Findings Of Fact On October 27, 1993, AHCA's predecessor agency, the Department of Business and Professional Regulation (DBPR) went before a probable cause panel of the Board of Medicine and requested a probable cause finding essentially that the Petitioner practiced psychiatric medicine below the applicable standard of care when he transferred a psychiatric patient at the Pinellas County Jail from one location to another within the jail. The panel found probable cause, and DBPR filed its Administrative Complaint, DBPR Case No. 92-17009, later DOAH Case No. 94-5120. In pertinent part, the Administrative Complaint alleged: that the patient had been upgraded from suicide precaution to suicide observation on the day before Dr. Kayan saw him on June 29, 1990; that Dr. Kayan transferred the patient to Delta Unit 1, 2 or 3 (from B-Wing) on July 4, 1990; that the Delta units are an extension of the medical wing for inmates who do not need acute psychiatric care and do not pose a suicidal threat; that there was no documentation that Dr. Kayan consulted with either the jail psychologist or the other jail psychiatrist before the transfer; that Dr. Kayan did not see the patient during the three days following the transfer; that the patient attempted suicide on July 7, 1990; and that Dr. Kayan practiced psychiatric medicine below the applicable standard of care "by transferring Patient No. 1 from a suicide observation unit . . . to a unit in the jail where Patient No. 1 was not given the needed observation or security." Eventually, a Final Order was entered finding that AHCA did not prove the charges. DBPR's request for a probable cause finding was based on an expert opinion from Charles Rosenberg, M.D., which was in turn based on an DBPR's Investigative Report. Dr. Rosenberg is an internist, not a psychiatrist, and he has not practiced medicine since 1986. However, he has expertise in the practice of medicine in prison settings, and it was reasonable for the DBPR to rely on his opinion for purposes of determining whether there was probable cause. The Investigative Report covered interviews with several witnesses and the pertinent medical records. Level of Patient Observation Dr. Rosenberg's opinion report (Exhibit 2b) stated that Dr. Kayan on July 4, 1990, created a medical record that the patient would be transferred to the Delta 1, 2 or 3, and that "W. C. was then transferred to a less secure housing environment on that date. . ." (pg. 1). In addition, Dr. Rosenberg stated that "the decision by Dr. Kayan to transfer him to a housing area where he would be less frequently observed, was made without any input from any of the mental health professionals" and that the transfer was "to a housing area with considerably less surveillance and where he apparently would no longer be seen on a frequent basis, if at all, by mental health staff." (pg. 2). Dr. Rosenberg also stated his opinion that the "patient was not stable enough to be taken off of suicide observation, as the subsequent course of events so tragically verifies." (pg. 3) Dr. Rosenberg then repeated, on page 4, that the patient was "transferred to a less secure housing environment " A careful and thoughtful reading of the medical records from the Pinellas County Jail (Exhibit 10.2c) would have suggested that the level of observation of the patient had actually been changed on June 29, and not July 4, 1990. On page 30 of said exhibit, Dr. Kayan used the Greek letter delta for the word "change" to indicate that, on June 29, 1990, he changed the patient's status from "SO to PO", meaning an upgrade from suicide observation status to psychiatric observation status. On this same page is Dr. Kayan's order of July 4, 1990, which merely transferred the patient to another unit, the Delta Unit, without changing the level of inmate observation. Dr. Rosenberg missed the significance of Dr. Kayan's notation on June 29, 1990. As a result, he assumed that the change in status with attendant changes in protocol occurred on July 4, 1990. Neither the DBPR staff nor any member of the probable cause panel noticed Dr. Rosenberg's error. Dr. Rosenberg's error is more understandable in light of other parts of the Investigative Report. On page 8, the Investigative Report related the substance of an interview with Dr. VanDalen, who is identified as a jail social worker with a Ph.D. in education psychology: It was Dr. Van DALEN's [sic] job at that time to assess and evaluate the inmates on B-wing in conjunction with the psychiatrist (Dr. KAYAN) regarding the inmates' suicidal tendencies and to determine whether or not they were stable. . . . On the day of W. C.'s assessment, W. C. Appeared to be stable enough to be considered for movement (to Delta). Delta is an extension of the medical wing for inmates who do not need the acute psychiatric care. They have been stabilized and therefore placed in Delta wing which is a psychiatric observation wing. Although he provided input into whether or not W. C. should be transferred, Dr. KAYAN made the final decision. W. C., however, was stabilized at that time. . . . If they at any time felt uncomfortable with transferring him, they would not have done so. When they made the decision to transfer him, they had his (W. C.'s) input, the information in his medical chart, including his previous records along with the information from jail officers and nurses. It would not have been unreasonable for Dr. Rosenberg and the panel to assume, based on this part of the report, that care was taken in assessing the patient before transfer from B-wing to Delta because the patient's status and level of observation and security was being changed at that time. Even if there were no change in status between B-Wing and the Delta units, it also was not clear from the Investigative Report that there also was no difference in level of observation and security between B-Wing and the Delta units. As already indicated, parts of the report of the interview with Dr. VanDalen suggested that patients received greater attention on B-Wing. Meanwhile, page 6 of the Investigative Report related the substance of an interview with Frances M. Bell, Director of Nurses: Currently and during the time in question, B-Wing was a medical unit which included acute psychiatric patients as well as medical patients who needed further evaluations. Individuals are initially evaluated in B-wing by the psychiatrist and medical doctor. They are closely monitored every fifteen (15) minutes or if they are an acutely suicidal person they are monitored one on one, twenty-four (24) hours/day. In the unit, they are stripped for their own protection. B-wing is just an intake area for individuals to be evaluated or until an acute condition is under control, i.e. suicide threat. They then leave the unit to go to Delta Unit which is an direct [sic] 1/ observation unit having one officer in a pod of sixteen patients or inmates. These individuals are checked every fifteen minutes. The records indicate that W. C. was in pod 2, a psychiatric observation pod where he was checked every fifteen (15) minutes. The nurse also makes her rounds at 9 A.M., 1 P.M., 5 and 9 P.M. It is not difficult to understand why there might have been confusion as to whether there was a difference in level of security and observation on the two wings, even assuming the patient's status was the same. Alleged Lack of Input from Others Dr. Rosenberg also asserted that the decision to transfer the patient to the Delta Unit on July 4, 1990, was made without input from any other mental health professional. On page 2, Dr. Rosenberg's report stated: "The decision by Dr. Kayan to transfer him to a housing area where he would be less frequently observed [was made without input from any of the other mental health professionals] who had participated in his initial management." [Emphasis added.] On page 3, paragraph 5, Dr. Rosenberg's report stated: "[No consultations were involved] in this case. More to the point, however, was the [lack of any communication between any members of the mental health staff] regarding this patient which each of them had seen and evaluated. Thus, the decision to transfer him out of suicide observation was [made by Dr. Kayan, without their input]." [Emphasis supplied.] Given Dr. Rosenberg's belief that the change from suicide observation to a lesser status occurred on July 4, 1990, the investigative report would not support the conclusion that Dr. Kayan made the decision on his own, without input. Clearly, according to the report of the interview with Dr. VanDalen contained in the Investigative Report, Dr. VanDalen participated in the decision. See Finding 7, above. On the other hand, it is possible that Dr. Rosenberg did not consider Dr. VanDalen to be one of the "other mental health professionals." The report stated that, although VanDalen had a Ph.D. in Education Psychology, his job title was Forensic Social Worker. Dr. Rosenberg's concerns centered on the absence of any indication that Dr. Kayan consulted with Dr. Dennis, a psychiatrist who saw the patient on July 3, 1990, and noted no improvement in his mental condition. Besides, ironically, if Dr. Rosenberg had correctly understood that the decision to transfer the patient out of suicide observation was made on June 29, not July 4, 1990, his belief that the decision was made without the input of others would have been supported by the investigative report and the medical records. Which Health Care Practitioner was Responsible? Dr. Rosenberg, in his report, attributed the responsibility for this patient, for the time period between July 4, the date of transfer to Delta, through July 7, the date of the suicide attempt, to Dr. Kayan. On page 7 of the Investigative Report, Frances Bell, the director of nurses, was quoted: [D]uring the time in question, Georgia BRANDSTADTER- PALMER was the psychiatrist [sic] and Donald Van Dalen [sic] was the social worker both of whom were employed by the jail. Dr. Donald DENNIS, a psychiatrist who was also working at the jail on the weekends at the time, is no longer working as such and his whereabouts are unknown. Dr. Dennis was interviewed by the Investigator, and the report of his interview appears on page 9 of the Investigative Report. Dr. Dennis stated that he "vaguely recalls W. C. whom he did not see on the day he attempted suicide although it had occurred on the weekend while he was on duty." However, given Dr. Rosenberg's mistaken belief that the patient's status was upgraded from suicide observation to psychiatric observation status on July 4, 1990, and the confusion in the Investigative Report as to the differences between the two, it would not be unreasonable for Dr. Rosenberg to be of the opinion that it was incumbent upon Dr. Kayan to take steps to communicate directly with Dr. Dennis or one of the psychologists to be sure that one of them saw the patient after the transfer to Delta. In addition, the failure of the psychiatrists and psychologists to see the patient at all from July 4 to July 7 could have been viewed as support for Dr. Rosenberg's belief that the patient's status was changed on July 4, 1990. Amended Administrative Complaint After the initiation of the original Administrative Complaint on November 4, 1993, discovery was undertaken by the parties. In addition, AHCA obtained an additional expert opinion from Gerald H. Ratner, M. D. (Exhibits 2c and d and 4a). Based upon this additional information, AHCA recommended to the Probable Cause Panel that an Amended Administrative Complaint be filed against Dr. Kayan adding allegations that Dr. Kayan failed to adequately monitor and/or further evaluate the patient after prescribing the drug Ascendin and that Dr. Kayan failed to keep adequate medical records. The matter was submitted to a new Probable Cause Panel on March 8, 1995, and the second Probable Cause Panel found probable cause to file the Amended Administrative Complaint.
