The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact The Petitioner is the state agency charged with regulation of the practice of nursing in State of Florida. At all times material to this case, the Respondent has been licensed as a practical nurse in the State of Florida, holding license number PN 0741801. At all times material to this case, the Respondent was employed as a practical nurse at the Harborside Health Care facility in Naples, Florida. At all times material to this case, Patient F. D. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to F. D. According to the medication administration record, F. D. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to F. D. At all times material to this case, Patient L. G. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to L. G. According to the medication administration record, L. G. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to L. G. At all times material to this case, Patient R. T. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to R. T. According to the medication administration record, R. T. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to R. T. Minimal acceptable standards of prevailing nursing practice require that nurses accurately document the provision of supplements and nourishment to nursing home patients. Minimal acceptable standards of prevailing nursing practice require that documentation of care provided to patients be recorded contemporaneously with the provision of the care. The Respondent's documentation of care provided to the patients identified herein fails to meet minimally acceptable standards of prevailing nursing practice. The placing of a care provider's initials on a medication administration record indicates that medication has been administered to patients. "Pre-initialing" of medication administration records poses a risk of confusion to other care providers working in the facility and is not an acceptable practice. The Respondent acknowledges that she initialed each medication administration record at about 11:00 a.m., several hours prior to the actual administration of the supplement's to the patients. She asserts that she did not record the amounts of supplement each patient consumed (100 percent in all three cases assuming the records are accurate) until after the patient had consumed the supplement. The rationale for the Respondent's practice is unclear. The Respondent suggests that she had "a few moments" at about 11:00 a.m. and so she went ahead and initialed the documents, knowing that she could complete the charting at a later time. The Respondent's suggestion is the intent of the practice is to save time; however, any time saved is at best minimal. If the Respondent's testimony regarding post- administration record completion is credited, the practice requires that each record be handled twice to complete a single task. The Respondent suggests that she returns to each individual record after administering the supplement and charts the amount of supplement consumed by writing in a space approximately one-quarter inch beneath the "pre-initialed" space. In reality, "pre-initialization" doubles the time required to complete the documentation and increases the potential for confusing other care providers involved in patient care and charting. The Respondent continues to assert that the "pre- initialization" practice is acceptable. The assertion is clearly contrary to minimally acceptable standards of nursing practice, and to common sense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order against the Respondent, imposing a fine of $500, requiring completion of appropriate continuing education in nursing records documentation in addition to any existing continuing education requirement, and placing the Respondent on probation for a period of one year under such conditions as the Board of Nursing determines are warranted. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2000. COPIES FURNISHED: Reginald D. Dixon, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Harry A. Blair, Esquire Harry A. Blair, P.A. 2180 West First Street, Suite 401 Ft. Myers, Florida 33901 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact During the period August 26-28, 1985, James L. Myrah, a hospital consultant for DHRS, accompanied by Ms. Christine Denson, a registered nurse, and other consultants in various disciplines from the Petitioner's office of licensure and certification, conducted a licensure, medicare, medicaid and civil rights survey at the Respondent's facility in Ft. Walton Beach, Florida. During the course of this survey, Mr. Myrah followed the normal procedure for such inquiries which included an entrance conference with the administrator, and a survey process which includes looking at various items for as many days as is required to do a thorough job.1 As a part of the survey, the team looks at every resident physically but examines patient charts on the basis of a random sample. In the instant case, examination of the patient records kept by the Respondent revealed only one variance. That was brought to the attention of the Petitioner's Office of Licensure and Certification by the Local District I omebudsman who commented about a particular patient, whose name will not be recited to preserve patient