Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following relevant facts are found: Respondent Skippy King is a licensed practical nurse, having obtained that license in 1973. She first applied for her Florida license as a lay midwife in 1977 and, after litigation with HRS, obtained that license in 1982. She is a member of various midwife and home birthing associations, is a certified childbirth educator and has delivered approximately 500 babies. In August of 1985, respondent accepted V.W. as a patient for the birth of her fourth child. During the initial visit, respondent assessed a risk factor of one for V.W. since she had previously given birth to a child weighing in excess of 4,000 grams. V.W.'s other two children weighed 8 pounds, 12 ounces, or approximately 4,000 grams, at birth. In mid-March, 1986, respondent delivered to patient V.W. an 11 pound, 2 ounce baby boy. Respondent experienced difficulty in delivering the baby's shoulders and performed a Woods Maneuver to accomplish the delivery. Shoulder dystocia is a common complication associated with large babies. The Woods Maneuver is a procedure whereby the anterior shoulder is pushed to the posterior position. The evidence was not sufficient to support a finding that the Woods Maneuver constitutes a "forcible" means of assisting birth. The delivery of large babies in a home situation is unsafe for the baby and the mother due to the difficulty of labor, potential lacerations to the mother and potential postpartum hemorrhaging by the mother. Here, fortunately, no harm occurred to either V.W. or her baby. While it is difficult to determine fetal weight with precision prior to delivery, respondent had enough clues to have suspected a weight in excess of 4,000 grams. These included the weight of the mother and her history of giving birth to large babies. While V.W. only gained approximately 30 pounds between her initial visit to respondent and her delivery date, she weighed 190 pounds at the time of delivery. There are methods utilized by physicians for estimating fetal weights. Some two weeks prior to V.W.'s delivery, it could be estimated that the baby's weight would be in excess of 4,000 grams. Respondent herself was not surprised that V.W.'s baby weighed over nine pounds, though she was "shocked" at the 11 pound, 2 ounce birth weight. Attached to respondent's clinical file for patient V.W. was a one- page, unsigned report of a medical checkup occurring in early February of 1986. This report is illegible in parts and does not appear to contain any risk assessment for midwifery delivery at home. There was no notation of fetal heart tones or size of the baby. Respondent testified that this paper was the third trimester exam and risk assessment performed by a physician, Dr. Dorado. She further states that she has worked with Dr. Dorado for several years, involving some twenty patients, that she recognizes his handwriting and that, when risk factors are a concern, he communicates such concerns to her by telephone. Respondent accepted C.S. as a patient. The culture for gonorrhea testing obtained by respondent was out of date, and respondent was informed by HRS that the test needed to be repeated. In spite of this advice, respondent did not retest C.S. for gonorrhea until she returned for her six week checkup after the delivery of her baby. At that time, the mother did not have a positive gonorrhea culture. The requirement that a gonorrhea test be performed antepartum is an important requirement for the safety of the mother and the baby. A mother with gonorrhea cannot be safely delivered by a midwife at home. Potential complications include eye infections, pneumonia and meningitis in the baby, postpartum infection of the uterus in the mother, and the danger of contamination of the birth attendants. Respondent accepted D.A.S. as a patient. On July 19, 1984, respondent was at the home of D.A.S. when D.A.S. was experiencing some early signs of labor. Since D.A.S. had continued that pattern for some 24 hours, respondent took her to Tampa General Hospital to have a doctor verify what was happening. According to respondent, D.A.S. was given demerol at the hospital and was sent back home. Respondent drove her home. At some time in the evening of July 20, 1984, said time not established in the record, respondent returned to the home of D.A.S. as a result of a telephone call. She remained in the living room for approximately 20 minutes speaking with D.A.S.'s sister-in-law. She then heard sounds from D.A.S. in another room. When respondent went in to that room, D.A.S.'s baby's head was apparent and meconium was present. Respondent sent her assistant out to her car to retrieve her equipment. The infant was very limp, lethargic, raspy and bluish. Respondent suctioned the infant due to the presence of meconium and told her assistant to telephone the pediatrician and the neonatal unit at Tampa General Hospital. The baby's father and his male friend took the baby to the hospital in their automobile. The baby was admitted to the hospital at 23:22 on July 20, 1984, and was discharged on July 31, 1984, with a final primary diagnosis of pneumonia. Respondent could not remember the time of birth of this infant and did not keep any notes of the delivery. While she testified that she only "worked" on the infant for about 20 minutes after its birth, the birth certificate states that the infant was born at 9:10 p.m. on July 20, 1984. Respondent did not make or submit a completed birth certificate to the local registrar of vital statistics or to HRS. After the infant was taken to the hospital, respondent turned her attention to D.A.S. D.A.S. had hemorrhaged and had vaginal lacerations. Respondent estimated that D.A.S. had lost 500 ccs of blood. She had not stopped bleeding when she was taken to the hospital by her sister-in-law, though her pulse and blood pressure readings did not indicate a problem with shock. D.A.S. was admitted to Tampa General Hospital sometime after 23:22 on July 20, 1984, but before 00:10 on July 21, 1984. At the hospital, she was given 2 units of red blood cells and was discharged on July 24, 1984. Tampa General Hospital is located approximately four miles away from the D.A.S. residence. Respondent did not accompany either the infant or D.A.S. to the hospital. There was no evidence that either the father, his male friend or the sister-in-law had any medical or nursing background or abilities. A newborn baby needs oxygen when it is limp, bluish in color and respiration is poor. Respondent did not administer oxygen to the D.A.S. newborn. Respiratory distress in a newborn is a complication urgent enough to require emergency medical care, and the most appropriate manner of transporting a newborn in need of oxygen to a hospital is by emergency medical service. Hemorrhage in mothers after delivery is one of the largest causes of death from childbirth. Other side effects of postpartum hemorrhage include severe anemia and shock, which can lead to death in the absence of appropriate medical treatment and care. It was unsafe for the sister-in-law of D.A.S. to transport D.A.S. to the hospital by car. An emergency medical transport team should have been utilized in case D.A.S. had gone into shock or there was a need for intravenous infusion during transport to the hospital. If the time of birth of the D.A.S. infant was 9:10 p.m. as stated on the birth certificate, the expiration of time between D.A.S.'s delivery and admission to the hospital could have exacerbated the effects of the hemorrhage and lacerations by extending blood loss. Respondent's records for D.A.S. do not contain a written emergency plan. As a result of a prior Administrative Complaint filed on or about September 19, 1984, and a Stipulation and Agreement dated April 8, 1985, respondent paid an administrative fine, admitted violating certain rules, was placed on probation for one year and was required to take continuing education relevant to the practice of midwifery. The facts which form the basis of the instant Administrative Complaint either became known or were verified during the probationary period imposed as a result of the former Administrative Complaint.