The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2005). At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number 59702 and was board-certified in obstetrics and gynecology. The Respondent owned, and practiced medicine at, EPOC Clinic, 609 Virginia Drive, Orlando, Florida. On December 19, 2005, Patient S.B. presented to the EPOC Clinic to inquire about terminating a pregnancy, but elected not to proceed with the termination at that time. On February 3, 2006, S.B. returned to the EPOC Clinic, having decided to terminate the pregnancy. A sonogram was performed, and S.B. was determined to be approximately 18 to 19 weeks gestation. At that time, she executed consent forms for pregnancy termination by medication, and dilation and extraction (D&E). Patient S.B. had been pregnant three times previously and had birthed three children, each delivered live by cesarean section. The patient's pregnancy termination was scheduled to commence on February 4, 2006, but S.B. was late in arriving at the clinic, and the procedure was rescheduled for February 6, 2006. The patient returned to the EPOC Clinic as rescheduled. While at the EPOC Clinic on February 6 and 7, 2006, S.B. received medical care and treatment primarily from the Respondent and from Carmita Etienne, a medical assistant working at the clinic. The termination was initiated with the use of "Cytotec," a drug that causes cervical dilation and uterine contractions, and which generally results in passage of the fetus into the vaginal vault. Cytotec is commonly used in medication-based pregnancy termination. It is known to increase the potential for uterine rupture during labor and delivery, the risk for which is noted within the relevant consent documents executed by the patient. Cytotec tablets, in 200 microgram dosages, were administered orally to the patient by the Respondent's medical assistant. S.B. received 200 micrograms of Cytotec at 10:00 a.m. on February 6, 2006, and received the same dosage at four-hour intervals through 10:00 a.m. on February 7, 2006, at which time the patient's cervix remained undilated. The Respondent thereafter escalated the frequency of the Cytotec to every two hours, and the drug was administered two additional times on February 7, 2006, at noon and 2:00 p.m. According to progress notes contained in the medical records, S.B. complained of discomfort on February 6, 2006, at 7:45 p.m. and on February 7, 2006, at 3:00 a.m. Discomfort or pain is a typical element of labor, and S.B.'s discomfort was not unexpected. Demerol, a controlled substance, is routinely used to relieve pain during medical procedures, including pregnancy terminations. The medical assistant relayed S.B.'s reports of discomfort to the Respondent. The Respondent ordered Demerol on both occasions to relieve S.B.'s pain. A physician must be properly registered with the U.S. Drug Enforcement Administration (DEA) to order the administration of Demerol to a patient. The Respondent was not properly registered with the DEA on February 6 or 7, 2006. At the hearing, the Respondent denied that he ordered the Demerol. He testified that he was serving as a conduit between his medical assistant and another physician, Dr. Harry Perper, who also worked at the clinic and who was apparently properly registered with the DEA. The Respondent's testimony on this issue was not persuasive and has been rejected. The evidence failed to establish that Dr. Perper ordered the administration of Demerol to the patient or that the Respondent merely relayed such orders from Dr. Perper to the medical assistant. The Respondent asserted that he had not been registered with the DEA since 2002 and that everyone at the clinic knew he could not order controlled substances. The patient's progress notes, created contemporaneously with the patient's treatment at the clinic, explicitly state that the orders for Demerol came from the Respondent. The medical assistant who created the progress notes testified that she preferred talking to the Respondent rather than Dr. Perper and that the directions she received for the patient's Demerol came from the Respondent. The Respondent's assertion that he did not order the Demerol was not credible and has been rejected. The Demerol was administered by the medical assistant through injection of the medication into S.B.'s buttocks, and the patient's pain was reduced. The medical assistant denied that she personally administered the Demerol to the patient. Her denial was not credible and has been rejected. The progress notes also state that the patient complained of "right side" pain at 3:00 p.m. on February 7, 2006. At approximately 3:45 p.m. on February 7, 2006, the patient was apparently examined by Dr. Perper, who wrote "SROM" in the progress notes, signifying that a "spontaneous rupture of membranes" had occurred and indicating that the patient's "water had broken." He also documented his observation that a fetal part was protruding from the cervix into the vagina. By that evening, the patient's termination was not completed. At approximately 7:00 p.m. on February 7, 2006, the medical assistant moved the patient into a procedure room at the Respondent's direction. The instruments to perform a D&E were present in the procedure room. The Respondent began to perform an examination of S.B. to assess the situation and determine whether the termination procedure should be completed by D&E. The Respondent utilized a speculum to open the patient's vagina and performed a sonogram on the patient's abdomen to identify the location of the fetus. The fetus was observed to be within S.B.'s uterus. The Respondent observed a fetal part protruding through the cervical os into the vagina. In order to examine the extent of cervical dilation, he detached the part from the fetus by grasping the part with a "Hearn" instrument and twisting the instrument. After he detached the part, he withdrew the instrument and the part from the patient. The Petitioner alleged that the Respondent "apparently" attempted a D&E. The evidence failed to support the allegation. The evidence failed to establish that the Respondent pulled on the exposed fetal part in an attempt to extract the fetus from the uterus. The evidence failed to establish that the Respondent inserted the Hearn or any other instrument into the patient's cervix or uterus. After removing the fetal part from the vagina, the Respondent placed the part on a tray. Almost immediately thereafter, the Respondent's reviewed the ultrasound image and observed that the image indicated the fetus was no longer fully contained within the uterus. The Respondent understood that the ultrasound image indicated a potential uterine perforation or rupture and, appropriately, concluded that the situation could be life- threatening for the patient. He quickly contacted the Arnold Palmer Hospital to arrange for emergency transfer of S.B. to the hospital. The Respondent also spoke to two practitioners at the hospital. Initially, he spoke by telephone to Dr. Pamela Cates, a resident physician at the hospital. Dr. Cates did not have the authority to admit the patient to the hospital and directed the Respondent to talk to Dr. Norman Lamberty, the "Ob/Gyn" physician on call and present at the hospital. The Respondent spoke by telephone to Dr. Lamberty, who agreed to accept the transfer of the patient from the clinic to the hospital. The Respondent failed to inform either Dr. Cates or Dr. Lamberty that he had removed a portion of the fetus from the patient at the clinic. While waiting for an ambulance to arrive to transport the patient, the Respondent wrote a note to be transported to the hospital with the patient. Although in the note he documented the treatment provided to