Findings Of Fact The Respondent, Adolph B. Cone, at all times pertinent to these proceedings, held a medical doctor's license issued by the Petitioner, valid in the State of Florida. The Petitioner is a regulatory agency charged with the licensing, regulation and disciplining of those persons licensed to practice medicine in the State of Florida. The Respondent, at all time material hereto, has been engaged in the general practice of medicine at Jacksonville Beach, Florida. The Respondent has resided in Jacksonville Beach, Florida, since 1939, and has been licensed to practice medicine in the State of Florida for 43 years. He is 69 years of age, divorced and the father of 4 children, the oldest of whom is 22 years of age and attending the University of Florida Medical School, and the youngest of whom is gravely ill with cancer (hemangiocytoma). The Respondent continues to maintain his medical practice and contributes substantially to the support of his children. On or about January 21, 1971, a Final Order was entered by the Board of Medical Examiners suspending the Respondents license to practice medicine until such time as he could demonstrate his competency to resume active practice. In connection with that disciplinary proceeding, Joseph Virzi, M.D. first encountered Dr. Cone as a psychiatric patient in November of 1970, when the Respondent was an inpatient at Memorial Hospital in Jacksonville, Florida. By Final Order dated July 31, 1972, the Board of Medical Examiners reinstated Dr. Cone's license on a 5 year probationary status, with one of the stipulated conditions being that he continue medical treatment under the direction of Dr. Virzi. Dr. Virzi at first treated Dr. Cone as a psychiatric patient in November of 1970, when he was at Memorial Hospital in Jacksonville due to depression, and overuse of alcohol. An additional proceeding was instituted against the doctor which culminated in a Final Order of the Board on January 31, 1973, placing his license on a 5 year probationary status, with the condition that the first 12 months of that term of the licensee would be limited to supervised practice of medicine under the personal supervision of a physician and that he continue medical treatment under Dr. Virzi's direction. The allegations in the Administrative Complaint, culminating in that Final Order of January 31, 1973, involved the Respondent's alleged abuse of alcohol which allegations were upheld and found to be true in that Final Order. Dr. Virzi continued his treatment of the Respondent as a patient and saw the patient for the last time in April of 1973. At the time Dr. Virzi discharged him, he felt that the Respondent had a characterological disorder, wherein he had difficulty accepting how he affects other people and difficulty in operating under stress with a tendency to become hostile and argumentative. Dr. Virzi found, however, that his depression at that time had been successively treated and he had undergone a complete recovery from his depression. Dr. Virzi felt that Dr. Cone had a problem with alcohol from 1970 to 1973. Dr. Virzi testified that in his opinion Dr. Cone suffers from alcoholism which is a chronic and recurrent disorder, but Dr. Virzi had not seen Dr. Cone since 1973, and could not testify regarding his more recent drinking habits and thus was unable to testify as to whether Dr. Cone has been impaired in his ability to safely and competently practice medicine due the abuse of alcohol or drugs. Similarly, although Dr. Virzi testified that Dr. Cone had a characterological disorder, his testimony was nonspecific in describing it as manifested by a suspicious nature, difficulty in personal relationships with others and a denial of any problem with alcohol. Dr. Virzi's testimony does not, within reasonable medical probability, relate any characterological disorder believed to exist in 1973 with any current impairment and with Dr. Cone's ability to safely and competently practice medicine. Subsequent to his treatment of the Respondent in 1973, Dr. Virzi, in 1973, opined that the Respondent was capable of resuming the practice of medicine at that time. It was Dr. Virzi's opinion in testifying in this proceeding, that if the Respondent does not drink or take drugs that would impair his mind, he would be able to practice medicine with reasonable skill and safety. Dr. Virzi corroborated the testimony of Dr. Cone himself, establishing that Dr. Cone has suffered from hypoglycemia, which, according to Dr. Virzi, is a rather mild impairment, but if combined with alcohol would produce more severe temporary symptoms of mental impairment, such as decreased judgment and temporary impairment of memory. The injestion of alcohol during a hypoglycemic state tends to aggravate the overt symptoms caused by the alcohol's effect on the body according to Dr. Virzi. Dr. Virzi, however, was unable to testify that Dr. Cone had taken any alcohol either in or out of the course of his practice of medicine since he last saw him in 1973. He could only speculate that had he had such information regarding more recent use of alcohol it would be consistent with his 1973 diagnosis and prognosis. Such speculation cannot serve as the basis of a finding of fact that the Respondent has abused alcohol, within times pertinent to this Administrative Complaint. The only other witness testifying regarding the issue of the Respondent's alleged abuse of alcohol was Marcelle P. Alford-Nolan. She was employed as a medical assistant in Dr. Cone's office from March, 1978, through March 1979. Ms. Nolan testified that she observed Dr. Cone intoxicated in his office on several occasions. She had, however, never observed him drinking an alcoholic beverage, but merely felt that he was under the influence of alcohol to one degree or another by observing his speech pattern, unsteady gait and general demeanor. It is established in the record, however, that during this time he was also suffering from hypoglycemic reactions which produce similar symptoms involving unsteady gait, slurred speech and sometimes impaired memory or judgment. This witness did testify she saw the Respondent in possession of alcoholic beverages in a bottle during 1977 or 1978 (she could not specifically recall when), she never observed the Respondent actually consume any alcoholic beverages on the premises of his office or at any other location however. In short, there is insufficient proof to establish that the Respondent has consumed alcohol or used any controlled substances since 1973, aside from his own testimony that he took an occasional beer or wine and there is an absence of proof that the use of alcohol or controlled substances has had any effect on his practice of medicine. The Respondent's unrefuted testimony is that his hypoglycemia is under control at the present time and he has not had a reaction in approximately the last 6 months prior to the hearing. On February 28, 1981, Drew Rose Warrener, an undercover law enforcement officer for the Duval County Sheriff's Office, made an appointment to visit Dr. Cone in his office at 4:00 p.m. that day. She appeared at Dr. Cone's office shortly prior to that time, using the name Joanne Wells. Dr. Cone was not at his office when she arrived and while she waited for him to arrive she filled out a patient information and patient history card. The patient history form included questions about her