The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19 day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, an abortion clinic, failed to maintain emergency medications and related supplies in violation of Florida Administrative Code Rule 59A-9.0225(1) and the penalty, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed as an abortion clinic authorized to perform first and second trimester abortions. The facility at issue in this proceeding is located in North Miami Beach, Florida. Ms. Ody conducted an unannounced inspection of the subject facility on April 21, 2011. Ms. Herne was the only other person at the facility during the inspection. Ms. Ody determined that medications inside an orange box located in the subject facility that served as a crash cart included emergency medications that were out-of-date. Those medications were one 500-ml bag of Lactated Ringer's Intravenous Solution (expired April 2009), a one-mg vial of Atropine (expired November 2010), and one 2 percent Llidocaine Hydrochloride injection (expired November 2010). The crash cart belonged to a certified registered nurse anesthetist, who had worked at the facility at one time. That person had not worked at the facility for several years, and had not returned to claim her property. Dr. Rosenthal's efforts to contact that person were unsuccessful. Dr. Rosenthal and Ms. Herne testified, credibly, that they considered the contents of the crash cart to be that of the former employee and they had never used or attempted to use the contents of the crash cart. On April 21, 2011, the facility had no surgical procedures planned, and no patients were present. On September 12, 2011, Ms. Ody and Ms. Render inspected the subject facility. Ms. Herne was the only other person present during the inspection. During the course of their inspection, they found three bottles of antiseptic located inside of a cabinet in the facility's operating room. Each bottle contained the name Humco Strong Iodine. Two of the bottles of iodine expired in August 1995 and the third bottle expired in May 2005. The three bottles of iodine were not used for surgical procedures. The testimony of Ms. Herne and Dr. Rosenthal established that the iodine was used solely to reduce the odor of infectious waste, which was put in a small container in the operating room until it could be transferred to a larger container in an adjacent room. On September 12, 2011, the facility had no surgical procedures planned, and no patients were present. Petitioner failed to prove that the subject facility did not have appropriate emergency medications or supplies on either of the inspection dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the charges against A Medical Office for Women, Incorporated, d/b/a Medical Office for Women set forth in its Administrative Complaint. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2012.
The Issue Whether Respondent, Rick J. Billings, O.D., committed the acts alleged in the Administrative Complaint and, if so, what disciplinary action shall be taken against his license to practice optometry.
Findings Of Fact Petitioner, the Department of Health (Petitioner), is the state agency charged with enforcing the statutes and regulations governing the practice of optometry in the State of Florida. However, at the time the complaints in this cause were filed, this responsibility was assigned to the Agency for Health Care Administration. Respondent, Rick J. Billings, O.D., is, and has been at all times relevant to this proceeding, a licensed optometrist in the State of Florida, having been issued License No. OP 0001816 in 1983. Respondent is a Board-certified optometrist and has practiced in Sarasota, Florida, for 13 years. Patient D.R. first presented to Respondent on August 18, 1992. At the time of the initial visit, Patient D.R., a ninety- year old female, was accompanied by her niece, Phyllis Glass. During that initial visit Respondent performed a pre- operative examination, including a vision test, on Patient D.R. Based on his examination, Respondent diagnosed a cataract in Patient D.R.’s left eye and recommended surgical removal of the cataract by Harry B. Grabow, M.D. Notwithstanding this recommendation, Patient D.R. was free to return to her former ophthalmologist had she chosen to do so. Dr. Grabow is an ophthalmic surgeon, Board-certified in ophthalmology in the State of Florida and by the American Board of Eye Surgery. Dr. Grabow has been in private practice in Sarasota, Florida, for 20 years and his medical practice is known as the Sarasota Cataract Institute. Patient D.R. was first seen by Dr. Grabow on September 2, 1992, and again for a pre-operative visit on September 18, 1992. Dr. Grabow performed surgery for the cataract of Patient D.R.’s left eye on September 22, 1992. During his treatment of Patient D.R., Dr. Grabow provided her with written instructions regarding pre-operative and post-operative care and activity, and with medications or prescriptions and written instructions for their use. These printed instructions had been previously discussed with Respondent. Dr. Grabow saw Patient D.R. post-operatively on the first post-operative day, September 23, 1992, and then discharged her to return to the care of Respondent. Thereafter, Respondent assumed responsibility for Patient D.R.'s care. On October 5, 1992, Patient D.R. presented to Respondent for a post-operative visit. At that time, Respondent conducted a problem-specific post-operative examination of Patient D.R. The examination included tests for visual acuities, far and near, corrected and uncorrected, to assess the patient's need for glasses; keratometry; refraction assessment; external examination; slit-lamp pupillary examination; test of macular regions; and bio-microscopy. Respondent was unable to perform a tonometry because Patient D.R. refused. The results of the October 5, 1992, post-operative examination of Patient D.R. were recorded on a form provided by Dr. Grabow; supplied all the information about Patient D.R. that Dr. Grabow needed; and was completed by Respondent in a format that was useful to Dr. Grabow. During the October 5, 1992, office visit, Respondent scheduled Patient D.R. for a re-check in four weeks. However, the patient cancelled her appointment. Thereafter, someone from Respondent’s office called Patient D.R. to make an additional follow-up appointment, but the patient refused, believing that a follow-up visit was unnecessary. Respondent kept the required written optometric records regarding Patient D.R. and otherwise met the applicable standard of care. The written optometric records made and maintained by Respondent were such that a similarly trained optometrist could have treated Patient D.R. after review of her record. The tests performed by Respondent on Patient D.R. during her October 5, 1992, visit were appropriate in a post- operative co-management situation. Likewise, Respondent properly recorded the examinations and the results thereof. During Patient D.R.’s post-operative visit, Respondent did not list medications or re-instruct Patient D.R. regarding medication use. Because Respondent made no changes in the post- operative medication or instructions given by Dr. Grabow, it was unnecessary for Respondent to make notations concerning them. Respondent would have made such notations only if he were changing the previously issued instructions or writing a new prescription. Respondent did not record any information relative to patient education because verbal and written instructions concerning eye care had been provided to Patient D.R. by Dr. Grabow. Furthermore, it was unnecessary for Respondent to repeat or elaborate on those instructions, absent a change or an indication that the patient did not understand the instructions. In this case, there was neither a change in Dr. Grabow’s instructions nor any indication that Patient D.R, did not understand those instructions. On or about October 8, 1992, Dr. Grabow received from Respondent the post-operative co-management information regarding Patient D.R. The information on Patient D.R. that Respondent provided was what Dr. Grabow expected and needed. Similarly, Dr. Grabow determined that the tests performed by Respondent on Patient D.R. during her post-operative visit were adequate for his purposes and met the standard of care for optometrists as well as opthalmologists. On November 26, 1991, prior to seeing Patient D.R., Respondent entered into a Supervised Co-Management Agreement (Agreement) with Dr. Grabow and Sarasota Cataract Institute. Prior to entering into the Agreement, Dr. Grabow and the Sarasota Cataract Institute determined that Respondent was capable of competent post-operative co-management of cataract patients. Moreover, it was determined that