Findings Of Fact Based upon the pleadings and the testimony and evidence adduced at the hearing, the undersigned Hearing Officer finds as follows: Respondent Bonnie Isaac has been a registered nurse in Florida since 1970. She has never been charged with disciplinary action prior to the subject charge. At the time of the offense charged, she was the nurse in charge of the coronary care unit at the Memorial Hospital in Tampa, Florida, having received special training as a coronary care nurse. In June of 1974, respondent underwent massive abdominal surgery and afterwards her doctor prescribed the drug Talwin to relieve the discomfort associated with said surgery. This prescription was in an oral pill form. Prior to the incident in question, she had taken this prescription to relieve abdominal discomfort. It was effective and she had never had other side effects from said prescription. On the evening in question, November 15, 1974, she was not feeling well and had experienced some vomiting. She did not have her oral prescription of Talwin with her (it was at her home) so she went to the hospital pharmacy between 3:00 and 4:00 A.M. and surreptitiously confiscated a package containing 10 ampoules of injectable form Talwin. Her reason for doing so was that she did not feel well, she had not worked for four months and thus had not accumulated time for sick leave. At the time, she felt that the injectable form of Talwin would be more effective than her prescription and would relieve her discomfort, although she admitted that this was a poor choice, was basically wrong, and stated that she would never again take any drug not prescribed for her. Respondent's shift ended at 7:00 A.M. on November 15, 1974, and she had not consumed any of the confiscated Talwin when the same was apprehended from her that same day. Talwin is a prescription drug used as an analgesic for moderate to severe pain. It has a reputation for being an abuse drug and its continued use may result in dependence. Euphoric reactions have been noted, as well as dizziness, light-headedness and distortion of motor abilities.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that the Board of Nursing find respondent guilty as charged and suspend respondent's license for a period of one year. I would further recommend that after the expiration of thirty (30) days of such suspension, the enforcement of the penalty be suspended and respondent be placed on probation for the remaining eleven (11) months. Such a penalty would sufficiently punish the licensee commensurate with her conduct, adequately safeguard and protect the public health and interest and maintain the dignity of the nursing profession. Respectfully submitted and entered this 16th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 C. Martin Lawyer, III, Esquire 1155 East Cass Street Tampa, Florida 33602 Mrs. Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Building B Jacksonville, Florida 32211 Mrs. Bonnie Isaac 5222 Torreador Court, Apt. 9 Temple Terrace, Florida 32617
Findings Of Fact Respondent Anila Poonai began her medical education in her native land, India, and, in 1960, she received a medical degree from Bombay University. After an internship in Bombay, she spent three months in training in the United Kingdom, before travelling to Georgetown, Guyana, to become a resident medical officer at the public hospital there. After two years in Guyana, she returned to England where, in 1964, she passed a post-graduate examination. As a result of a residency in obstetrics and gynecology and a satisfactory showing on the requisite examinations, she became a member, in 1969, of the Royal College of Obstetrics and Gynecology. All told, respondent has spent six years as a resident in obstetrics and gynecology. From England, she travelled to the University of the West Indies in Kingston, Jamaica. At the University of the West Indies, she was senior registrar in obstetrics and gynecology and, for six months, acting lecturer in obstetrics and gynecology. In 1973, she and her husband, who is a general surgeon, moved to Cleveland, Ohio. Respondent has not sought certification by the American College of Obstetrics and Gynecology. She testified that the American College of Obstetrics and Gynecology recognized her membership in the Royal College of Obstetrics and Gynecology as an equivalent certification. Until moving to Port St. Joe, she worked as a house physician in St. Alexis and Hillcrest hospitals in Cleveland. Respondent and her husband moved to Florida at the invitation of the Board of Trustees of the Municipal Hospital of Port St. Joe. The Board wanted to upgrade the Hospital. Almost from the time of their arrival, respondent and her husband found themselves at the center of controversy. Respondent's husband testified that, when he and respondent began work at the Municipal Hospital of Port St. Joe, in August of 1976, norms of practice at the Hospital were "miles below standard" and that the medicine practiced by other physicians in the community was "about 25 years" out of date. Whether true or false, this view, and its blunt articulation, may account for the friction respondent and her husband experienced in their relationships with some of the nurses and physicians with whom they came into contact. Being the only such specialist on the staff, respondent was named chief of obstetrics and gynecology at the Municipal Hospital of Port St. Joe. In this capacity, she ordered drugs and other obstetric and gynecologic supplies for the Hospital. Chief of staff at the Hospital, from 1961, until the spring of 1977, was John Wayne Hendrix, who has practiced medicine in Port St. Joe for some three decades. During Dr. Hendrix' tenure as chief of staff, Dr. Orr of Wewahitchka, a general practitioner, was granted "courtesy privileges" at the Municipal Hospital of Port St. Joe. At all pertinent times, Hospital bylaws forbade a physician to whom only courtesy privileges had been granted, to attend a delivery, except under the supervision of the chief of obstetrics and gynecology. On March 27, 1977, in violation of the Hospital's bylaws, Dr. Orr attempted, for the first and only time, to deliver a baby in the Municipal Hospital of Port St. Joe. When Gloria Pippin, R.N., arrived to begin the 3 to 11 shift, Dr. Orr's patient was already in labor. At 9:30 that night, the patient's cervix was fully dilated; at 9:45 she was taken to the delivery room. At 11:00 Dr. Orr "did a saddle block," i.e., he administered a spinal anesthetic. Five minutes later he had finished an episiotomy. At quarter past eleven, he used Tucker-McClain forceps in an effort to extract the baby. That failing, he tried long Simpson forcens at 11:25 and Kielland forceps at ten minutes before midnight, March 27, 1977. The baby's head was too big for the mother's pelvis. Five minutes later, Ms. Pippin telephoned respondent, at Dr. Orr's request. Respondent expressed dismay that Dr. Orr had been permitted to begin, and asked Ms. Pippin to notify Dr. Hendrix of the situation. She herself telephoned Gerald Sullivan, the chairman of the Hospital's Board of Trustees. Afterwards, she and her husband, Dr. Parmanand Vijay Poonai, went to the Hospital. They arrived at approximately 12:40. Dr. Hendrix, who had considerable experience in performing Ceasarean sections, preceded them to the Hospital. By the time the Drs. Poonai reached the hospital, arrangements had been made for Dr. Orr's patient to be transferred to Panama City's Bay Memorial Hospital. At quarter past midnight, when Dr. Hendrix arrived at the hospital, the mother's blood pressure was 134/78. Ten minutes before she left in the ambulance, her blood pressure was 137/98 and her pulse was 112. At that time, the fetal pulse was 156. At 1:20 a.m., an ambulance left the Municipal Hospital of Port St. Joe for Panama City. When they reached Bay Memorial Hospital, the mother's vital signs and the infant's heart beat were within normal limits. Dr. Stephen Smith, the obstetrician who performed a Caesarean section upon the patient's arrival in Panama City, was the man of the hour. Mother and baby did well. For many years, it has been common to send women in labor to Panama City from Port St. Joe, and hundreds have made the trip. It takes a half hour to an hour to drive from the Port St. Joe hospital to the Panama City hospital. The longer a woman in the condition Dr. Orr's patient was in continues in labor, the greater are the chances of injury or death to the fetus and even to the mother. At no time did Dr. Hendrix telephone respondent on the night of the 27th or morning of the 28th. Neither Dr. Hendrix nor Dr. Orr ever asked respondent for assistance with Dr. Orr's patient. When respondent and her husband arrived at the Hospital early on the morning of March 28, 1977, neither Dr. Hendrix nor Dr. Orr spoke to either of them. Dr. Hendrix refused to speak to them, even though respondent addressed him and asked him specifically about Dr. Orr's patient. Both respondent and her husband remained at the Hospital until after the ambulance left for Panama City. It is unethical for one physician to intervene in the care of a patient whose treatment is being actively managed by another physician, unless requested. It may also be dangerous. On January 16, 1978, Dr. P. V. Poonai saw Beverly R. Bass in his office. Ms. Bass, who was born on December 15, 1951, told Dr. P. V. Poonai that a Dr. Vasquez of Port St. Joe (of whose wife Ms. Bass was a cousin) and other physicians had recommended a hysterectomy; that she had been passing blood clots for the preceding four months; that she had epigastric pain; that her most recent menstrual period was December 19, 1977; that she had two daughters and a son by three different men; that she wanted no more children; and that she wanted a hysterectomy both to prevent conception and to stop her bleeding. After examining her and finding an ovarian cyst and a slightly bulky uterus, Dr. P. V. Poonai prescribed hospitalization for a series of gastrointestinal X-rays to investigate the possibility of an ulcer, and for an obstetric and gynecologic consultation with respondent. On January 18, 1978, Ms. Bass entered the Municipal Hospital of Port St. Joe. An electrocardiogram was done. Dr. J. B. Harbison prepared a report of the X-rays taken as prescribed by Dr. P. V. Poonai. Respondent met Ms. Bass for the first time, in the Hospital, on January 19, 1978. She took Ms. Bass' history and examined her under general anesthesia, finding a left ovarian cyst, a normal cervix and a bulky anteverted uterus. Respondent recommended a dilatation and curettage (d & c) for diagnostic and therapeutic purposes, and, on the same day, Ms. Bass signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a d & c. The following day, January 20, 1978, respondent did perform a routine d & c. Afterwards, the curettings resulting from the procedure were