Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida. At all times material to this proceeding, Petitioner was a permanent employee of Respondent. Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male. On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift. The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption. At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job. Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length. There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan. After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions. Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty. Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job. Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline. A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language. The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance. Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient. There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing. The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language. The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 12th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory. Rejected as not stating a fact but only why Petitioner denied being asleep. Adopted in substance in Finding of Fact 15. 2. Rejected as being argument rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. 5. Adopted in Finding of Facts 4 and 6. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 9. 8. Adopted in Finding of Fact 3. 9. Adopted in Finding of Fact 14. 10. Adopted in Finding of Fact 15. 11. Adopted in Finding of Fact 16. 12. Adopted in Finding of Fact 17. 13. Adopted in Finding of Fact 1a. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 David A. West, Esquire Legal Counsel Northeast Florida State Hospital Macclenny, Florida 32063 Carl G. Swanson, Esquire 335 East Bay Street Jacksonville, Florida 32202 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Raymond A. Baker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a supervisor in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 2, 1997, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on September 19, 1993. On that date, Petitioner was arrested for the offense of committing a "battery upon his live-in girlfriend," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1993). Since the victim in that case was a person with whom Petitioner was then residing, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of No Contest to the charge of "[b]attery-domestic" on October 12, 1993. Adjudication of guilt was withheld, he was fined $150.00, and he was placed on twelve months probation. In addition, he was required to complete "New Hope & Alcohol Counseling," and he was ordered to have no contact with the victim. Petitioner successfully completed all terms of his probation, including counseling courses in both spousal abuse and substance abuse. In October 1993, Petitioner began working at FSH in an Other Personnel Services position. Eventually, he attained the position of unit treatment rehabilitation senior supervisor I in Unit 4, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1993 offense, and on July 18, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner then accepted a position of fiscal assistant in the financial services section of FSH, a position having no contact with residents. He has continued working in that position pending the outcome of this case. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Petitioner is a graduate of Florida State University with a degree in government and criminology. He also holds a Doctor of Jurisprudence from Howard University School of Law. He eventually plans to take the Florida Bar examination, and if he passes the examination, the Florida Bar will accept him for membership, notwithstanding his 1993 misdemeanor conviction. This assertion was not contradicted. In interpreting the statutory criteria which govern the granting of exemptions, the DCFS considers the following factors, among others, to be important. First, the applicant should not minimize the seriousness of the offense; he must express some remorse; and he must have insight into the seriousness of the incident and the risks involved. A three-person committee preliminarily denied the request in early September 1997 because at that time it believed that Petitioner minimized the incident, that he expressed little or no remorse, and that he had no insight into the seriousness of his offense. More than four years have elapsed since the criminal incident, a sufficient time for rehabilitation. Since that time, there have been no other blemishes on Petitioner's record. Except for a "bleeding toe," which was caused when the victim either cut it on broken glass or accidentally jammed it against the door, there was no injury to the victim. Petitioner has worked continuously at FSH since the incident, and he was described by former colleagues in Unit 4 as having a good rapport with patients and staff. According to co-workers, he also handled crises in the unit "in the right way." During the years 1995, 1996, and 1997, he received satisfactory evaluations from his supervisor. There is no evidence that Petitioner would present a danger to the residents if the exemption is granted. Petitioner's description of the circumstances surrounding the incident was not altogether accurate. This finding is made after considering the testimony of the victim who reluctantly testified on behalf of DCFS. For example, Petitioner recalled that the altercation ensued after the two had an argument over finances. However, it was established that it was caused when the victim attempted to break off the relationship and to leave the premises. In an effort to keep her from leaving, Petitioner tried to disrobe her. Also, he was extremely argumentative when speaking with the investigating law enforcement officer, and