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
Findings Of Fact At all times material hereto, Respondent has been a licensed registered nurse in the State of Florida, with license number 78035-2. He has been licensed in Florida for a total of approximately seven years. Additionally, he has been a licensed registered nurse in New York, California and Texas for fifteen, seven and seven years, respectively. With the exception of this case, Respondent has not been the subject of license disciplinary proceedings in Florida, or any other state of licensure. On August 16, 1984 Respondent was employed as a licensed registered nurse at Harborside Hospital in St. Petersburg, Florida on the medical-surgical floor. He reported for duty at 7:00 a.m. on that day and was responsible for the medication cart, and dispensing medication to patients on the floor. A patient, known as W. H., was on the medical-surgical floor on August 16, 1984. W. H. had previously been a psychiatric patient at Harborside Hospital and while on the medical-surgical floor during this admission, W. H. had been assigned a psychiatric counsellor, Cecil North, who provided counselling and group therapy. Respondent knew that Cecil North had been assigned to W. H., and also that W. H. had attempted suicide sometime prior to this admission. While W. H. was walking back to his room on the medical-surgical floor on August 16, 1984, accompanied by Cecil North, Respondent heard W. H. tapping on the hallway wall. At the time W. H. was approximately twelve feet from Respondent, who was standing by the medication cart in the hallway. Respondent admits he looked up from the medication cart, saw W. H. and North, and said, "Here come the crazies." North, who was walking next to W. H., heard the comment. There is no evidence that W. H. heard the comment. Respondent testified that this comment was not a derogatory remark directed to W. H., but was said to himself as a reaction to W. H.'s tapping on the wall. Respondent had earlier been discussing movies with W. H., and specifically the movie "Escape From New York" in which the phrase, "Here come the crazies," was used in response to tapping sounds made by certain characters in that movie. Respondent stated that since the movie was on his mind, he just spontaneously made this comment to himself when he heard the tapping sounds. After considering Respondent's explanation as well as the expert testimony of Dr. Frank, it is specifically found that his comment, "Here come the crazies," was inappropriate and unprofessional, regardless whether W. H. heard it or not. It was said in a manner which allowed this comment to be overheard by North and other nursing staff, and can reasonably be interpreted as a derogatory comment about the patient, W. H. As such, Respondent disregarded his duty to W. H., a patient on his floor, by jeopardizing the patient's self esteem and possibly supporting his suicidal tendency. Later on August 16, 1984, Respondent was overheard talking with W. H. about filming a person committing suicide by fire. Respondent testified he was only talking about movie stunt techniques. However, in view of W. H.'s prior suicide attempt, of which Respondent was aware, this was an inappropriate and unprofessional, as well as potentially dangerous, discussion with W. H.
Recommendation Based upon the foregoing, it is recommended that the Board of Nursing enter a Final Order finding that Michael James Hanly has violated Section 464.018(1)(f), Florida Statutes, and therefore imposing a reprimand based upon this violation. DONE AND ENTERED this 17th day of August, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX DOAH Case No. 86-5025 Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2,3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. 8,9 Adopted in Findings of Fact 4, 6. Adopted in Findings of Fact 6, 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. 13,14 Adopted in Finding of Fact 8. 15 Adopted in Finding of Fact 9. 16-18 Adopted in Findings of Fact 8, 9. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael James Hanly P. O. Box 1472 Boynton Beach, Florida 33425 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether Respondent violated Section 464.018(1)(h), Florida Statutes (1997) (hereinafter, "Florida Statues"), and Florida Administrative Code Rules 59S- 8.005(1)(e)1 and 2, by diverting morphine during his care and treatment of two patients and failing to keep accurate nurse's notes. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing. Respondent is licensed as a nurse pursuant to license number RN 2185632. Respondent admitted under oath at the hearing that he committed the acts alleged in the Administrative Complaint. Respondent did not overdose any patient, endanger, or neglect any patient. Respondent diverted morphine during his care and treatment of patients J.G. and R.B. at West Volusia Memorial Hospital on March 24 and 26, 1997. Respondent was addicted to morphine and diverted morphine from the two patients for self- administration. Respondent is guilty of negligent administration of morphine. Respondent self-administrated morphine that was not medically necessary. Respondent failed to keep accurate nurse's notes for patient J.G. Respondent inaccurately recorded the amount of morphine administered to patients J.G. and R.B. Respondent has voluntarily sought aggressive care and treatment for his drug addiction. Respondent is in three rehabilitation programs in Georgia. Respondent is in an intervention program for nurses ("IPN") approved by the State of Georgia pursuant to a prosecution conducted by the appropriate state agency in Georgia. He is also in a nurses anonymous program and a follow-up hospital program. Respondent is also under the regular care of a psychiatrist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 464.018(1)(h) and Rules 59S-8.005(1)(e)1 and 2, suspending Respondent's license for two years from the date of this Recommended Order, and placing Respondent on probation for two years from the end of the suspension period. The terms of probation shall include a requirement that Respondent successfully complete the IPN program in Georgia and hospital follow-up program. DONE AND ENTERED this 18th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 18th day of June, 1998. COPIES FURNISHED: Marilyn Bloss, Executive Director Department of Health Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32308-4229 Joseph Webb, pro se 2169 Turner Church Road McDonough, Georgia 30252
The Issue The issue in this case is whether Petitioner, whose husband, a county police officer, died of heart failure at work, is entitled to receive “in line of duty” death benefits under the Florida Retirement System, which Respondent administers.
Findings Of Fact The Dispute, in a Nutshell On the morning of March 10, 2000, while on duty, Officer Randall Kugler (“Officer Kugler”) of the Miami-Dade Police Department suffered a fatal heart arrhythmia and died at the wheel of his police cruiser. He was 37 years old. Officer Kugler’s wife, Petitioner Marilyn Kugler (“Mrs. Kugler”), and their two minor children survive him. Officer Kugler was a member of the Florida Retirement System (“FRS”), which is administered by Respondent Department of Management Services, Division of Retirement (“Division”). Mrs. Kugler maintains that she is the surviving spouse of a member “killed in the line of duty” and thus is entitled to receive generous “in line of duty” death benefits under the FRS. The Division disagrees with her position and, thus, has denied Mrs. Kugler’s application for such benefits. Their dispute spawned the instant administrative litigation. The Events Preceding Officer Kugler’s Death Officer Kugler was an expert in inspecting heavy equipment (cranes, trucks, bulldozers, etc.) to determine if such property might have been stolen or otherwise involved in criminal activity. As a specialist in this area, Officer Kugler was assigned to an auto theft task force that conducted investigations in cooperation with other local law enforcement agencies as well as the FBI and the U.S. Customs Service. At about 9:00 a.m. on March 10, 2000, Officer Kugler arrived at the King Ocean Yard in Port Everglades, Florida, where he had been sent to assist U.S. Customs Service inspectors with the examination of two heavy machines destined for export. The pieces——a crane and a bulldozer——were very large; each weighed many tons. A crucial object of such inspections is to locate the public identification number, or PIN, of the subject piece of equipment. The PIN is a starting point in determining whether the machine is stolen. Finding the PIN on heavy equipment can be difficult because, among other reasons, the area to be searched is large; the numbers are frequently hidden in hard-to- access places (to thwart those who might want to remove them); and the numbers are often covered by paint, rust, dirt, and grease. As he went about his work that morning, Officer Kugler climbed aboard and poked around the equipment. His on-the-job activities——e.g. bending, crawling, climbing, walking——clearly involved some physical exertion. In addition, to expose concealed PINs, Officer Kugler was required to scrape or brush away paint and other obstructions, and this, too, entailed physical exertion. To facilitate the removal of layers of paint, rust, grease, and the like, Officer Kugler customarily used solvents marketed for cleaning carburetors and removing gaskets. These products contained a chemical known as Xylene. The Miami-Dade Police Department issued its officers, including Officer Kugler, two different brands of such cleaning agents, which were packaged in aerosol spray cans. Officer Kugler used one or both of these employer-issued sprays on March 10, 2000, and thus was exposed to Xylene.1 Officer Kugler’s inspection of the crane and bulldozer took about one hour. After finishing his work at King Ocean Yard, Officer Kugler left Port Everglades to return to Miami. Sadly, less than an hour later, he was found in Opa Locka, Florida, slumped over the steering wheel of his vehicle with the engine running and the doors locked, having died, still on duty, en route to his next assignment at Kauff’s Towing. Causes of Death The record contains the depositions of three physicians who opined as to the causes of Officer Kugler’s death. Two of these doctors are pathologists who were, at all times material to this case, medical examiners in the Miami-Dade Medical Examiner Department; as such, they participated in Officer Kugler’s autopsy. The third is a cardiologist named James Margolis. Mrs. Kugler retained Dr. Margolis as an expert witness for purposes of this litigation. The testimony of these experts is generally consistent——that is, their opinions do not conflict on any material matters. All are in agreement (and the undersigned finds) that the immediate cause of Officer Kugler’s death was a sudden and unexpected fatal heart rhythm disturbance (or arrhythmia). There is also no genuine dispute (and the undersigned finds) that Officer Kugler’s left descending coronary artery was partially blocked at the time of his death. (His other vessels, however, were normal.) This type of blockage (or occlusion) is associated with a common form of heart disease known as arteriosclerosis. Officer Kugler’s diseased artery was about 50 to 70 percent obstructed. Such blockage tends to become symptomatic at around 70 percent. As it happened, Officer Kugler had not experienced any symptoms, been diagnosed as having, or been treated for any heart disease. The pathologists were largely noncommittal when asked to identify the trigger(s) that precipitated Officer Kugler’s fatal heart rhythm disturbance. Dr. Margolis, on the other hand, who had reviewed the depositions of the two medical examiners as well as those of the several law enforcement personnel who were with Officer Kugler at the King Ocean Yard before he died, did form an opinion as to the substantial cause of the fatal arrhythmia, which he expressed as follows: It’s my opinion within a reasonable degree of medical probability that Mr. Kugler did, indeed, suffer a fatal arrhythmia and the fatal arrhythmia was caused either directly or indirectly by the heavy exertion in the presence of Xylene fumes, and that these in combination with what would have been otherwise a benign form of heart disease caused the fatal arrhythmia. The undersigned accepts the uncontroverted opinion of Dr. Margolis as to causation and determines, as a matter of fact, that Officer Kugler’s death resulted from a combination of work-related activities and exposures operating in conjunction with an undiagnosed and undetected preexisting condition (arteriosclerosis), which factors together precipitated the fatal heart arrhythmia. On the Credibility of Dr. Margolis The Division disputes the validity of Dr. Margolis’s opinion on causation, arguing that it is unfounded. Normally, the undersigned, as the trier of fact, does not explain why he has credited certain evidence. Dr. Margolis’s testimony, however, could be considered the linchpin of Petitioner’s case. Moreover, because Dr. Margolis did not testify in person at the final hearing, the undersigned was unable to witness his demeanor and other indicia of credibility that personal observation permits. Therefore, the undersigned will explicate several factors that he regarded as important in deciding to accept Dr. Margolis’s testimony. To begin, as mentioned, Dr. Margolis’s opinion on causation was not refuted. The pathologists’ opinions——which, to be sure, stopped short of linking Officer Kugler’s death to the performance of job-required duties——were outcome neutral (and consistent with Dr. Margolis’s testimony) because neither medical examiner excluded work-related factors from among the contributing causes of Officer Kugler’s death. And the Division, it should be stressed, presented no expert medical testimony to contravene Dr. Margolis on the subject of causation. While the undersigned, as the fact-finder, could reject unrebutted expert testimony, he would need to offer a reasonable explanation for doing so.2 He can think of none. Instead of offering evidence, the Division elected merely to contend that Dr. Margolis’s opinion is unsupported, urging that the depositions of the witnesses who saw Officer Kugler at work on March 10, 2000, do not support the factual assumptions which underlie the expert’s testimony, namely, that Officer Kugler engaged in “heavy exertion in the presence of Xylene fumes.” The Division’s arguments are not persuasive for several reasons. First, the Division failed to cross-examine Dr. Margolis on these points. If Dr. Margolis had been asked, for example, what he meant by “heavy exertion” or otherwise been challenged to defend that description, perhaps he would have offered a brilliant explanation——or perhaps he would have stumbled and undermined his opinion. Absent such inquiry, however, the undersigned considers it basically irrelevant whether Officer Kugler’s exertion is characterized as “heavy” or not. The bottom line is, the expert concluded that Officer Kugler’s exertion was sufficiently “heavy” to help trigger the fatal arrhythmia, and the Division has not shown, through proof, that Dr. Margolis was incorrect in this regard. Second, the record shows that Dr. Margolis reviewed all the pertinent evidence in rendering his opinion on causation.3 Indeed, Dr. Margolis examined the depositions that are in evidence in this case——the very depositions that the Division contends fail to support his opinion. The Division argues that the expert misinterpreted these data sources. The Division’s argument, however, is not evidence; Dr. Margolis’s opinion, in contrast, is. Without countervailing proof, the undersigned finds no reasonable grounds for second-guessing the cardiologist on medical matters within his area of expertise. Finally, to the extent the Division contends that Dr. Margolis is mistaken because Officer Kugler was not shown to have been exposed to Xylene, its position is untenable in light of the undersigned’s finding that Officer Kugler was, in fact, exposed to the chemical in the hours before his death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order awarding Mrs. Kugler the “in line of duty” death benefits to which she is entitled under the Florida Retirement System. It is further ORDERED that Petitioner’s Request to Reserve Jurisdiction is denied because Mrs. Kugler has not articulated a statutory basis for awarding attorneys’ fees and costs in this case. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of January, 2003.