transmitted to a pathologist. After examining this material, the pathologist prepared a tissue report, and stated, as the pathological diagnosis: SECRETORY PHASE, DYSFUNCTIONAL BLEEDING. NO EVIDENCE OF POLYPS, PREGNANCY OR MALIGNANCY OBSERVED IN THE SPECIMEN SUBMITTED. FRAGMENT OF ENDOCERVIX WITH SQUAMOUS METAPLASIA, ACUTE AND CHRONIC INFLAMATION. Petitioner's exhibit No. 2. On January 21, 1978, Ms. Bass left the hospital, with a final diagnosis of dysfunctional bleeding. Before discharging Ms. Bass, respondent instructed her to refrain from sexual intercourse and from douches for four to six weeks. Eight to ten days after her discharge, Ms. Bass resumed sexual intercourse. On February 2, 1978, respondent saw Ms. Bass at her office and discussed the pathologist's tissue report with her. She related to Ms. Bass her clinical impression of uterine fibroids and prescribed Orthonovum, a birth control pill, as an additional means of forestalling dysfunctional bleeding. On February 2, Ms. Bass reported no bleeding subsequent to the d & c. Respondent did not ask and Ms. Bass did not volunteer that she had failed to follow instructions to abstain from sexual intercourse. Although the birth control pills respondent prescribed were to be taken daily, Ms. Bass did not take one every day. Respondent next saw Ms. Bass on February 13, 1978, when her only complaint was of an upper respiratory tract infection. On March 4, 1978, Ms. Bass returned to respondent's office complaining of heavy breakthrough bleeding, and reported that she was passing blood clots. Respondent examined her and suggested a hysterectomy. Ms. Bass asked if she could enter the hospital on March 12, 1978, saying she could make arrangements for her children by then. Respondent administered no pregnancy test to Ms. Bass on March 4, 1978, or at any time thereafter. She thought none was necessary because she believed that Ms. Bass had followed her instructions. Respondent does not knowingly perform abortions, even for therapeutic purposes, on account of religious scruples. A d & c elicits inflamatory responses hostile to fertilization. Even when a pregnancy has begun, no pregnancy test will be positive before 41 days have elapsed since the last menstrual period. Some hospitals, like Jackson Memorial in Miami, require pregnancy tests before surgery as a matter of routine, but the Municipal Hospital of Port St. Joe had no such policy. On March 12, 1978, Ms. Bass was admitted to the Municipal Hospital of Port St. Joe. The following day respondent performed a hysterectomy and an incidental appendectomy. An appendectomy ordinarily accompanies this procedure. Respondent's pre-operative diagnosis was "menorrhagia and fibroid uterus," and her postoperative diagnosis, on March 13, 1978, was unchanged. This was the same condition specified on the form consent to diagnostic and treatment procedures which Ms. Bass signed on March 12, 1978, authorizing respondent to perform a hysterectomy. Ordinarily, a surgeon performing a hysterectomy removes the uterus intact, as respondent did in the case of Beverly Bass. After its removal but while still intact, Ms. Bass' uterus yielded no additional information pertinent to the diagnosis of her condition. The uterus was sent to a pathologist. After examining the uterus, the pathologist prepared a tissue report and stated, as the pathological diagnosis: APPENDIX WITH FIBROUS OBLITERATION (DISTAL) AND FOCAL FIBROUS ADHESIONS. LUTEAL CYST OF LEFT OVARY, BENIGN. PARATUBAL CYST, BENIGN, RIGHT. ENLARGED UTERUS (205 GMS) WITH: ENDOMETRIUM: CHANGES RELATED TO PREGNANCY (HYPERSECRETORY GLANDS AND DECIDUAL REACTION). ACUTE ENDOMETRITIS. ANGULAR IMPLANT OF PLACENTA ASSOCIATED WITH UNDERLYING NECROSIS AND ACUTE INFLAMMATION OF DECIDUA, ACCOMPANIED BY HEMATOMAS. CHORION-AMNIONITIS, ACUTE, NECROTISING ASSOCIATED WITH NECROSIS OF GROUPS OF CHORION VILLI. EMBRYO, APPROXIMATELY 4-6 WEEKS OLD. FLUID BLOOD PRESENT IN UTERINE CAVITY. MYOMETRIUM: HYPERTROPHY (FUNCTIONAL). CERVIX: ACUTE AND CHRONIC CERVICITIS ASSOCIATED WITH SQUAMOUS METAPLASIA OF THE ENDOCERVICAL LINING, FOCAL. SQUAMOUS CELL HYPERPLASIA OF ECTOCERVIX, BENIGN. MUCUS CYSTS. When the pathologist opened the uterus, he found an enlarged cavity partly occupied by a ruptured ovisac. Extruded through the perforation, hanging outside of the ovisac from the umbilical cord, was an embryo 1.8 centimeters long. The placenta, which was acutely inflamed, adhered to the fundus at a right angle. Uterine rupture is inevitable if an angular pregnancy continues, but it is possible for an angular pregnancy to go to term, just as it is possible for a fetus to live after the ovisac has burst. In Ms. Bass' case, however, the embryo was probably non-viable at the time of the hysterectomy. The pathologist's report arrived while Ms. Bass was still in the hospital. Because respondent was upset on reading it, she asked Dr. P. V. Poonai to tell Ms. Bass what the pathologist had learned. Dr. P. V. Poonai did tell Ms. Bass, at which time she confirmed that she had engaged in sexual intercourse shortly after the d & c. Confusing an incipient pregnancy with a fibroid uterus is an occasional mistake any physician could make. An isolated mistake of this kind does not constitute a deviation from acceptable medical practice. The most conservative approach is to wait for two months after the patient has stopped taking birth control pills, before performing a "semi-elective" procedure, and to administer a pregnancy test beforehand. Several physicians testified, however, that they would not have ordered a pregnancy test before performing a hysterectomy in the circumstances of Ms. Bass' case. Respondent did not prepare the summary sheet at the end of Ms. Bass' stay after her March 12, 1978, admission, Chart No. 23622. Petitioner's exhibit No. 2A. The summary sheet that was prepared is not signed by anybody. When respondent asked for the chart in order to prepare a summary sheet, the Hospital's records custodian advised her that it was not with the other charts. When Beverly D. Stover was about three and a half months pregnant, she began seeing respondent. She saw her every month until November, when she began seeing her every two weeks. On her first visit, she told respondent she wanted to be sterilized after the birth of the child she was carrying, her second. At respondent's request, Mrs. Stover brought her husband to respondent's office, about six weeks before the baby was born. The three of them discussed Mrs. Stover's planned sterilization. On November 22, 1977, both Mr. and Mrs. Stover signed a form request for sterilization witnessed by two persons who were not called to testify at the hearing. On November 30, 1977, Mrs. Stover was admitted to the Municipal Hospital of Port St. Joe. On the day of her admission, she signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a bilateral tubal transection and ligation, and both she and her husband signed another form request for sterilization. At the time of the signing of the last two documents, Mrs. Stover told Sarah Maddux, the nurse who gave her the forms to sign, that she did not want to be sterilized unless her baby was normal. Ms. Maddux never relayed this oral reservation to respondent. It is impossible to tell, at the time of birth, whether an infant has a sense of smell, whether it is intellectually impaired, or whether it can see or hear. At 1:50 on the afternoon of November 30, 1977, Mrs. Stover was delivered of a daughter, Katrina. Respondent examined the eight pound two ounce infant for two minutes. She put her fingers in the infant's mouth, cleared a passage for air, and checked for a cleft palate. The child started crying. Respondent observed good muscle tone. Respondent clamped, then cut the umbilical cord. She inspected the baby all over, noticed puffiness on the child's back, which she attributed to the trauma of birth, and noticed that the baby's anal opening was smaller than normal, but was not alarmed. She thought she had seen even smaller such openings which had not affected function. Respondent placed Katrina on her mother's stomach, and asked Mrs. Stover whether she was ready for surgery. When Mrs. Stover answered affirmatively, at 1:55, anesthesia was administered, at respondent's direction. A nurse took the baby from respondent for cleaning. In contemporaneous notes, the nurse described the baby as apparently normal. In fact, Katrina had an imperforate anus or anoperitoneal fistula, and a lipoma on the sacral area of her back. These conditions were discovered a few hours later by a nurse in the Hospital nursery. The nurse brought both problems to the attention of Dr. Shirley R. Simpson, a physician who had been on the staff of the Municipal Hospital of Port St. Joe for approximately ten years and who happened to be in the Hospital at the time. Respondent had left Port St. Joe to meet her husband at the airport in Panama City. Examining Katrina at the nurse's request, Dr. Simpson mistook the lipoma for a meningomyocele. Dr. Simpson took no further action in the case, other than leaving word with the nurse for respondent to call her, until she furnished the Board of Medical Examiners Katrina's hospital chart. By that time, somebody had forged an entry in the nurse's notes for 1:50 P.M. on November 30, 1977, viz., "Appears to have NO rectal orifice-Dr. A. Poonai notified." Petitioner's exhibit No. 4. After her return from Panama City, on December 1, 1977, respondent correctly diagnosed the lipoma. At respondent's request, Dr. P. V. Poonai examined Katrina. After obtaining consent, Dr. P. V. Poonai, used surgical implements, when the baby was 16 hours old, to remove the obstruction which had prevented the expulsion of all but the merest drop of meconium during the first 16 hours of the baby's life. Although this emergency procedure solved the immediate problem and allowed the baby to defecate, further surgery has been necessary to move the anal opening to its norman site posterior of the dimple where Dr. P. V. Poonai made his incision. An imperforate anus occurs once in 5,000 births. The imperforation may or may not be visible, depending on its location. In the past five years, three infants with this problem have been born in Panama City. In each instance, the examining pediatrician did not discover the imperforation, which came to light some hours after birth, on account of the baby's failure to expel its first stool. In Katrina's case, however, the abnormality could be seen and its existence could be confirmed by an attempt to probe. The lipoma on Katrina's back measured less than four by five centimeters in area. It was a soft, skin-colored mass of benign, fatty tissue, which a pediatric surgeon has since removed. The trauma of birth sometimes causes edemas that resemble lipomas. No harm befell Katrina as a result of respondent's failure to diagnose either her lipoma or her anal abnormality