Respondent’s post- operative care record met the standard of care for an optometrist in that community. Pursuant to the Agreement, Respondent was permitted to participate in the post-operative care of cataract patients. However, the ultimate responsibility for the care of the co-managed patient remained Dr. Grabow's, as the operating and supervising surgeon. It is Dr. Grabow's custom and standard practice to see his post-operative cataract patient only once. Because patient needs may vary, Dr. Grabow’s practice is to leave the frequency and duration of post-operative examinations to the discretion of the co-managing optometrist who assumes responsibility for the patient. Since entering into the Agreement with Respondent, Dr. Grabow has been satisfied with the care that Respondent rendered to patients which they co-manage, including Patient D.R. In all cases, Dr. Grabow has always provided whatever supervision was necessary, although no such supervision was required during the course of Patient D.R.'s post-operative care. There is no defined standard of care in the statutes or the Board's rules that apply to co-management of post- operative cataract patients. The standards are left to the discretion of the co-managing physicians. Here, the protocol crafted by Dr. Grabow and Respondent became the standard of care, and the post-operative care of Patient D.R. met the applicable standard of care as well as the expectations of Dr. Grabow. The eye examinations required of an optometrist in a post-operative co-management situation are left up to the professional judgment of the doctor or doctors involved, and depending on the type of cataract surgery, the techniques used by the surgeon and the agreement between the co-managing physicians. Respondent performed an examination consistent with that judgment. At all times material hereto, there were no published requirements that specified or enumerated the examinations that should be performed on post-surgery cataract patients. However, with regard to the examinations performed on Patient D.R. during her post-operative care visit, Respondent provided care within the applicable community standard. Respondent's notations of the results of the examinations are consistent with the standard of care. There are no statutes, rules, or guidelines requiring an optometrist to provide patients with instructions regarding their medication or to record a rescheduled visit in the patient's medical record. In this case, based on the Agreement and his previous discussions with Dr. Grabow, Respondent knew what medications and instructions Patient D.R. had been given by Dr. Grabow. In this regard, Respondent met the standard of care. At all times relevant to this proceeding, Medicare permitted a global fee for cataract surgery, which was allowed to be divided in co-management care between an ophthalmologist and optometrist. Under the Medicare-prescribed fee schedule, optometrists who provided post-operative care were able to collect 20% of the global fee; and the operating and supervising physician could receive 80% of the global fee. The division of the global fee between Dr. Grabow and Respondent in Patient D.R.'s case was in compliance with Medicare regulations. Pursuant to 1992 Medicare rules related to billing, the doctor who assumed care in the post-operative period and received the permitted 20% of the global fee was responsible for the care of the cataract patient for up to 90 days after the patient’s first post-operative visit to that physician. After he had seen the patient for one post-operative visit, the doctor was allowed to bill for this twenty percent. No specific number of visits was required in order to bill for 20% of the global fee. However, Medicare did require that the co-managing optometrist assume responsibility for the post-operative care of the patient for the ninety-day period. In 1992, Respondent charged $220.00 for post- operative care for cataract patients. These charges included seeing the patient a minimum of one time after the surgery and being available for a ninety-day period thereafter. Consistent with this fee schedule, Patient D.R. as Medicare patient, was charged and paid a co-payment or estimated deductible of $44.00. Respondent's billing service then, billed the difference, $176.00 to Medicare. This post-cataract surgery care bill submitted to Medicare by Respondent was proper as to the amount claimed for the services provided. With respect to the type of claim that was being filed, however, Respondent's billing service mistakenly filed the claim for Patient D.R.’s post-operative case as an unassigned claim. As a result of the claim being incorrectly designated as an unassigned claim, Medicaid sent 80% of the Medicare approved amount for the post-operative services, $174.86, to Patient D.R. In late January 1993, Patient D.R.’s niece received a call from a member of Respondent’s office staff concerning the $174.86 check. During the conversation, Ms. Glass was told that the charge for post-operative services was $220.00 and that the $174.86 check had been sent to Patient D.R. in error. Subsequently, Ms. Glass telephoned Respondent to discuss the matter. Respondent explained to Ms. Glass that the check $174.86 represented his portion of the total charge for post- operative cataract services. Respondent further explained that this amount included his being available to Patient D.R. for ninety days from October 5, 1992, the date of her post-operative visit to Respondent's office. Respondent's representations and those of his staff were substantiated in the Explanation of Medicare Benefits Statement (Explanation) sent to Patient D.R. According to the Explanation, which was dated November 9, 1992, Respondent’s charge for “care after [cataract] operation" was $220, but the Medicare approved amount for these services was $218.57. After deducting the 20% co-payment amount paid by Patient D.R. to Respondent, the Medicare approved payment for post-operative care was determined to be $176.86. The Explanation noted that because the provider did not accept assignment, Patient D.R. would receive this payment. After receiving the Explanation and communicating with Respondent's office and billing service, Patient D.R. and her family incorrectly assumed that Respondent’s bill for Patient D.R.'s post-operative care was fraudulent. Ms. Glass did not believe that Respondent performed post-operative services for her aunt, and apparently misunderstood or was unaware of the co- management agreement between Dr. Grabow and Respondent. In fact, Ms. Glass and/or her husband were so concerned about Respondent's bill that they wrote letters of complaint to various governmental agencies “alerting them to the fact that we [feel] that there was a miscarriage of justice.” Respondent’s billing records related to Patient D.R.’s post-operative care were reviewed by experts in the area of Medicare and the Medicare Fraud Branch Operations. These reviews failed to disclose any indication that Respondent was guilty of fraud, deceit, negligence or incompetence, or misconduct in the practice of optometry. Similarly, there was no finding that Respondent improperly billed Medicare for services provided to Patient D.R. The Medicare check in the amount of $176.86 for post- operative services Respondent provided to Patient D.R. was never forwarded to Respondent nor did he ever receive payment for these services. In 1992, a co-management situation such as occurred in this case was not deemed to be an improper fee division or receiving a fee for a referral. The arrangement was legal, and pursuant thereto, it was appropriate for the optometrist and the ophthalmologist to both receive payment from Medicare for the services they performed. There was nothing found in review of Patient D.R.'s record to indicate an unlawful kickback in cash or in kind nor a violation of Section 455.657, Florida Statutes. Except for the complaints arising out of the Respondent's treatment of Patient D.R., Respondent has not been the subject of any other disciplinary action by the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint against the Respondent, Rick J. Billings, O.D. DONE AND ENTERED this 24th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 A. S. Weekley, Jr., M.D., Esquire Holland & Knight LLP 510 Vonderburg Drive Suite 3005 Brandon, Florida 33511 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