he refused to leave the premises when requested. According to the victim, Petitioner's verbally abusive behavior and his refusal to leave, rather than the altercation itself, ultimately led to his arrest that evening. While Petitioner was somewhat evasive and had no recollection about some of the facts surrounding the incident, this is probably attributable, at least in part, to his being highly intoxicated when the incident occurred. Petitioner expressed regret for his actions on the evening of September 19, 1993. His assertion that he has had no problems with alcohol since that night was not contradicted. Given the lapse of time since the incident, a record of continuous employment with the FSH with good evaluations, the completion of two counseling courses, and an expression of regret, the request for an exemption should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 11th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner was discriminated against based upon his race when he was disciplined for absenting his post contrary to Chapter 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Willie B. Smith, is an African-American male. He is now and was at the time of the incidents involved in his complaint employed by the Respondent, Department of Children and Family Services, at Florida State Hospital as a guard in the forensic (prison) unit. The Petitioner is part of a bargaining unit that is represented by the Florida Police Benevolent Association. On November 15, 2001, at approximately 1:05 a.m., the Petitioner contacted his Shift Supervisor, Jimmie Williams, an African-American male, and requested to leave his assigned post in Tower B and go to Unit 3 at the hospital and pick up food from a fish fry. Williams approved the Petitioner’s leaving his post to get the food and to return to his post after getting the food. At 2:35 a.m., Williams was contacted on the radio by the Control Room Officer, Johnny Smith, who indicated that the Petitioner wanted to talk to him on the telephone. Williams provided Johnny Smith a telephone number at which the Petitioner could reach him, and the Petitioner called Williams a short time later. The Petitioner informed Williams that he had spilled diesel fuel on his uniform and asked permission to take the remainder of the shift off. Williams asked the Petitioner where he was, surprised that the Petitioner was some place other than at his post. The Petitioner refused to identify where he was, and Williams denied his request for leave. Realizing that the Petitioner was not at his post, Williams proceeded to Tower B and manned that post until the Petitioner arrived there at 3:04 a.m. When he arrived at Tower B, Williams asked the Petitioner where he had been, and the Petitioner stated he had been at the Florida State Hospital gas station. Williams had checked the Florida State Hospital gas station looking for the Petitioner and was aware that the Petitioner had not been there. At this point, angry words were exchanged and the Petitioner admitted that he had not been at the gas station. Williams wrote up an incident report that initiated a formal investigation into the Petitioner's having absented himself from his post while on duty without proper authorization. The Petitioner was advised of the investigation, and he requested that the PBA represent him in the investigation pursuant to the provisions of the collective bargaining agreement. At the Petitioner's specific request, Steve Mears, from the Tallahassee Office of the PBA, represented the Petitioner in this matter. During the course of a break in a meeting held with regard to the investigation, the Petitioner mentioned to Mears voluntarily changing duty stations, and Mears raised this request with representatives of the Respondent, including William T. Parker, now Chief of Security. As a result, the Petitioner was re-assigned from the forensic unit to the central forensic unit because this was the only place where there was a vacancy. His shift and days off remained the same, which did not constitute a transfer under the terms of the contract. Such a re-assignment was not subject to being grieved under the terms of the bargaining agreement. See testimony of Parker and Mears. The Petitioner's days off changed from the first and third weeks of the month to the second and fourth weeks of the month, but the days of the week remained the same. Although the evidence supports a finding that this move was voluntary, it is not material because, under terms of the bargaining agreement, such a re-assignment was not subject to a grievance. The investigation established sufficient cause for the Respondent to issue an official letter of reprimand to the Petitioner for absenting his post without permission. Pursuant to internal policy, the Petitioner's new supervisor, Roger Howell, who had had nothing to do with the incident upon which the reprimand was based, issued the letter. See testimony of Howell and Bryant. The Respondent introduced the Employee's Handbook, dated Mary 29, 2001, which the Petitioner had received. The book contains the Standards for Disciplinary Action, which include absences without authorized leave. This provision provides that for the first occurrence of Absence Without Authorized Leave, the section under which the Petitioner was disciplined, the violator can be given a range of punishments from a written reprimand to dismissal. See testimony of Bryant. Evidence was received that these penalties have been imposed upon employees of the Respondent without regard to race or gender. See testimony of Williams. At the hearing, the Petitioner expressed his concern that his reprimand had been signed by someone who had no knowledge of the incident, and stated that he felt he had permission to leave his post. He also introduced a doctor's excuse (Petitioner's Exhibit 2); however, the date of the doctor's visit did not relate