at birth. Beverly Stover continued as a patient of respondent for some time after Katrina's birth. Respondent first saw a certain patient on September 19, 1977. This patient, who was born on June 1, 1907, suffered from diabetes mellitus and congestive heart failure, among other things. Two months earlier she had had a second pacemaker inserted. On her first visit to respondent, the patient complained of pain in her chest and of dysuria. She said she had difficulty retaining urine, but that she was unable to empty her bladder completely. In examining her, respondent discovered a moderate cystocele, which is a herniation of the bladder into the vagina. Respondent admitted her into the Municipal Hospital of Port St. Joe for treatment of her congestive heart failure, the cause of the chest pain. Congestive heart failure is not a disease of which people are cured, but it is a condition that may grow better or worse. When this patient's condition improved, respondent sent her home. Respondent saw her again in her office on October 3, 1977, when she complained of paroxysmal dyspnea and swollen feet. Respondent diagnosed superimposed congestive cardiac failure and prescribed a diuretic. On November 18, 1977, respondent admitted her to the hospital because symptoms like those she had complained of during the office visit persisted. On November 22, 1977, she was discharged. A similar episode resulted in rehospitalization from January 10, 1978, through January 19, 1978. The patient entered the hospital again, on February 12, 1978, with congestive cardiac failure. She complained about nocturnal incontinence and asked respondent to correct her bladder problem. At this time, respondent described the cystocele as large. After medical care which petitioner's own witness described as excellent, the patient's condition stabilized. Respondent testified that, in her judgment, the patient's general condition just before surgery was as good as it was likely ever to be. Nine days after she admitted the patient, respondent effected a repair of the cystocele by performing an anterior colporrhapy under local anesthetic. This procedure requires unusual surgical skill, and most surgeons do not attempt it. The repair of a cystocele is a therapeutic measure. In the absence of treatment, urine is likely to stagnate in the herniated portion of the bladder, and become a source of possibly serious infections. All surgical techniques for repairing cystoceles, other than the one employed by respondent, require general anesthesia. The risk from anesthesia to which respondent's patient was subjected was very moderate compared to the risk from general anesthesia. It was the same risk a person faces whose mouth is numbed by local anesthesia before a tooth is filled. Respondent had performed this operation 20 or 30 times before, and had performed it on her own mother, who was 75 years old and suffered from myocardial ischemia at the time. Sometimes, although decreasingly in recent years, a physician may employ a pessary as treatment for a cystocele. A pessary is a rubber or plastic solid that can be inserted in the vagina as a support for the intruding bladder. This is only a temporary measure, however, and involves a high risk of infection, which is the principal danger the cystocele itself poses. Respondent testified that her prescription for temporary relief was bed rest, since lying flat relieves the pressure that forces part of the bladder into the vagina. Respondent first saw another patient, the 29 year old mother of three children, on December 23, 1976. This patient was in the Municipal Hospital of Port St. Joe at the time, for a hemorrhoidectomy, and respondent was called in because the patient had complained of profuse, irregular and painful vaginal bleeding over a period of several years, and particularly during the preceding nine months to a year. The patient was anemic, according to tests run two days earlier. In July of 1976, the patient had been hospitalized on account of pelvic sepsis and bleeding. At that time, Dr. Simpson told her she would need a hysterectomy in the near future. She had been hospitalized for the same reasons in 1975. Respondent ordered a pap smear and an X-ray to locate a coil that had been inserted into the patient's uterus, as a contraceptive measure. When she recovered from the hemorrhoidectomy, the patient was discharged. After three weeks of severe menorrhagia, including two final days of heavy clotting, the patient was readmitted, on January 24, 1977, to the Municipal Hospital of Port St. Joe. Respondent had earlier prescribed iron pills. Perhaps as a result, the patient was no longer anemic. Respondent observed the patient's uterus "enlarged to about 10 weeks size with [what she thought was] fibroids. Petitioner's exhibit No. 6. Respondent ordered no pregnancy test. When an intrauterine device is in place, excessive vaginal bleeding is inconsistent with a viable pregnancy. An intrauterine device not only irritates the wall of the uterus, making conception unlikely, but also operates to abort incipient pregnancies, in the event of conception. With the intrauterine device still in place, on January 26, 1977, respondent performed a total abdominal hysterectomy and an incidental appendectomy, with conservation of both ovaries. Afterwards, the appendix, part of the cervix, and the uterus were sent to a pathologist. The pathologist examined these materials, and, on January 31, 1977, prepared a tissue report, in which he stated as the pathological diagnosis: APPENDIX WITH SEROSAL FIBROSIS, FOCAL (INCIDENTAL). ENDOMETRIUM: DECIDUA WITH EXTENSIVE NECROSIS ASSOCIATED WITH CHORIONIC VILLI (PREGNANCY) WHICH ARE LARGELY NON-VIABLE. SECRETORY ENDOMETRIUM WITH ACUTE AND CHRONIC ENDOMETRITIS. MYOMETRIUM: HYPERTROPHY, POSTERIOR. CERVIX: CHRONIC ENDOCERVICITIS AND MUCUS CYSTS. SLIGHTLY HYPERTROPHIC UTERUS (95 GRAMS). The pathologist found no evidence of fibroids. This demonstrates that respordent's clinical diagnosis of fibroids was inaccurate. One of the pathologists who routinely examined tissue removed by surgeons in the Municipal Hospital of Port St. Joe, Dr. Garcia-Rios, also routinely examined tissue removed by surgeons in other hospitals. Whenever a tissue report indicated disagreement between a clinical diagnosis and the pathological diagnosis, Dr. Garcia-Rios designated the tissue report "Code 3." The frequency of Code 3 tissue reports did not differ as between specimens removed by respondent and specimens Dr. Garcia-Rios examined which had been removed by other surgeons, taken as a group. From the presence of morphologically viable chorionic villi, the pathologist concluded that the patient had been pregnant. From pathological findings alone, he was unable to determine whether the pregnancy had terminated weeks or months earlier; or whether an ongoing microscopic pregnancy was interrupted by the hysterectomy. (Clinical evidence-excessive bleeding-ruled out the possibility of a viable pregnancy.) The pathologist's findings were consistent with, but did not conclusively establish the existence of, a placental polyp. Placental polyps may cause prolonged bleeding. Before surgery, respondent discussed three options with this patient: removal of the intrauterine device, removal of the intrauterine device followed by a d & c, and hysterectomy. The patient said that the presence or absence of an intrauterine device had made no difference in her bleeding problem in the past. She also told respondent that she wanted no more children, and that she wanted prompt, definitive treatment for her bleeding. After listening to explanations from respondent about the available options, the patient chose a hysterectomy. Respondent did not tell her that a hysterectomy was the only way to correct her problem. The patient testified that she has had no problems since her surgery; and that, knowing what the pathologist's tissue report subsequently revealed, she would make the same choice again, at least if it would not involve her as a witness in legal proceedings. Respondent initialled a summary sheet in the patient's chart, which stated the patient's final diagnosis as, inter alia, "FIBROID UTERUS [and] MENORRHAGIA." This final diagnosis fails to take the pathologist's tissue report into account, even though the tissue report routinely becomes part of the chart and presumably was available to respondent at the time she initialled the summary sheet. Respondent testified that she initialled this summary sheet as one of a group of documents, and that she did not read it beforehand. Any discrepancy between the tissue report and the final diagnosis would have been apparent to a knowledgeable reader. Without the tissue report, respondent would not necessarily have known that the pathologist's findings had demonstrated the error of her diagnosis of fibroid uterus. After controversy about this case arose, respondent caused an addendum to be prepared and incorporated into the chart, on August 16, 1978, and amended the discharge diagnosis to state, inter alia: "Menorrhagia, Chronic endometritis [and] Hypertrophy of the myometrium." This diagnosis is consistent both with respondent's clinical findings and with the pathologist's tissue report. In stating her amended discharge diagnosis, respondent took the tissue report, which had been incorporated into the chart, into account. This amended discharge diagnosis was not shown to be erroneous. On August 11, 1976, respondent saw Linda Whitfield for the first time. She came as a patient to respondent's office and related that her last menstrual period had taken place on June 26, 1976. Respondent examined her, observed a uterus of six weeks' size, and diagnosed early pregnancy. Respondent next saw Mrs. Whitfield in the emergency room of the Municipal Hospital of Port St. Joe on August 27, 1976, when her uterus looked to be of eight weeks' size. There Mrs. Whitfield told respondent that, while driving a tractor earlier in the day, she had experienced abdominal cramps and fairly heavy bleeding. Mrs. Whitfield did not report and respondent did not observe the passage of a fetus. Respondent diagnosed a threatened abortion (miscarriage) admitted Mrs. Whitfield to the Hospital, ordered bed rest, ordered that Mrs. Whitfield's urine be tested for the presence of chorionic gonadotropin, and prescribed an intramuscular injection of two cubic centimeters (cc.) of Depo-Provera (Upjohn's registered trademark for sterile medroxyprogesterone acetate suspension, U.S.P.). Although respondent did not specify the strength, she had ordered the Hospital's entire supply of Depo-Provera, and knew that the only strength on hand was 100 milligrams per milliliter. Depo-Provera is a synthetic progestational agent in an oily base. It has been commercially available for approximately 15 years. The 1971 Physicians' Desk Reference (PDR) reported that daily doses were indicated