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's license to practice midwifery in Florida be REVOKED. Respectfully submitted and entered this 1st day of December, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 1st day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3027 The parties' proposed findings of fact have been carefully considered and are included or incorporated herein, except as noted below. Petitioner 18 - 22. Rejected; not established by substantial, competent evidence and irrelevant to the charges in the Complaint. 61. Reject the word "always." 72. Rejected as irrelevant to the charges in the Complaint. 74. Rejected as irrelevant and immaterial. 79. Rejected; not a proper factual finding. 82. Rejected; not supported by competent, substantial evidence. Respondent 15 & 16. Rejected as contrary to the evidence. 29. Rejected, not established by competent, substantial evidence. 34. Rejected, not established by competent, substantial evidence. 36. First sentence rejected as contrary to the evidence. 38. Rejected as irrelevant to the charges in the Complaint. 41. Rejected in part, see Conclusions of Law. 46. Rejected, contrary to the respondent's own testimony. 51. Rejected; the time of birth was not clearly established. 55. Rejected; not established by competent, substantial evidence. Rejected; insufficient evidence to support such a finding. Rejected; irrelevant to the charges in the Complaint. 61. Accepted but not included as not probative of any issue in dispute. COPIES FURNISHED: Leslie Mendelson, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Alice K. Nelson, Esquire 1410 North 21st Street Suite 120 Tampa, Florida 33605 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should renew Petitioner's license to operate a child care facility based on an alleged Class I violation of Florida Administrative Code Rule 65C- 22.001(5)(a) and an alleged history of noncompliance with the Florida Administrative Code rules regulating child care facilities.
Findings Of Fact At all times material here, Petitioners owned and operated Child Care 2000, #1 (the facility), located on State Road 44, Sorrento, Florida. Petitioner George Barrett was the licensed child care director of the facility, which had been a child care center for 14 years. The facility had an employee's manual that addresses its policies. The manual contained policies regarding regular staff meetings, parent/teacher conferences, and mandatory initial/in-service training requirements. The manual also included a section on safety, which stated as follows: Do not leave your classroom unsupervised at anytime, indoors or out. All electrical outlets must be covered at all times. Any broken or damaged equipment must be removed or brought to the Director's attention. Remember to count your children every hour. All of these things must be done daily. DO NOT leave children unattended. There will be tolerance for this action. The facility had a time clock, which the employees used to record their time at work. The information from the time clock transferred electronically to the facility's computer, which captured the information for use in a software program that generated payroll. If a teacher's time card was incorrect for any reason, the bookkeeper could manually override the system to correct any error. The facility also used the time clock to log the time that children attended the facility. The attendance records transferred electronically to the facility's computer, which captured the data for use in a software program that generated billing statements. The children's parents used a password to activate the time clock when they dropped off or picked up their children. There is no evidence that anyone at the facility knew how to manually override the children's electronic attendance log. Respondent alleges that its inspector, Glenda McDonald, performed an inspection of the facility on October 27, 2005. The inspection checklist contains allegations that the facility was noncompliant in the following areas: (a) Outdoor Play Area, Florida Administrative Code Rule 65C-22.002(4)(c)(g); (b) Fencing, Florida Administrative Code Rule 65C-22.002(4)(d)(e); (c) Outdoor Equipment/Suitable, Safe, Maintained, Florida Administrative Code Rule 65C-22.002(9)(b); (d) 10-hour In- service, Florida Administrative Code Rule 65C-22.003(6)(a)-(c); (e) Bottles Sanitary and Labeled, Florida Administrative Code Rule 65C-22.005(3)(b)(c); (f) Children's Health/Immunization Records, Florida Administrative Code Rule 65C-22.006(2)(a)-(c); (g) Personnel Records, Florida Administrative Code Rule 65C- 22.006(5)(a)-(c), (e), (f), (6)(e); and (h) Form 5131/Screening Documents, Florida Administrative Code Rule 65C-22.006(5)(d). Respondent did not present Ms. McDonald as a witness at the hearing. Without Ms. McDonald's testimony or an admission by Petitioners, there is no competent evidence by Respondent to show the facility's noncompliance on October 27, 2005. During the hearing, Petitioners did admit that the facility failed to comply with the rules on October 27, 2005, in the following respects: (a) the need to remove or replace a broken swing as required by Florida Administrative Code Rule 65C-22.002(9)(b); and (b) the need to update children's shot records and physicals as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). Petitioners presented testimony that the broken swing was repaired immediately after the October 27, 2005, inspection. Additionally, Petitioners admitted that they found it impossible to keep the children's shot records and physicals updated, but that they corrected the problem in a timely manner after the October 27, 2005, inspection. On January 30, 2006, one of Respondent's inspectors, Debbi Mitchell, performed an inspection of the facility. Ms. Mitchell observed that the facility was noncompliant in the following ways: (a) failure to update children's shot records as required by Administrative Code Rule 65C-22.006(2)(a)-(c); and (b) failure to update personnel screening documents as required by Florida Administrative Code Rule 65C-22.006(5)(d) and Section 435.04, Florida Statutes. There is no evidence to dispute Ms. Mitchell's testimony regarding the January 30, 2006, inspection. The failure to keep the children's shot records updated was a repeated offense. On or about March 31, 2006, Petitioner filed an application with Respondent to renew their license. Petitioners' daughter-in-law was the facility's office manager. When Petitioners were unable to be present at the facility, the daughter-in-law was the person in charge of the child care center. If the Petitioners were absent and the daughter-in-law had to leave the premises, Linda Race, a senior pre-kindergarten teacher was in charge of the facility. Ms. Race would take over as the person in charge when Petitioner's daughter-in-law handed her the facility's telephone. A.B. was the son of the