Findings Of Fact The Respondent Mary Ambroz is a registered nurse having been issued license number 129 070-2. Her last known address is 3304 S.W. LeJeune Road, Coral Gables, Florida. At all material times, the Respondent Ambroz was employed as a nurse at Variety Children's Hospital (now known as Miami Children's Hospital), and Mount Sinai Hospital, in Miami, Florida. On or about June 14, 1981, the Respondent Ambroz was working at Mount Sinai Hospital under the supervision of Cindy Shoard, R.N. On that date, an emergency arose with a patient who suffered a lethal arrhythmia which required Shoard and another nurse to begin emergency procedures including starting an IV and placing vital sign monitors on the patient. The Respondent Ambroz entered the room after Shoard had begun emergency treatment and pushed her aside stating that the patient was hers and she would take over. Shoard asked the Respondent to leave the room. The Respondent did not leave and instead picked up drugs which had been placed by Shoard on a table for administration to the patient after the IV procedure, and attempted to administer the drugs herself. Shoard informed the Respondent that the drugs were to be administered in a different manner from the way which she was attempting, and again asked her to leave the room. The Respondent then left the room and the patient was stabilized. On or about July 7, 1981, while employed at Mount Sinai Hospital, the Respondent was absent without leave four days in a row. This incident resulted in her termination of employment from Mount Sinai. Additionally, while still employed at Mount Sinai, the Respondent failed to properly chart physicians' orders concerning medication on four separate occasions and reported to an oncoming nurse, that an IV bag of a patient in her care had been filled when the Respondent had in fact failed to fill the bag. In August of 1982, while employed at Miami Children's Hospital, the Respondent Ambroz was caring for an extremely ill premature infant, K. Kuehnart, who was being treated by endotracheal tube. The Respondent was aware that the infant was classified as "limited touch" due to her serious condition and the risk that movement could kink or dislodge the tube and cause a life-threatening situation. The Respondent handled this infant without adequate justification and after being repeatedly told not to do so by her supervisor, Mary Mulcahy. Moreover, in her care and treatment of baby Keuhnart, the Respondent Ambroz failed to observe basic aseptic techniques including insuring that the inside of the endotracheal tube remained sterile. On August 17, 1982, the Respondent Ambroz, while under the supervision of Andrea Prentiss, R.N., was caring for a premature infant with a tracheal problem which required that the infant be placed on a ventilator. It was extremely important that this infant be handled minimally and carefully so the tube in the infant's throat would not become dislodged. Despite Prentiss' instructions, the Respondent moved the infant in a manner which caused the tube to become dislodged. A neonatologist was present to reinsert the tube and no permanent damage occurred. However, even following this incident, the Respondent handled the infant contrary to Prentiss' instructions. Subsequently, the infant's mother arrived from out-of-town to visit her child. The mother was instructed to wash her hands and put on a surgical gown before entering her child's room. When the mother entered the room, the Respondent Ambroz refused to allow the mother to touch her baby, brushed her hand away from the child, and stated that the mother had an infected cuticle. Prentiss examined the mother's hands, saw no evidence of infection, and ordered the Respondent to allow the mother to touch her child. Also, during this visit, the Respondent requested that the mother change her child's socks since they were, in her opinion, an ugly shade of green. These incidents upset the baby's mother and resulted in her requesting that Prentiss prohibit the Respondent Ambroz from caring for her baby. The actions of the Respondent Ambroz, while employed at Mount Sinai and Miami Children's Hospital, departed from, or failed to conform to, acceptable and prevailing minimal standards of nursing practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Nursing enter a Final Order revoking the nursing license of the Respondent Mary Ambroz. DONE and ENTERED this 17th day of October, 1983, 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 17th day of October, 1983.
The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent holds a registered nurse's license, No. RN 1992962, and has at all material times. In May of 1989, as an employee of Kimberly Nurse Travelers, an agency with whom Bay Medical Center had contracted for his services, he worked as a nurse at Bay Medical Center in Panama City, Florida. While working the night shift as the triage nurse on May 12, 1989, respondent helped himself to a Darvocet N-100, a pill he ingested 20 minutes later. At the time and at hearing under oath, he said he took the pill because he had a headache. Darvocet is a prescription drug, and respondent had no prescription for it. But petitioner's own witness conceded that Darvocet "is not considered a drug of choice for people that have a problem with drugs" (T.61) and should not, in the dosage respondent took, "impair someone's judgment and ability to perform." T.66. A co-worker reported respondent, who was in plain view when he took the pill from the cart. Later the night of May 12, 1991, at the behest of supervising personnel, respondent supplied a urine specimen, which tested positive for benzodiazepine, possibly the residue of the 15-milligram Dalmane tablet respondent took the night before, when he was off duty. Respondent's co-workers who testified found no fault with his performance as a nurse, this incident aside. But theft of the Darvocet pill, and its ingestion on duty without a prescription, violated hospital policy and fell below the minimal standards of acceptable and prevailing nursing practice.