in the event of a threatened miscarriage. The 1972 PDR reported pregnancy as a contraindication for the use of Depo-Provera. (In 1972, respondent lived in Jamacia.) The 1976 PDR and the 1977 PDR, however, contain neither indications nor contraindications for Depo-Provera, in the event of pregnancy. The 1979 PDR reports pregnancy as a contraindication for the use of Depo-Provera. The phrase "missed abortion" describes the situation where a non- viable fetus remains in its mother's uterus. "Missed abortion" was named as a contraindication for Depo-Provera in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield. The contraindication of Depo-Provera for missed abortion reflected the view, generally shared in the medical community for many years but now rejected, that Depo-Provera acts to prevent uterine contractions and so make fetal expulsion less likely. The only indication stated in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield, was "[a]djunctive therapy and palliative treatment of inoperable, recurrent, and metastatic endometrial carcinoma." Petitioner's exhibit No. 12B. Also on petitioner's exhibit No. 12B, under the heading "ADVERSE REACTIONS," is the statement: There is inferential evidence supporting the existence of an association between the administration of progestins early in pregnancy and the occurence of congenital malformations (see also WARNINGS). The referenced warning stated that "[u]sage in pregnancy is not recommended because of data indicating a possible association between administration of progestins early in pregnancy and congenital heart defects in the offspring." Petitioner's exhibit No. 12B. Mrs. Whitfield bled, off and on, during her first stay in the Hospital under respondent's care, until two or three days before her discharge. Because Mrs. Whitfield was bleeding on August 28, 1976, respondent prescribed an intra- muscular injection of one cc. of Depo-Provera. Altogether, respondent prescribed 1100 milligrams of Depo-Provera for Mrs. Whitfield over a 16 day period. She ordered administrations of two cc. doses of Depo-Provera on September 2, 1976, on September 4, 1976, on September 7, 1976, and on September 11, 1976, the day Mrs. Whitfield was discharged. At that time, respondent was hopeful that the pregnancy had been saved. At the time respondent prescribed Depo-Provera for Mrs. Whitfield, she believed she was aware of the inferential evidence referred to in the adverse reaction portion of petitioner's exhibit No. 12B. The evidence of which respondent was aware was the result of a retrospective study involving 10,000 mothers who took various hormonal substances during pregnancy and 10,000 mothers who did not. The number of deformed children born to mothers who had taken the hormonal substances exceeded by two percent the number of deformed children born to the mothers who had not. At the time she prescribed Depo-Provera for Mrs. Whitfield, respondent was one of a considerable number of physicians who believed that this drug could supply a hormonal deficiency that a woman faced with a threatened abortion (miscarriage) might lack, and which might be causing premature uterine contractions. Respondent weighed Depo-Provera's possibly teratogenic effect against its possibly ameliorative effect and made a conscientious professional judgment to prescribe Depo-Provera for Mrs. Whitfield. The 1971 PDR specifies a dosage of 50 milligrams day for threatened abortion, as long as symptoms persist. No dosages for threatened abortion are specified in the 1976 PDR, the 1977 PDR or on petitioner's exhibit No. 12B, the literature that accompanied each vial of Depo-Provera. When used to treat "inoperable, recurrent and metastatic endometrial carcinoma," Depo-Provera is prescribed in doses of 100 to 1000 milligrams at intervals of one week to one month. No evidence adduced at the hearing suggested that Depo-Provera has any known or suspected toxic effect on the mother, regardless of the dosage. Nor was it shown to have been scientifically established that Depo-Provera has had an adverse effect on any fetus, when administered to the mother, regardless of the dosage. It is no longer used in the case of threatened miscarriages because recent evidence suggests that it is inefficacious for this purpose. Outside of the United States, Depo-Provera is used as a contraceptive. While Mrs. Whitfield was in the Hospital, on August 29, 1976, respondent ordered a blood serum test to determine the level of chorionic gonadotropin. The results of this test, which respondent saw for the first time on September 16, 1976, were 6,554 milliunits of chorionic gonadotropine per milligram of test fluid. On September 16, 1976, Mrs. Whitfield came to respondent's office and complained of additional bleeding. At that time, a two minute slide test for pregnancy was performed, with negative results. Respondent examined Mrs. Whitfield and concluded that her pregnancy had miscarried despite the efforts to preserve it. She was admitted to the Municipal Hospital of Port St. Joe on September 17, 1976, with the diagnosis of "incomplete abortion," which was changed to "missed abortion," as the pre-operative diagnosis. On the day of her admission, additional pregnancy tests were ordered. A two minute test was negative, but a two hour test was positive. Every pregnancy test is fallible to some extent. These test results did not alter respondent's clinical judgment that the pregnancy had miscarried. A pregnancy test of a urine specimen can yield positive results from four days to two weeks after a pregnancy ends, and sometimes even later. It was undisputed that a result on a blood serum test for chorionic gonadotropin of 6,554 milliunits per milliliter virtually rules out a viable pregnancy of two or three months' duration, although the level may fall that low after the fifth month of a normal pregnancy. At eight to ten weeks, normal levels range from 46,000 to 60,000 milliunits per milliliter. Respondent performed a routine d & c on September 18, 1976. Fifteen grams of the resultant curettings were transmitted to a pathologist who reported "products of conception," but no embryo. Port St. Joe is not a prosperous town. At the time of the hearing, respondent and her husband were the only physicians in Port St. Joe who accepted patients on medicaid. Respondent has admitted patients approximately 500 times to the Municipal Hospital of Port St. Joe. During her time in Port St. Joe, respondent has treated numerous medicaid patients, and has delivered 249 babies. In one instance there was a neonatal fatality. This record compares favorably with a national average on the order of 12 neonatal fatalities per 1,000 births. Respondent has three articles in respectable technical journals to her credit, including two in "Obstetrics and Gynecology." On one she collaborated with her husband. They received 168 requests for reprints from interested persons in some 15 countries. The other article in "Obstetrics and Gynecology" she co-authored describes the first documented full-term pregnancy of a woman with diabetes mellitus, Addison's disease, and hyperthyroidism. The patient described in the article was under respondent's care for the duration of her pregnancy, which eventuated in a normal delivery.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss counts one, two, four, five and six of the administrative complaint. That petitioner reprimand respondent for her failure to diagnose the imperforation at the time of birth, in violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), as alleged in count three of the administrative complaint. That, in all other respects, petitioner dismiss count three of the administrative complaint. DONE and ENTERED this 15th day of November, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Clifford L. Davis, Esquire 197 South Bronough Street Tallahassee, Florida 32301 J. Ben Watkins, Esquire Post Office Drawer 1814 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS IN RE: The License to Practice Medicine as a Physician of: CASE NO. 79-1144 ANILA POONAI, M.D. License No. 27070 /
Findings Of Fact Several days prior to November 1, 1974, respondent had gone to a licensed medical doctor complaining of nervousness and a swollen and painful left leg. This doctor diagnosed her condition as plebitis and prescribed antibiotics and also the drug Darvon for pain. There was no evidence of elevated blood pressure at this time. On November 1, 1974, the respondent was on duty as a licensed practical nurse at the Cor Jusu Convalescent Center in Tampa, Florida. At approximately 9:00 P.M., the respondent began to have back pains and feel nervous and shaky. The respondent could not remember whether or not she had taken the prescribed drug Darvon, which can produce light-headedness, prior to going on duty that day. Another nurse on duty on the same floor, Ms. Ems, took respondent's blood pressure, which read 140 over 110. The respondent testified that she feared that she was going to have a stroke. She attempted to call her doctor, but could not reach him. She testified that she then called another doctor, Dr. Decobo, who told her to come in to see him the next day. Dr. Decobo testified that he could not remember whether or not he talked to respondent over the telephone on November 1, 1974. The respondent then decided to and did consume the drug Vistaril, which she thought to be helpful in relieving apprehension. This drug was obtained from those prescribed for a patient, Mrs. Falty. This was not a routine medicine for Mrs. Falty, but was to be administered when needed. Respondent informed nurse Ems that she had consumed the Vistaril. There was some dispute in the evidence as to the extent of respondent's ability to perform her duties after taking the drug Vistaril. Respondent admitted that she was unsteady and dizzy, but testified that she laid down for awhile and finished her charting. The only evidence of any harm being done by respondent was that a solution was spilled in a patient's room. The other nurse on duty, Ms. Ems, called the Director of Nursing, Ms. Kriston, and she in turn called respondent on the telephone. Ms. Kriston testified that respondent's speech was "slightly slurred". While she could not recall the exact conversation, Ms. Kriston felt that respondent was incoherent because she could not understand why she should go home. The respondent testified that she did not go home until her shift ended at 11:00 P.M. because she wanted to finish her charting and because she felt that there were too many patients for Ms. Ems to carry alone. She testified that at the time she felt she could carry out her duties until her shift ended. In retrospect, respondent admitted that she did not use good judgment and that she should have left the hospital at an earlier time. Respondent received her license as an L.P.N. in 1969. There was no evidence of any prior charges of immoral or unprofessional conduct on her part.