to the date of the incident. The supervisor who signed the letter of reprimand and the personnel specialist who prepared the letter testified that it was policy for an employee's supervisor to sign the reprimand, even if he or she personally did not have knowledge of the events. Mr. Williams testified regarding his authorization to the Petitioner to leave his post to get food. He was very credible. He expected the Petitioner, in accordance with regular procedure, to leave his post, get his food, and return to the post immediately, being absent from the Tower for approximately 30 minutes. This was the normal process for getting food during a shift. The Petitioner was gone for two hours, and gone for over an hour without Williams being aware that Tower B was not covered. There was significant evidence introduced that none of the actions complained of by the Petitioner were motivated by racial animus. The disciplinary action taken by the Petitioner was at the lower end of penalties that could have been imposed. The complainant, Williams, was also an African-American. The PBA representative, whom the Petitioner specifically requested over the regular one at the hospital, testified regarding the events leading up to the Petitioner's re-assignment. The Petitioner sought a change of assignment and voluntarily accepted the change. See the testimony of Mears and Parker. There was no evidence adduced to show pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 31st day of March 2004, 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 31st day of March, 2004. COPIES FURNISHED: Anita L. Davis, Qualified Representative 708 Brag Drive Tallahassee, Florida 32305 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioner, Anthony Gentele, O.D., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes (1985), for his successful defense against the charges contained in Count II of the amended administrative complaint filed against him by respondents Department of Professional Regulation, Board of Optometry, in Department of Professional Regulation, Board of Optometry v. Anthony Gentele, O.D., DOAH Case No. 84-3555.
Findings Of Fact I. The Department initiated an investigation of Petitioner's conduct as a licensed optometrist based on a complaint filed by Mary Lou Santos, one of his patients, alleging improper optometric care resulting in the permanent loss of her vision. After completing its investigation, including a review by two consulting optometrists (Dr. Walter Hathaway and Dr. Charles Pappas), the Department submitted its investigative report and recommendations to a two member Probable Cause Panel of the Board of Optometry. On August 24, 1984, the Panel found probable cause, after which the Department filed an administrative complaint against Petitioner. The complaint sought to suspends revoke or otherwise discipline his license to practice optometry on charges that he violated Rule 210-3.07, Florida Administrative Code and Section 463.016(1)(g), (h) and (n) Florida Statutes, by failing to perform a visual analysis on Mary Lou Santos in accordance with minimum procedures, by failing to adequately meet her vision needs, by failing to practice optometry with reasonable skill and safety and in accordance with generally accepted and prevailing optometric practice, and by failing to make an appropriate referral to a qualified health care provider. Prompted by concern about Petitioner's competence to continue practicing optometry, the Probable Cause Panel also authorized the Department to investigate further to determine whether Petitioner was administering eye examinations in accordance with minimum standards and whether action should be taken against his license on an emergency basis. For this purpose, the Panel asked the Department to obtain his patient records prior and subsequent to January 1983--the month during which Petitioner gave Mary Lou Santos her initial eye examination. After concluding that such patient records could not be obtained without releases from patients, the Department's counsel requested that an investigator be trained by an optometric consultant on the prescribed procedures for vision analysis, and then undergo an eye examination by Petitioner for the purpose of determining his compliance. Alison Smith the investigator selected to be trained and have her eyes examined had been employed as a Department investigator for approximately six months. She had no prior investigative experience in the field of optometry, and no education or formal training in the subject. She had never before investigated the sufficiency of a visual examination given by an optometrist. On September 6, 1984, Dr. Frederick Bergman, O.D., a consulting optometrist, discussed the Minimum Procedures for Vision Analysis in his office with her for approximately one and one-half hours. He demonstrated, but did not actually perform the procedures on her at that time. Although Ms. Smith took notes of her discussion with Dr. Bergman, he never saw those notes nor tested her on her understanding of his explanation. Neither did he teach her how to interpret a patient's analytical record which reflects the results of a visual examination. On September 7, 1984, Ms. Smith, using the alias of Alison Golden, went to Petitioner for an eye examination. She was accompanied by Richard J. Wohl, a Department investigator who was neither trained by Dr. Bergman nor familiar with the minimum procedures for vision analysis. He introduced himself as Ms. Smith's husband and remained during the examination. Neither Ms. Smith nor Mr. Wohl made notes of the procedures used by Petitioner during the eye examination. They did not question him about his findings or the various procedures utilized. After Petitioner completed his examination of Ms. Smith's eyes, she presented him with a medical release and asked for the patient record of her examination. He complied with