daughter-in-law/office manager and the grandson of Petitioners. In the spring of 2006, A.B. was two-years-old. He attended one of the pre-kindergarten classes at the facility. It was not unusual for A.B. to see his mother during the school day. Sometimes A.B. would become upset and cry if he was not allowed to leave his class and go to his mother in the office. On April 25, 2006, Petitioners were not at the facility. Petitioner Alicia Barrett was taking care of Petitioner George Barrett, who was recovering from a serious illness. On April 25, 2006, Petitioner's daughter-in-law clocked into work at the facility at 8:10 a.m. A.B. arrived with his mother then joined his class. Later that morning, A.B. began crying for his mother. Ms. Race attempted to refocus A.B.'s attention before letting him go to his mother. From that time on, Ms. Race believed that A.B. was no longer participating in her class because he was with his mother. Ms. Race understood that A.B.'s mother was planning to leave the facility in the early part of the morning. On April 25, 2006, Petitioner's daughter-in-law clocked out of the facility at 9:59 a.m. She had been at the facility for one hour and 49 minutes before she clocked out. A.B.'s electronic attendance log for that day indicates that he was in attendance for one hour and 49 minutes. A.B.'s mother did not testify at the hearing. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race and her assistant, another teacher identified as Brittany Russell, were with the children on the facility's porch. As the children prepared to move from the porch to their classroom, Ms. Race and Ms. Russell, began taking a head count. About that time, A.B.'s mother approached Ms. Race and handed the facility's telephone to her. Accepting the telephone with a call on the line, Ms. Race realized that A.B. was not with his mother and that he was at the Circle K, a convenience store and gas station located next to the facility. Apparently, employees of the Circle K had called the facility to see if a child was missing. Ms. Race immediately ran from the facility to the Circle K to retrieve A.B. The totality of the circumstances indicates that A.B. was with his mother when he left the facility. The facility's teachers had no reason to believe otherwise. No one at the facility prepared an incident report relative to the events that occurred on April 25, 2006. However, under the circumstances of this case, it is clear that A.B.'s mother was aware of the emergency that was created when A.B. left his mother and went to the Circle K. On May 12, 2006, Ms. Mitchell investigated a complaint against the facility involving the events of April 25, 2006. The investigation of the complaint resulted in Respondent's issuance of an Intent to Impose Administrative Action for the following alleged violations: (a) inadequate supervision as required by Florida Administrative Code Rule 65C-22.001(5)(a), (b), (d)1.-3.; and (b) failure to document the incident involving A.B. as required by Florida Administrative Code Rule 65C-22.004(2)(d)2. There is no clear and convincing evidence to support these allegations. The facility did not provide inadequate supervision for A.B. because he was with his mother and not under the supervision of the facility when he went to the Circle K. Accordingly, there was no need for the facility to document the incident. On May 12, 2006, Ms. Mitchell also performed an inspection of the facility. During the inspection, Ms. Mitchell observed the following alleged noncompliance: (a) Planned Activities Posted and Followed as required by Florida Administrative Code Rule 65C-22.001(7)(a); (b) Outdoor Equipment/Suitable, Safe, Maintained as required by Florida Administrative Code Rule 65C-22.002(9)(b); (c) First Aid Staff/Supplies as required by Florida Administrative Code Rule 65C-22.004(2)(a)-(c); (d) Accident/Incident Documented as required by Florida Administrative Code Rule 65C-22.004(2)(d)2.- 4.; and (e) Children's Health/Immunization Records as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). On May 12, 2006, the plan of classroom activities/schedule for each age group was posted in entrance to the facility near the office. That area was an appropriate place for all parents entering or leaving the facility to access the plan. On May 12, 2006, the facility's playhouse, which was located on its playground, had broken boards. After Ms. Mitchell's inspection, Petitioner immediately repaired the broken boards. The failure to keep the playground equipment properly maintained was a repeated violation. On May 12, 2006, Ms. Mitchell inspected the facility's fist aid kit, finding it extremely incomplete. Petitioners immediately corrected this noncompliance. On May 12, 2006, Ms. Mitchell determined that Petitioner did not prepared an incident report relative to A.B. leaving the facility on April 25, 2006. However, such documentation was not required because A.B. was with his mother, who had clocked him out of the facility. On May 12, 2006, Ms. Mitchell found that the facility had outdated shot records and/or physicals for four students. This was the third consecutive instance of this type of noncompliance. After the inspection, Petitioner corrected the problem in a timely manner. At the time of the hearing, the facility was closed.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioners' application to renew their license to operate the facility, subject to terms and conditions that Respondent deems appropriate. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2006. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Stella V. Balandran Qualified Representative 95 South Trowell Avenue Umatilla, Florida 32784 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should Petitioner, Department of Children and Families (Department), fine Respondent, Richardson's Learning Enrichment Center, Inc. (Richardson's), $150.00 for failing to maintain supervision of a child as required by Florida Administrative Code Rule 65C-22.001(5)(a)?
Findings Of Fact Richardson's holds Department license number C10PO538 to operate a child care facility in Bartow, Florida, as authorized by sections 402.301 through 402.319, Florida Statutes (2012), and Florida Administrative Code Chapter 65C-22. The statutes and rules governing operation of a child care facility impose minimum supervision requirements for children in the care of the facility. On April 20, 2012, Shannah Hotaling of the Early Learning Coalition of Polk County visited Richardson's to screen three children registered to attend the facility. As she arrived, Ms. Hotaling observed a female toddler about two years of age leave the building and close the door behind her. The toddler walked over to stand beside an orange car parked in front of the facility. Ms. Hotaling did not see any adults in the area. She spoke to the toddler and escorted her into Richardson's. While Ms. Hotaling was asking an employee about the child, the toddler joined one of the classes in progress. The toddler was the grandchild of Richardson's owner and the daughter of Richardson's director. Both of them were present the morning of April 20, 2012. Although the owner's child was a registered student of the facility, she was not signed in as attending that day. Just before Ms. Hotaling arrived, the owner, her grandchild, and her son had arrived at the facility. The owner was bringing breakfast for the staff and students. When the owner entered the facility, she left the toddler outside in the care of her uncle, the owner's son. The uncle had brought trash with him to place in the facility's commercial trash container. He walked down a lightly wooded path beside the facility to the trash container. The toddler did not follow him as her grandmother and uncle intended. She turned back, entered the facility, then left the facility, and returned to the car where Ms. Hotaling spoke to her and brought her inside. During these events, which occurred in a short period of time, the toddler was never checked into the facility or entrusted to its care. She was in the care of her uncle and her grandmother in her capacity as grandmother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of June, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of June, 2013. COPIES FURNISHED: David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 Carolyn Richardson Natasha Richardson Richardson's Learning Enrichment Center 1426 West Bryant Street Bartow, Florida 33830-3411