Findings Of Fact The Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Marc Richman, D.O. The said complaint was assigned to the Division of Administrative Hearings pursuant to a request for Administrative Hearing pursuant to Chapter 120 and was assigned Division of Administrative Hearing Case Number 88-5258. On June 24, 1989, the Department of Professional Regulations issued a notice of voluntary dismissal in the above captioned proceeding and dismissed all charges against Marc Richman, D.O., in that case. Marc Richman, D.O. is a prevailing small business party within the meaning of Section 57.111(3)(c) and (d). The amount of attorney's fees and cost sought by the Petitioner in the Petition for Attorney's Fees is reasonable for the Representation of Marc Richman, D.O., in the defense of the Administrative Complaint through the date of issuance of the Notice of Dismissal. The Department of Professional Regulation maintains that the proceeds (sic) above-captioned were substantially justified at the time the Administrative Complaint was initiated by the state agency in that it maintains that there existed a reasonable basis in law and fact at the time of the filing of the Administrative Complaint. This position is disputed by the Petitioner, Marc Richman, D.O. The request for attorney's fees in the amount of $8,572.00 and costs of $563.96 for a total of $9,225.96 is reasonable for the representation of Petitioner throughout the instant proceeding. These proceedings were initiated by the filing of a complaint on September 16, 1986 with the Department of Professional Regulation (DPR), Petitioner in Case 88-5258, by the parents of G.H. who died October 18, 1984. G.H. was a long time patient of Dr. Jaffee, D.O. who called in Dr. Richman, an orthopedic surgeon to consult and perform an arthodesis on the left ankle of G.H. to relieve constant pain. G.H. was a 34 year old male accountant who had suffered from juvenile rheumatoid arthritis since the age of 4. Although badly crippled he was able to lead a relatively independent life. As a result of his malady G.H. had for years taken steroid and corticosteroid medications. These medications depress the body's immune system and the ability to fight off infections. Accordingly, G.H. was at more than normal risk anytime he was exposed to infectious diseases. After Petitioner explained the procedure and the risks to G.H., the latter elected to have Petitioner perform the arthodesis. This operation consists of grafting bone into the ankle to stabilize that joint. The donor site chosen for the bone to graft to the ankle was the crest of the left ilium of the patient. This operation was successfully performed on August 2, 1984 at Metropolitan General Hospital, Pinellas Park, Florida. In the hospital on August 9, 1984, while G.H. was being adjusted in his bed, he felt a pop in his left hip and a large hematoma developed over the wound at the donor site. It is not unusual for hematomas to develop over surgical wounds but it is important that such conditions be closely watched because hematomas are a fertile field for an infection. The hematoma on G.H.'s hip showed no evidence of infection and G.H. was discharged from the hospital August 12, 1984 and sent home. Arrangements were made by Petitioner for Robert's Home Health Services, Inc. of Pinellas Park to send a nurse 3 times per week to check on G.H., take his vital signs, dress his wounds and attend to any other medical needs he may have. Verbal reports were made by the nurse to Richman reporting the condition of G.H. While being helped from his wheel chair into bed by his parents on or about August 15, 1984, G.H. apparently fell and caused additional bleeding of the wound on the left hip. On August 16, 1984 the nurse reported to Richman the additional bleeding and she was directed to have G.H. taken to the hospital to be seen by Richman. On August 16, 1984, Petitioner examined the wound, noted the reports that the hematoma was neither inflamed nor more tender, and that G.H.'s temperature had remained normal since the hematoma developed. He sent G.H. back home without further tests. The classic signs and symptoms of infection are redness, swelling, heat and pain. Redness of the skin due to intense hyperemia, is seen only in infections of the skin itself. Swelling accompanies infection unless the infection is confined to the bone which cannot swell. Heat results from hyperemia and may be detected even in the absence of redness. Pain is the most universal sign of infection. Along with pain goes tenderness, or pain to the touch, which is greatest over the area of maximal involvement. (Exhibit 12, Principals of Surgery, Fourth Edition). The hematoma on G.H.'s left hip between its inception and September 13, 1984 never exhibited any sign of infection. On September 6, 1984, G.H. reported to the visiting nurse that he had a pain in his stomach and didn't feel well. The nurse described this as having flu-like symptoms. This was reported to Petitioner and the nurse received no additional orders. On the nurse's next visit on September 10, 1984, G.H. reported his abdomen was still hurting and he didn't feel good. At this time his temperature was elevated at 101. The nurse called Dr. Jaffee's office and was told to have the patient admitted to Metropolitan Hospital. Upon admission to the hospital on September 10, 1984, G.H. was nauseous, vomiting, and had a high fever (103). He had no complaints regarding his ankle or iliac crest and the hematoma had decreased greatly. On September 13, 1984, while G.H. continued showing signs of infection (high fever) Petitioner operated on G.H. to remove the hematoma. At this time aerobic and anaerobic cultures were obtained. Forty-eight and seventy-two hours later these cultures had grown no infectious substance. Further studies and tests revealed that G.H. had bleeding ulcers and surgery was required to patch the ulcers. At this time the spleen was also removed. Following this surgery G.H. was more debilitated and with the precarious condition of his immune system he continued to go down hill until he expired on September 18, 1984. Cause of death was cardiac pulmonary arrest caused by candida septicemia. During the initial stage of the investigation, which was initiated some two years after the death of G.H., the investigator interviewed the parents of G.H., who had filed the complaint, and assembled the medical records including those kept by the home health agency. The parents contended that when the hematoma was removed by Dr. Richman he told the parents that he had found infection at that site. Dr. Richman denies making any such statement to the parents of G.H. and the medical records support the conclusion that there was no infection in the hematoma on September 13, when the hematoma was excised. The parents complained of the treatment that G.H. received from Drs. Jaffee and Richman as well as Roberts Home Health Services. Accordingly the investigation started with both Jaffee and Richman charged with malpractice by the parents of G.H. The investigator selected an orthopedic surgeon, Dr. Richard M. Couch, D.O., from DPR's consulting list and forwarded to him on January 7, 1987, the patient records of G.H. and requested he review those records and give his opinion on whether Drs. Jaffee and Richman diagnoses and treatment of G.H. was appropriate. In this letter (Exhibit 1) the investigator advised Dr. Couch that following surgery a hematoma developed, that after G.H.'s discharge from the hospital the hematoma ruptured and that G.H. was taken back to the emergency room where Dr. Richman saw the patient but found nothing significant about the hematoma. He also told Dr. Couch that when Richman cleaned out the hematoma he advised the family (of G.H.) that infection was found, and that, after this G.H. started internal bleeding which ultimately resulted in the patient's death. Dr. Couch responded to this request with two letters, the first of February 16, 1987 and a second on March 6, 1987. In his first letter Dr. Couch concluded that the iliac wound began draining on or about August 14, 1984 and cultures of this wound were not secured until after G.H.'s hospitalization on September 10, 1984. Since the hematoma was a post-operative complication he opined that Richman failed to adhere to certain tenets regarding wound care in this situation. However, Dr. Couch suggested the records be referred to an internist who reviewed the treatment provided by Dr. Jaffee. In his second letter Dr. Couch opined that Richman was at fault for not incising, debriding and draining the hematoma when it developed and for not taking cultures when Richman saw G.H. in the emergency room on later dates. He also found Richman at fault for not referring G.H. to a consultant in infectious diseases. A letter similar to the letter sent to Dr. Couch was sent by the investigator to Neal B. Tytler, Jr., D.O., an internist. Although the investigator contends he submitted the records maintained by Roberts Home Health Services in this case to Dr. Tytler it is obvious that before he submitted his report on June 5, 1987, Dr. Tytler had not read those records and was concerned regarding the absence of medical records during the period between G.H.'s discharge from the hospital on August 12, 1984, and his readmission on September 10, 1984. In his report Dr. Tytler carefully noted G.H.'s long term medication for juvenile rheumatoid arthritis and the serious side effects, viz depression of the immune system, which results from long-term steroid therapy. Recognizing the risk to G.H. from any surgery Dr. Tytler questioned the wisdom of the arthodesis but recognized that this was more of an orthopedic problem than an internal medicine problem. From the records received, Dr. Tytler concluded that G.H. developed a hematoma after his departure from the hospital and before September 6, 1984. Significantly, Dr. Tytler reported "Of concern to me is the apparent lack of records to document the events which transpired between August 12, 1984 and September 10, 1984. In this one month period an abscess formed at the surgical site and led to disastrous consequences. Unfortunately it can only be inferred that the first recognition of any problem occurred on September 6, 1984, when the patient developed `flu-like symptoms'. He was not examined and no one perceived that his problems were serious." When the probable cause panel met on June 25, 1988 to consider the charges against Drs. Jaffee and Richman, no probable cause was found as to Jaffee. One of the two members of the probable cause panel disclosed at the opening of the panel meeting that he knew Dr. Richman socially and that Richman had been his treating physician for a finger injury. He was excused from further participation and the hearing was tabled regarding Dr. Richman. At a subsequent panel meeting by telephone conference call, after a substitute lay panel member was selected and had been furnished the medical records, a vote was taken to find probable cause. The excerpt from those proceedings (Exhibit 8) shows that the DPR attorney opened the conference call by stating that Richman was charged with medical conduct falling below acceptable minimal standards and "at the last probable cause panel meeting you voted to find probable cause, and asked that administrative complaint be issued. At this time the Department recommends that you do find probable cause to believe that this violation exists." Following receipt of this erroneous information regarding the previous probable cause panel meeting, the Chairman, Mr. Wheeler, stated that after reviewing the entire file he believes probable cause exists to file an Administrative Complaint. Dr. Barker concurred. The case against Dr. Richman began to unravel when the deposition of Dr. Tytler was taken on February 24, 1989. Prior to taking this deposition Dr. Tytler had been provided records from Metropolitan General Hospital, records from Roberts Home Health Services and a copy of the Administrative Complaint. In response to questions regarding the treatment of G.H. as afforded by Dr. Richman, Dr. Tytler stated that a review of all medical records clearly demonstrated that after the hematoma developed at the donor site for the transplant no indication of infection ever appeared; that considering the medical history of G.H. and his high susceptibility to infection it would be more dangerous to the patient to evacuate the hematoma and risk