family, family illnesses or conditions as well as any illness or medical condition which she suffers or had suffered from in the past. When Mr. Cone arrived they proceeded into his medical office and she explained to Dr. Cone that she was having trouble with fatigue and staying awake in her job, that she was a dancer at a lounge and she wanted "something" (a medication) to help her dance better and stay awake. She informed the doctor that she actually had no health problems requiring treatment. Dr. Cone at first told her that he could not prescribe something for that reason, but in response to her entreaties he called a local pharmacy and inquired of the pharmacist regarding what drugs he could legally prescribe Ms. Warrener for "fatigue," questioning the pharmacist regarding which drugs were on, a "prohibited list." After consulting with the pharmacist, Dr. Cone ultimately determined that he could prescribe Ritalin and reluctantly prescribed her 15 Ritalin tablets on a non-refillable basis. Prior to prescribing the drug, he questioned her in some detail regarding her physical or medical condition and observed her appearance, her manner of speaking and her general condition, although he did not actually perform a physical examination before making the prescription. He did, as mentioned early, take a written and verbal patient history from Ms. Warrener prior to prescribing the Ritalin. Prior to departing his office, Ms. Warrener and the Respondent entered into a discussion concerning her living arrangements with the Respondent informing her that he had a vacant apartment for rent which she might wish to look at. Accordingly, he invited her across the street from his office to his apartment house to look at the vacant apartment, with the view that she might wish to rent it. Ms. Warrener declined at that time, but promised to return a short time later. She then proceeded to a nearby pharmacy to fill the Ritalin prescription. She filled the prescription at the pharmacy and then returned to Dr. Cone's medical office and was informed by his employee that he had returned home and she was directed to his apartment-house across the street. She was invited into the apartment by Dr. Cone and he proceeded to show her around the apartment, suggesting that she might be interested in living there. During the course of the conversation, Dr. Cone asked her certain questions concerning her life-style, occupation and living arrangements and suggested at one point in the conversation that she move into his apartment with him. She did not answer his question to that effect directly, but responded that she was really interested at that time in obtaining some Preludin tablets. Dr. Cone repeatedly advised her against taking such drugs, warning her that it was not healthy to do so. He ultimately went, or made a pretext of going, to his bathroom and looking through his supply of medications, informing her that he had no Preludin. After approximately 30 minutes she informed him that she had to report to her job and so she left. At the point of leaving his apartment he informed her that he might be able to obtain some Preludin for her if she came back later that night. On that same evening, at approximately 10:00 p.m., Ms. Warrener returned to Dr. Cone's apartment pursuant to his earlier invitation. As she was entering the door of his apartment he peered down the front of her blouse at her breasts which he commented upon in an admiring way. He showed her a bedroom which he offered to let her use and engaged in a conversation with her regarding her personal life, discussing to some extent her sex life, her supposed occupation as a dancer in a night club and her present living arrangements, as making a renewed offer to have her come live with him in his apartment. Dr. Cone never offered to give her drugs in return for sexual favors, but sexual ideas and inferences were expressed in his statements to her a number of times and her general response was that what she was really interested in was obtaining drugs, particularly Preludin. During the course of this visit, Dr. Cone showed her 4 pills which he described as Preludin and gave her 2 of them, although she requested all 4. These pills proved to be aspirin. During the course of this conversation, Dr. Cone repeatedly remonstrated with her concerning her ill-advised wish to obtain and take drugs. He informed her that he would give her the 2 Preludin (aspirin), but would give her no more. He finally relented to the extent of writing her a prescription for 24 Valium tablets. After receiving this prescription she left his apartment on the pretext that she had to return to her place of employment as a dancer. Dr. Cone conducted no physical or medical examination prior to prescribing the 24 Valium tablets and asked for and received no payment for this visit or prescription. Ms. Warrener was suffering no illness or condition for which Valium was medically indicated at the time. Dr. S. J. Alford testifying on behalf of the Petitioner and qualified as a expert medical witness, established that Ritalin and Valium are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Valium is a short term drug used for nervousness, anxiety and a muscle relaxer. It is a depressant type of drug which can produce sleep. It should not be used in conjunction with Ritalin. A medical examination should be performed prior to prescribing Valium which should consist of a full medical history as well as a physical examination, including examination of a patient's blood pressure, heart and lungs in order to detect any contraindications associated with the prescription, which can be dangerous for patients with certain physical conditions. Although Dr. Cone took a medical history of Drew Warrener that day, and visually examined her, listened intently to her conversation in order to check her emotional status, and observed her skin color, her conversation, tone of voice and general manner of talking, he failed to actually do an examination of blood pressure, heart or lungs which Dr. Alford established to be required by good medical practice prior to prescribing Valium.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That Dr. Adolph Cone be found guilty of a violation of Section 458.331(1)(q), Florida Statutes, and that his license as a medical doctor be suspended for one (1) year, but with that suspension held in abeyance and a one (1) year probationary term imposed in its stead provided the Respondent successfully completes, under close supervision of the board, a comprehensive continuing medical education course of the board's designation designed to further and sufficiently enlighten him on the appropriate prescribing, dispensing, administering, mixing and preparing of legend drugs, including controlled substances as a prerequisite to his reinstatement. DONE and ENTERED this 29th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of November, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. FOSH CASE NO. 81-1653 CASE NO. 8530 ADOLPH B. CONE, M.D., License No. 2225, 15 South First Street, Jacksonville, Florida 32250, Respondent. /
The Issue Whether or not Petitioner may impose an administrative fine on Respondent DOS of Crystal River, ALF, LLC d/b/a Crystal Gem ALF (Crystal Gem) in the amount of $2,000.00 based upon two cited State Class II deficiencies pursuant to Section 429.19(2)(b), Florida Statutes (2007).