Recommendation In the absence of aggravating or mitigating circumstances, Rule 21O- 10.011(2)(j), Florida Administrative Code, authorizes penalties for infractions of Rule 21O-10.005(1)(e), Florida Administrative Code, of reprimand, fine, probation and/or suspension. Nothing was proven in aggravation. In mitigation, it was shown that this was a first offense, apparently an isolated occurrence. It is, accordingly, recommended that petitioner reprimand respondent, and levy an administrative fine against him in the amount of five hundred dollars ($500). RECOMMENDED this 13th day of August, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 323990-0792 Tracey S. Hartman, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Carol C. Murphy, Esquire Post Office Box 1084 Lakeland, FL 33802
Findings Of Fact At all times relevant hereto Respondent was licensed as a registered nurse by the State of Florida and was employed as a registered nurse at Tampa General Hospital, Tampa, Florida. Ernest Thibodeau was involved in an automobile accident in January, 1983, in which he suffered a broken jaw, hip, and ribs and facial lacerations. He was a patient at Tampa General Hospital from the date of his accident until February 18, 1983. On February 11, 1983, Thibodeau was a patient in a four-bed ward with one bed unoccupied. At the time of the events giving rise to charges here involved, one patient was outside the room, Thibodeau was in his bed in one corner of the room, and Richard Rogers was in his bed in the opposite corner of the room. Thibodeau's leg was in a cast and in traction, his jaws were wired shut, and needles were inserted in his arms but they were probably not connected to a feeder tube. Thibodeau could talk, his bed was cranked to a sitting position, and he had use of both arms. On occasion Thibodeau had yelled at the nurses attending him about his pain medication and had been a bit obstreperous when he thought this medication was late arriving. Respondent was the team leader of the team with responsibility for Thibodeau's room on the morning shift of February 11, 1983. Around 9:30 that morning Respondent entered the room to give Thibodeau and Rogers their medication. Thibodeau could only take oral medication in a liquid form through a straw, so pills had to be crushed and dissolved in water for him. When Respondent entered the room, she went to Thibodeau's bed where he was engaged in bathing his face and arms. He asked Respondent why she had told another nurse that he was prejudiced against blacks. Respondent replied, "Who told you that?"; the conversation rapidly escalated to shouts and name-calling, and Respondent pushed the wash basin off the bedside table onto Thibodeau, soaking him and his bed; he took a glass of water from the bedside table and threw it in Respondent's face; and the protagonists proceeded to throw everything at hand at each other including, but not limited to, wash cloths, towels, water pitchers, urinal and wash basin. Thibodeau threw a hairbrush at Respondent which missed, she picked it up and broke it over his head. When things readily at hand had been dispatched Respondent was standing in the middle of the room in a "come on" boxing stance. Thibodeau suddenly recognized the ridiculousness of the situation and started to laugh. Respondent started out of the room and was met by an LPN coming into the room. Someone called the supervisor who in turn called the Director of Surgical Nursing, Sylvia Watkins, apparently the senior nurse on duty at the hospital at that time. When Ms. Watkins arrived on the scene, the Maalox, which had been in a cup on Thibodeau's bedside table, was all over Thibodeau and his bed, Thibodeau was soaking wet, as was his bed, Respondent was wet, the washbasin and pitcher were broken and on the floor with the urinal, which was behind the head of Thibodeau's bed, Thibodeau had a red spot on his head which was swelling, a hairbrush was in two pieces, with one piece on the bedside table and the handle on the bed, a metal pin in Thibodeau's right knee (which was in a cast and in traction) had worked its way almost out of the knee, and towels were on the bed and floor. When Ms. Watkins asked Respondent what had happened, the latter initially said she yelled at Thibodeau and she may have thrown a towel but she did not hit him. When asked why she did not leave the room before things got out of hand, Respondent replied she just couldn't. Upon Ms. Watkins' arrival, Thibodeau was yelling for the police. When she calmed him down, Ms. Watkins asked Thibodeau what had happened. Included with his reply that she (Respondent) threw towels, bedpan, and Maalox at him, hit him with a bedside waterbasin, and bent his hand, was his statement "No matter what I said, I don't think she should hit me." Although Respondent denies that she touched Thibodeau or hit him with anything, the other patient in the room, Richard Rogers, saw the fracas and testified to the facts reported in paragraph 3 above. The physical evidence, as observed by Ms. Watkins upon her arrival in the room, such as the location of the urinal behind the head of Thibodeau's bed, the position of the broken pieces of water pitcher and basin on the floor, the broken hairbrush, the welt on Thibodeau's head, and the physical appearance of Thibodeau and Respondent, belies Respondent's testimony. Immediately following this incident Respondent was dismissed by Tampa General Hospital. Difficulties between patients and nurses are sufficiently common that standard procedures and guidelines have been adopted for handling unruly or disruptive patients. The primary rule, unless the patient is in danger of injuring himself or another, is for the nurse to walk away and report the incident to a superior who will take appropriate action. If the patient and the nurse just do not get along, it is customary to assign the patient to another nurse if so requested by the nurse. If the patient is physically abusive, the nurse should get away or get help, if necessary, to restrain the patient. Only if the patient is incoherent should the nurse defend herself and, even then, should not strike the patient. Under the circumstances that existed in this case with Thibodeau unable to get out of his bed, the fracas could easily have been avoided by Respondent just walking out of the room.