The Issue Whether disciplinary action should be taken against Respondent's license.
Findings Of Fact Dr. Hunt is and has been at all times material, licensed by the Florida Board of Medicine. His license number is ME 001081. The Department of Health is charged with regulating the practice of medicine. The Department of Health may contract with the Agency for Health Care Administration (AHCA) to provide investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. In this case, ACHA provided those services to the Department of Health. The Board of Medicine is an administrative body statutorily situated under the Division of Medical Quality Assurance. On the evening of June 28, 1999, Dr. Hunt was on duty in the emergency room of the Memorial Hospital-West Volusia. Memorial Hospital-West Volusia subsequently became known as Florida Hospital Deland (Hospital Deland). At 9:35 p.m., on June 28, 1999, Patient V.V., a 22-month-old female, was brought by her father to the emergency room of Hospital Deland with a complaint of fever and shortness of breath. It was reported to emergency room personnel that V.V. had experienced shortness of breath for many hours before she was brought to the emergency room. V.V. was born on August 29, 1997. V.V. had a history of multiple congenital deformities including panhypopituitarism and a severe cleft lip and palate, among other medical problems. V.V. had visited Hospital Deland at least 68 times previous to her visit of June 28, 1999. Panhypopituitarism means that the part of the brain that regulates all of the glands and hormones that the body requires to function, is not functioning. This gives rise to a host of problems, including hypothyroidism, retarded growth, and holoprosencephaly. This latter term means that the brain does not progress or develop much beyond the fetal stage. V.V. also experienced seizures and sodium imbalances which would range from very high to very low. V.V. was described by her Board-certified pediatrician, Dr. Susan Griffis, as being very difficult to manage medically. Dr. Griffis described V.V. as being basically in a vegetative state. She noted that V.V.'s deformities were not compatible with long-term existence. V.V.'s prognosis at birth was a life span of two years. By June 28, 1999, she had attained the age of 22 months. At 9:35 p.m., Nurse Hilbun noted a respiration of 60 and determined, through the use of a pulse oximeter, that V.V.'s concentration of oxygen was 60 percent. V.V. was placed on 100 percent oxygen along with an aerosol medicine through the application of a nonrebreather mask. V.V.'s skin was dry and pink which indicated that she was getting sufficient oxygen. Dr. Hunt, on June 28, 1999, first saw V.V. at 10:00 p.m. He conducted a physical examination which revealed, among other things, that the child had shortness of breath and a temperature of 101.8 degrees. The child was diagnosed with bilateral pneumonia. At 10:16 p.m., Dr. Hunt ordered diagnostic studies including a chest X-ray and laboratory studies, which include an RSV test for virus, and a complete blood count (CBC). The CBC could not be obtained because blood could not be drawn. Blood could not be drawn because V.V.'s veins were very small and because of scarring from numerous previous extractions of blood. Dr. Hunt attempted to contact Dr. Griffis, V.V.'s pediatrician, for advice on a course of treatment but was unable to reach her. Dr. Hunt then contacted Dr. Reinertsen, the pediatrician on call who advised Dr. Hunt to intubate the patient and transfer her to Arnold Palmer Hospital in Orlando. It cannot be determined from the record exactly when this telephone call transpired. Dr. Reinertsen did not come to the emergency room. Arnold Palmer Hospital had an intensive care pediatrics unit. No intensive care pediatrics unit was available at Hospital Deland. Dr. Hunt did not transfer the child because he determined that V.V. was not stable to the point where she would survive the trip. He also did not follow Dr. Reinertsen's advice to immediately intubate the child, nor was he required to follow his advice. At 9:35 p.m., V.V.'s oxygen saturation was 60 percent and she had a heart rate of 160. At 9:45 p.m., she had an oxygen saturation of 85 percent. At 11:00 p.m., V.V's oxygen saturation was 98 percent and her temperature had improved to 100.6 degrees. At 11:40 p.m., respiration had improved to 52 and her heart rate was down to 140. At 1:40 a.m., June 29, 1999, respiration was 52, her heart rate was 142 and oxygen saturation was 95 percent. At 2:30 a.m., respiration was 52 and her heart rate was 142. At 3:00 a.m., respiration was 60, her heart rate was 146 and oxygen saturation was 95 percent. During this period, from 9:35 p.m. until immediately before 3:00 a.m. on June 29, 1999, V.V. was not sufficiently stable for transfer but her condition was not deteriorating. At approximately 4:00 a.m., V.V.'s condition took a dramatic turn for the worse. The child began to have difficulty breathing and was experiencing apnea. When the child's condition began to deteriorate, Dr. Hunt asked for and received permission from V.V.'s parents to intubate V.V. Although V.V. had been placed on oxygen shortly after arrival, an oxygen mask will only put oxygen into the lungs. It will not facilitate exhalation. Intubation, if successful, provides a clear passage to the lungs and facilitates both inhalation and exhalation. Dr. Hunt was unsuccessful in intubating V.V. An anesthesiologist was called in and eventually succeeded in intubating V.V. Nevertheless, V.V. continued to rapidly deteriorate, and suffered cardiac and respiratory arrest at approximately 5:00 a.m. Unsuccessful efforts were made to defillibrate V.V. with electric paddles at 5:12 a.m., 5:13 a.m., and 5:14 a.m., but the child could not be resuscitated. Intubating any baby is a difficult and dangerous task. Intubating a baby with the deformities that characterized V.V. is particularly dangerous because the tube could easily penetrate the brain instead of going down the back of the throat as it should. V.V. had been hospitalized at Shands Hospital for a repair of her cleft palate and cleft lip when she was approximately 18 months of age. Shands is a well-known research hospital with a superb reputation. Before the repair could be accomplished, it was necessary to intubate V.V. and the surgeons at Shands were unable to do it. Dr. Hunt was aware of this. Because of these factors, Dr. Hunt was reluctant to intubate V.V. The testimony of the State's Expert Mark Slepin, M.D., testified as an expert witness in the area of the delivery of emergency medical care. He is