The Issue Respondent was charged in a five count Administrative Complaint with making or filing a report which the licensee knew to be false in his capacity of a licensed chiropractic physician; failing to keep written chiropractic records justifying the course of treatment of a patient; submitting to a third party payor a claim for services or treatment which was not actually provided to a patient; submitting to a third party payor a claim for a service or treatment without at the same time also providing a copy of the claim to the insured; and making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic.
Findings Of Fact Petitioner Department of Professional Regulation is the state agency charged with regulating the practice of chiropractic pursuant to Section 20.30 and Chapters 455 and 460, Florida Statutes. Respondent is, and at all times material hereto has been, a licensed chiropractor in the State of Florida, having been issued license number CH 0003234. His address of record is 3822 W. Broward Boulevard, Plantation, Florida. This discipline case arose out of a complaint from a patient named Dale McCormick when Respondent put Mr. McCormick's unpaid bill into "collection." On March 17, 1986, Respondent had examined Dale McCormick and began treating him for shoulder/lower back pain. Mr. McCormick did not testify at formal hearing. Therefore, the only testimony as to what examinations and treatments were actually performed by Respondent on Mr. McCormick was that of Respondent. Respondent first testified that the examination he performed was "brief" and included a depression test on each shoulder and circular depression test on the skull, with observation and touching of swelling, edema, and muscle spasm. Respondent did not remember whether he did a range of motion examination on Mr. McCormick and could not discern from the Confidential Patient Case History whether or not he had done so because it is his practice only to record positive findings (i.e. loss of range of motion) and he had recorded no loss of motion. Respondent's own conclusion from this record was that either he had done a range of motion test with no positive findings worthy of recording in his records or he had not done a range of motion test at all. The ambiguity of this chiropractic record, the only one which can be clearly demonstrated to relate to Mr. McCormick (see Finding of Fact 17), demonstrates the inadequacy of the record in that the chiropractor who actually performed the examination. (Respondent) could not recall from his review of that record what had been involved in his physical examination. Respondent's testimony also illustrates the probable confusion that would be experienced by a different health care professional reviewing the same record. See Findings of Fact 19 and 20. Although Respondent subsequently testified that he also considered his examination of Mr. McCormick to be a "comprehensive" examination, he indicated that this appellation depended on the intensity of what any given doctor wanted to do. Respondent conceded that normally he would have given a much more intensive examination but on the day he examined Mr. McCormick he was rushed; that he had intended to get more information from the patient and supplement his records on a subsequent or follow-up visit; and that his records could have been more complete. Respondent diagnosed lumbar strain. Respondent testified that he prescribed phenylalamine for pain, and cold pack for edema and muscle spasm; that he performed traction, muscle stin, spinal adjustment and hot packs as therapy for pain and muscle spasm, and provided a lumbar sacral brace. Phenylalamine for edema, therapy for pain, and a lumbar sacal brace are treatments also listed on a bill which bears Mr. McCormick's name and the Respondent's file number for Mr. McCormick. They are also noted beside Mr. McCormick's name on a sign-in sheet used for every patient Respondent saw on the same day but they are not listed on either chiropractic "record" discussed in Findings of Fact 12-18 infra. The bill also reflects the initials "SAMSHPTR" which was not directly explained by any testimony but which the undersigned infers from the testimony to signify spinal adjustment (SA), muscle stin (MS), hot packs (HP) and traction (TR). Respondent consistently attempted to justify his diagnosis by describing the treatment rendered after the diagnosis as opposed to using his examination to reach a diagnosis and then justifying the treatment rendered by naming the diagnosis. The bill and the sign-in sheet are forms commonly in use by chiropractors but are not normally considered professional "chiropractic records." Mr. McCormick paid $35 and received a receipt saying he had reduced his account to a zero balance. Nonetheless, he also signed a lien and insurance authorization form by which Respondent was entitled to seek compensation for the treatment rendered from a third party payor, Mr. McCormick's insurance company. In the absence of testimony by Mr. McCormick as to what the financial arrangement was, and considering the logic that liens