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact On or about December 13, 1984, Petitioner applied to Respondent for a CON for an ambulatory surgical center (ASC). Respondent assigned CON number 3677 to Petitioner's application. Petitioner seeks to construct a two operating room, free standing ASC at 1710 West Colonial Drive in Orlando, Orange County, Florida. The primary area to be served by this application is Orange County, and the facility as proposed is reasonably accessible to Orange County residents. Orange County is located within Respondent's District VII, which is also comprised of Osceola, Brevard and Seminole Counties. Stuart and Joseph Yachnowitz are owners of Y and S Management and are partners in the application here at issue. Y and S Management will provide medical management services at this facility, as it provides at nine other facilities throughout the country which performed approximately 17,500 outpatient surgical procedures in 1985, primarily gynecological. Two of the facilities managed by Y and S Management are licensed as ASCs under the laws of the states in which they are located. The chief operating officer of Y and S Management, Susan Hill, prepared the CON application which is here at issue. Financing for this project will be provided from the personal funds of Stuart and Joseph Yachnowitz. No funds will be borrowed for this purpose. They have sufficient liquid personal funds to fully finance the project cost of $473,000, as well as operating costs. Petitioner will lease 6,500 square feet on the first floor of a professional building to be constructed at 1710 West Colonial Drive in Orlando from West Colonial Properties, Ltd., at $12 per square foot. This property is owned by Stuart and Joseph Yachnowitz. An abortion clinic known as Orlando Women's Health Center, which they also own, is located next door at 1700 West Colonial Drive. The facility as proposed can reasonably be expected to meet licensure requirements for an ASC. Ambulatory surgical procedures to be performed at Petitioner's facility will include, but not be limited to abortions, tubal ligations, hernia repairs, diagnostic laproscopies, eye surgery for cataracts, hand surgery, plastic surgery, tonsillectomies, and dilatation and curettage. Equipment cost estimates for this project of $161,158 are realistic and complete. Staffing requirement estimates of 11.54 F.T.E., and salary requirements of approximately $182,000 annually are also realistic and complete. Petitioner estimates that for 1987 and 1988, 20% of all cases will be paid by Medicaid, 5% by Medicare, and 75% will be insurance and private pay, with 4% of this figure ultimately being bad debt or indigent care. With total cases estimated for 1987 and 1988 to be 1700 and 2100, respectively, total net revenues for 1987 and 1988 are estimated to be $732,000 and $903,000, respectively. Providing services to Medicaid patients in 20% of its cases would be beneficial to the community since this is a high level of service to patients who are typically underserved. Assuming that 20% of the cases handled at Petitioner's facility have multiple procedures, the projected charge rates for 1987 are $326 per case for Medicare and Medicaid, and $489 per case for private pay and insurance. These are reasonable and competitive charges. The projected charge rate for private pay and insurance is simply 150% of the Medicare and Medicaid rate, which in turn is based on the projected case mix considering the various levels of reimbursement. Petitioner will pay Y and S Management a fee of $50 per case for management services. The financial pro forma prepared for Petitioner demonstrates that using a conservative approach that somewhat overestimates expenses, Petitioner will reach the break-even point at 1400 cases, after allowing for management fees, depreciation and amortization. Using a less conservative, but more typical approach to estimating expenses, Petitioner will break-even at 1100 cases. Need in the service area exceeds the conservative break-even point and Petitioner estimates it will handle 1700 cases in its first year of operation and 2100 in its second. These are reasonable estimates. Respondent has not promulgated a rule setting forth a methodology for determining need for an ASC. However, Respondent has utilized an evolving non-rule policy in evaluating the need for such facilities. Reid Jaffe, Respondent's expert in health care planning, explained the methodology used in this case which resulted in his determining that in July, 1987, there will be a need for additional ambulatory surgical facilities in Orange County sufficient to recommend approval of Petitioner's CON application. Specifically, Jaffe's methodology is as follows: Acquire data from the local health council regarding the number of inpatient and outpatient procedures performed by existing providers, as reported for the current calendar year (1985) by hospitals in the appropriate service district (District VII). Acquire data from the Governor's Office of the population estimate for the appropriate service area (Orange County) for the current and planning horizon years. Using this data, calculate the current overall surgical and outpatient surgical use rates per 1000 population for hospitals in the service area. Using the projected population for the planning horizon year (1987) and the current use rates calculated in (c) above, calculate the projection of overall surgical procedures in the planning horizon year. Multiply projected overall surgeries by 40% to establish total number of out-patient surgeries to be performed in the planning horizon year. Subtract from (e) all outpatient surgical procedures to be performed in hospitals, other ASCs in the service area, as well as the financial break-evens of all CON approved free-standing outpatient surgery centers in the service area. After performing these calculations and subtractions, the number of outpatient surgical procedures remaining are compared