her request and she left with the record. He neither made nor attempted to make any additions or deletions to her patient record after she identified herself as an investigator. Ms. Smith and Mr. Wohl immediately left to investigate an unrelated case. Several days later, Ms. Smith prepared a supplemental investigative report alleging that Petitioner had failed to comply with the prescribed Minimum Procedures for Vision Analysis by failing to pull down her eyelids to check for infection and by failing to perform the tests for phorias. The patient record prepared during her eye examination reflects that Petitioner performed both procedures. Ms. Smith's investigative report was prepared on or about September 1, 1984 and was based on her memory of the examination. She did not compare her observations with those of investigator Wohl. (Had she done so, she would have found that he distinctly recalled Petitioner pulling down her eyelids to administer eye drops in connection with the glaucoma test. This test was recorded on her patient record.) She did not consult with or have her patient record reviewed by Dr. Bergman prior to preparing her investigative report. Counsel for the Department found a discrepancy in Ms. Smith's supplemental investigative report. By memorandum to the investigator, dated November 20, 1984, he noted that although she stated that Petitioner failed to test her eyes for phorias her patient record indicated that phorias were checked and results reported. He questioned whether this was a mistake by the consultant (or investigator) or whether this was "fraud in the records." He asked her to confer with the consultant and respond in writing by the end of the week. (Respondent's Exhibit 2) Investigator Smith responded by memorandum dated December 3, 1984, and confirmed her prior findings: 2. Phorias were not checked by Dr. Gentele [Petitioner], this is a subjective, not an objective test done with either a refractor or a pherobopter. (Respondent's Exhibit 2) On December 13, 1984, the same Probable Cause Panel of the Board reconvened to consider the supplemental investigative report and where probable cause existed to file additional charges against Petitioner. Dr. Walker, one of the two panel members, noted that although the supplemental report stated that Petitioner failed to test Ms. Smith's eyes for phorias, her patient's record contained phoria findings. For this reason, he explained, I subsequently requested [counsel for the Department] to check to determine whether, in fact, this investigator was reporting that the findings were not taken . . . or whether . . . this was an oversight." (Petitioner's Exhibit 9, p. 2) The response he received was that Petitioner failed to test her eyes for phorias. He went on: This is a subjective and not an objective test done with either a refractor or phorome- ter. Based upon that information, I don't have any questions that probable cause should be found that [Petitioner] did not perform a minimum examination. (Petitioner's Exhibit 9, p. 2) Dr. Pena, the other Panel members concurred. Dr. Pena was critical, however, of investigator Smith's complaint that Petitioner failed to pull her eye lids down to check for irritation. He thought this complaint "was a little weak." (Petitioner's Exhibit 9, p. 3) Dr. Walker agreed: In fact, there's probably some people that I wouldn't pull the lids down unless I suspect- ed some problems. There's no place in the rule that specifies what you do in external examination of the eye. I thought that was weak. If, in fact, he did not perform bio- microscopy . . . [another omission, according to the investigator] if, in fact, he did not do any phorias, then I think that is suffi- cient evidence to find probable cause. (Petitioner's Exhibit 9, p. 3) After the Panel agreed that probable cause existed, counsel for the Department informed them that it was his intent--on a finding of probable cause and directions to issue an administrative complaint--to include the additional charge by filing an amended complaint in the then pending license revocation proceeding. He noted, however, that the additional charge concerned a "separate matter. One [charge] does not hinge on the other, therefore, it was not really part of the [pending] DOAH proceeding." (Petitioner's Exhibit 9, p. 4) Later in the discussions the panel members once again addressed the discrepancy between the findings of the Investigator and the phoria results recorded on her patient records. Counsel for the Department asked them: If I could ask you one other question--you noted from the supplemental investigative report certain discrepancies between what the investigator says happened and what was shown on the medical records. In your minds what does that indicate? (Petitioner's Exhibit 9, p. 5) Dr. Walker responded: In my minds it indicates that he . . . uhhh . . . that the optometrist recorded findings that he did not perform in the matter of phorias. . . . (Petitioner's Exhibit 9, p. 5) Discussion then turned to whether Petitioner should also be charged with false recordkeeping i.e., recording findings without actually performing a test. Dr. Pena then asked counsel for the Board: Mr. Siegendorf, some of this is based upon the investigator's report to us. We are assuming that the investigator is accurate in reporting to us. How . . . how can we be . . . how can be assured the investigator knows that these tests weren't done? (Petitioner's Exhibit 9, p. 6) Mr. Siegendorf replied: It relates to your finding of probable cause . . . you base your decision . . . on the report that the Department provides to you. . . . (Petitioner's Exhibit 9, p. 6) Later in the discussions Dr. Pena observed: There is a possibility that a licensee who is under investigation for not having complied with minimum examinations may be radaring or filling in the blanks, so to speak, and not doing the procedures . . . the