The Issue The issue presented for decision herein is whether or not Proposed Rule 10- 5.005(2), Florida Administrative Code, as promulgated by DHRS constitutes an invalid exercise of delegated legislative authority. Based upon the following findings of fact, conclusions and analysis, proposed Rule 10-5.005(2)(a) and (b) is invalid.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. DHRS' Office of Health Planning and Development is divided into two separate divisions: The Office of Community Medical Facilities, which administers the State Certificate of Need Program and has responsibility for making recommendations regarding CON applications, and (2) the Office of Comprehensive Health Planning, which has primary responsibility for development of rules pertaining to Certificate of Need policy. Mr. Robert Maryanski, Administrator of the Office of Community Medical Facilities, believes his office made no formal comments (perhaps informal comments,) concerning the proposed rule. Mr. Maryanski considered that the proposed rule was objectionable based on his understanding of the statutes. (TR 33, 54). Elfie Stamm is employed by the Office of Comprehensive Health Planning and has primary responsibility for development of Proposed Rule 10-5.005. The text of the proposed rule is as follows: 10-5.005 Exemptions. * * * (2)(a) Physician offices or physician group practices which do not exist for the primary purpose of providing elective surgical care are exempt from certificate of need requirements for ambulatory surgical centers as specified in 10-5.011(30). This certificate of need exemption applies to offices and associated surgical suites maintained by one or more private physicians or a physician group which is used only by the physician or the physicians of the group practice, and in which 50 percent or more of the patients treated annually are non-surgical patients. (b) Physician offices, or physician group practices applying for designation as an ambulatory surgical center (ASC) by the Health Care Financing Administration (HCFA) and who meet the requirements for exemption from certificate of need review under the provisions delineated under paragraph (2), shall submit a request for exemption from certificate of need to the Department. The physician office or physician group practice shall provide the Department with at least 30 day's written notice of the proposed exemption from the certificate of need requirements for ambulatory surgical centers. Within 30 days of receipt of such written notice, the Department shall determine if the physician office or physician group practice is exempt and advise the applicant of its determination in writing. (Petitioner's Exhibit 6). The proposed rule exempts physician offices and physician group practices from CON requirements for ambulatory surgical centers (ASC) when at least 50 percent of the patients treated annually in these facilities are non- surgical patients. The proposed rule purportedly implements the Federal Health Care Financing Administration's (HCFA) policy allowing physician offices which are exempt from State CON and licensure requirements to apply directly (to HCFA) to receive ASC designation for medical facility reimbursement purposes without first obtaining a CON. Currently, "Ambulatory Surgical Center" means a facility, the primary purpose of which is to provide elective surgical care and in which the patient is admitted to and discharged from such facility within the same working day and which is not part of a hospital. However, a facility existing for the primary purpose of performing therapeutic abortions, an office maintained by a physician for the practice of medicine, or an office maintained for the practice of dentistry shall not be construed to be an ASC. Section 395.002(2), Florida Statutes (1985). DHRS is trying to implement what it believes to be a statutory CON exemption for doctor's offices through the proposed rule. In so doing, HRS considers physicians' offices to be indistinguishable from physician group practices. In this regard, the relevant statutes do not reference physician group practices. Historically, HRS would not certify physician offices as medicare providers (in its role as surveyor for HCFA) because such certification entails the requirement that a physician's office comply with the State ASC Law. In short, a physician's office wishing to become an ASC had to satisfy both CON and State licensure requirements in order to be certified as a medicare providing ASC. Prior to promulgation of the proposed rule, DHRS never had a policy that group practices or physicians with operating suites are excluded from the statutory definition of an ASC. DHRS has no exemptions or exclusions for physicians' groups with surgical suites so that they could become ASCs for medicare certification. (Testimony of Tom Porter, previous supervisor for DHRS' Certificate of Need Program). DHRS took the position that it was without authority to grant an exemption to physician group practices and the related offices as an associated surgical suite without such facility having first obtained a CON as an ASC prior to offering such services. DHRS also took the position that a physician wishing to do minor surgical procedures as a sub-part of his office practice would not be required to obtain a CON as an ASC. These services could be done as an ancillary part of the physician's office. (Testimony of Gene Nelson, former Administrator, Office of Comprehensive Health Planning and Administrator of the Office of Community Medical Facilities prior to Mr. Maryanski's tenure with DHRS). Section 381.495, Florida Statutes, provides for several defined exemptions from CON review. As stated above, the proposed rule purports to grant an exemption to physician offices or to physician group practices from State