The Issue Whether disciplinary action should be taken against Respondent's license as a veterinarian based on alleged violations of Section 474.214, Florida Statutes (1997), as charged in the Administrative Complaints filed against Respondent in this proceeding. Count I of the Administrative Complaint in Case No. 00-2357 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances. Count II of the Administrative Complaint charged Respondent with a violation of Section 474.214(1)(ee), Florida Statutes (1997): failing to keep contemporaneously written medical records as prescribed by Rule 61G18-18.002(3), Florida Administrative Code. The Administrative Complaint in Case No. 00-2358 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material, Respondent was a licensed veterinarian, having been issued license number VM 0003822. Facts relating to Case No. 00-2357 On or about March 5, 1998, Respondent performed a spay on "Midnight," a dog owned by Maryjane Greene and her husband. On or about March 8, 1998, "Midnight" expired at the Greene's home. When Mrs. Greene dropped off "Midnight," she was not sufficiently informed by Respondent about her option to have a pre-anesthesia lab work-up performed. There is no indication of an offer to perform a pre- anesthesia lab work-up, nor an indication that Mr. or Mrs. Greene declined such an offer, nor a consent form declining such a work-up, noted in the medical records kept by Respondent for "Midnight." It is a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the spay of "Midnight" included Xylzine (a.k.a. Rompun) a drug with a profound and potentially deleterious effect on the heart which may cause a first degree or second degree heart block. The anesthetic protocol used by Respondent during the spay of "Midnight" also included Ketamine, which is not approved for use in dogs. When used as an anesthetic protocol, it is considered an extra-label use of the drug. An extra-label use of a drug means that there have been no safety studies completed, and it cannot be adequately predicted what effects the medication will have on an animal on a consistent basis. There is no indication in Respondent's records for "Midnight" that Mrs. Greene was informed regarding the use of Ketamine in her dog's procedure. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug and not to have the client sign a consent form. Xylazine and Ketamine are both cardiac depressants. When used in combination they each make the other more of a cardiac depressant, thus requiring the administration of another drug, such as Atropine, to minimize the cardiac depressant effect. There is no indication in Respondent's medical records for "Midnight" that Atropine or any other drug was administered, other that the Xylazine and Ketamine. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xylazine and Ketamine was a deviation from the standard of care. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xyalzine and Ketamine played a substantial role in "Midnight's" demise. Upon picking up "Midnight," Mrs. Greene was given limited post-operative instructions. She was told not to give "Midnight" water until he could walk a straight line; not to give food until he could hold water down; only leash walks for 10 days; and no baths for 7-10 days. Respondent's post-operative discharge instructions given to Mrs. Greene did not comply with the standard of care in veterinary medicine. Facts relating to Case No. 00-2358 On or about August 25, 1998, Respondent performed surgery to remove a mass from the perineal area of "Snoopy," a nine-year-old obese Beagle belonging to Juan Ferras. There is no indication in Respondent's records for "Snoopy" that the surgery was performed due to an emergency, although the credible testimony indicated that it was an emergency. Given "Snoopy's" age (nine years) and weight (60 lbs.), it would be in the dog's best interest to perform a pre- anesthesia lab work-up, or to at least offer one to the owner. Respondent did not indicate in his medical records that he offered to perform a pre-anesthesia lab work-up on "Snoopy." In view of the emergency nature of the surgery, it was not a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the procedure on "Snoopy" included Ketamine, which is not approved for use in dogs. When used, it is considered an extra-label use of the drug. Ketamine should be used with extreme caution in dogs for which the veterinarian is unaware of the renal function or the liver function of the dog. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug, and not to have the client sign a consent form. There is no indication in Respondent's records for "Snoopy" that Juan Ferras was informed regarding the use of Ketamine in his dog's procedure. Upon picking up "Snoopy," Mr. Ferras was given limited post-operative instructions. Respondent's failure to give specific post-operative discharge instructions to Mr. Ferras constituted a deviation from the standard of care. After discharge, "Snoopy" began vomiting and was readmitted to Respondent's facility on or about August 27, 1998. On or about August 28, 1998, "Snoopy" expired at Respondent's facility. There is no indication in Respondent's records on "Snoopy" that upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, Juan Ferras refused to pay or was only willing to pay a small portion of any treatment rendered to "Snoopy." Because of this finding it is unnecessary to address whether refusal to pay a fee is an appropriate defense by Respondent. Upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, "Snoopy" was determined to be approximately 11 percent dehydrated and in a state of shock. In order to correct the dehydration and maintain "Snoopy," it would have been required to administer approximately 4300-4400 ccs of fluid. Respondent's records indicate that only 800 ccs of fluids were administered to "Snoopy." This left "Snoopy" with a tremendous deficit of fluids. Respondent's explanation as to the reason for the small amount of fluid shown on "Snoopy's" chart is not credible. Respondent's failure to administer the correct amount of fluids constitutes a deviation from the standard of care. Upon readmission to Respondent's clinic, Respondnet did not draw blood or perform any type of bloodwork on "Snoopy." Respondent's failure to draw blood or perform any type of bloodwork on "Snoopy" after being readmitted for dehydration and vomiting and shock constitutes a deviation from the standard of care. The fluids which were administered to "Snoopy" were administered sub-cutaneously. The failure to insert an IV catheter to administer the fluids, rather than administering them sub-cutaneously, constitutes a deviation from the standard of care. One way of re-hydrating a dehydrated patient is by weighing the dog and then adding enough fluids to get the patient to its normal weight. There is no indication in Respondent's records that "Snoopy" was weighed at the end of the day on or about August 27, 1998, or that "Snoopy" weighed approximately 60 pounds late in the day on or about August 27, 1998. Respondent's records for "Snoopy" contain a notation at 10:00 p.m. August 27, 1998, of "ADR" which means "ain't doing right." A patient whose records indicate "ADR" should be continuously monitored or transferred to an emergency facility. "Snoopy" was not monitored overnight and through the early hours of the next morning. Had Respondent taken appropriate steps with regards to fluid resuscitation upon "Snoopy's" readmission to Respondent's facility, "Snoopy's" chance of survival would have been much higher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be render by the Board of Veterinary Medicine, as follows: Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statutes (1997), as alleged in Count I of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case NO. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(ee), Florida Statutes (1997), as alleged in Count II of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case No. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statues (1997), as alleged in the Administrative Complaint for DOAH Case No. 00-2358 (DBPR Case No. 98-21230). In light of these findings of guilt and aggravating circumstances, the following penalties are recommended: A thirty-day suspension of licensure. An administrative fine in the amount of four-thousand dollars ($4000.00). Assessing costs of investigation and prosecution, in the amount of $973.24 for Case No. 00-2357 and $684.29 for Case No. 00-2358. Five years of monitored probation upon such terms and conditions as the Board finds necessary and reasonable. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of December, 2000. COPIES FURNISHED: Walter H. Dornbusch, D.V.M. 1117 Malabar Road, Northeast Palm Bay, Florida 32907 Robert H. Hosay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sherry Landrum, Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are set forth in 11 separate counts within the four consolidated cases: Case No. 09-5360 Count I--Whether Respondent failed to properly monitor and care for a patient in restraints. Count II--Whether Respondent failed to ensure the physician's plan of care for patient was implemented. Case No. 09-5363 Count I--Whether Respondent failed to properly implement the physician's plan of care for patient. Case No. 09-5364 Count I--Whether Respondent failed to ensure a patients' right to privacy. Count II--Whether Respondent failed to ensure that food was served in the prescribed safe temperature zone. Count III--Whether Respondent failed to ensure that only authorized personnel had access to locked areas where medications were stored. Count IV--Whether Respondent failed to perform proper nursing assessments of a patient. Count V--Dismissed. Count VI--Whether Respondent failed to maintain patient care equipment in a safe operating condition. Case No. 09-5365 Count I--Whether Respondent failed to triage a patient with stroke-like symptoms in a timely fashion. Count II--Whether Respondent's nursing staff failed to assess and intervene for patients or ensure implementation of the physician's plan of care.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, monitoring health care facilities in the state to ensure compliance with all governing statutes, rules and regulations. It is the responsibility of AHCA to regularly inspect facilities upon unannounced visits. Often AHCA will inspect facilities for the purpose of licensure renewal, certification, or in conjunction with federal surveys. AHCA will also inspect facilities on the basis of complaints filed by members of the general public. Respondent, Gulf Coast Medical Center ("Gulf Coast" or "GCH") is a hospital within the Lee Memorial Health System. South West Florida Regional Medical Center ("SWF") was another hospital within the Lee Memorial Health System. SWF closed in March 2009, when it was consolidated with Gulf Coast. On October 15, 2008, the Agency conducted a complaint investigation at SWF; a follow-up complaint investigation was done on November 13, 2008. SWF filed and implemented a plan of correction for the issues raised in each of the investigations. The November investigation resulted in an Administrative Complaint containing two counts. On December 16, 2008, AHCA performed another complaint investigation at Gulf Coast. Gulf Coast filed and implemented a plan of correction for the issues raised in the investigation. The investigation resulted in an Administrative Complaint containing one count. On January 5 through 9, 2009, AHCA conducted a routine licensure survey at Gulf Coast. The hospital filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing six counts (although Count V was dismissed during the course of the final hearing). On February 18, 2009, AHCA did its follow-up survey to the previous licensure survey. Gulf Coast filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing two counts. Case 09-5360 The complaint investigation at SWF on November 13, 2008, was conducted under the supervision of Charlene Fisher. Count I in this case addresses findings by the Agency concerning a patient who was placed in restraints at the hospital on August 28, 2008. The patient, A.D., came into the hospital emergency department under the Baker Act seeking medical clearance to a facility. The patient presented at approximately 4:00 p.m., with back pain. He had a history of drug abuse, so there was concern by the hospital regarding the use of narcotics or certain other medications to treat the patient. The patient engaged in some scuffling with police. A physician signed and dated a four-point restraint (one on each limb) order, resulting in the patient being physically restrained. The restraint was deemed a medical/surgical restraint, rather than a behavioral restraint. AHCA had concerns about the restraint, specifically whether there was a notation for Q 15 (or every 15 minutes) monitoring of the restrained patient. However, medical/surgical restraints only require monitoring every two hours. The restraint worksheet for the patient confirms monitoring every two hours. The patient was ultimately admitted to the hospital at 9:37 p.m., and, thereafter, began complaining of left shoulder pain. The hospital responded to the patient's complaints about back pain and began treating the pain with analgesics. However, the patient continued to complain about the pain. An X-ray of the patient's shoulder was finally done the next morning. Shoulder dislocation was confirmed by the X-ray, and the hospital (four hours later) began a more substantive regimen of treatment for pain. Surgery occurred the following morning, and the shoulder problem was resolved. It is clear the patient had a shoulder injury, but it is unclear as to when that injury became more painful than the back injury with which the patient had initially presented. The evidence is unclear whether or when the shoulder injury became obvious to hospital staff. During its course of treating this patient, the hospital provided Motrin, Tylenol, Morphine, Percocet and other medications to treat the patient's pain. Count II in this case also involved a restrained patient, M.D., who had presented to the emergency department under the Baker Act. The patient was released from handcuffs upon arrival at the hospital. After subsequently fighting with a deputy, this patient was also placed in a medical/surgical restraint pursuant to a physician's order. The doctor signed and dated, but did not put a time on, the restraint order. A time is important because there are monitoring requirements for patients in restraints. However, the time of 0050 (12:50 a.m.) appears on the patient's chart and is the approximate time the restraints were initiated. The proper procedure is to monitor a restrained patient every two hours. This patient, however, was removed from his restraints prior to the end of the first two-hour period. Thus, there are no records of monitoring for the patient (nor would any be necessary). The evidence presented by AHCA was insufficient to establish definitively whether the hospital nursing staff failed to properly respond to the aforementioned patients' needs. It is clear the patients could have received more care, but there is not enough evidence to prove the care provided was inadequate. Case No. 09-5363 On December 16, 2008, AHCA conducted a complaint investigation at SWF. The Agency had received a complaint that the hospital did not properly implement a physician's plan of care. Count I in this complaint addresses alleged errors relating to two of four patients reviewed by the surveyors. Both of the patients came to the hospital from a nursing home. One patient, I.A., had presented to the emergency department complaining of chest pains. The medication list sent to the hospital by the nursing home for I.A. actually belonged to someone other than I.A. I.A.'s name was not on the medication list. The drugs listed on the patient chart were different than the drugs I.A. had been taking at the skilled nursing facility from which she came. The skilled nursing facility actually sent I.A.'s roommate's medication list. The erroneous medications were then ordered by the admitting physician and administered to the patient. The hospital is supposed to review the medication list it receives and then enter the medications into the hospital system. The person reviewing the medication list does not necessarily have to be a nurse, and there is no evidence that the person making the error in this case was a nurse or was some other employee. It is clear, however, that the person reviewing the medication list did not properly ascertain that the list belonged to patient I.A. The other patient from the nursing home had been admitted for surgery at SWF. Again, the nursing home from whence she came sent a medication list that was incorrect. The medications on the incorrect list were entered into the system by a SWF employee. The erroneous medications were ultimately ordered by the attending physician for the patient, but there is no evidence the patient was ever administered those medications. Neither of the residents was harmed by the incorrect medications as far as could be determined. Case 09-5364 From January 5 through 8, 2009, AHCA conducted a licensure survey at Gulf Coast and SWF in conjunction with a federal certification survey. Count I of the complaint resulting from this survey addressed the right of privacy for two residents. In one instance, a patient was observed in her bed with her breasts exposed to plain view. In the other instance, a patient's personal records were found in a "public" place, i.e., hanging on the rail of a hallway in the hospital. AHCA's surveyor, Nancy Furdell, saw a female patient who was apparently asleep lying in her bed. The patient's breasts were exposed as she slept. Furdell observed this fact at approximately 1:15 p.m., on January 7, 2009. Furdell did not see a Posey