The Issue Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.
Findings Of Fact Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient, G. C. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable nursing practice in the treatment of patient, G. C.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East Tallahassee, Florida 32312 Bonnie Fay Baker Palmer Route 2, Box 810 Waynesville, Georgia 31566 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
Findings Of Fact Petitioner attended a two year training program for physician's assistants at the State University of New York in Stonybrook. In the course of this program, petitioner spent ten weeks in an obstetrics rotation. During this ten week period, she delivered at least fifteen babies. She also attended mothers post partum. After moving to Florida, petitioner applied to respondent for a license as a lay midwife. Although she has approached more than ten obstetricians practicing in Florida, she found none willing to supervise her work as a midwife. In support of her second application for license as a lay midwife, petitioner attached a letter signed by Elspeth Reagan, M.D., and another, reciting that petitioner "performed approximately 15-20 normal, spontaneous deliveries under physician supervision and assisted with numerous others." Dr. Reagan's signature had been acknowledged before a notary public. Dr. Reagan is licensed as a physician in New York but is not licensed in Florida. Petitioner did not furnish respondent a list of the names, home addresses or delivery dates of any of the deliveries she performed. On December 4, 1978, respondent denied petitioner's second application on the grounds that it did "not conform to the requirements of . . . Chapter 10D-36.21(2) . . . . [or of] Chapter 10D-36.22(1)(a)2.
The Issue Should discipline be imposed by Petitioner against Respondent's certificate to practice as a Certified Nursing Assistant?
Findings Of Fact Facts Admitted: Petitioner is the state department charged with regulating the practice of nursing pursuant to Chapter 20.43, Florida Statutes, Chapter 456, Florida Statutes; and Chapter 464, Florida Statutes. Respondent is Andrea Tyson. Respondent is a Certified Nursing Assistant (C.N.A.) in the State of Florida having been issued certificate number 0898- 262792261. Respondent's current address of record (address listed for C.N.A. certificate with Department of Health) is P.O. Box 999, Cross City, Florida 32628. On or about August 23, 2001, Respondent was employed at Tri-County Nursing Home (Tri-County) in Trenton, Florida. During the time Respondent worked at Tri-County, W.H. (resident referred to in Petitioner's Administrative Complaint) was a resident at Tri-County. Respondent knew W.H. prior to working at Tri-County. Respondent regularly cared for W.H. at Tri-County. On or about August 23, 2001, Respondent assisted W.H. in taking a shower. On or about August 23, 2001, while in the shower with W.H., Respondent jerked W.H.'s hand from the shower grab bar. On or about August 23, 2001, while in the shower with W.H., Respondent sprayed W.H.'s face with cold water. On or about August 23, 2001, after Respondent finished showering W.H., Respondent partially dried W.H. and put on only his pants. On or about August 23, 2001, after Respondent finished showering W.H., Respondent refused to assist W.H. with putting on his shirt. On or about August 23, 2001, W.H. had to seek the assistance of another person at Tri-County, in putting on his shirt following his shower with Respondent. Additional Facts: W.H. had suffered a stroke in 1992. W.H. came to be a resident at Tri-County on March 8, 1999. On August 23, 2001, Respondent told W.H. to go to the bathroom to get ready for his shower. W.H. required assistance to shower. Respondent had given showers to W.H. before the date in question. On August 23, 2001, it was necessary for W.H. to support himself by holding on to the shower grab bar. W.H. explained that he uses the shower bar because he feels better that way, more secure. When Respondent jerked W.H.'s hand away from the shower grab bar, she did so without warning. This made W.H. feel bad. It also made him feel mad at Respondent. On the date in question while in the shower, W.H. told the Respondent that the water was too hot. Her response was to reach over with her hand and turned the lever to the cold setting and rinsed W.H. off with cold water. The water was really cold. W.H. did not complain about the cold water. He just wanted to get out of the shower. W.H. was left with the impression that if Respondent was going to be mean to him, he did not want to be around her. The incident made him feel abused. W.H. felt intimidated by the Respondent given her actions. As part of the process of showering that took place on August 23, 2001, in addition to spraying cold water in W.H.'s face, the cold water got into his ears. He did not like water in his ears. After the shower, Respondent dried W.H. off and put on his underclothes and pants and shoes but not his shirt. W.H. was left with only his T-shirt above the waist. W.H. took his outer shirt and went into the hall and got another C.N.A. to assist him in putting it on. To W.H.'s knowledge he had never done anything or said anything to provoke Respondent before the incident in the shower. W.H. reported the incident to a nurse at Tri-County about a day after the event. The expectation at Tri-County was that Respondent as a C.N.A. would perform her duties in the facility consistent with the Florida standards of care incumbent upon C.N.A. certificate holders. Tri-County is a skilled nursing facility. C.N.A.s who are employed at that facility, such as Respondent, undergo orientation in addition to the training received when earning a certificate to practice in Florida. The