Recommendation While respondent is guilty of unprofessional conduct which is grounds for discipline under F.S. 464.21(1)(b), the evidence adduced at the hearing illustrates substantial mitigating factors which bear directly upon the penalty to be imposed. The event complained of occurred over a period of only two hours, a portion of which time respondent spent lying down. No patient was harmed during this two hour period. The penalty of suspension of a professional license should always be sparingly and cautiously used. Pauline v. Borer, 274 So.2d 1 (Fla. 1973). It is my conclusion that the record in this case demonstrates that suspension would be too harsh a penalty for this respondent, and it is recommended that the petitioner Board of Nursing place respondents on probationary status for a period of six months, with appropriate sanctions and/or reports, as prescribed by the Board within its discretion. Such a penalty would adequately safeguard and protect the public health, maintain the dignity of the nursing profession and sufficiently punish the licensee commensurate with her conduct. Respectfully submitted and entered this 5th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Geraldine B. Johnson, R.N. Ms. Janet G. Zeller Investigation and Licensing 122 Brentridge Drive 6501 Arlington Expressway, Brandon, Florida 33511 Jacksonville, Florida 32211 Julius Finegold, Esquire Frederick L. Joiner, Esquire 1130 American Heritage Build. 4616 West Kennedy Boulevard Jacksonville, Florida 32202 Tampa, Florida 33609
The Issue The issues are whether Respondent is guilty of failing to meet the applicable standard of care with respect to acts and omissions involving two patients, in violation of Section 464.018(1)(n), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed registered nursing in Florida, holding license number RN 2732432. At all material times, he was employed as a registered nurse at Integrated Health Services in Vero Beach, Florida. In June and July 2002, R. F. was a resident of Integrated Health Services. She had wounds to both buttocks. On June 7, 2002, her physician ordered the application of duo derms to each wound and ordered that the dressing be changed at least every three days, or more frequently, if needed. The wound treatment and progress records for both wounds are identical forms that require the nurse tending the wound to describe it, by abbreviations, in terms of drainage, general appearance, and surrounding skin and then to initial the notes. The initialing of the form signifies that the nurse also has changed the dressing, not just described the wound, as it would be impossible to view the wound without removing the old dressing. The form on which this information is recorded is divided into days, so that the date of the activity is clear on the completed form. The forms in this case for the June treatments of these wounds show that licensed practical nurse Kathleen Ertle described each wound on June 7. The only difference between them was that the wound on the right buttock was dry and pink, and the wound on the left buttock was moist and red. Three days later, on June 10, Respondent changed each dressing, and described each wound appropriately--by now, both wounds were moist, red, and macerated. Two days later, Nurse Ertle changed the dressings and described the wounds as unchanged from two days earlier. The following day, June 13, Respondent changed the dressings and described the wounds as unchanged. Three days later, on June 16, Respondent changed the dressings and described the wounds as unchanged. On June 18, he changed the dressings, and this time described the left wound as dry, but the right wound as moist. Three days later, on June 21, Respondent changed the dressings and described both wounds as dry and pink, not red. The June 24 entry on wound treatment and progress record for both wounds is a little confusing, but the confusion does not appear to have contributed to the violations in this case. Respondent entered a description of each wound--again, dry, pink, and macerated--but overwritten on this entry are: "healed" and "ERROR." It is unclear who wrote these entries or what is identified as erroneous--Respondent's initial description or that the wounds are healed. The next entry for either wound is by Nurse Ertle who, on June 27, described the left wound as macerated, red, and reddened. On June 28, Nurse Ertle made entries for both wounds, describing each as macerated, red, and reddened. There are no more entries for June. The next entry is July 1 and is made by Respondent, who described the wounds as dry, pink, and macerated. On July 3, each wound bears two entries. At the top is an entry by Respondent, describing each wound as dry, pink, and macerated. Beneath these entries are entries by Nurse Ertle, describing each wound as dry, red, and reddened. The next entry for each wound is July 5, on which Respondent described each wound as unchanged from his preceding description. The last entry for each wound is July 8, at which time Respondent described each wound as still unchanged. The wound treatment and progress record for the left wound bears an additional notation to discontinue wound treatment. Neither record, though, bears additional entries as to wound care, and both wounds were subsequently treated by a special air-pressure mattress. The problems as to R. F. arose when, on July 3, Nurse Ertle examined the wounds and the dressings. Nurses routinely mark the date of application on the exterior of the dressing. Instead of finding "July 1" on the dressing on the right-buttock wound, Nurse Ertle found the date, "June 28." This finding was inconsistent with the above-described entries in the records. Petitioner proved that Respondent failed to change the right-buttock dressing on July 1. As evidenced by his notation on the record, Respondent had undertaken the duty to change the dressing on July 1, and the evidence is clear that he failed to do so, at least as to the right buttock. Petitioner also proved that Respondent made the July 1 entry in an attempt to falsify or alter the records. Initially, it seemed at least as likely that Respondent made the entry in advance of changing the dressing, intending to do so, and merely forgot to do so. (Even if such advance recording of nursing activity is improper, it is not an act with which Respondent is charged.) However, Petitioner's nursing expert, Katherine Johnson, pointed out that the charting could not have been an innocent mistake, such as by charting before changing the dressing, because Respondent charted the condition of the wound, which he could not have seen without removing the dressing. Although Petitioner charged Respondent with falsification of the records that he changed the dressing, not that he falsely described the wound, evidence of fraudulent intent in describing the wound tends to establish fraudulent intent in recording that he had changed the dressing. However, Petitioner failed to prove that Respondent's act and omission caused significant harm to R. F. Nurse Ertle testified on direct that the wound deteriorated from Stage I to Stage II between June 28 and July 3, but later testified, on cross-examination, that the deterioration had taken place before June 27. Shortly after the introduction of the special mattresses, both wounds healed. At 3:00 p.m. on October 24, 2002, an advanced registered nurse practitioner (ARNP) ordered the intravenous administration of potassium to J. R., who was a patient at Integrated Health Services. The purpose of the order was to treat hypernatremia. This order was received by a nurse working the 3:00 p.m. to 11:00 p.m. shift. However, neither she nor any other nurse on this shift attempted to start the IV, which was only started at 6:45 a.m. on October 25. Respondent arrived at Integrated Health Services at 11:00 p.m., at which time he served as the shift supervisor. The record fails to establish that any nurse on the preceding shift had documented the ARNP's order, such as in the nurse's notes, in such a way that Respondent reasonably could have found it and taken appropriate action on the order, either starting the IV or calling the ARNP and explaining what had happened and stating when the IV could be started. Furthermore, Petitioner's nursing expert, Katherine Johnson, testified that the duty of ensuring that the IV had been started or the ARNP informed of the failure fell to the nurse who took the orders and her shift supervisor, and the duty of auditing the records to ensure that orders were carried out by the preceding shift belonged to the nurse assigned to the patient. In no instance did Ms. Johnson assign the duty of auditing as belonging to the subsequent shift supervisor, Respondent.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of two violations of Florida Administrative Code Rule 64B9-8.006(2) and imposing an administrative fine of $1000. DONE AND ENTERED this 19th day of September, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2006. COPIES FURNISHED: Dan Coble, RN, Ph.D., CNAA, C, BC Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Ellen M. Simon Assistant General Counsel Department of Health Prosecution Services Unit 4052 Bald Cypress Way--Bin C-65 Tallahassee, Florida 32399-3265 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 David Carpenter 419 Sandpiper Drive Satellite Beach, Florida 32937
The Issue The issue for determination is whether Respondent’s rule is an invalid exercise of delegated legislative authority, and/or whether Respondent’s agency statement constitutes a rule and has not been adopted pursuant to the statutory rulemaking procedure.
