Resident E. E., at 72 years-of-age, suffered from Alzheimer's and chronic schizophrenia, paranoid type. Her medications included Fosamax, eye drops, Seroquel, Zoloft, Risperdal, and Namenda. Resident E. E. received treatment from a consulting psychiatrist for her psychiatric condition. Her psychiatrist usually visited the nursing home once a month. The psychiatrist lived in Jacksonville. Dr. Tecson is a family practitioner who maintains an office in Baker County, Florida. Because he lives in Jacksonville, Florida, Dr. Tecson usually is not at his office after 5:00 p.m. Around the first of August 2006, Resident E. E. began to exhibit troublesome behaviors that did not respond to redirection or a change in medication. On August 14, 2006, after 5:00 p.m., Resident's E. E.'s escalating behaviors included the following: (a) trying to eat food out of the garbage can; (b) taking her clothes off; (c) taking soiled laundry out of the basket; (d) drinking coffee creamer; and (e) hitting Petitioner's Director of Nursing, Phyllis Rhoden, R.N., who was trying to redirect her. Ms. Rhoden knew Resident E. E. was being treated for a urinary tract infection (UTI) and was concerned that the medicine was not controlling the infection. Ms. Rhoden was aware that a UTI can do "really wicked things" to elderly people such as causing mental status changes. Petitioner usually tested for and treated UTIs in the nursing home. However, Ms. Rhoden did not initiate any procedure in the nursing home to determine whether Resident E. E. continued to suffer from a UTI. Instead, Ms. Rhoden directed one her nurses, Samantha Godwin, L.P.N., to call Dr. Tecson on the telephone. Ms. Godwin told Dr. Tecson that Resident E. E. was combative and creating concerns about her own safety and the safety of others. Dr. Tecson gave Ms. Godwin a verbal order to transfer Resident E. E. to Ed Fraser's emergency room for a mental evaluation. On August 14, 2006, at 5:30 p.m., Ms. Godwin wrote and initialed the following physician's order in Resident E. E.'s medical chart: "Send to ER for mental eval., V. O. Dr. Tecson." Dr. Tecson initialed the order on August 30, 2006. Petitioner had a part-time social worker, Rosa Williams, who happened to be at the nursing home. Ms. Williams witnessed Resident E. E.'s behavior. Ms. Rhoden and Ms. Williams walked Resident E. E. down the hall to the emergency room. Ms. Williams stayed with Resident E. E. and Ms. Rhoden returned to the nursing home. Petitioner's staff did not follow the procedure set forth in Section 394.463, Florida Statutes, before involuntarily transferring Resident E. E. to the emergency room for a mental evaluation. Petitioner's staff transferred Resident E. E. without a certificate from a designated professional, without an ex-parte order, and/or without law enforcement involvement. The emergency room medical records indicate that Resident E. E.'s major complaint was an "altered mental status." The diagnosis was "decompensated schizophrenia." The emergency room medical records do not refer to any other medical problem being evaluated and/or ruled out. The emergency room doctor called for an emergency screening assessment by an evaluator from the Northeast Florida State Hospital (NEFSH) Community Behavioral Healthcare Services. The evaluation resulted in a disposition plan that called for stabilization and admittance to the least restrictive facility. A deputy sheriff transported Resident E. E. from the emergency room to the NEFSH Receiving Facility on August 14, 2006, sometime after 8:30 p.m. She was subsequently admitted to that facility. On August 14, 2006, at 8:40 p.m., Dr. Tecson gave Ms. Godwin another verbal order over the telephone. The order was to transfer Resident E. E. to NEFSH. Dr. Tecson initialed the order in Resident E. E.'s medical chart on August 30, 2006. Resident E. E.'s medical record contains two nursing progress notes for August 14, 2006. The first one states that Resident E. E. was sent to the emergency room for a mental evaluation. The second one states that Resident E. E. was sent to NEFSH for treatment of mental status. Ms. Williams, the social worker, also made the following notation in Resident E. E.'s medical record on August 14, 2006: It was reported upon this S.W.'s arrival that resident's behavior is getting progressively worse by the day. On today she attempted to leave the facility and staff tried to re-direct her but she struck the person. She continues to come out of her room nude and when she is not totally nude, she pulls her dress up to show that there is no underwear. She also became aggressive (physically) with the ladies who deliver the [washed] clothes to the nursing home. She wanted to take all of the clothes and began hitting them when they refused to give them to her. She cursed them, which is totally out of character for her. At this point it was felt that resident now needs to be evaluated by the local mental health CSU. The resident has been evaluated by her attending psychiatrist on 8/8/06, but there has been very little improvement. In fact, there has been no improvement and resident's condition continues to get worse. Also, from reviewing her records, the resident appears to have been decompensating since May 2006. In addition to above stated inappropriate behaviors, the resident has been refusing her