CON requirements. Section 381.493 (3)(a), Florida Statutes (1985), states, in relevant part, that an office maintained by a physician for the practice of medicine is excluded from the definition of an ASC. The referenced statute does not grant an exemption from the ASC regulation nor has DHRS previously exempted a person or entity from CON review under such circumstances. DHRS has historically distinguished between a physician performing minor surgical procedures as an ancillary part of his office versus a full service ASC. HCFA clarified in Memorandum FQA-731, Ambulatory Surgical Center regulations relating to compliance with state licensure requirements and the application of state CON provisions as a prerequisite for medicare certification. (Pet. Exh. 8) In states where ASC licensure laws are in effect, facilities seeking to participate in medicare must meet such licensure requirements. Thus, 42 CFR Section 416.40 states, in pertinent part, that the ASC must comply with state licensure requirements. CON provisions must be met as a prerequisite for medicare licensure certification for an entity to operate legally within a state and CON approval is required before the decision to award a license is made. In instances where licensure is not required either by virtue of the absence of an ASC Licensure Law or the exemption of certain entities from the licensure law, compliance with CON provisions is not necessary for medicare eligibility as an ASC. It is through a series of correspondence between Mr. Robert Streimer of HCFA and Mr. Marshall Kelley, DHRS' Assistant Secretary for Program Planning that affords the proffered "basis" for the proposed rule. (TR 87). The Streimer letter provides that ASC services performed in a physician's office which is not required by state law to be licensed as an ASC and which meets all medicare ASC requirements would be covered and reimbursed by medicare at the ASC rate. As noted, DHRS historically took a different position. Nowhere in Mr. Kelley's letter to Mr. Streimer did HRS identify the specific criteria that would relate to an exemption request in Florida as currently stated in the proposed rule. DHRS, based on the proposed rule, now takes the position that any physician having a operating room and furnishing surgical procedures for less than 50 percent of his or her patients would be entitled to an exemption from CON requirements and in turn be entitled to apply for certification from HCFA as an ASC for ASC reimbursement (facility fee). The proposed rule allows for surgery currently performed in a physician's office to qualify for higher reimbursement from medicare (i.e., a facility fee). DHRS uses as authority for the proposed rule, Section 381.493(3)(a), Florida Statutes. Prior to receipt of Streimer's letter, DHRS considered HCFA's policy to be that if a facility did not have a CON and was not licensed as an ASC, there would be no medicare certification forthcoming from HCFA. The Streimer letter purportedly clarifies HCFA's policy although it does not represent a change in that policy. (Petitioner's Exhibit 6). The proposed rule defines "primary as 50 percent or more of the patients treated annually as being non-surgical patients. However, according to the 1982 federal regulations, an entity seeking application and certification as a medicare ASC must be dedicated exclusively to the provision of Ambulatory Surgical Services (42 CFR Section 416.2). Federal Rules provide that the requirement for ASC's to be certified in order to receive medicare payments was expected to exclude physicians offices. There appears to be no federal regulation dealing with reimbursement for the surgical procedures which are to be done in physicians' offices. To satisfy HCFA's certification requirements, an applicant must satisfy the relevant state licensure requirements if any, and meet federal certification requirements. As presently codified, it is impossible to simultaneously satisfy the proposed rule and the federal ASC definition contained in 42 CFR Section 416.02. Thus, an entity could not "exclusively" provide ASC services and at the same time not exist for the "primary" purpose of providing elective surgical care on an outpatient basis. They are mutually exclusive since the two definitions are inconsistent. The Streimer letter initiated HRS's evaluation of current statutes and the proposed rule is, according to HRS, designed to implement current statutes. HCFA's policy is that if a facility legally provides or is allowed to provide elective surgical procedures in Florida, without having to be licensed as an ASC or having gone through the CON process, it is inappropriate to require the facility to obtain a CON and be licensed as an ASC as a condition of that facility being approved for medicare reimbursement at the ASC rate. Prior to HCFA's correspondence, HCFA required an applicant for medicare ASC certification to meet State Law and also meet its certification requirements. This is still the case and the HCFA's correspondence to DHRS did not change that requirement. The purpose of the Health Facility and Health Services Planning Act, more commonly known as the CON law, (sometimes called the Act) is to protect the public health, safety and welfare of Floridians. These protections are further defined as a necessary increase in health care, minimizing duplication in health services, and minimizing situations where there is an underutilization of existing health care resources. The proposed rule does not relate to or otherwise address any "need" issue or capacity issue and contrary thereto, allows for uncontrolled growth of surgery suites as long as the physician group practice has 50 percent or more of total patients treated as non-surgical patients. It can be expected that there will be a proliferation of physicians, solo or