confidentiality, but whose initials, M.C., will be used as identification. By the time the survey was conducted, M.C. had already been transferred to another nursing home and was not physically present. Therefore, the inspection team was unable to examine her. However, they did examine her medical records and chart closely. This examination resulted in Petitioner drawing the conclusion that Respondent was in violation of the require ment for notification to the patient's physician whenever there is a substantial significant change in the patient's condition. The patient's chart was not entered into evidence. The report form identifying the deficiency (HRS Form 553E) was prepared by the inspection team based on its evaluation of the patient records. This was not objected to by Respondent, and in the absence of any objection to its entry, it was accepted. The entry for the 11 p.m. to 7 a.m. shift on May 22, 1985, reflects,2 "Total care given, nothing per os (by mouth) past midnight. Dr.'s appointment in am--resident seems very listless not talking as usual. Several small bruises noted on lower extremities (rt.) foot very discolored." This entry is, in the opinion of Ms. Denson, important because it relates to the fact that the patient was to go to the doctor in the morning. The use of the term "listless" might indicate a serious medical condition and a change of condition which should have been reported to the person next in charge. The term, "not talking as usual" shows a change that would require comment. In addition, the comment regarding the discoloration of the foot should have been reported to someone and not allowed to remain uncommented on until the visit with the doctor the next morning. The patient saw her physician, Dr. Wilson, at 8 a.m. on May 22, 1985; and returned to the home at 10 a.m. the same morning. Apparently nothing was considered to be wrong with the patient because no prescription for medicine or other treatment was given by the physician who, three days later, on May 25, 1985; when advised by nurses on the 7 a.m. to 3 p.m. shift of large black and blue areas on the patient's inner groin area, indicated he examined the patient and found nothing new clinically on May 22. There are repeated instances of comments which Petitioner alleges were not properly reported to the physician. For example, on May 23, personnel on the 11 p.m. to 7 a.m. shift reflected that the patient "continues to be listless. Right leg turned at a funny angle. Report to D.O.N. (Director of Nursing)." The 7 a.m. to 3 p.m. shift the following morning reported, "Both legs ecchymosis (discolored), hip moves oddly, color pale." The 3 p.m. to 11 p.m. shift the same day reported, "Color remains pale-- unusual movement and rotation of both legs noted." Additional comments of a similar nature were noted by personnel on the 11 p.m. to 7 a.m. shift on May 24 the 3 p.m. to 11 p.m. shift on May 24; and the 11 p.m. to 7 a.m. shift which discovered the discoloration to the pelvis as reported previously. At 4 p.m. on May 25, 1985, personnel reported their concern in reference to the bruises on the patient's groin and lower extremities to the physician and further entries show that at 5:10 p.m., the patient was subsequently returned to the home at 7:30 p.m. after x-rays were accomplished which failed to reveal any fracture. Nonetheless, because of continued concern by the nursing staff and at the urging of family members, the patient was returned to the hospital at 10 a.m. on May 27, 1985. At this point, she was found to have fractures of both lower extremities and upon release from the hospital was transferred to another convalescent center. Mrs. McCasland contends that all due care and concern was given to the patient, M.C., consistent with the long standing convalescent center policy governing changes in patient status. This policy statement, dated March, 1975, which is still in effect, requires that "in the event of a significant change in the patient's physical, mental, or emotional status, the attending physician is immediately called by the charge nurse." As was stated in paragraph 3, above, on May 22, an 11 p.m. to 7 a.m.'s shift nurse noted a small bruise on the left foot of the patient and that the patient was listless. Small bruises are not necessarily significant in geriatric patients (M.C. was 88 years old). Also, often older people do not talk for several days. In any event, the lack of any significant condition was confirmed by the physician who found nothing unusual in the patient's condition during the examination. The doctor's report reflects, inter alia, "physical examination is remarkable for an elderly white female in an involuted state appearing her stated age." Her extremities "show some area of bruising primarily in the upper thighs presumably related to lifting the patient. She has crepitance in the bilateral knees and is unable to fully extend her lower extremities." Neurologically; she was determined to be alert and the physician recommended continuing general support of care. On May 25, 1985, the charge nurse called Ms. McCasland at home indicating that the patient's legs seemed to be getting bluer. Ms. McCasland, at that moment, told the nurse to call the patient's physician which was done and the doctor indicated at that