the patient at the clinic, he failed to include the removal of the fetal part in the note. The Respondent testified that he did not document his removal of the fetal part because he did not believe it was significant to the medical care the patient would receive at the hospital. S.B. was transported to the hospital along with some of her medical records from the clinic and the Respondent's handwritten note. None of the documentation indicated that a part of the fetus had been removed at the clinic. After S.B. arrived at the hospital, Dr. Lamberty removed the fetus and completed the abortion procedure. Dr. Lamberty also repaired a cervical laceration and performed a hysterectomy. He noted that the uterine rupture occurred on the patient's right side and that the fetus was located not "floating" in the abdomen but "between two layers of tissue on the right side of the pelvis." The evidence failed to establish that the cervical laceration occurred while the patient was at the clinic or that it was caused by treatment the patient received at the clinic. Upon removing the fetus, Dr. Lamberty observed that the fetus was incomplete and that a portion of the fetal leg was missing. Dr. Lamberty began efforts to locate the missing part, which he reasonably presumed remained in the patient. Dr. Lamberty's concern regarding the missing part was that potential exposure of the part to the patient's vagina would have contaminated the part with bacteria and that a risk of infection would be presented by leaving the part within the patient's pelvis or abdomen. Dr. Lamberty was unable to locate the missing part, and, thereafter, radiological studies, including X-rays and a CT scan, were performed in an unsuccessful attempt to locate the part. The patient remained hospitalized and on February 10, 2006, a second surgical procedure was performed on the patient, this time to remove a "Jackson-Pratt" drain that had been improperly sutured into the patient's abdomen at the time of the hysterectomy. The second surgery was unrelated to the search for the missing part. Also on February 10, 2006, the hospital contacted the clinic to inquire as to the missing part and was advised that the part had been removed by the Respondent at the clinic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding James S. Pendergraft IV, M.D., in violation of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a two-year period of suspension followed by a three-year period of probation and an administrative fine of $20,000.00. DONE AND ENTERED this 21st day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2009. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kenneth J. Metzger, Esquire Metzger, Grossman, Furlow & Bayo, LLC 1408 North Piedmont Way Tallahassee, Florida 32308 Kathryn L. Kasprzak, Esquire Fowler White Boggs Banker, P.A. 200 South Orange Avenue, Suite 1950 Orlando, Florida 32801 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to these proceedings, the Respondent, David Goerg, was a licensed registered nurse in the State of Florida, holding license number 83239-1, and was an advanced registered nurse practitioner, holding license number 83239-G. At all times pertinent to these proceedings, the Respondent was employed as an advanced registered nurse practitioner in Ward D at Jackson Memorial Hospital. Ward D is a prison ward at Jackson Memorial Hospital for patients who are from the local jails or in the custody of or under detention by local law enforcement officials. Advanced registered nurse practitioners employed in Ward D at Jackson Memorial Hospital functioned under a set of "protocols," introduced as Petitioner's Exhibit 2. These protocols were entitled "Suggested Protocols" and were not officially adopted by the hospital. Under these "protocols," a person suspected of cocaine ingestion for purposes of smuggling could be released under one of the two following sets of conditions: Observation for not more than 24 hours after a clear bowel movement plus negative rectal examination and x-ray studies; Same as (a), supra, but suspect may waive the 24-hour observation period by signing a release of responsibility. The remainder of the protocols stress that patients are not to be treated as prisoners and are to be regarded as in need of diagnosis and therapy. Methods of diagnosis are solely at the discretion of the Prison Medical Service (PMS) medical personnel. According to Dr. Al-Sheikh, a resident radiologist, x- rays cannot exclude the presence of cocaine packets. X-ray studies will be either "positive" (identifiable cocaine packs) or "inconclusive" because x-rays cannot determine what causes opaque areas on the bowel. On August 25, 1984, a female patient was received in Ward D of the Jackson Memorial Hospital for suspected cocaine ingestion. Although the initial paperwork on this patient was prepared by Phyllis Fields, ARNP, at some point during the patient's assessment in Ward D the management of the patient was transferred to Respondent. An x-ray study was made of the patient by Dr. Al-Sheikh, and a rectal examination of the patient was performed by Respondent. This rectal examination revealed stool, which was inconsistent with the profile historically observed with "body packers" (persons ingesting cocaine for purposes of smuggling). The x-ray studies of the patient were reviewed by Dr. Al-Sheikh, who labeled them "inconclusive" on the basis of inability to determine what caused an opaque area in the patient's bowel. In applying this standard for assessing x-rays to the conditions for release, a patent would never be eligible for release on the basis of a "negative" x-ray study, because there is no such classification. X-rays are either positive or inconclusive. Dr. Al-Sheikh made a preliminary finding that there was at lease one ovoid density which could represent cocaine or feces. Dr. Al-Sheikh conferred with Dr. Moriollo, who confirmed this conclusion. Dr. Al-Sheikh's final report stated: "At least one ovoid density in the region of the splenic flexure of the colon which could represent cocaine bags; however, feces cannot be excluded." Respondent discussed this patient's x-rays and condition with Dr. Al-Sheikh, pointing out that it was highly unlikely that a "body packer" would have only one small packet of cocaine and that the presence of feces in the lower colon was inconsistent with the conditions generally observed in body packers. Dr. Al- Sheikh agreed with Respondent, who charted that the x-rays had been negative and ordered the patient released. Respondent was authorized to release patients upon negative findings. However, Dr. Al-Sheikh did not alter his diagnosis of x-rays as stated above. Respondent released the patient because rectal examination revealed stool, which was not found generally in body packers who take laxatives to clean out their bowels to enable them to carry the maximum number of packages. The patient's x-ray study revealed only one small opaque area. Historically, body packers do not carry only one packet of cocaine. Generally, they will ingest in excess of 50 packets. There was no evidence presented that the patient was ever in any danger or was, in fact, a body packer. This matter became an issue after Respondent's decision was questioned by the registered nurse supervisor. Evidence was also received that a contract existed between various law enforcement agencies, to include the Custom Service, and Jackson Memorial Hospital to provide the medical services to these suspected body packers, and that said patients retained in the ward were admitted as private patients by the supervising physicians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Respondent be dismissed. DONE AND RECOMMENDED this 7th day of August 1984 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David Goerg 9395 Southwest 181st Street Perine, Florida 33156 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202