are not required of persons who have truly paid in full, Respondent's unrefuted testimony that his secretary/clerk issued the "paid in full receipt" to Mr. McCormick in error is accepted. Thereafter, Respondent billed Mr. McCormick's insurance company for $290, the balance of Mr. McCormick's bill claimed due by Respondent. Respondent billed the insurance company for the following: 90020 Initial Exam $150 97260, 97010, 97012, 97014 65 07040 Lumbar/Sacral Belt 50 Therapy for pain 60 Respondent testified that he did not know precisely what each of the insurance claim codes signified because he let his clerk/secretary fill these in. He understood code 90020 to signify however intense an examination he chose to give; 97260 to mean "spinal adjustment," and 97010, 97012, and 97014 to mean traction, muscle stin, and hot packs in one order or another, which order he was unsure. Dr. Robert Butler, accepted as an expert in chiropractic over objection, testified that 90020 meant "comprehensive examination;" he did not opine on what the other codes might mean. There is no independent documentation concerning the insurance codes which would tend to support either witness' "opinion" of what the codes signify. There is no evidence to show whether Respondent did or did not simultaneously provide a copy of the insurance claim to the insured (McCormick) and the third party payor (insurance company). Respondent's chiropractic records relative to this case include only a Confidential Patient Case History Form (P-3) and an Orthopedic Neurological Exam Form (R-1). Both records fail to include basic vital signs or other examination relative to a comprehensive examination as described by Dr. Butler. Respondent's Confidential Patient History Form has left blank several areas of general and specific conditions that normally should be filled in by the patient prior to treatment. There is, in fact, no information covering the history of the onset of the problem or injury for which Mr. McCormick presented himself to Respondent. It merely recites "rt & lt shoulder pain" and "rt and lt. low back pain." Although Respondent's Orthopedic Neurological Exam Form contains blank areas to fill in the date and time of injury and the location of the present complaint, these were not filled in on this form and no information as to overall medical history is recorded thereon. This form contains space to record examination results but none are recorded, including common observations for height, weight, posture, and vital signs. Dr. Butler conceded that if the Orthopedic Neurological Exam Form could be related to McCormick, it would be sufficient written record of justification of an examination being performed for billing purposes and he expressed no opinion as to the appropriateness of the amount charged therefor. From the Orthopedic Neurological Exam Form, Dr. Butler could only conclude that the patient described was a "healthy individual" without any positive findings upon examination, and that although the form also contains information concerning selective tests performed on the patient, none of the tests recorded revealed positive findings to justify Respondent's diagnosis of Dale McCormick. The Orthopedic Neurological Exam Form was not produced by the Respondent in the course of submitting to informal discovery. It was only located by Respondent among his papers in the course of final formal hearing and subsequent to Dr. Butler's initial testimony and Respondent's testimony. It is machine-copied on the back of a copy of the assignment of lien and insurance authorization signed and dated by Mr. McCormick. From the immediately foregoing facts alone, it may be concluded that this particular record was maintained in a haphazard manner and not in conformity with reasonable chiropractic care and practice. Moreover, this form does not have Mr. McCormick's name on its face and does not reflect any other information identifying who the patient was, the date of examination, or any information which would confirm that the form was made out contemporaneously with Respondent's physical examination of Dale McCormick. There is no suggestion it was ever submitted to the insurance company to verify Respondent's treatment of Mr. McCormick. For the foregoing reasons and even though Respondent was permitted to reopen his case so as to present this "newly discovered evidence", admitted as "R-1", the undersigned is not persuaded that this Orthopedic Neurological Exam Form relates to the patient in question, Dale McCormick. Neither report justified the course of treatment rendered by Respondent. Upon the expert testimony of Dr. Butlers it is found that: The single most important aid for a chiropractic physician in evaluating a patient's condition is a comprehensive history. The minimal standards in the chiropractic profession for a comprehensive patient history are obtaining the primary complaint, secondary complaints (if they exist), duration of the problem, the nature of the problem, what has been done for the problem, if any previous accidents or injuries exist, whether the patient