additional infection than it would to continue to observe the hematoma and let it cure itself; that the cultures taken on September 13, 1984, when the hematoma was evacuated clearly and unequivocally demonstrated that the hip wound was not the source of the infection that ultimately led to the demise of G.H.; and that the treatment rendered by Petitioner was in all respects in conformance with required medical standards and procedures. Dr. Tytler further opined that treating an immune compromised patient with antibiotics without a specific infection in mind "could lead to the very scenario that caused his (G.H.) death", namely secondary infection. Further, with respect to the contention of Dr. Couch regarding the failure of Petitioner to take cultures at the hematoma site before September 10, 1984, Dr. Tytler opined that indiscriminate taking of cultures when no evidence of infection is present could result in a positive culture unrelated to the wound but which the doctor would be called upon to treat. This could invite a major change in therapy and an inappropriate prescribing of an antibiotic. Following the deposition of Dr. Tytler, DPR referred the medical records to another orthopedic physician and this doctor concurred with the opinion of Dr. Tytler that Dr. Richman's treatment of G.H. was not below minimally acceptable standards, that no malpractice was involved and that the treatment was in accordance with acceptable medical standards. The Department then dismissed the Administrative Complaint. In his deposition the physician member of the probable cause panel, James H. Barker, D.O., emphasized that his conclusion that probable cause existed to go forward with the Administrative Complaint was significantly influenced by the fact that no culture was done at the hematoma site. From his subsequent testimony it is clear that Dr. Barker was unaware, when he voted to find probable cause, that the culture taken from the hematoma site on September 13, 1984 was negative. The record clearly shows this to be a fact. As stated by Dr. Tytler in his testimony "hematoma yes; infection no." Dr. Barker was also concerned, and perhaps rightly so, that any time that someone goes in for an elective procedure and he dies "that alone makes you think there may be probable cause here." However, there must be factual evidence to support a finding of probable cause and here there was no such evidence.
The Issue Whether Petitioner, the surviving spouse of Ralph Timmerman, is entitled to receive "in line of duty" death benefits?
Findings Of Fact Petitioner is the surviving spouse of Ralph Timmerman, who died on January 23, 1998, at 48 years of age. Petitioner and Mr. Timmerman had been married since September 5, 1981. They had two daughters, who are now four and thirteen years of age. Mr. Timmerman was a member of the Florida Retirement System. At the time of his death, Mr. Timmerman was employed by Martin County as the Assistant Building Maintenance Superintendent. Mr. Timmerman had been Martin County's Building Maintenance Superintendent until December of 1990, when he suffered a heart attack and had five-vessel by-pass surgery. Following his return to work, he was reassigned to the position of Assistant Building Maintenance Superintendent. This was a new supervisory position that had been specifically created for him. By design, it was less demanding than the Building Maintenance Superintendent position he had formerly held. One of Mr. Timmerman's former subordinates, Harold Markey, was tapped to succeed Mr. Timmerman as the Building Maintenance Superintendent, a decision that Mr. Timmerman supported. As the Assistant Building Maintenance Superintendent, Mr. Timmerman worked under Mr. Markey's supervision. Mr. Markey made an effort to avoid assigning Mr. Timmerman any tasks that, given Mr. Timmerman's history of heart problems, might jeopardize Mr. Timmerman's health. Mr. Timmerman's primary duties were to directly supervise the building maintenance staff and to deal with contractors hired by Martin County to perform building maintenance and repair work. Mr. Markey did not ask Mr. Timmerman to attend or make presentations at Martin County Board of County Commissioners meetings because he knew that Mr. Timmerman would feel uncomfortable performing these duties. Neither did Mr. Markey require Mr. Timmerman to do any physically demanding work. In fact, whenever, he saw Mr. Timmerman engaged in such physical labor, he would intervene and instruct Mr. Timmerman to stop. Whenever Mr. Timmerman indicated during the course of the work day that he was tired or not feeling well, Mr. Markey allowed Mr. Timmerman to leave work and go home.7 Notwithstanding these accommodations made for him, Mr. Timmerman, on a number of occasions, complained to Mr. Markey about (what Mr. Timmerman perceived to be) Mr. Markey's lack of understanding and compassion as a supervisor. He expressed these views in a loud and argumentative manner.8 As a general rule, following these outbursts, Mr. Timmerman apologized to Mr. Markey for the manner in which he had acted. It was during such an outburst on January 23, 1998, at his work site and during his normal working hours, that Mr. Timmerman suffered cardiac arrest and subsequently died. The day before, Mr. Timmerman and members of his staff had attended a meeting with Mr. Markey. Among the subjects discussed at the meeting was the response of Mr. Timmerman and his staff to a water main break that had occurred at the Martin County-operated library in Hobe Sound on January 20, 1998. The discussion concerning this subject lasted approximately 15 to 20 minutes. Mr. Markey was not at work on January 20, 1998, and therefore it was Mr. Timmerman's responsibility to coordinate the efforts to repair the break and remedy any water damage that had occurred at the library. Mr. Timmerman was notified of the water main break by Teresa Van Cardo, a Martin County employee occupying the position of Administrator Coordinator II for General Services. After some time had passed, Ms. Van Cardo became concerned that Mr. Timmerman had not yet arrived at the library. She therefore telephoned Mr. Markey at home to express her concerns about Mr. Timmerman's delay in responding to the scene. (Huey Cummings, Martin County's lead plumber, however, was on the scene and assessing the situation.) After speaking with Ms. Van Cardo, Mr. Markey telephoned Mr. Timmerman and told him that "he needed to get to the site and he needed to make an assessment of it." Mr. Timmerman replied that Huey Cummings was already at the library. When Mr. Timmerman came home from work that day he told Petitioner about what had happened at the library and that he was "very pleased at the way the whole situation was handled" by his staff. At the January 22, 1998, staff meeting (which was a regularly scheduled meeting), Mr. Markey voiced his criticism of the manner in which the staff had responded to the water main break at the library two days before,9 and he indicated what improvements the staff needed to make in responding to similar incidents in the future. It should not be necessary, he told his subordinates at the meeting, for anyone to have to bother him at home for guidance in dealing with a situation such as the one that arose at the library. At least one of the employees at the meeting (Patti Smith) could sense (based upon her observations of Mr. Timmerman's body movements as Mr. Markey spoke) that Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman was upset. He felt that Mr. Markey's criticism was unwarranted, and, after Mr. Markey had voiced his criticism, Mr. Timmerman told Mr. Markey and the others at the meeting that, in his opinion, "everybody responded exceptionally." That evening, when he arrived home from work, Mr. Timmerman was still upset about the negative comments that Mr. Markey had made at the staff meeting earlier that day. Mr. Timmerman shared with Petitioner what Mr. Markey had said at the meeting and expressed his disappointment that Mr. Markey had criticized, rather than praised, his subordinates. The following morning (January 23, 1998), Mr. Timmerman woke up at 5:30 a.m. He ate a small breakfast and, after spending time with his youngest daughter, left for work at 6:30 a.m. He appeared to be "very calm" when he left. Mr. Timmerman arrived at work at or about 7:00 a.m. At around 7:30 a.m., Mr. Markey, at the request of another employee, went to Mr. Timmerman's office (which was located in a different building than Mr. Markey's office) and requested that Mr. Timmerman not park his assigned Martin County- vehicle in the staff parking lot (which was reserved for personal vehicles). Mr. Timmerman reacted with displeasure to the request. He told Mr. Markey, "This is bull crap," or at least used words to that effect. Mr. Markey repeated his request and then left Mr. Timmerman's office. Shortly thereafter, Mr. Markey discovered that two expensive vacuum cleaners were missing from the storage area where they were supposed to be kept. A few months earlier, Mr. Markey had instructed Mr. Timmerman to put up a "sign-out" sheet outside the storage area for employees to sign whenever they removed an item from the storage area. After discovering that the vacuum cleaners were missing from the storage area, Mr. Markey looked for, but did not find, such a "sign-out" sheet. When he returned to the building where Mr. Timmerman's office was located, Mr. Markey confronted Mr. Timmerman and asked him where the vacuum cleaners were. Mr. Timmerman told Mr. Markey that it was not his (Mr. Timmerman's) day to watch the vacuum cleaners and that he did not know where they were. Mr. Markey then said to Mr. Timmerman, "We need to get them located today," to which Mr. Timmerman responded, "Well, later on today, I will get somebody on it and we'll try to find them." Mr. Markey was not satisfied with Mr. Timmerman's response. He advised Mr. Timmerman that he wanted Mr. Timmerman, not someone else, to look for the vacuum cleaners and that he wanted Mr. Timmerman to look for them that morning, not later in the day. He also told Mr. Timmerman that he expected Mr. Timmerman to place a "sign-out" sheet outside the storage area before the morning was over. Mr. Markey then walked away and left the building. When Mr. Markey was approximately 30 feet away, Mr. Timmerman yelled out to him, "What do you have up your ass today?" Mr. Markey stopped and replied, "Obviously you." Mr. Markey then continued walking and returned to his office. Approximately four or five minutes later, an obviously very upset Mr. Timmerman stormed into Mr. Markey's office, yelling and screaming that Mr. Markey mistreated his staff and lacked understanding and compassion. Mr. Markey told Mr. Timmerman to calm down so that they could discuss what was bothering Mr. Timmerman. Mr. Timmerman, however, continued to yell and scream. In fact, if anything, he became louder. Mr. Markey made further attempts to persuade Mr. Timmerman to sit down and talk calmly about his grievances, but these efforts were to no avail. During his exchange with Mr. Timmerman, Mr. Markey, like Mr. Timmerman, raised his voice. Mr. Timmerman left Mr. Markey's office in a huff. As he was walking down the hallway, he shouted back to Mr. Markey, "I take-up for you all of the time with the guys," and then added, "I treat you like a F-en prince, and this is what I get." Mr. Timmerman then went into another employee's (Sharon Barnes') office and started pacing back and forth. His face was red and he was visibly agitated. Ms. Barnes told Mr. Timmerman to calm down. He replied to her that it was "too late." Mr. Timmerman thereupon returned to Mr. Markey's office and continued his ranting. Mr. Markey shouted back at Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down," Mr. Timmerman said that he "couldn't" and then turned to leave. Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman responded that he was going to take a ride in his truck. As Mr. Timmerman exited Mr. Markey's office and walked toward his truck, Mr. Markey followed behind him. Mr. Markey believed that, given Mr. Timmerman's agitated emotional state, Mr. Timmerman was in no condition to drive. He urged Mr. Timmerman not to go to his truck. Mr. Markey was ultimately able to convince Mr. Timmerman to sit down on a bench outside the building where Mr. Markey's office was located. Mr. Timmerman remained on the bench, however, for just a couple of seconds before getting up and walking away. As Mr. Timmerman walked away, he continued to yell and scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman, repeating his plea that Mr. Timmerman not drive off in his truck. When Mr. Timmerman was approximately 20 feet from the bench, he started breathing heavily and leaned against a wall for support. Mr. Markey ran over to Mr. Timmerman to make sure that he did not fall. Mr. Markey again exhorted Mr. Timmerman to calm down. Mr. Timmerman, as he had done previously, told Mr. Markey that he "couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms. After gently lowering Mr. Timmerman to the ground, Mr. Markey ran to Ms. Barnes' office window, which was approximately ten or 15 feet away. When he got Ms. Barnes' attention, he instructed her to "call 911." Paramedics subsequently arrived on the scene. They were unable to revive Mr. Timmerman. He was pronounced dead at 8:35 a.m. on January 23, 1998. An autopsy was performed the following day by Frederick Hobin, M.D., the Medical Examiner for the 19th Medical Examiner District of Florida. Dr. Hobin is a Florida-licensed physician, who is board-certified in anatomic, clinical, and forensic pathology. Following the completion of the autopsy, Dr. Hobin prepared an autopsy report, which contained the following findings and observations, among others (which the undersigned accepts as accurate): PATHOLOGIST'S OPINION MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE TO ISCHEMIC CARDIOMYOPATHY CAUSE OF DEATH: OCCLUSIVE CORONARY ARTERIOSCLEROSIS MANNER OF DEATH: NATURAL . . . GROSS AUTOPSY PROTOCOL EXTERNAL EXAMINATION . . . INTERNAL EXAMINATION . . . CARDIOVASCULAR SYSTEM The heart weighs 680 grams. The increase in weight is attributed to biventricular hypertrophy. All of the chambers are markedly dilated. There is a dense gray scar throughout the posteroseptal myocardium. There are some focal areas of hyperemia in the inferior septum. The cardiac valves appear functionally intact. The coronary arteries have diffuse calcific occlusive arteriosclerosis. There is indication of a double remote bypass coronary graft procedure. There is some sclerosis of both of the grafts and one of the grafts appears to have been occluded by thrombus material throughout its entire length. The thrombus material appears remote in age and it is gray and friable. There is moderate arteriosclerosis of the aorta with some reduced elasticity. . . . FINDINGS AT GROSS AUTOPSY Arteriosclerotic cardiovascular disease. Occlusive coronary artery disease. Remote coronary artery bypass graft. Remote thrombosis of coronary artery graft. Ischemic cardiomyopathy. Healed posteroseptal myocardial infarction. . . . MICROSCOPIC EXAMINATION HEART There is marked hypertrophy of the myocardium as well as very extensive scarring. This is associated with sclerosis of the coronary artery bypass grafts and they are occluded by degenerated thrombus material. There appears to be minimal fibrosis of the mitral valve. Appended to Dr. Hobin's autopsy report were the written results of laboratory tests that had been conducted in conjunction with the autopsy. Such testing, according to the written results, revealed the presence of cannabinoids (cannabis metabolites) in Mr. Timmerman's blood.10 Although at the time of his death, Mr. Timmerman (as the autopsy reflected) was suffering from a chronic, degenerative, life-threatening cardiovascular disease that had evolved over a prolonged period of time, he was able to, and did in fact, lead a relatively normal life notwithstanding his disease. He was still able to work, and he continued his employment with Martin County11 until his death. Mr. Timmerman, however, because of his disease, was vulnerable to sudden cardiac death. Sudden cardiac death is a term the medical profession uses to indicate that a person has undergone a rapid, fatal deterioration as a result of an adverse cardiac event. In most, but not all, instances, the adverse cardiac event is an arrhythmia (as was the situation in Mr. Timmerman's death). Emotional stress and excitement can produce physiological changes that increase cardiac demand and consequently may precipitate an arrhythmia that leads to sudden cardiac death. Whether a particular incident or situation will produce such a result depends, not only on the individual's physical health, but on his or her emotional makeup as well. In the instant case, it appears, within a reasonable degree of medical probability, that work-related emotional distress (which manifested itself during the confrontations Mr. Timmerman had with Mr. Markey immediately preceding Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting cardiovascular disease and thereby precipitated his demise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement issue a final order finding that Petitioner is qualified to receive "in line of duty" death benefits from the account of her late husband, Ralph Timmerman. DONE AND ENTERED this 13th day of August, 1999, in Tallahassee, Florida. STUART M. LERNER 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 13th day of August, 1999.
Findings Of Fact Jose Alfredo Lopez-Martinez was born on September 29, 2004, at Manatee Memorial Hospital in Bradenton, Florida. He weighed 3,125 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jose. In a report dated May 24, 2012, Dr. Willis opined as follows: I have reviewed the records for [Jose Lopez- Martinez]. The mother, Natividad Martinez was a 22 year old G2 P1 with late pregnancy care. Pregnancy care was started during the third trimester. She was admitted to the hospital in labor at term. Her cervix was dilated 4 cms on admission. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor during labor shows a normal baseline heart rate of 130 bpm. FHR variability is reactive. FHR monitor tracing does not suggest fetal distress during labor. Spontaneous vaginal delivery was accomplished without complications. Birth weight was 3,125 grams. The newborn was not depressed. Apgar scores were 9/9. The baby cried and had spontaneous respiratory effort at birth. No resuscitation was required. The baby had a normal newborn hospital course and discharged home on DOL 2. * * * In summary, Labor and delivery were uncomplicated. FHR monitor did not suggest fetal distress during labor. The baby was not depressed at birth. The newborn hospital course was uncomplicated. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Jose did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post- delivery period is credited.
The Issue The issues for determination in this case are whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for psychiatry by failing to perform a mental status examination on patient G.K. at the time of the patient’s admission to Medfield Hospital in February 1996; Respondent's failure to place patient G.K. under continual close observation and/or in a room where suicide would have been more difficult or impossible; and 3) Respondent's failure to order consultations and staff conferences regarding patient G.K.’s condition during his admission at Medfield Hospital in February 1996.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Carlos E. Berry, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0056010. Respondent has active staff privileges at Charter Medfield Hospital ("Medfield") and at Sun Coast Hospital, both in Largo, Florida. Respondent is board- eligible in adult psychiatry. Patient G.K. was a thirty-two year-old male with a long history of mental illness diagnosed as bipolar disorder, commonly called manic depression. G.K. related to staff at Medfield that he had first attempted suicide by hanging himself when he was in the fourth grade. G.K. stated that he had been depressed with suicidal thoughts ever since the incident in the fourth grade. G.K. had been hospitalized numerous times through the subsequent years, and had made several suicide gestures involving overdoses of prescription drugs. G.K. had longstanding problems with alcohol and drug abuse. G.K. had been Dr. Berry’s patient intermittently since 1990. G.K. initially came to Dr. Berry on an outpatient basis seeking help with managing his medications. Dr. Berry testified that he saw G.K. from seven to ten times over the next two and a half-year period, all on an outpatient basis. Dr. Berry testified that G.K. was doing relatively well when they met, with some ups and downs. G.K. then stopped regularly seeing Dr. Berry, but would call him every few months to gauge Dr. Berry’s willingness to prescribe medication, which Dr. Berry refused to do without seeing the patient. G.K. would then come to see Dr. Berry, get a prescription, then "disappear" for another few months. Dr. Berry testified that this remained G.K.’s pattern until 1994. On May 13, 1994, Dr. Berry admitted G.K. to Medfield. G.K. had been initially admitted to an acute care hospital for an overdose of prescription medicine and alcohol in what he later admitted to Dr. Berry was a suicide attempt. G.K. was cleared medically, then admitted under the Baker Act to Medfield. Dr. Berry performed an initial examination of G.K. within 24 hours of G.K.’s admission and wrote an initial report on May 14, 1994. He diagnosed G.K. with bipolar disorder, and noted that G.K. was depressed and unable to state that he did not want to die, though he was not psychotic and not actively suicidal at the time of the interview. Upon admission, G.K. was placed on "Q15" suicide precautions, meaning that hospital staff would check him every fifteen minutes. Within six hours, G.K. converted his admission to voluntary status and the suicide precautions were discontinued. The initial plan was to assess G.K. for suicidality, reassess his medications, and encourage him to attend and participate in all available modes of group therapy. G.K. was in fact seen by mental health staff and other allied therapists for individual and group therapy, as well as having individual sessions with Dr. Berry. After 48 hours, G.K. showed marked improvement, being less dysphoric and denying suicidal ideations. On May 15, 1994, G.K. was discharged from Medfield after having agreed to follow up with individual therapy and medication management under the care of another psychiatrist. On August 23, 1994, G.K. was admitted to Pinellas Emergency Mental Health Services, Inc. ("PEMHS"), another inpatient psychiatric facility. The treating psychiatrist’s notes indicate that this was a voluntary admission, though other portions of the medical record state that G.K. was admitted under the Baker Act. On admission, G.K. complained of depression and suicidal thoughts, and stated that he had discontinued his medications because they were ineffective. The treating psychiatrist diagnosed bipolar disorder with depression. The psychiatrist noted that G.K.’s affect was "angry and sarcastic," and his mood was dysphoric. G.K. denied hallucinations and did not appear delusional or thought disordered. He admitted to increasing irritability and aggressiveness toward other people over the past year, which had interfered with his employment. He stated that he thought about suicide nearly all the time, but that such feelings had been present for at least twenty years. He admitted to drinking at least a six-pack of beer every day and to smoking marijuana on a daily basis for a period of 15 years. The PEMHS records do not indicate whether G.K. was placed on suicide precautions during his stay, though the physician’s notes indicate G.K. was still "ambivalent" about suicide as late as August 26, 1994. The PEMHS records indicate that G.K. attended group therapy sessions without participating. Both staff and the treating physician noted G.K.’s sarcastic attitude toward his peers and the facility in general. G.K. was discharged from PEMHS on August 30, 1994. The treating physician noted on that date that G.K. denied suicidal ideation, he had shown some improvement during his stay. The physician recommended outpatient treatment and support group therapy along with medication. The events at issue in this proceeding commenced on February 20, 1996, when G.K. was voluntarily admitted to Medfield, four days after overdosing on a prescription medication, Zoloft, while intoxicated with alcohol. G.K.’s admission, while voluntary, was accomplished by way of prodding from his parents, who had become greatly alarmed at his worsening mental state. P.K., G.K.’s father, testified that he convinced G.K. to go to Medfield, and