minimum required procedures. (Petitioner's Exhibit 9, p. 5) The Probable Cause Panel thus found probable cause for charging Petitioner with failing to perform a visual analysis upon Alison Smith in accordance with the minimum procedures required by Board rules. The Panel's probable cause finding had a reasonable basis in fact and law. The Panel was justified in relying on the observations and findings of a Department investigation who had been trained by a qualified optometrist prior to undergoing a visual analysis by Petitioner. When questioned further, the investigator confirmed and repeated her finding that--contrary to Board Rules-- Petitioner failed to test for phorias or use a biomicroscope. The test for phorias (a subjective test requiring the lining-up of two objects, vertically and horizontally) was recognizable without special training or technical knowledge. The Panel resolved the conflict between the investigator's assertion that no phoria test was administered and the phoria results recorded on her patient records by concluding that Petitioner must have recorded or "radared" findings without actually performing the test. Based on the investigative report before it, the conclusion was a reasonably permissible one. On December 28, 1984, pursuant to the Panel's finding of probable cause, the Department moved to file an amended administrative complaint against Petitioner (in the pending license revocation proceeding) by adding an additional count, alleging that he performed an inadequate visual analysis on Alison Smith. The motion stated that amendment was proper because the "two separate factual situations (underlying existing Count I and proposed Count II) should be combined in one . . . proceeding for purposes of saving all parties and the Division of Administrative Hearings time and money. (Petitioner's Exhibit 1) The motion was granted and Count II was deemed filed. On or about January 18, 1985, subsequent to the filing of Count II, investigator Smith underwent a complete visual examination by Dr. Bergman, O.D. (the consulting optometrist who had earlier trained her) so the results of his examination could be compared with Petitioner's. Dr. Bergman's results did not differ significantly from those of Petitioner. Petitioner contends that once the Department became aware of this, it should have voluntarily dismissed Count II. Although the similarity of Dr. Bergman's and Petitioner's results tends to make investigator Smith's denial (that Petitioner tested her for phorias) less believable, the Department's continued prosecution of Count II was reasonable. It had eyewitness testimony of a trained investigator that Petitioner failed to test for phorias. In combination with other evidence offered at final hearings such testimony could have been found credible and Count II sustained. The fact that a hearing officer ultimately found such testimony insufficient to satisfy the elevated standard of proof applicable to license revocation proceedings does not make the Department's earlier decision to prosecute an unreasonable one. On February 26, 1985, the undersigned hearing officer conducted a formal hearing on the two-count amended administrative complaint. On July 25, 1985, a Recommended Order was submitted to the Board. As to Count I, it was found that in examining Mrs. Santos, Petitioner failed to comply with Board rules and that his negligence in misdiagnosing and treating her eyes was flagrant, glaring, and inexcusable. It was found that if Petitioner had performed the visual analysis examination with reasonably prudent skill and safety, and in accordance with the rules of the Board, he would have discovered a pathology which would have dictated her referral to a qualified medical practitioner for treatment which, if provided, would have resulted in her visual acuity being considerably better than it is today. As to Count II, it was found that the charge that Petitioner performed an inadequate visual examination of Alison Smith was not sustained by the necessary quantum of evidenced and should be dismissed. As penalty for the violations contained in Count I, the order recommended that the Board suspend Petitioner's license to practice optometry pending reeducation with potential reinstatement in a probationary status. On August 22, 1985, the Recommended Order was presented to the entire Board for its final action. By Final Order dated September 14, 1985, the Board approved and adopted the findings of fact and conclusions of law contained in the Recommended Order. Petitioner's license to practice optometry was suspended until he demonstrated his ability to practice with reasonable skill and safety. Conditions to reinstatement included successful completion of a specified number of hours of optometric education (with examinations), to be followed by a monitored probationary period of five years. In addition, a $1,000 administrative fine was imposed. No appeal was taken and the time for appeal has now expired. III. Petitioner has been licensed to practice optometry in Florida since 1981. His principal office is within the state. His professional practice is organized as a corporation, not a sole proprietorship. At the time the Department instituted its action against his license, he had less than 25 full- time employees and a net worth of not more than $2 million.
