The Issue Whether Petitioner's licensure status should be reduced from standard to conditional.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. IHS operates a licensed nursing home at 4033 Beaver Lane, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On February 4 through 7, 2002, AHCA conducted an annual licensure and certification survey of IHS to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F322 (violation of 42 C.F.R. Section 483.25(g)(2), relating to a facility's duty to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers in residents who are fed via naso-gastric or gastrostomy tube). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F322, AHCA imposed a conditional license on IHS, effective February 7, 2002. The survey found one instance in which IHS allegedly failed to ensure appropriate treatment for a resident fed by a naso-gastric or gastrostomy tube. The surveyor's observation on Form 2567 concerned Resident No. 2: Based on observation, review of resident record and facility policy and procedure, and interview with the nutrition and administrative, and nursing staff, the facility failed to notify the Registered Dietician of a physician ordered consult requested secondary to elevated laboratory values and need for reassessment of resident's nutritional and fluid needs; failed to complete the physician ordered dietary consult; failed to review physician orders and review resident laboratory values when completing the January 2002 tube feeding review resulting in no reassessment of the resident's nutritional needs and no readjustment in the resident's tube feeding with the subsequent negative outcome of metabolic abnormalities and dehydration secondary to excessive protein intake for 1 (Resident No. 2) of 7 residents reviewed for tube feeding from a total sample of 22 active sampled residents. The findings include: Resident No. 2 was admitted to the facility on 09/07/01 with diagnoses including Type 2 Diabetes, Senile Dementia, Chronic Bronchitis, Aspiration Pneumonia and Depression. The resident had a gastronomy tube for feeding and was receiving nothing by mouth. Review of the resident hospital laboratory data dated 9/5/01, indicated that the resident was admitted to the facility with normal laboratory values except an elevated Glucose level of 195 (reference range 75-109 mg/dL). The resident's Blood Urea Nitrogen (BUN) was within normal limits at 12 mg/dL (reference range 5-25 mg/dL); Creatinine was within normal limits at 1.2 mg/dL (reference range 0.5-1.4 mg/dL); BUN/Creatinine Ratio was 10:1 within normal limits of 10:1. The resident's albumin level dated 9/1/01, indicated a moderate depletion of protein stores at 2.6 g/dL (reference range 3.4-5.0 g/dL). The resident had clear urine with a normal urine specific gravity of 1.010 (reference range 1.001-1.030). Review of the initial Nutritional Assessment completed on 09/10/01, revealed that the resident's estimated nutritional needs were 1320 calories and 64 grams of protein (1.5 grams/kg body weight) with 1290 cc of fluid (30 cc/kg body weight). The resident's weight on admission was 94.4 pounds with an ideal body weight range of 95 pounds +/- 10 percent. The resident's weight in August 01 was documented as 96.8 pounds. Resident's height was 50 inches. The Registered Dietician (RD) recommended a change in the tube feeding to Resource Diabetic at 60 cc per hour with 100 cc of water every shift (300 cc of additional water) to provide 1440 calories, 90 grams of protein (2.1 grams of protein/kg body weight) and 1509 cc of free water. The RD documented that the resident had a need for extra protein secondary to a low albumin. (This tube feeding provided an additional 120 calories and 26 grams of protein a day beyond the resident's estimated nutrient needs.) Review of the Enteral Feeding Flow Sheet revealed that the RD recommended increasing the tube feeding further on 10/03/01, secondary to weight loss to Resource Diabetic at 75 cc per hour with no recommendation to increase the fluid flushes. It was documented that the resident's weight decreased 3.2 percent without a specified period of time. The resident's current weight was documented as 93.8 pounds. The RD did not recalculate the nutritional needs based on the current weight. She documented that the increase in tube feeding would provide 1800 calories (41 grams/kg) with 113 grams of protein (approximately 2.7 grams/kg body weight) and 1812 cc of free fluid plus 30 cc of fluids with medications. (This tube feeding provided an additional 480 calories and 49 additional grams of protein beyond the resident's estimated nutrient needs.) The note further documented that the resident's blood sugars were ranging from 122-141 mg/dL, no other labs were documented or requested. Review of the Enteral Feeding Flow Sheet dated 11/20/01, revealed that the resident remained on this tube feeding and water flushes and gained an additional 4 pounds in one month. The RD documented to continue with the current Plan of Care. The resident continued to receive an additional 480 calories (40 calories/kg) and 49 grams of protein (approximately 2.5 grams/kg) from this formula. Review of the Enteral Feeding Flow Sheet dated 12/07/01, revealed that the resident continued on the tube feeding and flushes and gained another 2 pounds. Review of physician telephone orders dated 12/19/01, revealed that the physician increased the water flushes to 150 cc every 6 hours to provide 600 cc of fluid per day in addition to the tube feeding, an increase of 300 cc per day. Review of the physician's progress notes dated 12/22/01 at 4:50 P.M., indicated that the resident had an elevated BUN of 84 mg/dL and an elevated glucose of 128. The physician documented that the resident had azotemia without increased sodium and questioned a gastrointestinal bleed. He further documented that the resident did not look dehydrated clinically and that her Type 2 Diabetes was improved. The physician ordered labs, check the stool for blood and was receiving [sic] increased water through the PEG tube (feeding tube in the stomach). Review of nurses notes dated 12/22/01 at 1800, revealed the stools were checked for blood with negative results. Review of the resident's lab data dated 12/18/01, revealed that the resident had a normal sodium and potassium level and an elevated BUN of 84 mg/dL (reference range 6-28 mg/dL). The resident's creatinine level was normal at 1.1 mg/dL (reference range .2-1.5 mg/dL). Glucose was elevated at 128 mg/dL (reference range 60-115 mg/dL). The BUN/Creatinine Ration [sic] had increased from normal to 76:1 and the calculated serum osmolality was 323 mOsm/kg H2O (normal values 285-295 mOsm/kg H2O). (These lab values were indicative of excessive protein intake and possible dehydration). Review of lab data obtained 12/24/01, indicated that the resident's BUN remained at 84 mg/dL, Glucose was normal at 90 mg/dL and the resident had an elevated white blood cell count indicative of infection. Serum osmolality remained elevated at 316 mOsm/kg H2O. BUN/Creatinine Ratio remained at 76:1, indicative of excessive protein intake and possible dehydration. The nurse had noted on the lab work form that the resident had tested negative for blood in her stool X 2 on 12/25/01 and the resident's whiteblood cells had been normal in September 2001. The labs were faxed to the physician on 12/26/01. Further review of the physician's telephone orders revealed that a dietary consult was ordered on 12/28/02 [sic]. Review of the dietary progress notes and Enteral Feeding Flow Sheets revealed that the consult had not been completed. The resident remained on the tube feeding at 75 cc per hour which provided 1800 calories, 113 grams of protein and 2112 cc of free fluid. (480 additional calories: 40 calories/kg; 49 grams additional protein: 2.5 grams/kg and approximately 35 cc of fluid/kg per day). The next documented nutritional review was completed on 1/14/02. The RD reassessed the resident's calorie needs to add 500 calories for weight gain with a total of 1820 calories per day. Protein needs were reassessed at 72 grams per day (1.5 grams/kg based on current weight). Fluid needs were reassessed at 30 to 34 cc/kg body weight or 1440 to 1632 cc per day. The resident's weight was documented at 106 pounds, a 6.4 pound weight gain (6.4 percent) in one month. There was no indication that the RD addressed the consult ordered 12/28/01 or the abnormal lab data from 12/18/01 and 12/24/01. Accuchecks (blood sugar levels) were noted on the flow sheet an [sic] ranging from 123-170 mg/dL. It was noted that the resident was receiving multivitamins with minerals. Review of the progress note that accompanied the flow sheet revealed that the RD documented on 01/14/-2, that the resident continued to gain weight on the tube feeding, that the accuchecks were elevated and "MD aware." Her recommendation was to continue with the current Plan of Care. Observation of the resident on 02/04/02 at 11:32 A.M., revealed a petite, frail woman sitting in a geri-chair propped up with pillows and a splint on her left hand. The resident's tube feeding was running at 75 cc per hour. Skin appeared smooth with good skin turgor, lips were dry. Resident had mild temporal wasting. Observation of the Foley catheter bag 02/05/02 at 11:15 A.M., revealed 125 cc of moderately yellow urine in the bag with sediment in the tubing. Interview on 02/04/02 at 2:05 P.M., with the consultant RD, who had completed the assessment on 01/14/02, revealed that she had not reviewed the physician orders or lab data when she completed the assessment. She stated she did check the resident's daily blood sugar levels. She stated the resident's fluid needs were being met at the time of the assessment and the resident was gaining weight. She confirmed that she did not assess the