group practices, with physician surgical practices developing in addition to hospital out-patient surgery. Additionally, there is no physical constraint on the location of the physician and a physician's group practice. Adoption of the proposed rule will also increase the cost of the total health care system in Florida as follows: The average cost per procedure increases when procedures are spread out over a greater number of fixed facilities and because of incentives that would be inherent in this additional capacity for additional unnecessary utilization. Physicians would receive a facility fee in addition to a professional fee. Physicians would thereby receive more money for doing the same procedures they are currently doing in their offices without the facility fee. The effect of the introduction of surgery centers where there is already excess capacity in hospitals and in freestanding surgery centers is to increase the cost of health care to the community. With the addition of new facilities, there are added fixed costs placed into the system that would remain until the facility becomes outmoded. With the addition of fewer procedures spread over more fixed costs, the average cost per procedure likewise increases even though the cost to an individual patient might appear to be lower in an alternative setting. Excess capacity leads to underutilization with the resultant increase in the rates for surgery. Without a capacity constraint, there will be more elective surgery performed. With the approval of the proposed rule, a doctor's office will be eligible for medicare reimbursement for a facility fee. Medicare reimbursement for a facility fee is unique to ASCs and does not apply to surgical procedures performed in a doctor's office. The purpose behind reimbursing for facility fees is that there is considerable overhead associated with performing relatively complex surgical procedures which require an operating room. If procedures are so simple as to be safely performed in a doctor's office, the intent of the rule is to distinguish between these two settings. It is desirable for procedures to be done in a doctor's office that are simple because it is the lower cost setting. Procedures performed in a physician's office will not qualify for the facility fee reimbursement and overhead payment because of the simplistic nature of the procedures and the lack of need for sophisticated equipment which is currently being used in ASCs. The federal regulations were intended to remove hospital surgery to ASCs, if appropriate, and to remove minor surgery to doctors' offices in order to avoid reimbursement for procedures which can be done in a less sophisticated setting. If more procedures are shifted to medicare certified ASCs, there would be an additional facility fee and physicians would be eligible for this reimbursement. An example of the operational effect of the proposed rule is the scenario surrounding Doctor Stephen S. Spector and the Presidential Eye Surgery Center in Palm Beach County. Doctor Spector was denied a CON for an ASC based on a lack of need for additional operating suites in Palm Beach County. After DHRS made its initial decision denying Dr. Spector's CON, he petitioned for a formal administrative hearing. A Recommended Order was entered denying Dr. Spector a CON and HRS then issued a Final Order denying a CON to Dr. Spector. Dr. Spector has since simply requested an exemption for a freestanding ASC pursuant to the proposed rule. DHRS will entertain this request and if granted, Dr. Spector will be entitled to medicare certification and a facility fee for surgical procedures performed in his office. The proposed rule will encourage the massive proliferation of outpatient surgery facilities and outpatient surgery suites. 3/ Evidence adduced at final hearing indicates that CON approved and licensed freestanding ambulatory surgery centers are currently underutilized and not operating at optimal capacity. The result will be increased hospital and ASC costs per unit because fixed costs must then be spread over a smaller patient base. It is likely that there will be underutilization of existing facilities. The proposed rule does not foster the purposes of Florida's CON law and it will not restrain increases in health care costs. The proposed rule will enhance or maximize unnecessary duplication and promote underutilization of existing resources. Pursuant to Section 120.54(2), Florida Statutes (1985), the Department is required to prepare an economic impact statement of the proposed rule. For the proposed rule, HRS states, in part, in its economic impact statement as follows: The proposed amendment is expected to have an economic impact on hospital outpatient departments and ambulatory surgical centers licensed by the State. It is expected that some Medicare patients who previously have been referred to hospital outpatient departments or a freestanding ambulatory surgical center licensed by the State may have their elective surgeries performed in the physician's group practice. In addition, the proposed rule may encourage the development of physician group practices with surgical suites since they are exempted from the certificate of need process and State licensure requirements. The fiscal impact on hospitals and ambulatory surgical centers cannot be estimated since the Department has no data regarding the number of potential applicants under this Rule, the location of those applicants, the volume of surgeries which may be performed by these entities, or the number of surgeries which would have been performed in hospital outpatient departments or State licensed ambulatory surgical centers in the absence of these new entities. (Petitioner's Exhibit 7). The economic impact statement for the proposed rule does not provide any data or method used in