that he drove G.K. to the hospital on the morning of February 20. P.K. further testified that his son was worried because he had no insurance and knew his parents would have to foot the bill for his stay at Medfield. An administrator at Medfield raised the issue of payment method with P.K. while G.K. was present, causing G.K. to flee the facility on foot. The Medfield administrator and P.K. had to go outside and talk G.K. into returning by assuring him that P.K. would pay for only a three- day stay, then they would decide what to do next. On the afternoon of February 20, Judy McDermott performed an initial needs assessment on G.K. Ms. McDermott was a psychiatric nurse who had worked with Respondent at Medfield since 1991. Dr. Berry testified that he was very familiar with Ms. McDermott’s work and trusted her judgment. Ms. McDermott found that G.K. was depressed and anxious. He told her, "I think about suicide all the time." G.K. admitted that four days previous he had overdosed on pills and alcohol, then vomited. G.K. told Ms. McDermott that he had erratic sleep and appetite patterns, and had recently locked himself in his apartment for two weeks in an attempt to quit smoking marijuana. He also admitted that he had been noncompliant in taking his prescription medications. G.K. told Ms. McDermott about his two prior inpatient admissions, including the 1994 Medfield admission when he was treated by Dr. Berry. After performing her assessment, Ms. McDermott called Dr. Berry on the telephone and discussed the case with him. She told Dr. Berry about G.K.’s recent overdose, the circumstances of his admission, including his brief flight, and his unhappiness over being in the hospital. G.K. had told Ms. McDermott that he was unwilling to admit himself unless Dr. Berry was the attending physician. As a result of this briefing from Ms. McDermott, Dr. Berry recommended inpatient treatment for mood stabilization and medication management under his supervision. Dr. Berry testified that he knew his schedule would not permit him to see G.K. until February 21, but that he went ahead and admitted G.K. in the knowledge that Leslie Webster, an Advanced Registered Nurse Practitioner (ARNP), would be available to perform a psychiatric evaluation and mental status exam within 24 hours of G.K.’s admission. Dr. Berry issued orders to admit G.K. voluntarily to the Adult General Psychiatric unit (AGC) and place him under Q15 suicide and unpredictable behavior precautions. "Q15" meant that the patient would be observed and checked every fifteen minutes. As discussed below, Q15 was the least restrictive of three levels of suicide precautions used at Medfield, but still involved "constant observation" of the patient. Medfield had two psychiatric units: AGC, for higher functioning patients able to participate in their own therapy, and the Crisis Stabilization Unit (CSU), for patients admitted under the Baker Act and/or acutely psychotic or very demented. The choice of unit was not based on how suicidal the patient was, but on how well the patient could function, i.e., the patient’s ability to participate, to talk, to interact, and to understand what was going on around him. G.K. was properly placed in the AGC unit, as he was voluntarily admitted, alert, and oriented to time, place and person. On the afternoon of February 20, 1996, G.K. was seen by Cynthia Young, a registered nurse who was Medfield’s Director of Clinical Services. After reviewing Ms. McDermott’s needs assessment, Ms. Young performed the nursing assessment on G.K. She noted that G.K. appeared tense, that his mood was depressed, irritable and anxious, that he made poor eye contact, that he spoke in limited, unfinished sentences, and that he was withdrawn and defensive. Ms. Young noted in the assessment that G.K. "wants to kill self." In a progress note written later that afternoon, she wrote that G.K. was "thinking about self harm all the time." She testified that she considered such statement to be mere suicidal ideation, because he did not articulate a plan for completing the suicide. Ms. Young testified that the process for putting a patient on line-of-sight or one-to-one observation was triggered when the patient verbalized a definite plan for suicide, or was so confused they constituted a danger to themselves or others. A "definite plan" is a plan that could be accomplished within the confines of the psychiatric unit. She testified that a patient who has voluntarily admitted himself, who has simply expressed suicidal ideation, and who is not psychotic would not generally be placed on line-of-sight or one-to-one precautions. Ms. Young further testified that if she as a nurse believed a patient was a danger to himself, she was empowered to act immediately to place the patient in a safe environment, such as one-to-one observation. After ensuring the patient’s safety, the nurse would then call the physician, who would place a time-limited order on the patient restriction. This procedure was confirmed by James Morello, who was the nurse manager of the adult program at Medfield. Ms. Young testified that she saw no need to take such action in regards to G.K., and that she agreed with Dr. Berry’s order for Q15 suicide precautions. On the morning of February 21, 1996, G.K. was seen by Jenny Schrader, a case manager and discharge planner at Medfield. Ms. Schrader’s job was to arrange after care for patients once they were discharged from Medfield. Ms. Schrader recalled G.K. as angry and a little hostile, and that G.K. had said to her, "I’m pissed because I’m still alive." She did not consider this to be a suicidal statement, in the context of G.K.’s general anger and because his voluntary admission indicated he was seeking help. She testified that it was common for patients to make such statements, and further that G.K. was a sarcastic individual and that she took his statement in that light. Ms. Schrader testified that had she believed G.K. was a serious suicide threat, she would have relayed her concerns to the nursing staff, which in turn had authority immediately to institute greater suicide precautions. Medfield had three levels of suicide precautions: Q15, which required checks on the patient every 15 minutes; line-of- sight, meaning that the patient must be kept in sight of a staff person at all times, including when the patient goes to the bathroom; and one-to-one, meaning that the patient is under constant, arms' length observation by an assigned staff person, even in the bathroom. Medfield’s "Precautions Flow Sheet," the document recording the maintenance of suicide precautions, characterized the Q15 level as requiring "constant observation" documented every 15 minutes. Suicidal ideation, i.e., the expression of a wish to be dead or a desire to kill oneself, is not alone considered grounds for placing a patient in the more restrictive line-of-sight or one- to-one precautions. Ms. Schrader estimated that 65 to 70 percent of the patients admitted to Medfield were there because of some kind of suicidal ideation or attempt. James Morello, who was nurse manager of the adult psychiatric program at Medfield, estimated the number of admissions for suicidal ideation at 70 to 90 percent. Dr. Daniel Sprehe, an expert in forensic psychiatry, estimated that 80 percent of the patients he admits express suicidal ideation. Dr. Berry testified that 50 to 60 percent of the patients he admits have bipolar or severe depression with suicidal ideation. Petitioner’s expert, Dr. Martin Rosenthal, testified that it would be practically impossible for Medfield to place 60 percent or more of its patients on line-of-sight or one-to-one observation. An ARNP is a professional nurse who is certified in advanced or specialized nursing practice, and is authorized by rule and statute to perform medical diagnosis and treatment pursuant to a written protocol between the ARNP and a supervising physician. Sections 464.003(3)(c) and 464.012(3), Florida Statutes; Rule 64B9- 4.010, Florida Administrative Code. A written protocol between Dr. Berry and Leslie Webster, an ARNP specializing in psychiatric care, authorized Ms. Webster to perform initial psychiatric evaluations and ongoing assessments of Dr. Berry’s patients at Medfield, under the general supervision of Dr. Berry. The Rules and Regulations of Medfield provided that patients were required to undergo a mental status examination and that a complete history and psychiatric examination must be written within 24 hours of admission. The Rules and Regulations further provided that the required psychiatric evaluation could be performed by an ARNP such as Ms. Webster. On the morning of February 21, 1996, less than 24 hours after G.K.’s admission, Ms. Webster performed a comprehensive mental status evaluation of G.K. She noted that he was somewhat guarded in his responses and made no eye contact. His speech was clear, logical and organized. His mood was sad, depressed, and despondent with a flat affect. He complained of constant racing thoughts and an inability to sleep. He was alert and oriented to time, place and person. His thoughts revolved around difficulty in stabilizing his mood disorder and the loss of "visions" that used to guide him. He denied auditory or visual hallucinations. His memory was intact. Ms. Webster’s report stated that G.K. admitted to "suicidal thoughts with a plan but states he does not want to be in pain." Her handwritten notes indicated that the referenced "plan" involved buying a gun and killing himself. Ms. Webster concluded that G.K. had poor insight and judgment, and questionable impulse control. Ms. Webster discussed her findings with Dr. Berry via telephone. Dr. Berry signed off on the treatment plan, which included maintaining Q15 suicide precautions and unpredictable behavior precautions, encouragement to participate in group, unit and community activities, and medication management using Klonopin and Ativan. On the afternoon of February 21, 1996, Dr. Berry came to Medfield. After seeing to some administrative matters, he reviewed G.K.’s entire file. He read the various notes relating to G.K.’s suicidal expressions, but testified that these did not alarm him. Dr. Berry testified that G.K. had often talked about not wanting to live and had often expressed suicidal thoughts. Dr. Berry testified that G.K. had "never, ever had a lethal or near lethal or potentially lethal suicide attempt." Dr. Berry construed some of the notations as being sarcastic, which was typical of G.K. even when he was doing well. Dr. Berry believed that G.K. was in a safe environment, and that the Q15 precautions were sufficient. Dr. Berry reviewed the mental status exam performed by Ms. Webster, determined that she had performed a proper examination of G.K., and signed off on her report. Dr. Berry went onto the AGC unit specifically to see G.K. A staff person told him that G.K. was not available because he was outside playing volleyball. The staff person told Dr. Berry that G.K. was depressed but "doing okay." Dr. Berry testified that upon hearing this, he thought, "Maybe he ain’t doing that bad. I’d rather he be outside playing volleyball," particularly since G.K. had already been seen by Ms. Webster. Dr. Berry thus determined there was no pressing need to see G.K. on the afternoon of February 21, 1996. Mr. Morello confirmed discussions with Dr. Berry concerning G.K. on February 21, 1996, though he was unclear whether the conversation was in person or by telephone. Dr. Berry told Mr. Morello that G.K.’s admission would probably be for three to four days, which seemed routine to Mr. Morello for the situation presented by G.K.: the patient would be stabilized, placed on medications, discharged and then followed-up in outpatient therapy. The nursing progress notes for February 21 describe G.K. as quiet, presenting a flat and sad affect, and attending unit activities. During a goals/assessment group, G.K. stated, "I feel depressed; I’ve been suicidal for the past fifteen years," and further stated that he hates the way the world is. A note entered at 9:00 p.m. records that G.K. had been observed on the unit during the entire shift, attending all unit activities. G.K. was quiet and nonverbal during most activities. He responded to a question about his visit with his doctor by saying, "He didn’t give me anything to kill myself with." Mr. Morello described G.K.’s behavior on February 21 as exhibiting the typical ups and downs of a patient