orientation includes issues such as fire safety, resident rights,1/ infection control, and body lifting of residents. What is described as the "paper part" of the orientation takes a day. In addition, the new employee is paired with an experienced C.N.A. on the same shift where the new employee will work, and the new employee and the experienced employee work together for a couple of weeks at the nursing home as training. While working with the experienced C.N.A., that employee uses a check-list to verify that the new employee can master the skills required to assist the residents. Within Tri-County the expectation for resident rights are in association with the right to dignity, among other rights. C.N.A.s at Tri-County are responsible for feeding, hydration, bathing, toileting, and skin care in relation to residents they are responsible for. Margo Chancey, R.N.C. was the Director of Nurses at Tri-County on August 23, 2001. She continues to hold that position. Ms. Chancey is a licensed nurse in Florida. By virtue of her formal training and work experience, Ms. Chancey is sufficiently familiar with the expected standard of care to be provided by C.N.A.s to offer expert opinion testimony concerning Respondent's treatment of W.H. on August 23, 2001. Nurse Chancey explained W.H.'s condition in August 2001 as being a circumstance in which W.H. had had a couple of strokes over a period of years. Nonetheless, W.H. remained alert and oriented and continued to be alert and oriented in more recent times including the present. W.H. gets around in a wheelchair. He is on an oxygen concentrator P.R.N. W.H. suffers with chronic pulmonary disease. W.H. was more ambulatory in August 2001 than he is today. Ms. Chancey is sufficiently familiar with the events on August 23, 2001, concerning Respondent's provision of care to W.H. while providing him a shower, to offer an opinion on whether that performance was within the minimal standards expected of a C.N.A. Ms. Chancey established that the manner of care provided from Respondent to W.H. was inhumane and abusive and below minimal standards. More particularly, Ms. Chancey commented that Respondent gave W.H. no choices. She demanded things of the resident. She sprayed cold water in his face, which is unacceptable. She was rough and rude with W.H. when removing his arm from the grab bar, which is unacceptable. W.H.'s patient's rights were violated pertaining to matters of human dignity and he was not treated safely. As Ms. Chancey correctly explained, for Respondent to perform her duties in giving the bath to W.H. she would have had bathing equipment ready when he came into the room and she should have been in the room when W.H. started to get undressed and would not have removed his arm from the grab bar. W.H. had the right to complain that the water was too hot. Respondent should have tested the water before she sprayed what was revealed to be cold water on W.H. Respondent should have totally dressed W.H. before she left the room given his condition, chronic obstructive pulmonary disease. The risk was that his condition could worsen when left partially dressed. This might lead to his contracting pneumonia.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Sections 464.204(1)(b), 464.018(1)(h), Florida Statutes (2001), and Florida Administrative Code Rule 64B9- 8.005(13)(2001), placing Respondent on probation for a period on one year subject to terms established by the Board of Nursing, imposing a $150.00 fine and requiring that Respondent attend a continuing education class on the care of the elderly. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2003.
The Issue This issue is whether Mr. LaFergola is guilty of misconduct by holding himself as a physician's assistant when he was never licensed as a physician's assistant in the State of Florida and whether he used improper technique in attempting to intubate an infant at Raulerson Memorial Hospital in Okeechobee, Florida, thereby departing from minimal standards of acceptable prevailing nursing practice.
Findings Of Fact Frank LaFergola is licensed as a practical nurse in Florida, holding license 0601421. Mr. LaFergola was employed by Flight Nursing, Inc., an air ambulance company, between September, 1982 and November, 1983. Mr. LaFergola has had no medical training beyond that which he received as a licensed practical nurse. A physician's assistant has a higher level of training than a licensed practical nurse or a registered nurse. Mr. LaFergola has not been trained as a physician's assistant. In April of 1983 Mr. LaFergola represented himself to Dr. Barry D. Chandler as a physician's assistant. He represented to Nancy Northington, a registered nurse, who flew with him for Flight Nursing, Inc. that he was a physician's assistant. Mr. LaFergola represented to Ms. Mary Nara, who is the director of a private technical school and licensed as a licensed practical nurse in Florida, that he was a physician's assistant by presenting her with a certificate from the University of the State of New York showing that Mr. LaFergola held license number 16302 for the biennium ending August 31, 1984 as a registered physician's assistant in New York. These representations were false because Mr. LaFergola has never been licensed as a physician's assistant in Florida or New York. It is dangerous for a licensed practical nurse to misrepresent the status of his training. Mr. LaFergola's representation that he was a physician's assistant caused others engaged in medical practice to permit him to perform actions which they would not have permitted him to perform if they had known the level of his training. On one occasion Nancy Northington, a registered nurse, took an order from Mr. LaFergola concerning intravenous medication for an