making the required economic impact estimates. The statement does not include any data to analyze whether the rule will impact ASCs having less than one million dollars net worth and less than 25 employees or whether the proposed rule will have an economic impact on hospitals and ambulatory surgery centers. Although HRS has indicated that the exact amount of the fiscal impact is impossible to estimate due to the unknowns respecting the number of physician offices or group practices that will qualify for the exemptions and therefore no analysis was undertaken or developed, studies could have been made to determine the effect any level of participation would have on hospital costs and utilization of existing facilities. Although the task of compiling such data would, no doubt, be arduous, evidence adduced at final hearing indicates that DHRS could have, with effort, compiled a data base with a stratified sample which would have been reliable and could forecast the likely effect of the proposed rule within an acceptable margin of error. DHRS did not compile data which would provide an estimate as to the number of patients who would choose the physician's office over other facilities that perform Ambulatory Surgery. DHRS never requested input from hospitals or outpatient surgery centers with respect to pay or patient mix. DHRS conducted no surveys with respect to the number of potential applicants under the proposed rule. DHRS considered it not relevant to examine the capacity of existing freestanding surgery centers or hospitals having outpatient surgery facilities. DHRS conducted no studies to determine the accessibility of existing ASCs and hospital ASCs. No studies were done to examine the impact, as to the cost to patients, that the proposed rule is likely to have on existing providers. No studies were done to assess the impact the proposed rule will have on the medicare trust fund. No studies were done to determine the impact, if any, on Florida small and minority businesses. It is true that a great deal of the needed data was not readily available to HRS whereas, on the other hand, it made no attempt to gather such data. DHRS has the ability to assess the number of surgeries that could be performed in hospital outpatient departments and ASC's since DHRS does such compilations on a day to day basis when it projects the need for new ASCs. DHRS could have commissioned studies to determine the effect any level of participation would have on hospital costs and utilization. Development of an adequate data base and a meaningful economic impact of the proposed rule is paramount in view of the legislative mandate (to DHRS) to contain health care costs. Rules are promulgated to further the purpose and objective of the statutes they implement. To accomplish this, they must be consistent with the statute. Here, the purpose of the statute is cost containment. Evidence adduced at final hearing reveals, without contradiction, that the proposed rule will increase health care costs, contrary to the major purpose for its existence. Finally, DHRS compiled no data as to the impact on the ability of hospitals to provide indigent care under the proposed rule. As example, Florida Hospital projects that it will provide $48,000,000 in uncompensated care for fiscal year 1986. If the hospital were to lose revenue as result of this proposed rule, the level of indigent care will also correspondingly be reduced in order to offset the loss of revenue. Other parties herein provide services to indigent persons. The proposed rule does not require these exempt facilities to provide indigent care. In addition to the above economic impact which will be brought about by the proposed rule on the Health Care system as a whole, the proposed rule will have an economic impact on the existing hospitals and ASC's. (TR 276-277; 438-440). As example, one Petitioner herein advises that if one surgery suite were added by an existing physician group or formed near the hospital, the hospital will lose approximately $481,000 per annum. By letter dated August 29, 1986, DHRS forwarded a copy of the purposed rule to the statewide and local health councils requesting comments by September 12, 1986. The public hearing on the proposed rule was scheduled for October 20, 1986. Neither health council (state or local) participated in the public hearing for the proposed rule nor has either council submitted comments respecting the proposed rule. The notice provided to the local and statewide health councils for comments on the proposed rule was adequate and afforded the various councils an opportunity to voice any concerns or provide input about the proposed rule. Dr. Montgomery, an Intervenor herein, will receive additional medicare reimbursements of $500.00 per patient for a facility fee under the proposed rule. Dr. Montgomery approximated that he performed 320 cataract surgeries per year of which approximately 300 patients are paying patients. Approximately 85 percent of those patients are over 65. Therefore, Dr. Montgomery will receive medicare reimbursement for 255 patients or approximately $127,500.00 in additional fees if his office is certified as exempt under the proposed rule.