is taking any medication for the problem, and if the patient is receiving any other treatment. Patient histories should be recorded to assist the treating chiropractic physician or successive health care professional in subsequent treatment of the patient. The results of examinations should be recorded by the chiropractic physician to assist the treating chiropractic physician or any successive health care professional in subsequent treatment of the patient. It is standard in the profession for chiropractors to maintain a minimal record of proceedings, communications, and findings and procedures relative to the management and care of each patient. Dr. Butler acknowledged that it is possible to treat a patient without obtaining a patient history but insisted it is risky to treat professionally within the confines of the professional standards without knowing what the underlying condition is. While the exact treatment of a patient with shoulder/low back pain may vary, the physician should record his treatment in the chiropractic records for the patient. This was not done in this case by Respondent. In Dr. Butler's opinion, the examination related in Respondent's testimony was insufficient to treat shoulder/low back pain. Respondent has been previously disciplined for violations of Sections 460.413 (1)(d) and (e) Florida Statutes and Rules 21D-15.01 (2)(g) and (i) with regard to advertising, which offenses are unrelated to the one violation proved herein.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Chiropractic enter a final order dismissing Counts I, III, IV, and V of the Administrative Complaint and finding Respondent guilty of Count II, a violation of Section 460.413 (1)(n) Florida Statutes, imposing a fine of $1,000, suspending Respondent's license as a chiropractic physician for one month, and imposing a one year period of probation to follow directly upon the completion of the one month suspension, with the period of probation to be reduced in the event the Respondent demonstrates to the Board satisfactory completion of courses in chiropractic record-keeping, the courses to be selected and specified by the Board in its final order. DONE and RECOMMENDED this 27th day of October, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of October, 1988. APPENDIX TO RECOMMENDED ORDER The following constitute rulings pursuant to Section 120.59 (2) Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). Petitioner PFOF: 1-20 are accepted either in whole or in part. Where not fully accepted, modifications have been made to conform to the greater weight of the evidence as a whole, to distinguish between expert opinion accepted and expert opinion not accepted due to equivocations on the record, or opinions expressed without sufficient predicate to be accepted, or to assess the weight and credibility of the witnesses. Proposal 5 specifically has been modified to more closely conform to the greater weight of the credible evidence as a whole. Proposal 6 is mere recitation of testimony out of context and to the degree it has not been accepted within other findings, is modified and distinguished within the facts as found in FOF 20. Proposal 20 has been accepted but only those matters material have been adopted in FOF 21. Respondent's PFOF and 3 are accepted and adopted except as subordinate or unnecessary. is accepted but is irrelevant and not a disputed issue of material fact. Respondent waived any necessity for a subpoena by offering the materials to the prosecution. Moreover, he complained at formal hearing that the DPR attorney did not pick them up quickly enough. 4-6 are partly accepted in FOF 10 to the extent that Dr. Butler was tendered and accepted as an expert in chiropractic over objection, but the remaining parts of each of these proposals is rejected as mere argument and as merely a recitation of authority. COPIES FURNISHED: PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 RAY SHOPE, ESQUIRE AND CYNTHIA SHAW, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH SMITH, D.C. 3822 WEST BROWARD BOULEVARD FORT LAUDERDALE, FLORIDA 33312 LAWRENCE A. GONZALEZ, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 BRUCE D. LAMB, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Ruth Theresa Healey, was, at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number 0983072 by the Board of Nursing. On May 20, 1988, Respondent was employed as a registered nurse at Broward Convalescent Home for the 11:00 p.m. to 7:00 a.m. shift. Included in Respondent's responsibilities were the assessment of each patient under her care; the administration of medication to her patients according to the physician's orders; and the correct documentation of each medication administration on each patient's medical chart. Under Respondent's care on May 20, 1988 was the patient, E.M. The physician's orders for E.M. during Respondent's shift indicated that she was to be fed with one-half strength Entrition at 60 cc's per hour with water flushes through the gastrostomy tube (G Tube) which had been inserted into her abdomen. One-half strength Entrition