infant. Mr. LaFergola's instructions were not those which had been given by the attending physician, Dr. Chandler. This change in the instructions endangered the infant. In May, 1983 at Raulerson Memorial Hospital in Okeechobee, Florida, Mr. LaFergola attempted to place an endotracheal tube in a newborn to prepare it for air transportation to another facility. Intubation is a procedure requiring training beyond that of a licensed practical nurse. His attempt to use a laryngoscope during the insertion was incorrect, and he approached the method of insertion of the tube in a manner so wrong that the attending physician stopped him from proceeding with the insertion. Misrepresentation of licensure and training constitutes unprofessional conduct for a nurse. In addition to these cases of misrepresentation to health care providers concerning his status, while employed at Flight Nursing, Inc. Mr. LaFergola signed correspondence on behalf of Flight Nursing, Inc. using the letters "P.A." after his name, representing himself as the "Assistant Flight Medical Director" for Flight Nursing, Inc. Mr. LaFergola was not the Assistant Flight Medical Director of Flight Nursing, Inc. The use of the initials "P.A." after his name was meant to lead those in medical professions who would read the letter to believe that he was a physician's assistant. While at Flight Nursing, Inc., Mr. LaFergola also signed material soliciting business for Flight Nursing, Inc., with the designation "B.S.P.A." after his name. The designation B.S. is commonly recognized as an indication that the person signing the correspondence holds a Bachelor of Science degree. While there is no recognized designation "B.S.P.A", the use of that designation in correspondence would have conveyed to those reading it that Mr. LaFergola held a Bachelor of Science degree and was a physician's assistant. Conspicuously absent from this correspondence is any indication that Mr. LaFergola is a licensed practical nurse. By signing the Flight Nursing, Inc. advertising as he did, Mr. LaFergola intended to mislead other health care personnel regarding his credentials.
Recommendation It is recommended that a final order be entered by the Florida Board of Nursing suspending the license of Frank LaFergola as a licensed practical nurse for one year and fining him $1,000. DONE and ORDERED this 28th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals submitted by the Petitioner Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 4. Covered in Finding of Fact 3. Covered in Finding of Fact 5. Covered in Findings of Fact 4 and 6. Covered in Finding of Fact 7. Covered in Finding of Fact 8 to the extent it deals with the use of the initials P.A. There is no allegation in the Administrative Complaint of misconduct arising from advertising that Mr. LaFergola was under the direct supervision of Dr. Norman Silverman, and facts concerning that contention are irrelevant. It is inappropriate to use such uncharged misconduct on the issue of the penalty to be imposed because the Respondent had no notice of such charges. Covered in Finding of Fact 9. Rulings on Proposals submitted by the Respondent In general the submission of Mr. LaFergola is in the form of argument rather than findings of fact. The following comments on the proposals can be made. The testimony of Dr. Chandler and Nancy Northington was believable. The suggestion that they should not be believed is rejected. Although the initials B.S.P.A. have no generally accepted meaning, they were intended to have the meaning stated in Finding of Fact 9, which was misleading. Given the Respondent's admission that the signatures on Exhibits 2 and 3 are his, the similarity of the signature on Exhibit 5 to those signatures, as well as identification of the signature on 5 as his by Ms. Nara, is sufficient to admit Exhibit 5. The testimony of Mr. Bovio as corroborated by the deposition testimony of Dr. Fred Brown is sufficient to establish that the intubation attempt made by Mr. LaFergola was improper. The testimony of Ms. Bauman was not based upon the investigative file which was not placed in evidence. There is no reason to strike her testimony. See Transcript page 71. COPIES FURNISHED: Gary D. Beatty, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Frank LaFergola 177 Doris Avenue Franklin Square, New York 11010 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
Findings Of Fact Petitioner Margaret Petty-Eifert, Miami, Florida, requested application forms for midwife licensure from Respondent Department of Health and Rehabilitative Services (HRS) by letter of March 22, 1982. By letter of April 19, 1982 Dolores M. Wennlund, Nursing Services Director of HRS, provided the necessary application forms. Her letter contained the following paragraph: There have been substantial changes in the Midwife Practice Act that will become effective July l, 1982. Therefore if you intend to request licensure under the present Midwifery Act, you will have to return your completed application promptly. By letter of June 8, 1982, Petitioner Petty-Eifert mailed copies of her application and required enclosures to Respondent and to Dr. Richard A. Morgan, Dade County Health Director. The application form provided for the County Medical Director to sign a statement as to whether or not the applicant demonstrates ability to complete standard birth certificates, and whether the applicant had provided evidence of behaviors and habits consistent with safe hygiene practice, use of equipment which is safe and sanitary, and compliance with "local ordinances, Florida statutes, and the Florida Administration (sic) Code." It also provided for a listing of not less than fifteen cases of labor attended by the applicant under the supervision of a duly licensed and registered physician