Findings Of Fact Carolle Lynn Baya is a licensed midwife holding license #8341-31 issued by Department of Health and Rehabilitative Services. She was so licensed at all times relevant to the charges in the Administrative Complaint. Having received a complaint from a physician, Department of Health and Rehabilitative Services caused an investigation to be conducted by investigators from the Department of Professional Regulation. A review of the records provided by Baya revealed that Baya had treated Dianne Williams as a patient. Ms. Williams' records maintained by Baya did not have a copy of a physician's physical; did not reflect that an emergency plan had been developed; and did not reflect referral of Williams to a physician when she failed to develop an alternative obstetrical plan. Ms. Williams was first seen by Baya in the 12th week of her second pregnancy. Ms. Williams was referred to an obstetrician in her 38th week of pregnancy because the fetus was in frank breech position.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Department of Health and Rehabilitative Services fine Respondent $100 and that she receive a letter of reprimand. DONE AND ORDERED this 16th day of September 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 16th day of September 1986. COPIES FURNISHED: Frederick J. Simpson, Esquire HRS District IV Legal Counsel 5920 Arlington Expressway Jacksonville, Florida 32231 Carolle Lynn Baya Stork Flight Inc. 7816 Southside Blvd. #110 Jacksonville, Florida 32216
The Issue Whether Respondent should be determined to be found in violation of Florida's Medical Practice Act for gross negligence or failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under the circumstances or for _ ) failure to keep written medical records justifying the course cf treatment of a patient throughout seven months of her pregnancy? ( If so as to either charge, what is the appropriate discipline to be imposed by the Board of Medicine?
Findings Of Fact The Parties Petitioner, the Agency for Health Care Administration, is within the Department of Business and Professional Regulation, together with the Board of Medicine, the regulatory authority charged with regulating the practice of medicine in the State of Florida. Section 20.42 and Chapter 458, Florida Statutes. Respondent, Neville Clement Jack, M.D., is the holder of a license to practice medicine in Florida, license number ME 0046020. Prior Discipline by the Board of Medicine .. While holding license number ME 0046020, Dr. Jack has ) been disciplined twice by the Board of Medicine. He was first disciplined by a final order dated August 26, 1994. He had been charged by administrative complaint with ( violating Section 458.33l(l)(c), Florida Statutes, in that he had entered a plea of nolo contendere in the Thirteenth Judicial Circuit Court for Hillsborough County to seven counts of petit theft. The plea was based on criminal charges in which he was accused of defrauding Medicaid of $11,227.00 by billing Medicaid for services he had not provided. Dr. Jack did not contest the factual allegations in the administrative complaint. Dr. Jack was fined $2,500.00 and ordered to subject his practice to procedures designed to achieve quality assurance in the practice. Dr. Jack was disciplined again by a final order entered December 13, 1995. In this second proceeding, Dr. Jack was charged with twelve counts of violating the disciplinary C provisions of Chapter 458, Florida Statutes. Six of the counts charged Dr. Jack with failure to practice medicine with reasonable safety, two charged him with medical records violations, one with making deceptive representations in the course of his practice and one with inappropriate prescription of legend drugs. In entering a consent order with the Agency for Health Care Administration, Dr. Jack neither admitted nor denied the charges. The final order disposed of the case by fining him $5,000 and placing him on probation for a two year period effective December 5, 1995. Of the seven cases of patients whose treatment by Dr. Jack led to the twelve counts of violations of the Medical Practice Act in the administrative -"- ) complaint, issued in this second proceeding, three -cases, in part, consist of charges involving failure to respond to telephone calls or pages in a timely manner; three also consist of charges Dr. Jack failed to be present at critical moments in obstetrical care, including delivery, and follow-up or postpartum care. Failure to respond to pages or telephone calls at critical moments of need by an obstetrical patient is at the heart of this case, a case involving prenatal care of A.W., a woman who had entrusted her first pregnancy to Dr. Jack. Patient A. W.'s Obstetrical Care Prior to October 1992 In early 1990, Dr. Jack admitted a new patient to his practice of gynecology: A.W. Dr. Jack and A.W. had know each other prior to establishment of their physician-patient relationship because they were members of the same church. A little more than two years later, when Patient A.W. suspected that she might be pregnant, she made an appointment with Dr. Jack's office. If pregnant as she suspected, A.W. thought Dr. Jack would be the ideal person to provide her with obstetrical care. She been his gynecological patient for more than two years. In addition, she had known him for some time and had always believed him to be a reputable physician. In fact, she had seen Dr. Jack's name listed in her Humana provider publication as both a gynecologist and an obstetrician. In addition to thinking Dr. Jack would be an ideal obstetrician for prenatal care and delivering the baby, A. W., ) knew that if she were pregnant, she did not want the baby to be delivered a birthing center. She wanted the baby to be delivered at a hospital by a reputable obstetrician. In her mind, Dr. Jack was that obstetrician. He was the obstetrician whom she felt she could trust with a moment extremely important to her and her child-to-be: the baby's birth. A.W. presented to Dr. Jack's office on May 8, 1992 with indications of pregnancy. Dr. Jack conducted a full physical examination of her, including a sonogram. She was diagnosed as pregnant with an expected delivery date of December 21, 1992. Dr. Jack accepted A.W. as a prenatal patient. Unbeknownst to A. w., however, Dr. Jack, in May of 1992, did not have privileges at any hospital. He was not able and knew he was not able, therefore, to deliver A. W.'s baby at a