The Issue The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Thomas B. B. Benton, was a licensed medical doctor having been issued license number ME 0053353 by petitioner, Department of Professional Regulation, Board of Medicine (Board). Benton is a 1985 graduate of the University of Florida College of Medicine and has been licensed in this state since 1988. He is also licensed in the State of Texas. He has been a board certified pediatrician since 1989. When the events herein occurred, respondent was practicing as a pediatrician in Gainesville, Florida with privileges at Alachua General Hospital, Inc. (AGH) and North Florida Regional Hospital and an affiliation with Shands Teaching Hospital (Shands) as clinical faculty. Finally, respondent has never been subjected to disciplinary action by the Board or any other medical authority. On September 15, 1989, M. P., then an eighteen year old female, delivered a newborn infant by Caesarian Section (c-section) at AGH. Immediately after delivery, the infant was transferred to respondent's care and placed in the AGH nursery with approximately seventeen other infants. Around 1:15 a.m. on September 16, the infant was found face down in the crib not breathing. After efforts to resuscitate the infant were unsuccessful, it was pronounced dead. An autopsy was performed but the cause of death was not determined. An AGH peer review of the incident concluded that respondent did not act inappropriately. However, because a death had occurred, a "serious incident report" was filed with the Department of Health and Rehabilitative Services which then contacted the Board. This resulted in the Board conducting an investigation and, after determining by a 2-1 vote that probable cause existed, filing an administrative complaint against respondent on February 6, 1991, charging him with having failed to maintain adequate medical records and with failing to adhere to the appropriate standards of care and skill while treating the infant. That prompted respondent to request a hearing to contest the charges in the complaint. The Mother and Her Medical Background The unmarried mother of the deceased infant became pregnant in late 1988 or early 1989. On April 5, 1989, she visited the offices of Dr. Andrew M. Muskus, II, a Gainesville obstetrician and gynecologist. During that visit, M. P. was examined by a nurse and a history was taken. On April 26, Dr. Muskus saw the patient for the first time. She was then approximately seventeen weeks pregnant. Doctor Muskus found her past medical history to be "significant" because M. P. was single, smoked cigarettes, had previous surgery on her femur, had a history of bronchitis and pneumonia, had chronic mild anemia, and had once used alcohol and "street" drugs. However, there is no indication that the mother used drugs or alcohol during her pregnancy. A standard prenatal profile revealed nothing significant except that M. P. had lordosis, or a curvature of the spine. Through the use of an ultrasound imaging taken on May 16, Dr. Muskus determined a due date of October 5, 1989. The ultrasound also indicated the possibility of an early hydrocephalus, that is, enlarged ventricles in the infant's brain, and a low spinous defect. Because of this, Dr. Muskus made an appointment for the patient to have a second tertiary level ultrasound performed at Shands. After those results became available, Dr. Muskus intended to offer the patient the opportunity to terminate the pregnancy if such testing resulted in a poor prognosis for the baby. On May 17, 1989, the ultrasound was performed at Shands and the following findings were made: There is clearly dilatation of the posterior horns with CSF medial to the depending choroid plexus. The cerebellum and other intracranial structures appear normal. The third ventricle does not appear enlarged. The spine appears normal. Amniocentesis was performed under ultrasound guidance and the impression was ventricularmegaly of the posterior horns of the lateral ventricles. The patient was referred to genetic counseling. Although a total of seven ultrasounds were eventually performed, four by Shands and three by Dr. Muskus, no definitive diagnosis was ever made. However, Shands concluded there was a nonexpanding hydrocephalus and "felt" there was a "possibility" of a form of holoprosencephaly and agenesis (absence) of the corpus callosum, a central structure in the midbrain. The absence of this structure meant the baby would have a congenital brain malformation, although such a neurological deficit is not necessarily critical or disabling and may be compatible with continued life. Even so, neither Dr. Muskus nor Shands had an opinion on the infant's prognosis and Dr. Muskus acknowleged that there was some "hedging" by both he and Shands on this issue. After the initial evaluations were concluded, Dr. Muskus spoke to M. P. and indicated there was a problem with the baby. He asked her to make a decision on whether she wanted to continue to term or abort the pregnancy. However, by the time all of the evaluations were concluded, it was too late to terminate the pregnancy and the patient had no choice in the matter. Doctor Muskus accordingly formulated a treatment plan with the assistance of the Shands doctors. The Shands physicians and Dr. Muskus agreed the baby was growing properly, and except for a possible problem with the brain, they forsaw no other difficulties. In addition, they agreed the baby could be delivered vaginally. Although Shands offered to deliver and care for the baby, M. P. had become "disenchanted" with the Shands staff and strongly desired to have the delivery at AGH at the earliest opportunity. Acceding to her wishes, Dr. Muskus agreed to perform a c-section at 39 weeks, or on September 28, 1989, and to have the baby transported to Shands in the event it became necessary. He also made arrangements to turn the care of the baby over to respondent at the time of the delivery. This was because respondent was a pediatrician designated by M. P.'s health insurance carrier (Av-Med). Prior to the delivery, Dr. Muskus spoke to Dr. Benton in the hospital hallway one day to make sure he felt comfortable assuming care of the baby. Respondent replied that he had no problem in doing so. Also, Dr. Muskus sent a letter to respondent on August 18, 1989, a copy of which has been received in evidence as respondent's exhibit 2. The letter read in relevant part as follows: Miss P. is an 18 year old white female who at approximately 20 weeks in the pregnancy was noted to have an abnormal ultrasound which suggested possible early mild hydrocephalus. Subsequently she was