within a one-year period, including the care of not less than fifteen mothers and newborn infants during the lying-in period. The application further required that the applicant provide statements of the attending physician in each case documenting the level of skill and competence exercised by the applicant during such births. By letter of July 6, 1982, Dr. Morgan forwarded his copy of Petitioner's application to Respondent with an unfavorable recommendation, together with a copy of his letter of the same date to Petitioner wherein he advised her that she had not qualified to practice as a lay midwife, and listed a number of instances where she had allegedly completed birth certificates "replete with errors and omissions," cited an instance where her behavior and habits had failed to be consistent with safe hygiene practice, and cited several instances of implied misconduct. The completed application with the Medical Director's unfavorable recommendation was received by Respondent on July 7, 1982. By letter of September 30, 1982, Gary J. Clarke, Assistant Staff Director, HRS, advised Petitioner Petty-Eifert that the Department had determined that her application should be denied, listing a variety of reasons based on her failure to meet the requirements of Chapter 485, Florida Statutes, and Chapter l0D-36, Florida Administrative Code. One of the cited reasons for denial was that two of the births listed in her application as evidence of her supervised experience were delivered in the hospital, and that therefore she had not attended fifteen cases of labor during the lying-in period as required by Section 485.031(4)(b), F.S., and Rule l0D-36.22(1)(a), F.A.C. Another reason cited for the denial was that she had filed birth certificates with misinformation in eight cases and therefore raised "serious doubts" about her ability to complete standard birth certificate forms, as required in Section 484.031(2), F.S., and Rule l0D-36.22(1)2(d), F.A.C. The letter further contained the following paragraph: Your application for lay midwifery licensure was submitted before June 30, 1982, and re- quested licensure under the old statute and applicable rules. Your application was judged against these standards and your licensure is withheld pursuant to the authority granted to the Department in 485.071(2) F.S. You have the right to request a hearing on this matter within 30 days of receipt of this letter pursuant to Chapter 120, F.S. Petitioner Petty-Eifert thereafter filed her Petition to determine the invalidity of Rules 10D-36.22(1)(a) and 10D-36.22(1)(d), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. (Testimony of Petitioner Petty-Eifert, Pettengill, Petitioners' Exhibits 3, 5, Respondent's Exhibits 4-7) By letter dated June 18, 1982, Terry L. DeMeo, Esquire, a Coral Gables attorney, transmitted the application of Janice Heller for licensure as a lay midwife to Respondent's Health Program Office, together with the required attachments. These included detailed statements by the supervising physician in sixteen cases of labor which took place over a fourteen and one-half month time span. The letter stated that although this was in accordance with statutory requirements, the HRS rule which stated that such cases must have occurred within a one-year period was considered invalid and unenforceable, citing a court decision. The letter further stated that the application had simultaneously been submitted to the Broward County Health Department, but in view of the history of that Department routinely denying midwifery applications, and the past bias on the part of Dr. George Trodella, it was requested that a neutral decision maker be designated to review the application. The letter and application was received by Respondent on June 23, 1982, without the required statement of the County Medical Director. By letter of July 21, 1982, Dr. George P. Trodella, Assistant County Health Director, Broward County Health Unit, advised Respondent that Petitioner Heller was not qualified for a variety of specified reasons. Thereafter, by letter of September 24, 1982, Petitioner Heller was advised by Respondent's Health Program Office Assistant Director Gary J. Clarke, that the Department had determined her application should be denied. A number of reasons were listed, including not having provided a record of having attended fifteen births within one year as required by Rule 10D-36.22, not having received a written recommendation for licensure by the County Medical Director as required by Rule 10D-36.22, and for "incompetently administered oxygen to a patient," thereby administering a substance for therapeutic purposes other than silver nitrate which was prohibited by Rule 10D-36.27, F.A.C. The letter further contained the same paragraph concerning the fact that Petitioner Heller's application was judged against the old statute and applicable rules since it had been filed prior to June 30, 1982. Petitioner Heller thereafter filed a Petition for administrative determination of the invalidity of Respondent's Rules 10D-36.22(1)(a) and (d), and 10D-36.27, F.A.C. (Testimony of Petitioner Heller, Clarke, Pettengill, DeMeo, Petitioners' Exhibit 4, Respondent's Exhibit 4, Respondent's Exhibit 3). Subsequent to filing their applications, Petitioners expended funds to travel to Tallahassee to take written and oral examinations and undergo interviews by Respondent. Petitioner Heller was accompanied by her counsel during the trip. (Testimony of Petitioners) During the 1982 legislative session, Timothy Monahan, who conducted legislative liaison for Respondent, was in the process of negotiations with various groups concerning proposed revisions to Chapter 485, Florida Statutes, concerning the licensing of midwives. At the request of a state legislator, he