time that when he had examined the patient several days previously, he found nothing wrong. It apparently was the decision of the doctor to take no further action at that time. However, at approximately 4 p.m.; after the conversation with the physician; the charge nurse contacted the physician again, indicating she thought the patient needed to be x-rayed. At 5:10 p.m.; the patient was taken to the hospital; apparently at the order of the physician; for x-rays which showed no fractures. Nonetheless; this action would not have been taken were it not for the attention of the nurse on duty and actions of the Respondent's administrator. On the following day, May 26, the charge nurse from the 7 a.m. to 3 p.m. shift again called Mrs. McCasland at home and stated that the patient's legs were; "bad." Ms. MeCasland told the nurse to call the patient's physician who directed she be sent to the hospital for x- rays. The hospital would not accept the patient and as a result, the physician came to the convalescent center where he examined her and concluded that there was, in fact, a problem. He directed she be sent to the hospital the following day and when she was x-rayed then; fractures were discovered. It should be noted here that again the contact with the physician which resulted in the ultimate diagnosis of leg fractures, was initiated by the charge nurse at Respondent's center and communicated to the physician and Ms. McCasland by center personnel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that deficiency number NH77(g); relating to the visit to Respondent's convalescent center on August 28, 1985, be removed. DONE and ORDERED this 7th day of May, 1986, in Tallahassee, Florida. _ ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent was a licensed practical nurse holding license number 11005-1. On April 8th and 9th 1975, respondent was employed at St. Vincent's Medical Center in Jacksonville, Florida. As required by federal law and the normal course of the business of pharmacy, the pharmacist of the Center maintains and retains narcotic control records which chart the withdrawal and disposition, of controlled substances. The narcotic control records introduced into evidence as Exhibit 2 record the disposition of various dosages of meperidine ampuls. Demerol is the trademark name of the generic drug meperidine, which is a controlled substance under Ch. 893 of the Florida Statutes. St. Vincent's Medical Center has specific procedures to be followed when withdrawing and administering narcotic drugs. When a nurse withdraws a narcotic drug for a patient, it is her duty to fill out the narcotic control record showing the date, the time, the dosage, the patient to whom the drug is to be administered, the treating physician and the signature of the person withdrawing and administering the substance. The substance should then be administered to the patient within minutes of the withdrawal time, and the time of administration and dosage should immediately be noted or charted on that portion of the patient's medical record entitled "Nurses Notes." From the testimony adduced at the hearing, and by comparing the narcotic control records with the "Nurses Notes" on several patients; it is clear that on April 8th and 9th, 1975, respondent did not chart or note as having administered a substantial quantity of the drugs withdrawn by her. Furthermore, many that she did chart were not specific as to the time administered or the time charted was a half hour or more from the time listed on the narcotic control record. There was no evidence that respondent was using these drugs for her own purposes or that the patients, in fact, did not receive their medication after it was withdrawn by respondent. It was respondent's testimony that the discrepancies existing between the narcotic control sheets and the "Nurse's Notes" resulted from either errors in charting on another patient's chart or mistakenly forgetting to chart the administration due to being so busy or short-staffed. Respondent denied taking any of the narcotic drugs herself.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing find respondent guilty as charged in the administrative complaint and suspend respondent's license for a period of six (6) months. Respectfully submitted and entered this 9th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Geraldine Johnson Florida State Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211 Mr. Juluis Finegold 1130 American Heritage Life Building Jacksonville, Florida 32202 Ms. Dorothy M. Hall Cobb 1720 West 13th Street Jacksonville, Florida 32209
The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 June, 2011.