resident's protein intake from the formula versus the resident's estimated needs. The RD stated that the Resource Diabetic is high in protein but that is the only diabetic formula available on the formulary. She stated that after discussion with the surveyor, she would reassess the resident today and check with the physician regarding the rate of the tube feeding to provide less protein. Further interview with the RD on 02/04/02 at 3:00 P.M., revealed that she had spoken to the RD who covers the C wing and that RD told her that she had been on vacation during the time the RD consult was ordered. The consultant RD confirmed that the facility had not contacted her regarding the consult during her visits to the facility. She again stated that she was planning to decrease the protein in the tube feeding and keep the fluid flushes at 150 cc every 6 hours. She further stated that it would be difficult to decrease the protein to the resident's estimated needs due to the need for use of the diabetic formula. Review of the dietary progress note completed on 02/04/02, after surveyor intervention, indicated that the resident had increased to 107.2 pounds and was now above ideal body weight. Recalculation of the the [sic] resident's calorie needs was estimated to be approximately 1400 calories per day. Protein was reestimated [sic] at 1.2 grams/kg body weight or 57.6 grams per day. Fluid needs were calculated at 30-34 cc/kg body weight or 1440 to 1632 cc per day. The RD recommended to decrease the tube feeding to Resource Diabetic at 55 cc per hour to provide 1399 calories with 83 grams of protein (1.6 to 1.7 grams/kg body weight). Total free fluids provided would be 1708 cc per day (approximately 35 cc/kg/body weight). The RD also recommended lab data to assess hydration status and visceral protein stores. Review of the physician telephone orders dated 2/4/02, revealed that the physician approved the decreased [sic] in the tube feeding. Review of the lab data obtained 2/5/02, revealed that the resident's BUN remained elevated at 71 g/dL. The Creatinine was 0.9 mg/dL with the BUN/Creatinine ratio remaining elevated at 78:1. Calculation of the serum osmolality was 318, indicative of continued excessive protein intake and possible dehydration. The resident serum albumin did improve to 3.2 grams/dL. Further review of the dietary progress notes written 02/06/02, revealed that the RD recommended contacting the physician regarding the abnormal labs. She recommended increasing the fluid flushes to 150 cc every 4 hours which would provide an additional 900 cc of free fluid per day. The RD further documented that if the BUN did not show improvement in one week with the increased fluid flushes, a change in the type of formula would be necessary. She recommended Fibersource that has a protein level of 45 grams/1000 cc versus the resident's current Resource Diabetic which has 63 grams/1000 cc. Interview on 02/06/02 at 2:30 P.M., with the Administrator, Director of Nursing and 2 RD's confirmed that the RD's had not been notified of the 12/28/01 consult, that they do not get notified when lab data is abnormal unless they are verbally told by nursing. The full-time RD stated that she had originally assessed the resident's protein needs at 1.5 grams/kg body weight secondary to the low albumin and the resident's poor appetite. She stated that she was providing the extra protein secondary to having to use the diabetic tube feeding formula that was available in the formulary and meet the resident's calorie needs. The Director of Nursing stated that they had formulas from other companies in the building and that the facility could get a different diabetic formula if needed. The RD's agreed that the resident needed to be reassessed. Interview with the Director of Nursing on 02/07/02 at 12:05 P.M., revealed that she had reviewed the resident's record and had nothing else to bring the surveyors after reviewing the record and nothing else to offer. She stated that she that [sic] there were issues and that the facility would work on them. Cynthia Lehman, a public health nutrition consultant, was the survey team member who recorded the observation of Resident No. 2. Ms. Lehman's findings were based on her observations of Resident No. 2, a review of the resident's medical records and of the facility's policies and procedures, and interviews with IHS staff. At the hearing, IHS did not contest the accuracy of the factual findings set forth by Ms. Lehman, though it did contest AHCA's conclusion that Resident No. 2's elevated BUN level was caused by excessive protein intake. Resident No. 2 was a 82-year-old female first admitted to IHS on August 15, 2001, after a hospital stay for intravenous hydration. She had been admitted to the hospital with severe dehydration with azotemia, which is the retention of excess nitrogenous compounds in the blood caused by the failure of the kidneys to remove urea from the blood. Azotemia is associated with a high blood urea nitrogen ("BUN") level. Resident No. 2's BUN level on August 10, 2001, was 37 mg/dL. Normal limits of BUN are 5-25 mg/dL. Resident No. 2 was a small woman, 4'2" tall, and weighed 96.8 pounds. She suffered from diabetes, chronic obstructive pulmonary disease ("COPD"), chronic pancreatitis, hypothyroidism and heart disease. Upon admission to IHS, Resident No. 2 was bed-bound in a fetal position, lethargic and uncommunicative. She had skin tears on her heels and coccyx. During her first admission, Resident No. 2 ate poorly and had difficulty swallowing. The speech therapist at IHS determined that she would require tube feeding to maintain nutrition. Resident No. 2 was therefore readmitted to the hospital for placement of a percutaneous endoscopic gastrostomy tube, or "PEG tube." She was readmitted to IHS on September 6, 2001. Her condition was the same as on her first admission, with the exception of the PEG tube. Laboratory values were taken of Resident No. 2 during her second hospital stay. Of relevance to this proceeding, her blood urea nitrogen ("BUN") level on September 5 was 12 mg/dL, within normal limits of 5-25 mg/dL. She showed a moderate protein deficiency. Her albumin level was 2.6 g/dL, below normal limits of 3.4-5.0 g/dL. The IHS dietician, Carol Gathy, assessed Resident No. 2 upon her September 6 admission. She estimated that the resident required 1,320 calories and 64 grams of protein per day to maintain nutrition. Ms. Gathy noted that Resident No. 2 had a history of poorly controlled diabetes and that her accuchecks (blood sugar monitoring tests) were high. Resident No. 2's medical history indicated that she was prone to fall into azotemia. Ms. Gathy determined that the first priority was bringing Resident No. 2's diabetes under control, and for that reason recommended a product called Resource Diabetic for her tube feeding. Resource Diabetic is recommended for diabetics because it has a lower ratio of simple sugars than other tube feeding formulas. The tube feeding was initially provided at 60 cc/hour, with water flushes of 300 cc/day. This provided Resident No. 2 with 1,440 calories and 90 grams of protein per day. At the recommended levels, Resource Diabetic provided calories and protein in excess of Resident No. 2's estimated needs. Ms. Gathy thought this necessary to assist Resident No. 2 in gaining weight and replenishing her protein stores. The resident's thinness made her prone to pressure sores, as indicated by the skin tears on her heels and coccyx. Ms. Gathy thought that the extra protein would raise Resident No. 2's low albumin levels and enable healing of the existing skin tears, and that the extra calories would provide some "padding" to prevent future skin tears. On October 3, 2001, Ms. Gathy noted a three-pound weight loss for Resident No. 2 and recommended that the tube feeding be increased to 75 cc/hour. This increased Resident No. 2's intake to 1800 calories and 113 grams of protein per day. From early October through November, IHS performed daily accuchecks and determined that Resident No. 2's blood sugar and glucose levels were normal. Resident No. 2 was adjusting well to tube feeding and gaining weight. Her skin tears had healed and her skin was intact. Aside from the accuchecks, no other laboratory tests had been taken since her admission to IHS on September 6, 2001. The attending physician ordered lab work on December 18, 2001. Resident No. 2's BUN level was 84 mg/dL, well above the normal limits of 5-25 mg/dL. Evidence produced at the hearing indicated that an elevated BUN level over a long period of time can have negative effects, including renal failure. A BUN level must reach 100 mg/dL to be considered "critical," but a level of 84 mg/dL is considered abnormally high. Because no lab work was performed between September 5 and December 18, 2001, IHS did not know how long Resident No. 2's BUN level had been elevated. On December 19, 2001, the physician ordered an increase in the water flush through the PEG tube in an effort to bring down the BUN level. The "flush" is simply free water in the tube feeding that hydrates the resident and flushes out some of the excess protein. On December 22, 2001, the physician diagnosed Resident No. 2 with azotemia, due to the elevated BUN level. The elevated BUN level could have several causes, including a gastrointestinal ("GI") bleed, dehydration, infections, or excess protein. The physician ordered a stool culture to rule out a GI bleed. The culture tested negative for blood in the stool. The physician ordered further lab work on December 24, 2001. Resident No. 2's BUN level remained at 84 mg/dL. Her creatinine and hematocrit (red blood cell) levels were within normal limits. These labs caused the physician to focus on excess protein as the cause of the elevated BUN level. On December 28, 2001, he ordered