is a nutrition substitute which is supplied in a self-contained package. On May 20, 1988, the supply of one-half strength was on special order and would not be available for use at Broward Convalescent Home until the next morning during the 7:00 a.m. to 3:00 p.m. shift. E.M.'s G Tube was clearly marked on E.M.'s chart and easily observed upon patient assessment since it was protruding from her abdomen. Sometime during Respondent's shift, a naso-gastric tube, NG Tube, was also inserted into E.M. Without a physician's order, the insertion of a NG Tube into a patient with an existing G Tube could prove harmful to the patient and is contrary to the minimal standard of acceptable and prevailing nursing practice. It was Petitioner's contention that Respondent inserted the NG Tube into her patient. Petitioner's position was supported by the testimony of Geraldine Hamilton, a nurse who came on duty the morning of May 21, 1988. Ms. Hamilton recalled that Respondent admitted to Ms. Hamilton that Respondent was in trouble because she, "put an NG Tube in one of the patients who has already got a G Tube." However, Respondent, at the hearing, consistently denied having made the statement. She asserted, instead, that a co-worker, Bunster Martinez, inserted the NG Tube. During Respondent's shift, she had sought Mr. Martinez's advice concerning the procedure she should use to feed E.M. since the one-half strength Entrition was not available. Mr. Martinez was not present at the hearing. Respondent's speech pattern, as observed at the hearing and as noted through the testimony of others is not clear. Rather, it is cryptic and disjointed. Given Respondent's poor diction and syntax, Respondent's consistent denial that she inserted the NG Tube and the lack of corroborating evidence that Respondent did, in fact, insert the NG Tube, the literal meaning of Respondent's statement to Ms. Hamilton is unclear. Respondent did not perform an assessment of E.M. which would have revealed the G Tube. Instead, contrary to the physician's order, Respondent began the administration of full strength Entrition through the NG Tube. In an attempt to create one-half strength Entrition, Respondent knowingly administered full strength Entrition for one hour at 85 cc. per hour followed by water flushes. However, the quality of one-half strength Entrition can not be obtained by diluting full strength Entrition in this manner, and the administration of full strength Entrition could have harmed F.M. Respondent's failure to perform an assessment of her patient and her action with regard to this feeding were contrary to the minimal standards of acceptable and prevailing nursing practice and constituted unprofessional conduct on her part. Also, although Respondent administered to E.M. full strength Entrition through the NG Tube, she entered the feeding on E.M.'s chart as Entrition one- half strength at 60cc/hour via G tube. Accordingly, Respondent knowingly falsified the medication administration report. The following morning, May 21, 1988, when the presence of the NG Tube was questioned, Respondent abruptly and forcibly removed the NG Tube from E.M. The procedure Respondent used to remove the NG Tube was also contrary to the minimal standards of acceptable and prevailing nursing practice, constituting unprofessional conduct on her part and placing her patient in more jeopardy. Respondent acted somewhat incoherently on several occasions around the end of May, 1988. She was observed "talking to herself", was unresponsive to questions and appeared disoriented. No competent evidence was presented that such conduct resulted from a physical or mental condition or from medication. Respondent was previously suspended by the Board of Nursing and required to undergo psychiatric treatment. She was subsequently reinstated. No competent and substantial evidence was presented that Respondent disobeyed the previous order or any order of the Board of Nursing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered suspending Respondent's license for a period of one year, and thereafter, until she can demonstrate the ability to practice nursing in a safe and proficient manner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12 day of October 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of October 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3401 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Subordinate to the result reached. In part, addressed in paragraph 3 ;in part, subordinate to the result reached. Not necessary to result reached. Not necessary to result reached. Not necessary to result reached. In part, subordinate to result reached; in part, addressed in paragraph 3. Addressed in paragraph 3. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraphs 7 and 9. Addressed in paragraph 9. Addressed in paragraph 9. In part, addressed in paragraphs 5 and 6; in part, subordinate to result reached. Addressed in paragraph 8. Addressed in paragraph 3. Addressed in paragraph 7. In part, not supported by competent and substantial evidence, in part, subordinate to the result reached. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraphs 2 and 3. Addressed in paragraph 4. In part, addressed in paragraphs 10 and 11. In part, subordinate to the result reached, in part, not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 7. Addressed in paragraphs 7 and 8. Addressed in paragraph 10. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Ruth Theresa Healey, R.N. 1075 N.E. 39th Street, Apartment 110 Fort Lauderdale, Florida 33308 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of January 1995.