contacted Terry DeMeo who purportedly represented the Florida Midwives Associations. She had a "loose" relationship with the organization and undertook negotiations with Monahan on an unpaid basis on the verbal authority of a midwife, Linda Wilson, who DeMeo assumed was in charge of the group. She did not purport to be representing any specified individuals. Petitioner Petty- Eifert is not a member of the Florida Midwives Association, and Petitioner Heller is an associate non-voting member of the group. DeMeo was concerned with substantive aspects of the proposed legislation and also desired that any changes to the law be made effective July 1, 1982, rather than an earlier date as proposed by Respondent. As a result of their negotiations, Monahan was under the impression that DeMeo had entered into an "agreement" whereby HRS would consider under the existing statute and departmental rules any applications for midwife licensure filed prior to July 1, the effective date of the statutory revisions. DeMeo testified at the hearing that she had no recollection that this was a part of their conversations, and denied any knowledge of entering into an "agreement" concerning the matter. In any event, Monahan represented to his superiors that there was such a commitment to apply the existing law and rules, and this was followed in all cases involving applications filed prior to July 1, 1982. Twelve of the applicants were licensed subsequent to July 1, 1982, under the preexisting law and rules. Respondent views the filing of the instant challenges to its rules as a breach of the perceived "agreement." It is found that Petitioners were not parties to any agreement concerning the processing of their applications. (Testimony of Petitioners, DeMeo, Pettengill, Clarke, Respondent's Exhibit 1 (Deposition of Wennlund), 2 (Deposition of Stinson), 9- 10). Rule 10D-36.22, F.A.C., apparently implemented Section 485.031(4)(b), Florida Statutes. The statutory provision required as a qualification for licensure that an applicant must have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during a lying-in period of at least ten days each. Rule l0D-36.22(1)(a) required that the applicant provide evidence of having attended the 15 cases "within a one (1) year period." In practice, Respondent normally required the one-year period to be the one-year period immediately prior to the filing of the application, although at least one exception had been made in this respect in a prior case. The intent of Respondent in adding the one-year requirement was to show that the applicant had demonstrated skills in the recent past, and to be compatible with the annual licensing period, and the one-year period of the vocational nurses program. (Testimony of Pettengill; Petitioner's Exhibit 2). Rule 10D-36.22(1)(d) apparently implements Section 485.031(2), Florida Statutes, which provides in part that an applicant must be able to fill out birth certificates legibly, which requirement may be waived for those persons with extended experience or in other exceptional circumstances. The rule requires that the application be accompanied by a written recommendation for licensure by the County Medical Director attesting to the applicant's ability to complete standard birth certificate forms, and to the fact that applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary. Respondent's general basis for this requirement is that the County Medical Director serves as the registrar and maintains vital statistics in his county, and has overall responsibility for the public health program in his jurisdiction. Historically, midwives have been under the supervision of the county health office concerning inspection of facilities and procedures utilized by midwives. Respondent's stated purpose the is to have the County Medical Director obtain the necessary facts for presentation to the Respondent with either a favorable or unfavorable recommendation. Although the rule prescribes a "written recommendation for licensure," Respondent has on occasion in the past licensed an applicant even though the County Medical Director had submitted an unfavorable recommendation. Respondent's stated reason for requiring the County Medical Director's attestation as to the applicant's ability to complete standard birth certificate forms was to ensure the applicant's ability to provide accurate information. Since the County Medical Director handles the vital statistic function in his county, it was believed by Respondent that he would be in the best position to fattest to the applicant's ability in this regard. It is important that birth certificate forms be filled out accurately since the information provided is used for a variety of purposes, such as estimation of population, state planning, and the like. In addition, proper spelling of the name is important to the individual concerned, and an error in this regard requires the filing of an affidavit to change the birth certificate. (Testimony of Pettengill, Williams; Petitioner's Exhibit 1). Rule 10D-36.27, in apparent implementation of Section 485.081, Florida Statutes, prohibits the administration of "any drug, herb or other substance for therapeutic purposes except as provided in Section 10D-36.28 of this chapter." Rule 10D-36.28(2) requires a lay midwife to instill two drops of one percent fresh solution of silver nitrate into dyes of newborn infants within one hour after birth. The purpose of Rule 10D-36.27 was to ensure that midwives would not use "old home remedies," such as poultices, ointments, plugs, and sassafras which possibly could be dangerous to the infant. In the opinion of Respondent's Public Health Nursing Consultant, oxygen would be included in the term "other substances" as used in the rule. (Testimony of Pettengill).