the chief operating officer and chief compliance officer for ECS Holdings. ECS Holdings is a company which provides quality assurance services, among other things, to hospitals throughout Florida and to hospitals in many other states. Dr. Slepin served a residency in emergency medicine at the University Hospital, Jacksonville. Dr. Slepin practiced emergency medicine for ten years at hospitals in the southeastern Virginia area. He practiced at St. Mary's and Good Samaritan Hospitals in West Palm Beach, and at hospitals in Milton and Sarasota, prior to joining ECS. He is Board-certified in emergency medicine. He was accepted as an expert in the practice of emergency medicine. Dr. Slepin reviewed V.V.'s hospital records and statements made by Dr. Hunt. He opined that Dr. Hunt, for the most part, practiced within the standard of care that is expected of a reasonably prudent emergency physician with regard to his evaluation of the patient, his work-up of the patient, and his initial management of the patient in the early stages of the patient's course in the emergency room. Dr. Slepin thereafter opined that the plan of care was not a plan that a reasonably prudent emergency physician would take. There was no written "do not resuscitate" order. He opined that under those circumstances Dr. Hunt should have either admitted V.V. into the hospital or transferred her to a hospital with appropriate resources. Moreover, Dr. Hunt failed to provide appropriate airway management, in his opinion. He opined that Dr. Hunt left the patient in limbo for five hours and, therefore, the patient eventually succumbed because there was no definitive airway intervention in a patient who needed airway intervention. Dr. Slepin opined that the medical records adequately documented the patient's response to therapy and progress, except that there should have been additional physician's notes regarding the patient's progress filed between the initial evaluation and the eventual demise. The testimony of the Respondent's Experts Donald Hilbun, Jr., is a registered nurse who has a bachelor of science degree in nursing from the University of South Alabama. He was a medic in the military for three years and practiced in the labor and delivery unit of a military medical facility in Alaska where he delivered health care to babies. He is certified by the American Heart Association in advanced cardiac life support. Nurse Hilbun had worked at the Hospital Deland for one year on June 28, 1999. He was accepted as an expert on the practice of nursing. Nurse Hilbun prepared nurses notes for V.V., which were part of the overall medical record of V.V.'s care. It is Nurse Hilbun's opinion that V.V. was never stable enough to permit a successful transfer to the Arnold Palmer Hospital. He does not believe Dr. Hunt withheld appropriate treatment. Jay Edelberg, M.D., is a Board-certified emergency room physician. He has a degree in dentistry and received his medical degree in 1975. He did a surgical internship for one year at St. Francis Hospital in Hartford, Connecticut, and did an emergency medicine residency from 1976 to 1978 at what is now called Shands of Jacksonville. He is currently in private practice. He also works in the emergency room of Flagler Hospital which is similar in size to Hospital Deland. Dr. Edelberg has had a contract with the AHCA for the last seven or eight years. The contract provides that he is to review cases relating to emergency room physicians. He gives written opinions, when asked, to the probable cause panel of the Board of Medicine. He was accepted as an expert in the field of emergency room medicine. Dr. Edelberg reviewed V.V.'s hospital records. He opined that when treating a patient who is having shortness of breath, intubation is done only as a last resort. He opined that Dr. Hunt's decision to intubate V.V. at the time he did was the correct decision and that it would have been a mistake to have done it earlier. Dr. Edelberg opined that the events of the evening of July 28, 1999, and the morning of July 29, 1999, were adequately documented by Dr. Hunt. Dr. Edelberg pointed out that Dr. Reinertsen was on-call for Dr. Griffis, V.V.'s pediatrician. He was not on- call for the emergency room. He also pointed out that when someone like Dr. Reinertsen is consulted, unless that person comes in and takes over the case, it is the emergency room physician who must ultimately make all of the decisions with regard to care. Dr. Edelberg stated that it was his opinion, within a reasonable degree of medical certainty, that the care provided to V.V. met the required standard of care. Conclusion On the whole, the expert testimony of Dr. Edelburg and Nurse Hilbun, was more persuasive than that of Dr. Slepin.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is
Conclusions THIS CAUSE came before the Agency for Health Care Administration (“the Agency") concerning the denial of Certificate of Need (“CON”) Application No. 10187 submitted by Naples HMA, LLC d/b/a Physicians Regional Medical Center-Collier to establish a 17-bed comprehensive medical rehabilitation unit in District 8, Collier County. 1. On June 7, 2013, the Agency published its decision denying CON Application 10187 submitted by Naples HMA, LLC d/b/a Physicians Regional Medical Center-Collier (“Physicians Regional”) to establish a 17-bed comprehensive medical rehabilitation unit in District 8, Collier County. 2. On June 7, 2013, the Agency published its decision denying CON Application 10188 submitted by Venice HMA, LLC d/b/a Venice Regional Medical Center (“Venice Regional”) to establish a 22-bed comprehensive medical rehabilitation unit in District 8, Sarasota County. 3. On June 28, 2013, Physicians Regional filed a petition for formal administrative hearing challenging the Agency’s denial of CON Application No. 10187. 4. On June 28, 2013, Venice Regional filed a petition for formal administrative hearing challenging the Agency’s denial of CON Application No. 10188. 5. The petitions for formal administrative hearing were referred to the Division of Administrative Hearings (“DOAH”). 6. Pursuant to the order of the Administrative Law Judge, the above-named intervenors were permitted to intervene in their respective actions and the matters were consolidated. 7. On July 7, 2014, Physicians Regional filed a Notice of Voluntary Dismissal. 8. On July 7, 2014, Venice filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 1. The denial of Physicians Regional’s CON Application No. 10187 is upheld. 