hospital. It is not clear from the record why Dr. Jack did not have privileges at any of the local hospitals. It may have been because he had been convicted of seven criminal counts of petit theft involving medicaid fraud. It may have been because of the charges in the two cases for which he was disciplined several years later by the Board of Medicine. Whatever the basis for the loss of privileges, however, the fact remains: from the moment A.W. presented in May of 1992 throughout the course of care he provided A.W. while she was pregnant, Dr. Jack did not have privileges at any local hospital at which he could have delivered A.W.'s baby. At her initial visit the time most appropriate for the information to be communicated to a pregnant woman, A.W. was ' - \ not informed by either Dr. Jack's office staff or Dr. Jack, himself, that Dr. Jack did not have privileges at a local hospital. Nonetheless, for th·e next few months, A.W.'s pregnancy and prenatal care proceeded uneventfully. Dr. Jack provided A.W. with appropriate prenatal care, such as checking fetal heart tone, analysis of weight gain, checking growth of the fetus by measuring the patient's abdomen, and performing urinalyses. But, Dr. Jack did not refer A.W. to an obstetrician for the expected delivery. And A.W., not knowing that Dr. Jack could not conduct the delivery at a hospital, made no attempt to contact an obstetrician. During several of the visits to Dr. Jack's office prior to October of 1996, A.W. made known her intention to have ) the baby delivered at University Community Hospital ("UCH") in discussions with Dr. Jack's staff. It may be that staff members who participated in these discussions thought A.W. had been informed as part of standard office procedure of the lack of Dr. Jack's privileges. But, such procedure had not been followed in the case of A.W. At none of the times A.W. discussed delivery at UCH did the staff inform A.W. that Dr. Jack did not have privileges at UCH or, for that matter, at any other hospital in the area. Neither did Dr. Jack inform her of the status of his privileges at local hospitals. A.W.'s pregnancy continued to·proceed uneventfully until mid-October. ) Prenatal Care in October and November, 1992 On October 16, 1996, A.W., then close to commencement of her eighth month of pregnancy, presented to Dr. Jack with complaints of a urinary tract infection. Two weeks later, she presented a second time with symptoms which Dr. Jack diagnosed as a urinary tract infection and for which he prescribed Bactrim. Dr. Jack saw A.W. for the infection on November 2, 9 and 11, 1992. Following the November 2 office visit, Dr. Jack prescribed Amoxicillin. Following the November 9 visit, he prescribed Amoxicillin again. On November 11, 1992, Dr. Jack ordered a culture to determine the origin of the infection because A.W. was not responding to the prescribed antibiotics. On one of these visits, little more than one month prior to the expected delivery of the baby, Aw. was accompanied ( by W.W., her husband. W.W. expressed to Dr. Jack his concern about the antibiotic treatment received by A.W. and asked why she wasn't being hospitalized. W.W. thought his wife should be monitored in a hospital since the infection had lingered so long and seemed serious. W.W. was especially concerned since the infection was occurring while A.W. was experiencing a first-time pregnancy. The meeting between A.W., W.W., and Dr. Jack lasted twenty minutes. At no time during the meeting did Dr. Jack inform W.W. that he did not have privileges at any hospital. Nor did Dr. Jack inform W.W. that he was providing prenatal care only and that it was going to be necessary for him and his wife to obtain an obstetrician for the delivery. On November 13, 1996, A.W. saw Dr. Jack at his office again in order to have performed a sonogram, a procedure standard near the commencement of the last month of a full-term pregnancy. At the November 13 office visit, the staff informed A.W. that Dr. Jack "was not delivering right now, so ... he had other doctors who were delivering for him." Tr. 29. This was the first time that A.W. had ever heard or been informed that Dr. Jack did not have hospital privileges and would not be delivering the baby. When asked whether she wanted the delivery at UCH or another hospital, A.W., consistent with her earlier discussions with Dr. Jack's staff, answered UCH. In response, Dr. Jack's ) staff told A.W. that an appointment would be made in the first week of December for A.W. to see Dr. Reimer, an obstetrician with privileges at UCH. Consistent with the default up until November 13, 1992, by Dr. Jack and his staff in informing A.W. of his lack of privileges, Dr. Jack's records do not reflect that he ever informed A.W. that he did not have privileges. Likewise, on the November 13, 1992, when A.W. was finally and for the first time informed of the status of his privileges, Dr. Jack's records do not reflect that A.W. was informed. In light of the revelation on November 13, 1992, that Dr. Jack would not be delivering her baby, A.W. accepted the appointment made for her with Dr. Reimer. It was not A.W.'s \ // independent decision, however, to avail herself of Dr. Reimer's obstetr ical care at this late stage in her pregnancy. The decision to accept the appointment was thrust upon A.W. by the ( circumstances of the late revelation of the status of Dr. Jack's privileges. A.W made none of the arrangements to see Dr. Reimer. The arrangements were handled solely by Dr. Jack's staff. A.W. was told by Dr. Jack's staff that her records were being copied and sent to Dr. Reimer. Contrary to this representation, however, none of A.W.'s records were transmitted to Dr. Reimer's office. Obstetrical Care in December 1992 On the day of her appointment with Dr. Reimer during the first week of December, A.W. attempted