Findings Of Fact Petitioner AHCA is the state agency responsible for licensing and evaluating assisted living facilities (ALFs), pursuant to Sections 408.802(14) and 429.07, Florida Statutes. Respondent Crystal Gem is an ALF located in Crystal River, Florida. Resident No. One, hereafter referred to as “the resident,” resided in Respondent ALF from April 5, 2007, to April 10, 2007. The resident had fallen in her bedroom in the home she shared with her daughter, son-in-law, and grandson at approximately 2:00 a.m. on the morning of April 4, 2007. By all accounts, prior to this accident, the resident was active, orally communicative, capable of performing all activities of daily living (ADLs), and contributed to the household by doing familial household work. She had suffered a single episode of dementia in the past. She was known to drink large quantities of water but did not eat a lot at any one meal. She loved to eat and regularly ate between meals. After the fall, the resident had gotten back into bed by herself, but had been in a lot pain. Her family assisted her to walk out of the house to the family car. They took her to Citrus Memorial Hospital, where she walked, with assistance, into the emergency room. She was placed in a wheelchair and completed her own admission papers. Hospital records from April 4, 2007, indicate the resident was 84 years old; had a heart valve replacement; and had been fitted with a pacemaker. She weighed 91 pounds and was underweight. She was suffering from osteoporosis, arteriosclerosis, and chronic obstructive pulmonary disease (COPD). The hospital records noted abrasions and tenderness on her left back. X-rays were taken of her ribs. The preliminary report of the hospital’s diagnostic imaging department indicated non-displaced fractures to her left eighth and ninth ribs. The records do not indicate that any other x-rays were taken at that time. The resident’s right hip, where a fracture was later found (see Finding of Fact 56), was not x-rayed on April 4, 2007. The resident was sent home from the hospital with a prescription of the narcotic, Hydrocodone (a generic for Vicodin), for pain relief. The prescription was later filled. Exiting the emergency room on April 4, 2007, the resident walked, with assistance, back to the family car for transport home and walked into the family home the same way. The family had planned to leave on April 5, 2007, for an out-of-town family celebration. Due to the possibility that the resident’s ribs might break further and puncture her lungs, the hospital doctors had recommended that she not travel by car with her family. After consultation with the resident’s personal physician, weighing all options, a tour of the facility by the daughter, and upon good recommendations, the family elected, with the resident’s consent, to place the resident in Respondent’s ALF for respite care while they were out of town. By all accounts, the resident was in some discomfort, but functioned normally in the family home all of April 4, 2007, during which time she continued to do familial household chores, and on the morning of April 5, 2007, before departing for Respondent’s facility. On both days, she was not confused; was able to bathe herself; and had no diminished intake of either food or liquids. The resident’s daughter escorted her to Respondent facility on the morning of April 5, 2007. (Stipulated) The two women arrived at the facility about 10:00 a.m. on April 5, 2007, and during an extensive tour of the first floor (both inside and outside), the resident was able to ambulate and did not complain of pain. The facility’s Resident Assessment Data Collection Form, filled out upon her admission into the facility, stated the resident was ambulatory with one- person assist and full weight-bearing, with bruising and discomfort on the right side. It further noted that she needed assistance in transferring and in ambulating. The facility's Observation Log for that day described her as "extremely small and frail with poor balance and needs to be monitored closely during ambulation." The Observation Log is used by Respondent to record each resident's condition and activities as observed by staff. Upon the resident’s admission, Respondent facility was provided only with the resident’s April 4, 2007, hospital discharge instructions and hospital emergency department after- care instructions. These indicated “fall/rib fracture,” and did not specify which ribs were fractured. Nothing on them related to either hip. The hospital discharge instructions suggested the resident be checked by her own physician in two to three days and that she go to her doctor or the emergency room if pain or shortness of breath were getting worse, for persistent coughing, for fever or chills, or for abdominal pain, vomiting, severe weakness or fainting. They suggested she beware of falling again and report to her doctor if she experienced dizziness, severe weakness, inability to get up after a fall, abdominal pain, vomiting, diarrhea, passing black or bloody stools, headache, vision problems, or numbness or weakness in one arm or leg. It was anticipated by all concerned that the resident would only remain in Respondent’s facility for five days, and would only require personal observation as necessary, assistance with her ADLs, monitoring of her pain, and assistance taking her medications. However, the family had selected Respondent’s ALF, in part, because it was near a hospital in case the resident’s condition worsened or an emergency of some kind arose while they were out of town. In addition to the new prescription for Hydrocodone, the resident previously had been prescribed a number of medications unrelated to her fractured ribs. Among these were Lorazepam, Coumadin, Captopril, and Trazodone. Hydrocodone is a controlled substance, as is Lorazepam. The Lorazepam, an anti-anxiety drug like Activan, is a sedative. It had been prescribed to be taken twice a day, morning and evening. The Hydrocodone had been prescribed to be taken “eight hours prn,” or “every eight hours as needed.” Respondent is not a skilled nursing facility, so its personnel cannot legally administer prescription medications. Respondent’s written policy and procedures for facility personnel provide for them to assist residents with self-administration of drugs, including special procedures for assistance with controlled substances. Under these procedures, controlled substances