a dietary consultation regarding Resident No. 2's protein intake. Staff of IHS did not perform the dietary consultation. Ms. Gathy was on vacation during this period, and no one at IHS informed the consulting dietician on duty, Chrisanna Harrington, that the consultation had been ordered. Resident No. 2 continued to receive the Resource Diabetic feedings at 75 cc/hour. Ms. Harrington performed a nutritional assessment of Resdient No. 2 on January 14, 2002. She documented a significant unplanned weight gain of 6.4 pounds by Resident No. 2, from 99.6 to 106 pounds in one month. She recalculated the resident's caloric and protein needs upward, from 1320 to 1820 calories per day and from 64 to 72 grams of protein per day. Ms. Harrington recommended continuing the Resource Diabetic feedings at 75 cc/hour and otherwise continuing with the existing care plan. When she performed her assessment on January 14, 2002, Ms. Harrington was unaware that the physician had ordered a dietary consult. She was also unaware of the laboratory tests performed the previous December. She did not know that Resident No. 2's BUN levels were elevated. Ms. Harrington only learned of the physician's orders and the lab tests when the agency surveyor, Ms. Lehman, informed her of them on February 4, 2002. Ms. Harrington then performed a weight review of Resident No. 2 that showed her weight increased to 107.2 pounds. She recalculated the residents caloric and protein needs downward to 1400 calories and 57.6 grams of protein. She recommended reducing the tube feeding to 55 cc/hour, and recommended further laboratory testing. The labs performed on February 5, 2002, indicated that Resident No. 2's BUN level was at 71 mg/dL, reduced but still well above normal limits. At the hearing, IHS contended that Resident No. 2's elevated BUN level was not necessarily caused by excessive protein intake. The resident suffered a urinary tract infection in early December. Infections can increase the BUN level. Throughout her stay at IHS, the resident was receiving Prinivil, a beta-blocker for hypertension that has a potential side effect of increasing the BUN level. In October 2001, the resident received Levaquin, an anti-infective drug, that could have influenced her BUN level. The weight of the evidence made it clear that, while these other causes were possibilities, the excessive protein was the most likely cause. The steps taken by the physician showed that he believed excessive protein was the most likely cause of the elevated BUN level, once he ruled out a GI bleed. Ms. Harrington, too, acted immediately to reduce Resident No. 2's protein intake as soon as she was informed of the elevated BUN level. In any event, the cause of the elevated BUN level is less important than the fact that the facility's care ensured that the resident's BUN level would not be tested for a period of three and one-half months. Resident No. 2 was an elderly diabetic with a history of azotemia, and was being provided a diet with a level of protein well in excess of her assessed need, yet no laboratory blood levels were taken between September 5 and December 18, 2001. Even after the attending physician began to suspect excess protein as the culprit and ordered a dietary consultation, the facility failed to act on the order. In summary, the evidence presented at the hearing demonstrated that IHS provided an excessive amount of protein in the tube feeding of this elderly diabetic resident, failed to monitor the resident's laboratory values, including BUN levels, despite a documented history of azotemia, and failed to follow physician orders calling for a dietary consultation. All of these factors placed Resident No. 2 in unnecessary jeopardy of sustaining kidney damage. That she displayed no outward physical signs of kidney damage was fortuitous, not the result of the care provided by IHS. The evidence demonstrated that IHS compromised Resident No. 2's ability to maintain or reach her highest practicable physical, mental, and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to Integrated Health Services of Port Charlotte. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 10th day of October, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether Florida Administrative Code Rules 11D-8.012 and 11D-8.013 are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner has been charged with “DUI Manslaughter/Failed to Render Aid” and “Vehicular Homicide/Failed to Give Information or Render Aid” in Palm Beach County, Circuit Court Case No. 502010CF005829AXXXMB. The prosecution in the criminal case intends to offer the results of a blood alcohol test performed on blood collected from the Petitioner as evidence at the trial. The Petitioner has moved to exclude the blood alcohol test results from the trial based, in part, on the method used to collect his blood for forensic testing. The Respondent is the state agency responsible for implementing the “Implied Consent” blood alcohol testing program, including the adoption of rules. The Respondent has adopted such rules which are set forth in Florida Administrative Code Chapter 11D-8. The Petitioner has asserted that the Respondent’s “Implied Consent” rules are insufficient to ensure the scientific reliability of the blood alcohol test results to be offered against him in the criminal trial. On March 21, 2014, the circuit court judge presiding in the criminal trial entered an Order Granting State’s Motion to Invoke the Doctrine of Primary Jurisdiction, which specifically directed the Petitioner to file a petition challenging rule 11D-8.012 with the Division of Administrative Hearings. On April 24, 2014, the Petitioner filed a Petition to Determine the Invalidity of an Existing Rule, challenging rules 11D-8.012 and 11D-8.013 as invalid exercises of delegated legislative authority. The parties stipulated that the Petitioner is substantially affected by, and has standing to challenge the validity of, rules 11D-8.012 and 11D-8.013. Rule 11D-8.002 provides the following relevant definitions: (2) Accuracy - the nearness of a measurement to a known concentration. * * * (4) Agency - a law enforcement agency other than the Department, or an entity which conducts breath tests or submits blood samples for alcohol testing pursuant to these rules, or a civilian entity performing such duties on behalf of a law enforcement agency. * * * (7) Alcohol - ethyl alcohol, also known as ethanol. * * * Analyst - a person who has been issued a permit by the Department to conduct blood alcohol analyses. Approved Blood Alcohol Test - the analyses of two separate portions of the same blood sample using a Department- approved blood alcohol test method and a Department-approved procedure, with results within 0.010 grams of alcohol per 100 milliliters of blood (g/100mL), and reported as the blood alcohol level. * * * Blood - whole blood. Blood Alcohol Level - the alcohol concentration by weight in a person’s blood based upon grams of alcohol per 100 milliliters of blood (g/100mL). * * * (19) Department - the Florida Department of Law Enforcement. * * * (22) Methods - types of alcohol analyses approved by the Department to conduct chemical or physical tests of blood or breath. * * * (24) Permit - when issued by the Department, certifies that the holder has met all necessary qualifications, remains in full compliance with these rules and is authorized to perform all related duties. A permit is issued only to a qualified applicant and remains valid and in full effect until determined otherwise by the Department. Rule 11D-8.012 The Petitioner has asserted that rule 11D-8.012 is an invalid exercise of delegated legislative authority because the rule does not establish a venipuncture procedure regulating needle gauge and tourniquet usage by which blood is obtained for the purpose of performing a blood alcohol test. At the same time, the Petitioner asserts, and the Respondent agrees, that the Respondent lacks statutory authority to adopt such a rule. Rule 11D-8.012 provides as follows: Blood Samples - Labeling and Collection. Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does not contain alcohol. Blood samples must be collected in a glass evacuation tube that contains a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate or EDTA (ethylenediaminetetraacetic acid). Compliance with this section can be established by the stopper or label on the collection tube, documentation from the manufacturer or distributor, or other evidence. Immediately after collection, the tube must be inverted several times to mix the blood with the preservative and anticoagulant. Blood collection tubes must be labeled with the following information: name of person tested, date and time sample was collected, and initials of the person who collected the sample. Blood samples need not be refrigerated if submitted for analysis within seven (7) days of collection, or during transportation, examination or analysis. Blood samples must be otherwise refrigerated, except that refrigeration is not required subsequent to the initial analysis. Blood samples must be hand-delivered or mailed for initial analysis within thirty days of collection, and must be initially analyzed within sixty days of receipt by the facility conducting the analysis. Blood samples which are not hand-delivered must be sent by priority mail, overnight delivery service, or other equivalent delivery service. Notwithstanding any requirements in Chapter 11D-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level. Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. Commercially available kits, generally containing glass evacuation tubes, a non-alcohol skin wipe, and a 21-gauge needle assembly, may be used to collect samples for blood alcohol testing. The Respondent’s rules do not require usage of such kits, and the components of the kits are commonly available where blood collection is performed. The Legislature identified the persons authorized to collect samples for blood alcohol testing in section 316.1933(2)(a), Florida Statutes, which states as follows: Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances or controlled substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical purposes. The Petitioner asserts that the gauge of the needle used to puncture a vein for blood collection and improper application of a tourniquet during the collection process can result in “hemolysis” of blood and an inaccurate blood alcohol test result. As noted above, rule 11D-8.002(14) defines “blood” to mean “whole blood.” Whole blood is comprised of four components, including white cells, red cells, platelets, and plasma. Hemolysis is the release of the contents of red blood cells (hemoglobin) into blood plasma. Hemolysis can occur from a variety of causes, including, but not limited to, the manner of collection (regardless of the gauge of the needle used to puncture the vein), improper agitation of a sample in the collection tube, and storage of a sample. All blood alcohol testing performed by forensic laboratories in Florida is conducted through “gas chromatography headspace analysis.” Extensive testimony was presented at the hearing as to the process of gas chromatography headspace analysis. The reliability and accuracy of the gas chromatography headspace analysis process is not at issue in this proceeding. Gas chromatography headspace analysis involves the removal and testing of a subsample of the blood sample contained in a collection tube. A subsample taken from a sample that exhibits hemolysis contains all of the components present at the time of collection and is whole blood. The evidence fails to establish that hemolysis alters the concentration of alcohol within a subsample taken from a sample of whole blood. The evidence fails to establish that hemolysis affects the results of a blood alcohol test performed on whole blood by gas chromatography headspace analysis. Rule 11D-8.013 Rule 11D-8.013 governs the issuance of permits to analysts conducting blood alcohol tests, including a requirement that analysts define the method and procedures to be followed in conducting the tests. The Petitioner has asserted that the rule is an invalid exercise of delegated legislative authority because the rule does not explicitly require analysts performing a blood alcohol test to identify and/or exclude an “unreliable” blood sample from the testing process. Essentially, the Petitioner argues that samples exhibiting hemolysis or coagulation should not be analyzed for alcohol content. Rule 11D-8.013 provides as follows: Blood Alcohol Permit - Analyst. The application for a permit to determine the alcohol level of a blood sample shall be made on a form provided by the Department and shall include the following information: Name and address of applicant; A copy of state license if licensed, or college transcript; Name and address of employer and laboratory facility where applicant performs analyses; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, A complete description of proposed analytical procedure(s) to be used in determining blood alcohol level. Qualifications for blood analyst permit - To qualify, the applicant must meet all of the following requirements: Department approval of analytical procedure(s). All proposed analytical procedures will be reviewed and a determination of approval will be made by the Department; Satisfactory determination of blood alcohol level in five proficiency samples provided by the Department using the proposed analytical procedure. Satisfactory determination shall be made by reporting results for blood alcohol proficiency samples within the acceptable range for the samples. For blood alcohol testing, acceptable ranges shall mean the calculated proficiency sample mean + or - 3 standard deviations iterated twice. The mean and standard deviations will be calculated using the results reported by the analysts and reference laboratories; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, Meet one of the following: Possess a clinical laboratory license in clinical chemistry as a technologist, supervisor or director, under Chapter 483, F.S.; or Be a licensed physician pursuant to Chapter 458, F.S.; or Complete a minimum of 60 semester credit hours or equivalent of college, at least 15 semester hours of which must be in college chemistry. The department shall approve gas chromatographic analytical procedures and enzymatic analytical procedures based on alcohol dehydrogenase which meet the following requirements: Includes the approved method used and a description of the method, and the equipment, reagents, standards, and controls used; Uses commercially-prepared standards and controls certified by the manufacturer, or laboratory-prepared standards and controls verified using gas chromatography against certified standards. For commercially-prepared standards and controls, the manufacturer, lot number and expiration date must be documented for each sample or group of samples being analyzed. For laboratory-prepared standards and controls, date, person preparing the solution, method of preparation and verification must be documented; A statement of the concentration range over which the procedure is calibrated. The calibration curve must be linear over the stated range; Uses a new or existing calibration curve. The new calibration curve must be generated using at least three (3) standards: one at 0.05 g/100mL or less, one between 0.05 and 0.20 g/100mL (inclusive) and one at 0.20 g/100mL or higher, and must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher. The existing calibration curve must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher; Includes the analysis of an alcohol- free control, and the analysis of a whole blood or serum control. The whole blood or serum control may be used to satisfy the control requirement(s) in paragraph (d); A gas chromatographic analytical procedure must discriminate between methanol, ethanol, acetone and isopropanol and employ an internal standard technique; An enzymatic analytical procedure based on alcohol dehydrogenase must use the procedure recommended by the instrument manufacturer/test kit vendor for whole blood alcohol analysis, and the enzyme used must have sufficient selectivity to provide negligible cross-reactivity towards methanol, acetone and isopropanol. The permit shall be issued by the Department for a specific method and procedure. Any substantial change to the method, analytical procedure, or laboratory facility must receive prior approval by the Department before being used to determine the blood alcohol level of a sample submitted by an agency. The Department shall determine what constitutes a substantial change. An analyst shall only use a Department- approved procedure to determine the blood alcohol level of samples submitted by an agency. Approval of blood alcohol analysis methods and procedures shall be based on rule requirements in effect at the time they were submitted for approval. Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3) 322.63(3)(b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b), (e), 327.353(2), 327.354(3) FS. Analysts submit the procedures referenced in the rule in the form of written “standard operating procedures” (SOP) filed with the Respondent. No SOP was admitted into the record of the hearing. As set forth above, the evidence fails to establish that hemolysis affects the results of a blood alcohol test performed on whole blood by gas chromatography headspace analysis. A subsample taken from a sample that exhibits hemolysis contains all of the components present at the time of collection and is whole blood. Accordingly, the evidence fails to establish that a sample exhibiting hemolysis should be excluded from testing. Notwithstanding the requirement in rule 11D-8.012 that glass evacuation tubes containing a preservative and an anticoagulant be used in the collection process, a collection tube containing a blood sample submitted for testing can, on occasion, include coagulated blood. Coagulation can occur for a variety of reasons, including the type of needle used in the collection process or the failure to mix the sample properly with the anticoagulant contained in the tube. Rule 11D-8.002(15) defines “blood alcohol level” as “the alcohol concentration by weight in a person’s blood based upon grams of alcohol per 100 milliliters of blood (g/100mL).” The entire sample in a collection tube containing a portion of coagulated blood contains all of the components that were present in the “whole blood” of the subject from whom the blood was collected. However, coagulation causes some of the blood components to solidify. Alcohol (ethanol) is water-soluble. Coagulation alters the ratio of liquid to solid in the sample and can increase the concentration of alcohol in the liquid portion of the sample. The evidence fails to establish that the mere presence of coagulation inevitably precludes the withdrawal of a subsample that properly reflects the components of the whole blood contained in the collection tube. Because gas chromatography headspace analysis uses a subsample of the liquid portion of the sample, the accuracy of the blood alcohol level reported by the subsample is related to the degree of coagulation present in the sample.
The Issue Whether Respondent is unable to practice nursing with reasonable skill and safety by reason of illness or use of alcohol, in violation of section 464.018(1)(j), Florida Statutes (2020); and, if so, the appropriate penalty.