Findings Of Fact Several children attending schools in the Broward County School Board’s (Respondent’s) district require the performing of medical procedures, among them daily catheterization, also referred to as intermittent urinary catheterization or clean intermittent catheterization, using the clean technique. 2/ Respondent ensures that such medical needs of each student are met. Catheterization (clean intermittent catheterization) is an invasive medical procedure. An invasive medical procedure is a medical procedure that invades or goes within a body orifice or opening for the purpose of providing care for the infirm, the promotion of wellness, maintenance of health, and/or prevention of illness. Catheterization involves the insertion of a tube into a student’s bladder through the urethral opening for the purpose of eliminating urine from the student’s body. Respondent's teacher aides and teacher assistants are paraprofessionals. They are primarily designated to specifically meet the needs of those students who require daily catheterization. For more than 15 years, Respondent has continuously engaged in a practice of using paraprofessionals to provide health-related services, including catheterization. Such practice by Respondent is a policy of Respondent. Respondent’s principals assign paraprofessionals to catheterize students, who have a disability or infirmity, and cannot deviate from this practice without the approval from the Area Superintendent. Principals are permitted to use licensed nursing personnel to catheterize students only when the principals receive approval from the Area Superintendent. Respondent has a standard procedure, even though there are no written guidelines, for servicing students who need catheterization because of disability or infirmity. The standard procedure is compulsory and each principal must adhere to it. The following process comprises this standard procedure: The medical situation of the student with a disability or infirmity must be reviewed by an Individual Educational Plan (IEP) committee. The IEP committee determines what services the student needs. If the IEP committee determines that a student requires catheterization, the principal selects a paraprofessional from the school’s staff and assigns that paraprofessional to perform the catheterization. If no paraprofessional is available, the principal declares a vacancy and advertises the vacancy. Until a paraprofessional is hired to fill the position, the School Board contracts with an outside agency to have a licensed nurse provide the service. In advertising for the paraprofessional vacancy, the principal specifies on the job listing that the applicant must be willing to accept the responsibility to provide individual care for the student, including daily catheterization. The applicant’s willingness to catheterize the student is a condition of hiring and of continued employment. When the paraprofessional is identified, the paraprofessional is given child-specific training. The training usually takes approximately two hours and is required to catheterize a student without direct supervision. (The training is provided primarily to show the individual paraprofessional the proper technique based on the child’s specific condition.) Cassandra Bennett (Petitioner Bennett) is a teacher aide employed by Respondent at Thurgood Marshall Elementary School (Thurgood Marshall). Broward Paraprofessional Association (PPA) is the certified bargaining representative for teacher aides employed by Respondent. Petitioner Bennett is a member of the PPA. Petitioner Bennett received child-specific training. The principal at Thurgood Marshall assigned duties to Petitioner Bennett, which included, but were not limited to, catheterizing a student at Thurgood Marshall. Petitioner Bennett did not feel comfortable catheterizing the student because she believed that catheterization was a medical procedure which required a licensed individual, which she was not. Petitioner Bennett notified her principal of her position. Regardless, the principal at Thurgood Marshall required Petitioner Bennett to catheterize the student. Petitioner Bennett complied with the principal’s directive because Petitioner Bennett believed that a refusal to perform the catheterization would result in the loss of her job. Respondent assured PPA that no paraprofessional would be forced to perform catheterization on a student. Moreover, Respondent assured PPA that, if a paraprofessional refused to attend training or to perform a catheterization, no disciplinary action would be taken against the paraprofessional. After being contacted by the PPA regarding Petitioner Bennett’s situation, Respondent notified the principal at Thurgood Marshall, by memorandum dated October 23, 1997, that no paraprofessional, including Petitioner Bennett, could be forced or required to perform catheterizations, but that paraprofessionals could only volunteer to perform catheterizations. Thereafter, Petitioner Bennett was notified that she was not required, and would no longer be required, to perform catheterization. Respondent employs a Clinical Nursing Supervisor, Marcia Bynoe, who is responsible for the paraprofessional training program. She has been a practicing nurse for over 20 years and has been a nursing school instructor. Ms. Bynoe is unaware of any other situation, besides the case at hand, wherein non-medical professionals are given catheterization training with the expectation that they will perform the medical procedure in the course of their employment. Paraprofessionals were and are utilized by Respondent for the catheterization of a student with a physical disability or infirmity as follows: To administer the treatment to the student to maintain the student’s health as directed by the School Board’s [Respondent’s] principal at Thurgood Marshall Elementary School, with the approval of Ms. Bynoe, and the School Board’s [Respondent’s] Coordinator of Health Education Services (who is also a registered nurse). To observe and evaluate the student’s physical condition, behaviors, signs and symptoms of illness associated with the catheterization and reactions to the treatment; and to make a determination as to whether such conditions, behaviors, signs, symptoms and reactions represent a deviation from what is considered normal. Paraprofessionals were trained and [Petitioner] Bennett was instructed to observe the student, measure the quantity of urine, and to look for signs of cloudiness, blood, mucus, strong or unusual odor, or other signs of trauma or infection. The paraprofessionals administer the treatment, including catheterization, with the approval of Respondent’s nurse. Periodic monitoring of the treatment being provided to the disabled students is conducted by Respondent’s nurse. Catheters that are used to catheterize the students are reusable. The catheters must, therefore, be washed and put away after each use in accordance with the training provided by Respondent. Paraprofessionals come in contact with body fluids due to catheterizing a student on a daily basis. Failure of a paraprofessional, because of lack of knowledge, training, or experience, to follow universal safety precautions or dispose of waste properly in performing the catheterization of a student who may have a contagious or infectious disease, can cause a life- threatening risk of contamination to other staff members, other students, the paraprofessional’s family, and the general public at large. Respondent is not aware of any other setting where unlicensed persons, other than the patient’s family members or the patients themselves, are trained to perform medical procedures like catheterization with the expectation that the unlicensed persons will be permitted to perform invasive medical procedures. Respondent’s non-medical personnel are not even permitted to give students injections. Some paraprofessionals are designated as surplus or excess and are placed on a surplus or excess list. Respondent’s representative who is responsible for the surplus or excess list of paraprofessionals requires these paraprofessionals to perform catheterization, if needed, in order to work. A list of vacancies is forwarded by Respondent to these paraprofessionals. The list of vacancies may contain positions which require a paraprofessional to perform catheterization. The excess paraprofessional must choose one of the listed positions, even a position that requires catheterization, or face termination. This requirement is contrary to Respondent’s pronounced position of not requiring paraprofessionals to perform catheterizations but making catheterization a voluntary act on the part of paraprofessionals. At some of Respondent’s school sites, paraprofessionals and other non-medical personnel are also being permitted or allowed to provide catheterization or supervise self- catheterization for students who have physical disabilities or infirmities. Paraprofessionals and the other non-medical personnel are monitored periodically by a nurse. Respondent has a policy, which includes its standard procedure, of utilizing paraprofessionals to catheterize students who have physical disabilities or infirmities. Respondent’s policy substantially affects its paraprofessionals, who are PPA members, at Respondent’s school sites attended by students, whose physical disability or infirmity requires catheterization. Respondent’s policy also substantially affects the special-needs children, themselves, and their parents. Chapter 232, Florida Statutes, is applicable to the case at hand. During the 1996 Legislative Session, the Florida Legislature passed an amendment to Chapter 232, by way of Committee Substitute for House Bill 483 (CS/HB 483), which became law without the governor’s signature and which took effect on July 1, 1996. The amendment is found at Chapter 96-294, Laws of Florida, and embodied in Florida Statutes at Section 232.465. The Final Bill Analysis for CS/HB 483 states, in pertinent part, as follows: SUMMARY: * * * [The bill] also prohibits certain medical services by nonmedical school district personnel in order to ensure that such nonmedical school district personnel are properly trained in the administration of medication and that these personnel refrain from performing invasive procedures. Invasive procedures include, but are not limited to: cleaning intermittent catheterization; providing sterile catheterization; cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications. SUBSTANTIVE ANALYSIS: PRESENT SITUATION: * * * In many situations, teachers are administering medical procedures, and there is a feeling that this goes beyond their "scope of academics" [sic]. Many instances exist where there are special needs children, requiring such procedures as catheterization, gastrostomy tube feeding (inserting tubes for feeding into the stomach), and the injection of medications. EFFECT OF PROPOSED CHANGES: The bill requires school district nonmedical personnel who administer prescribed medication to be trained by medical personnel. It also requires review of cases in which medications are administered and prohibits nonmedical personnel from performing invasive medical services such as cleaning intermittent catheterization, providing sterile catheterization, cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications. * * * SECTION-BY-SECTION ANALYSIS: * * * Section 2. Creates s. 232.465, F.S., to indicate that nonmedical school district personnel shall not be permitted to perform invasive medical services, including, but not limited to, cleaning intermittent catheterization; providing sterile catheterization; cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications. Provides that each school board shall establish emergency procedures for life- threatening emergencies. Section 232.465, Florida Statutes (Supp. 1996), provides in pertinent part: Nonmedical school district personnel shall not be allowed to perform invasive medical services that require special medical knowledge, nursing judgment, and nursing assessment. The procedures