remain under lock and key and are to be listed on a separate drug inventory sheet called a “Controlled Substance Countdown Record” (CSCR), and the actual pills are to be counted before and after each shift. Patty Clair, a Patient Care Advisor at Respondent’s facility, testified that she knew that facility personnel could “assist” a resident in taking his/her medications by bringing the medicine to the resident and placing that resident’s pills on the resident’s hand, but that the resident was responsible for actually moving the pill to his/her mouth. Respondent facility also maintains a Medication Observation Record (MOR), which must be updated immediately each time a resident takes any medication or refuses a medication. Petitioner Agency specifies by rule the information that the MOR must contain. At Respondent’s facility, the Coumadin was incorrectly charted to eliminate the Sunday, April 8, 2007, dosage, and the Hydrocodone was incorrectly transcribed on the MOR as “every eight hours,” instead of “eight hours prn.” Review of the resident's MOR reveals that there is no documentation that the following medications were taken or refused by the resident as prescribed on the respective dates: Coumadin, two tablets on Sunday, April 8, 2007. Captopril, one tablet on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. Trazodone, two tablets on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. (Stipulated) During the period April 5, through April 10, 2007, the CSCR for Hydrocodone indicates that five tablets were taken from the resident's supply of Hydrocodone, but the MOR only documents self-administration of three tablets. (Stipulated) During the period April 5, 2007, through April 10, 2007, the CSCR for Lorazepam indicates that nine tablets were taken from the resident's supply of Lorazepam. The MOR for that same period documents the self-administration of nine tablets, but does not document self-administration at 8:00 p.m. on April 8, 2007, or 8:00 a.m. on April 9, 2007. It does indicate self-administration on April 10, 2007, at 8:00 a.m. and 8:00 p.m. (Stipulated) Other than the Lorazepam, there is no documentation that the resident self-administered any other medication on the morning of April 10, 2007, which is the day she left the facility. (Stipulated) Patty Clair did not make any writing on the CSCR, even though her name appears on the CSCR for assisting the resident with Lorazepam, on April 6, 7, and 10. (Stipulated) At hearing, Ms. Clair acknowledged assisting the resident with self-administration of her Lorazepam on April 6, 7, and 9, 2007. Ms. Clair initialed the MOR showing that she had helped the resident take her Lorazepam on April 6, 7, and 9, 2007. However, Ms. Clair did not sign the CSCR for April 6, or 7, 2007, even though her name and initials appear on the CSCR for April 6, and her name appears on the CSCR for April 7, 2007. At no time did Ms. Clair give anyone permission to place her initials on the CSCR for the Lorazepam. Ms. Clair did not sign the CSCR for assisting the resident with her Lorazepam on April 10, 2007, at 8:00 a.m. because she did not even work at the facility on April 10, 2007. The resident was discharged from Respondent facility during the morning of April 10, 2007, between 8:30 a.m. and 9:00 a.m. (Stipulated) Because the resident left the facility between 8:30 a.m. and 9:00 a.m. on April 10, 2007, it would have been impossible for the resident to have self-administered the Lorazepam at 8:00 p.m. that day, as was indicated on the CSCR. Also, by that hour, she had been hospitalized. See, infra. Christine Erick, the facility’s resident care coordinator, testified that because the CSCR sheet was not consistent with the actual countdown of the medication, she went back to the MOR to find out who had assisted the resident with her medication, and finding it had been Patty Clair, signed Ms. Clair’s name on the CSCR, with her own initials. Her actions in this regard were contrary to the facility’s record- keeping procedure. Ms. Erick speculated that the dates apparently got “messed up” so that the resident had actually received her last Lorazepam at the facility on April 9, 2007, at 8:00 p.m. Mr. Booker, Agency surveyor and expert nurse, conceded that one explanation that fits with the number of missing Lorazepam tablets (nine), and the number of signed self-administrations of Lorazepam (nine), is that the resident got all her Lorazepam doses but the wrong dates went on the records. He further stated that because the two types of records did not match, no one can be sure what happened. With regard to the Lorazepam, he testified that there were no more missing doses than the doses which were indicated to have been given, and that the doses which were indicated to have been given to the resident to self- administer were in accordance with her prescription. According to Mr. Brooker, all that can be said, based on Respondent facility’s records for Hydrocodone is that something was not given but not that too much was given. The facility’s written record in no way indicated an overdose of Hydrocodone. It is Respondent facility’s protocol that if a resident falls, the incident must be documented and the facility administrator, the resident’s doctor (health care provider), and the resident’s family must be notified. A “follow-up” document is also required to be made out 24 hours later. Respondent’s protocol concerning any injury to a patient is similar, and if the fall/other injury is severe enough, the facility personnel must call 911 for medical aid and transport of the resident to a hospital. There is no reason for facility employees to fail to report a resident’s fall. This facility had all it needed to contact this resident's doctor. It was not established that the resident ever fell in Respondent’s facility. However, on the morning of Sunday, April 8, 2007, the resident was having difficulty walking. She was unsteady on her feet and complained of pain consistent with what the facility knew about her fractured ribs, that from her admission she had occasionally complained of discomfort or pain on her right side. (See Finding of Fact 13). She had decreased gait and balance and was brought to the facility’s dining room for breakfast in a wheelchair. These observations were recorded in the Observation Log by "C.E," Ms. Erick. On April 8, 2007, the resident ate only twenty-five per cent of her breakfast, but that was not