Findings Of Fact At the commencement of formal hearing, Respondent moved ore tenus to dismiss upon grounds that no disputed issues of material fact existed. Upon representations of Petitioner's counsel that there remained issues of whether or not there had been selective application of the rules to Petitioner (TR 6-7 and 19), of whether or not the license restrictions imposed upon Petitioner duplicated education already completed by the Petitioner at Jackson Memorial Hospital, and a representation that the evidence to be adduced at formal hearing would include educational events up to the date of the de novo formal proceeding sufficient to entitle Petitioner to certification without any probationary period or restrictions (TR 10-12, 16 and 18), ruling was reserved on the motion to dismiss until the completion of Petitioner's case-in-chief. At the conclusion of Petitioner's case-in-chief, Respondent again renewed its motion to dismiss. The motion was denied without prejudice, pending review of the full application file and other documentary evidence admitted in Petitioner's case-in-chief. Respondent has raised the motion yet again in its post-hearing proposals and it is ruled upon in the following conclusions of law. By its January 21, 1987 Order, the Board of Medicine, Advisory Council for Respiratory Care granted Petitioner a license as a respiratory care practitioner subject to the following restrictions: ...the license shall be issued subject to probation upon the conditions: Applicant is not to work in any critical care area, including the emergency room, and, Applicant will not do ventilator care in the home. This probation shall be in force until Applicant has successfully completed an advanced care registry eligibility program with adequate supervision. Said program may be approved by the Chair of the Council. It is stipulated that Petitioner meets standard requirements for licensure. It is disputed as to whether she is entitled to an unlimited/unrestricted license absent the probationary educational requirements. Petitioner received several written and oral warnings relating to incidents of improper patient care while employed at Mount Sinai Medical Center, Miami, Florida, from 1979 to 1982 and prior to making application for her license in 1986. One significant incident involved Petitioner's supervising a student using a sidearm nebulizer and treatment in the Mount Sinai surgical intensive care unit. Petitioner failed to verify information given to her by the student in that she did not personally view the patient and left the room while the treatment was still in the patient. Another significant incident involved Petitioner leaving another sidearm nebulizer in line with a ventilator circuit on a patient. Petitioner admitted her error with regard to these incidents and admitted their inherent danger to patients. The Petitioner was terminated from employment at the Mount Sinai Medical Center on July 21, 1982, for negligence in performance of her duties. Petitioner began work at Jackson Memorial Hospital, Miami, on August 9, 1982. She has maintained continuous employment with Jackson Memorial Hospital up to the date of formal hearing. Until the January 21, 1987 Council Order, Petitioner also worked critical care areas of Jackson Memorial Hospital and did home ventilator therapy for a private company called "Allied." Since January 21, 1987, she has limited her work as required by the licensing order, and since its entry she has performed only duties involving floor care and treatments in the units. Petitioner testified at formal hearing that she successfully completed Respiratory Therapy Theory I and II at Miami Dade Community College subsequent to leaving Mount Sinai, as well as numerous other introductory education courses (TR 35- 36). This testimony is in part contrary to her testimony before the Advisory Council on November 18, 1986. By that prior testimony, she admitted she had not received any clinical course experience of any kind and did not do any ventilating at Jackson Memorial Hospital subsequent to her dismissal from Mount Sinai Medical Center and prior to the Council hearing on November 18, 1986. (Jt. Ex. 2 pp. 59-62) With one exception, all of Petitioner's formal training and clinical training as a respiratory technician for which documentation exists, shows that her training occurred prior to her firing from Mount Sinai in 1982. The one exception is a certificate dated March 16, 1985, showing that Petitioner was found to have fulfilled the educational requirements of the National Board of Respiratory Care, but there is no showing in the record of what these requirements might be or of when they were fulfilled. (Jt. Ex. 1) Petitioner admitted at formal hearing that she has completed no specific course of study and has not completed any advanced care registry eligibility program. The individual subjects she has claimed to have completed since her Mount Sinai experience do not appear to be either clinical or to offer hands- on experience. On periodic Jackson Memorial Hospital Employee Evaluations, Petitioner has received "low" ratings in the categories of "work habits" for the period 8/14/83 to 8/12/84; for "quantity of work" and "personal relations" for the period 8/15/84 to 8/11/85; and again for "work habits" for the period 8/11/85 to 8/10/86. She has "Satisfactory" or "High" ratings in other categories during each of these periods. No proof of arbitrary, capricious, or selective imposition of educational or probationary requirements was demonstrated.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board of Medicine enter a Final Order affirming its January 21, 1987 Order. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1412 The Petitioner's proposals were struck. Rulings upon the Respondent's proposed findings of fact (PFOF) are hereafter ruled upon pursuant to section 120.59(2), Florida Statutes: Respondent's PFOF: 1. Rejected as subordinate and unnecessary and as covered in FOF 1 and 2 and the Conclusions of Law. 2-3. Covered in FOF 3. Covered in FOF 5. Covered in FOF 7. 6-7. Modified in FOF 9-10 to conform to the greater weight of the evidence as a whole and to exclude irrelevant material. 8. Covered in FOF 11. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Gregory F. Esposito, Esquire 5440 North State Road 7 Suite 23 Fort Lauderdale, Florida 33319 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out." During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency. DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith A. Klausner 1725 Springlake Road Fruitland Park, Florida 34731 Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