The Issue The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
Findings Of Fact Pursuant to its Administrative Complaint filed July 12, 1982, the Department of Professional Regulation, Board of Medical Examiners, seeks to revoke, suspend or take other disciplinary action against the Respondent as a licensed physician in the State of Florida. It was stipulated by the parties that the Respondent is a physician licensed by the State of Florida. The petitioner is an agency charged with the licensure and regulation of licensure status, professional practice and discipline of physicians licensed in Florida. The Respondent is licensed to practice medicine also in the states of Virginia and North Carolina. He graduated from medical school at the University of Virginia in 1949 and has been in active practice in Florida since 1959, when he began practice at Fernandina, Nassau County, Florida. The Respondent maintains an office at Fernandina, as well as one in Jacksonville. He is 63 years of age and practices in the area of family practice. He has been a member of the American Academy of Family practice since 1973. He is also a member of the Duval County Academy of Family Practice and has served as an officer of that organization and an active participant. The Respondent has been on probation pursuant to a stipulation entered into with the Board of Medical Examiners in December, 1981. The Respondent was placed on probation for a period of two years, effective January 4, 1982, after having admitted, by stipulation, that he issued a pre-signed prescription for Sultrin Creme for use by a nurse midwife in 1980; and that he prescribed Percocet and Percodan inappropriately to a patient in 1980. The Respondent's practice is primarily an office practice with practice at clinics around the state to which he devotes a certain number of days per month. The St. Augustine Maternity Clinic, Inc., apparently owned and operated by Carolle Baya (the evidence does not establish her precise relationship to the clinic) is one type of such clinic. Carolle Baya is a lay midwife, who at times pertinent hereto was not licensed to practice lay midwifery in the State of Florida. Because of her continuation in the practice of lay midwifery in St. Johns County, she was prosecuted in 1979 by the State Attorney for St. Johns County, which criminal charges were later dropped. She was then sued by the Department of Health and Rehabilitative Services in an attempt by that Department to enjoin her from practicing lay midwifery without a license. Carolle Baya obtained a favorable judgment in that civil action when the lay midwifery statute, then in effect, was declared unconstitutional by the Circuit Court in and for St. Johns County, Florida. Thus, Carolle Baya, at times pertinent hereto, was practicing lay midwifery, although without a license, under the legal aegis of the Circuit Court of the 7th Judicial Circuit, pursuant to that final judgment entered on October 10, 1979, in Case No. 79-313 (Respondent's Exhibit 4). Under the law as it existed at times pertinent to this case, the Department of Health and Rehabilitative Services required lay midwives to associate themselves with physicians, at least for purposes of providing examination of their patients prior to home births. (Rule 10D-36.25(a), Florida Administrative Code, "Supervision") Nevertheless, no physician in St. Johns County undertook to provide an association or "backup" to Carolle Baya for examination or backup care for her patients. Indeed, as established by Dr. Mussallem (for the Petitioner), the obstetricians in St. Johns County were responsible in general and Dr. Mussallem in particular, for the complaint lodged against Carolle Baya regarding her practice as a lay midwife. Thus, it was that Carolle Baya formed some sort of "backup" examination arrangement for her patients with the Respondent. On or about January 25, 1982, a newspaper advertisement was placed in the St. Augustine Record, stating that the Respondent was associated with the St. Augustine Maternity Center, Inc. The Respondent's name at the time of the filing of the Administrative Complaint on July 12, 1982, apparently appeared on the front of the St. Augustine Maternity Center, Inc., on a sign, although no evidence established that it was present on that facility at any earlier pertinent date. It was not established how the newspaper advertisement came to be published in the newspaper, and it was not shown for what purpose the Respondent's name appeared on the sign on the front of the St. Augustine Maternity Center, Inc. (either owned or operated by Carolle Baya) At the time the Administrative Complaint was filed, the Respondent was visiting that maternity clinic once a month for purposes of performing examinations of Carolle Baya's patients and general gynecological consultation and/or treatment. Dr. Mussallem, the only witness with any knowledge of the contents of the newspaper advertisement and the supposed sign, could not show whether or when the unintroduced newspaper advertisement was actually placed in a newspaper, nor the person responsible for its publishing, nor did he have any direct knowledge regarding whether the sign was actually displayed on the front of the clinic, nor who might have been responsible for doing so. His testimony in this regard is thus entirely hearsay and not creditable herein. Crystal Mull was a patient of Carolle Baya's throughout the entire term of her pregnancy, with a view toward having a midwife perform home delivery of her baby. Her entire prenatal care was under the direction of Carolle Baya. The Respondent, however, did examine Crystal Mull in approximately the eighth month of her pregnancy, October, 1981, with her mother present. Crystal Mull's mother, Mrs. Luellen McNairy, was of the belief that Dr. Britton was "like a sponsor or something like that." She admittedly was not sure what his relationship was with Carolle Baya, but that she "felt" that Carolle Baya referred to him for any medical questions she was unable to answer concerning a patient. The testimony of Mrs. McNairy and the testimony of Dr. Mussallem concerning what they "understood" the