The Issue The issue in this case is whether Morton Plant Hospital, Baycare (Morton Plant Hospital or Respondent), committed an unlawful employment 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760, Florida Statutes, have been unchanged since 2015, prior to any allegedly discriminatory acts. practice against Marlena Seenaught (Ms. Seenaught or Petitioner), on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Morton Plant Hospital is a hospital located in Clearwater, Florida. Morton Plant Hospital is part of the greater BayCare Health System. Ms. Seenaught is a woman. She was hired at Morton Plant Hospital as a respiratory therapist in a “pool” position in the respiratory care department on November 13, 2017. Morton Plant Hospital hired Ms. Seenaught right out of school. Ms. Seenaught remained in the respiratory therapist pool position throughout her time at Morton Plant Hospital. By all accounts, Ms. Seenaught was an excellent respiratory therapist. Colleagues described her as a “go-getter” who eagerly sought to learn and grow in her position. Prior to her termination, Ms. Seenaught had never been subject to any discipline by Morton Plant Hospital. At all times relevant to Ms. Seenaught’s allegations, Heather Hayes served as her supervisor. Sean Christensen served as her manager, and the manager of all respiratory therapists. Georda Finnegan served as her “charge” respiratory therapist. Charge respiratory therapists are not technically supervisors; however, they serve an important supervisor-like function. The charge respiratory therapist is responsible for organizing and overseeing the daily workflows and evaluating and handling any issues that come up during a shift, in addition to other tasks. Charge respiratory therapists are also the first point of contact for other respiratory therapists if they have problems, complaints, or suggestions. The Events of September 21, 2018 On a Friday evening, September 21, 2018, Ms. Seenaught attended an after-work birthday celebration at a bar with several of her Morton Plant Hospital co-workers. Mr. Bill Kapusta was in attendance. Mr. Kapusta worked at Morton Plant Hospital as a respiratory therapist. He was primarily assigned to the emergency department (ED) and had been with that department for several years. Mr. Kapusta was well liked and respected by the physicians in the ED. The unrefuted credible testimony of Ms. Seenaught established that, while at the bar, Mr. Kapusta grabbed her buttocks without her permission. Despite her effort to dissuade his advances, Mr. Kapusta repeatedly asked her to have sex with him. Ms. Seenaught shared what happened to her with several of her co- workers, including Anthony O’Donnell, who was also present that night. Mr. O’Donnell testified that he saw Mr. Kapusta touch Ms. Seenaught on the back and approach her various times that evening. He also testified that Ms. Seenaught complained to him that Mr. Kapusta was hitting on her, touching her, and generally making her feel uncomfortable. Reporting the Sexual Harassment The following Thursday (September 27, 2018), Ms. Seenaught reported the sexual harassment incident to her charge respiratory therapist, Georda Finnegan. As Ms. Seenaught’s charge respiratory therapist, Ms. Finnegan served as the person Ms. Seenaught directly reported to during her work shift. Ms. Seenaught told Ms. Finnegan that Mr. Kapusta sexually harassed her at the birthday celebration over the weekend. Ms. Finnegan told Ms. Seenaught that since the harassment occurred outside of work, nothing could be done. At all times relevant, Morton Plant Hospital had a sexual harassment policy in place. The policy set forth that Morton Plant Hospital prohibits harassing, retaliatory, and discriminatory behavior in the workplace, pursuant to its Harassment-Free Workplace Policy. Should harassment occur, the policy explains who should report it and how it should be reported. It states, in pertinent part: Team members who believe that they have been harassed and/or discriminated against have a responsibility to report such behavior immediately to Team Resources, the department manager/director, Administration or by calling the Corporate Responsibility Hotline at 1-877-OUR- DUTY. As well, all known incidents of harassment and/or discrimination must be reported to Team Resources, department manager/director or administration. Team Resources is Morton Plant Hospital’s human resources department. Morton Plant Hospital’s policies, including the Harassment-Free Workplace Policy and the Hotline information, are readily available and accessible to employees on Morton Plant Hospital’s intranet. It is not unusual that Ms. Seenaught would report the sexual harassment she endured to Ms. Finnegan as her charge respiratory therapist. According to Morton Plant Hospital’s policy, Respiratory Care Department Expectations, charge respiratory therapists are the first point of contact for other respiratory therapists if they have problems, complaints, or suggestions. However, Ms. Finnegan, as a charge respiratory therapist, is not one of the individuals identified in the Harassment-Free Workplace Policy as someone who alleged harassment should be reported to. According to Morton Plant Hospital’s Harassment-Free Workplace Policy, Ms. Seenaught was required to report the incident to a supervisor, administration, or Team Resources. The Events of October 27, 2018 After reporting the sexual harassment incident to Ms. Finnegan, Ms. Seenaught avoided all contact with Mr. Kapusta. This was not difficult to do because they did not work in the same department, and generally did not come in regular contact with each other. Her first direct contact with Mr. Kapusta, after the night at the bar, occurred on October 27, 2018. On that day, Ms. Finnegan assigned Ms. Seenaught to work alongside Mr. Kapusta as part of an ED orientation. Since joining Morton Plant Hospital, Ms. Seenaught had been eager to participate in orientation. Orientation is, essentially, a process in which a respiratory therapist is assigned a preceptor who trains the respiratory therapist in a particular task/department. A respiratory therapist who successfully completes a critical care orientation, which includes ED orientation, receives an increase in pay. Ms. Seenaught began her first day of ED orientation with Mr. Kapusta on October 27, 2018. That morning, when Ms. Seenaught arrived to work, Ms. Finnegan asked her to first report to “the floors”—that is, her regular work—to provide respiratory care, because the department was understaffed and she was needed. Ms. Seenaught stayed on the floors for most of the morning, before heading down to the ED for orientation later that day. She spent the afternoon going back and forth between the floors and the ED. At some point that afternoon, Petitioner voluntarily accompanied Mr. Kapusta and another co-worker to lunch. Ms. Seenaught testified that nothing inappropriate happened at lunch. Towards the end of Ms. Seenaught’s shift, at approximately 5:45 or 6:00 p.m., the ED received notice that a code blue patient would be arriving in approximately five minutes. A code blue indicates that the patient is experiencing cardiac arrest or some other condition affecting the patient’s ability to breathe. The patient required intubation. This particular patient was the father-in-law of one of the hospital’s doctors. As a result, the hospital staff prioritized this patient and “wanted to make sure everything was going to run smoothly.” Several employees entered and exited the intubation