include, but are not limited to: Sterile catheterization. Nasogastric tube feeding. Cleaning and maintaining a tracheostomy and deep suctioning of a tracheostomy. Nonmedical assistive personnel shall be allowed to perform health-related services upon successful completion of child-specific training by a registered nurse, a licensed practical nurse, a physician licensed pursuant to chapter 458 or chapter 459, or a physician assistant certified pursuant to chapter 458 or chapter 459. All procedures shall be monitored periodically by the nurse. Those procedures include, but are not limited to: Cleaning intermittent catheterization. Gastrostomy tube feeding. Monitoring blood glucose. Administering emergency injectable medication. For all other invasive medical services not listed in subsection (1) or subsection (2), a registered nurse, a licensed practical nurse, a physician licensed pursuant to chapter 458 or chapter 459, or a physician assistant certified pursuant to chapter 458 or chapter 459 shall determine if nonmedical school district personnel shall be allowed to perform such service. CS/HB 483 was amended at the committee level in the Florida House of Representatives, and subsections (1), (2), and (3) of Section 232.465, reflect that amendment. The Florida House of Representatives substituted CS/HB 483 for CS/SB 1114 which contained the same wording as the aforementioned amendment. The Senate Staff Analysis and Economic Impact Statement for CS/SB 1114 states in pertinent part: 3/ Summary: This bill requires district school boards to have certain qualified medical professionals train school-based personnel . . . Non- medical assistive personnel, who have successfully completed child-specific training by an RN or LPN, may perform certain health-related services (e.g., cleaning intermittent catheterization; gastrostomy tube-feeding; monitoring blood glucose; or administering emergency injectable medications). A RN must determine whether nonmedical school district personnel may do other invasive procedures. . . . . * * * This bill amends s. 232.46, Florida Statutes, and creates s. 232.465, Florida Statutes. * * * III. Effect of Proposed Changes: Nonmedical school district personnel are prohibited from performing invasive medical services (e.g., sterile catheterization, nasogastric tube-feeding, or cleaning and maintaining a tracheostomy) that require special knowledge or nursing judgement/assessment. Nonmedical assistive personnel, who have successfully completed child-specific training by an RN or LPN may perform health-related services, such as cleaning intermittent catheterization; gastrostomy tube-feeding; monitoring blood glucose; or administering emergency injectable medications. An RN must determine whether other invasive medical services may be done by nonmedical school district personnel. Each school board must establish procedures for life-threatening emergencies. The changes made by this bill protect the health, safety, and welfare of both public school students and school district personnel. The Senate Staff Analysis also contained the following statement on the last page: "This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or of the Florida Senate. 4/ Attached to the Senate Staff Analysis was a one-page document entitled "STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN COMMITTEE SUBSTITUTE FOR SB 1114," which states in pertinent part the following: 5/ [P]rohibits nonmedical school district personnel from performing certain invasive medical procedures that require medical or nursing knowledge. Allows nonmedical assistive personnel to perform health-related services upon successfully completing child-specific training by an RN and with periodic monitoring by the nurse. Requires an RN to determine whether nonmedical school district personnel may perform other invasive medical services. It is clear that the staff analysis for CS/HB 483 is inaccurate, regarding the prohibition of non-medical personnel from performing invasive techniques upon completing child- specific training by a nurse, with periodic monitoring by the nurse, and the nurse approving non-medical personnel performing other invasive techniques. The staff analysis failed to reflect that there was no prohibition under the conditions aforementioned. Catheterization performed by the paraprofessionals requires some degree of special medical knowledge, nursing judgment, and nursing assessment. However, the catheterization is permitted by Section 232.465, Florida Statutes (Supp. 1996). Respondent has not engaged in rulemaking regarding the implementation of Subsection 232.465(2), Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated facts 2/ The Respondent is a licensed physician in the State of Florida and has been licensed in Florida at all times material herein. The Respondent is Board Certified in family practice. The patient B. M., a female born on May 18, 1934, with a history of hypertension, diabetes, and obesity, presented to the Respondent on multiple occasions between August of 1979 and November of 1990. On September 29, 1979, when she was forty-five years old, patient B. M. notified the Respondent that her periods were spreading out and that she was getting hot flashes. On February 18, 1982, patient B. M. indicated that she was having irregular periods every couple of months. The Respondent's medical records indicate that he did not see or treat the patient B. M. between October 1, 1984, and July 3, 1987. On July 3, 1987, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding for the past three (3) months. The patient indicated the bleeding had stopped approximately three weeks earlier. The Respondent diagnosed patient B. M. with vaginitis, and prescribed her medication for vaginitis, based on the patient's complaints of vaginal discharge. Respondent did not perform a pelvic examination on that day to make that diagnosis. Patient B. M. returned the following week for a pelvic examination. The Respondent did not document the medical history of the patient B. M. during the preceding three years, although she had a history of high blood pressure and diabetes, both conditions that require periodic monitoring and prescription medication. The Respondent also did not document any pertinent information relating to the patient's gynecological history, including, but not limited to, the dates of the patient's last period, how often her periods were occurring, and how much she was bleeding, despite her complaints of excessive bleeding. On August 7, 1987, after several other visits, the patient B. M. returned for an examination. A pelvic examination revealed a vaginal laceration that was bleeding. On January 18, 1988, patient B. M. presented to the Respondent with complaints of irregular bleeding for the prior month. The Respondent suggested a dilation and curettage (scraping of the uterine walls) if patient B. M.'s bleeding continued. On December 21, 1989, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding with clots since the previous night. The Respondent indicated that the patient had her regular period the previous week, and was using condoms. The Respondent performed a pelvic examination which revealed blood clots, and diagnosed patient B. M. with dysfunctional uterine bleeding and administered progesterone to patient B. M. The Respondent did not document any additional information concerning the patient's menstrual activity, such as how often she had periods, what was meant by uncontrollable vaginal bleeding, where the bleeding was coming from, or why she was using condoms. The patient B. M. continued to complain of occasional bleeding after December 21, 1989, and on January 15, 1990, the Respondent referred the patient B. M. to a gynecologist. On February 5, 1990, the patient B. M. presented to a gynecologist, who took cervical biopsies and subsequently performed a dilation and curettage on the patient B. M. on or about February 23, 1990. The patient was subsequently initially diagnosed with grade two endometrial cancer, and after biopsy was diagnosed with grade three endometrial cancer and was referred to another gynecologist at the University of Miami. 3/ On April 5, 1990, the patient B. M. underwent a total hysterectomy. The patient B. M. was then diagnosed with Stage III-C endometrial carcinoma and underwent intravenous Adriamycin chemotherapy. On December 25, 1990, the patient B. M. expired. Facts based on evidence at hearing At all times material to this case, the subject patient 4/ weighed approximately three hundred pounds. Periods spreading out and hot flashes are signs that a woman may be beginning menopause. The average length of time between the beginning of menopausal symptoms and a cessation of menstruation is six months to one year. Endometrial cancer is cancer of the uterus. It is the most common gynecological cancer in women. Endometrial cancer occurs most often in women who are post-menopausal. About 20 to 25 percent of women are diagnosed with endometrial cancer before menopause. Most patients are diagnosed with endometrial cancer after the age of 50. When diagnosed early, patients with endometrial cancer have a very high survival rate. When diagnosed late, patients with endometrial cancer have a very low survival rate. The subject patient had several of the risk factors associated with endometrial cancer. The first symptom in most cases of endometrial cancer is abnormal bleeding. Any woman with post-menopausal abnormal bleeding should be checked for endometrial cancer. The subject patient was hospitalized in 1982. During that hospitalization she was evaluated by a gynecologist who determined that there was no evidence of abnormal or irregular gynecological problems at that time. After February 18, 1982, through October 1, 1984, there are no references in the Respondent's medical records to the subject patient's menstrual history, and no indication as to whether the patient had regular or irregular menstrual periods during that period of time. The subject patient was not seen by the Respondent on any occasion between October 1, 1984, and July 3, 1987. 