vest on the patient. She did not know if anyone else saw the exposed breasts. Furdell continued with her survey duties, and at approximately 5:00 p.m., notified a staff member as to what she had seen. Furdell did not attempt to cover the patient or wake the patient to tell her to cover up. The female patient with exposed breasts was in the intensive care unit (ICU) of the hospital. Visiting hours in ICU at that time were 10:00 to 10:30 a.m., and again from 2:00 till 2:30 p.m. Thus, at the time Furdell was present, no outside visitors would have been in the ICU. ICU patients are checked on by nursing staff every half-hour to an hour, depending on their needs. This particular patient would be visited more frequently due to her medical condition. On the day in question, the patient was supposed to be wearing a Posey vest in an effort to stop the patient from removing her tubing. The patient had been agitated and very restless earlier, necessitating the Posey vest. Also on January 7, 2009, a surveyor observed some "papers" rolled up and stuffed inside a hand-rail in the hospital corridor. This occurred at 1:15 p.m., on the fourth floor of the south wing of the hospital. A review of the papers revealed them to be patient records for a patient on that floor. The surveyor could not state at final hearing whether there were hospital personnel in the vicinity of the handrail where she found the patient records, nor could she say how long the patient records had been in the handrail. Rather, the evidence is simply that the records were seen in the handrail and were not in anyone's possession at that moment in time. Count II of the complaint was concerned with the temperature of certain foods being prepared for distribution to patients. Foods for patients are supposed to be kept at certain required temperatures. There is a "danger zone" for foods which starts at 40 degrees Fahrenheit and ends at 141 degrees Fahrenheit. Temperature, along with time, food and environment, is an important factor in preventing contamination of food and the development of bacteria. Surveyor Mary Ruth Pinto took part in the survey. As part of her duties, she asked hospital staff to measure the temperature of foods on the serving line. She found some peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice at 66 degrees Fahrenheit. According to Pinto, the hospital's refrigerator temperatures were appropriate, so it was only food out on the line that was at issue. Pinto remembers talking to the hospital dietary manager and remembers the dietary manager agreeing to destroy the aforementioned food items. The hospital policies and procedures in place on the date of the survey were consistent with the U.S. Food and Drug Administration Food Code concerning the storage, handling and serving of food. The policies acknowledge the danger zone for foods, but allow foods to stay within the danger zone for up to four hours. In the case of the peaches and yogurt, neither had been in the danger zone for very long (not more than two hours). The cranberry juice was "shelf stable," meaning that it could be stored at room temperature. The food services director for the hospital remembers the peaches and yogurt being re-chilled in a chill blaster. She does not believe any of the food was destroyed. Count III of the complaint addressed whether an unauthorized person had access to a room where medications were being stored. A state surveyor, Gary Furdell, was part of the survey team on January 5, 2009. Furdell was touring the second floor of the hospital when he noticed a locked door. Furdell asked a hospital medical technician who was standing nearby about the door. The medical technician gave Furdell the code to unlock the door. Furdell peeked inside and noticed bottles that he presumed were medications. It would be a violation for a medical technician to have access to medications, because medical technicians cannot distribute drugs. The room Furdell looked into is a "mixed use" room located behind a nursing station. A mixed use room is used to store medical supplies, including medications, as long as there is a locked cabinet in the room for that purpose. This particular mixed use room had a locked cabinet. The room is used for the preparation of medications and for other purposes. No narcotics were stored in this particular mixed use room. The room contained locked cabinets used to store other medications. The evidence presented was insufficient to determine what "medications" Furdell may have seen in the room. Count IV of the complaint concerned the nursing assessment of a patient, and whether the assessment was properly and timely performed. A patient, M.S., had been admitted to the hospital on June 18, 2008, for lung surgery. Following the surgery, Amiodarone (a very toxic drug which can cause clots and other complications) was administered to treat M.S. for heart arrhythmia. The Amiodarone was administered intravenously and M.S. developed blisters and irritation at the intravenous site. That is not an uncommon complication with Amiodarone. M.S.'s attending physician was notified about the irritation and prescribed a treatment. He also ordered a consult with an infectious disease specialist who ultimately changed M.S.'s antibiotics. Although M.S. was seen daily by her physicians, the nursing notes do not reflect the assessment and treatment of her blisters. It appears that proper care was rendered, but the care was not documented properly. Another patient was admitted to the hospital on December 15, 2008, with End Stage Renal Disease and diabetes mellitus for which she began dialysis treatment. The patient was not weighed before and after a particular dialysis treatment on January 5, 2009. However, the patient had been moved to an air mattress bed on that date for comfort. The air mattress bed did not allow for a weight to be taken as it could be on a regular bed. There is an allegation in the Administrative Complaint concerning the discontinuation of the calorie count for a patient. This issue was not discussed in AHCA's Proposed Recommended Order, nor was sufficient evidence of any wrong- doing concerning this matter presented at final hearing. During the survey, the hospital was found to be storing the medication Mannitol in blanket warmers, rather than in warmers specifically designed for the drug. The blanket warmers maintained the Mannitol at 100-to-110 degrees Fahrenheit. The manufacturer's label on the drug calls for it to be dispensed (injected) at between 86 and 98.5 degrees Fahrenheit. In order to meet this requirement, the hospital takes the drug out of the blanket warmer in time for it to cool sufficiently before it is injected. There is nothing inherently wrong with using a blanket warmer to store Mannitol. On January 5, 2009, a surveyor found two vials of Thrombin, one vial of half-percent Lidocaine and Epi, and one vial of Bacitracin in operating room No. 4. The operating room is within the secured and locked suite of surgical rooms on the second floor. Two of the vials had syringes stuck in them and one of them was spiked. Whoever had mixed the medications was not attending to them at the time the surveyor made her observation. There were two unlicensed technicians in the room preparing for the next surgery. A registered nurse anesthetist was present as well. There was no identifying patient information on the medications. The hospital's policies and procedures do not require the patient's name to be on the label of medications prepared for impending surgery. That is because the procedures for the operating room include a process for ensuring that only the correct patient can be in the designated operating room. There is a fail-safe process for ensuring that only the proper patient can receive the medications that are set out. At around 2:45 p.m. on January 5, 2009, there were patient records in the emergency department showing that several drugs had been administered to a patient. The surveyor did not see a written order signed by a physician authorizing the drugs. When the surveyor returned the next morning, the order had been signed by the physician. The hospital policy is that such orders may be carried out in the emergency department without a doctor's signature, but that a physician must sign the order before the end of their shift. AHCA cannot say whether the physician signed the order at the end of his shift or early the next day. Count V of the complaint was voluntarily dismissed by the Agency. Count VI of the complaint concerned the status of certain patient care equipment, and whether such equipment was being maintained in a safe operating condition. A patient was weighed at the hospital upon admission on December 27, 2008, and found to weigh 130 pounds using a bed scale. Six days