to the break-even of the CON applicant at issue. If the remaining number is larger than the applicant's break even, a quantitative need is demonstrated. Applying Jaffe's methodology to this case and applying data he obtained from the Local Health Council of East Central Florida, as reported to it by hospitals in District VII for calendar year 1985, as well as population data for Orange County he obtained from the Governor's Office, it appears that a total of 83,054 surgical procedures were performed in District VII in 1985, with 21,084 of these being outpatient procedures performed in a hospital. Using a July, 1985, population estimate for Orange County of 556,384, the overall surgical use rate for Orange County is 83,054 divided by 556,384 over 1000, or 149.27 surgical procedures per 1000 population; the use rate for outpatient procedures performed in hospitals is 21,084 divided by 556,384 over 1000, or 37.89 outpatient procedures performed in hospitals per 1000 population. Multiplying the overall surgical use rate of 149.27 by 574,599 (projected Orange County population for July 1987) over 1000 and applying a factor of 40% yields a projection of 34,308 outpatient surgical procedures to be performed in 1987. The use rate of 37.89 for outpatient services performed in a hospital is then multiplied by 574,599 over 1000 to obtain 21,722 which is the projected number of outpatient procedures which will be performed in a hospital in 1987. By subtracting this number (21,722) from the projection of total outpatient surgical procedures to be performed in 1987 (34,308) you identify 12,536 procedures which could be performed in ASCs in 1987. The reported number of outpatient procedures being performed in existing ASCs and the break-evens of CON approved facilities are calculated to be 5,488 (Surgical Services 2,693; MediVision 903; AMI Single Day Surgery 1,832; Surgical Associates 60) which is then subtracted from 12,536 to leave a need of 7,048 outpatient procedures which could be performed in ASCs which are not now approved for this service area. Since Petitioner has a conservative break-even point of 1400 cases, and a more typical break-even point of 1100 cases, a quantitative need has been identified which far exceeds Petitioner's break-even point. Jaffe testified that in his experience this is the largest margin between break-even and available procedures he has seen in reviewing CON applications. A need analysis conducted by Howard E. Fagin, Ph.D., who was accepted as an expert in health care planning, facility planning and operations analysis, also confirms that there is a quantitative need for the ASC proposed by Petitioner. The methodology used by Dr. Fagin starts by calculating a target utilization for ambulatory surgical operating rooms. Assuming that a facility operates 250 days/year, 6 hours/day, it takes 1.25 hours/case and that there are 1.2 procedures/case with a utilization rate of 75%, a target utilization of 1,080 procedures/year for an ambulatory surgical room is thereby determined. In 1985 there were 10 approved hospital "dedicated" ambulatory surgical rooms in Orange County, and 9 approved rooms in free-standing ASCs (Surgical Services-5, AMI Single Day Surgery-2, MediVision-2) not counting the 2 rooms approved in CON 3313 for Surgical Associates which are used for no more than 60 cases per year. Multiplying these 19 rooms by the target utilization of 1,080 procedures/year results in a calculation of 20,520 total utilization in available dedicated and free-standing ASC rooms. Data from the Local Health Council of East Central Florida for 1985 indicates that 11,413 outpatient procedures were performed in hospital, non-dedicated, operating rooms. Therefore if we take Jaffe's projection of 34,308 outpatient surgical procedures to be performed in 1987, and subtract 20,520 (total utilization in available dedicated and free-standing ASC rooms) and also subtract 11,413 (outpatient procedures performed in hospital, non-dedicated, rooms), we arrive at a need of 2,375 procedures in 1987 and 3,770 procedures in 1989. Since Petitioner's break-even is conservatively 1400 cases, and again assuming 1.2 procedures per case, Petitioner's conservative break-even is 1680 procedures, which is within the need which will exist in 1987, and well within the need in 1989. The need methodology and opinion of Intervenor's expert, Dr. Deborah Kolb, is rejected because she incorrectly: (a) considered Orange and Seminole Counties as comprising a two county service area; (b) included all existing inpatient hospital based operating rooms, regardless of whether they are dedicated to outpatient surgery, in arriving at her conclusion that there is excess capacity; and (c) assumed all hospital operating rooms are available for outpatient surgery without modification. Ambulatory surgery is typically performed in three types of facilities: hospitals which utilize their operating rooms for both inpatient and outpatient surgery; hospitals which maintain separate "dedicated" outpatient operating rooms, sometimes even in separate facilities adjacent to the main hospital; and free-standing ASCs which are not associated with a hospital. There are definite disadvantages to serving outpatients in hospitals without "dedicated" outpatient operating rooms, including the "bumping" of outpatients in emergencies and increased costs to the patient for services. On the other hand there are advantages and disadvantages to the other two modes of delivering ambulatory surgical services. Hospital based "dedicated" rooms are obviously closer to a hospital in case an emergency develops, and some patients may prefer this proximity to additional equipment and emergency medical staff. On the other hand, costs at a free-standing ASC are generally lower, and some patients prefer to avoid a hospital atmosphere altogether. Surgical procedures performed at ASCs have grown from 10% of all procedures in the early 1970s to 40% currently, and are projected to grow to 50% in the near future. This growth is somewhat the result of a change in Medicaid/Medicare reimbursement policies which now pay 80% for procedures performed in a