room, helping to prepare for this emergency procedure. Setting up the room for the intubation took several minutes while the actual intubation took seconds to complete. As part of her ED orientation, Ms. Seenaught was required to participate in the intubation procedure with Mr. Kapusta as her guide. There were approximately 15 persons in the room during the procedure. This included a physician, who was the person immediately responsible for the intubation. Ms. Seenaught testified that during part of the procedure, Mr. Kapusta stood very close behind her. She alleges that she could feel his breath on her neck and that he “must have been bending down” for this to happen as he was about a foot taller than she is. Ms. Seenaught claims Mr. Kapusta stood behind her for about 30 to 40 seconds. At the onset of the intubation, Ms. Seenaught helped the physician, by passing him necessary equipment. She was not standing in the correct position to allow for her to easily pass the equipment, so the physician became frustrated with her. Mr. Kapusta quickly took over and assisted with the rest of the procedure. Ms. Seenaught could not have assisted with the intubation for more than a few seconds, as the entire procedure took less than one minute. During the procedure, Mr. Kapusta did not say anything inappropriate to Ms. Seenaught or touch her inappropriately. Ms. Seenaught did not report to Ms. Finnegan or anyone else that Mr. Kapusta acted inappropriately during the intubation by standing too closely to her. Also, even though Ms. Seenaught was assigned to continue her ED orientation with Mr. Kapusta the following day, she did not ask Ms. Finnegan or anyone else to be reassigned. Instead, she finished the ED orientation that evening and went home. After leaving work that day, Ms. Seenaught vented to her co-worker, Krista, through a series of text messages. Ms. Seenaught complained that she was “just feeling disappointed” with how the orientation went. She complained about her interactions with the physician, who she recalled “snatched” something out of her hand. She described the nurses as “rude” and stated that the personnel in the ED “aren’t nice to new faces.” She made no mention to Krista, who she referred to as her “work mommy,” that Mr. Kapusta engaged in any inappropriate behavior that day. The undersigned does not find credible Ms. Seenaught’s testimony that Mr. Kapusta sexually harassed her during the intubation on October 27, 2018. Events of October 28, 2018 On October 28, 2018, Ms. Seenaught was scheduled to continue her orientation in the ED from the previous day with Mr. Kapusta. However, as on the previous day, her regular department was significantly understaffed. There were nine respiratory therapists available, but the workload required Ms. Finnegan asked Ms. Seenaught to again start off by working on the floors. To help coordinate the workflow, Ms. Seenaught was assigned a work phone, which she was expected to carry with her at all times. The department assigned work phones, as needed, to coordinate assignments and call respiratory therapists in the event of an emergency and to dole out for emergencies and reassignments. Respiratory therapists also used the work phones to contact other respiratory therapists to see if they needed assistance. Ms. Seenaught was also assigned a workstation on wheels (WOW device). Later that morning, Ms. Finnegan approached Ms. Seenaught and directed her to join Mr. Kapusta in the ED to continue her orientation. Ms. Seenaught refused. Ms. Seenaught walked away from Ms. Finnegan and entered an elevator. Surprised, as she had never had another employee blatantly refuse an assignment, Ms. Finnegan tried to ask Ms. Seenaught why. Ms. Seenuaght allowed the elevator doors to close while Ms. Finnegan was still trying to ask the question. As a result, Ms. Finnegan was given no explanation for why Ms. Seenaught refused to report to the ED. Instead of reporting to the ED, Ms. Seenaught continued to provide patient care on the floors, despite the fact that her charge respiratory therapist had given her a different assignment. Ms. Finnegan repeatedly attempted to contact Ms. Seenaught by calling her on her assigned work phone. Ms. Seenaught did not answer any of the calls. Ms. Seenaught did, however, use her work phone to call Mr. Kapusta to tell him that she would not be joining him in the ED and would remain on the floors. Ms. Seenaught testified that Mr. Kapusta said that he was okay with her not returning to the ED, as it was “dead.” Ms. Finnegan, as charge respiratory therapist, had the authority to decide Ms. Seenaught’s work assignment for the rest of her shift. Mr. Kapusta had no such authority. Approximately 45 minutes after Ms. Seenaught evaded Ms. Finnegan’s question by letting the elevator doors close, Ms. Finnegan found Ms. Seenaught in a patient’s room on Witt 5. Ms. Finnegan had been searching for Ms. Seenaught the entire time. Ms. Finnegan told Ms. Seenaught that she had been looking for her and asked why she turned her phone off. Although Ms. Seenaught had just used her phone to call Mr. Kapusta, Ms. Seenaught claimed that her phone had died and that she had not received any calls from Ms. Finnegan during the 45-minute period. Ms. Finnegan again told Ms. Seenaught that she should go to the ED to resume her orientation. And again, Ms. Seenaught refused without offering any explanation. Ms. Finnegan asked her if something happened during orientation and Ms. Seenaught said “no.” Ms. Seenaught told Ms. Finnegan that she wanted to remain on the floors. When Ms. Finnegan continued to direct Ms. Seenaught to return to the ED, Ms. Seenaught told her she was going to cancel her orientation, and that she was going to talk to Mr. Christensen. Ms. Seenaught was aware that Ms. Finnegan was the authority on whether or not she could continue to work the floors or return to the ED. Ms. Seenaught testified that Ms. Finnegan “would have the last say-so unless Sean or Heather were present.” After announcing she was going to cancel her orientation, Ms. Seenaught began to cry and asked Ms. Finnegan if she could remain on the floors instead of returning to the ED. Ms. Finnegan denied Ms. Seenaught’s request but offered her a break to compose herself, after which she needed to report to the ED. Ms. Seenaught declined the offer; she told Ms. Finnegan that she was leaving. She said she was calling her mother to pick her up and would be contacting Mr. Christensen. Ms. Seenaught exited the building, leaving her assigned phone and WOW device unattended on Witt 5. She sent a message via Facebook Messenger to her co-worker, Lolita Diaz, asking Ms. Diaz to retrieve the phone and WOW device from Witt 5 and return them to the department. Per Morton Plant Hospital’s Respiratory Department Expectations policy, a respiratory therapist is required to complete a detailed report for the next shift if the charge respiratory therapist approves a respiratory therapist’s request to leave early. This detailed report serves to inform the respiratory therapist taking over on the next shift about any patient care or other issues occuring during the prior shift. Prior to leaving the hospital, Ms. Seenaught also contacted Mr. Christensen by email to inform him that she was leaving. As Mr. Christensen was not on duty that day, he did not immediately receive Ms. Seenaught’s email and did not realize she emailed him until the next day. Although Ms. Finnegan claims she did not know that Ms. Seenaught left the hospital with no intention of returning that day, the undersigned does not find her testimony on this point credible. Ms. Seenaught refused to follow Ms. Finnegan’s work assignment, announced she was leaving (even though her shift