2. The denial of Venice Regional’s CON Application No. 10188 is upheld. ORDERED in Tallahassee, Florida, on this 4 __ day of ‘uly 2014, Quand l gud fy ElizaMeth Dudek, Secretary / Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct of this Final Onder was served on the below-named persons by the method designated on this 77 day of ee , 2014. Richard J. Shoop, Agency lerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Karen A. Putnal, Esquire Robert A. Weiss, Esquire Moyle Law Firm, P.A. 118 N. Gadsden Street Tallahassee, Florida 32301 Kputnal@moylelaw.com Rweiss@moylelaw.com (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) R. Terry Rigsby, Esquire Brian A. Newman, Esquire Pennington, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Trigsby@penningtonlaw.com Brian@penningtonlaw.com (Electronic Mail) 3 James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Susan C. Smith, Esquire Corinne T. Porcher, Esquire Geoffrey D. Smith, Esquire Smith and Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL 32308 Susan‘@smithlawtlh.com Corinne@smithlawtlh.com Geoff@smithlawtlh.com (Electronic Mail) Sabrina B. Dieguez, Esquire Smith & Associates 1499 S. Harbor City Blvd., Suite 202 Melbourne, Florida 32091 Sabrina@smithlawtlh.com (Electronic Mail)
The Issue The issues in this case are those fashioned by the administrative complaint brought by the Petitioner against the Respondent, claiming certain improprieties in his conduct while participating as a member of a response team pertaining to an injured worker. In particular, Respondent is accused of improperly strapping a patient to a backboard and refusing to change the strapping when told that the technique of strapping was wrong. Further, Respondent is accused of acting inappropriately by, among other conduct, yelling and screaming obscenities at co-workers, attempting to eject a co-worker from the emergency vehicle they were working from and assaulting a co- worker. These events are said to be violative of Section 464.018(1)(f), Florida Statutes, which prohibits unprofessional conduct, of a sort which departs from or fails to conform to minimal standards of acceptable and prevailing nursing practice. Out of these events, Petitioner seeks to discipline Respondent's nursing license.
Findings Of Fact Facts found based upon stipulation of counsel Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of nursing pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 464, Florida Statutes. Respondent is, and has been at all times material hereto, a nurse in the state of Florida, having been issued license number 11991162. Respondent's last known address is 11668 Cape Horn Avenue., Jacksonville, Florida 32216. At all times material hereto Respondent was employed by Central Technical Services, St. Johns River Power Plant (CTS), Jacksonville, Florida. Facts found based upon evidence presented at the final hearing In addition to the Respondent, Lanta Craig, emergency medical technician; Mary Roberts, paramedic; and Arthur Punsky were employed on June 24, 1985, at the St. Johns River Power Plant. Craig and Roberts were working for CTS and Arthur Punsky was a safety engineer for Foster Wheeler Energy Corporation, a company doing work at the plant site. Respondent's specific duties on June 24, 1985, were as a registered nurse. In the early afternoon of June 24, 1985, Craig, Roberts and the Respondent were at the first aid station at the job site. At that point, an emergency call was made to the aid station to have the employees of CTS respond to an injury suffered by a worker at the construction site. Craig, Roberts and Respondent left the first aid station and went to the site where the worker had suffered his injury. The three individuals took the emergency response vehicle or ambulance as transportation. At the scene of the accident, Respondent and Roberts went to an elevator where the injured man was being brought down from his work site. Craig remained with the emergency response vehicle. Respondent and Roberts were informed that the injured worker had suffered a back injury. This information was provided before the patient arrived on the elevator. Upon the arrival, Roberts went back to the ambulance and retrieved a backboard to use in moving the injured worker. The backboard is a device employed in immobilizing patients with possible back injuries and neck injuries. The injured worker, when he got off the elevator, was ambulatory. Respondent placed the backboard on the ground, and with the assistance of another emergency worker, assisted the injured employee by lowering that individual onto the backboard, holding the injured employee's arms in this process. In the course of strapping the injured worker to the backboard, Respondent improperly applied the strap to the hand space and not to the hole which the strap should be passed through in securing the individual to the backboard. The effect of this was to cause the backboard straps to cross over the injured worker's neck, as opposed to the area of his shoulders and chest. A conversation ensued between Respondent and Roberts, in which Roberts told the Respondent that he had improperly set the straps. Respondent did not attempt to correct the problem before placing the patient in the ambulance. After the patient was placed in the ambulance, he was transported to the first aid station. When on board the ambulance, the Respondent took a cervical collar and placed it on the neck of the injured worker. This collar caused the improperly placed strapping to press against the patient's neck beneath the cervical collar. Roberts was concerned that this arrangement was one which possibly would cause an occlusion of the airway of the injured worker. In the course of the transport of the worker back to the first aid station, Roberts removed the cervical collar, believing that the problem with the improper strapping was choking the patient. It is not clear that the strapping did in fact cause a problem for the patient. Respondent took umbrage at Roberts' gesture and began screaming profanity at Roberts, and in the course of this situation, yanked the straps on the backboard. The worker was conscious and was aware of this exchange between Roberts and the Respondent. Roberts put her hands on the straps and told the Respondent to leave the patient alone. Respondent grabbed Roberts by her right wrist and jerked her up. At the first aid station, Craig got out of the ambulance and Roberts and Respondent remained in the ambulance and continued to argue as they had during the transport. Eventually Craig came to the side door of the ambulance and having stepped up into the ambulance, Respondent began to shout obscenities at Craig and physically forced her out of the ambulance. As