Findings Of Fact Based upon the credibility of witnesses and evidence presented at the final hearing and stipulated facts, the following Findings of Fact are found: 1 Respondent objected to Petitioner’s admission of Exhibit 7, which was a close-captioned television video recording of Respondent and others on July 2, 2020. Respondent argued that Petitioner only offered a portion of the recordings from that day, and, thus, Petitioner should offer the complete video. To address Respondent’s objection, Petitioner was instructed to contact Mr. Anderson to verify whether additional recordings were available for July 2, 2020. However, Mr. Anderson was not available. Given the location of the camera and the area of treatment, the video camera may have captured Respondent leaving the emergency room. After considering the record, however, additional recordings would not have changed the outcome of the undersigned’s findings in this matter. 2 Respondent indicated at hearing that he was offering the reference letter as his sole exhibit. He was permitted to file the exhibit with DOAH after the hearing. Instead, Respondent filed a copy of a certificate of completion for nursing continuing education courses. The reference letter was not filed and, thus, is not a part of the record. Stipulated Facts At all times material to this complaint, Respondent was licensed as a registered nurse within the State of Florida, having been issued license number RN 3349322. Respondent’s address of record is 805 Sunday Road, Chipley, Florida 32428. At all times material to this complaint, Respondent was employed by Doctors Memorial Hospital (DMH), located in Bonifay, Florida. Respondent submitted to a blood alcohol test, which returned positive at a level of 0.2637 g/dl. Facts Related to the Events on July 2, 2020 On July 2, 2020, several colleagues of Respondent observed Respondent’s behavior at work, which raised questions regarding whether Respondent was impaired. Janet Smith, a registered nurse, worked at DMH. She had worked with Respondent for approximately 10 years before July 2, 2020. Ms. Smith arrived to work at 8:00 a.m. She observed Respondent at the emergency room desk from a distance of 10 feet for approximately 10 to 15 minutes. She testified that Respondent’s speech was “different, it was drawn out, and he was talkative, more friendly than usual.” Ms. Smith had more than 30 years of experience working in the emergency room and was familiar with the behavior of persons under the influence of alcohol. Based on her experience, she believed that “[Respondent] appeared drunk.” Concerned about Respondent’s behavior, Ms. Smith shared her concerns with other staff members, including Ashley Hall, Debra Smitty, Rohan Anderson, and Dr. Contini. Dr. Contini and Ms. Smitty were not offered as witnesses at the final hearing. Although Ms. Smith had concerns about Respondent’s behavior on July 2, 2020, she otherwise believed he was a strong nurse. Rohan Anderson also observed Respondent on July 2, 2020, after Debra Smitty shared her concerns about Respondent’s behavior. Mr. Anderson works at DMH as the Chief Operating Officer and Director of Information Technology. Mr. Anderson had also worked with Respondent at another hospital and did not recall any prior impairment issues. Similar to Ms. Smith, Mr. Anderson observed Respondent from a distance of 10 to 15 feet near the emergency room desk. He also noticed that Respondent’s speech was different than usual. Mr. Anderson testified that Respondent was “slurring his words … the way he was controlling the pitch of his voice. And I knew something was going on based on that.” Mr. Anderson then shared his concerns about Respondent’s behavior with Dr. Ulhaq, the emergency room director. Mr. Anderson unequivocally testified that Respondent was known for being a good nurse and was used as an example for training purposes. Loyd Simmons, an advanced registered nurse practitioner, was working in the emergency room on July 2, 2020. At Dr. Ulhaq’s request, Mr. Simmons evaluated Respondent based on the reports of suspected alcohol use. Mr. Simmons noted that Respondent was not acting like his “normal” self and he appeared to be unsteady on his feet. Respondent experienced difficulty with upward gaze. However, he was alert, oriented, with clear speech. Mr. Simmons performed a physical examination of Respondent, where he did not find any bruises or signs of a recent fall. He also conducted a neurological examination with Dr. Ulhaq, which revealed a positive Babinski. A positive Babinski result may be an indicator of a problem in the central nervous system. It may, however, also be related to alcohol use. Mr. Simmons interpreted findings of Respondent’s EKG and CT scan as within normal limits. Mr. Simmons found Respondent’s EKG and CT scan results did not indicate a condition that would affect his blood alcohol level. The hematology results returned normal results. The blood alcohol level test returned a result of 263.7 mg/dc, meaning .263 g/dcl.3 The chemical analyzer machine used to perform the blood alcohol test was working properly, calibrated properly, and the machine properly reported correct blood alcohol test results for Respondent. Based on his findings, Mr. Simmons diagnosed Respondent with alcohol intoxication. There was no evidence deduced from the tests performed that Respondent suffered from liver complications or COVID-19 that would cause his significantly high alcohol level results. Mr. Simmons testified that he had no prior personal knowledge of Respondent being impaired at work. Ms. Hall worked with Respondent on July 2, 2020. She observed Respondent for approximately 30 minutes while working together. She testified that he was more “jolly” than usual on that day and his mannerisms were exaggerated. She then shared her belief with the Director of Nursing that Respondent appeared to be impaired. Ms. Hall was present during Respondent’s evaluation in the emergency room. She assisted with placing an IV catheter to withdraw a blood sample from Respondent. She followed the standard process by cleaning the insertion site with isopropyl alcohol, and allowing the area to dry before inserting the catheter. She withdrew the blood sample and then delivered the sample to the lab drop-off window for testing. She had no further contact with the blood sample. Although Ms. Hall primarily worked a different shift than Respondent, she had never witnessed Respondent exhibiting similar behavior as he exhibited on July 2, 2020. Overall, each witness who worked with Respondent on July 2, 2020, reported that he was not behaving like normal and his behavior was consistent with alcohol impairment. Evaluation on January 14, 2021 Respondent was placed on administrative leave and ultimately, terminated for “being at work while under the influence of alcohol.” He was 3 The legal limit in Florida for intoxication is considered a blood alcohol level of .08 or above. presented with the option to voluntarily report to Intervention Project for Nurses (IPN) in lieu of a complaint filed with the Department, and he agreed to contact IPN. Respondent subsequently elected not to voluntarily participate in IPN because he could not “afford it.” The Department then issued an Order requiring Respondent to undergo an evaluation with Dr. Reeves. Dr. Reeves, a licensed medical doctor in the State of Florida since 1994, has specialized in addiction medicine since 2010. Dr. Reeves is board certified in addiction medicine and a member of several professional organizations for addiction treatment providers. Dr. Reeves serves as the Medical Director for two treatment facilities, South Walton Medical Group and Sacred Heart Hospital of the Emerald Coast. Prior to practicing addiction medicine, he worked as a vascular surgeon. Dr. Reeves has written articles and delivered presentations on the topic of addiction medicine. Dr. Reeves has testified in other legal proceedings within the past 10 years and has never been disqualified as an expert. Dr. Reeves was accepted as an expert on addiction medicine in this matter. Dr. Reeves performed an independent medical examination (IME) of Respondent on January 14, 2021. Dr. Reeves routinely conducts IMEs of health care professionals to determine whether an individual has an issue with addiction or addictive substances, including alcohol. Dr. Reeves follows a process for conducting an IME. He reviews the available records, any medical history, and witness statements. Dr. Reeves then meets with the individual to conduct an in-person evaluation, which includes assessment tests and screening exams. Dr. Reeves testified that he understood that Respondent was referred to him for alleged alcohol intoxication while at work. Dr. Reeves was concerned as alcohol is a depressant and directly affects the judgement and decision-making functions in the brain. Dr. Reeves discussed the events that gave rise to the Department’s complaint and subsequent referral for evaluation. Respondent explained to Dr. Reeves that he began drinking more often while he was quarantined with COVID-19. Respondent told Dr. Reeves that he had increased his drinking from two to three beers a night to three to four beers per night, four to five times per week. Respondent stated that he drank several drinks the night before he returned to work to help him sleep. He did not believe that he drank a lot and was surprised that his test results reflected a significantly elevated alcohol level. He denied being intoxicated at work on July 2, 2020. Respondent completed a questionnaire after he arrived for his evaluation, which Dr. Reeves reviewed with him during the evaluation. Respondent suggested in his questionnaire that perhaps the alcohol level was because he had taken Nyquil4 while driving to work. Respondent later retracted that statement. Regarding assessments, the evaluation included an ethyl glucuronide (ETG) test, which was performed upon Respondent’s arrival to Dr. Reeves office. An ETG test is a urine test that measures the level of ethyl glucuronide in the body. An ETG test would generally yield positive results within two to five days after alcohol is ingested. Respondent’s test was negative. Dr. Reeves testified that the negative test results suggest Respondent had not drank alcohol within the prior three to five days. Dr. Reeves also asked Respondent to undergo a phosphatidylethanol (PEth) test, which tests a blood sample to measure intake of alcohol. The PEth test has a longer timeframe for measurement than the ETG test, as it measures alcohol in the system for up to 14 days after ingestion. To maintain the validity of the test, it must be completed within 48 hours of the request. 