Conclusions Florida Equal Access to Justice Act Patterned After Federal Prototype The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 57.111, 120.57(1), Fla. Stat. (1985). This case arises under the Florida Equal Access to Justice Act ("FEAJA" or "Florida Act"), Section 57.111, Florida Statutes (1985), which provides in pertinent part: (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. FEAJA, enacted by the Florida legislature in 1984, is patterned after a federal law on the same subject--the Federal Equal Access to Justice Act ("the Federal Act") 5 U.S.C. Section 504. Section 504 of the Federal Acts enacted in 1981, provides in part: (a)(1) An agency that conducts an adversary adjudication shall awards to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceedings unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . . The federal and state statutes use similar language, and the legislative history of the Florida Act shows that legislators were aware of the federal prototype. See, Senate Staff Analysis and Economic Impact Statement, CS/SB 438 (5-2-84), and record of the 5-2-84 meeting of the Senate Governmental Operations Committees, sponsor of the bill. Lambert Attorney's Fees and Costs in Administrative Proceedings, FLORIDA BAR JOURNAL, July/August 1985, at 76. ("Section 57.111 is generally patterned after the federal Equal Access to Justice Act.") Since the Florida Act is patterned after the federal law, it [the Florida Act] will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of the Florida legislation on the subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977). II. Petitioner is a Small Business Party Under the Act Under FEAJA, only "small business parties" are eligible for an award of attorney's fees and costs incurred in defending against agency action. A "small business party" means: A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million including both personal and business investments, or A partnership or corporation, including a professional practice, which has its principle office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million. Section 57.111(3)(d), Fla. Stat. (1985). The record establishes that Petitioner was a "small business party" within the meaning of FEAJA at the time Count II was initiated against him. He operated a professional optometric practice, organized as a professional optometric corporation, with his principal office in Florida, and without more than 25 full-time employees or a net worth of more than $2 million. The Department contends that Petitioner is not a qualified "small business party" since the license revocation proceeding was initiated against him, not his corporation. This contention is rejected since a construction which leads to a result obviously not intended by the legislature should be avoided. City of St. Petersburg v. Siebold 48 So.2d 291 (Fla. 1950) Most professional licenses are issued to persons who seek to operate a professional practice. Any subsequent license revocation proceedings are constituted against that person's license. The literal construction urged by the Department would make FEAJA inapplicable to persons operating a professional practice under a corporate form of business and conflict with clear legislative intent that the Act apply to all professional practices below a specified size, regardless of organizational form. III. Petitioner is the Prevailing Party on Count II of the Amended Administrative Complaint Under FEAJA, a small business party is a "prevailing party when a final judgment or order has been entered in his favor and such judgment or order has not been reversed on appeal or the time for seeking judicial services has expired." Section 57.111(3)(c)1., Florida Statutes (1985). Here, the Board--by final order--found Petitioner guilty of the charges contained in Count I and dismissed the charges contained in Count II as not substantiated by the evidence. The final order was not appealed and the time for seeking judicial review has expired. The Department argues that the Board's order was obviously not entered in Petitioner's "favor," since it found him guilty of Count I and disciplined his license to practice optometry. See, Annette J. Ruffin v. Department of Professional Regulation, Division of Real Estate, D0AH Case No. 85-4465F, Final Order dated February 7, 1986. In essence, the Department argues that a party is ineligible for an award of fees and costs under FEAJA unless the party is successful in defending against all of the charges brought by an agency. If a person is found guilty of any charged the order is not deemed entered in that person's "favor." This argument is rejected for two reasons. First, it ignores authoritative federal case law to the contrary. The determination of whether a person is a "prevailing party" under the Federal Equal Access to Justice Act is guided by existing case law under the Civil Rights Attorney's Fees Acts 42 U.S.C. Section 1988. Grand Blvd. Improvement Association v. City of Chicago, 553 F. Supp. 1154, 1166 (N.D. Ill. 1982). Under that Act, parties can recover fees even if their victories are less than complete. Id. at 1167. In Hensley v. Eckerhart 461 U.S. 424 (1983), the U.S. Supreme Court set standards for awarding attorney's fees in cases arising under the Civil Rights Attorney's Fees Acts as well as cases arising under all other federal acts authorizing an award of fees to a "prevailing party." The court held that parties may be considered "prevailing" for attorney's fees purposes" if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit." Id. at 1939. Any fees awarded are adjusted based on the "results obtained," a factor particularly crucial when a party is deemed "prevailing," though succeeding on only some of his or her claims. 2/ Second, the Department's "all or nothing" approach places form over substance and could lead to anomalous results. The award of attorney's fees would hinge on whether multiple charges were consolidated in one proceedings or prosecuted in separate proceedings. 3/ As illustrated in the instant case, charges against a licensee are frequently combined in a single proceeding merely to achieve efficiencies and reduce costs. Pretrial procedural findings based on such legitimated but extraneous considerations, should not dictate whether a party can later obtain relief under FEAJA. Moreover, under the construction urged by the Departments an agency could bring multiple unfounded charges (lacking a reasonable basis in law and fact) yet avoid FEAJA by prevailing on one technical, or trivial charge. 