The Issue The issue in this case is whether Respondent, Sandra Blankenship, committed the violations alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against her.
Findings Of Fact The Parties. The Department is the agency in Florida responsible for regulating the practice of midwifery pursuant to Chapters 20, 456, and 467, Florida Statutes (2004).6 Ms. Blankenship is and has been at all times material hereto a licensed midwife in the State of Florida, having been issued license number MW 0091. Ms. Blankenship finished her training in May 1998 and received her Florida midwifery license effective July 7, 1998. Patient S.B. Patient S.B., who was 34 years of age, having been born on January 22, 1964, visited Ms. Blankenship, who was then practicing midwifery at Tree of Life Maternity Services, Inc. (hereinafter referred to as "Tree of Life"), in late December 1998. Patient S.B. went to Tree of Life because she was pregnant and was highly motivated to have an out-of-hospital vaginal birth. The purpose of her visit to Tree of Life was to arrange for prenatal and delivery services. This was not Patient S.B.'s first pregnancy. She had given birth to a son on September 28, 1995. That delivery was made by cesarean section (hereinafter referred to as "C- Section") after a long attempt at vaginal delivery. Patient S.B. was in labor between 24 and 30 hours before the C-Section was performed. Patient S.B. and Ms. Blankenship discussed at length the services Patient S.B. would receive. Patient S.B. was asked questions about her medical history, regular and obstetrical, which she answered. In particular, Patient S.B. informed Ms. Blankenship of the difficult birth of her son, including the fact that he had been delivered by C-Section.7 Following her initial visit, Patient S.B. began receiving prenatal care at Tree of Life on a monthly basis initially and, as her "due date" for her baby's birth approached, more frequently. During the early morning hours of July 9, 1999, Patient S.B. began having labor pains. Accompanied by her husband, Patient S.B. arrived at Tree of Life at approximately 6:00 a.m. She was having moderate contractions, four to five minutes apart, and her cervix was dilated five centimeters. Patient S.B. was monitored every hour after her arrival. From approximately 12:45 p.m. until 3:00 p.m., Patient S.B. relaxed in a tub of water. Part of that time she was noted to be sleeping. Her contractions continued to be moderate. At 3:00 p.m., Patient S.B. exited the tub. Between her arrival at 6:00 a.m. and 7:45 p.m., S.B.'s cervix had dilated as follows: 6:00 a.m. 5 to 6 centimeters 11:00 a.m. 7 centimeters 12:30 p.m. 8 centimeters 3:00 p.m. 9 centimeters 7:30 p.m. 9 centimeters 7:45 p.m. 9 centimeters In order for delivery to occur, the mother's cervix must be dilated ten centimeters, which is referred to as being "complete." Once the mother becomes complete, the baby's head, absent obstruction, should be able to move past the mid-point of the pelvis. A baby's progress is measured, both before and after the mother becomes complete, from the mid-point of the pelvis, which is the narrowest part of the mother's cervix. The location of the baby's head above the mid-point of the pelvis is measured in centimeters and is referred to as "minus stations." Therefore, if the baby's head is two centimeters above the mid- point, it is said to be at "minus-two station." The location of the baby's head below the mid-point of the pelvis is also measured in centimeters and is referred to as "plus stations." Therefore, if the baby's head is two centimeters below the mid- point, it is said to be at "plus-two station." When Patient S.B. became complete is not specifically noted on the Labor Sheet or Progress Notes kept by Ms. Blankenship during Patient S.B.'s attempted delivery. Nowhere did Ms. Blankenship note specifically that Patient S.B. was "complete" or dilated ten centimeters. Neither party proved precisely when Patient S.B. was dilated to ten centimeters, or complete. Dr. Gichia believed that Patient S.B. was complete at approximately 8:00 p.m. Dr. Gichia's opinion was based, in part, upon a note indicating that Patient S.B. was at plus-one station at 7:25 p.m. Dr. Griffin's reliance upon the note, however, is misplaced. It is doubtful how accurate Ms. Blankenship's estimates of the stations reached by the baby were, based upon the fact that she noted that the baby's head had reached a plus- three or plus-four station by 11:30 p.m., but the baby's head was only at a plus-one station when Patient S.B. was later