referred to Shands Teaching Hospital where a second opinion was requested. An amniocentesis was done at that time and a normal 46XY chromosome analysis was reported along with a normal alpha fetoprotein screen. Dilatation of the posterior horns of the lateral ventricles was noted at that time as well. Subsequently she was followed at intervals by Shands with ultrasounds. Except for the defect noted in the head, the fetus seemed normal otherwise. Most recently, the diagnosis of possible agenesis of corpus callosum was noted. Additionally, although the posterior horns were dilated, the head was not enlarged and the fetus seemed to be growing appropriately. No other ultrasound determined defects were noted. Presently the patient is at 34 weeks in her pregnancy and is due on October 5th. She is quite dissatisfied with her management at Shands, feeling that she has been given contradictory information. She strongly wishes to be delivered at Alachua General by c-section to be done probably in late September. Tom, I wanted to give you some advance information about the patient who really is quite pleasant and also quite nervous about this pregnancy. If any additional information is necessary which you feel I can provide you, please feel free to call upon me. We will make arrangements with your office to coordinate the timing of the c-section. After receiving the letter, and in view of the reference therein to the absence of a corpus callosum, respondent reviewed a pediatrics textbook to familiarize himself with that particular neurological condition. In this way, he became aware of the condition and its ramifications prior to the c-section. It should also be noted here that both of petitioner's expert pediatricians reviewed pediatrics textbooks to familiarize themselves with the same neurological term prior to giving standard of care testimony at hearing. Doctor Muskus considered M. P. to have a "high-risk" pregnancy because of the mother's social problems (she continued to smoke and had once used alcohol and street drugs) and the obvious anatomic problems with the baby. Events Immediately Prior to Delivery Because of lower back ache, nausea, low-grade fever, uterus instability and cramping, which had persisted for several days, M. P. was admitted to AGH on September 14, 1989. However, the patient presented no indication that she was in labor. This was approximately two weeks before her scheduled c-section. On admission, M. P.'s temperature was 101.2 degrees. Standard blood studies and cultures were ordered for the patient but the blood studies revealed nothing (except a mildly elevated blood count) to assist Dr. Muskus in determining "what was going on with the patient". Because Dr. Muskus suspected (but could not confirm) that she may have had pyonephritis, a urininary tract infection, particularly since she had been exposed to a nephew with viral symptoms, he ordered that antibiotics (Rocephin IV) be administered intravenously. As a result, in six hours her temperature reading was brought down to 100.2 degrees. In addition, even though M. P. was not in labor, Dr. Muskus prescribed Terbutaline subcutaneously for uterus irritability. After conferring with two associates, Dr. Muskus decided to delay formulating a treatment plan until he saw the results of the cultures which were due back two days later. However, he later came to the conclusion that even though there was no fetal distress, the patient "looked in obvious distress", and he should move the c-section up from September 28 to the next day, or Friday, September 15. Doctor Muskus accordingly contacted Dr. Benton on the morning of September 15 to advise him that M. P. was in the hospital and of the rescheduled delivery. By this time, the mother's fever had subsided for some twenty-four hours. The Delivery Because respondent only learned of the patient's admission to the hospital and the new delivery date a few hours before the operation, he had only one brief opportunity to speak with M. P. as she lay on the c-section table just prior to being rolled into the operating suite. The nature of that conversation is not of record. 1/ The c-section was a typically planned one - a primary low, transverse-type section. The fetus was monitored until the section was actually started and the infant (a male) delivered in the usual fashion around 12:47 p.m. weighing five pounds, twelve ounces. This was approximately thirty hours after M. P. had been admitted to AGH. Because a very light meconium stain was noted at the time of delivery, the baby's nose, mouth and stomach were suctioned while the head was through the incision. This is a normal procedure when meconium is present. There was no meconium detected below the vocal cords. After the placenta was removed, Dr. Muskus observed a substantial amount of clotting behind the placenta which was caused by a placenta abruption. This means there was a premature separation of the placenta from the uterine wall. The doctor believed there to be a thirty to forty percent abruption and this was later confirmed by the pathology department. However, the mother's actual blood loss related to the c-section was quite low, being about 300 CCs, and there was no need to transfuse her. Further, there was no loss of blood by the fetus. After the baby was delivered, Dr. Muskus clamped the cord and handed the baby to Dr. Benton. According to Dr. Muskus, the baby appeared "like a healthy baby" and he felt that M. P. was "fortunate to get such a healthy- looking child". Indeed, Dr. Muskus noted at hearing that he could not see any difference between M. P.'s baby and any other healthy newborn baby in the maternity wing. He added that there was never any indication of fetal distress in the baby. Events Immediately After Delivery As noted above, when the baby was delivered, meconium staining was observed. Also, the infant required some resusitative techniques. Respondent, who was present in the delivery room, administered oxygen with a bag and mask and suctioned the airways "deeply" with an Ambu intratracheal incubation suction. This produced immediate responsiveness on the part of the baby. Once respondent considered the baby to be stable, he carried the newborn to the head of the operating table and showed it to the mother. The baby was then transferred from the operating suite to the newborn nursery. Just after the delivery occurred, and while still in the operating suite, the baby was examined to determine its Apgar score. An Apgar score is a quantitative scoring system to summarize an infant's condition at birth for the purpose of showing whether intervention by the doctor is appropriate. Five criteria are used with each criterion given a score of zero, one or two. The scores are then totaled with zero meaning a lifeless baby and ten meaning perfectly normal. A score of three and below indicates the baby is in a life- threatening condition while a score of four to seven demonstrates the need for immediate intervention. Anything above seven indicates the baby is normal. In this case, at one minute after birth the infant had an initial score of four due to a "depressed" condition which meant that prompt intervention (resuscitation) was required. After resuscitation was given, the infant's Apgar score was raised to eight within five minutes, which is a normal score. The baby was given a physical examination by respondent within thirty minutes after birth. The examination revealed that the baby was not significantly outside the normal ranges in any examined area. Indeed, all vital signs were