medication or was observed spitting them out. This S.W. called the local mental health office and requested assistance from the emergency service department by dialing two numbers. A response was not received, but in the message on voice mail it was stated that if someone needed their emergency services they should go to the jail or nearest ER (emergency room of a hospital). This resident was taken to ER at Fraser Hospital, evaluated by doctor on duty, an MH evaluator was called and later responded to the call. It was decided by the MH evaluator that residential treatment was needed. The resident was transported to Northeast Florida State Hospital by the Sheriff Dept. Upon arriving, she was accepted, bathed, and hopefully given something to eat. The resident should remain at NEFSH for at least 3 days for an evaluation. Hopefully, after being evaluated, she may be able to return back to the nursing home. If not stable in three days, NEFSH should consider long term treatment at their facility. It should be noted that this resident has a long psychiatric history. She resided at NEFSH for four years and G. Pierce Woods for almost eight years. Her first hospitalization occurred at the age of 14. This S.W. will continue to check on resident's status. In a memorandum dated August 15, 2006, Kevin D. Harris, Petitioner's Administrator, stated as follows: Approximately @ 1:50 p.m., I refused the readmission of [Resident E. E.]. This refusal was based on the recommendation of the Medical Director, Dr. Angelito Tecson, the Director of Nursing, Phyllis Rhoden, R.N., and Rosa Williams, Social Worker. [Resident E. E.] was transported here via Century ambulance without a 300B transfer sheet. Prior to this onsite refusal of readmission, the readmission was denied by Phyllis Rhoden, R.N., to NEFSH discharge personnel. The readmission was refused due to the fact that [Resident E. E.] had been Baker Acted on the evening of August 14, 2006, by Ed Fraser Memorial Hospital Emergency Room physician. Her ER visit was precipitated by a mental status change whereby [Resident E. E.] was combative and a danger [to] staff, residents and perhaps herself. Readmission would be reconsidered, after appropriate stabilization of [Resident E. E.] on a medication protocol that is appropriate for her needs and can be regulated in a nursing home environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding that Petitioner violated Section 394.463(2), Florida Statutes, and confirming the imposition of the class- three citation. DONE AND ENTERED this 31st day of August, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2010. COPIES FURNISHED: Laura Beth Faragasso, Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Box 14079 Tallahassee, Florida 32317 Richard Joseph Saliba, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3, Mail Station 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Respondent is and has been a registered nurse having been issued license number 1006702. On August 18, 1981, Respondent was arrested and charged with conspiracy to sell or deliver a controlled substance, to wit: cocaine. On August 19, 1981, Respondent was arraigned, at which time he entered a written plea of not guilty. Also, on August 19, 1981, Respondent contacted the administrator of patient services at Jackson Memorial Hospital, where Respondent was employed as a nurse in the medical intensive care unit. He advised the administrator of the events of the prior day and likewise advised the head nurse of the medical intensive care unit of his problem. By that time, Respondent had achieved for himself an extraordinary reputation among his coworkers, his supervisors, and the management and medical personnel at Jackson Memorial Hospital as an extremely competent nurse who possessed unusual clinical knowledge and an unusual amount of sensibility to the needs of the individual patient and the patient's family. He was further considered to have the highest integrity and was held out as a role model of professionalism. However, the personnel policies of the Public Health Trust required that anyone charged with a criminal offense be automatically suspended. Accordingly, the administrator had no choice but to suspend Respondent from his employment effective August 19,198l. Respondent had been arrested in conjunction with approximately 60 to 70 other persons pursuant to an extensive investigation referred to by the Dade County State Attorney's office as "Operation Tick-Tock." The arrests resulted from wire taps placed on the telephone of a Roberto Ortega. Ortega had placed a telephone call to Respondent's roommate, but Respondent had answered the telephone. Respondent and Ortega had a brief conversation in which the word "cocaine" was never used and no reference was made to cocaine, and the conversation in and of itself could not be characterized as being even a "drug- related" conversation. This sole conversation in which Respondent answered the telephone when Ortega called Respondent's roommate was Respondent's only involvement in Operation Tick-Tock. Respondent hired an attorney to defend him and was required to pay a $10,000 retainer. Thereafter, additional amounts of money were required for his defense. Respondent's attorney believed Respondent was innocent. His attorney further believed that he would be