was not over), calling her mother to pick her up, and telling Mr. Christensen. Regardless, Ms. Finnegan did not give Ms. Seenaught permission to leave early, as Ms. Seenaught admits. Even more importantly, Ms. Seenaught never told Ms. Finnegan that anything happened during her shift that day, that she endured any sexual harassment the day before, or that she felt uncomfortable with her orientation placement with Mr. Kapusta. Ms. Finnegan believed that Ms. Seenaught refused to go to the ED and ultimately left work because she was frustrated about not getting the full 12 hours of ED orientation on Saturday and Sunday that she was initially scheduled for. This is supported by the totality of the credible evidence in the record. Ms. Seenaught was frustrated that her orientation had already been pushed back three times and she was upset about having to go back and forth between the floors and the ED. Although in her hearing testimony, she claimed that she was uncomfortable being assigned to work with Mr. Kapusta for ED orientation, this claim is contradicted by her actions and not supported by evidence. As she did the evening before, Ms. Seenaught turned to her co-worker and “work mommy,” Krista, to vent about the day’s events. In text messages sent after she left work, Ms. Seenaught wrote the following to Krista: Oh Krista. I think I’m having not a bad day but a bad month. We are staffed with 9 people for the weekend and I’ve been doing floor treatments while trying to orient yesterday so I didn’t even bother going to the ER today. They had since May to schedule me appropriately and I’m always getting screwed over or at least that’s how I feel I’m not finishing my orientation which I’m sure they’ll be pissed about. I’m over management. They hired so many new people telling me that’s the true reason I got pushed back 3 times and out of the 8 or 9 new people there’s not even enough people on our weekend and we are losing Tanya soon I normally don’t get upset too easily but as of late I think everything has been bothering me. * * * Well I left work and sure I will get written up and Georda made a big deal about me trying to help the floor and unit people and told me go back to the ER even though she asked me to help this morning and said she will have to tell Sean so I told her go ahead and tell Sean because I’m trying to help everyone they need the help I don’t see what I did wrong and she got all ballistic so I’m turning off my phone. Ms. Seenaught made it clear that she was unhappy with how her orientation was playing out. She was frustrated at having to split her time between orientation and working on the floors. Ms. Seenaught did not include a single reference to Mr. Kapusta in her complaints to her “work mommy” about all that went wrong at work. She said nothing about Mr. Kapusta or any discomfort she had working with him in the ED orientation. Ms. Seenaught’s Termination On October 29, 2018, Mr. Christensen sent a text message to Ms. Seenaught to inform her that she was being removed from the schedule pending an investigation into the events that occurred on October 28, 2018. In response, Ms. Seenaught again turned to Krista. She told her about being removed from the schedule and expressed how hurt she was by it. Ms. Seenaught told Krista that she wanted to do orientation at a later time when she did not “have to be back and forth between floors and orientation.” During this conversation on October 29, 2018, Ms. Seenaught mentioned to Krista, for the first time, that Mr. Kapusta grabbed her buttocks and asked her to have sex while they were at a bar for a party in September. Ms. Seenaught told Krista that although Mr. Kapusta was not behaving unprofessionally during the orientation, she did not feel that he was properly orienting her, that he seemed uncomfortable, and that it felt “awkward.” On October 29, 2018, Ms. Hayes, Mr. Christensen, and Ms. Seenaught met to discuss Ms. Seenaught leaving work early without Ms. Finnegan’s permission on October 28, 2018. During the meeting, Ms. Seenaught explained that she expressed to Ms. Finnegan that she wanted to cancel her orientation and remain on the floors. She left the hospital when Ms. Finnegan denied her request to stay on the floors. She also expressed that she felt uncomfortable working with Mr. Kapusta and revealed to Mr. Christensen that Mr. Kapusta had sexually harassed her at a bar the previous month. Mr. Christensen had not heard of this until that moment. Mr. Christensen asked Ms. Seenaught if Mr. Kapusta had ever done anything at work to make her feel uncomfortable. Ms. Seenaught said no. Following the meeting, Mr. Christensen and Ms. Hayes contacted Team Member Relations Coordinator Anjanette Dickey to discuss Ms. Seenaught’s actions on October 28, 2018, and the allegations regarding Mr. Kapusta. On November 1, 2018, Mr. Christensen, Ms. Hayes, and Ms. Dickey met with Ms. Seenaught and provided her with a termination form that set forth the following: On Sunday 10/28/2018. You left work unauthorized before completing your shift without handing your phone off or appropriately notifying leadership, which is in violation of policy MPH_130. You left your phone and your WOW on Witt 5, and did not return it to the appropriate area. When discussed with you, you stated you texted your co-workers you were leaving, but, you did not ask or advise leadership that you wanted to leave, because you were not happy with your assignment. Already being short staffed during this day your actions resulted in patient abandonment and goes against the BayCare Code of Conduct- Doing the Right Thing. You were hired on an as needed basis (Pool) by BayCare on 11/13/2017. Per BayCare Policy 212 Pool/PRN you are not subject to the progressive discipline process. BayCare does not believe it would be beneficial for either party to continue your employment based on the event that occurred. Ms. Seenaught told Ms. Finnegan that she intended to leave work. She did not ask for permission to leave early, nor did she receive permission to do so. The reasons stated in the termination form were well-founded. Ms. Seenaught testified that she believed Ms. Finnegan had the authority to cancel her orientation or not. But Ms. Seenaught certainly had no authority to dictate her assignment to Ms. Finnegan. Ms. Seenaught refused her assignment and abandoned her post without permission to do so. Ms. Seenaught could have made a request to a higher authority to cancel her orientation, or, in the alterative, request permission from a higher authority to leave work for the day. She initiated such a procedure when she contacted Mr. Christensen by email, but did not await an answer or authorization from him to cancel her orientation or leave work early. Nor did she submit a similar request to her other supervisor, Ms. Hayes. Ms. Seenaught repeatedly testified that Ms. Finnegan had a responsibility to escalate her desire to cancel her orientation. While there may have been other options for Ms. Seenaught to explore canceling or restructuring her orientation, such as asking Ms. Finnegan to check with supervisors, in the meantime, Ms. Seenaught was responsible for doing her job and following the assignment she was given. Indeed, whether Ms. Seenaught was in orientation or not, Ms. Seenaught did not have permission to leave; and even if she did, she did not follow the proper protocols for leaving early (which included returning your phone and WOW device and giving a detailed report). As a pool employee, Ms. Seenaught was not entitled to Morton Plant Hospital’s progressive discipline or appeal processes. Ms. Seenaught sought to appeal her termination. Deborah Pasqua mistakenly told her, at first, that she could do so, because