in a psychiatric hospital. As Dr. Berry testified that he did not see G.K. on February 21, it is found that the "doctor" referenced in the 9:00 p.m. note was Dr. Mehul Patel, who performed a physical examination on G.K. on that date. The Precautions Flow Sheet, which records the patient’s activities in accordance with the Q15 suicide precautions, notes that during the day and evening of February 21, G.K. participated in group activities, interacted with his peers, engaged in physical activity, took his meals, and sat quietly in his room. Notes from group therapy indicate that G.K. attended three group sessions on February 21, 1996. At a feelings group, he was noted to be quietly attentive with a flat affect and guarded about his thoughts and feelings. At the exercise and socialization group, i.e., the volleyball game, he was noted as being cooperative, and quiet, having good volleyball skills, having a high participation level, and being attentive to the rules and score of the game. At a psychoeducational group, he was reported as participating in a group calmness exercise, and described as having a flat affect and being withdrawn. The nursing progress notes indicate that G.K. remained in bed throughout the night of February 21 and into the morning of February 22. The Q15 suicide precautions remained in effect throughout the day and night of February 21, though the notes indicate no signs or symptoms of suicidal ideation beyond the 9:00 p.m. note discussed above. On the morning of February 22, Dr. Berry arrived at Medfield between 6:30 and 7:00 a.m. He asked the nursing staff if anything happened during the night that he should know about. Along with two medical students who were accompanying him in connection with his position as a clinical instructor at the University of South Florida, Dr. Berry attended at least a portion of the treatment team meeting regarding G.K. The treatment team for each patient generally comprised a social worker, the utilization review insurance manager, the mental health therapist, and the nursing director. The meetings were held early each morning. Physicians would come in and out of the meetings sporadically, discuss their own patients, then leave. Dr. Berry typically attended two or three such meetings each week, which was normal for physicians at Medfield. The physicians were required to attend treatment team meetings only once a week. After getting information from the nursing staff about his patients, Dr. Berry began making rounds in the company of the two medical students. They met with G.K. at approximately 8:00 a.m. Dr. Berry testified that he had already decided to try something other than traditional medications with G.K. and intended to discuss that with him. Dr. Berry asked G.K. how he was doing, whether he was still feeling suicidal, and whether he was having hallucinations. G.K. told Dr. Berry that he was feeling safer in the hospital, and even joked about how long it had been since he had seen Dr. Berry. G.K. denied being suicidal and said he was not having hallucinations. He made it clear he was unhappy about being in a locked situation and pressed Dr. Berry to tell him when he would be allowed to leave the hospital. Dr. Berry replied that he wasn’t sure, but that G.K. would likely stay through the weekend, another three days. Dr. Berry testified that his estimate of G.K.’s stay was derived from his plan to try G.K. on a new medication, Clozaril. Dr. Berry testified that it takes a few days for a patient to acclimate to Clozaril, and he wanted to see how G.K. was doing with the drug and to see that G.K. was doing better before he released him. He discussed the risks and benefits of Clozaril with G.K., including the need to draw his blood on a weekly basis to monitor his white blood cell count. G.K. agreed to the plan of treatment. Based upon G.K.’s statements that he was feeling safer, his joking with Dr. Berry, his agreement to try the new medication, and his inquiries about discharge planning, Dr. Berry concluded that G.K. was not suicidal at the time he saw him. After his meeting with G.K., Dr. Berry entered an order to discontinue the Q15 suicide precautions. The staff continued to check on G.K. every 15 minutes because Dr. Berry’s order for unpredictable behavior precautions was still in effect. In addition to the factors cited above, Dr. Berry testified that a reason for discontinuing the suicide precautions was the need to make G.K. feel he was making progress. In light of G.K.’s bipolar disorder and his aversion to the inpatient hospital setting, Dr. Berry believed it important to give G.K. signals that he was improving and progressing toward release. Mr. Morello recalled seeing G.K. shortly after his session with Dr. Berry. Mr. Morello released G.K. from the unit to go to breakfast, and testified that G.K. seemed to be doing better, was brighter, more animated, and talking more freely that morning. After breakfast, G.K. attended a 9:00 a.m. goals group meeting run by Dennis Cline, a psychiatric technician. Mr. Cline did not testify at the hearing. Mr. Morello, the nurse manager of the unit, did not attend the meeting but related a hearsay description of what happened. Mr. Morello testified that G.K. was discussing his situation when another patient told him he should "just end his life." G.K. left the group session shortly before it ended. Dr. Berry testified that another physician later told him that one of his patients had related a similar story. G.K. apparently talked at length about his suicidal ideations. The other patients were tired. One patient in particular challenged G.K. vehemently, and commented that G.K. should stop talking about killing himself and just go do it. At this time, G.K. apparently became angry and left the group. These hearsay accounts cannot form the basis of a finding as to exactly what happened in the group meeting. It is found, however, that something occurred in the group session that caused G.K. to leave the group shortly before the session ended. It is further found that no one on the staff at Medfield informed Dr. Berry of this incident until later in the day, after G.K. committed suicide. Mr. Cline, the psychiatric technician in charge of the group session, continued to check G.K. every 15 minutes as required by the unpredictable behavior precautions. The notations in the Precautions Flow Sheet indicate that G.K. was in his bed at 10:00 a.m. and at 10:15 a.m. At 10:30 a.m., Mr. Cline approached Mr. Morello and asked him if he had seen G.K. Mr. Morello said he had not. Mr. Cline went to look for G.K. in the unit, then called for Mr. Morello to help because he couldn’t find G.K. Mr. Morello testified that the door to G.K.’s room was closed. They knocked and entered, but G.K. was not in the room. They saw that the bathroom door was closed. They knocked, then entered. They found G.K. hanging by a luggage strap from an air conditioning vent. Despite efforts by Medfield staff and Emergency Medical Services, G.K. was pronounced dead from asphyxiation at 10:50 a.m. Mr. Morello testified that the luggage strap used by G.K. apparently came from a bag brought to him by his mother on the previous evening. This comports with the testimony of F.K., who stated that she brought clean clothes for her son in what she variously called a "duffel bag," an "overnight bag," or a "gym bag," on the evening of February 21, 1996. She testified that she left the bag at the nurses’ station. The duty nurse apparently gave the bag to G.K. No documents or testimony conclusively established Medfield’s policy or protocol regarding what was regarded "contraband" for patients on Q15 suicide and/or unpredictable behavior precautions. Dr. David Cheshire, an expert in psychiatry with more than 30 years in private practice admitting patients to numerous psychiatric facilities, testified that Dr. Berry was entitled to presume that his patient was in a safe place, and that included presuming that a patient on suicide precautions and/or unpredictable behavior precautions would not be given something with which he could hang himself. Dr. Cheshire testified that every hospital in which he practices has a contraband list, and he assumed Medfield would have such a list, though it was not produced for the hearing. Dr. Cheshire stated in his written opinion that "[i]t would... be beyond reason to assume that a long strap, capable of being fashioned into a hanging noose, would not be considered a contraband item." Dr. Cheshire’s expert opinion accords with common sense on this issue. Staff should not have provided the bag to G.K. on the evening of February 21, 1996, when G.K. was still on Q15 suicide precautions and on unpredictable behavior precautions. Nothing in the record indicates that Dr. Berry knew that G.K. had been given this bag on the evening of February 21. None of the professional staff involved in the treatment and close observation of G.K. throughout his stay at Medfield in 1996 believed that the Q15 precautions ordered by Dr. Berry were insufficient. None of the professional staff believed that G.K. was actively suicidal during his 1996 stay at Medfield. The Administrative Complaint alleges that Dr. Berry failed to practice medicine with an acceptable level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Administrative Complaint cites three failures on the part of Dr. Berry: failure to perform a mental status evaluation on G.K. at the time of his admission; failure to order consultations and staff conferencing; and failure to place G.K. under "continual close observation." Three experts testified at the final hearing, in addition to Dr. Berry, who was also qualified as an expert in psychiatry. Petitioner offered the testimony of Dr. Martin Rosenthal, who currently works at the Broward Correctional Institution, a female prison with an active, inpatient acute treatment psychiatric unit. Dr. Rosenthal has not had active staff privileges at a private psychiatric hospital since 1994, but is board-certified and qualified to offer expert testimony on psychiatric treatment issues. Respondent offered the testimony of Dr. David Cheshire, a Life Fellow of the American Psychiatric Association and board certified by the American Board of Quality Assurance and Utilization Review. Dr. Cheshire has been Chief of Psychiatry at Memorial Medical Center in Jacksonville, and has had continuous admitting privileges for thirty years at a number of hospitals in that city, currently including Baptist Hospital and St. Johns River Hospital, both Baker Act facilities. He has also served as an expert on behalf of the Board of Medicine in the past. Respondent also offered the testimony of Dr. Daniel Sprehe, board certified in psychiatry and forensic psychiatry. Dr. Sprehe has practiced psychiatry for 32 years in the Tampa area, and has active staff privileges at Tampa General Hospital, St. Joseph’s Hospital, Memorial Hospital, and University of South Florida Psychiatric Center. Dr. Cheshire, Dr. Sprehe, and Dr. Rosenthal all opined that it is proper to have an ARNP perform the mental status evaluation of a patient, provided the supervising physician reviews, checks, and signs the evaluation within 24 hours of its performance. Thus, the Administrative Complaint accurately recites that Dr. Berry did not personally perform the mental status examination upon G.K.’s admission, but fails to state a violation of the standard of care. Dr. Berry properly used an ARNP to perform the evaluation within 24 hours of G.K.’s admission, and Dr. Berry timely reviewed and approved the ARNP’s evaluation, within the standard of care and pursuant to the applicable statute and rule cited above. In his written opinion, Dr. Rosenthal stated: "In view of the seriousness and continuity of G.K.’s depression and preoccupation about suicide, I do think consultation and conjoint staff conferencing would have been in order." At the final hearing, Dr. Rosenthal testified that the written record "well documented" the appropriate information, and modified his written opinion to the extent of agreeing that if Dr. Berry spoke on multiple occasions with the staff people, the psychiatric technicians and nurses involved in G.K.’s care, and if the information in the written record was fully conveyed to Dr. Berry during these conversations, then it could be concluded that "consultation and conjoint staff conferencing" had taken place. Dr. Cheshire testified that he had no concerns that Dr. Berry failed