she came to the ground, she knocked over Punsky. Marjorie Lander Smith, at times relevant to the inquiry, was licensed in Florida as a registered nurse, emergency medical technical and paramedic. Smith was received as an expert in emergency nursing, emergency medical technician and paramedic skills and standards of conduct. Her testimony established that Respondent departed from the normal standards of acceptable and prevailing nursing practice, to the following extent: Yelling and screaming of profanity and the use of verbal abuse toward other workers in the ambulance while in the presence of a conscious patient is unacceptable behavior for a nurse. This is true because the patient is dependent upon the ambulance personnel for a sense of security and must be provided a calm, supportive environment. Physically removing the fellow worker from the ambulance is unacceptable behavior on the part of a nurse, in that a nurse should only use violence to protect or defend herself or himself. In this instance, in the face of Smith's opinion, and the facts presented at the hearing, Respondent is not found to have been entitled to physically eject Craig from the ambulance in some effort at self defense. There was some controversy among Craig, Roberts and the Respondent on the subject of who was in charge of the ambulance response team when they were dealing with the call pertaining to the injured worker. It is unclear exactly what the lines of authority were in this organization related to that subject. Nonetheless, based upon the remarks of the witness, Smith and her opinion of appropriate standards of acceptable and prevailing nursing practice, Respondent screamed obscenities at co-workers and physically forced Craig out of the ambulance, all conduct which is improper regardless of who might have been in charge of the ambulance in this setting. Respondent also inappropriately accosted Roberts when he grabbed her wrist and jerked her up. Notwithstanding any general hard feelings between the members of the crew, the above-described actions of the Respondent were not justified.
The Issue Whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the State agency charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Dr. Mationg was a licensed physician in the State of Florida. His license, numbered ME 0028183, was issued on April 13, 1976. Dr. Mationg is the primary care physician of A.A. Dr. Mationg referred A.A. to Dr. Steven Schafer, an orthopedic surgeon, for pain in the right shoulder, which was found to require arthroscopic surgery and repair of a rotator cuff. On January 10, 2000, A.A. was admitted to Regional Medical Center Bayonet Point (Bayonet Point) for surgery. At the time of his admission to the hospital, A.A. was 65 years old and suffered from numerous medical problems. He had cardiomyopathy, meaning his heart was enlarged and not functioning properly. A.A. had high blood pressure and a history of heavy smoking. He had generalized arteriosclerosis and peripheral artery disease. A.A. had previously had surgeries involving the placement of a stint and angioplasty. Based on his medical history, A.A. was subject to a stroke and a heart attack. Prior to his admission to the hospital, A.A. had been taking aspirin daily. Approximately three days prior to surgery, A.A. was directed by Dr. Schafer to discontinue taking aspirin. The aspirin was discontinued to reduce the risk of A.A.'s blood not being able to clot sufficiently. The hospital records of A.A. contain a request for consultation with Dr. Mationg for medical management dated January 10, 2000. The discharge summary shows that the medical evaluation was obtained so that A.A. could be followed by his primary care physician for his hypertension and other medical history. Dr. Schafer performed the surgical procedure on A.A. on January 10, 2000. A.A. had some respiratory problems, and Dr. Mationg ordered a pulmonary consultation with Dr. Patel the afternoon of January 10, 2000. Because of the respiratory problems, A.A. was placed on a ventilator and transferred to the intensive care unit. On January 11, 2000, Dr. Patel extubated A.A., which means that A.A. was taken off the ventilator. On January 11, 2000, Dr. Mationg saw A.A. at 9:00 a.m. and wrote and signed an order for lasix and lanoxin for A.A. Around 3:15 a.m. on January 12, 2000, A.A. was awakened for respiratory therapy and experienced numbness in his left arm and slurring of speech. When A.A. smiled, the left side of his mouth remained flat while the right side turned up. The nurse on duty was called, and he observed A.A.'s symptoms. A.A.'s symptoms indicated that he was having a stroke. Nurse Culligan notified Drs. Schafer and Mationg. Dr. Mationg did not come to the hospital to evaluate A.A. The standard of care would have required him to come to the hospital to evaluate A.A. because A.A. was exhibiting the symptoms of a stroke. Instead of coming to the hospital to do an evaluation, Dr. Mationg gave the following orders telephonically to Nurse Culligan at 4 a.m., on January 12, 2000: T.O. Dr. Mationg/M. Culligan do CT head [without] contrast today a.m. do carotid doppler study today a.m. consult Dr. S. Shah for neuro eval. get speech therapy eval. and video swallow today. Nurse Culligan wrote the orders on A.A.'s chart; Dr. Mationg later countersigned the orders. The term "stat" in medical parlance means immediately or as soon as possible. An order is not presumed to be stat if the order does not specify that it is stat. The tests and consultation which Dr. Mationg ordered at 4 a.m., on January 12, 2000, were not ordered to be implemented stat. The standard of care for treating A.A. required that Dr. Mationg order a stat neurological consultation and a stat head CT scan. Bayonet Point has established policies for its imaging services department, including CT services. The normal hours for CT services are 7 a.m. to 11 p.m., Monday through Sunday. After normal hours, the services are provided on-call. Bayonet Point's call-back procedures include the following: When an emergent radiologic procedure is ordered after hours, the Radiology personnel will contact the appropriate on call technologist via the hospital operator. Once the procedure is complete, the Technologist will call the Radiologist on call and then transmit those images via Teleradiography. Definition of an emergent procedure: In- house STAT, Emergency Department physician requesting radiologist interpretation, any outpatient whose physician requests immediate radiologist interpretation or "wet reading." Prior to A.A.'s experiencing the symptoms of a stroke at 