4 Dr. Reeves testified that a dose of Nyquil contains approximately the same amount of alcohol as a glass of wine. He estimated that a person would need to consume 10 to 15 doses of Nyquil to achieve a result of .2637 gm/dcl (Respondent’s test results). Respondent did not complete the test within that timeframe. Thus, there were no PEth test results for Dr. Reeves to consider. Dr. Reeves testified that the PEth test was not a necessary factor for diagnosing an alcohol-use disorder, as he had sufficient objective data from his evaluation to make a diagnosis. Expert Opinion Based upon his evaluation, Dr. Reeves diagnosed Respondent with moderate alcohol disorder. Dr. Reeves relied upon the criteria established in the Diagnostic Statistic Manual-5 (DSM-5), which sets out the standard of care for diagnosis of psychiatric disorders. The DSM-5 includes alcohol-use disorder as a psychiatric diagnosis. Dr. Reeves testified that if you meet two or more of 11 alcohol-use disorder criteria used in the DSM-5, the individual meets the criteria for that level of the disorder. Applying objective factors identified during his evaluation of Respondent, Dr. Reeves determined that Respondent met four of the 11 criteria for moderate alcohol-use disorder. Specifically, Dr. Reeves identified the following criteria in making his assessment: Alcohol is often taken in larger amounts or over a longer period than was intended; * * * 5. Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home; * * * 8. Recurring alcohol use in situations in which it is physically hazardous; and * * * 10. Tolerance is defined by (a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect, or (b) a markedly diminished effect with continued use of the same amount of alcohol. Dr. Reeves testified that a nursing professional is considered a safety sensitive occupation, which requires good decision-making ability. Since alcohol significantly impairs judgement and decision-making ability, an individual who is impaired by alcohol is not safe to practice as a nurse. Dr. Reeves credibly opined that Respondent is not safe to practice as a nurse due to his diagnosis of moderate alcohol-use disorder. Dr. Reeves’ opinion is accepted. Dr. Reeves recommended a course of intensive outpatient treatment for a specified period of time. Even if Respondent indicated he stopped drinking, without treatment, Dr. Reeves maintains that Respondent is not safe to practice nursing. Based on his review of the records obtained from DMH, Dr. Reeves concluded that Respondent’s records reflected no symptoms to demonstrate that he suffered from a transient ischemic attack (TIA)5 as Respondent suggested. There was no evidence offered at hearing that Respondent harmed patients while he was impaired. Other than his behavior exhibiting impairment, the testimony overwhelmingly supported that he was considered a good nurse. Ultimate Findings of Fact Petitioner presented clear and convincing evidence to demonstrate that Respondent was impaired while at work on July 2, 2020. 5 A TIA is a temporary period of symptoms similar to a stroke. Petitioner presented clear and convincing evidence to demonstrate that Respondent is unable to practice nursing with reasonable skill and safety to patients due to his moderate alcohol-use disorder and alcohol use.
Conclusions For Petitioner: Ellen LeGendre Carlos, Esquire Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Benjamin Dallas Stoe, pro se 805 Sunday Road Chipley, Florida 32428
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding: Respondent violated section 464.018(1)(j), Florida Statutes (2020); and suspending Respondent’s registered nursing license, until such time that Respondent enters into IPN and complies with any and all terms and conditions imposed by IPN. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Ellen LeGendre Carlos, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 Benjamin Dallas Stoe 805 Sunday Road Chipley, Florida 32428 Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 Deborah McKeen, BS, CD-LPN Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D02 Tallahassee, Florida 32399
The Issue Whether the Board of Medicine should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Josefino P. Bargas holds license No. ME 0029440. He has been a licensed physician in Florida at all pertinent times, engaging in the general practice of medicine in central Florida. Internal Bleeding On October 25, 1984, Dr. Bargas admitted then 67-year old Mr. H.S. to Florida Hospital in Apopka. When the patient reached a medical floor at 3:40 that afternoon, Dr. Bargas assumed responsibility for H.S.'s care, taking over from staff in the emergency room, where H.S. had appeared that morning at 11:25. By 4:30 on the afternoon of October 25, 1984, H.S.'s pulse rate had fallen to 77. In the emergency room, Dr. Murphy had ordered "1,000 cc's of D5, half normal saline started with a 200 angio cath in the right wrist with a three-way stopcock ... [which one of petitioner's experts assumed] was in anticipation of giving him blood." T.102. Emergency room staff carried these orders out. The saline solution (with dextrose) was administered in response to apparent dehydration. An apparatus with a larger bore is ordinarily used for blood transfusions. When he arrived at the hospital, H.S. complained of melena and reported a history of ulcers. He had been taking Tagamet for epigastric pain. His pallor, his pulse rate of 104, his hemoglobin of 11.2 grams per liter and his hematocrit of 34% all pointed to decreased blood volume, reduced hemoglobin, and significant bleeding. Dr. Bargas ordered hemoglobin and hematocrit assessments once daily, and a single prothrombin time test, the results of which demonstrated that H.S.'s blood took longer than normal to clot, possibly a side effect of Tagamet. Nurses' notes reflected that stools H.S. passed after he was admitted contained blood. One was the subject of a laboratory test Dr. Bargas ordered to determine blood content; the result was 4+, the maximum indication. On October 26, 1984, Dr. Bargas wrote, on H.S.'s chart, "Bleeding still present?" Nothing about H.S.'s pulse, respiration, blood pressure nor anything in his demeanor indicated significant additional blood loss, although he complained of dizziness when he stood. The same day Dr. Bargas entered written orders, including "DC IV fluids," which signified, "Discontinue intravenous fluids." At two o'clock on the afternoon on the 26th, a nurse discontinued fluids and removed the apparatus through which they had entered H.S.'s vein. Dr. Bargas did not order another to replace it. Unless otherwise specified, a doctor's orders to discontinue intravenous fluids may be construed as a directive to discontinue intravenous access, which can be a conduit for infection. But Geraldine Petrone, for 13 years Director of Nursing at Williston Memorial Hospital, would not remove intravenous access without inquiry of the physician, if she saw "DC IV fluids" in a patient's chart. By 4:35 on the afternoon of October 26, 1984, the laboratory had reported to the floor that day's test results, including a hemoglobin of 7.2 grams per liter. But this had not been charted when Dr. Bargas made rounds at 85 that evening, and he did not inquire as to the laboratory results. The hospital laboratory is open 24 hours a day on an "on call" basis. Customarily, staff acts affirmatively to bring test results as significant as these to the attention of the treating physician. Before Dr. Bargas' arrival the following morning at 10:30, the nursing staff also learned the October 27 blood test results. Alarmed particularly at one of them, a hemoglobin of 5.5 grams per liter, and unable to reach Dr. Bargas, a conscientious nurse told the chief of staff about the situation. He ordered that four liters of blood be "typed and cross-matched," and that H.S. be given two units of blood. Only after Dr. Bargas arrived, however, did the transfusion begin. The drop in hemoglobin from 11.2 to 5.5 grams per liter reflected a loss of at least half the volume of H.S.'s blood, a "potential crisis situation." T. 87. Because hemoglobin measurements are "always behind in a patient that is bleeding," (T.87) hemoglobin and hematocrit testing only at 24- hour intervals is not adequate. When a patient is bleeding internally, minimum acceptable practice requires monitoring at intervals of "[s]ix hours at the outside, probably four," id., unless significant bleeding is known to have stopped. It would also have been better practice to order blood-typing, cross- matching, and intravenous access as precautionary measures or, as regards access, at least to have held off on ordering discontinuance of the access already in place (notwithstanding its straitness.) If evidence exists that a patient is actively bleeding, cross-matching should be done right away. T. 176. Physicians order blood typed and cross-matched as a precaution, in case an emergency transfusion proves necessary, even though blood that is not used must be wasted. "[P]eople can go into