5/ The subject patient returned to the Respondent's office on July 3, 1987. On the occasion of that visit she gave a history to the Respondent's office staff which is recorded in the Respondent's medical records as "excessive bleeding vaginal for 3 mos. Stopped 6/13." The Respondent's records for July 3, 1987, do not contain any additional details regarding the nature of the excessive bleeding. The Respondent's medical records for the July 3, 1987, office visit also indicate that at that time the patient had a vaginal infection with a discharge. This information was obtained from the patient. On that day the Respondent did not examine the patient to confirm the condition described by the patient. The Respondent diagnosed the patient as having vaginitis and prescribed Sultrin cream and Betadine douche for the vaginitis. The medical records for the July 3, 1987, office visit note that the patient had high blood pressure. Although the records, standing alone, do not clearly show that any treatment was undertaken on that day for the patient's high blood pressure, during the course of the July 3, 1987, visit, the Respondent prescribed medication for the patient's high blood pressure, as well as syringes for her diabetes. Those prescriptions were recorded in the patient's chart on the front cover. Because the subject patient had returned for a single office visit on July 3, 1987, after an absence of almost three years, the Respondent determined at that time that he needed to do a full physical examination on her, as well as a pelvic exam. Although the Respondent did not perform either examination at the July 3, 1987, office visit, he made plans to do both shortly thereafter. The subject patient returned ten days later, on July 13, 1987, at which time the Respondent performed a complete physical examination of the patient. No pelvic examination was performed that day, because the Respondent was having her period. The Respondent asked the patient to return one week later for a pelvic examination. The subject patient returned on July 20, 1987, at which time a pelvic examination was performed. On that day there was no evidence of any irregular or unusual bleeding. The patient did have a vaginal infection that day. The vaginal infection was treated appropriately by the Respondent. In view of the vaginal infection, the patient was advised to return to the office one week later, at which time she would be examined again. The subject patient returned to the Respondent's office on August 7, 1987, for a follow-up pelvic examination, at which time the Respondent identified a small superficial laceration in the patient's vagina. The laceration was causing some slight bleeding. The Respondent noted that there was no bleeding from the cervical os, which indicated that the small laceration was the sole source of the patient's bleeding that day. As an additional follow-up, the Respondent ordered a sonogram. The sonogram was ordered in part because, due to the patient's obesity, the Respondent was unable to palpate her internal organs. The Respondent did not document any details concerning the vaginal laceration, such as the size of the laceration, the amount the laceration was bleeding, or the precise location of the laceration, because it was a very small laceration with very slight bleeding which was of very little medical significance. The Respondent did not refer the patient to a gynecologist after learning the results of the sonogram he ordered on August 7, 1987. The Respondent concluded that the 1987 sonogram results were not significantly different from the 1982 sonogram results. Such conclusion was reasonable under the circumstances. Accordingly, the 1987 sonogram results did not suggest any need for further investigation. The subject patient returned to the Respondent's office on August 24, 1987, at which time she had no complaints of any type of vaginal bleeding. She was being seen in order to follow up on her other complaints, notably her diabetes and her high blood pressure. The Respondent assumed that the vaginal laceration had healed and did not conduct a pelvic examination of the patient during that visit. After August 24, 1987, and before January 18, 1988, the Respondent saw and treated the subject patient once a month on four more occasions. The medical records for those four office visits do not mention the patient's menstrual history or whether she was bleeding on any of those occasions. During the four monthly visits between August of 1987 and January of 1988, the subject patient did not complain of any episodes of irregular vaginal bleeding. On January 18, 1988, the subject patient returned to the Respondent's office with complaints of irregular vaginal bleeding since having been the victim of a mugging during the previous month. The Respondent did not record any detailed information about the bleeding, such as her current menstrual condition, how much she was bleeding, or how often she was bleeding. The Respondent concluded that the bleeding was probably due to the patient's anxiety about the recent mugging incident. Nevertheless, he wanted to follow up on the irregular bleeding if it did not resolve on its own. To that end he discussed the matter with the patient and told her that if the irregular bleeding did not get better, she should come back and he would do a D & C. The Respondent noted in his record for that visit: "May need D & C if bleeding continues." In view of the patient's intelligence, the Respondent fully (and reasonably) expected she would tell him if she had any further irregular bleeding. The procedure known as D & C, or dilation and curretage, is a procedure wherein a physician obtains a sample of the lining of the uterus to evaluate it for possible abnormalities. The D & C procedure is commonly used to diagnose, or to rule out, endometrial cancer. Following the office visit on January 18, 1988, the subject patient presented to the Respondent's office on three other visits during each of which she did not have any complaints of irregular bleeding. The subject patient did not have any further gynecological complaints until December 21, 1989. On that day she returned to the Respondent's office with complaints of uncontrollable vaginal bleeding since 7:30 p. m. of the previous evening. During the course of the December 21, 1989, office visit, the subject patient told the Respondent that she had had her last regular menstrual period the week before. She also told him she was using condoms. During the course of the December 21, 1989, office visit the Respondent performed a pelvic examination of the patient and made a provisional or working diagnosis of dysfunctional uterine bleeding. He administered an injection of progesterone and instructed the patient to return in three days. He also instructed the patient to have another pelvic sonogram performed. Dysfunctional uterine bleeding is abnormal uterine bleeding not related to or caused by an organic problem such as cancer, polyps, fibroids, or infections. It is usually caused by an hormonal imbalance. In the case of a woman who is not post- menopausal and who presents with complaints of irregular vaginal bleeding, one of the differential diagnoses can be dysfunctional uterine bleeding. In such a case it is appropriate to administer progesterone prior to embarking on additional studies. In such a case the administration of progesterone is useful for two reasons: (1) if the progesterone is successful in stopping the irregular bleeding its success tends to confirm the differential diagnosis of dysfunctional uterine bleeding, and (2) if the progesterone is unsuccessful in stopping the irregular bleeding it tends to rule out the diagnosis of dysfunctional uterine bleeding and confirm the need for further investigation. Under the circumstances that existed on December 21, 1989, it was reasonable and appropriate for the Respondent to administer progesterone on the basis of a provisional or working diagnosis of dysfunctional uterine bleeding, because if the treatment was successful it would tend to confirm the provisional or working diagnosis and it the treatment was not successful it would rule out the provisional or working diagnosis. 6/ The fact that dysfunctional uterine bleeding was only a provisional or working diagnosis is illustrated by the fact that the Respondent at the same time ordered a sonogram in order to investigate other possible causes of the abnormal bleeding. A verbal report of the results of the sonogram ordered on December 21, 1989, was given to the Respondent's office by telephone on December 26, 1989. 7/ A written report of the results was provided shortly thereafter. The report of the sonogram ordered on December 21, 1989, indicated that the subject patient had an enlarged uterus measuring 18.8 x 9.3 x 10.8 centimeters. The 1989 sonogram report revealed that the patient's uterus was substantially larger than it had been at the time of the 1987 sonogram. The report of the December 21, 1989, sonogram included a recommendation for follow up examination of the uterus and the endometrial canal. The subject patient returned to the Respondent's office on December 26, 1989, at which time she told the Respondent that the bleeding had stopped. He asked her to return again in two weeks. When she returned twenty days later on January 15, 1990, she had started to again have occasional episodes of bleeding and spotting. The Respondent thereupon referred the patient for a gynecological consult. The subject patient was seen by a gynecologist, Dr. William Shure, on February 5, 1990. The patient provided Dr. Shure with a history that her last menstrual period had been on December 19, 1989. This last menstrual period history is the same history that was recorded by the Respondent on December 21, 1989. On February 5, 1990, Dr. Shure took cervical biopsies from the subject patient, and subsequently performed a D & C on the patient on February 23, 1990. The patient was then diagnosed with Stage II-B endometrial cancer. Following a total hysterectomy on April 5, 1990, the patient was diagnosed with Stage III-C endometrial cancer. Stage II-B endometrial cancer is cancer of the uterus with extension into the cervix. Stage III-C endometrial cancer is an advanced stage of cancer of the uterus which extends into the cervix and has metastasis to pelvic lymph nodes. The patient underwent chemotherapy for the cancer. The chemotherapy was unsuccessful and the patient expired on December 25, 1990. At all times material to this case the Respondent used a record- keeping methodology in his medical practice known as the SOAP method. This is an appropriate methodology for record- keeping in a medical practice. The Respondent's records regarding the subject patient demonstrate that he kept a running list of all medications prescribed for the patient. The Respondent's records regarding his care and treatment of the subject patient were sufficient to justify his course of treatment of the patient. 8/ The care, skill, and treatment applied by the Respondent in the treatment of the subject patient from July of 1987 through January of 1990 (the only time period at issue here) was reasonable under the circumstances and did not depart from the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's treatment of the subject patient did not constitute gross or repeated malpractice. 9/ The Respondent has not been the subject of any prior disciplinary proceedings.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges in all three counts of the Amended Administrative Complaint. DONE AND ENTERED this 17th day of May 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 17th day of May 1996.