successful in presenting a motion to suppress the tapes obtained pursuant to the wire tap on Ortega's phone but that, even if he were unsuccessful in his motion to suppress, Respondent would still be found not guilty by any jury. He told Respondent that the legal fees involved in defending the criminal charge would cost Respondent $100,000. Respondent could not afford such a legal fee. Respondent's attorney contacted the prosecutor handling the case and was advised that but for the fact that Respondent had been arrested as part of Operation Tick-Tock the State Attorney's office would have placed Respondent in a pretrial intervention program, which is a deferred prosecution program not resulting in any plea but rather resulting in dismissal of the charges after successful completion of the program. However, the State Attorney's office was not in a position to place any of the defendants in Operation Tick-Tock in the pretrial intervention program, since there had been extensive publicity regarding the investigation and arrests and the investigation had cost hundreds of thousands of dollars. The State Attorney's office did agree with Respondent's attorney, however, that in view of Respondent's minimal involvement, if any, in any criminal conduct it would agree, in spite of the publicity engendered by the case, to accept a plea of nolo contendere in exchange for a short term of probation. Respondent's attorney and the prosecutor conferred with Dade County Circuit Court Judge Gerald Kogan regarding their negotiations and the facts leading to Respondent's arrest. Based upon the proffered statement of facts, the judge agreed that he would accept a plea of nolo contendere, that he would place the Respondent on probation, and that he would withhold adjudication, which means that there is no finding of guilt and there is no conviction. Respondent's attorney discussed with him entry of the negotiated plea in view of Respondent's financial distress and Respondent's desire to return to work as soon as possible at Jackson Memorial Hospital. Respondent discussed the plea with the administration at Jackson Memorial and was advised that if he pled nolo contendere and if adjudication was withheld he would be returned to his prior position immediately with full back pay. Respondent's attorney sent a letter to Jackson Memorial confirming that information and further advising that Respondent desired to enter such a plea for the sake of convenience, since he could ill afford to litigate. On November 18, 1981, Respondent pled nolo contendere to the charge against him, adjudication of guilt was withheld and Respondent was placed on two years' probation. On that same date, he was reinstated to his former position in the medical intensive care unit of Jackson Memorial Hospital and received retroactive pay. In August 1982, Respondent's probation was modified to non-reporting status. On September 16, 1982, the wire taps used by the state on Ortega's telephone were found to be illegal, and all evidence obtained using the wire taps was suppressed by Dade County Circuit Court Judge Kogan. On December 22, 1982, Judge Kogan sealed the Respondent's criminal file and expunged his record, the effect of which is that Respondent is entitled to state that he has never been arrested for any crime, which answer can also be given under oath as in the case of an employment application. Both before and after August 18, 1981, Respondent has never had any disciplinary action taken against him and has never even had a complaint registered against him in the course of his employment. Both before and after August 18, 1981, there has never been a shortage reported in controlled substances in the medical intensive care unit at Jackson Memorial Hospital and Respondent has never even been charged with improper handling of any controlled substance. Respondent has never used cocaine and has never engaged in the sale or possession thereof. Respondent remains an exemplary employee, and nursing remains his chosen profession. His superiors consider that any suspension or revocation of Respondent's license would be a severe loss to the nursing profession itself. His ability to practice nursing has not been impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of the charges contained within the Administrative Complaint filed against him, dismissing the Administrative Complaint filed herein, and sealing the record in this proceeding in order to conform with the Order entered by Judge Kogan that no record exists regarding Respondent's arrest. DONE and RECOMMENDED this 27th day of September, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Helen P. Keefe, Executive 119 North Monroe Street Director Tallahassee, Florida 32301 Board of Nursing 111 East Coastline Drive, Alan E. Greenfield, Esquire Room 504 1000 Rivergate Plaza Jacksonville, Florida 32202 444 Brickell Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto Respondent was licensed as a physician in the State of Florida having been issued license number ME0040318. Respondent completed a residency in internal medicine and later was a nephrology fellow at Mayo Clinic. He was recruited to Florida in 1952 by Humana. In 1984 he became associated with a Health Maintenance Organization (HMO) in an administrative position but took over treating patients when the owner became ill. This HMO was affiliated with IMC who assimilated it when the HMO had financial difficulties. At all times relevant hereto Respondent was a salaried employee of IMC and served as Assistant Medical DIRECTOR in charge of the South Pasadena Clinic. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency Room at a nearby hospital. He was examined and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. When the ambulance with EMS personnel arrived they examined Stroganow, and concluded Stroganow was no worse than earlier when he was transported to the emergency Room, and refused to again take Stroganow to the emergency Room. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to check on Stroganow. Upon arrival, she was admitted by the landlady and found an 84 year old man who was incontinent, incoherent, and apparently paralyzed from the waist down, with whom she could not engage in conversation to determine his condition. She called for a Cares Unit team to come and evaluate Stroganow. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as stethoscope, blood pressure cuff, or thermometer, but makes her evaluation on visual examination. Upon arrival of the Cares Unit, and, after examining Stroganow, both members of the team agreed he needed to be placed where he could be attended. A review of his personal effects produced by his landlady revealed his income to be above that for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold-Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, Respondent, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement because Stroganow was not ambulatory, but felt he needed to be placed in a hospital or nursing home and not left alone with the weekend approaching. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, who was in charge of the South Pasadena Clinic, and, they thought, was Stroganow's doctor. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic as well as by EMS personnel. There were always two, and occasionally three, doctors on duty at South Pasadena Clinic between 8:00 and 5:00 daily and, unless the patient requested a specific doctor he was treated by the first available doctor. Stroganow had not specifically requested to be treated by Respondent. When the Cares unit met with Respondent they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the previous evening but did not advise Respondent that the EMS squad had refused to return Stroganow to the emergency Room when they were recalled for Stroganow the same evening. Respondent telephoned the Metropolitan General Emergency Room and had the emergency Room medical report on Stroganow read to him. With the information provided by the Cares unit and the hospital report, Respondent concluded that Stroganow needed emergency medical treatment and the quickest way to obtain such treatment would be to call the EMS and have Stroganow taken to an emergency Room for evaluation. When the Cares unit arrived, Respondent was treating patients at the clinic. A clinic, or doctors office, is not a desirable or practical place to have an incontinent, incoherent, and non-ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to perform certain procedures that may be required for emergency evaluation of an ill patient. At a hospital emergency Room such equipment is available. EMS squads usually arrive within minutes of a call being placed to 911 for emergency medical treatment and it was necessary that someone be with Stroganow when the EMS squad arrived. Accordingly, Respondent suggested that the Cares team return to Stroganow and call 911 to transport Stroganow to an emergency Room for an evaluation. Upon leaving the South Pasadena clinic the Cares team returned to Stroganow. Enroute they stopped to call a supervisor at HRS to report that the HMO had not solved their problem with Stroganow. The supervisor then called the Administrator at IMC Tampa Office to tell them that one of their Gold-Plus HMO patients had an emergency situation which was not being property handled. Respondent left the South Pasadena Clinic around noon and went to IMC's Tampa Office where he was available for the balance of the afternoon. There he spoke with Dr. Sanchez, the INC Regional Medical Director, but Stroganow was not deemed to be a continuing problem. By 2:00 p.m. when no ambulance had arrived the Cares Unit called 911 for EMS to take Stroganow to an emergency Room. Upon arrival shortly thereafter the EMS squad again refused to transport Stroganow. The Cares team communicated this to their supervisor who contacted IMC Regional Office to so advise. At this time Dr. Sanchez authorized the transportation of Stroganow to Lake Seminole Hospital for admission. Although neither Respondent nor Sanchez had privileges at Lake Seminole Hospital, IMC had contracted with Lake Seminole Hospital to have IMC patients admitted by a staff doctor at Lake Seminole Hospital. Subsequent to his meeting with the Cares team Respondent received no further information regarding Stroganow until well after Stroganow was admitted to Lake Seminole Hospital. No entry was made on Stroganow's medical record at IMC of the meeting between Respondent and the Cares Unit. Respondent was a salaried employee whose compensation was not affected by whether or not he admitted an IMC Gold-Plus patient to a hospital.