hospital and require a 20% co-payment by the patient, but which pay 100% for procedures performed in an ASC and require no patient co-payment. The decision to have outpatient surgery performed at one or the other of these types of facilities is primarily the result of patient preference. However, it is clear that the increasing utilization of ASCs is a market force that is driving the cost of hospital outpatient services down. Respondent issued its original notice of intent to deny Petitioner's application on or about May 17, 1985, and on June 14, 1985, Petitioner filed its Petition for Formal Hearing. Thereafter, Respondent reconsidered its position and on March 6, 1986, notified the parties that it intended to grant Petitioner's application. The reason for this reconsideration was that when the initial denial was made, Respondent's projections of procedures were premised on the use of a 30% outpatient surgical factor. Subsequently, the Respondent began using 40% in its projection of the total volume of surgical procedures which might be performed on an outpatient basis. Given the fact that the reason Petitioner was initially denied was due to insufficient procedures, and utilization of the new projection of outpatient volume indicated there would be sufficient volume to support the facility, Respondent determined to support Petitioner's application. The notice of change of position was prepared by Reid Jaffe, who based his testimony at hearing on the 40% factor, and was approved by Robert E. Maryanski, Administrator of Community Medical Facilities, and Marta V. Hardy, Deputy Assistant Secretary for Health Planning and Development. Since Respondent has not adopted a need methodology rule for ambulatory surgical centers, the increase in the factor used to calculate outpatient surgeries from overall surgeries performed was not accomplished through rule-making proceedings. In 1985 Respondent used a factor of 30%, but in early 1986 increased this to the 40% applied in this case.. Intervenor provides services similar to those which Petitioner will perform, and has four free-standing, "dedicated" operating rooms which are used for ambulatory surgery. It also has 17 operating rooms that are used for both in and out-patient surgery. The Intervenor opposes Petitioner's application. In 1985, Intervenor made a profit of $10.9 million on total revenues collected of $184 million; it had an actual total of $37.4 million in uncompensated care which includes partial or no payments, charity, bad debt, and contractual patients. For 1986, it projects an $18.9 million profit on collected revenues of $211 million, with projections of actual uncompensated care of approximately $52 million. In 1985, 2% of Intervenor's costs were for providing indigent care, and this totaled approximately $6 million. Petitioner projects net revenues of approximately $900,000, and it has not been established if this will have any impact on Intervenor's revenues. According to Billie June, Assistant Director of Operating Rooms at Florida Hospital who was accepted as an expert in surgical nursing, and the management and operation of surgical units from a nursing standpoint, Intervenor has had considerable difficulty attracting qualified nursing staff for its operating rooms, and has had to develop its own qualified staff through an internship program. However, Petitioner's facility will not contribute to this difficulty or result in higher salaries. Susan Hill testified based on her experience since 1973 of managing and hiring staff in the Orlando area of the type needed to operate an ASC, that she has had no difficulty obtaining the cooperation of physicians in the area and in attracting fully qualified staff. Based on Hill's experience with other ASCs managed by Y and S Management throughout the country as well as her experience in Orange County, it is found that the staffing needs of Petitioner's proposed facility can be met with nursing and medical staff available in the area. It is found as a matter of fact that there is a need in Orange County for the two operating room ASC proposed by Petitioner, that Petitioner has the ability and will provide quality care, the project is financially feasible, Petitioner will work with and help to meet the needs of health maintenance organizations and will promote cost effectiveness in Orange County. Petitioner's proposal is consistent with the goals, objectives and recommended actions in the 1985-87 Florida State Health Plan and the local health plan. The State Plan encourages the existence of ASCs and the removal of obstacles to the use of outpatient surgery; the local plan provides that applicants for an ASC must demonstrate a willingness to provide services to underserved patient groups and considers the provision of ambulatory surgery to the underserved population to be a desirable objective. In this case Petitioner intends to provide 20% of its cases to Medicaid patients, and another 4% to indigents.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order granting Petitioner's application for CON number 3677. DONE and ENTERED this 23rd day of October, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Chris H. Bentley, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Douglas Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302 E. G. Boone, Esquire Jeffrey Boone, Esquire Gregory Roberts, Esquire Post Office Box 1596 Venice, Florida 34284. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 2. 2,3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 11. Adopted in Findings of Fact 11, 22. Adopted in Finding of Fact 9. Adopted in Finding of Fact 2. Adopted in Findings of Fact 2, 14. 12,13. Adopted in Finding of Fact 20. Adopted in Finding of Fact 7. Adopted in Finding of Fact 20. Adopted in Finding of Fact 8. Adopted in Findings of Fact 3, 8. Adopted in Findings of Fact 4, 7. Adopted in Finding of Fact 4. Adopted in Finding of Fact 2. Adopted in part in Finding of Fact 15 but otherwise rejected as cumulative and unnecessary. Adopted in Finding of Fact 19. 