shock at any time." Reddy Deposition, p.11. Typing and cross-matching take about a half hour. Sometimes veins collapse before access is established, making it impossible to accomplish a transfusion, although such venal collapse is extremely rare. Reddy Deposition. Diabetes with Infection On October 26, 1984, Dr. Bargas admitted Mr. A.S., 51 years old at the time and disabled, to Florida Hospital. In the history he took on admission, Dr. Bargas noted that A.S. was taking "NPH insulin 25 units," Petitioner's Exhibit No. 4, twice daily. Although A.S. may have begun this regimen only a week or two before admission, he had taken insulin orally for a period of years, and was "an insulin-dependent diabetic." Londono Deposition, p.14; McClelland Deposition, p.13. "He obviously was a pretty sick type of individual. He was dehydrated. He was febrile. He was nauseous. He was vomiting. And he had what seemed to be a rotten foot." Id., p.11. Septicemia, a blood borne infection apparently attributable to A.S.'s infected, ulcerated right leg, was among A.S.'s medical problems Dr. Bargas recognized on his admission to hospital. "With high blood sugars, there can be problems with white blood cell response to infection." McClelland Deposition, p.9. Insulin makes glucose in the blood available for use by cells, normalizing blood levels. When he entered the hospital, A.S.'s blood sugar level was elevated. Blood sugar levels at "a controlled diabetes level" range between 60 or 70 and 120 or 200 milligrams per milliliter. Londono deposition, p.12. An elevated blood sugar level is not critical or life-threatening in itself, unless it exceeds 500 milligrams per milliliter. Id., pp.11, 12. N.P.H. insulin "lasts" 24 to 36 hours, but regular insulin has a half-life of less than 30 minutes. Blood glucose levels oscillate in response to regular insulin, in no less than two to three hours, and, in response to "long acting insulin anywhere between 8 and 24 hours." Londono Deposition, p.21. On A.S.'s admission, Dr. Bargas ordered urinalysis and a blood sugar test "stat." He prescribed regular insulin, depending on the urinalysis results. Dr. Bargas wrote: Rx urine for sugar & acetone and give regular insulin accordingly 4+ 20 units 3+ 15 2+ 10 1+ 0 Petitioner's Exhibit No. 4, p.123A. Because blood tests for glucose levels are much more precise than urine tests, which only approximate blood glucose levels, Dr. Bargas' prescription for "insulin ... on a sliding scale for urine," Londono Deposition, p.15, left something to be desired. Dr. Bargas ordered urine tests for sugar and acetone four times a day, and blood tests, which are more expensive, once daily. As with A.S., a patient may be unable to void on schedule. Urine collects in the bladder over time; accordingly, urine test results for glucose reflect an average, which may be misleading. The volume of blood moving through the kidney affects the concentration of glucose in the urine. Renal thresholds (the levels at which glucose leaves the blood to enter the urine) vary among individuals. The correlation between glucose levels in blood and urine is particularly problematic when a diabetic is acutely ill. Infection can cause elevated blood glucose levels, and affect kidney function. Test results known to Dr. Bargas indicated A.S. had impaired kidney function. At four o'clock on the afternoon of the 26th, the "clinitest" for sugar in A.S.'s urine yielded a result of "3+." A.S. received 15 units of regular insulin an hour and a half later. A contemporaneous blood test indicated 398 milligrams of glucose per milliliter of blood. At seven o'clock (or half past) on the evening of October 26, 1984, A.S. received a second dose of 15 units of regular insulin. T.48; Petitioner's Exhibit No. 4, p.220. Between six and seven the following morning and again at ten, A.S. was unable to produce a urine specimen. A blood test on a sample taken at ten o'clock indicated 264 milligrams of sugar per milliliter of blood. Tests on urine samples taken later on the 27th, at half past noon, at five o'clock and at seven o'clock yielded "+1." In keeping with Dr. Bargas orders, no insulin was administered to A.S. that day. A blood sample taken at quarter past two on the morning of October 28, 1984, in conformity with Dr. Bargas' order to test "stat.," indicated 399 milligrams of sugar per milliliter of A.S.'s blood. The laboratory apprised Dr. Bargas of these results. At 4:30 on the morning of the 28th, a urine test yielded a "3+." Three hours later A.S. received 15 units of regular insulin, his first insulin in some 36 hours. At no time did test results reflect ketosis. Even for general practitioners in Apopka in 1984, the failure to order more frequent blood sugar tests, and insulin coverage as indicated by such tests, for an insulin-dependent diabetic suffering from septicemia and a foot infection fell below minimum levels of acceptable practice. Dr. Bargas' approach, although once very common, was "antiquated" even than. His use of regular insulin, rather than N.P.H. insulin was appropriate. But allowing 36 hours to elapse between doses of regular insulin, and failing to order insulin promptly on learning the results of the tests the morning of the 28th, fell below standards.
Recommendation It is, accordingly, in consonance with Rule 21M-20.001(t) Florida Administrative Code, RECOMMENDED: That the Board of Medicine suspend Josefino P. Bargas license to practice medicine for sixty (60) days, and thereafter until he has completed at least three (3) days instruction on the management of diabetes, and paid a one thousand dollar ($1,000) fine; and that, once his license is reinstated, he be placed on probation for a year, on condition that a representative of the Board of Medicine review a sample of his charts monthly to determine that they demonstrate that he is practicing at least minimally acceptable medicine. DONE AND ENTERED this 24th day of May, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 8 through 14, 16 through 30, 37, 40, 45, 46, 50, 51, 53 through 57, 63, 65, 69, 73, and 74 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the test were done after admission. With respect to petitioner's proposed finding of fact No. 15, Dr. McBride ordered that two units be administered. Petitioner's proposed findings of fact Nos. 31, 32, 33, 38, 39, 47, 48, 58, 59, 60, 61, 62, 64, 66, 71 and 72 relate to subordinate matters. Petitioner's proposed findings of fact Nos. 34, 35, 36, 41, 42, 43, 44, 49 and 52 accurately recite the substance of the witnesses' testimony they report. With respect to petitioner's proposed finding of fact No. 68 the test results were not charted when he was at the hospital that evening. With response to petitioner's proposed finding of fact No. 70, he testified that he did not even believe he might be bleeding. With response to petitioner's proposed finding of fact No. 75, Dr. Bargas' testimony did raise resal questions of this kind. Respondent's proposed findings of fact Nos. 4, 5, 7, 8, 12, 14, 15, 18, 19, 20 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 1, 3, 6, 11, 16, 17 and 22 have been rejected, as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 2, H.S. was not stabilized and his wishes, which were not proven, are not determinative. With respect to respondent's proposed finding of fact No. 9, clinical observations here included bloody stools and indicated more frequent testing. With respect to respondent's proposed finding of fact No. 13, whatever Dr. Reddy would have done, minimum standards were not met. With respect to respondent's proposed finding of fact No. 21, a preponderance of the evidence established, although not clearly and convincingly, that failure to order more frequent blood test fell below standards. COPIES FURNISHED: Robert L. Hessman Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, P. A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 Stephanie A. Daniel 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Peter Langley, III Post Office Box 486 Bronson, Florida 32621 Dorothy Faircloth, Executive Director Board of Medicine, Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue Whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2000), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes (2003), and Chapters 456 and 458, Florida Statutes (2003). Dr. Dunn was issued license number ME 37819 in 1981 and is board certified in internal medicine and oncology. At all material times to this proceeding, Dr. Dunn was a licensed medical physician in the State of Florida. Prior to this case, Dr. Dunn has never been the subject of disciplinary action regarding his license to practice medicine in Florida. B.P. became Dr. Dunn's patient in 1984, when she was diagnosed with a tumor at the base of her tongue. The tumor was a malignant, large cell lymphoma. Dr. Dunn treated her with radiation and chemotherapy, and the lymphoma disappeared. Dr. Dunn monitored her for seven years, and B.P. did well until 1991, when nodules were discovered on the sides of her neck, underneath her arm, and in her groin area. She was diagnosed with diffuse mixed lymphoma. At the time she was diagnosed with lymphoma, she had asthmatic bronchitis and was under the care of pulmonary physicians. B.P. again received chemotherapy, but the results were not as positive as they were with her earlier bout of lymphoma. She was switched to an oral chemotherapy, which she took until 1993 when she began a remission. Her remission lasted until 1998, when she was diagnosed with lymphoma in her blood and bone marrow. Another course of chemotherapy was begun. However, the chemotherapy did not completely cure the lymphoma, and B.P. had problems with low blood counts and intermittent reappearances of the lymphoma cells in her blood. From 1998 to 2000, B.P. also suffered chronic