3:15 a.m., no orders had been given for A.A. to resume taking aspirin. At 10 p.m. on January 10, 2000, Dr. Schafer ordered that "till further notified" all medications taken by mouth which could be taken intravenously were to be administered via an IV. Aspirin could not be administered intravenously. Because Dr. Schafer had ordered that aspirin therapy be stopped prior to surgery, it would be the responsibility of Dr. Schafer to order the aspirin to be restarted. Dr. Schafer was at A.A.'s bedside at 8:30 a.m., on January 12, 2000. Dr. Schafer noted that a head CT scan was ordered for that morning and that the patient was on his way down for the test. Dr. Schafer also noted that a neurological evaluation had been ordered for A.A. for that morning. The hospital records show that at 8:50 a.m., on January 12, 2000, a call was made to Dr. Shah's answering service, requesting a neurological consultation. The request for consultation form, which was filled out after Dr. Schafer's visit at 8:30 a.m., indicated that the request was an emergency request. The request for consultation form was filled out by someone other than the nurse who charted Dr. Mationg's verbal order for a neurological consultation. Based on the evidence presented, the request for a neurological consultation was not treated as an emergency request until after Dr. Schafer saw A.A. at 8:30 a.m. Tissue Plaminogen Activators (TPA) are used to dissolve clots which may be causing a stroke. The use of TPA is limited to a three-hour window following the onset of stroke symptoms. Dr. Mationg did consider the use of TPA, but felt that it was contraindicated based on the recent surgery. This opinion was confirmed at final hearing by a neurologist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes; finding that Dr. Mationg did not violate Subsection 458.331(1)(m), Florida Statutes; placing Dr. Mationg on two years probation; imposing an administrative fine of $5,000; and requiring that Dr. Mationg attend ten hours of continuing medical education courses in the diagnosis and treatment of strokes and four hours of continuing medical education courses in risk management. DONE AND ENTERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ SUSAN B. KIRKLAND 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 3rd day of July, 2003. COPIES FURNISHED: James W. Earl, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 A. S. Weekley, Jr., Esquire Holland & Knight, LLP 400 North Ashley Drive, Suite 2300 Tampa, Florida 33602 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue allegedly presented in this case is whether the Petitioner, Dennis A. Ryan, is eligible for recertification as a paramedic.
Findings Of Fact Prior to November, 1980, the Petitioner was employed as a paramedic with Brevard County Emergency Medical Services, having been certified by HRS on August 31, 1979. The Department determined, and contended at the hearing, that this certification expired on August 31, 1980, and that a certificate holder has a 60 day grace period within which to renew a certificate after its expiration date. This grace period expired on October 30, 1980. HRS received the Petitioner's application for recertification together with the required fee on November 7, 1980. The recertification application and check having been received on a date which HRS contends is not within the prescribed grace period, HRS refused to recertify the Petitioner. Since November of 1980, therefore, he has worked in a clerical position with EMS of Brevard County, not as a paramedic. HRS further contends that under the rules in existence up to and including the date of the hearing in this matter, a paramedic whose certification lapses by more than 60 days is not eligible for recertification, but must meet anew all of the requirements for an initial certification. There was some evidence presented relative to a pending change in the existing rules, designed to relax the recertification requirements, but there is not sufficient evidence in the record to support a finding of fact on this issue. At best, the prospective rule change would reduce, not eliminate, the eligibility requirements for recertification of individuals whose certificates have lapsed. The Petitioner, Dennis A. Ryan, received his Emergency Medical Technician certification after a 156 hour college course and a State examination. This was a prerequisite for the 500 hour paramedic course which was completed at the Brevard County Community College. He also has completed adjunctive courses in life support under the standards of the American Heart Association. He is not certified as an associate instructor of Advanced Cardiac Life Support courses, and as instructor/trainer for CPR, advanced first aid, water safety and standard first aid. Under the evidence presented the Petitioner is highly qualified as a paramedic. The certificate which HRS issued to the Petitioner on August 31, 1979, does not on its face set forth an expiration date. Certificate holders are also issued a wallet-size card on which there does appear an expiration date. Between January 1 and August 1, 1980, HRS gave notice by memo directly to persons whose certificates it determined had expired or were about to expire, advising them of the recertification requirements. However, after August 1, 1980, this practice was discontinued. Instead, notices were placed in various newsletters disseminated among the licensed ambulance providers in the State, advanced life support providers, training centers, etc. But without direct notification, or timely reference to his wallet-size card, the Petitioner did not submit his recertification application within the alleged grace period. Further, until August 1, 1980, HRS engaged in the practice of making exceptions to the rigid paramedic recertification rules, allowing recertification when applied for after what it asserts to be the grace period. This practice was also discontinued after August 1, 1980. Consequently, as a result of the inadvertence of the Petitioner, and the cessation by HRS of its policy of flexibility, the Brevard County area has been deprived of the services of a skilled and experienced paramedic.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services advise the Petitioner, Dennis A. Ryan, that his paramedic certification is valid until August 31, 1982, and return to him the recertification application and fee submitted on November 7, 1980. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1981. COPIES FURNISHED: Kenneth C. Crooks, Esquire Post Office Box 37 Titusville, Florida 32780 Samuel P. Stafford, Esquire Assistant District Counsel HRS Disstrict VII, Suite 912 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DENNIS A. RYAN, Petitioner, vs. CASE NO. 81-218 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue This hearing dealt with the consideration of the adequacy of the proposals by the Petitioner and Intervenor which were offered in response to the Respondent agency's RFP inquiry about a contract for the delivery of health services. Consideration of the dispute was as envisioned by Section 120.53(5), Florida Statutes. Respondent had determined that the Petitioner's proposal was unresponsive, and the proposal of the Intervenor was found to be acceptable. Petitioner challenged this opinion, leading to an assessment through the hearing process of the responsiveness of the proposals submitted by the Petitioner and Intervenor.