to carry out appropriate consultations and staff conferencing. Dr. Berry in fact spoke with the staff people, psychiatric technicians and nurses involved in the care of G.K., and was well aware of the contents of the written records. Petitioner failed to establish that Dr. Berry should have done more regarding consultation and conferencing with staff. The most serious allegation, and the one producing serious disagreement among the experts, was that Dr. Berry failed to place G.K. under "continual close observation." It is noted that if the allegation in the Administrative Complaint were read literally, then it is at odds with the facts established at the hearing. The Q15 suicide precautions and unpredictable behavior precautions ordered by Dr. Berry did in fact place G.K. under "continual close observation." G.K. was placed on a locked, secure unit, presumably isolated from any means of inflicting self-harm, and was subject to recorded checks every fifteen minutes. More accurately stated, Petitioner’s allegation is that the Q15 suicide precautions and unpredictable behavior precautions ordered by Dr. Berry were insufficient, and that G.K. should have been placed on line-of-sight or one-to-one precautions. In his written opinion, Dr. Rosenthal stated that G.K. should have been under "continual close observation and/or in a 'suicide-proof room.’" This opinion was based on "the seriousness and persistence of his suicidal thinking." Dr. Rosenthal wrote that the "brief contact" between Dr. Berry and G.K. on the morning of February 22, 1996, made Dr. Berry "too quick to feel secure" in reducing the suicide precautions. At the final hearing, Dr. Rosenthal elaborated at length on his written opinion. At the outset, he conceded that it is not the standard of care to have a "suicide-proof" room in a hospital, and denied any wish to make an issue of the failure to utilize such a room. On this point, Dr. Cheshire wrote that in thirty years of practice, he had never seen such a room in a hospital. Dr. Rosenthal discussed the various statements made by G.K. as recorded by Medfield staff, and concluded that the Q15 suicide precautions ordered by Dr. Berry were insufficient and below the standard of care. His rationale was as follows: This man’s suicidal thinking was so consistently expressed through a series of interdisciplinary note entries, from the night he came into the hospital, the next day, into the second morning of his being here with the date of his death, that he had severe depression and such repetitive reference in terms of wanting to die, that I would see this man as obsessing about death and the wish. This being the case, to observe him every 15 minutes was not sufficient. To look in on him every 15 minutes, as such, to make sure he was okay was not sufficient because between 15 minute checks, there was approximately a 14 minute interval where he was unobserved, this man who was obsessing about suicide and death. * * * I realize that if he’s in a group session, for example, he’s presumably in the presence of somebody for at least 15 minutes for that group session, for example. But throughout a 24-hour day, I would think that there, obviously, would be times when he was not involved in some activity and, thus, under observation because of the activity. When he’s sleeping at night, or supposed to be sleeping at night, every 15 minutes is not adequate.... I grant that he didn’t kill himself during the night, but I’m talking about the principle here, the severity of suicidal risk. Severe. Most severe. Dr. Rosenthal testified that he would have placed G.K. under one-to-one suicide precautions, or at least in the line of sight of a staff person at all times. He also offered the opinion that electric shock therapy should have at least been considered, given G.K.’s history of failure to respond to a plethora of medications. Dr. Rosenthal acknowledged the requirement of Section 394.459(2)(b), Florida Statutes, that a psychiatric patient receive "the least restrictive appropriate available treatment," but testified that what is "appropriate" depends on the condition of the individual patient, and that this was a situation in which it would have been appropriate "to step in protectively to impose a highly restricted situation." Dr. Rosenthal agreed with the general distinction discussed above between suicidal ideation and a definite or active plan to commit suicide. However, he testified that a patient’s stating a "plan" that is not immediately workable may still call for heightened precautions in light of the entire case presented by that patient. For example, a patient may tell the nurse or therapist that he keeps thinking about buying a gun and shooting himself. Plainly, he cannot accomplish this "plan" in the hospital. Dr. Rosenthal testified that these statements must nevertheless be taken seriously as they contribute to the "flavor" of the patient’s obsessiveness about death and wanting to die. In contrast, Dr. Cheshire concluded: From my review of the medical record it appears that Dr. Carlos Berry practiced within acceptable standard of care guidelines and conducted his treatment of this patient in a manner that would be considered prudent by any similar physician under similar circumstances and conditions. Dr. Berry had a relationship with this patient of several year’s [sic] duration and appears to have made his decisions regarding the patient’s care with a clear understanding of the patient’s history and psychiatric condition. I could find no error in judgment or action on the part of Dr. Carlos Berry that in any way contributed to the asphyxiation death by hanging of patient G.K. Dr. Cheshire concluded that, if fault were to be found with anyone other than G.K. himself, that fault must be placed on the hospital for, among other things, failing to provide a safe and secure environment for the treatment of the patient. Dr. Cheshire specifically mentioned the failure of hospital staff to follow standard contraband procedures and the assignment of hospital personnel simultaneously to provide group therapeutic services and to observe at risk patients as contributing causes in the suicide of G.K. Dr. Cheshire strenuously disagreed with Dr. Rosenthal on the question of G.K.’s statements to Medfield staff and the conclusions to be drawn therefrom. Dr. Cheshire noted that the only suicide plan ever mentioned by G.K. during his stay was that he would buy a gun and shoot himself, that he had been admitted after taking an overdose of pills and alcohol, and that these routes for suicide were precluded by his admission to a locked psychiatric unit. Dr. Cheshire noted that suicidal statements such as those made by G.K. are extremely common: "[P]eople say, 'I’m going to kill myself. I wish I were dead. I can’t stand this any longer. You kids are driving me crazy. You’ll be sorry when I’m gone,’ and all of these things. People think about death. But that doesn’t mean they’re going to do it." As found above, it would be practically impossible to institute one-to-one suicide precautions for every patient who merely makes such statements without giving some overt indication of a present intent to carry out the suicide. In Dr. Cheshire’s opinion, G.K. could not be considered a person with an active suicide plan. Rather, G.K. was a person whose suicidal ideation began in the fourth grade and continued up until he met with Dr. Berry on February 22, 1996. Dr. Berry was familiar with G.K.’s sarcastic method of discourse, his perpetual thoughts of suicide, the nonlethal gestures G.K. had made over the years, and the course of G.K.'s inpatient admission in 1994 under his care, and Dr. Berry properly placed G.K.’s statements in that context. Dr. Cheshire noted that G.K. "wasn’t planning suicide whenever he talked with Dr. Berry, unless he was lying to Dr. Berry." At the hearing, Dr. Cheshire testified that a patient is placed in one-to-one precautions when the patient is out of control, unable to control his impulses such that he is dangerous to himself or other people. He testified that a patient such as G.K., who in his opinion was severely depressed but had no suicide plan, was not an appropriate candidate for one-to-one precautions. Dr. Cheshire did not minimize the severity of G.K.’s condition. He agreed that G.K. was very disturbed, very depressed, with poor insight and minimal judgment, adding that in his opinion G.K. had poor insight and minimal judgment for over twenty years: "He’s never had good insight or good judgment, and he’s been sick all his life." Dr. Cheshire agreed with Dr. Berry’s judgment that a patient displaying G.K.’s symptoms and personality must be given some hope. Dr. Berry discussed changing his medication and talked about positive things. G.K.’s admitting to the fact that he had been doing alcohol and drugs and agreeing to try the new medication were positive steps, and Dr. Berry was correct to identify them as such. Dr. Sprehe agreed with Dr. Cheshire that one-to-one observation is called for when there is evidence a patient is "imminently suicidal," which he defined as a patient stating he will kill himself if given the chance, or showing he has made plans or "devious manipulations" to line up equipment to kill himself, or doing things such as making out a will or giving away personal items. Dr. Sprehe saw no such indications in G.K.’s record. Dr. Sprehe acknowledged G.K.’s history of severe depression and his several suicide attempts, but did not agree these factors made G.K. such a risk as to warrant one-to-one precautions: "The least restrictive alternative mandate is still in effect, and you don’t keep people locked up and eye-balled one-to- one all their life [sic] because they did one or two things in the course of their life." Dr. Sprehe agreed that "close observation" is called for at times with such patients, but he defined the term as fifteen minute checks, similar to the Q15 precautions actually ordered by Dr. Berry. Both Dr. Cheshire and Dr. Sprehe stated that it might have been proper to order one-to-one precautions during the first hour or two of G.K.’s admission, given the frenetic events leading up to it. Interestingly, Dr. Rosenthal opined that the first hour or two of G.K.’s admission was the only time that he would not necessarily have ordered precautions more restrictive than Q15. Dr. Sprehe testified that suicide is a sudden impulse, and that the impulses "all have to do with sudden insults to their personal integrity, whether it’s a boss tells them that they’re doing terrible in work, or whether someone in group therapy that says, why don’t you kill yourself and do the world a favor. A lot of different things can happen to make a sudden impulse. And that explains why it can happen suddenly on a psychiatric ward with people supposedly watching him." Dr. Cheshire made essentially the same point: "You cannot predict suicide. All the books tell you that you can’t predict it. You can just hope that you’re right." The weight of the expert testimony establishes that Dr. Berry did practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The more restrictive environment recommended by Dr. Rosenthal might have been acceptable. However, the fact that two physicians arrive at different determinations as to the course of treatment for a patient does not necessarily mean that either physician has deviated from the standard of care, as Dr. Rosenthal himself testified. Dr. Berry cannot be deemed responsible for events over which he had no control and of which he had no knowledge. He could not have predicted that hospital staff would allow G.K. to have contraband, and he did not in fact know that G.K. had it. Dr. Berry was not told about the incident in group therapy on the morning of February 22, 1996. It was the unfortunate conjunction of these two events, not anything Dr. Berry did or failed to do, that provided G.K. with the impulse and the means to end his life.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a Final Order dismissing the December 16, 1997, Administrative Complaint against the Respondent, Carlos E. Berry, M.D. DONE AND ENTERED this 5th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of March, 1999. COPIES FURNISHED: John E. Terrel, Esquire Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire Jeanine Coris, Esquire Weidner & Wortelboer 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246-6685 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703
