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
The Issue Whether the Respondent violated Section 468.365(1)(p), (u), and (w), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice respiratory therapy.
Findings Of Fact Respondent, Dena Wadzinski (Respondent), was at all times material hereto licensed as a certified respiratory therapist in the State of Florida, having been issued license number TT 0005509. She has been licensed to practice as a respiratory therapist since November 1990. Respondent was employed as a respiratory therapist by University Community Hospital (UCH) as a respiratory therapist in November 1993, working three twelve (12) hour shifts per week. Respondent worked continuously at UCH until January 6, 1995, when she went on maternity leave for eight weeks. On March 3, 1995, Respondent returned to her position as respiratory therapist at UCH. Respondent reported to work at approximately 6:25 a.m., and proceeded to the conference room where respiratory therapists receive their work assignments. Steve Horne, supervisor of respiratory therapist at UCH, assigned Respondent to the progressive care unit at UCH designated 3 North. Respondent was scheduled to work a twelve hour shift, from 7:00 a.m. to 7:00 p.m. At the time Mr. Horne gave Respondent the assignment, he apologized for having to assign her to 3 North on her first day back from maternity leave. 3 North, sometimes referred to as the "hell floor," is a very busy unit. This progressive care unit has ventilator patients and those classified as DNR (do not resuscitate). While the patients on 3 North do not meet the criteria for admission to an intensive care unit, they are too ill to be on a regular floor. Due to their conditions, these patients often require more attention from the respiratory therapists than patients on regular floors. After receiving her floor assignment, Respondent remained in the conference room and waited for Lisa McClure, the respiratory therapist assigned to 3 North on the preceding shift. At UCH, the normal procedure was for a respiratory therapist completing a shift to meet with the respiratory therapist who was relieving her to give a report regarding the patients on the assigned floor. Typically, the meeting between the respiratory therapists would take place at the time one shift began and the other shift ended. In light of this, given the assigned shifts of Respondent and Ms. McClure, the meeting should have occurred around 7:00 a. m. on March 3, 1995. However, Ms. McClure did not arrive at the conference room to give Respondent the report until approximately 7:35 or 7:40 a. m. After receiving a brief generalized report from Ms. McClure, Respondent reported to 3 North. Although Respondent was excited about returning to work, she was anxious about her first day back on the job. As to her mental state, Respondent was "overwhelmed," felt pressured to complete all her assigned job responsibilities, and "just wasn't in sync." Except for the maternity leave, since becoming a respiratory therapist, Respondent had never been away from the job for such an extended period of time. Also, this was the first time Respondent had been away from her baby since he was released from the hospital. Upon arriving at 3 North, Respondent went to the nurse's station, where she picked up her first chart and read an order for Patient F.P. Respondent admitted that she did not read the entire chart, nor did she look at any other charts at the nurse's station. Respondent reviewed the physician's March 3, 1995, order for Patient F.P. The order, written by Dr. Ashok Modh, indicated that Patient F.P. was to be placed on a trach collar with 40 percent oxygen from 8:00 a.m. to 8:00 p.m., as tolerated by the patient. Patient F.P. was on an intermittent mechanical ventilator rate (IMV) of 6 and PS of 10 from 8:00 p.m. to 8:00 a.m., the evening before. The IMV indicates the amount of breaths a ventilator gives the patient and the PS indicates the patient's own breaths. The ventilator actually counts all the breaths a patient takes regardless of how those breaths are achieved. The order Respondent reviewed on March 3, 1995, is consistent with Patient F.P. having been off the ventilator on previous days. The ventilator order for Patient F.P. indicated that the patient's ventilator settings should be as follows: tidal volume of 700, respiratory rate of 6 breaths per minute, and an inspired oxygen concentration of 40 percent. After reviewing Dr. Modh's order and leaving the nurse's station, Respondent turned left instead of right, and entered the room of Patient L.A. rather than the room of Patient F.P. Respondent believed she was in Patient F.P.'s room. Patient L.A. was seriously ill upon re-admission to UCH on December 6, 1994. Patient L.A. had a history of an abdominal aortio aneurysm, chronic obstructive pulmonary disease, and possible congestive heart failure and cerebrovascular disease. Patient L.A. was expected to live only a few weeks to a few months. Due to the Patient L.A.'s condition and prognosis, at the family's request, the patient was in a DNR (do not resuscitate) status. Patient L.A. was ventilator dependent without prospect of weaning. During the entire time he was at UCH, except for the brief time periods when the hospital staff attempted to wean him, Patient L.A. was on a ventilator. All attempts to wean Patient L.A. were unsuccessful. On the morning of March 