stable. More specifically, respondent's examination found no problem with the infant's skin color and tone, head, neck, eyes, ears, nose, throat and heart. Although the baby's respiratory rate was slightly higher than normal, this was not unusual because the mother had previously been given Terbutaline, which tends to increase the heart rate of both mother and fetus. The Nursery AGH had a nursery that was divided into two sections. The front section was for so-called "well-babies" and was designed to hold between fifteen and twenty babies during the transition period immediately after birth. Behind the front section was a smaller intermediate care section with special equipment (respiratory, apnea and cardiac monitors) to handle from six to eight babies who required more attention. Generally, but not always, a newborn is placed on a monitor only with specific orders from the attending pediatrician. It should also be noted that the evidence supports a finding that the use of monitors is not always a reliable method for detecting a problem with an infant. Indeed, one of petitioner's experts acknowledged that an experienced nurse can be better than a monitor. The well-baby section was always staffed by three nurses at any time. Each nurse was responsible for no more than six babies. According to the Guideline for Perinatal Care, this ratio (6:1) is the accepted or normal nurse- to-baby ratio in hospitals. Conversely, the intermediate care section had one nurse for every two babies. As a general rule, a nurse would rotate from baby to baby during her duty shift to verify that the baby was not in trouble. Among other things, the nurse would check the baby's vital signs, color and responses to external stimuli. Although some nurseries have a practice of checking on the "normal" babies every four hours, the AGH nursery staff examined the babies more frequently. AGH is an experienced hospital in terms of delivering and caring for babies. In 1989 alone, there were some 2,000 babies delivered at the hospital. The nurses who were on duty in the nursery on the evening of September 15, 1989, included one with more than twenty years of experience and others who had several years experience in newborn nurseries. There is no evidence to suggest or support a finding that the nurses on duty that evening were not competent and qualifed personnel. Treatment While in the Nursery When the baby was transferred to the nursery, respondent gave a routine standing order that the baby be monitored like all other newborns and that he be immediately notified by the nursery if any unusual event occurred with respect to the infant. He did not order that the infant be placed on a monitor or in the intermediate care portion of the nursery. Finally, he did not advise the nursery staff of the baby's neurological deficit although this information could be easily found in the baby's medical chart. Around 4:00 p.m. that same afternoon, Dr. Muskus briefly visited the nursery to see the baby. He observed that the baby's breathing was unlabored, it had a good pink color, it was moving all extremities well, and it "looked quite comfortable in the crib". At that time, Dr. Muskus told the head nurse that she might want to ask Dr. Benton about the possibility of placing the baby on a monitor given his medical history. Doctor Benton visited the nursery around 4:45 p.m. on September 15 to check on the infant's condition. After he examined the infant and found no problems, the head nurse mentioned to him the suggestion by Dr. Muskus regarding the use of a monitor. Respondent declined to order a monitor on the ground his research on the subject of an absent corpus callosum reflected no mention of associated respiratory or cardiac problems. Since he had no reason to suspect apnea or cardiac arrest, he concluded there was no reason to use a monitor. During the transition period, that is, the first four hours after the baby was born, it was monitored once each hour by the nursing staff. During that time, it was necessary for a nurse to warm the baby with warm water gloves due to a low body temperature. However, this was not unusual for a newborn who has cooled off in the delivery room and has very little fat. During the next seven hours prior to its death, the infant was fed four times and his vital signs were checked on three occasions. Except for a rash, which is common to all newborn babies, and a minor elevation of pulse and respiration, there were no signs of any problems. The baby's vital signs were last checked just before midnight on September 15 and were found to be stable. The baby was found not breathing at 1:10 a.m. the following morning. The cause of its death has never been determined. /2 Failure to Order Further Tests The amended administrative complaint alleges that respondent deviated from the standard of care while treating the infant in a number of respects. One such alleged deviation is his failure to order laboratory studies or x-rays to ascertain if the newborn had sepsis (infection) or anemia. As framed in the complaint, this charge is predicated principally on the factual allegations that "the mother had a fever at delivery" and she suffered a "placental abruption" and thus further tests were warranted. Initially, it is noted that the mother did not have a fever at delivery. While it is true that M. P. had a temperature of 101.2 degrees on admission to the hospital, antibiotics had dissipated the fever within six hours. Moreover, Dr. Muskus's initial suspected diagnosis of pyonephritis had proven to be incorrect, 3/ and the results of cultures, both preliminary and final, confirmed that the mother did not have an infection. Both of petitioner's experts suggest that given the maternal fever and the uncertainty as to its cause, respondent should have ordered such supplementary tests as a complete blood count (CBC), cultures, urine screen (for strep antigen), and chest x-ray to ascertain whether the baby had an infection. However, the more credible and persuasive evidence supports a finding that respondent had no reason to suspect the baby had an infection and therefore such tests were not necessary given the circumstances present here. Respondent reached this conclusion because the mother no longer had a fever and initial tests suggested rather strongly that the mother did not have an infection. Indeed, respondent's judgment was borne out by the mother's culture results which reflected that the mother did not have an infection. In addition, at the time of delivery respondent had the benefit of information from Dr. Muskus that initial reports (after 30 hours) of M. P.'s urine cultures were negative. It should also be noted here that no evidence was submitted by petitioner, including the pathologist's post-mortem report, to establish that the infant had an infection. Finally, because the infant's vital signs were stable, and there was no sign of distress, it was appropriate to merely closely monitor the infant without the benefit of further work-up. Petitioner's experts have also asserted that respondent erred by failing to perform additional tests to determine if the infant was anemic. Anemia is of course blood loss and this occurs most frequently in a newborn in conjunction with a complete separation of the placenta from the uterine wall. Under those circumstances, both parties agree that a CBC with a hemoglobin hemacrit is appropriate. However, a free flow of blood into the uterus or vagina does not occur unless the placenta is lifted completely off of the uterine. In this