Findings Of Fact On September 12, 1985, the State of Florida, Department of Corrections, the Respondent in this action, issued request for proposals number 85-CO-2336-R. (A request for proposals is commonly referred to as an "RFP.") The purpose of this RFP was to obtain the assistance of a vendor or contractor in the provision and management of medical services at a newly constructed reception/medical facility located in southern Florida. Following the review of four responses to the RFP a decision was made on October 15, 1985, to award the project to Emergency Medical Services Associates, Inc., the Intervenor. In the face of this intended agency action, the Petitioner, Correctional Medical Systems, Inc., filed a Notice of Intent to Protest on October 18, 1985. This was followed by a Formal Written Protest dated October 23, 1985, which was amended on November 7, 1985. These pleadings raise the issues which are described in this Recommended Order. In particular Respondent, through the RFP, sought the ideas of the contractors necessary for the provision of comprehensive health care services in the new facility which is known as the South Florida Reception Center. Among the specific requirements of the RFP were the supply of medical and psychological personnel physical and psychological examinations, x-ray and laboratory facilities, the provision of an infirmary and an intensive care mental health unit. The RFP called for the provision of the services for three years with an option to renew for a second three-year term upon agreement of the provider and Respondent. In addition to the Petitioner and Intervenor, two other firms submitted responses to the RFP. Those companies were Correctional Health Services, Ltd., and Prison Health Services, Inc. The price quotations given by the four responding vendors were as follows: Correctional Medical Systems, Inc. $11,084,805.00 Correctional Health Services, Ltd. 11,560,000.00 Emergency Medical Services Associates Inc. 13,687,419.00 Prison Health Services, Inc. 15,720,387.00 In issuing the RFP the Respondent had as its goal the ability to select from competitive proposals that proposal which best met the needs of the agency. This method of selection was utilized, notwithstanding the fact that health services are not required to undergo the rigors associated with the bid laws of Florida. The RFP, in its terms, had allowed the unsuccessful bidders to protest the Respondent's decision of the matter of a contract award based upon authority set forth in Section 120.53(5), Florida Statutes. Three of the four proposals submitted by the four companies were rejected by the Respondent as being nonresponsive or irregular. Petitioner's proposal was rejected in view of the Respondent's belief that the proposal failed to contain a firm fixed price. Prison Health Services' bid was depicted as being inadequate, in that it failed to offer a fixed price and to include a legally binding proposal. Correctional Health Services' proposal was deemed nonresponsive for the failure to include resumes of key personnel within that organization. These determinations of irregularity or of lack of responsiveness were based upon a facial review of the submissions by the contractors and no further steps were taken by the Respondent to make an in- depth analysis of those proposals or to compare them to other proposals prior to deciding the ultimate question of which contractor it preferred to engage in this undertaking. The proposals from the four contractors were received and opened on October 7, 1985. William Stancill, the General Services Administrator to the Respondent had reviewed the submissions by the four vendors with an eye for any failings in those documents pertaining to what he perceived to be mandatory requirements of the PEP. This assessment lead Stancill to recommend the rejection of the three vendors for lack of compliance with mandatory requirements. Having reached this conclusion, the vendors other than the Intervenor were told that their proposals were unacceptable. Again, upon the facial examination of the proposals, only that proposal of Emergency Medical Services Associates was found to be responsive. 1/ Before the proposals were received from the various contractors, Respondent held what is known as a responders' conference to discuss the terms of the RFP. In the course of this conference, an indication was given to the potential responding parties on the topic of the Respondent's desires as to a price quotation. In the RFP, paragraph 5.2 [page 28] indicates "The cost proposal will be stated in terms of a fixed price for each year of the contract and option " In the course of the proposal submitted by the Petitioner, it offered the following comments about its price: CMS' price for each year of the contract is shown based on a 5 percent yearly increase. If the Medical Care Component of the Consumer Price Index deviates more than 2 percent from the projected 5 percent increase in a given year, CMS reserves the right to renegotiate its price with the Florida Department of Corrections for that year. This price is not fixed as contemplated by the terms of PEP, and this submission by the Petitioner fails to comply with the PEP on this subject. This failing is not cured by the testimony of Richard Turpenoff, Vice President of Financial Services for the Petitioner, when he describes personal involvement with the submission of seventy-five to a hundred health care proposals for correctional facilities and the fact that this language set forth in the present response to PEP had been used on those occasions. Nor is it beneficial to the Petitioner when it indicates that this type of language set forth in the response to the price demands of the PEP is that which has been used by health care providers throughout the