later, on January 2, 2009, the patient's weight was recorded as 134 pounds. Two days later, in the same unit, the patient weighed 147 pounds and the next day was recorded as weighing 166 pounds. During the survey process, the patient was weighed and recorded at 123 pounds on a chair scale. The hospital does not dispute the weights which were recorded, but suggests there are many factors other than calibration of the equipment that could explain the discrepant weights. For example, the AHCA surveyor could not say whether the patient sometimes had necessary medical equipment on his bed while being weighed, whether different beds were involved, or whether any other factors existed. AHCA relies solely on the weight records of this single patient to conclude that the hospital scales were inaccurate. Case No. 09-5365 On February 18, 2009, AHCA conducted a licensure survey at Gulf Coast. Count I of the complaint from this survey concerned the timeliness of triage for a patient who presented at the hospital emergency department with stroke-like symptoms. AHCA surveyors witnessed two patients on stretchers in the ambulance entrance hallway leading to the emergency department. Each of the two patients had been brought in by a separate emergency medical service (EMS) team and was awaiting triage. One patient was taken to an emergency department room (ER room) 50 minutes after his/her arrival at the hospital. The other patient waited 45 minutes after arrival before being admitted to an ER room. Meanwhile, a third patient arrived at 2:20 p.m., and was awaiting triage 25 minutes later. During their observation, the surveyors saw several nursing staff in the desk area of the emergency department, i.e., they did not appear to be performing triage duties. The emergency department on that date was quite busy. That is not unusual during February, as census tends to rise during the winter months due to the influx of seasonal residents. A summary of the action within the emergency department from 1:00 p.m. to 3:00 p.m., on the day of the survey shows the following: Patient L.G., 74 years old with stable vital signs, was radioed in by her EMS team at 1:08; L.G. was processed into the ER at 1:21 (which is not an unreasonable time; EMS teams call in when they arrive at or near the hospital. By the time they gain access, wait their turn if multiple ambulances are present, and get the patient inside, several minutes may lapse). L.G. was stabilized and quickly reviewed by ER staff, then officially triaged at 2:04. Patient H.M., an 89-year-old male residing in a nursing home, arrived at 1:20 and was processed in at 1:59. He was triaged at 2:01, but ultimately signed out of the hospital against medical advice. Patient E.M. arrived at 2:18 and was processed at 2:25. Triage occurred one minute later. This patient presented as a stroke alert, and hospital protocol for that type patient was followed. Patient C.J. arrived at 1:08 and was processed at 2:38. Triage occurred immediately after C.J. was processed. This patient was not stroke alert, but had some stroke-like symptoms.1 C.J. had not been transported to the hospital as emergent, because the symptoms had been going on for 24 hours. Patient W.M., an auto accident victim, arrived at 1:40 and was processed at 1:49. Triage occurred within six minutes. Patient M.M., W.M.'s wife (who had been with M.M. in the automobile accident, but was placed in a separate ambulance), arrived at 2:06 and was triaged at 2:34. There is no record of when M.M. was processed. Patient L.M. came to the hospital from a nursing home. She arrived at 1:43 and was processed at 2:35. L.M. was triaged at 2:37. Patient K.M. arrived at 2:45 and was processed within three minutes. Triage occurred at 2:52. Her triage was done very quickly due to the condition in which she arrived, i.e., shortness of breath and low oxygen saturation. Patient R.S. arrived at 1:00 and was triaged at 1:15. The aforementioned patients represent the patients presenting to the emergency department by ambulance during a two-hour period on a very busy day. It is the customary procedure for ER staff to make a quick visual review (rapid triage) of patients as they come into the hospital. Those with obvious distress or life-threatening conditions are officially triaged first. Others, as long as they are stable, are allowed to wait until staff is available for them. As part of their duties, nurses necessarily have to be in the desk area (nursing station) in order to field phone calls from physicians concerning treatment of the patients who present. It is not unusual or improper for nurses to be in the nursing station while residents are waiting in the processing area. It is clear that some patients waited a much longer time for triage than others. However, without a complete record of all patients who presented that day and a complete review of each of their conditions, it is impossible to say whether the hospital was dilatory in triaging any of them. Count II of the complaint addressed the nursing staff and whether it failed to assess and intervene in the care of a patient or failed to implement a physician's plan of care for the patient. Patient D.W. was a 67-year-old female who was morbidly obese, diabetic, debilitated, had end stage renal disease, and was receiving dialysis. Upon admission, D.W. had a Stage 3 pressure ulcer to her sacrum and a Stage 4 ulcer on her left calf. A wound care protocol was initiated immediately, and a Clinitron bed was obtained for her on the day of admission. Due to the seriousness of her condition, the wound care physician declined to accept her case at first. He later ordered Panafil, and it became part of the protocol for treating the patient. The nursing documentation for D.W. was only minimally sufficient, but it does indicate that care was provided. Patient R.H. was an 83-year-old male who presented on February 10, 2009, in critical condition. R.H. was suffering from congestive heart failure, pneumonia, and respiratory failure. Due to the critical nature of his respiratory problems, R.H. was placed on a ventilator. As a ventilator patient, he did not fit the profile for obtaining wound care. Nonetheless, the hospital implemented various other measures to deal with R.H.'s pressure wounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, imposing a fine in the amount of $500.00 in DOAH Case No. 09-5363 and a fine in the amount of $500.00 in DOAH Case No. 09-5364, Count VI. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2010.
Findings Of Fact HRS is a state agency responsible for the administration of the Florida Medicaid Program provided for in Title XIX of the Social Security Act. The medicaid program was implemented through Section 409.902, Florida Statutes. The peer review aspect of the Florida Medicaid Program involves the responsibility of insuring that hospitals comply with state and federal utilization review requirements. The Petitioner, at all times material hereto, was the treating facility for the four patients involved in the issues in this case. It is assigned Medicaid Provider No. 011976800. The medicaid/medical benefits program for the State of Florida administered by HRS under Title XIX of the Social Security Act reimburses hospitals for "medically necessary" in-patient hospital care provided to medicaid beneficiaries. See Rule 10C-7.039, et. seq. The determination of "medical necessity" is to be made by the hospitals' utilization review committee and by the utilization and quality control PRO which is under contract to provide that service with HRS. Utilization review is defined as "regular prescribed program for the review of each recipient's need for services to insure efficient provision of care". HRS has established procedures for determining the medical necessity and appropriateness of care for use by hospitals and by the PRO's. The procedures include a review of medical record documentation against a list of criteria published by HRS. These criteria are popularly called ISD criteria. "ISD" is an acronym signifying severity of illness, intensity of service, and "discharge screens." Each medicaid recipient must meet ISD criteria for severity of illness before being admitted to a hospital. They must also meet the intensity of service ISD criteria for continued hospitalization. Once a patient meets one of the ISD discharge screens (standards), there is the indication that the patient is ready to be discharged. The ISD criteria are to be used as a "basis for professional determinations of the medical necessity of acute care hospitalizations" by the hospital utilization review (UR) committee and the PRO. These criteria are not an absolute measure of medical necessity. They may be balanced or overridden by a physician during the review process. The severity