case, there was only a partial abruption or separation of the placenta from the uterine wall and therefore the possibility of anemia was slight at best. Although anemia cannot be determined solely by physical appearance, the color of a baby is nonetheless a good indicator. Here, a physical examination of the child immediately after delivery revealed that the infant had a good pink color and no abnormal signs, and there were no clinical features of anemia in the baby. Further, petitioner offered no evidence to establish that the infant was anemic. Accordingly, it is found that respondent did not deviate from the appropriate standard of care by failing to order additional tests on the infant to confirm or deny the existence of anemia. Failure to Use Monitor or Intermediate Care Section in Nursery The amended complaint also alleges that respondent deviated from the standard of care by failing "to adequately monitor or (place) said Patient #1 either with cardiac/apnea monitor or placing said Patient in an intermediate care nursery". As noted earlier, respondent chose not to place the infant on a monitor or in the intermediate care nursery. Petitioner's experts have criticized this decision on the ground the baby's history and danger signals justified closer observation than that given in the well-baby portion of the nursery. Respondent did not place the child on a monitor because this action was not indicated. Indeed, there was no suggestion of any increased respiratory risk for the infant, respondent knew that the infant would be checked more frequently than every four hours by an experienced and competent nursing staff, the infant's vital signs were stable, and there was no correlation between the infant's neurological deficit and the conditions for which monitors are used (apnea and cardiac arrest). Therefore, it is found that respondent did not deviate from the standard of care by failing to place the child on a monitor or in the intermediate care nursery. Instructions for the On-Call Physician Paragraph 22 of the amended complaint alleges that respondent "left the hospital (on the evening of September 15) without informing the on-call physician of Patient #1's presence in the nursery, nor informing this physician of Patient #1's multiple medical problems" and that this omission constituted a deviation from the standard of care. It is a common practice in the medical profession for a physician to share on-call coverage with other doctors. This means that when the primary physician is absent, another doctor will cover his patients. Under accepted practice in the medical community, if a newborn is in the well-baby nursery, and its vital signs are stable, there is no requirement that the primary physician give detailed information regarding the infant to the on-call doctor. Further, if an on-call doctor is not expected to have to deal with a problem, no special communication is necessary. In this regard, the judgment of the physician is especially important. Conversely, if special tests have been ordered for the infant, or other unusual circumstances are anticipated, a doctor would generally be expected to telephone or otherwise communicate in some way to the on-call doctor the nature of those circumstances. When the events herein occurred, respondent shared "on-call coverage" with Dr. Sally J. Martin, then a Gainesville pediatrician, and two of her associates. As it turned out, respondent left Gainesville for the week-end after he last saw the infant late on the afternoon of September 15, and Dr. Martin was on-call for his patients. Respondent left no instructions or other information with Dr. Martin concerning this infant. Doctor Martin received a telephone call from the nursery early on the morning of September 16. Upon arriving at the hospital, Dr. Martin found the baby being given resuscitation. However, these efforts were unsuccessful and the baby was pronounced dead at 1:30 a.m. According to Dr. Martin, she was unaware of any "brain problem" with the infant until she reviewed the medical charts that night at the hospital. She found no specific orders in the notes except that respondent planned to monitor the infant closely. Prior to being called, Dr. Martin had no indication from the nursery that the baby was in difficulty or experiencing any problem. However, this was to be expected since the infant's vital signs were stable when it was last checked just before midnight. Respondent did not apprise Dr. Martin of the baby's condition because, in his judgment, he did not believe there was an issue she would have to deal with while she was on-call. Further, the baby presented stable vital signs, appeared healthy, was not in distress, and was being monitored on a frequent basis by an experienced nursery staff. Therefore, respondent's failure to specifically apprise Dr. Martin of the baby's condition was not a deviation from the standard of care. Medical Records The amended complaint also charges respondent with having inadequate medical records in that they indicated "(n)o definitive treatment plan for Patient #1. Specifically, Respondent's only references to the treatment of Patient #1 were to 'monitor closely' and obtain neurological follow-up after discharge". The complaint goes on to allege that respondent failed to keep adequate medical records "justifying the course of treatment" and his actions were inconsistent with the records. Respondent's written records concerning the treatment of the baby include an entry made on September 15, 1989. The entry is found on page 96 of petitioner's exhibit 3. To the extent the undersigned was able to decipher respondent's handwriting, those notes are set forth below: 9/15/89 1:15p Asked to attend c/sect for this 37 1/2 wk old (illegible) Ultrasound dx of hydrocephalus (static) and absent corpus callosum. Mother presented with severe pain R/O (illegible) at 36 hrs (illegible) Meconium stain at delivery (illegible) but none below cords - 40% abruption; Initially no resp effort but responded to bag & mask vent and vigorous stimulation. Apgar 4, 8. Plan to monitor closely, will need neurological follow up after D/C. (Emphasis added) The underscored language constituted respondent's treatment plan. In this regard, petitioner's experts and the complaint allege that (a) Dr. Benton failed to keep adequate medical records justifying the course of treatment and (b) although respondent indicated he was going to monitor the baby closely, he took a different course of action and did nothing other than routine newborn care. According to respondent, the treatment plan meant that after discharge the infant would need closer than normal monitoring and follow-up care, including a referral to a neurologist and perhaps other specialists. The referral to a specialist would be made several months later. There is no evidence to support a finding that respondent made an inaccurate or false statement in his records. Further, there is insufficient evidence to support a finding that respondent failed to document his course of treatment. According to Drs. Hutto and Pashayan, whose testimony has been accepted on this issue, the appropriate course of treatment for this infant, as indicated in the notes, would be to closely monitor the infant in a regular nursery and to follow up as to the congenital defects between six and nine months after birth. Moreover, a regular nursery would be appropriate because the AGH nursery provided more frequent monitoring of the newborns than in other hospital nurseries. In addition, the accepted meaning within the medical community of the words "monitor closely" is that the physician is going to initially closely monitor the baby in the regular nursery to determine if any changes occur, and after discharge, to continue to monitor the child in an out- patient setting for growth, neurological development, and the like. If and when other conditions develop, at that point a different protocol would be required. Thus, it is found that respondent's medical records were adequate in terms of justifying his course of treatment, a neutral third party could glean from the records what transpired during the course of treatment, and respondent's actions did not deviate from the treatment plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against respondent be dismissed, with prejudice. DONE and ENTERED this 7th day of November, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1991.