industry. Petitioner's idea of reserving to itself the ability to discuss with the Respondent an equitable adjustment in the price of its services, in what the Petitioner foresees as an unlikely event that the Medical Care Component of the Consumer Price Index were to rise drastically over the period of the contract, is in itself a departure from the terms of the PEP. The PEP does not allow for this interference with the orderly process of the contract terms through any suggested negotiations, and it does not suffice to say that those negotiations are not unilateral in nature. Further, it is insufficient rehabilitation of the response to the PEP to indicate that the Petitioner has not abandoned any of its contracts before the expiration of the terms of those agreements. In this connection, the testimony of Joseph Rowan, Executive Director of Juvenile and Criminal Justice International, an expert in health care, states that he has reviewed a large number of proposals and has seen numerous proposals with provisions similar to that set forth in the Respondent's statement on price and concludes that the provision in the proposal is a firm fixed price. That statement is rejected. It is rejected because the interpretation given to this provision on the part of the Respondent in the person of Mr. Stancill is more compelling. Stancill believes that the Petitioner's quotation is not binding and is therefore not a fixed price, and that understanding is accepted. The Petitioner's deviation from the requirement for fixed price is one which may not be considered a minor irregularity, in that it is not an item which does not have an adverse effect on the cost or performance as described in paragraph 4.7 [page 25] of the PEP. The terms of the PEP as paragraph 4.7 and Rule 13A-1.02, Florida Administrative Code, contemplate the waiver of minor irregularities in the proposals submitted by the contractors. By not submitting a fixed price, Petitioner has failed to comply with a mandatory requirement of the PEP, and its offer is unresponsive. Finally, in the last four years, the Medical Care Component of the Consumer Price Index has exceeded 5% in each of those years and has reached as high as 8.7% in one of those years. As with the Petitioner's submittal, in examining the propriety of the submission by the Intervenor, it is the question of mandatory compliance with the RFP that is critical to the qualification of the latter proposal. To this end, the Petitioner has attempted to identify in the course of the final hearing those items within the proposal by the Intervenor which Petitioner argues constitute noncompliance in categories in which compliance is mandated. The first area of concern by the Petitioner pertains to subparagraph 5.1.2 of the RFP [page 27]. This provision relates to job descriptions and resumes of employees included within the FTE count. It says: A job description for all employees to be employed by the Contractor in the institu- tion, must be included. (Format samples are attached.) Resumes of any designated senior administrative/management or professional personnel should be included. As a minimum, the positions equivalent to senior adminis- trator, the chief health officer, and the nursing Director must be designated and a resume provided. Having considered the language of this provision, and the explanation concerning the provision as provided by Stancill, this provision is found to require the submission of job descriptions for all employees that the contractor intends to utilize in the institution. Further, it is necessary that the contractor designate by name and provide resumes for those persons holding the positions within the organization which are equivalent to the senior administrator, chief health officer and nursing director. This provision cannot be construed, as urged by the Respondent and Intervenor, to countenance the idea that only the job descriptions pertaining to positions equivalent to senior administrator, chief health officer and nursing director must be provided. In its submission, the Intervenor failed to submit job descriptions for employees in the classifications clerical assistant, medical records librarian, rehabilitative therapist ward clerk, clerk typist, pharmacy assistant and, arguably, clinical psychologist. Those job descriptions identified were provided at a later date. An additional conference was held between the Respondent and Intervenor following the Respondent's stated intention to select the Intervenor as the contractor, and in the course of this meeting, the Respondent established what it would accept in the way of the provision of services under the term medical assistant. That indication was to the effect that this job title must pertain to licensed nurses and medical technicians. In Florida, there is a specific category of licensed professional referred to as "medical assistant," found at Section 458.34, Florida Statutes, (Ch. 84-543, Laws of Florida) as it deals with assistants to physicians. The job description related to medical assistants as provided by the Intervenor more closely corresponds to the duties of licensed nurses or persons who assist those nurse practitioners, not persons who work under the direct supervision of a physician as described in Chapter 458, Florida Statutes. This job description also refers to the possibility of filling positions with persons who have worked as emergency medical technicians, EMTs. While the Intervenor failed to submit the job descriptions which have been identified in the previous paragraph, and as such violated subparagraph 5.1.2 of the RFP, this noncompliance is not a failure to comport with mandatory terms of the RFP. The mandatory terms as generally described in paragraph 3.1, and as defined by the following paragraphs and subparagraphs, do not point to the idea that the failure to provide the job descriptions is mandatory and a fatal defect in the proposal. While paragraph 3.1 and its ensuing provisions do regard the provision of resumes and background information related to key personnel as being mandatory the provision of job descriptions for the personnel at issue is not a mandatory item. Finally, the omission of those job descriptions in this instance has not been found to have a bearing on cost or performance. In a related vein, the inability, in theory, to compare the job descriptions of one contractor with those of another would impair the purchaser's efforts at selecting between the proposals. However, this comparison is not needed if the other contractors have been excluded based upon noncompliance with mandatory requirements of the