4/ Such a result would frustrate the stated purpose of FEAJA--to diminish the deterrent effect of defending against unreasonable government action. Section 57.111(2), Fla. Stat. (1985). It must therefore be concluded that Petitioner was the "prevailing party" on Count II of the Amended Administrative Complaints a count based on a separate incident and requiring different proof. He successfully defended against the charges in that count and must be deemed to have realized a benefit. By failing to prove Count II, the Department was unable to show that Petitioner repeatedly or routinely administered eye examinations in violation of prescribed standards. A recurring pattern of misconduct would have justified a penalty more severe than that imposed. Moreover, if Petitioner had been found guilty of Count II, he could have been fined an additional $1,000.00. Section 463.016(2)(c) Fla. Stat. (1985). IV. Both Board and Department were Substantially Justified in Finding Probable Cause for, and Prosecuting, Count II FEAJA entitles a prevailing small business party to recover attorney's fees and costs "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Fla. Stat. (1985). A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated. Section 57.111(3)(e), Fla. Stat. (1985). As interpreted by the staff analyst of the Senate Governmental Operations Committee, committal sponsor of CS/SB 438: "The Act establishes the general rule that attorney's fees and costs are recoverable by a prevailing small business party in any proceeding initiated by a agency unless the action of the state agency was substantially justified." D. Clint Smawley, The Florida Equal Access to Justice Act: A Sword for Small Business in Civil Proceedings Initiated by State Agencies, ADMIN. LAW SECTION NEWSLETTER, FLORIDA BAR, Vol. VII, No. 2, p. 6 (February, 1986). Using almost identical languages the Federal Equal Access to Justice Acts 5 U.S.C. Section 504(a)(1) establishes the general rule that the prevailing party is entitled to an award of fees and expenses unless the hearing officer "finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . ." Federal courts construing this language have consistently held that the agency has the burden of demonstrating that its actions were substantially justified. Derickson v. National Labor Relations Board 774 F.2d 229, 232 (8th Cir. 1985) ("Unless the agency meets its burden of demonstrating the substantial justification for its position, the denial of attorney fees and expenses by the agency is an abuse of discretion. . . ."); Temp Tech Industries, Inc. v. National Labor Relations Board 756 F.2d 586, 589 (7th Cir. 1985), ("The agency can avoid the imposition of fees and costs only by demonstrating that its position as a party to the proceeding was 'substantially justified,' or that special circumstances exist that would make such an award unjust.") Charter Management Inc. v. National Labor Relations Board 768 F.2d 1299, 1301 (11th Cir. 1985) ("At the administrative level the burden is on the agency to prove that a fee award should not be made under [the Equal Access to Justice Act]."), Ashburn v. United State of America, 740 F.2d 843, 850 (11th Cir. 1984). ("The government bears the burden of showing that its position was substantially justified."), Enerhaul Inc. v. National Labor Relations Board 710 F.2d 748, 750 (11th Cir. 1983). ("The burden of proving that a fee award should not be made [to a prevailing party] rests with the government.") The conclusion that the agency must prove that its actions were substantially justified or that special circumstances exist which would make an award unjust, is buttressed by the plain language of the statute. In mandatory language, Section 57.111(4)(a) declares the general rule--that fees and costs "shall" be awarded to a prevailing small business party. Then, following a comma, the Act creates two exceptions (actions substantially justified or special circumstances make an award unjust) which, if proven, make the general rule inapplicable. The agency is the party best able to know the factual and legal basis of its prior actions, and whether special circumstances exist which would make an award unjust. Hence it is the agency which must affirmatively raise and prove the exception. Contra, Ruffin v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 85-4465F, (Final Order dated Feb. 7, 1986), Nutt v. Department of Professional Regulation, DOAH Case No. 85- 3499F (Final Order dated Jan. 28, 1986). The Department and Board have established that the filing and prosecution of Count II was "substantially justified" within the meaning of FEAJA. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the agency. Section 57.111(3)(e) Fla. Stat. (1985). The Panel's finding of probable cause had a reasonable basis in law and fact. The Panel relied on the report of a trained investigator of the Department and acted only after the investigator, on further questioning, confirmed her finding that Petitioner failed to test her eyes for phorias. The Panel conducted a "meaningful" probable cause inquiry, and did not merely "rubber stamp" the recommendation of the Department. Compared Kibler v. Department of Professional Regulations 418 So.2d 1081 (Fla. 4th DCA 1982). The probable cause finding meets the Kibler standards in that the Panel had evidence before it which (if credited at final hearing) would reasonably indicate that the alleged violation had occurred. Id. at 1084. The fact that the agency later failed to prove its charge does not raise a presumption that it was not "substantially justified." Nor does the agency have to prove that its decision to prosecute was based on a "substantial probability of prevailing." Ashburn 740 F.2d at 850. It is sufficient that the Panel had evidence before