respiratory problems with asthmatic bronchitis and fibrosis in the lungs. In July 2000, B.P. was diagnosed with proptosis, which meant that her eye was bulging out of the eye socket. The lymphoma had reoccurred, and a mass of lymphoma cells were behind the eye pushing the eyeball forward. Dr. Dunn attempted to treat B.P. with radiation therapy, but B.P. could not complete the radiation therapy because her blood counts were too low, and her bone marrow was malfunctioning. B.P.'s white blood count steadily decreased, and she was not producing red blood cells. On August 17, 2000, Dr. Dunn saw B.P. in his office and ordered a blood transfusion to increase her blood counts. On August 25, 2000, B.P. was hospitalized in Orlando Regional Medical Center (ORMC) for a fever and a low white blood count. She was given antibiotics and blood transfusions. After she was released from the hospital, Dr. Dunn continued to see her in his office to monitor her blood counts. On October 3, 2000, B.P. came to Dr. Dunn's office. She appeared very ill and frail and was confined to a wheelchair. B.P.'s prognosis was very poor. Her breathing was problematic; her bone marrow was overrun with lymphoma; the mass behind her eye was causing the eye to bulge; and she was unable to tolerate either radiation therapy or chemotherapy. There was very little that could be done for B.P.'s condition other than to try measures to keep her comfortable. At the time of the October 3 office visit, B.P.'s blood counts were low. Dr. Dunn ordered a transfusion for B.P. in an attempt to raise her hemoglobin count above ten so that her oxygen-carrying capacity would be optimal. There was little that could be done for the low platelet and white cell counts. The transfusion was to be performed at ORMC, where B.P. had most of her care done. ORMC did not have any beds available so B.P. was sent to Sand Lake Hospital to have the transfusion done on an outpatient basis. When B.P. went to Sand Lake Hospital, an Interdisciplinary Patient Care Flowsheet was completed, indicating that B.P. could communicate pain and that she was not having any pain. Originally it was not anticipated that the transfusion would require an overnight stay. However, because of the hour when the transfusion would be completed, the nurses requested that B.P. be allowed to stay overnight. The transfusion was completed around 1:20 a.m. on October 4, 2000. At approximately 5 a.m., B.P. attempted to go to the bathroom alone and fell. She sustained a bruise to the head approximately five-by-four centimeters in size. There was a reddened area on her left temple and a laceration to the left internal cheek. There were no other external injuries. Ice was applied to B.P.'s head, and her mouth was rinsed with water. At 5:45 a.m., a nurse called Dr. Dunn's answering service to advise of B.P.'s condition and that B.P. had fallen. The evidence does not establish that the answering service called Dr. Dunn at his home. At 8:00 a.m., a nurse called Dr. Dunn's office concerning B.P. Dr. Zehngebot, Dr. Dunn's partner, returned the telephone call. The nurse advised Dr. Zehngebot that B.P. had been found on the floor where she had fallen around 5 a.m. and that B.P. had sustained a quarter-sized bruise to her left forehead. Dr. Zehngebot was told that the patient was not in distress and that she was alert and oriented times three. Dr. Zehngebot ordered a complete blood count (CBC) to determine B.P.'s blood count level. The nurse was told to call Dr. Dunn if the results of the CBC were abnormal. According to Dr. Zehngebot's telephone order, B.P. was to be discharged on that day and was to follow-up with Dr. Dunn in one week. At 8 a.m., another Interdisciplinary Patient Care Flowsheet was completed for B.P. It was noted on the form that B.P. had a purple, quarter-sized bruise on her left forehead and a bruise on her right upper chest area. It was noted that the doctor was aware of these bruises. Based on the timing of the telephone conversation between the nurse and Dr. Zehngebot, the completion of the Interdisciplinary Patient Care Flowsheet and the nurse's notes, it can be inferred that the doctor referenced on the 8 a.m. Interdisciplinary Patient Care Flowsheet as having been advised of the bruises on B.P. was Dr. Zehngebot and not Dr. Dunn. It was also noted on the Interdisciplinary Patient Care Flowsheet completed at 8 a.m. that B.P. was having intermittent headaches. Nothing in the record indicates that either Dr. Zehngebot or Dr. Dunn was ever advised that B.P. was having headaches after her fall. The CBC was done, and the results were abnormal. The white count was 1100 and the platelet count was 6000. The normal platelet count range is from 145,000 to 355,000. A nurse telephoned the results to Dr. Zehngebot at 9:50 a.m. At 10:30 a.m., another call was placed to Dr. Zehngebot to get a response to the lab work which had been performed. A message was left with the doctor's nurse. By 12:30 p.m., the nurse at Sand Lake Hospital had not received a response from either Dr. Zehngebot or Dr. Dunn; thus, another call was placed to Dr. Dunn's office. A message was left with a nurse in Dr. Dunn's office that B.P.'s husband was at the hospital to pick up his wife and that they were still waiting for an answer from the doctor's office. At 2 p.m., Dr. Dunn returned the telephone 12:30 p.m. call from the hospital. He was aware of the laboratory results. Although, the white cell count and the platelet count were similar to what they had been in his office on October 3, the hemoglobin count was up to 10.9; thus, Dr. Dunn felt that the transfusion had accomplished its purpose by raising the hemoglobin count above ten. The nurse gave him a patient status update and advised him that B.P. was alert and oriented times three and that her vital signs were stable. Dr. Dunn was aware at the time of his two o'clock telephone call that B.P. had fallen; however, the record does not clearly establish that Dr. Dunn knew that B.P. had sustained bruises to her head as a result of the fall or that B.P. had headaches after her fall. He did not order a neurological consult nor did he go to the hospital to examine B.P. before he gave the order to discharge B.P. at 2:00 p.m. Normally a physician may not come to the hospital to examine a patient while the patient is at the hospital to receive a transfusion on an out-patient basis. Dr. Dunn did not see B.P. from the time she went to Sand Lake Hospital on October 3, 2000, and the time he discharged her on October 4, 2000. On October 6, 2000, Dr. Dunn received a telephone call from B.P.'s husband, who told Dr. Dunn that B.P. had slipped and fallen on the way to the bathroom and was now having headaches and nausea. Dr. Dunn told the husband to take B.P. to the emergency room at ORMC, called the hospital, and ordered a stat CT scan to be done as soon as B.P. arrived at the hospital. Dr. Dunn went to the hospital to see B.P. B.P. was diagnosed with Traumatic Subdural Hematoma, admitted to ORMC, and referred to a neurosurgeon who, on October 16, 2000, performed an evacuation of the hematoma. B.P. died on October 22, 2000. The Department called Dr. Howard R. Abel as its expert witness. Dr. Abel opined that Dr. Dunn fell below the standard of care because he did not go to the hospital and evaluate B.P., or if Dr. Dunn could not go to the hospital, he did not request a neurological consultation. Dr. Abel's opinion is premised on the assumption that Dr. Dunn was aware that B.P. had sustained head trauma when she fell. Dr. Abel further opined that if Dr. Dunn were not aware that B.P. had suffered a head trauma, Dr. Dunn did not fall below the standard of care by not going to the hospital or ordering a neurological consultation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Philip Herbert Dunn, M.D., did not violate Subsection 458.331(1)(t), Florida Statutes (2000), and dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 20th day of April, 2004. COPIES FURNISHED: Irving Levine, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Michael R. D'Lugo, Esquire Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A. Post Office Box 2753 Orlando, Florida 32802-2753 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 63.8%, with 230 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. The Petitioner also urges that the administration of the exam was unfair and that he had insufficient time to take the morning session of the exam. He suffers from low blood sugar, and during the morning exam session he felt faint. The exam proctor had prohibited all candidates from bringing candy or Cokes into the examination room, and therefore, he had to leave the exam while it was in progress to get a Coca-Cola in order to elevate his blood sugar. He claims he had to walk a very long way to find a Coke machine, and that as a result, he lost significant time from the morning session of the exam. However, unrebutted exam records show that only one candidate was still in the examination room during the last 50 minutes of the morning session, and that candidate was not the Petitioner. Therefore, the Petitioner has not established that he lacked sufficient time to complete the morning session of the exam due to his low blood sugar problems. It is also asserted by the Petitioner that he was given insufficient time to review his examination and to identify problems in the grading of his examination. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session concluded at 1:00 p.m. on that date, but unrebutted records of this review establish that the Petitioner completed his review and left the review room at 12:28 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2798 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 4. Adopted in Finding 5. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