3, 1995, Patient L.A.'s condition prevented him from being able to breathe without the assistance of a ventilator. On March 3, 1995, the physician's orders for Patient L.A. included the following ventilator settings: tidal volume of 750, respiratory rate of 22 breaths, and an inspired oxygen concentration of 50 percent. Patient L.A. was one of the patients on 3 North whom Respondent was assigned to care for on March 3, 1995. This was the first time that the Respondent had cared for Patient L.A. When Respondent entered Patient L.A.'s room, Nurse Glade was in the room near the medicine cabinet located in the patient's room. The two engaged in small talk, including some conversation about Respondent's baby. Respondent and Nurse Glade did not engage in any formal discussion regarding Patient L.A. or his condition. Respondent looked at Patient L.A. (thinking he was F.P.) and introduced herself. Patient L.A. did not acknowledge Respondent's presence, but just looked around the room. Respondent indicated to Nurse Glade that she was going to begin weaning the patient, although it is unclear whether Nurse Glade heard Respondent. After the statement by Respondent, Nurse Glade indicated that she would get the patient something to relax him because "he gets this way". Nurse Glade was referring to Patient L.A.'s apparent restlessness. However, in her conversation with Respondent, Nurse Glade did not specify the medication she intended to administer to Patient L.A. On the morning of March 3, 1995, Nurse Glade administered a shot of morphine to Patient L.A. sometime prior to Respondent removing the patient from the ventilator. However, the Respondent neither observed Nurse Glade administering the medication to Patient L.A. nor was Respondent aware of the type of medication Nurse Glade intended to or actually administered to the patient. Respondent left the Patient L.A.'s room for less than a minute to obtain trach collar, tubing, and oxygen from the supply closet down the hall. Respondent returned to Patient L.A.'s room and spoke to him briefly. Because Respondent noticed no secretions, she did not suction the patient. Respondent listened to the patient's breath sounds. The breath sounds were wheezy, but this was not unusual in a patient with chronic pulmonary disease. Still believing she was treating Patient F.P., Respondent looked at the ventilator and noticed a rate of 22. Based upon the fact Respondent knew F.P. was on an IMV of 6 per Dr. Modh's order, she concluded that the Patient L.A. was breathing 18 breaths on his own and thus was doing well. Considering all these factors, Respondent had no reason to believe that the Patient L. A. was not a proper candidate to wean from the ventilator. After assessing the patient, Respondent removed Patient L.A. from the ventilator and placed the trach collar on his neck. Respondent then hooked the tubing on the collar and then to the oxygen from the wall which was placed on 40 percent per Dr. Modh's order. Respondent observed the patient for approximately one minute after the ventilator was removed. Respondent then asked Nurse Glade who was in the room, whether she would be in the room for a few minutes, because Respondent wanted to go across the hall to begin work on another patient. After Nurse Glade indicated that she would be in the room, Respondent proceeded to the patient's room across the hall. Respondent did not anticipate a problem with leaving the patient because she believed that he had been previously weaned from the ventilator. Assuming that Respondent was carrying out the order on the correct patient, there is no specific time for which a respiratory therapist must remain with a patient after performing a procedure. About five minutes after leaving Patient L.A.'s room, Respondent heard someone call for respiratory. Having determined that the call was coming from Patient L.A.'s room, Respondent immediately went to the room where she found several nurses, one of whom was ambuing him. Respondent took over the ambuing from the nurse and proceeded to give Patient L.A. 100 percent oxygen. Dr. Modh, Patient L.A's pulmonary consultant, later arrived to assess the situation. At that time Respondent told Dr. Modh that she was weaning the patient, and "He didn't handle it". Dr. Modh responded, "Doing treatment?" Respondent then repeated, "No, I was weaning him". It was only at this point that Respondent learned that she had been treating Patient L.A., and not Patient F.P. When Dr. Modh entered Patient L.A.'s room, the patient was in agional cardiac rhythm, a cardiac rhythm which indicates the heart is dying. Dr. Modh ordered Epinephrine for Patient L.A., but when that was not successful, further efforts to resuscitate the patient were discontinued due to Patient L.A.'s DNR status. Patient L.A. was pronounced dead at 8:32 a.m. on March 3, 1995. Respondent went to speak with her supervisor and the risk manager, who instructed her to fill out an incident report. Several attempts were made by Respondent to complete an incident report, but her initial incident forms were too lengthy. Respondent was instructed to be short and to the point. Respondent was also directed to complete her charting before she left for the day. Respiratory therapists at UCH must use a computer to do their charting. Respondent sought assistance from Mr. Suggs, of UCH's Risk Management office. In order for a respiratory therapist to chart patient