to see Dr. Reimer but she could not find his office. She went to Dr. Jack's office for directions but, by the time she reached his office, the time ( for the appointment with Dr. Reimer had passed. A.W. had an appointment scheduled with Dr. Jack for the upcoming Friday afternoon, December 4, at 3:30. Dr. Jack's staff made a second appointment with Dr. Reimer for one hour before: 2:30 p.m., the afternoon of December 4. With the benefit of the new directions, A.W. found Dr. Reimer's office in time for her 2:30 appointment that Friday afternoon. Dr. Reimer's office refused, however, to allow A.W. to see Dr. Reimer because it did not have her prenatal records or any other medical records of hers. A.W. returned to the office in order to obtain the records, herself, and to transport them back to Dr. Reimer's office. In addition she intended to ( --, see Dr. Jack for her 3:30 appointment. When she arrived at the ) Dr. Jack's office, however, it was closed. A.W. attempted to reach Dr. Jack by telephone in the hope that his answering service would be able to inform him of the need to return her call, but this attempt, too, proved unsuccessful. At hearing, A.W. described her predicament on the afternoon of December 4, 1992, in the ninth month of her pregnancy and little more than two weeks from the expected birth of her child, in response to the question, "[h]ow were you feeling on that day?" A bit heavy [and in slight discomfort] and I just knew it was three weeks I hadn't seen a doctor, and I knew I had to see somebody if Dr. Reimer didn't see me ... (Tr. 32.) ) December 5, 1992 In the early morning of December 5, A.W.'s slight discomfort of the day before had become abdominal pain. At approximately 7 a.m., A.W. made the first telephone call of many calls she made throughout the day to Dr. Jack's office. As the day wore on with no response from Dr. Jack, the pain grew worse. Finally at 5 p.m., Dr. Jack returned the call. Over the telephone, Dr. Jack diagnosed A.W.'s condition as false labor. After the diagnosis by telephone, the abdominal pain continued to grow worse until it became excruciating. At approximately 8:50 p.m., A.W. reached Dr. Jack by telephone and told him that she wanted to go_ to the hospital. At this moment of A.W.'s worsening condition and what certainly sounded from A.W.'s description of symptoms to be a serious situation, Dr. Jack responded by telling her to call Dr. Reimer. In response to a question on direct examination about whether Dr. Jack had met the standard of care in this case, the agency's expert witness, Dr. Pierre Bouis, testified, that to meet the standard of care an obstetrician not able to deliver must "do everything possible to make sure that the patient is cared for by an appropriate facility and/or physician." (Tr. 140.) Without the required standard of care, that is without any assurance whatsoever of being cared for by an appropriate physician, A.W. presented to the emergency room at UCH at 9:00 C p.m. She asked the attendants to call Dr. Reimer. Dr. Reimer was called but because he had not seen A.W. and did not have any of her records, he declined to come to the hospital. Nurses at UCH examined A.W. Observing that her abdomen was very hard and unable to detect a fetal heart tone, the nurses called Dr. Commedore, the emergency on-call obstetrician for UCH. Dr. Commedore admitted A.W. to UCH and conducted an examination. There were no fetal heart tones. Furthermore, after conducting ultrasound at bedside and other diagnostic procedures, Dr. Commedore detected no fetal movement. Dr. Commedore diagnosed A.W. as having suffered abruptio placenta, premature separation of a normally implanted placenta. Abruptio placenta places an unborn child in great jeopardy because of loss of oxygen in the baby's bloodstream. A Cesarean section was performed after the failure of ) inducement of labor. Dr. Commedore delivered a stillborn baby boy. An autopsy revealed the stillborn child to have no congenital abnormalities, a normal three vessel umbilical cord and lungs with congestion and meconium aspiration. Abruptio placenta suffered on December 5, 1992, a day spent by A.W. beginning at 7 in the morning until 5 p.m. that evening trying to contact Dr. Jack, had caused the stillbirth of the child of A.W. and W.W.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Board of Medicine enter a final order finding Respondent to have violated both paragraphs (m) and (t) of Subsection 456.331(1), Florida Statutes and revoking his license to practice medicine. If the Board should choose a penalty less severe than revocation, Dr. Jack should be prohibited from practicing obstetrics, including the provision of prenatal care, for the remainder of his practice as a physician licensed by the Board of Medicine. DONE AND ENTERED this 24th day of December, 1996, in Tallahassee, Leon County, Florida. - , v--z (fLJiL. - ClvID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Blvd., Suite 210 Tampa, Florida 33619 Neville Clement Jack, M.D. 6814 Rosemary Drive Tampa, Florida 33625 Dr. Marm Harris E ecutive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 )