Ms. Pasqua did not realize that Ms. Seenaught was a pool employee. When Ms. Pasqua determined Ms. Seenaught was a pool employee, she informed Ms. Seenaught that she was not entitled to the appeal process, but that she could submit a written statement for inclusion in her personnel file. Ms. Pasqua also offered Ms. Seenaught the opportunity to meet with Director Michelle Maher regarding her concerns. Ms. Seenaught asked to bring a representative with her to the meeting with Director Maher. Morton Plant Hospital’s Appeal Policy explicitly states that “[a] team member is not permitted to be represented by a third party (e.g. legal counsel, relative, friend, etc.) during the appeal process.” When Ms. Seenaught was told that she would not be able to be accompanied by a representative, she declined the meeting, but still submitted her written statement. Ultimate Findings of Fact Mr. Kapusta sexually harassed Ms. Seenaught on one occasion at an after-work social gathering at a bar. Ms. Seenaught reported the incident to Ms. Finnegan. Ms. Finnegan did not to escalate the complaint because the incident occurred outside of the workplace. Ms. Seenaught’s testimony that Mr. Kapusta breathed on her neck during an intubation procedure, thereby sexually harassing her again, is not credible. Ms. Seenaught failed to prove that she was subjected to a hostile work environment based on an isolated incident at a single after-work social gathering at a bar. Ms. Seenaught failed to prove that Mr. Kapusta sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated because she complained about the harassment. Accordingly, Ms. Seenaught failed to meet her burden of proving that Morton Plant Hospital committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Seenaught’s Petition for Relief. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Marlena Jacinta Seenaught 6201 Hillside Avenue Seminole, Florida 33772 (eServed) Ashley A. Tinsley, Esquire Johnson Jackson PLLC 100 North Tampa Street, Suite 2310 Tampa, Florida 33602 (eServed) Kevin D. Johnson, Esquire Johnson Jackson PLLC 100 North Tampa Street, Suite 2310 Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue When, as here, obstetrical services were not provided by a "participating physician" at the infant's birth, does the administrative law judge have jurisdiction to resolve whether the Respondent may, nevertheless, be estopped to deny coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), and, if so, whether the proof supports a claim of estoppel. If the proof supports a claim of estoppel, whether Austin K. Joshnick (Austin), a minor, suffered a "birth-related neurological injury," as defined by the Plan.
Findings Of Fact Preliminary findings Craig Joshnick and Debbie Joshnick are the natural parents and guardians of Austin K. Joshnick, a minor. Austin was born a live infant on January 18, 2001, at Morton Plant Hospital, a hospital located in Pinellas County, Florida, and his birth weight exceeded 2,500 grams. None of the physicians who provided obstetrical services during Austin's birth (Doctors Michael A. Dawson, David O. Peterfreund, or Patricia St. John) were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.4 Coverage under the Plan In resolving whether a claim is covered by the Plan, the administrative law judge must resolve "[w]hether the injury claimed is a birth-related neurological injury"5 and "[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period." § 766.309(1), Fla. Stat. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat. In this case, Petitioners and Intervenors are of the view that the claim is compensable since, in their opinion, Austin suffered a "birth-related neurological injury" (because he suffered an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period . . . which render[ed] . . . [him] permanently and substantially mentally and physically impaired"), and because, while obstetrical services were not rendered by a "participating physician" at Austin's birth, Respondent is estopped from denying coverage on that basis. In contrast, NICA is of the view that the claim is not compensable since, in its opinion, Austin did not suffer a "birth-related neurological injury" (because his impairments are not associated with any event that occurred during labor, delivery, or resuscitation, and because Austin is not permanently and substantially mentally and physically impaired), and because obstetrical services were not rendered by a "participating physician" at Austin's birth. As for the claim of estoppel, NICA is of the opinion that the administrative law judge is without jurisdiction to address the issue and, if subject to resolution in the administrative forum, the facts do not support a claim of estoppel. Here, for reasons appearing in the Conclusions of Law, it is concluded that the issue of estoppel is appropriately resolved in the administrative forum. As for the claim of estoppel, it must be resolved, based on the Findings of Fact and Conclusions of Law which follow, that the record does not support such a claim. Consequently, given the lack of a participating physician at birth, the claim is not compensable, and it is unnecessary to address whether Austin suffered a birth-related neurological injury. Findings relating to Austin's birth and the giving of NICA notice by the hospital At or about 11:30 p.m., January 16, 2001, Mrs. Joshnick (with an estimated date of delivery of February 28, 2001, and the fetus at 34 weeks' gestation) experienced the onset of severe abdominal pain and was advised by her obstetrician (Dr. Peterfreund), to proceed to the hospital for evaluation. Mrs. Joshnick's husband called 911, and Mrs. Joshnick was transported by ambulance to Morton Plant Hospital, where she was received at 1:04 a.m., January 17, 2001. On arrival, Mrs. Joshnick complained of uterine cramping (since 11:30 p.m., January 16, 2001) and severe pain. Initial evaluation revealed the membranes were intact, no vaginal bleeding, and the cervix at 1 centimeter dilation, effacement at 30 percent, and the fetus at -3 station. Evaluation further revealed the fetus was active, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 145-155 beats per minute. Mrs. Joshnick was admitted for evaluation and pain relief, and at 7:50 a.m., Terbutaline was started to discourage premature labor. Evaluation by renal ultrasound was negative, without evidence of stone, mass, or hydronephrosis, and urinalysis failed to reveal any evidence of infection. Nevertheless, Mrs. Joshnick was started on antibiotics, with the expectation that if her pain was associated with a urinary tract infection, it would resolve with the antibiotics. However, Mrs. Joshnick's abdominal pain persisted, and at 5:00 p.m., her attending obstetrician (Dr. Dawson) made the following observations: . . . abd[ominal] pain - ? etology- doubt kidney stone or U[terine] T[ract] I[nfection] @ present . . . in light of fetal tachycardia (although variability reassuring) and abdominal pain w/uterine irritability - must consider possible abruption or chorioamnionities [an infection of the placental and fetal membranes] . . . . D[iscussed]/W[ith] pt. above differential . . . [and] decision made to proceed w/amnio[centesis] to evaluate F[etal] L[ung] M[aturity]/infection. At 6:30 p.m., the amniocentesis was performed by Dr. Dawson, with Dr. St. John assisting. The amniocentesis revealed a large number of maternal blood cells, and Dr. Dawson made the following observations: . . . in light of continued pain/uterine irritability & blood on amnio & fetal tachycardia consider at least partial placental separation - will plan for delivery @ this time by induction[.] Will monitor baby closely for sym[ptoms] of intolerance to