unusual. There is no discernable pattern for her consumption of food while in the facility.3/ There is no evidence that the resident lost weight in Respondent’s facility. On April 8, 2007, Ms. Erick telephoned the resident’s daughter in Key West and notified her that her mother had suffered a change of ambulation and was having difficulty walking, with decreased gait and balance. Further content, duration, and sequence of the exchange during this telephone call are in dispute, particularly as to whether Ms. Erik told the daughter that the resident had right hip pain or informed her about the use of a wheelchair, and whether the daughter instructed the facility to take the resident to a hospital if necessary, but it is undisputed that ultimately, Ms. Erick suggested to the daughter, and the daughter agreed, that they give the pain medication, which the Observation Log states had been self-administered at breakfast-time, a chance to work and talk later in the day. The daughter did not request, and Ms. Erick did not offer, to put the resident on the phone at the time of this initial phone call so that the daughter could get the resident’s assessment of the situation. However, Ms. Erick and the daughter concur that the daughter called back that evening to inquire about her mother, and that during the daughter’s return phone call, Ms. Erick told the daughter that the resident had no current complaints of pain and the daughter said she would pick her mother up on Tuesday. On April 8, 2007, Ms. Erick initialed a single long comment in the Observation Log covering Findings of Fact 39 and 40. Following Ms. Erick's April 8, 2007, Observation Log entry, there is a later, April 8, 2007, entry in a different handwriting, signed by someone else. The entry includes that the resident complained of slight pain in the rib area and stated that she was a little stiff. It further states that the resident ate 75 per cent of her meal and received nourishment via a snack; that the daughter was told of pain; that the daughter stated she would be in “tomorrow” to pick up her mother, and that pain meds were again provided to the resident. Whether the person who signed this second notation for April 8, 2007, actually spoke with the daughter is unclear, because that writer did not testify, and both Ms. Erick and the daughter are clear that only two telephone conversations took place between them, but this later April 8, 2007, notation in the Observation Log does confirm that April 8, 2007, is the only day that the resident ingested two "pain" tablets of Hydrocodone. Based upon the evidence as a whole, including the candor, demeanor, and reasonableness of the respective testimony of Ms. Erick and the daughter, and particularly the contemporaneous Observation Log in its entirety, it is not credible that pain specifically in the right hip was complained- of by the resident on April 8. Also, the next day, April 9, 2007, the Observation Log shows a notation of no complaints of pain from the resident, only stiffness, and this notation is also signed by a staff member other than Ms. Erick. In summary, the Observation Log shows that "Hydrocodone prn for pain" is the pain medication, and that on April 5, one pain pill was given; on April 7, one pain pill was given; and on April 8, two pain pills were given. The CSCR shows two, and the MOR shows only one, Hydrocodone pill was given on April 8, 2007. Respondent did not contact the resident's health care provider during the period beginning when she entered the facility on April 5, 2007, and ending when she was discharged from the Crystal Gem facility on April 10, 2007. (Stipulated) Breakfast at the facility is served in the dining room at approximately 7:00 a.m. Residents are dressed before they go to the dining room, but the Observation Log for April 10, 2007, contains no entry concerning the resident's breakfast. On April 10, 2007, when the daughter arrived between 8:30 and 9:00 a.m., the resident was lying on her bed, fully clothed. Ms. Erick assisted the resident into a wheelchair, and the daughter took the resident to her car, later returning the wheelchair to the facility. The daughter was not assisted in this endeavor by any facility employee. The daughter testified that someone in the parking lot assisted her with getting the resident into her car. She described the resident as pale, weak, unresponsive, and confused during this period. Facility protocol calls for Ms. Erick to count out each of a resident’s medications with the family member who signs out the resident and to have the family member sign for the pills being returned. Although neither Ms. Erick nor the daughter has any memory of counting out the pills, there is a notation in the Observation Log by another staff person for that day, stating that medications were given to the daughter. Because of this contemporaneous notation, and because the daughter signed for the pills returned to her at the bottom of the CSCR, it is more likely than not that the pills were counted out by another staff member and the daughter, than that they were not counted out at all and were already bagged in the resident’s luggage, as testified-to by the daughter. This CSCR sign-out sheet shows that from April 5-10, 2007, five Hydrocodone tablets were used and nine Lorazepam tablets were used. (See Findings of Fact 25-26.) On April 10, 2007, during the 25-minute drive home from Respondent’s facility, the daughter was unable to converse with the resident, who was moaning and unresponsive. Upon arriving at the home, the daughter realized that she could not lift or carry the resident to the house. At approximately 11:00 a.m. April 10, 2007, the daughter appeared at the door of her next door neighbor’s home, asking for assistance. The neighbor is a registered nurse. The neighbor went with the daughter and found the resident sitting on the walkway between the car and the family home, several feet from the car. The resident was sleepy, difficult to move, and was unable to stand. The women moved the resident into her bedroom inside the house, using a rolling computer chair. The resident was put to bed. She was sleepy, but not comatose.4/ The daughter denied administering any medication to the resident that day. The nurse/neighbor stayed for about 30 minutes, comforting the daughter, and then left for work. She advised the daughter to wake the resident in about an hour, get her up and to the bathroom, and give