Findings Of Fact At all times relevant to the issues involved in this hearing, the Respondent was licensed as a registered nurse, having been licensed on September 1, 1967, by examination, with license number 41856-2. At all times pertinent to the issues involved in this hearing, Respondent was employed as a registered nurse at Gulf Coast Community Hospital (GCCH), Panama City, Florida. On August 4, 1983, Dr. David W. Scott, an orthopedic surgeon with practice privileges at GCCH, treated Arthur Collins in the emergency room of that hospital. After taking a history from the patient and examining him, he concluded that Mr. Collins was a drug addict who had the ability to manipulate physicians for the purpose of obtaining narcotics. As a part of his treatment of this individual, Dr. Scott prescribed 100 mg of Demerol four times a day which was obviously insufficient for Mr. Collins who had developed a drug tolerance. As a result, Dr. Scott added an additional drug, Vistoril, to augment the Demerol. Before leaving the hospital that night, and because Mr. Collins was obviously addicted to narcotics, Dr. Scott left an oral order with the nurse on duty at the nurses' station, subsequently identified as Ms. Habersham, not to increase the dosage prescribed for the patient, not to give additional narcotics, and not to call the on-call physician in the event Mr. Collins complained of pain. The reason for this last instruction concerning the physician was to prevent the on call physician, who might not know the patient's history and of his drug addiction, from prescribing additional narcotics. Ms. Habersham worked as a charge nurse on the day shift during this period and recalls patient Collins. When she was relieved by the Respondent at the end of her shift, she passed Dr. Scott's orders on to her. Consequently, it is clear that Respondent was aware of Dr. Scott's order not to increase Collins' dose and not to contact the on-duty physician in the event Collins asked for more medicine. Nonetheless, Respondent admits giving Mr. Collins an injection of 125 mg of Demerol even though the doctor's order called for a 100 mg dose. She justifies this on the basis that the patient had said he was in great pain and constantly kept coming to the nurses station begging for more medication. She observed him to be sweating and grabbing at his stomach. Based on her experience in the Army Nurse Corps and the Army Surgeon General's recommendation for a 125 mg dose of Demerol in situations such as this, and because she did not want to wake up Dr. Rohan, the on-call physician, she gave the additional dose on her own authority feeling she could get Dr. Rohan's approval later on. Dr. Rohan recalls only an incident in August of 1983 where he got a call from a nurse whose name he cannot remember for a "cover order" for a medication. As he recalls it, the nurse in question called to notify him that she had administered more of a drug than was called for in the doctor's order. It was his understanding, however, that the nurse had given too much by accident and was telling him about it after-the-fact, not in advance, to authorize a higher dose. It is clear from the above, therefore, that Respondent called Dr. Rohan after she had administered the higher dosage to Mr. Collins on her own authority. Respondent indicates, however, that Ms. Habersham had told her that if this particular patient needed more medication he was to get it and that the nurse should secure the authorization by phone. Respondent presented no evidence to support this, however, and though she contended she had a witness to this conversation, the witness was not presented. Respondent contends that she could change the amount of medication prescribed by the physician if it was necessary. She claims that nurse-practitioners can do this within the protocols set down by a physician. Respondent was not then nor is she now a nurse practitioner. During the month of February, 1984, Linda Marie Jones was unit coordinator for three units at GCCH, including Respondent's. Part of her job involved the monitoring of and investigation of drug discrepancies. During this time, Mr. Jones was conducting an audit of drug accountability in Respondent's unit. This audit, while not based on any suspicion of misconduct by any employee, resulted in a determination that one Nembutal tablet was missing from the unit. A check of the records reflected that this medicine had not been ordered for any patient on the unit that day. She then checked the patients' charts to see if a Demerol 100, a similar drug, had been used, and as a part of this procedure, she found that in the case of some patients, two different records dealing with a specific administration of medication did not agree. Her check of all records on the unit revealed that only the Respondent had any discrepancies. All other nurses' records were satisfactory. Her investigation included a comparison of the medication administration record (MAR) with the nurses notes on which the same administration was to be noted. In the course of her investigation, she checked six patient records, including those of patient Haire, patient Oakley, and patient Crosby. At the conclusion of her investigation, she prepared a summary of her findings which she presented to Ms. Flemister, the Director of Nursing. Ms. Flemister met with Respondent and showed her a copy of the report. At that point, Respondent denied having taken any of the medications and said that she could not figure out why the discrepancies existed. As to the Nembutal, which prompted the investigation initially, Respondent remembered cleaning out the narcotic box the first time, but did not identify a shortage at the time. As a result, the missing Nembutal was attributed to "wastage" and when that happens, the wastage must be recorded on the narcotics sheet. This Nembutal wastage was not recorded by Respondent or any other nurse. Ms. Jones