labor or fetal distress. Pt & husband aware of R[isks]/B[enefits]/A[lternatives] of expectant mgmt vs active induction/augmentation of labor of preterm infant. They are aware of risks of fetal lung immaturity, interventricular hemorrhage & necrotizing enterocolitis. They were understanding & agree w/plan to proceed w/induction of labor. Will start Petocin for augmentation. At 7:15 p.m., Mrs. Joshnick was admitted to labor and delivery for active induction/augmentation of labor. Following admission, at or about 10:00 p.m., the labor and delivery nurse on duty at the time, Cynthia Collins, R.N., presented three forms for Mrs. Joshnick or, if she were unable to do so, Mr. Joshnick's signature: an Informed Consent for Epidural Anesthesia Authorizing Anesthesia Associates of Pinellas County to administer an epidural anesthetic; a Record of Informed Consent and Consent for Procedure, authorizing Mrs. Joshnick's obstetrician to perform a vaginal delivery with possible episiotomy, forceps-assisted vaginal delivery, or vacuum extraction or cesarean section, and acknowledgment of receipt of a "NICA Pamphlet"; and a Record of Informed Consent for Procedure, authorizing Austin's circumcision. (Petitioners' Exhibit 2, Tab 2, page 5, and Tab 3, pages 3 and 4). Mrs. Joshnick signed the consent for epidural anesthesia, and Mr. Joshnick, who was present at the time, signed the consent for procedure and acknowledgment of receipt of the NICA pamphlet, as well as the consent for Austin's circumcision. Notably, it is the circumstances surrounding the giving of NICA notice, discussed infra, which form the predicate for Petitioners' claim of estoppel.6 At or about 2:17 a.m., January 18, 2001, following execution of the consents, hydration and other preparations, epidural anesthetic was started, and, at 3:30 a.m., Petocin was started via pump. Thereafter, Mrs. Joshnick's labor steadily progressed, and at 12:46 p.m.,7 Austin was delivered.8 Petitioners' claim of estoppel In this case, Petitioners' claim of estoppel, although occasionally blurred, is two-fold. First, Petitioners contend that certain comments made by Nurse Collins when she delivered the NICA pamphlet, together with Mrs. Joshnick's reliance on those statements in deciding not to insist on a cesarean section, support a finding of coverage by estoppel. On that issue, Mrs. Joshnick offered the following testimony, at hearing: Q. Did you have medical care during the pregnancy? A. Yes. * * * Q. . . . who was your primary obstetrician? A. Dr. St. John. * * * Q. On one of your initial visits, did Dr. St. John discuss anything with you? A. Yeah. She discussed the fact that I had a small pelvis and that they had to use smaller speculums, so must likely I'd be having a C-section. * * * Q. . . . [A]t the time you got the NICA pamphlet [were you in pain?] A. Oh, yeah. I was out of it. I would say I was in severe pain. Q. Had you been sedated? A. No. I wasn't given any drugs up until -- you know, after that pamphlet and signatures came. Q. No drugs for pain? A. No. Q. And you were in substantial pain? A. Yes. Q. In fact, did you sign the receipt for the NICA pamphlet? A. I think I had Craig handle that. I believe Craig signed for it . . . . * * * Q. What did Nurse Collins say to you about the NICA pamphlet? A. She said it was like an insurance policy. We were covered if anything were wrong with the baby at delivery. Q. Okay. Had Dr. St. John mentioned any -- for reasons to do a vaginal delivery in your discussions? Did she mention any problems you might have? A. She -- when I questioned her about the C- section, she said that I was in grave condition and I had lost too much blood. And I said, really, because I didn't realize I had lost that much blood. So I was like, okay. I believed that I was in grave condition and lost too much blood to have a C-section. Q. So in short, you understood that there were dangers to you from a Cesarean Section? A. Yes. Q. Okay. At the same time, you had testified you were entertaining the possibility of leaving the hospital? A. I had said to my brother, Keith, quite frankly, get me some drugs or get me the hell out of here; there's a problem. I felt we were going on too long without pain medication, and the baby was in duress [sic] and all these other things. I wanted some action taken. * * * Q. I guess I'm leading up to the question. Did you feel even at that stage that you had options? A. Yes. Q. And what did those options include? A. Leaving -- you mean leaving the hospital? My options were to, you know, seek other medical advice or get a second opinion or do something, because I felt it was lagging. I felt that this was going terribly wrong. Q. Okay. Okay. Did the NICA pamphlet and the nurse's explanation give you some comfort? A. Yes. * * * Q. And that's not your signature on the . . . [receipt for the NICA pamphlet?] A. No. Q. And that signature, is that of your husband? A. Correct. Q. So this nurse comes in; you were in severe pain; you were in and out of it, as you said before, but you specifically remember the nurse coming in and describing this NICA pamphlet? A. Yes. Q. Now, do you recall where your husband signed this? Was this at the bedside, or did -- because earlier you testified that you told your husband, just take care of it, which I guess is one reason why his signature's on it. Did they step to the side and sign it, or did he sign it right there at the bedside with you? A. I believe what happened was he stepped to the side -- the nurse came over here in the corner. There was a sink on this side, if I remember correctly. * * * Q. . . . [Y]ou testified that Dr. St. John consulted with four other doctors -- A. Correct. Q. . . . Do you remember what that consultation was about? A. About natural delivery versus the C- section. Q. And it was those four doctors that agreed that you were to have a vaginal delivery; isn't that correct? A. That was my interpretation, yes. * * * Q. . . . so it's fair to say that you had a lot of faith and confidence in Dr. St. John? A. Yes. I trusted her. Q. And she advised you that a vaginal delivery was the best means to go; is that correct? A. Well, yeah. She told me that's what I was having. Q. So regardless of you ever seeing a NICA pamphlet, you followed Dr. St. John's orders on her advices; is that correct? A. Well, I was relying upon my doctor's final say. Q. Okay. Which was to have a vaginal delivery; is that correct? A. Correct. * * * Q. Earlier, you testified that the two times that you signed for the receipt of the NICA pamphlet, as we've been calling it, neither of those times you ever read the pamphlet; is that correct?