her something to drink so as to prevent dehydration. At 1:49 p.m. on April 10, 2007, the daughter made a 911 call. A highly trained and skilled paramedic, who arrived by ambulance at 2:01 p.m., testified that the resident had no dehydration, had normal blood sugar, and indicated no pain, but her oxygen level was low. The resident was sleepy, but responsive to speech. The paramedic rated the resident as being 14 on the Glasgow coma scale, 15 being normal. Upon receiving information concerning the resident’s medications, it appeared to the paramedic that either Hydrocodone or Lorezepam was causing the resident to be over- sedated. The resident’s oxygen level began to drop en route to the hospital. Narcon is a drug used to counteract narcotics. Lorezapam does not respond to Narcon, but Hydrocodone does. The paramedic administered one Narcon “push,” without much result, at 2:29 p.m. A second Narcon “push” was administered at 2:37 p.m. At that point, the resident became alert and her "stats" went up. At no point did the paramedic ever conclude that the resident’s situation was “life threatening.” The resident was delivered to the hospital emergency room 40 minutes after leaving the family home. Hospital records for April 10, 2007, at 5:10 p.m., show the resident as "normotensive" (with normal blood pressure),5/ dehydrated, and with a right hip fracture. They further show that her blood had an abnormal level of Lorazepam by 510 nanograms per milliliter, a very low abnormality. The lab did not rate this Lorazepam level as "critical" or "high, but listed it only as "abnormal." Subsequent to surgery to correct the broken hip, the resident died at an unspecified date. On or about October 31-November 1, 2007, the daughter notified Petitioner Agency of suspicions she had concerning her mother’s care at Respondent facility April 5-10, 2007. The Agency sent Mr. Brooker to investigate. Mr. Brooker classified Respondent’s failure to notify the resident’s health care provider of her change of condition on April 8, 2007, as a Class II violation, because hospital records on April 10, 2007, showed a fractured hip. He classified the facility's record-keeping inaccuracies as a Class II violation, because Hydrocodone and Lorazepam were involved; because abnormal levels of Lorazepam were found in the resident’s blood on April 10, 2007; and because of the serious harm drugs such as Hydrocodone and Lorazepam can cause. His assessment is not contrary to the Agency’s charging pattern statewide.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent not guilty of a Class II deficiency under Count I of the Administrative Complaint and not guilty of a Class II deficiency under Count II of the Administrative Complaint. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of October, 2008.
The Issue Whether Petitioner's application for technologist license should be approved pursuant to Chapter 493, Florida Statutes. Petitioner appeared without counsel at the hearing and was advised of his rights in administrative proceedings. He acknowledged understanding such rights and elected to represent himself in this matter.
Findings Of Fact Petitioner Irving Zahler resides at Golden Beach, Florida. In September 1979, he submitted an application to Respondent for licensure as a clinical laboratory technologist in the specialties of serology, clinical chemistry, hematology, and immunohematology. His application reflected his education, laboratory training, and experience in the field. Specifically, it showed that he had been the director of a diagnostic laboratory for a period of 32 years. Prior to that period, from 1940 to 1949, he had been employed as a medical technician for the Veterans Administration, Bronx, New York. He has obtained 35 academic college credits in his field at accredited colleges or universities. (Testimony of Petitioner, Taylor, Exhibits 1-2). By letter of February 13, 1980, Respondent's director of Office of Laboratory Services advised Petitioner that his application had been denied because he did not have 60 semester hours of education as required under Section 10D-441.25(9), Florida Administrative Code. Petitioner informally requested review of the decision to determine if he met other qualification standards under the rule. By letter of arch 12, 1980, Respondent sent him another letter again informing him that his application had been denied for failure to show that he had achieved a satisfactory grade in the U.S Public Health Service approved proficiency examination in clinical laboratory technology, as specified in Section 10D-41.25(10), F.A.C. Petitioner thereafter requested an administrative hearing. (Exhibit 3). The U.S. Public Health Service proficiency examination was administered from 1975 to March 1979 when it was discontinued. Petitioner did not take the examination during that period and cannot do so at this time since it is not available to applicants. However, during the period 1967-1968, he passed qualifying examinations given by the Department of Health, Education and Welfare in General, microbiology, chemistry, mematology, serology, blood grouping and typing. These examinations qualified him to serve as the director of a clinical laboratory. In 1979 he was issued a license as a director of a clinical laboratory by the City of New York. (Testimony of Petitioner, Taylor, supplemented by Exhibit 4)
Recommendation That Petitioner Irving Zahler be issued a license as a clinical laboratory technologist in those specialties set forth in his application for licensure. DONE AND ENTERED this 10th day of June, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leonard Helfand, Esquire District 11 Legal Counsel 401 Northwest 2nd Avenue Room 1040 Miami, Florida 33128 Irving Zahler 100 Golden Beach Drive Golden Beach, Florida 33160 Department of Health and Rehabilitative Services Steven W. Huss, Staff Attorney Central Operations Services 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES IRVING ZAHLER, Petitioner, vs. CASE NO. 80-710 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