information, a therapy procedure must first be coded into the computer. Because Patient L.A. was to have received an aerosol treatment, Respondent entered an aerosol treatment for Patient L.A. The comment section of the form is limited to three lines. Respondent did not use all the available space, but believed that what she wrote adequately described the treatment she provided Patient L.A. The entry made by Respondent read as follows: "PLACED ON TRACH COLLAR AT 40 percent PT DID NOT TOL MORE THAN 5 MIN, PT AMBUED DR, NOTIFIED" At the time Respondent completed the incident report and charted the information on Patient L.A., she was extremely upset. Prior to March 3, 1995, Respondent had never been involved in a situation that required an incident report. Petitioner contends that the medical record prepared by Respondent concerning the events that transpired following the removal of Patient L.A. from the ventilator were inadequate. Specifically, Petitioner contends that Respondent should have included whether Respondent was in the room when Patient L.A. began to experience respiratory distress and a more detailed description of the patient's condition when Respondent was in the room. Further, it was asserted that Respondent's medical records do not indicate why the Respondent removed Patient L.A. from the ventilator. On March 3, 1995, UCH had established protocols for mechanical ventilation which included criteria for weaning a patient from mechanical ventilation. The document entitled "Mechanical Ventilation (General Consideration)" provide in part the following: Among the criteria for weaning from mechanical ventilation are: Therapist confirms order with RN before weaning process. Therapist checks room number and patient's wrists band before weaning. The patient's pathophysiological (clinical) condition which was responsible for his being placed on the ventilator has either resolved or is resolving. The patient while on the ventilator should have an inspired oxygen concentration of less than 40 percent (with good blood gases), should have an inspiratory effect greater than -20 centimeters water pressure, and lungs should be relatively clear. The protocols are "general guidelines and are not meant to be rigid and apply to every case." Some of the guidelines listed in the protocols related to weaning are variable and are not used as strict criteria for electing to start or discontinue mechanical ventilation of a patient. For example, the protocol calls for a patient to have an inspired oxygen concentration of not less that 40 percent. However, an oxygen concentration of 50 would not necessarily disqualify a patient from being removed from a ventilator. There are three criterion which must be followed when disconnecting a patient from a ventilator. The respiratory therapist must look at the order in the chart, properly identify the patient, and assess the patient's status. Prior to removing Patient L.A. from the ventilator, Respondent reviewed the order for Patient F.P. However, Respondent admitted that she did not check the patient's room number and bracelet as required by the UCH protocol for weaning or removing a patient from the ventilator. Respondent assumed that she was in the room of Patient F.P., when she was actually in the room of Patient L.A. She observed no significant secretions which warranted suctioning, and Patient L.A. did not appear to be in any breathing distress. Respondent listened to Patient L.A.'s breath sounds which seemed consistent with the documented lung disease. Based upon Respondent's assessment and observations, Patient L.A. appeared to be a standard ventilator patient and a suitable candidate for weaning. In the instant case, given her observations and assessment, Respondent had no reason to question the physician's orders in regard to moving the patient from the ventilator. Therefore, Respondent removed Patient L.A. from the ventilator. Respondent did not follow established hospital protocol when she removed Patient L.A. from the ventilator. Specifically, Respondent failed to check the room number and the patient's wristband before weaning him from the ventilator. Respondent has not worked as a respiratory therapist since March 3, 1995. Although, UCH has never officially terminated Respondent, she has not been allowed to return to work. As a result, Respondent and her family have suffered financial hardship. Before this case, Respondent had practiced respiratory therapy for over four years with no history of any disciplinary action being taken against her license. Furthermore, Respondent has never been disciplined or admonished by a hospital. Respondent enjoys a reputation as an excellent respiratory therapist among health care professionals, including physicians, administrators, and other respiratory therapists. As a licensed respiratory therapist, Respondent was an exemplary employee with excellent skills and knowledge of respiratory care services.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered suspending the license of Respondent, Dena Wadzinski, for a period of eighteen (18) months, to be followed by a one year period of probation, under such terms and conditions as prescribed by the Board of Medicine. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of December, 1995. CARLOYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3555 The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. - 7. Subordinate or unnecessary to result reached. 