admits, however, that there is no evidence to connect Respondent with the wastage of the Nembutal any more than any other nurse assigned to that floor. With regard to an administration of Morphine Sulfate to patient Haire at 9:00 P.M., on February 6, 1984, the narcotics control sheet fails to show that morphine sulfate was administered to this patient on that occasion. With regard to the 8:30 P.M. administration of Morphine Sulfate to patient Haire on February 5, 1984, the narcotics control sheet reflects that Respondent recorded the administration of this medicine but does not reflect the date in question. The entry made reflects the patient's room rather than the date. As a result, it is impossible to tell if the administration was done on February 4 or February 5. However, the Respondent did reflect this administration on the nurses' notes although in the wrong place. As to the issue of Respondent's signing out Morphine Sulfate for patient Haire at 7:00 A.M. on February 5, the evidence establishes that she did sign out both Morphine Sulfate 100 and Demerol 100 as alleged. The MAR reflects some entry but it is impossible to determine what the entry is or to what drug it refers and Respondent's nurse's notes for that date are silent. The medical records pertaining to patient Oakley for February 5, 1984, reflect that, as to the nurses' notes, the patient was given medication for pain but the notes fail to show what type of medication was administered. It could have been aspirin or tylenol and the note should have said what medicine was administered. This administration was not listed on either the narcotics control sheet or the MAR. If the substance given was not Demerol or Morphine Sulfate, it need not appear on the narcotics control sheet, but whatever it was, it should have been listed on the MAR and it was not. The records regarding patient Crosby reflect that on February 5, 1984, Respondent signed out 75 mg Demerol for the patient as alleged. The notes do not, however, reflect that she administered Demerol specifically. They reflect only that she administered some medication. As to the 9:30 P.M. dose of Demerol on February 5, 1984, Respondent did sign out Demerol at that time but the nurses' notes do not reflect what the substance administered was. Patient Haire's records reflect that on February 4, 1984, Respondent signed out Morphine Sulfate for the patient. The nurses' notes reflect that at 8:00 P.M. on that date, she administered a "pain medication" to the patient without defining what that medication was. The record does not indicate that Morphine Sulfate was administered. The narcotics control sheet for this period is not dated so it is impossible to determine whether Morphine Sulfate was listed on its document or not. However, the MAR reflects that Respondent administered Morphine Sulfate to this patient at 6:00 A.M. On February 4, 1984, Respondent signed out Demerol for patient Oakley and properly noted this on the narcotics control sheet but the nurses' notes fail to show that the substance was administered as required. Later on, at 8:30 P.M. the same day, Respondent again signed out Demerol for Patient Crosby listing on the narcotics control sheet the patient's room number but not the date. Other dates on the sheet lead to the conclusion that it was February 4, however Respondent thereafter failed to record the drug's administration on the nurses' notes. She also signed Demerol out for Patient Crosby at 7:30 P.M. on February 4 though the narcotics control sheet fails to reflect the date - only the room number. This administration is in the MAR at 8:30 P.M. rather than at 7:30 P.M. but is not in the nurses' notes at all. On February 3, 1984, Respondent recorded in her nurse's notes that she administered Demerol to patient Crosby at 8:00 P.M. The narcotics disposition record (narcotics control sheet) shows that she signed the medication out between 8:00 and 9:00 P.M., but it is impossible to tell with certainty the exact time. It is obvious that Respondent's handwriting is poor. This fact adds to the difficulties encountered from the way in which Respondent kept her records. In the opinion of Ms. Jones, who has been doing quality assurance checks for a number of years, Respondent's records are inaccurate, inconsistent, incomplete and totally insufficient for a nurse on the next shift to know what medications have been given and what must be done. In this area alone, Ms. Jones was of the opinion that Respondent's charts are below the minimum standards for nursing practice in the area and even though her own report was erroneous in some respects, there are still enough verified errors by the Respondent to support her opinion that Respondent's performance is less than acceptable. Respondent admits that some but not all of the charges against her are true. Though she may have mischarted her administration of drugs she never took the drugs herself. The patient always got the drug that he or she was supposed to get and her errors were errors only as to the recordation of time. They were administrative errors, not substantive errors. She contends that in February, 1984, because the floor on which she had been charge nurse since December, 1981 had been closed, she was forced into a staff nurse position. This was not