relationship between Britton and Baya to be (they admittedly had no direct knowledge), is the only testimony or evidence adduced by the Petitioner to show any sort of association of the Respondent with Carolle Baya's midwifery practice. The Respondent only went to Carolle Baya's clinic one day a month to perform gynecological examinations of her patients and was not present at the clinic supervising or advising Carolle Baya as to the care of her patients on a day-to-day or even a weekly basis, particularly the patients who are the subject of the Administrative Complaint. In any event, Carolle Baya wanted the doctor to meet her patient, Crystal Mull, to examine her so he could be familiar with her medical history. When he examined her he noted that the baby was quite large and he made a statement, according to Mrs. McNairy, to the effect that she might not be able to have the baby regularly and might have to be transported to the hospital. In the words of Mrs. McNairy, the Petitioner's witness herself, "It seemed to me that he was alerting us to the possibility that she might have to go to the hospital; there might be a difficult labor." Ultimately, Crystal Mull did have to be transported to the hospital for her delivery, although she had a normal, uneventful delivery and healthy baby. On the morning of her delivery, however, after progressing with her labor to a point, she failed to progress further and ceased to dilate. At approximately 1:30 or 2:00 on the morning of November 22, 1981, Ms. Baya came to the residence of Crystal Mull and her mother Luellen McNairy. Ms. Baya did a vaginal examination and periodically checked the fetal heart rate. The fetal heart rate was closely monitored to determine if any fetal distress was indicated by the baby's heartbeat. At approximately 10:00 the following morning, Carolle Baya called an unidentified person supposedly to consult with regarding doing something to relieve her patient's discomfort and pain, after she had been in labor for approximately 10 hours. Witness McNairy "believed" that Carolle Baya called Dr. Britton, however, the witness had no direct knowledge of who was on the other end of the telephone conversation with Carolle Baya and she is unaware of the substance of that conversation. A short time after the end of the telephone conversation, Mrs. McNairy observed Carolle Baya give Crystal Mull an injection in the hip and she seemed to relax some after that. Mrs. McNairy has no knowledge of the nature of the substance which was injected (although she surmised it might be Demerol). At about 12:30 pm on November 22, the membranes were ruptured, but the patient had not yet dilated as far as 8 centimeters. Thus, it was that Carolle Baya suggested that her patient and the patient's mother decide what they wished to do, that she did not want to make the final decision herself. Accordingly, the patient was admitted to the hospital at about 1:00 that afternoon. Ultimately, Crystal Mull experienced a normal delivery and she and her baby are currently in good health. On January 2, 1982, Dr. Anthony Mussallem saw Susan Thompson at around 6:30 or 7:00 in the evening. Her sister-in-law brought her in to see him at that time, at which she had reached in essence the full term of her pregnancy with her child being due on approximately January 7 or 8, 1982. The patient reported to Dr. Mussallem that Carolle Baya had been taking care of her prenatal course of care up until that point. While Carolle Baya was examining her that day in the St. Augustine Maternity Center, Inc., the patient's amniotic fluid began leaking and, inasmuch as labor usually begins within 24 hours of such an event, but in her case did not commence within 24 hours, the patient became worried and ultimately came in to see Dr. Mussallem. Dr. Mussallem did not speak with Carolle Baya concerning the condition of Susan Thompson nor did he see any medical records which had been maintained by Carolle Baya's maternity center concerning that patient. The doctor never talked to Dr. Britton concerning this patient. The patient informed him that she was given some tablets, supposedly to stimulate her labor and did not go into labor, but the doctor could not say what type of tablets were administered to the patient and, indeed, had no direct knowledge whether they were administered and, if so, who had administered them. Neither Dr. Mussallem nor Dr. Larroude have ever met the Respondent and neither could establish in any way the Respondent's connection, if any, with the maternity center owned or operated by Carolle Baya, nor with her practice as a lay midwife as any such relationship might have related to either patients Mull or Thompson. The most Dr. Mussallem, and indeed Dr. Larroude, could establish (in a "hearsay on hearsay" fashion), was that they "understood" that Dr. Britton provided "backup" to Carolle Baya in her midwifery practice. Dr. Mussallem could not say whether Pitocin or any other drug had actually been given Susan Thompson before he saw her as a patient on January 2. In any event, there was also no demonstration that the Respondent was aware at all that any medication had been prescribed either of the above-named patients or administered to them by Carolle Baya or anyone else. If indeed the patients were administered the drugs alleged in the Administrative Complaint, the Respondent did not support this activity nor have any knowledge of it. Susan Thompson was ultimately delivered of her baby on January 2, at 11:54 p.m., and both mother and child had a normal, uneventful birth. Susan Thompson could have been delivered of her baby by a trained midwife, inasmuch as she had a normal delivery, with no problems arising. In summary, the testimony of Drs. Mussallem and Larroude was predicated in all portions related to the charges in the Administrative Complaint on hearsay and those witnesses had no direct knowledge of the care given the patients in question at Carolle Baya's clinic by Carolle Baya and no knowledge of what type medication, if any, Carolle Baya or others unknown may have administered to those patients. Further, these witnesses do not know the Respondent, have no knowledge