8. - 11. Accepted and incorporated. Rejected as not supported by clear and convincing evidence. - 18. Subordinate to result reached. 19. - 27. Accepted and incorporated to extent subordinate and unnecessary. Rejected as not supported by clear and convincing evidence. Rejected as not supported by competent and substantial evidence. - 31. Accepted and incorporated. 32. - 33. Accepted as to Respondent's failure to check room number and patient wristband; remainder rejected as not supported by competent and substantial evidence or clear and convincing evidence. 34. - 38. Accepted and incorporated. Accepted. Accepted as to statement that Respondent required to listen to breath sounds; remainder rejected as not supported by clear and convincing evidence. Rejected as not supported by competent and substantial evidence. Rejected as not supported by competent and substantial evidence or clear and convincing evidence. Accepted. Respondent's Proposed Findings of Fact. 1. - 20. Accepted and incorporated to the extent not subordinate or necessary. 21. - 23. Accepted and incorporated. 24. Subordinate to the result reached. 25-29. Accepted and incorporated. 30. - 31. Accepted. 32. - 33. Accepted and incorporated. 34. Subordinate to result reached. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman, Hunter & Malloy Suite 1950 201 East Kennedy Boulevard Tampa, Florida 33602 Monica Felder, Esquire Kevin W. Crews, Esquire Agency for Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770
Findings Of Fact Respondent is, and has been at all times material hereto, licensed by the State of Florida as a Respiratory Therapist, non-critical care status, having bean issued license number N000008. On March 30, 1988, Respondent applied to Petitioner for licensure as a Respiratory Therapist, non-critical care status, under a special exemption for certification without examination. Respondent has not passed the licensing examination on any of the three occasions she has taken it. Respondent submitted the required application to the Board of Medicine accompanied by a copy of a graduate equivalency diploma (G.E.D.) #293361 issued in the name of Beverly Burke". On July 21, 1988, the Advisory Council on Regulatory Care approved Respondent's application for licensure as a Respiratory Therapist, non-critical care status. On August 18, 1988, Respondent requested that the Board of Medicine upgrade her license from non-critical care status to critical care status. A critical care status position usually pays a higher salary and requires more skill than a non-critical care status position. Respondent submitted an application, accompanied by G.E.D. #293361 and other supporting documentation. On September 23, 1988, the Florida Department of Education learned that G.E.D. #293361 was issued to Edwin G. Burke, Respondent's husband. Respondent has neither a high School diploma nor a G.E.D. The document Respondent submitted with her application was her husband's G.E.D. which Respondent had falsified to make it appear that she met the statutory criteria for licensure. Respondent has worked as a respiratory therapist since 1982. Since 1982, Respondent has, from time to time, attended Broward Community College on a part-time basis, in an attempt to combine an Associate of Arts degree with a G.E.D. As of the time of the hearing, Respondent had not achieved either degree, but she had resumed work toward her G.E.D. On February 20, 1989, the Board of Medicine denied Respondent's application for licensure as a Respiratory Therapist, critical care status. Thereafter, this Administrative Complaint, seeking to discipline the licensure as a Respiratory Therapist, non-critical care status, was filed. Respondent timely filed a request for a formal administrative hearing. There was no evidence that any complaints had been previously lodged against Respondent or that she had been previously disciplined by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Professional Regulation, Board of Medicine, which finds Respondent guilty of having violated Section 468.365(1)(a), Florida Statutes, which further finds that Respondent does not meet the statutory criteria for registration as a Respiratory Therapist, and which revokes the Respiratory Therapist registration of Beverly Burke. DONE AND ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3672 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact :n paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order, except that the date of the approval by the Advisory Council on Respiratory Care was July 21, 1988, not July 27, 1988. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material pari~ by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Susan Loehn, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Alan S. Glueck, Esquire 2331 North State Road #7 Suite 106 Fort Lauderdale, Florida 33313 Beverly Burke 6940 N.W. 6th Court Plantation, Florida 33317 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent has been convicted or found guilty of a crime directly relating to the practice of respiratory care or his ability to practice respiratory care and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a licensed respiratory therapist, holding license number RT 0000039. He has not been previously disciplined. Following his completion of a training program in respiratory care at the University of Central Florida in June, 1979, Respondent began his full-time employment at the Orlando Regional Medical Center as a neonatal ICU therapist became a supervisor three years later. Almost three years after becoming a supervisor, in April, 1985, Respondent became an educational coordinator. He was employed in this capacity at the time of the events in question. During his employment at the Orlando Regional Medical Center, Respondent met a nurse, whom he began to date. The relationship endured for about six years. At first, they got along well, but, after about four years, the relationship deteriorated. Seeking marital counselling, Respondent and his female companion were told that each was manipulating the other and their relationship involved unhealthy, obsessive aspects. On the evening of June 12, 1990, Respondent confronted his female companion about another man whom she was dating later that evening. In a jealous rage when she did not return to her home when she had said she would, Respondent drove to her house and entered without permission, using a key that he had obtained without her consent. Respondent found the woman, who had since returned home, and initiated an angry, violent altercation. Respondent grabbed the woman, inflicting four or five bruises and scratches. The marks were mostly on the woman's arms with one small scratch on her neck. Ripping the woman's clothing, Respondent forcibly removed a tampon from her vagina. He lied to her that he had already killed her new male friend and threatened to kill her. When he finally calmed down, he and the woman spoke for sometime before he left the house. Once he left, the woman called the police and reported what Respondent had done. She was very frightened by the incident and was crying when the police arrived. After being arrested on various charges, Respondent eventually pleaded guilty to the felonies of aggravated battery and burglary of a dwelling. The sentencing section of the final order states that "adjudication of guilt was withheld, a finding of guilt entered." The judge sentenced Respondent on November 5, 1990, to 24 months' community control followed by 10 years' supervised probation. To date, Respondent has completed his sentence satisfactorily, including counselling to enable him to control his anger. He has since married a woman other than the woman who was the subject of the incident described above, and they have recently had a child. Numerous coworkers, supervisors, friends, and family testified in support of Respondent. His professional colleagues uniformly described Respondent as a highly competent practitioner, whose practice was never affected by the above-described incident or other acts of ill-temper. Respondent has above-average skills as a respiratory therapist and has ably trained other persons in the profession. All of the witnesses described Respondent as a supportive, patient, and caring person for whom the subject incident was out of character. The loss of his license would have a severe effect upon Respondent's ability to support is family. If allowed to continue to practice as a respiratory therapist, Respondent would not represent any risk to the public or his patients.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order imposing an administrative fine of $1000 and placing Respondent on probation for a period of five years, during which time Respondent shall undergo such supervision and monitoring as the Board deems suitable. ENTERED this 8th day of November, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Francesca Plendl, Senior Attorney Department of Professional Regulation 1940 North Monroe St. Tallahassee, FL 32399-0750 Mark S. Blechman Lubet & Blechman 209 East Ridgewood St. Orlando, FL 32801
Findings Of Fact Sobel has applied for a license under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, as a Laboratory personnel supervisor in the speciality of Chemistry, Respiratory Therapy. On August 23, 1977, Sobel was notified by HRS that his application was denied because he lacked a degree in Respiratory Therapy or in the alternative that he lacked seven years experience in Chemistry (special). On September 2, 1977, Sobel requested an administrative hearing. Sobel has been given credit by HRS for six years experience in Chemistry (special). Long Island University, Sobel's alma mater, conducts a respiratory therapist program of at least two years duration. This program is accredited by the Council on Medical Education of the American Medical Association. In addition to his Bachelor of Science degree in Physical Education and his Master of Science degree in Health, Science and Physical Education, Mr. Sobel successfully completed the requirements of training in Respiratory Therapy given by Long Island University. In addition, Sobel is a registered Respiratory Therapist with the National Board of Respiratory Therapy, Inc., and has successfully completed the written registry examination for self assessment administered by the National Board for Respiratory Therapy. HRS recognizes that fourteen hours of Sobel's curriculum as reflected in his transcript of grades qualifies under the suggested basic units of instruction for a two year respiratory therapist program contained in the Allied Medical Directory. These general areas of study form the basis, in part, of accreditation by the Council on Medical Education of the American Medical Association.