The Issue By stipulation of the parties, the issue to be decided is whether the Petitioner's application for registration of a family day care facility should be approved.
Findings Of Fact The Petitioner operated a family day care home (FDCH) for three years prior to the application in question. Prior to that, she had cared for children at her church; and prior to the incidents discussed below, the Petitioner had had no problems of record in the operation of her FDCH. In June 2002, the Petitioner was owner and operator of a FDCH located at 1222 Essex Road, Daytona Beach, Volusia County, Florida. In June 2002, Diana Vece received a report from an employee of the federally funded program that the employee had visited the FDCH to check attendance and found the Petitioner's teenage son alone at the facility. The employee called Vece, who called the police and proceeded to the FDCH. The Petitioner, Vece, and the police arrived at the home at virtually the same time. The Petitioner had the day care children with her in her car when she arrived. Vece asked for access to the home, and Moore let her in, entering with her and the children. Upon entering, Vece observed the Petitioner's teenage son looking after the Petitioner's own children and an infant. The name and status of the infant was not established. Vece proceeded to conduct a spot inspection of the FDCH which revealed that five of the children being cared for did not have current immunizations. Vece checked with her supervisor, "Skeeter" Surguine, regarding the situation, and they closed the FDCH. The Department informed the Petitioner by letter in July 2002 that she must cease and desist operation of her FDCH immediately. The Petitioner voluntarily ceased operations as a result of the letter and in August or September 2002, reapplied to reopen her FDCH. It appears that the Department denied this application and the Petitioner requested an informal hearing. After the informal hearing, the Department determined that it had insufficient basis to deny the application and approved the application in December, retroactive to November 25, 2002. The Petitioner explained that her required back-up person was being inspected for licensure of her own facility on the day when her teenager was left to attend the sleeping infant. On December 3, 2002, the Petitioner had car trouble and asked one of the parents of a child, whom she cared for, to use her car. The parent came to the FDCH, the Petitioner placed all the children in the car, and the parent drove them to the parent's home where the Petitioner got out of the passenger's seat and walked around the car to the driver's seat and drove her children to their school. The parent got out of the car and walked into the house followed by one of the children for whom the Petitioner was caring. The parent became immediately aware of the child and took care of the child with whom the parent was acquainted; however, the parent was unable to contact the Petitioner to let her know about the child because she did not know to which school the Petitioner was going. The Petitioner went to her child's school and got out of the car. When she got ready to leave, she counted noses and realized she was short one child. She looked around the school and sought the help of an off-duty police officer who worked at the school to search for the child. When they were unable to find the child, the police officer put in a report. Shortly afterward, they checked with the parent and discovered she had the child. It is unclear what, if any, action was taken against the Petitioner's registration; however, it is stipulated that this hearing is to be treated as an application case and that the grounds for denial of the license are the incident in June 2002 and the incident in December 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Family Services enter a final order approving the Petitioner's application. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003. COPIES FURNISHED: George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Cynthia Moore Cynthia Moore Family Day Care Home 1222 Essex Road Daytona Beach, Florida 32117 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact In May of 1979, Viola D. Grady (Petitioner) was 26 years of age, six months pregnant, residing at an apartment complex, and the mother of at least one elementary-school-age daughter. On May 21, 1979, the Petitioner was walking a daughter to the school bus stop. Another female resident of the complex made a derogatory comment about the Petitioner as they walked by and stuck her foot out, tripping the Petitioner and causing her to fall to the ground. The Petitioner responded by raising herself from the sidewalk, picking up a piece of broken glass, and slashing the other resident’s arm. The other resident was transported to a medical facility for treatment of the cut. A law enforcement officer investigated the event and filed a report. Based on the incident, the Petitioner was arrested and charged with one count of aggravated battery. The Petitioner subsequently entered a plea of nolo contendere to battery. She was placed on probation for one year. There being no evidence to the contrary, it is presumed that she completed her probation without further incident. At the hearing, the Petitioner testified that she acted in order to defend herself and her daughter from the other resident. She testified that she did not know the other woman and does not know why the other woman instigated the incident. Other than the incident on May 21, 1979, there is no evidence that the Petitioner has ever been involved in any illegal behavior. Subsequent to the incident, the Petitioner moved out of the apartment complex and eventually into a house. The Petitioner has been married since 1984, has other children and grandchildren, and attends church with regularity. She has taken courses at a local community college. The Petitioner has been employed in various retail and food service positions since the 1979 incident. There is no evidence that her job performance has been unsatisfactory. There is no evidence that the Petitioner has ever acted in any manner harmful to, or presented a danger to, children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Viola D. Grady for exemption from employment disqualification. DONE AND ENTERED this 21st day of March, 2002, in Tallahassee, Leon County, Florida. ________________________________ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2002. COPIES FURNISHED: Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Viola D. Grady 1907 Leisure Drive Orlando, Florida 32808 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