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Ruth Theresa Healey, was, at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number 0983072 by the Board of Nursing. On May 20, 1988, Respondent was employed as a registered nurse at Broward Convalescent Home for the 11:00 p.m. to 7:00 a.m. shift. Included in Respondent's responsibilities were the assessment of each patient under her care; the administration of medication to her patients according to the physician's orders; and the correct documentation of each medication administration on each patient's medical chart. Under Respondent's care on May 20, 1988 was the patient, E.M. The physician's orders for E.M. during Respondent's shift indicated that she was to be fed with one-half strength Entrition at 60 cc's per hour with water flushes through the gastrostomy tube (G Tube) which had been inserted into her abdomen. One-half strength Entrition is a nutrition substitute which is supplied in a self-contained package. On May 20, 1988, the supply of one-half strength was on special order and would not be available for use at Broward Convalescent Home until the next morning during the 7:00 a.m. to 3:00 p.m. shift. E.M.'s G Tube was clearly marked on E.M.'s chart and easily observed upon patient assessment since it was protruding from her abdomen. Sometime during Respondent's shift, a naso-gastric tube, NG Tube, was also inserted into E.M. Without a physician's order, the insertion of a NG Tube into a patient with an existing G Tube could prove harmful to the patient and is contrary to the minimal standard of acceptable and prevailing nursing practice. It was Petitioner's contention that Respondent inserted the NG Tube into her patient. Petitioner's position was supported by the testimony of Geraldine Hamilton, a nurse who came on duty the morning of May 21, 1988. Ms. Hamilton recalled that Respondent admitted to Ms. Hamilton that Respondent was in trouble because she, "put an NG Tube in one of the patients who has already got a G Tube." However, Respondent, at the hearing, consistently denied having made the statement. She asserted, instead, that a co-worker, Bunster Martinez, inserted the NG Tube. During Respondent's shift, she had sought Mr. Martinez's advice concerning the procedure she should use to feed E.M. since the one-half strength Entrition was not available. Mr. Martinez was not present at the hearing. Respondent's speech pattern, as observed at the hearing and as noted through the testimony of others is not clear. Rather, it is cryptic and disjointed. Given Respondent's poor diction and syntax, Respondent's consistent denial that she inserted the NG Tube and the lack of corroborating evidence that Respondent did, in fact, insert the NG Tube, the literal meaning of Respondent's statement to Ms. Hamilton is unclear. Respondent did not perform an assessment of E.M. which would have revealed the G Tube. Instead, contrary to the physician's order, Respondent began the administration of full strength Entrition through the NG Tube. In an attempt to create one-half strength Entrition, Respondent knowingly administered full strength Entrition for one hour at 85 cc. per hour followed by water flushes. However, the quality of one-half strength Entrition can not be obtained by diluting full strength Entrition in this manner, and the administration of full strength Entrition could have harmed F.M. Respondent's failure to perform an assessment of her patient and her action with regard to this feeding were contrary to the minimal standards of acceptable and prevailing nursing practice and constituted unprofessional conduct on her part. Also, although Respondent administered to E.M. full strength Entrition through the NG Tube, she entered the feeding on E.M.'s chart as Entrition one- half strength at 60cc/hour via G tube. Accordingly, Respondent knowingly falsified the medication administration report. The following morning, May 21, 1988, when the presence of the NG Tube was questioned, Respondent abruptly and forcibly removed the NG Tube from E.M. The procedure Respondent used to remove the NG Tube was also contrary to the minimal standards of acceptable and prevailing nursing practice, constituting unprofessional conduct on her part and placing her patient in more jeopardy. Respondent acted somewhat incoherently on several occasions around the end of May, 1988. She was observed "talking to herself", was unresponsive to questions and appeared disoriented. No competent evidence was presented that such conduct resulted from a physical or mental condition or from medication. Respondent was previously suspended by the Board of Nursing and required to undergo psychiatric treatment. She was subsequently reinstated. No competent and substantial evidence was presented that Respondent disobeyed the previous order or any order of the Board of Nursing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered suspending Respondent's license for a period of one year, and thereafter, until she can demonstrate the ability to practice nursing in a safe and proficient manner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12 day of October 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of October 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3401 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Subordinate to the result reached. In part, addressed in paragraph 3 ;in part, subordinate to the result reached. Not necessary to result reached. Not necessary to result reached. Not necessary to result reached. In part, subordinate to result reached; in part, addressed in paragraph 3. Addressed in paragraph 3. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraphs 7 and 9. Addressed in paragraph 9. Addressed in paragraph 9. In part, addressed in paragraphs 5 and 6; in part, subordinate to result reached. Addressed in paragraph 8. Addressed in paragraph 3. Addressed in paragraph 7. In part, not supported by competent and substantial evidence, in part, subordinate to the result reached. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraphs 2 and 3. Addressed in paragraph 4. In part, addressed in paragraphs 10 and 11. In part, subordinate to the result reached, in part, not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 7. Addressed in paragraphs 7 and 8. Addressed in paragraph 10. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Ruth Theresa Healey, R.N. 1075 N.E. 39th Street, Apartment 110 Fort Lauderdale, Florida 33308 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