of the character and nature of his practice and have no direct knowledge regarding his professional relationships with Carolle Baya or her clinic, if any. These frailties render it impossible to accord significant weight to the testimony of these two witnesses. Ruth Hunter, Patricia Elaine Martin and Mary Ruth Ann Arick are all owners or supervisors of various women's health clinics. Dr. Britton is employed as a contract physician at each of these clinics and works at each clinic one or more times a month. The clinics are in Gainesville, Orlando and Holly Hill. The doctor is employed to perform first trimester abortions, vasectomies, insertion of IUDs, fitting of diaphragms and to provide miscellaneous gynecological care. All three of these witnesses established that the doctor is the best of any of the physicians employed by them, competently and professionally performing such procedures with a high degree of care and interest in the patient's condition. His practice at these clinics is characterized by his spending a great deal of time conversing with his patients and generally taking an interest in their condition and problems. They have all experienced that Dr. Britton has the lowest "complication rate," that is, problems arising after he performs various procedures, of any doctor who practices at their clinics. The testimony of these three witnesses was corroborated by that of Dr. John Freeman, a full-time physician with the Gainesville Women's Health Center, who established that the Respondent easily meets the appropriate standard of practice in all the work that he has performed for the Gainesville health center and excels above that standard of practice in most cases. Dr. Freeman was aware of the charges against Respondent in a general sense and established that injudicious use of drugs is totally out of character for the Respondent and that the Respondent is very conservative in prescribing any drugs, especially pain medications. Dr. Freeman is the staff physician at the clinic who reviews all procedures performed by other physicians. Ruth Hunter is a registered nurse, employed with the Gainesville Women's Health Center, who has worked with the Respondent in the vasectomy clinic at that facility. She has been an operating room nurse for approximately 15 years, and, based upon her experience with such duties and with physicians, she demonstrated that the Respondent is very capable in performing the procedures he was retained to perform for the clinic, with a very low complication rate and a very low incidence of prescribing any drugs at all during his practice at the clinic. Dr. Willard R. Gatling testified by deposition as an expert witness on behalf of the Respondent. He has known the Respondent professionally for approximately 15 years and the two of them have regularly attended educational and other meetings of the Duval County Academy of Family Practice on numerous occasions. Dr. Gatling has practiced medicine in the Jacksonville area for over 35 years as a family practitioner and obstetrician. He has seen the Respondent's patients on a number of occasions and the Respondent has seen Dr. Gatling's patients on a number of occasions since 1967. He is aware of the Respondent's current level of care for and treatment of his patients and based upon his experience with seeing patients who have previously seen Dr. Britton, his treatment of patients appears to be appropriate and proper and complies with the standard of care of a competent medical doctor as is accepted and practiced in northeast Florida. Dr. Gatling is aware of the Respondent's current probation and his past disputes with other physicians in Fernandina which resulted in those physicians voting him off the staff of the hospital there. Neither these problems nor the current charges have changed his opinion of the Respondent's competency. Raymond Michael Eichorn was director of the Nassau County Alcohol and Drug Abuse Council from November, 1975, to November, 1979. He became acquainted with the Respondent during that time because the Respondent was on the board of directors of that council until the council was disbanded two years ago. Dr. Britton was very active during those years in the council's work with the court and school systems in the area of drug education and combating drug abuse. He performed voluntary free physicals for alcoholics who were entering the antabuse treatment program. He performed this service despite the fact that he received no compensation and that the program provided him with no malpractice insurance coverage for this work. Since 1979, witness Eichorn has been employed in the personnel department of Container Corporation at its paper mill in Fernandina. He has continued to refer mill employees with alcohol problems to the Respondent for him to perform physicals for purposes of their entering the antabuse program. He has found the Respondent to be civic-minded and to continue to be interested in and working with the current drug abuse program in Nassau County. J. Chandler McLauchlan is, by training, a psychologist. He operates a cabinet making business and also works as a sculptor. He and Charles W. Howard and their families are patients of the Respondent. The Respondent, at all times, has proven to be a compassionate, conservative physician with regard to his care and prescription of drugs for these witnesses and their families. The Respondent frequently has charged substantially lower fees than other physicians for the same services and has generally shown himself to he a competent, caring physician, more concerned with patients' welfare than financial remuneration. He is strictly conservative regarding prescriptions of medicines and, in the words of Charles Howard, "he likes us to rough it."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses of the Respondent, who testified in person, as well as the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 18th day of November, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stephen P. Smith, Esquire Smith and Smith, P.A. 2601 University Blvd., West Jacksonville, Florida 32217 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