examined in the hospital by Dr. Neil Boland. Dr. Gichia also based her opinion on a note that Ms. Blankenship had had Patient S.B. start pushing at 8:00 p.m. Dr. Gichia concluded that Patient S.B., if she were pushing, was complete and had, therefore, entered what is referred to as "second stage labor." Again, Dr. Gichia's reliance on the 8:00 p.m. note is misplaced. As explained by Ms. Blankenship, Patient S.B. had indicated at approximately 8:00 p.m. that she had the urge to start pushing. Accordingly to Ms. Blankenship, Patient S.B. was still dilated to only nine centimeters, but she believed that, with pushing, she would become complete. After allowing Patient S.B. to make some effort to push, Ms. Blankenship determined that her effort was poor and, therefore, instructed her to stop for a while. While she wrote on her Labor Sheet that she was having Patient S.B. rest for "20 minutes," in fact, Patient S.B. rested much longer, not beginning to actively push again until 9:30 p.m. Although the precise point in time when Patient S.B. became complete was not proved, it can be said that it did take place at some point after 7:25 p.m. and before, or at, 9:30 p.m. This conclusion is supported by Dr. Boland, who assumed that Patient S.B. began second stage labor at 9:30 p.m. rather than attempt to identify a precise earlier point in time.8 Although the accuracy of the stations of the baby's location noted by Ms. Blankenship are questionable and not supported by the weight of the evidence,9 Ms. Blankenship genuinely believed that the baby was at the following stations at the noted times: 7:25 p.m. plus-one station 9:30 p.m. plus-two station 11:30 p.m. plus-three/four station "with pushes" At midnight Ms. Blankenship informed Patient S.B. that, if she did not deliver by 12:30 a.m., July 10th, she would have her transported to a hospital due to maternal exhaustion. Patient S.B. agreed. At 12:25 a.m. a "911 call" was made to arrange to have Patient S.B. transported to a local hospital. She was picked up at 12:30 a.m. Patient S.B. was not attended to by a physician until 1:30 a.m., an hour after leaving Ms. Blankenship's care. Failure to Progress in Descent. Although testimony was offered at the final hearing concerning whether Patient S.B. should have delivered within two hours of beginning stage two labor, the only alleged deficiency in Ms. Blankenship's treatment of Patient S.B. contained in the Administrative Complaint is that "Patient S.B.'s second stage of labor exceeded two (2) hours without progress in descent (the downward movement of the baby)." Due to this alleged deficiency, the Department concluded that Ms. Blankenship violated Florida Administrative Code Rule 64B24-7.008(4)(i)1, when she failed to consult with, or refer or transfer Patient S.B. to, a physician. Ms. Blankenship believed that, based upon her conclusion that the baby had moved from plus-two station at 9:30 p.m. to a plus-three or plus-four station at 11:30 p.m., Patient S.B., after beginning second stage labor, had progressed in descent and, therefore, her referral to a physician was timely. The term "progress in descent," however, is a technical term which in the practice of midwifery requires more than just the movement of the baby which Ms. Blankenship mistakenly believed she was witnessing. Based upon standards established by the American College of Obstetricians and Gynecologists (hereinafter referred to as the "ACOG"), for, among other things, the practice of midwifery, progress in descent after two hours contemplates that, once a mother becomes complete, the baby should be born within two hours or, if not, that the midwife will consult with, or refer or transfer the mother to, a physician. Ms. Blankenship failed to comply with the ACOG acceptable definition of progress in descent. Assuming that Patient S.B. became complete as late as 9:30 p.m., she was not transferred to the hospital until 12:30 p.m., three hours later, and was not seen by a physician until 1:30 p.m., four hours later. While Ms. Blankenship believed that the baby's head was moving downward during this time, that perceived movement did not constitute "progress in descent." Malpractice Insurance. The parties stipulated that Ms. Blankenship did not have malpractice insurance from February 24, 1999, to July 10, 1999, and that she did not inform Patient S.B. that she did not have malpractice insurance while Patient S.B. was in her care. Ms. Blankenship did not, however, intentionally deceive Patient S.B. Rather, she had incorrectly believed that her malpractice insurance had been maintained by a business associate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Dismissing Count I of the Amended Administrative Complaint; Finding that Sandra Blankenship violated Section 467.203(f), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint; and Suspending Ms. Blankenship's midwifery license for a period of one year from the date the final order and placing her license on probation for two years thereafter. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 18th day of February, 2005.