23-25. Rejected in Finding of Fact 18 and otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected as cumulative and unnecessary. Rejected in Finding of Fact 18. Adopted in Findings of Fact 12-14. Adopted in Findings of Fact 12, 13. Adopted in Findings of Fact 13, 14. 31-35. Adopted in Finding of Fact 15. 36,37. Rejected as irrelevant and unnecessary. 38. Adopted in Finding of Fact 22. 39,40. Adopted in Finding of Fact 23. 41. Rejected as a Finding of Fact since this is a request for further ruling on Petitioner's Motion to Limine which was granted at hearing. Petitioner filed a Motion in Limine on June 11, 1986 to exclude depositions taken of John Hutchens on April 23, 1986 and June 5, 1986. This is the motion dealt with at the prehearing conference on June 23, 1986. The only deposition of John Hutchens offered by Intervenor and admitted was one taken on June 20, 1986 (I-2). Therefore, Petitioner's motion and the prior ruling is moot since the depositions to which the motion was directed were not offered at hearing. 42-45. Adopted in Finding of Fact 22. Rulings on Intervenor's Proposed Findings of Fact, as set forth beginning on page 3: 1. Adopted in Finding of Fact 12. 2-16. Rejected in Finding of Fact 15, and otherwise irrelevant and cumulative. 17,18. Rejected in Findings of Fact 12-14, 22. 19-26. Adopted in part in Finding of Fact 14, but otherwise rejected as contrary to competent substantial evidence. 27,28. Adopted in part in Findings of Fact 12, 13, but otherwise rejected as contrary to competent substantial evidence. 29. Rejected in Findings of Fact 12-15 and otherwise as argument rather than proposed findings of fact. 30-34. Adopted and rejected in part in Finding of Fact 16 and otherwise rejected as contrary to competent substantial evidence. Adopted in part in Finding of Fact 19, but otherwise rejected as irrelevant. Adopted in Findings of Fact 13, 14. 37,38. Rejected as irrelevant. 39,40. Adopted in part in Finding of Fact 16. Adopted in part in Findings of Fact 2, 3 but otherwise rejected as contrary to competent substantial evidence. Adopted in part in Finding of Fact 6, but otherwise rejected as irrelevant. 43,44. Rejected in Finding of Fact 22. 45-47. Rejected in Finding of Fact 7. Adopted in Finding of Fact 7. Rejected in Finding of Fact 7. Rejected in Findings of Fact 3, 5, 7 and 22. Adopted in part in Finding of Fact 3. Rejected as contrary to competent substantial evidence. 53,54. Adopted and rejected in part in Finding of Fact 21. Adopted in part in Findings of Fact 11, 22 but otherwise rejected as irrelevant. Rejected as cumulative and unnecessary. 57-59. Rejected as simply a summation of testimony, irrelevant and contrary to competent substantial evidence. Adopted in part in Findings of Fact 13, 14 and 16 but otherwise rejected as contrary to competent substantial evidence. Rejected as irrelevant. 62,63. Rejected in Finding of Fact 21 and otherwise irrelevant and contrary to competent substantial evidence. Rejected in Findings of Fact 4, 7. Adopted and rejected in part in Finding of Fact 8. Rejected in Findings of Fact 11, 22. Rejected in Finding of Fact 22 and otherwise irrelevant and contrary to competent substantial evidence. Adopted in part in Finding of Fact 20, but otherwise rejected as irrelevant. Rejected as irrelevant. Adopted in Finding of Fact 16; rejected in Finding of Fact 21 and otherwise rejected as contrary to competent substantial evidence. Rejected in Findings of Fact 4, 5 and otherwise rejected as irrelevant. 72-75. Adopted in part in Findings of Fact 19-21, but otherwise rejected in Findings of Fact 21, 22 and as irrelevant. 76-79. Rejected as irrelevant, cumulative argument which does not provide citations to the record contrary to Rule 221-6.31(3), Florida Administrative Code.
Findings Of Fact At all times relevant hereto Respondent was licensed as a practical nurse in the State of Florida. On June 6, 1990, Respondent was employed by Care Team, a home care and staffing agency and was assigned to work at Tampa Memorial Hospital on the 3 p.m. to 11 p.m. shift on the surgical floor. On this date, Respondent was observed by other nurses to laugh hysterically, without apparent cause; to look at a blank wall and appear to be reading something written across the wall; to appear to be plucking invisible objects out of the air; to appear lost and confused; to leave the nursing station to watch TV in the surgical waiting room; and to fail to provide nursing care to patients for which Respondent was responsible. Among these nursing duties not accomplished by Respondent on this date was the catheterization of patient M.H., the failure to release traction on another patient's foley catheter, and allow drainage bags on patients with continuous bladder irrigation bags to become completely full and the drips to run dry. As a result of these problems, Respondent was relieved of duty before the end of her shift and told to go home at 7 p.m. Respondent acknowledged in her testimony that she started her shift on June 6, 1990 with negative feelings and was relieved when told to go home. She denies any neglect of patients that evening and states another nurse had offered to change the drips, but failed to do so, thereby leaving Respondent at fault. Respondent had no recollection of the incident involving the catheterization of a patient. Respondent was involuntarily committed to the Pinellas Mental Health Center on October 31, 1989 on the basis of testimony from two psychiatrists who testified Respondent was depressed, had irrational thinking, impaired judgment, denies she has any problems and refuses treatment. (Exhibit 2) Respondent was released November 9, 1989 after a hearing in which the General Master found the evidence of impairment not clear and convincing, with a diagnosis of schizo-affective Disorder/Bipolar Type. Respondent prefers working in pediatrics and considers herself a very good pediatric nurse. She is also deeply in love with a pediatrician and hopes to become his wife. However, this doctor is married and denies any involvement with Respondent other than a professional one for a brief period only. Respondent does not believe she has any mental or emotional problems and rejects any suggestion that she needs mental health counseling.