of illness (SI) criteria are acknowledged by HRS to be set at a high level. The SI criteria need not be met to justify an admission, however. "If treatment has been rendered and the intensity of service criteria are met, or if evidence relevant to more than one severity of illness indicator is available, lower levels than those specified in the criteria may justify certifying the admission. A case presenting marginal findings for certifying an admission will be referred to the physician advisor." See Respondent's Exhibit 4, page 6. According to the policy expressed in the HRS manual for hospitals providing services to medicaid beneficiaries, the hospital UR committee may consider "other supporting data as the committee deems appropriate" and contact the attending physician when determining medical necessity. Similarly, when medical necessity is an issue at the PRO level of review, the attending physician is to be contacted by the PRO and given an opportunity to speak to the physician advisor of the PRO so as to provide additional information going to the question of medical necessity. If the PRO denies coverage, HRS then accepts the PRO determination and does not conduct any independent review. HRS, having charged the hospital UR committee and the PRO with the evaluation of medical necessity, does not conduct its own review of the medical record or undertake any independent evaluation of medical necessity before notifying the relevant physician and hospital if reimbursement is denied. The Petitioner is in compliance with the medicaid program concerning utilization review. The hospital has established a UR plan which has been approved by the PRO and by HRS. The UR plan utilizes the same ISD criteria as the PRO. The UR committee was monitored to make sure that it was complying with the utilization review requirements. The five cases at issue were reviewed by five different physicians on the Center's UR committee and were felt to meet the criteria and to be medically necessary as appropriate admissions and appropriate lengths of stay. The PRO, however, disagreed with the UR committee. The attending physician was contacted by the PRO and asked to call a physician advisor to discuss these cases and to provide additional information to the advisor. The attending physician followed those instructions and attempted numerous times to contact the physician advisor with additional information concerning the cases but was never given the opportunity to do so. These PRO denials included one admission denial following a suicide attempt, despite the fact that "suicide attempt" is included in the ISD criteria as justification for admission. This denial of admission itself is clearly in error. Although this proceeding is a de novo one and not a proceeding designed to simply review the appropriateness and legal efficacy of the HRS initial decision, it is noteworthy, to the extent that HRS' position relies heavily on the PRO review of the patient admissions and lengths of stay in question, that the PRO's work product is of marginal credibility. This is because the PRO which was responsible for the UR and reviewed these cases lost its designation as an approved PRO and became involved in criminal litigation concerning a failure to carry out medical reviews properly. The PRO was unable to meet payroll obligations for its nursing and physician reviewers. The records of the PRO reviews of the five cases at issue in this proceeding were not available to HRS. Consequently, HRS had no information concerning the underlying data or facts relied upon by the PRO nor whether the PRO actually consulted the attending physician or whether its physician advisor did. Thus, the testimony of the attending physician, to the effect that he attempted to contact the physician advisor but was not permitted to as to any of these cases, is uncontraverted. The approved UR committee, in conducting its procedure at the Center, determined that the admission and lengths of stay of the five patients involved was medically necessary and compensable as determined by five physicians taking part in that process. The PRO, although it informed the physicians that they had the right to speak to a physician advisor, did not actually afford them that opportunity. The PRO determination was accepted by HRS without any HRS personnel speaking to the attending physician. Although HRS later allowed one day of an admission immediately following a suicide attempt, it upheld the other PRO determinations without actually knowing or reviewing any underlying information which might have been relied upon by the PRO and without HRS personnel conferring with the attending physician or affording him the opportunity to provide them with additional information. If the PRO, its physician advisor and HRS had given the attending physician the opportunity to explain and provide additional information concerning medical necessity, perhaps this dispute could have been resolved without the necessity and expense of formal proceedings. This is a de novo proceeding and, therefore, the information from the attending physician which was not utilized by the PRO or HRS in the review of these cases can be brought forward at this time providing the attending physician's testimony and evidence is deemed relevant, material, competent and credible. The attending physician named above, in fact, testified in this proceeding. His testimony is deemed competent and credible on the material issues and is not refuted by the Respondent. Based upon the attending physician's testimony, which is accepted, especially since no other physician with knowledge of the facts concerning these patients testified, the following findings of fact are made: Patient M.D.: This patient was treated at the emergency room following a suicide attempt on August 19th and transferred by the police to the Center where she was then admitted. She had previously sought out-patient treatment unsuccessfully. The initial examination showed her to be moderately depressed, avoiding eye contact, showing psycho-motor retardation, and crying easily. She made the statement that her two children would be better off if she were dead. She was placed on the medication prozac but after several days remained depressed and crying and complaining of insomnia. She was then given "Pamelor" which caused some adverse side effects, but she appeared to respond to the medication as to her depression. During her stay, she received an intensive rehabilitation program of at least three encounter therapies per day. On the basis of the medical record alone, patient M.D. met the following criteria: AK11-A (suicide attempt); AK57-B (treatments). These criteria do not require that the patient remain suicidal or admit to being suicidal during the in- patient stay in order to justify further treatment. The HRS representative testified that nursing notes indicated that the patient could perform some self- care functions during her hospitalization ("activities of daily living" or "ADL's"). Because of this and because the physician noted that the patient was denying suicidal ideations, she interpreted that circumstance to mean that the discharge "screen" or standard of "able to function in a non-hospital environment" was met after August 20th, the day of admission. However, HRS also admitted that whether the patient could function in a non-hospital environment was a medical decision to be made on the hospital level and the PRO level. The attending physician testified that records of self-care in a restricted hospital environment do not mean that the patient could function in a non-hospital setting. He further testified that the patient in this instance required treatment and did not meet the discharge standard or "screen" of being "able to function in a non-hospital environment" before August 30th. He testified that the services could not be effectively provided on an out-patient basis prior to August 30th. That testimony is accepted and the fact established. The ISD criteria and explanatory bulletins promulgated by HRS do not contain requirements that a patient remain suicidal during a stay nor a discharge criteria that equates self-care in the hospital environment with the ability to care for oneself safely and adequately in a non-hospital environment. On the basis of the evidence presented, the in-patient admission of M.D. from August 20th to August 30th met the criteria for admission and continued stay. The services provided were shown by unrefuted testimony to be medically necessary and the discharge screens or criteria were not satisfied until August 30, 1991. Patient M.D. (Admission of September 21, 1990 through September 29, 1990): Nineteen (19) days after her first discharge, patient M.D. again attempted suicide. She had