Findings Of Fact Respondent was issued a license to practice medicine in Florida in 1973, and was so licensed at all times relevant to this proceeding. He received his doctor of medicine degree in Korea in 1946, and a doctor of philosophy degree in physiology and pharmacology in Canada in 1951. His practice combines conventional medicine and acupuncture. About May, 1980, Respondent contracted with Robert Sample, M.D., to purchase the latter's medical practice in Bradenton. Until the downpayment was made, it was agreed that Respondent would use Dr. Sample's name in referring to the practice and would represent himself and his wife, Dr. Lee (who is also a licensed medical doctor) , as associates of Dr. Sample's. Although Dr. Sample was to retire and leave the area, Respondent agreed to tell patients that Dr. Sample was on vacation. For a period of one to two months after assuming the practice, the telephone was answered "Doctors Sample, Lee and Cho." Doctor Sample's sign at the entrance to the office was not removed until Respondent obtained a new sign without Dr. Sample's name about 30 days after he began practicing at this location. Although the patients who called or came in to this office were, in fact, misled by the continuing reference to Dr. Sample, there was no evidence to indicate that any patient believed he was to be treated by Dr. Sample. Wilma Dona Stover was a patient of Dr. Sample's for approximately 2 1/2 years, while also seeing a physician in. Cincinnati, Ohio, for periodic checkups following lung cancer surgery in 1974. On June 16, 1980, she sought the medical advice of Dr. Sample regarding a severe facial rash. Upon telephoning the office of Dr. Sample, she was told by the receptionist that Dr. Sample was out of town, but was asked if she would care to see either of the two doctors: who were now in practice with Dr. Sample. She made an appointment for that day and was seen by Respondent. After a brief inspection of the rash, Dr. Cho employed a device known as a dermatron machine" to select medication. Respondent explained to Mrs. Stover that by comparing the electromagnetic fields of various medications with that of the body, the best medicine could be chosen. To conduct these tests, Respondent placed a wire on the middle toe of Mrs. Stover's right foot. She held a probe-like device in one hand and in the other hand she held, fan. turn, various medicines enclosed in containers. The medicine chosen was neosporin. Because of her previous experience with lung cancer, Mrs. Stover questioned Dr. Cho whether the rash could indicate a recurrence of this disease. In response, Dr. Cho again employed the dermatron machine with a connection placed on the middle finger of her right hand. Thereafter, Respondent informed Mrs. Stover that she did not have long. cancer. Because of her disbelief in these procedures, Mrs. Stover consulted Dr. David Krull, a family practitioner After Physically examining Mrs. Stover (scalp, skin, ears, throat, lungs, heart and abdomen plus laboratory tests- CBC, blood sugar and urine), Dr. Krull prescribed medication for the skin rash. He later performed a series of tests to determine if she was suffering a recurrence of lung cancer. Mrs. Stover's testimony established that Respondent administered no physical examination or history taking prior to prescribing neosporin for Mrs. Stover's rash. Further, Respondent made no tests to determine whether or not she was suffering a recurrence of lung cancer other than the measurements he made with the dermatron machine. Dr. Krull did not find a recurrence of lung cancer, but was able to make this determination and reassure Mrs. Stover only after a full physical examination which included checking her lungs, lymph nodes, neck and reading her chest x-rays. Another board-certified family practitioner in the Bradenton community, Robert E. Blackwood, M.D., a physician who has practiced in that community for 10 years and who was not associated with the treatment of Mrs. Stover, confirmed the testimony of Dr. Krull concerning the minimum history and physical examination that must occur prior to treating the skin rash and diagnosing the nonrecurrence of lung cancer. It was stipulated by the Petitioner and Respondent at the formal proceeding in this matter that the dermatron machine utilized in the diagnosis and treatment of Mrs. Stover by Dr. Cho was not registered or approved under the Federal Food, Drug and Cosmetic Act for use as a medical diagnostic device. No written consent for the use of the machine or the diagnostic procedures was obtained from Mrs. Stover by Dr. Cho. Chris Robbins has resided in Bradenton for several years and was a patient of Dr. Sample's until he retired from his Bradenton medical practice. On July 28, 1980, Robbins injured his back and called the office of Dr. Sample. The telephone was answered, "Dr. Sample, Dr. Lee and Dr. Cho." , He made an appointment and was seen in an examination room by Respondent Dr. Cho who was informed as to how he had injured his back. No medical history was taken nor was a physical examination performed. Respondent explained that he proposed to treat the disorder through the use of acupuncture, and Robbins agreed Respondent placed needles behind Robbins' ears and injected Vitamin B-12. This treatment alleviated the pain. Respondent then instructed Robbins to pass a magnet up and down behind his ears (to cause an electrical response in the nerve) if the pain recurred, and to return to the office within a week. On August 4, 1980, Robbins returned as instructed. He had experienced pain in his back during the previous week but use of the magnet had relieved the pain. Respondent administered further Vitamin B-12 shots and instructed Robbins to continue wearing the needles in his ears. On approximately August 14, 1980, Robbins returner to Respondent's office after experiencing further back par. Respondent administered Vitamin B- 12 shots, and placed small needles behind the knuckles of Robbins' hands, and in his feet. This relieved the pain. However, Robbins returned later the same day with a recurrence off the back pain. Respondent then placed the patient face down on an examination table and injected further Vitamin B-12 shots in his back. Respondent informed Robbins that his back could be dislocated and discussed the possibility of treatment by a chiropractor. At this final visit, Respondent prescribed demerol, 100 mg, 10 tablets for pain. No x-rays were taken during any of these visits. Robbins continued to experience pain and was thereafter seen by Mario Quintero, M.D., at the emergency room of a local hospital. Dr. Quintero's testimony established that the minimum medical examination which must be conducted by a physician in the treatment of back injury would include x-rays and range of motion tests. An independent expert., Robert Blackwood, M.D., confirmed this as the minimum medical examination which must be conducted with history as established by Robbins. This minimum medical examination was further confirmed by Dr. Gary Dunlap, the medical expert retained by Dr. Cho. Dr. Quintero referred Robbins to an orthopedic specialist, Dr. Thomas Sprenger, who administered a physical examination, which included the reading of x-rays and the other hospital reports. He determined that Robbins was suffering from a back sprain and prescribed muscle relaxants and bedrest. In August, 1980, Kimberly Perdue, 18 months of age, injured her eye with a sharp object. Her grandmother, Jean Harless, took the child to the office of Respondent and his wife, Dr. Lee. Dr. Lee, who has had training in ophthalmology, first examined the injury. She diagnosed a corneal abrasion and determined that intramuscular and oral antibiotics should be utilized together with a topical application of antibiotic ointment. Dr. Cho was informed of her findings and she left to treat another patient. Respondent determined that he would use penicillin (duracillin, a form of penicillin with an effectiveness of 48 hours) intramuscularly, and tetracycline syrup for the oral antibiotic. He selected neosporin as a topical ointment for infection. Respondent injected the duracillin. He administered the neosporin tonically and covered the patient's eye with a patch. He prescribed the tetracycline syrup for later use. Just prior to leaving the medical office of Respondent, Mrs. Harless was asked to complete a patient history and medical information form. Later that day, Mrs. Harless took Kimberly to Salvatore Cantolino, M.D., a board-certified ophthalmologist, who diagnosed an abrasion. Dr. Cantolino's testimony established that a family practitioner should at minimum take an accurate history of a child prior to instituting care involving antibiotics. His testimony further established that intramuscular antibiotics and oral antibiotics were unnecessary in this situation, and that these antibiotics could have harmed this child due to possible adverse side effects, reactive risks and the fact that the antibiotics might complicate the diagnosis of any subsequent eye infection. Dr. Robert Blackwood's testimony confirmed the opinion of Dr. Cantolino regarding the inappropriate prescription of antibiotics by Respondent.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Respondent be placed on probation for a period of two years, during which he would be permitted to practice only under the supervision of a physician designated by the Board of Medical Examiners. It is further RECOMMENDED that Respondent's license be restricted to prohibit the diagnosis and treatment of patients except as noted above until he has demonstrated to the Board of Medical Examiners that he is capable of practicing medicine with reasonable skill and safety to patients. It is further RECOMMENDED that Respondent be fined $1,000. DONE AND ENTERED this 4th day of March, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 4th day of March, 1982.
Findings Of Fact At all times material hereto Respondent has been a licensed physician in the State of Florida, having been issued license number ME-0008090. On December 12, 1983 Frank X. Curtis visited Respondent at his office, complaining of abdominal pain and constipation. Respondent advised Curtis that his symptoms could be indicative of cancer, ordered an upper G.I. series, and diagnosed his condition as a hiatal hernia. Respondent did not recommend any further treatment for Curtis. Because the abdominal pain and constipation continued, Curtis again saw Respondent on January 3, February 7, February 22 and March 1, 1984. During this time Curtis' weight dropped from 180 lbs. to 155 lbs., and Curtis became increasingly weak. On March 5, 1984 Respondent admitted Curtis to Community Hospital of New Port Richey with an admitting diagnosis of "partial intestinal obstruction." Curtis underwent a lower G.I. series which revealed a tumor in his intestine. Respondent performed surgery on March 9 to remove the tumor and his post-operative diagnosis of Curtis' condition was carcinoma of the sigmoid colon with metastasis to the liver and small intestine. Curtis was discharged from the hospital on March 18, 1984 but died on June 25, 1984 as a result of the spread of cancer in his body. According to expert testimony from Drs. Neufelder and Williams, Respondent failed to maintain proper medical records in the treatment of Curtis which would justify the course of treatment he provided. In their opinion, Respondent also failed to practice medicine in this case with reasonable care and skill, and in fact his treatment of Curtis was "far below acceptable standards." Specifically, Respondent's office records for this patient reveal no explanation of the reported symptoms of abdominal pain and constipation, and contain almost no patient history or record of any physical examination. A complete medical history and physical exam, as well as blood tests and follow-up should have been initially performed on this patient due to his reported symptoms. Respondent admits that his medical records in this case were inadequate, but contends that his treatment under the circumstances at the time, and not in hindsight, was adequate. However, considering all of the evidence presented, Respondent's treatment of Curtis from December 12, 1983 until he was hospitalized on March 5, 1984 was not adequate and did not demonstrate the level of skill and care reasonably expected of medical doctors in this state. The level of care and treatment provided while Curtis was hospitalized was adequate and met acceptable standards.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order suspending Respondent's license for a period of five (5) years. DONE and ENTERED this 28th day of October, 1985, at Tallahassee, Florida. DONALD D. CONN 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 28th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1-3 Rejected as findings of fact but included in introductory material to this Recommended Order. 4 Adopted in Findings of Fact 2, 3, 4. 5-6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 6. COPIES FURNISHED: Joseph Shields, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Warren A. Clark, M.D. 94 Yellow Lake Road New Port Richey, Florida 33553 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