[9] A. That's correct. Q. And you didn't read the pamphlet until, you would say, two weeks or a week after -- A. I would say the first week . . . . Also speaking to the estoppel issue was Mr. Joshnick, who testified at hearing, as follows: Q. This is the consent . . . and also . . . a receipt for the NICA form. Is that your signature? A. Yes, it is. Q. Okay. Why did you sign this document? A. Well, the nurse handed me the pamphlet of the NICA and gave a brief explanation for what it was, and I figured, well, I guess I should sign. * * * THE COURT: . . . When did you ultimately read the pamphlet? THE WITNESS: Actually, I really didn't read the pamphlet until quite a while later when I -- when we were realizing that things had gone wrong. THE COURT: You're talking about months later? THE WITNESS: I really don't even know how long [it] was. THE COURT: After Austin's discharge from the hospital? THE WITNESS: Yes. * * * Q. What do you recall the nurse -- Nurse Collins saying about the pamphlet, the NICA? A. Just saying that it was somewhat like an insurance policy. If things went wrong with delivery and all that we'd be covered to a certain degree. * * * Q. And when you signed for that, did you sign for that at the bedside or away from the bedside? A. At the bedside. Q. Were you given any other papers to sign? A. It's very possible. It's quite a while ago. I don't really recall. A lot of things were happening. Q. And did the nurse describe any of those other papers that you saw? A. I really don't recall anything on that, no. Q. So you recall the nurse discussing the NICA pamphlet but no other documentation; is that correct? A. Correct. Contrasted with Petitioners' testimony, Respondent offered the deposition testimony of Nurse Collins. Not unexpectantly, Nurse Collins did not recall the incident, but offered the following testimony regarding her normal practice: Q. . . . What was your normal business practice of saying to patients about the NICA pamphlet? A. I would hand them the form that needed to be signed, and I would tell them there were two places that needed to be signed. The first one, I would usually hand them the pamphlet and say -- customarily say, "Here is this pamphlet. You are signing that you received this pamphlet; not that you've read it, just that you've received it. And you need to sign here, and then you need to sign down at the bottom here for consent for these procedures," and I would read over those procedures with them. Q. Would you volunteer anything about the pamphlet? A. If I volunteered anything at all, it would only have been that if it was the neurological information -- well, what is it? --Neurological Injury Compensation Association, and that if somebody [sic] happened, you might have the possibility of being covered. * * * Q. In your normal practice, what is your understanding of the NICA pamphlet . . . [?] A. I didn't really -- I never read the pamphlet. But I guess my understanding was that if during the course of the birth of a baby there was some neurological accident or impairment, there might possibly be some compensation available to them. Finally, in the opinion of Dr. St. John, which stands uncontradicted, there was no medical justification to deliver Austin by cesarean section, and absent medical justification surgery would be contraindicated and against her ethical obligations. (Respondent's Exhibit 6, pages 21, 27 and 30). Here, the testimony and other proof offered on the issue of estoppel, predicated on Nurse Collins' remarks, have been carefully considered, and found less than compelling on some key issues. First, the proof failed to demonstrate, with the requisite degree of certainty, that Nurse Collins made an affirmative assurance, without limitation, as opposed to a general comment as to the nature of the program. In so concluding, it is noted that, given the passage of time and anxieties of the moment, it is unlikely either Mr. or Mrs. Joshnick would recall any comment Nurse Collins made regarding the NICA program, much less recall her remarks with any degree of accuracy, and that the remarks they attribute to her are so general, as not to reasonably support an assurance of coverage, without limitation. Moreover, given Mrs. Joshnick's condition on presentation to the hospital, and the events that ensued, it is evident that it was Dr. St. John's opinion that vaginal delivery, not cesarean delivery was medically appropriate, that Petitioners accepted that opinion, and that Petitioners did not rely in whole or in part on NICA coverage in deciding not to insist on a cesarean delivery. Finally, apart from Nurse Collins' comments, Petitioners contend that NICA should be estopped to deny coverage based on the NICA brochure. Pertinent to this claim, the brochure provided: Criteria and Coverage Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen deprivation or mechanical injury, which occurred in the course or labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered. The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan. * * * You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. (Petitioners' Exhibit 3) According to Petitioners: A reasonable person would have concluded, "If [Morton Plant] has provided [Petitioners] with a copy of [the Pamphlet], . . . one or more physician(s) at [Morton Plant] participates in the NICA Plan." A fair reading of the Pamphlet as a whole, is that this participation of a Morton Plant physician--regardless of particular obstetricians' participation--was enough to give Petitioners NICA coverage. (Petitioners' Proposed Findings of Fact & Conclusions of Law, paragraph 20) However, a "fair reading" of the NICA pamphlet does not support Petitioners' interpretation. Rather, the brochure provides, unequivocally, that "[o]nly injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan." Moreover, Petitioners never read the pamphlet until well after Austin's birth and, therefore, could not have relied, detrimentally or otherwise, on its provisions.
Findings Of Fact In early August of 1992, petitioner Howard D. Kline began work as a waiter for respondent, making at least $189 per week. Fearing he might be infected, he gave blood samples on September 21, 1993, at the Bay County Public Health Unit and asked that they be tested for human immunodeficiency virus (HIV). The samples were sent to Jacksonville, and one was forwarded to the Center for Disease Control in Atlanta, Georgia. On September 28, 1992, a report of diagnostic testing done on petitioner's blood in Jacksonville, Petitioner's Exhibit No. 1, was mailed to the health department in Panama City. It reached Nancy S. Nichols, who worked at the Bay County Public Health Unit, on or before October 6, 1992. She had seen the results by the time she talked to Mr. Kline on October 6, 1992, and advised him that he had tested positive. The following day Mr. Kline stopped by the Four Winds restaurant to speak to Barbara Zaleski; wife of (one of) respondent's owners (and possibly herself a co-owner.) Although the restaurant had both a manager and an assistant manager, Ms. Zaleski had authority to hire and fire staff. When Mr. Kline told her of his affliction, she wept sympathetically, then told him he could no longer work at the restaurant because it was bad for business. On October 8, 1993, word reached Mrs. Nichols that the diagnostic testing of petitioner's blood done in Atlanta confirmed the earlier, positive diagnosis. Approximately a week later petitioner stopped by the restaurant to pick up his final paycheck. Two weeks elapsed after his discharge before he found another job. During the two-week hiatus, he lost wages totalling $378. The restaurant hired a waitress to take petitioner's place. The evidence did not reveal her status as regards human immunodeficiency virus. Respondent employed (a) cook(s) and (a) bookkeeper(s) as well as serving staff, an assistant manager and a manager, until it closed, more than three months after petitioner's discharge. The total number of respondent's employees was not proven, nor the total number of people respondent employed at any one time. Services of an attorney worth $4,700 have reasonably been required in the presentation of this claim, but these services would, except for $125 have also been necessary for the presentation of the same claim in court.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR dismiss the petition, without prejudice to petitioner's proceeding in circuit court on any claim not predicated on the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993). DONE AND ENTERED this 14th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1993. COPIES FURNISHED: David L. Jernigan 3020 Kingswood Drive Panama City, Florida 32405 Nancy L. Jones Post Office Box 2062 Panama City, Florida 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