been referred for out-patient care after her previous hospitalization but did not follow up and obtain that care and did not continue to take her medication. She wrote a suicide note on the second attempt and was treated in an intensive care unit for three days before being re- admitted to the Center. Throughout her hospitalization, she received intensive rehabilitation therapy as before and remained in a highly-restricted, locked unit, where suicide precautions were in effect. She was assigned to a counselor for "one-on-one" therapy in addition to her group therapy. Her attending physician did not consider her able to function in a non-hospital environment prior to September 29th, and his testimony so establishes. The HRS witness, when asked whether she had an opinion when the patient should have been released, stated a date prior to the actual discharge based upon her opinion that the patient was able to function in a non-hospital environment. That decision, however, is a medical decision which the witness was not qualified to make. In any event, the fact that a patient might be able to perform some "ADL" functions in a highly-supervised, protective hospital setting does not mean that the patient is well enough and responsible enough to perform those functions adequately and safely on her own outside a supervised hospital setting. In summary, based upon the unrefuted evidence presented, particularly the testimony of the attending physician, the in-patient admission of M.D. on September 21, 1990 met the ISD criteria for admission and continued stay. The services were medically necessary and the patient was not appropriately ready for discharge until September 29, 1991. Patient W.P. (Admission of April 11, 1990 to April 16, 1990): This patient suffered a severe psychotic episode a month before her admission and then presented to an emergency room stating that she was "about to lose it" and that it was only her religious beliefs which prevented her from committing suicide. This alarmed the attending physician concerning her suicidal ideation and possibility. The patient had been married five times and was then seeing a married man and also allegedly contemplating a lesbian relationship with that man's wife. She had been blamed by her family for the death of her grandchild. Upon her admission, it took her approximately three days to become aware that she was in a locked psychiatric unit. This indicated to the physician that she did not fully comprehend where she was or what she was doing in terms of her orientation as to reality of time and place. She was severely depressed, out of touch with reality, and not able to perform the affairs of daily living (ADL's). She exhibited anorexia and insomnia at the time of admission. She indicated merely that she was not eating as much as she had previously. She was placed on prozac, to which she responded in approximately five days. The services provided to her after her admission met the intensity of service criteria for a continued stay. The physician testified that she did not meet discharge standards prior to the actual discharge date whereupon she was referred to out-patient care for follow-up treatment. The physician's testimony establishes that necessary medical services could not have been effectively or safely provided on an out-patient basis prior to the discharge date. The physician's testimony establishes that in the artificial environment of a hospital, the notations in medical records that a patient is eating and sleeping does not mean that she is able to perform those functions outside of the hospital safely and adequately or will consistently do so if left to her own devices. The HRS witness admitted that not eating and not sleeping is relevant to the question of whether a patient can perform normal ADL's. The later contention by HRS that inability to perform ADL's requires a patient to be in a "nearly vegetative" state is simply unsupported by medical testimony nor by any definition in evidence. The unrefuted testimony of the attending physician establishes that the in-patient admission of patient W.P. on April 11, 1990 met the ISD criteria for admission and continued stay and that the services were medically necessary. The patient was not recovered sufficiently for appropriate discharge until April 16, 1990. Patient D.G. (Admission of May 4, 1990 to May 11, 1990): This patient had a recent history of heavy drug usage and criminal convictions near the time of her admission. HRS had removed her children from her custody, which created an additional crisis in her life, as did the fact that her husband was then in prison. The attending physician stated that the patient was exhibiting acute withdrawal symptoms from drug usage and delirium tremors from the drugs upon her admission. She was at a high risk of resuming her heroin use and threatened suicide if she did not get help for her addiction. A urine screen performed was positive upon her admission for drug usage and withdrawal symptoms. Impending delirium tremors were exhibited at that time. She was depressed and required acute medication, being placed on a high dose of both librium and anti- depressants. D.G. could not be treated in a de-toxification unit because of her suicidal ideation and attendant depression. She received intensive therapy consisting of three sessions per day while she was hospitalized. Her depression responded to the medication and discharge planning began on her third day of admission, with a view toward placing her in a de-toxification unit. She was discharged to complete her de-toxification as soon as a placement was available. The HRS witness opined that because D.G. was not "comatose" or "impending comatose", she did not meet the admission standards for substance abuse and because she was able to sleep, eat, and dress herself in the hospital, she did not meet the admission criteria concerning performance of ADL's. The attending physician testified, however, that she was in withdrawal from heroin use, needed de-toxification, and could not be admitted to a de-toxification program until her other psychiatric problems had been stabilized. The attending physician, by his training, his experience, and by his personal contact with and treatment of the patient, is best able to evaluate the patient's medical circumstance, need for admission and treatment and the length of treatment required. Consequently, his testimony as to this patient and all the others is accepted over that of the non-physician HRS witness. Based upon the evidence presented at hearing, the in-patient admission and stay of D.G. was medically necessary and could not have been provided effectively in a less-restrictive or out-patient setting. Patient S.R. (Admission of June 20, 1990 to June 29, 1990): Upon this patient's admission, she related not having slept for two months and not having eaten for five days. She had then undergone approximately three years of out- patient treatment unsuccessfully and had no family or community-support system in the area where she lived. She related that her ex-husband had been abusive and had recently abducted her daughter and vandalized her home. She related that her ex-husband had threatened her daughter's life and had had S.R. arrested and supposedly transported to the Palm Beach County Women's Stockade. She testified that she was unable to sleep or eat and was taking 10 to 12 baths per day. She complained of being unable to remember simple tasks, to take care of simple matters such as paying her rent, and was in the habit of wearing the same clothes from three to five days in a row without changing or washing, or being unable to remember whether she had washed or not. The patient was also taking a high dosage of a chronic asthma medication, which includes steroids. This can cause serious problems with depression. The patient was severely depressed and had recently started smoking. The patient met the ADL admissions criteria and while she was in the hospital, she received services which met the intensity of services criteria. The HRS witness admitted that the medical record note which stated "past two months she had not slept at all" constitutes insomnia and the record note "is not eating, has gone five days without food" constitutes anorexia. Based upon the evidence submitted at hearing, the in-patient treatment of S.R. from June 20, 1990 to June 29, 1990 met the criteria for admissions and continued stay and was shown by the treating physician's testimony to be medically necessary. The services could not have been safely and adequately provided on an out-patient basis, and the discharge standards were not satisfied as to this patient until June 29, 1990, when she was discharged.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore