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds ! The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7 day of Alauacey , 2014. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this t? ay of feLyruc cys , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley, Esq. Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Corinne Porcher, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL. 32308 (U.S. Mail) Lynne Quimby-Pennock Administrative Law Judge Brandia Presha, Owner/Administrator Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Mark Hegedus, Respondent, is registered with the Florida State Board of Nursing and holds license No. 85729-2. He worked at the Sarasota Memorial Hospital (SMH) for approximately three years immediately preceding May 15, 1978. During the period between April 1, 1978 and May 15, 1978 Respondent was working on the cancer ward at SMH and was Charge Team Leader at the hospital. An audit conducted of the narcotics and barbiturates administration records at SMH for the period 1 April through 15 May 1978 disclosed that of 14 patients records selected who had been administered Demerol by Respondent, evidence of irregularity was discovered in 30 entries on 9 of the 14 patient medical records audited. These errors included signing out for 50 mg ampules of Demerol 11 times, for 75 mg ampules 11 times, and for 100 mg ampules 8 times in the narcotic record with no entry made on the Nurses Notes or on Medication and Treatment record. These errors involved patients Daryl C. Iverson, Edna Jurgenson, Clinton Jelmberg, John Lally, Genevieve Belt, Arleigh Updike, Michael Wujtowicz, Joan Slater, and Arda Miller. Hospital procedures and accepted nursing practice require the nurse administering narcotics to sign for the narcotic when it is removed from the narcotics locker and then make an entry in the Nurse Notes and patient Medication and Treatment record when the narcotic is administered to the patient. Medication and Treatment records are used by the doctors to see how frequently patients need narcotics prescribed on an as needed basis, whether the drugs prescribed have been administered, and by other medical personnel to ascertain when the patient last received and how much medication so as to preclude giving the patient an overdose. Respondent was discharged from his position at the hospital on 15 May 1978 because of the narcotics irregularities. At the time of his discharge, Respondent acknowledged that he had taken Demerol and had disposed of the ampules but that he did not use them himself or sell them. The audit disclosed a few errors in charting narcotics were committed by other nurses as well as Respondent. During the three years Respondent worked at SMH and, up until about 1 April 1978, he was a capable and competent registered nurse, well-liked by both patients and co-workers. He was promoted to First Team Leader after about one year at SMH and to Charge Team Leader approximately one year thereafter. These promotions were more rapid than the time required by the average nurse. All witnesses who had worked with Respondent spoke highly of his qualifications and dedication as a registered nurse.
The Issue The issues are whether Respondent, on or about October 2000, while employed by St. Joseph's Hospital, withdrew controlled substances (Demerol) from the Pysix system for patients and inaccurately and or incompletely documented the administration and or wastage of said medications, and, if so, what penalty is appropriate for Respondent's failure to conform to minimum standards of acceptable and prevailing nursing practice in violation of Subsection 464.018(1)(h), Florida Statutes.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence, and the entire record complied therein, the following relevant and material facts are found. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Subsections 120.57(1) and 464.018(1)(h), Florida Statutes. Respondent is, and has been at all times material hereto, a licensed registered nurse (RN) in the State of Florida, having been issued license number RN 3141652 by the Florida Board of Nursing. Respondent, at all times material hereto, was employed by St. Joseph's Hospital (St. Joe's), in Tampa, Florida. At all times material to this case, Respondent was working in the Intensive Care Unit (ICU), wherein is situated a Pysix medication dispensing machine. The Pysix medication dispensing system is comprised of a central control panel located in the office of the hospital's pharmacist. There are multiple outlets located in various units throughout the hospital. Access to medication contained in the several Pysix system outlets is similar in operation to access to money in an ATM machine, to wit: each authorized nurse is given by the hospital a personal password (like personal identification numbers for an ATM). A nurse enters the patient's name (for whom the medication is to be given and logged), then enters their personal password, and enters the desired medication number before the Pyxis machine will dispense the medication. All access entries to Pysix and dispensing