RFP. Indeed, the other three proposals were properly discarded for noncompliance, and no comparison has been made. In the absence of the necessity of comparing job descriptions, it was not inappropriate for the Respondent to allow for the provision of the missing job descriptions subsequent to the submission of the basic proposal or to engage in discussion about the needs under the category medical assistant following the submission of the proposal. The Petitioner next challenges the accuracy of the claims which have been made by the Intervenor reference James A. Brigham, a key person in the plans of the Intervenor in its attempts at honoring the terms of a contract with the Respondent. Brigham is the Intervenor's Director of Marketing. On page 3 of the proposal of the Intervenor, in the introductory remarks, it is stated: Mr. Brigham was formerly an executive with and helped to found and manage Correctional Medical Systems, Inc. He has worked directly with the Department of Corrections in the states of Illinois, Alabama, Georgia and Missouri. In fact, Brigham neither founded nor managed Correctional Medical Systems, Inc. Although he has offered advice in the formative years of that corporation through his affiliation with another corporate entity which was associated with Correctional Medical Systems, Inc., that experience cannot be elevated, even under the most liberal construction, to a level of founding and managing. Brigham has never been employed by Correctional Medical Systems per se and has not served in any executive capacity with that organization. The resume of Brigham, which is a part of the proposal by the Intervenor, also sets forth that Brigham served as the Executive Vice President of Spectrum Emergency Care, Inc., in the years 1977-1983. (Spectrum is the other corporation previously mentioned which Brigham was associated with when advising Correctional Medical Systems.) His service as Executive Vice President lasted from 1977 through October 1, 1982. He did serve as an employee of Spectrum Emergency Care between the years 1977 and 1983. In the course of that employment, he prepared proposals and consulted with various states in the area of provision of medical care within correctional facilities. In that regard he had some contact with the states of Illinois, Georgia, Missouri, Arkansas and Alabama. Correctional Medical Systems was organized in 1979 to promote comprehensive medical services within correctional facilities throughout the United States. The focus of Spectrum in this regard had been primarily the provision of physician staffing in correctional facilities. It is not evident from what has been presented in the course of this hearing why these inaccurate statements were set forth in the RFP in describing Brigham's association with Correctional Medical Systems and Spectrum. On balance, having considered those statements and having reviewed the deposition of the witness Brigham on the subject of his experience, these inaccuracies within the RFP response are not found to be sufficient to recommend the rejection of this proposal. Paragraph 2.7 [page 1O] of the RFP states: The proposal shall indicate the contractor's plans to secure and maintain standards of the Commission on Corrections accreditation of the health services program, regardless of whether the entire institution may be accredited. This refers to standards established by the American Correctional Association. Petitioner claims that the Intervenor did not describe in its proposal how it intends to provide access information to the incoming prisoners pertaining to health care. As argued by the Petitioner, this is a requirement by the American Correctional Association in its standards dealing with the provision of medical care access information to prisoners. However, the RFP cannot be construed as requiring a contractor to identify how it would comply with that provision as a feature of its response to the RFP. The RFP is read to stand for the proposition that the contractor, in cooperation with the Respondent, shall make efforts to gain accreditation by the American Correctional Association and does not extend to the idea of a separate statement in its proposal of how it will provide access information to incoming prisoners. Moreover, it was established in the course of the hearing that at the point of intake of inmates into the Florida system of corrections, those inmates are routinely made aware of their right to receive medical services. At paragraph 2.1, lettered section C, [page 7] of the RFP, there is a discussion of the length of stay contemplated in the mental health unit of the facility. In particular it states: The patients in this mental health unit are expected to be successfully treated or stabi- lized within 30 to 60 days so as to permit assignment to another institution. This obligates the contractor to the establishment of a program varying in length from thirty to sixty days which will meet those requirements of successful treatment or stabilization. In preparing a budget to address this requirement, it leaves to the contractor the decision on whether the program needs to be thirty or more days. The latitude is afforded to use as few as thirty days in preparing the budget, which the intervenor did. By its terms, the RFP calls for the processing of eighty adult offenders and twenty youthful offenders per week for a total of a hundred inmates a week to be seen at reception for routine physical exams. This requirement of the RFP has been addressed in the budget statement of the Intervenor in Attachment D [page 2], described as a hundred physicals times 52 weeks or fifty-two hundred examinations. This item is separate from another item set forth on that page dealing with physical examinations which are on an annualized basis with a calculation being made that approximately five persons will be examined per day in the category of annual examinations. It has not been shown that the Intervenor budgeted for five examinations a day related to the intake function of receiving and processing inmates, when twenty per day was called for by the RFP. None of the other claims of the Petitioner set forth in the formal protest and its amendments on the subject of alleged infirmities within the Intervenor's response to proposal have been proven. The Emergency Medical Services Associates proposal had been reviewed by the evaluation committee of the Respondent which had the responsibility to make decisions on the sufficiency of such proposals and was found to be satisfactory. This determination has not been shown to be in error through proof in this hearing.