it which would constitute prima facie proof of a violation if the testimony of the Department investigator had been credited at final hearing. Natchez Coca-Cola bottling Co., Inc. v. National Labor Relations Board 750 F.2d 1350, 1352 (5th Cir. 1985) (finding that agency general counsel had substantial justification to prosecute because he had evidence which would constitute a prima facie case of unlawful conduct if the testimony of his witness had been credited at final hearing was rational reason to affirm administrative law judge's rejection of an employer's application for attorney's fees under the Federal EAJA), Temp Tech Industries, Inc., supra at 590. (We cannot find that the General Counsel's decision to litigate an issue that turned on a credibility assessment was itself unreasonable, the fact that an administrative law judge might make an adverse finding on a credibility issue does not, in and of itself, deprive the General Counsel's position of a basis in fact.") Section 455.225(3), Florida Statutes, requires the Department to follow the directions of a probable cause panel with regard to the filing and prosecution of a formal complaint. In the instant case, since a probable cause panel found probable cause to file and prosecute Count II, the Department's action in doing so was "substantially justified" i.e., had a reasonable basis in fact and law. If FEAJA is construed as placing a continuing duty on state agencies to dismiss charges which no longer have a reasonable basis in fact and law, 5/ the Department's failure to dismiss Count II does not breach such a duty. The testimony of its investigator (even after Dr. Bergman examined her and recorded phoria results similar to Petitioner's) could still have been credited at final hearings and ultimately sustained the charge. Since the Department and Board have demonstrated that the finding of probable cause and the filing and continued prosecution of Count II was "substantially justified" within the meaning of FEAJA, Petitioner's application for an award of attorney's fees and costs must be denied. It is, therefore, unnecessary to reach the issue of the amount and reasonableness of the fees and costs which Petitioner incurred in defending against Count II. Accordingly, it is ORDERED: That Petitioner's application for attorney's fees and costs is DENIED. DONE and ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of June, 1986.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0018306. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto." Facts Relating to Case No. 93-2640/Administrative Complaint #1 From on or about February 8, 1991, to March 24, 1991, patient R.D., a 43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH"). During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line. She therefore wrote an order for "central venous line placement Monday 3/18." In another written order, she directed that "IV fluids [be held] until central venous line in place." Both orders were dated March 16, 1991. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP." In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt. Upon his return to the hospital, Respondent learned that no such attempt had been made. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees. Respondent was the "on call" physician. He was at home, approximately 35 miles away from the hospital. The duty nurse telephoned Respondent and spoke with him about R.D. 3/ Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler. In accordance with Respondent's directive, Dr. Chandler was contacted. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift. Dr. Chandler therefore performed an emergency thoracotomy. Arrangements were then made to transfer R.D. to Lake Shore Hospital. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death. More specifically, Respondent died as a result of a tension pneumothorax. Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2 Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989). It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine. Counts 3, 4 and 5 On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam." On January 24, 1989, M.L. was examined by Respondent at the Centre. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills. Facts Relating to Case No. 94-0234/Administrative Complaint #3 On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing. An examination revealed that she had rapid pulse and respiration rates. It was further observed that she had a flushed face and epigastric tenderness. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged. Records of these two emergency room visits were made and kept by the hospital. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits. On this occasion, she was admitted to PGH in the care of Respondent. She remained in Respondent's care throughout her entire stay at the hospital. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems. A.M.D. was treated with, among other things, antibiotics. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days. Thereafter, A.M.D.'s condition quickly deteriorated. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal. Facts Relating to Case No. 94-0235/Administrative Complaint #4 On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night). A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis. Respondent ordered an EKG, spirometry, urinalysis and blood tests. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells. Respondent examined A.A. and observed prolonged wheezing. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep. Respondent found that A.A. was expectorating large amounts of mucus. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep. Once again Respondent failed to order a chest x-ray. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994. STUART M. LERNER 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 15th day of November, 1994.