a good situation and as a result of the closing of that floor, several nurses quit. This loss of nurses resulted in more patients per nurse to the point where Respondent felt that patient safety was in danger. She contends she tried to tell Ms. Jones about this but Ms. Jones would not see her. All of a sudden, she found herself called in front of Ms. Flemister and Ms. Jones and terminated based on the alleged inaccuracies in her records. Respondent contends she received no information about this other than that contained in Ms. Jones' summary and in that regard she says, Ms. Jones assured her that her summary was correct and in no way tried to explain the inaccuracy of the records. Respondent contends that she had frequently asked her supervisors for extra help but never got any. She contends she had as many as 18 patients to handle by herself and at the time involved in the records discrepancies here, she had 8 patients on the floor. She contends that the errors to which she admits were due to her hectic schedule. As a single parent, she was working, she says, between 60 to 80 hours per week on two jobs and had a sick child at home. Ms. Flemister, on the other hand, says that Respondent had plenty of help. At the time, Respondent was working the night shift from 7:00 P.M. to 7:00 A.M. The shift was staffed by 4 registered nurses, 2 licensed practical nurses, and a secretary, and in her opinion, this staff was well within the normal range of staff-patient ratio. Ms. Flemister contends that while Respondent was on duty, she had between 5 and 6 patients to take care of. She was the charge nurse for the shift and therefore had less patients than a regular floor nurse. She admits that Respondent did complain about being shorthanded, but these complaints were neither constant nor repeated and were never submitted through proper channels. Ms. Flemister contends that prior to this time Respondent had been counseled about her writing and documentation, but there has been no evidence of any discrepancies other than those involved in this case. There are certain procedures followed at GCCH and a part of Ms. Flemister's job is to oversee the standards of the hospital, the Board of Nursing, and the Joint Committee on Hospital Accreditation as they are applicable at this hospital. On the first day of duty, all new nurses are given an orientation which includes records management and how to use a medication cart. A medications test is given and a model cart is used in this training. On the cart, each patient has his or her own area. Narcotics and barbiturates are kept together. Medication administration records, including a page for every patient, are kept with the cart. Each administration of medication is supposed to be recorded and each use of narcotics is supposed to be listed on the narcotics sheet with the name of the patient, the date, the drug, and the nurse administering it. Medications are first called for in the doctor's orders and are checked by the secretary and the nurse who checks and signs it initially. The doctor's orders are then used to give medications. When a nurse gives a medication she checks the doctor's order against the medical records and then prepares the medicine, administers it, charts it and signs it off. The entry is recorded on the medical administration record and it and the charting register are both on the cart. The nurse goes back to the nurses' station to record the administration of the medicine in the nurses' notes which are kept in the patient record. This method of documentation is set out in the hospital policy and procedures which are given to all nurses. Accurate medication records are important so that nurses on subsequent shifts do not administer a drug too soon after the last dose was given and thereby create an overdose. Therefore, medications are logged in several different locations because state law requires it to promote agency oversight by the pharmacy and the Department of Nursing, and because the record is used at shift change to insure an accurate count of narcotics on hand on the medicine cart. Failure of employees to follow the hospital procedures results in the following sequence of events: reprimand; counseling; a written reprimand; and discharge; all depending, of course, on the seriousness of the offense. However, after the discussion with Ms. Flemister and Ms. Jones Respondent was terminated because of the discrepancies between the narcotic record and the poor and illegible documentation in the nurses' records and elsewhere. Respondent, on the other hand, claims that though she has been licensed in the State of Florida since 1967 and has worked at GCCH since 1981, there has never been any prior disciplinary action taken against her nor has she received any prior complaints about her method of charting or administration of drugs and she was doing it as she usually does in February, 1984. Notwithstanding her protestations of no prior disciplinary action, however, the records reveal that Respondent was given a two-day suspension for the incident involving the over administration of Demerol to Mr. Collins and advised that a repeat discrepancy would result in her discharge. It is important to note that as a part of the investigation into Respondent's alleged misconduct, she was requested to provide a urine sample for urinalysis. This routine drug screen revealed no use of controlled substances within the seven days prior to the test which was accomplished on February 20, 1984.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 26th day of June, 2006.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by Petitioner are correct and, if so, what penalty should be imposed against Respondent.