of prepackaged medication by Pysix are recorded. The amount of medication administered to the patient is required to be recorded simultaneously on the patient care record (PCR) and on the hospital's Medication Administration Record (MAR). These records are required to be maintained and are reviewed periodically by doctors, nursing staff, and staff supervisors for accuracy and quality assurance purposes. It is the policy requirement of St. Joe's hospital that should a nurse not administer the entire amount of medication dispensed under his or her private password to the named patient, the acquiring nurse must retain the "waste" medication (unused medication). The accessing nurse shall then secure the presence of another nurse who shall witness the disposal of the "waste" medication. The nurse disposing of "waste" medication shall then enter into the Pyxis, his/her personal password and the amount of disposed "waste" medication. The witness nurse shall enter his/her personal password as having witnessed the actual "waste" medication disposal. At all times material and specifically in October and November 2001, Lynn Kelly, RN (Kelly), was the nursing manager for the ICU at St. Joe's and was Respondent's supervising nurse. In her capacity as nursing manager, Kelly's responsibilities included the following: hiring, firing, duty scheduling, performance evaluation, employee counseling, auditing medical records, quality control, risk management, management investigations, education and policy writing. In her capacity as a supervisor, Lynn Kelly received, reviewed and analyzed monthly reports that detailed controlled medication usage on her unit (ICU). The reports detailed the number of times a nurse accessed the Pysix system for narcotics as compared to the number of days that nurse worked a shift during the month. St. Joe's Hospital developed a standard deviation to be used when analyzing and reviewing records. Should a nurse's number of accesses to Pysix's narcotics fall outside the standard deviation, it was Kelly's duty to check that nurse's assignments to determine, if possible, a reasonable explanation for narcotic accesses beyond the standard deviation guidelines; a particular nurse could have been continually assigned to a particular patient who required more than normal narcotic medication for pain. A cross-check of the patient's medication records (PCR) and the hospital's MAR would be made upon discovery of assess outside standard deviation guidelines. After receiving a report on Respondent's narcotics (Demerol) withdrawals from the Pysix system that were outside the standard deviation, Kelly compared and analyzed Respondent's Pyxis access records to his assigned patients administration records with his narcotic waste records, for a two-month period, September 27 through November 2000. Kelly found instances where 25 milligrams and 50 milligrams units of Demerol were accessed by Respondent, but were not administered to the assigned patient. They were not entered as waste, and they were not documented in the MAR records. The discrepancies revealed that between October 2, 2001, and October 23, 2001, Respondent withdrew a total of 1,075 milligrams of Demerol from the Pysix narcotics dispensing system for administration to patients without documenting administering the medications or wasting the medications. Respondent suggested that "someone" could have or did look over his shoulder, observed and remembered his personal password as he typed it in, and later use his password to access the Pysix machine for Demerol. Respondent testified that on many occasions other nurses would come up behind him and instead of his logging out the Pysix machine, he would withdraw their narcotics for them and hand it to them. It was common practice for several nurses to be in the Pysix room at the same time. Respondent's responses and suggestions without other supporting evidence, are insufficient to account for the 1,075 milligrams of Demerol accessed by Respondent, not administered to the assigned patient, and not documented as waste medication as required. Proper and correct documentation of accessed medication is important and essential for the prevention of potential overmedication by a subsequent nurse due to the lack of proper and correct documentation by the preceding nurse in this case, Respondent. The record was left open from January 25, 2002, to March 4, 2002, for subsequent submission of evidence regarding theft of passwords by other employees at St. Joe's during the time material to the allegation in the Administrative complaint; the parties made no subsequent submissions.1 Petitioner has proven by clear and convincing evidence that in October 2001 while employed by St. Joe's Hospital, Respondent, using his personal password, withdrew controlled substances from the Pysix narcotics system and did not document, as required, administering the withdrawn controlled substances to the patients for whom the withdrawals were made, and did not document wasting the controlled substances withdrawn.
Recommendation Based on the foregone, it is