The Issue Whether Respondent's license to practice nursing in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Teresa Iva Smith Lobato (Lobato) was licensed as a Registered Nurse in the state of Florida, holding license number RN-1655102, and was employed by the Bayfront Medical Center (Bayfront) located in St. Petersburg, Florida as a Registered Nurse. On May 13, 1990 Lobato was to work the 7:00 a.m. to 3:00 p.m. shift, and upon arriving for work was told that she was being "floated" from the Coronary Care Unit (CCU) where she regularly worked to the Progressive Care Unit (PCU) where she had never worked. Bayfront had a policy whereby nurses were "floated" from one unit to another, and at the time Lobato was employed by Bayfront she was made aware of this "floating" policy. Floating means that a nurse is assigned temporarily to a unit other than the nurse's regularly assigned unit. On May 12, 1990 Lobato was aware that she was to be "floated" on May 13, 1990, but had informed the Acting Director of CCU that she would rather cancel her work assignment than be "floated". However, upon arriving for work on May 13, 1990, and being told that she was being "floated" to PCU she accepted the assignment on PCU although she was not pleased about the situation. Bayfront has a policy that requires the outgoing nurse to audiotape a report for the oncoming nurse regarding the condition of the patients and any events occurring during the outgoing nurse's shift or if no tape is made to give report verbally to oncoming nurse. Upon arriving at PCU Lobato, along with PCU Charge Nurse (CN), listened to the audiotaped reports from the outgoing nurse on the following patients D. L. L., A. S., E. H., C. L. S., and H. K. As the morning progressed, Lobato became more and more displeased with her assignment, and let her displeasure be known to the PCU Charge Nurse. However, Lobato did not ask to be relieved from her assignment, although there was testimony that she indicated to the CN that she wanted to go home. Although the record is not clear as to the time the following events occurred, the sequence of those events are as follows: Around 9:00 a.m. Lobato was offered help by the CN but declined; Around 9:30 Lobato went on break, and again was offered help but declined; While on break Lobato talked to the Assis- tant Director of Nursing (ADON) about her under- standing of not being required to "float", and became upset with the ADON's response; After returning from break Lobato was again offered help by the CN which she accepted. The CN brought Michelle Nance, Medical Surgical Technician, and two RNs whose first names were Jessica and Melinda to the unit to assist Lobato. Around 10:30 a.m. Lobato and the CN dis- cussed Lobato's patient assignments, and Lobato advised the CN that everything was done, in- cluding all a.m. medication, other than the missing vasotec doses, and that she had some charting to do. Also, the patient's baths had been completed. Shortly after Lobato and the CN discussed her patients' assignments, the ADON came to the unit to determine what was troubling Lobato. The ADON and Lobato met and there was a confrontation wherein Lobato advised the ADON that she was quitting and the ADON advised Lobato that she was fired. After Lobato's confrontation with the ADON, Lobato left the unit and Bayfront without completing the balance of charting her patients' notes, and without giving the CN a report of the patients even though the CN requested her to do so. Lobato's reasons for not giving the CN a report was that she had discussed the patients with the CN throughout the morning, and that the CN knew as much about the patients as did Lobato at that time, and therefore, she had made a verbal report. Lobato's reasons for not completing the charting of her patients' notes was that when the ADON fired her on the spot the ADON accepted full responsibility for the patients, and Lobato's responsibility to both Bayfront and to the patients assigned to her ceased at that time, notwithstanding her understanding of the importance of charting so that appropriate care could be given to the patients on the next shift. By her own admission, Lobato left Bayfront around 10:30 a.m. on May 13, 1991 before the end of her shift without completing the balance of charting her patients' notes and without giving a report to the CN, other than the ongoing report given during the morning. Earlier while Lobato was still on the unit working the CN had obtained two registered nurses (RN) and a medical surgical technician to assist Lobato. One of the nurses whose first name was Jessica (last name not given) was the RN assigned to Lobato's patients by the ADON when Lobato left and she received a report on the patients from Janice Ritchie, CN. (See Respondent's exhibit 1, and Petitioner's exhibit 1 and Janice Ritchies' rebuttal testimony.) Although Lobato's failure to chart the balance of her patients' notes and make a report to the CN before she left may have caused some problems, there was no showing that any patient failed to receive proper care or suffered any harm as a result of Lobato leaving. While some of the patients may not have received all their medication before Lobato left, the record is not clear as to whether the medication was made available to Lobato to administer or that she was shown where the medication was located in the floor stock. The patient is the nurse's primary responsibility, and the minimal standards of acceptable and prevailing nursing practice requires the nurse, even if fired (unless prevented by the employer from performing her duties), to perform those duties that will assure the patient adequate care provided for after her absence. In this case, the failure of Lobato to compete the charting of her patients' notes and the failure to make a report to the CN, notwithstanding her comments to the CN upon leaving, was unprofessional conduct in that such conduct was a departure from and a failure to conform to minimal standards of acceptable and prevailing nursing practice.
Recommendation Based upon the foregoing, it is recommended that the Respondent be found guilty of violating Section 464.018(1)(h), Florida Statutes, and that she be given a reprimand. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7828 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Findings of Fact 1 and 2. 3.-4. Adopted in Findings of Fact 3 and 4, respectively. 5.-6. Adopted in Finding of Fact 4 and 5. 7.-8. Adopted in Finding of Fact 5. 9. Adopted in Findings of Fact 6 and 7. 10. Adopted in Finding of Fact 7. 11.-12. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record, but even if this testimony was credible it is not material or relevant to the conclusion reached. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8, as modified. Rejected as not being supported by substantial competent evidence in the record. 18.-20. Adopted in Finding of Fact 9 and 12, as modified. Adopted in substance in Findings of Fact 9 and 12. Rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 10, 11, 13 and 14. Adopted in Finding of Fact 11. Rejected as not being supported by substantial competent evidence in the record. 25.-27. Adopted in Findings of Fact 3, 15 and 15, respectively. Paragraph 28 is ambiguous and, therefore, no response. Rejected as not being Finding of Fact but what weight is to be given to that testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Rejected as being argument rather than a Finding of Fact, but if considered a Finding of Fact since there was other evidence presented by other witnesses. The first sentence is rejected as not being supported by substantial competent evidence. The balance of paragraph 3 is neither material nor relevant. Neither material nor relevant, but see Findings of Fact 6, 7, and 8. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 6, 7, and 8. Neither material nor relevant since the Respondent assisted in selecting those items to be included in Respondent's exhibit 1. First sentence adopted in Finding of Fact 8. The balance of paragraph 7 is argument more so than a Finding of Fact, but see Findings of Fact 12 and 14. More of an argument than a Finding of Fact, but see Findings of Fact 7(c), 12 and 14. 9.-11. More of an argument as to the credibility of a witness rather than a Finding of Fact. More of an argument than a Finding of Fact but see Findings of Fact 7(d) and 13. More of a restatement of testimony than a Finding of Fact, but see Findings of Fact 8 and 9. More of an argument than a Finding of Fact, but see Finding of Fact 10. More of an argument than a Finding of Fact, but see Findings of Fact 7(e) and 9. Not necessary to the conclusions reached in the Recommended Order. 17.-19. Rejected as not being supported by substantial competent evidence in the record, but see Findings of Fact 9 and 12. 20. More of an argument as to the credibility of a witness rather than a Finding of Fact. 21.-23. More of an argument than a Finding of Fact. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399 Teresa Iva Smith Lobato 6870 38th Avenue North St. Petersburg, FL 33710 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastliinne Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to a Certificate of Need ("CON") authorizing establishment of an (ophthalmological) ambulatory surgical center in Palm Beach County, Florida. Subordinate issues are: Whether the proposed facility satisfies the CON criteria of Sections 381.494-499, Florida Statutes, as implemented by Respondent, Department of Health and Rehabilitative Services ("HRS) rule and non-rule policy; Whether the proposed facility will result in unnecessary duplication of services, underutilization of existing services and increased health care costs to the community; Whether adequate resources are available for the construction and operation of the proposed facility; and Whether the proposed facility is financially feasible.
Findings Of Fact (Numbering corresponds to numbering used in proposed findings.) Preliminary findings: 1-4. Approved. On issue of compliance with applicable criteria: 1-7. Approved. 8. Approved, with caveat that this is subject to supplying an adequate record basis for the policy at hearing. 9-13 Approved. Approved but no presumption of correctness attaches to HRS earlier or more recent evaluation of the application. See, Boca Raton, supra. Approved. Approved but modified to more accurately reflect that HRS takes HMO's into account, but this factor was not used or relied on (in connection with the non-rule policy or standing alone) as the basis for granting Petitioner's application. Approved. 18-32. Approved, in the sense that an HRS expert witness at hearing offered conclusions as to compliance with each statutory criteria; rejected, in that his conclusions (except for those concerning quality of care, financial feasibility, the inapplicability of some criteria, and the cost advantages of modifying an existing facility instead of constructing a new one) are rejected as unsubstantiated by the facts. On the Issue of Need: 1-8. Approved. Approved. Modified to reflect that this is one estimate among several offered by experts. Rejected as unsupported by the credible evidence of record. Approved. Approved. First sentence, approved, in that this is the stated "attempt" of HRS' challenged non-rule policy. Second sentence, rejected as unsupported by the credible evidence; the profitable performance of outpatient surgery at a physician's office does logically compel a conclusion that his office should be licensed as an ambulatory surgical facility. On the issue of adequate resources: 1-8. Approved. On the issue of financial feasibility: 1-19 Approved. 20. Rejected as argumentative. RULINGS ON INTERVENOR'S PROPOSED FINDINGS 1-4. Approved. 5. Approved except for reference to equipment costs, of which there will be none. 9-16 Approved. 17. Such broad-brush incorporation of all facts asserted in argument is not susceptible to explicit rulings. RULINGS ON POST-HEARING MOTIONS. Intervenor's "Motion to Stay Issuance of Recommended Order" is denied. Intervenor's "Request for Hearing Officer to Take Official Recognition" of the Final Order of Hearing Officer Robert T. Benton II, in consolidated DOAH Case Nos. 85-2962R, 85-2963R and 85-3193R (attached to a "Notice of Supplemental Authority" dated November 1, 1985) is granted. The order is made a part of the record of this proceeding. A final order entered by another hearing officer of the Division of Administrative Hearings the authenticity of which is not in question, is an appropriate document to be accorded official recognition. See, Health Quest Realty XII v. HRS, 10 FLW 1729 (Fla. 1st DCA July 16, 1985, pet. for reh. pending). COPIES FURNISHED: Eric B. Tilton, Esquire 104 S. Monroe St. Tallahassee, Florida 32301 Theodore E. Mack, Esquire 1323 Winewood Blvd. Tallahassee Florida 32301 William B. Wiley, Esquire Post Office Box 2174 Tallahassee, Florida 32316
Recommendation Based on the foegoing it is RECOMMENDED: That Petitioner's application for a CON authorizing establishment of an ambulatory surgical facility at his offices in Palm Beach County, Florida, be DENIED. DONE and ORDERED this 15th day of January, 1986, in Tallahassee Florida. R. L. CALEEN, JR. 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 15th day of January, 1986.