Findings Of Fact Petitioner is the state agency charged with regulation of the practice of nursing in State of Florida. At all times material to this case, Respondent has been licensed as a registered nurse in the State of Florida, holding license no. 2003552, with a last known address of 1407 Wekewa Nene, Tallahassee, Florida 32301. Respondent was employed at all times material to this case by Tallahassee Memorial Hospital (TMH) until December 1, 2000, when her employment was terminated. On November 23, 1999, Respondent was working a day shift at TMH as a nurse at 1300 Miccosukee Road, Tallahassee, Florida. On November 23, 1999, Sharissa Holloway was a student nurse from the Florida State University (FSU) School of Nursing and happened to be doing a clinical rotation on the TMH orthopedic/neurological floor. Respondent was the primary nurse for the patients on that floor who were under the care of the student nurse. The student nurse received the patient assessment sheets from Respondent prior to 8:00 a.m. with entries already charted by Respondent for estimating Patient N.C.'s pain, and a sedation scale already charted by Respondent covering the period of time that stretched all the way to 12 o'clock noon. When handing the patient assessment sheets to the student nurse at approximately 7:30 a.m., Respondent stated "I have already started the notes." The note entries had Respondent's initials next to them in the appropriate column. Narrative notes on Patient N.C. had already been written indicating that a dressing change of a surgical wound had been done at 8:00 a.m. These notes bore Respondent's signature. The student nurse also got these notes from Respondent before 8:00 a.m. Concerned with the advanced notations that she discovered, the student nurse took the patient assessment sheets which bore Respondent's entries for future times up to 12 o'clock noon to her FSU clinical nursing instructor who was on the premises at the time. Proceeding to Patient N.C., the instructor verified that the patient's wound dressing had not been changed. The student nurse did the dressing change at approximately 8:30 a.m. The nursing instructor took the documents to the head nurse for the orthopedic/neurological floor, Kay Keeton. Keeton requested that both the student nurse and the nursing instructor submit independent written statements. They complied with Keeton's request. Contemporaneously with the drafting of statements by the clinical nurse instructor and the student nurse, photocopies of the patient assessment sheets were made at least two hours prior to 12 o'clock noon. Keeton made notes on the sheets to show entries charted by Respondent as opposed to entries charted by the student nurse. Keeton is familiar with Respondent's signature. After determining that Respondent had charted something that had not been done yet, Keeton made her report to the TMH administration. When questioned about the entries on December 1, 1999, Respondent denied making the entries. She was given a disciplinary form entitled "Notice of Corrective Action." Upon her refusal to sign the form, Respondent was terminated from her employment. Respondent has experienced employment problems at TMH for which Notices of Corrective Action were issued which date back to 1996. This history, in conjunction with Respondent's demeanor while testifying and her lack of candor, dictate that her denial of improper action in this case, cannot be credited. Minimal acceptable standards of prevailing nursing practice require that documentation of care provided to patients be recorded contemporaneously with the provision of the care. Respondent's "before the fact" documentation of care provided to the patients identified herein fails to meet minimally acceptable standards of prevailing nursing practice. The placing of a care provider's initials on a medication administration record indicates that medication has been administered to patients. "Pre-initialing" or signatures on medication administration records poses a risk of confusion to other care providers working in the facility and is not an acceptable practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order against Respondent, imposing a fine of $250, requiring completion of appropriate continuing education in nursing records documentation in addition to any existing continuing education requirement, and placing the Respondent on probation for a period of one year under such conditions as the Board of Nursing determines are warranted. DONE AND ENTERED this 24th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of October, 2000. COPIES FURNISHED: Michael E. Duclos, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3240 Tallahassee, Florida 32308 Donna H. Stinson, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, 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 A00 Tallahassee, Florida 32399-1701
