Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a clinical laboratory supervisor's license without examination be DENIED. Respectfully submitted and entered this 15th day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Joan Marie Bartoe 1 Plaza Manor Venice, Florida 33595 Anthony DeLuccia District VIII Counsel Department of HRS Post Office Box 2258 Ft. Myers, Florida 33902 Secretary David H. Pingree Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out." During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency. DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith A. Klausner 1725 Springlake Road Fruitland Park, Florida 34731 Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue for consideration in this case is different in the three cases. As to DOAH Cases 98-5173 and 98-5216, the issue is whether a moratorium on admissions should be imposed on the licensed facility as a result of alleged deficiencies identified in an inspection dated October 12, 1998. As to DOAH Case No. 98-5297, the issue is whether the facility's license should be disciplined by imposition of an administrative fine as a result of the alleged deficiencies. The third action involved, that in DOAH Case No. 98-5527, is whether a conditional license should be issued to the facility instead of a regular license.
Findings Of Fact At all times relevant to the issues herein the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of nursing homes in Florida, and Respondent, Gulf Coast Nursing and Rehabilitation Center, was a nursing home licensed by the Agency and operating at 905 South Highland Avenue in Clearwater, Florida. On or about October 12, 1998, Ann DaSilva, a registered nurse specialist, a surveyor for the Agency, received a telephone report from Respondent's director of nursing advising that a resident at the facility, for the purpose of this inquiry identified as resident No. 6, had set himself afire when he tried to light a cigarette. The fire department and an ambulance were called, and resident No. 6 was transferred to Tampa General Hospital with second and third degree burns to his chest. The report also indicated that another resident, who had tried to put out the fire, was also slightly burned, As a result of this report, Dawn Cushman, a health facility evaluator, and Leslie Bower, a fire protection specialist-surveyor, both from the Agency's Clearwater office, went to the facility at approximately 2:00 p.m. on the day of the incident to investigate the circumstances. Upon arrival, Ms. Cushman and Mr. Bower met with the director of nursing who discussed with them what she believed to have happened and who showed them the site of the incident. Cushman and Bower also reviewed the resident No. 6's medical records, went to his room to look at his clothing and possessions, and spoke with other residents who had been present at the time of the incident. The facility maintained both an open and a closed record on the injured resident. The first day she was there, Ms. Cushman was shown only the open record. When she asked for the other, it was released. Review of resident No. 6's medical records showed that he had fallen before, and agency records revealed that in a prior survey in June 1998, the facility had been cited for failing to properly supervise him, which resulted in his falling, and for an increased safety awareness on that basis. Examination of his clothing and lap board indicated the shirt he was wearing at the time of the fire was approximately 40 percent consumed but the lap board had no fire damage. The remainder of his clothes and the lap board had numerous burn holes, most likely due to cigarette ash, but no more so than on any other smoker. The agency's investigation revealed that resident No. 6 was competent to make his own decisions and had no guardian. He was, however, somewhat challenged and was addicted to smoking. Because of his preoccupation with smoking a care plan was developed for him which called for his cigarettes to be kept in the control of the staff who would dole them out to him on a periodic basis and ensure he was accompanied by a smoking staff member who would go outside with him when he smoked. He was to have no more than two cigarettes over a two-hour period. This plan worked for quite awhile. However, the resident smoked to excess, and on October 6, 1998, a planning meeting was held regarding him, which was also attended by the resident and his father, where the necessity to control his smoking under supervision was again stressed. Investigation after the incident revealed that notwithstanding the matter discussed at this meeting, on October 11, 1998, while the resident was on leave outside the facility, he was provided with cigarettes and a cigarette lighter by his father. The following day, while the resident was on the patio outside the facility, not accompanied by a staff member, his shirt caught on fire as a result of his smoking, and the fire was extinguished by another resident who used a water hose nearby without serious injury to the resident. It is not unusual for the resident's father to give him cigarettes. Nursing notes show that whenever he visited his son he would bring them. At the October 6, 1998 meeting, the father was asked not to give cigarettes directly to his son. A minimum data set (MDS), an overview picture of the resident, had been prepared on all aspects of resident No. 6 which refers to his use of tobacco. This was contained in the Resident Assessment Protocol included in the resident's records. However, neither Ms. Cushman nor Mr. Bower saw or spoke with Resident No. 6. Based on her examination of the resident's records and his clothing and possessions, Ms. Cushman concluded that no significant preventive measures had been put in place to safeguard this resident. He was supervised for falls on the patio, but not for smoking. She reasoned that based on his history, there should have been some identifier on his records to denote him as a fire risk. Further, in her opinion, the facility should have had a smoking policy in place and did not. This determination is not supported by the other evidence of record, however. Though perhaps not in writing, there was a facility smoking policy in effect which called for smokers considered to be at risk of burns from smoking to be accompanied to the patio by a smoking staff member. Carol Hembree, also an evaluator for the Agency, went to the Respondent's facility for a survey after Cushman and Bower had been there. Upon her arrival, Ms. Hembree asked for a list of residents who were felt by the staff to be at risk for injury related to smoking. A list of seven or eight residents was provided which included resident No. 15 who is discussed further in this Order. Ms. Hembree examined report of incidents at the facility for the prior three months and interviewed staff to see what interventions were in place to prevent similar accidents from recurring. She found there was no such plan in a preponderance of the cases into which she inquired, and when she asked the administrator about this, was told there was no formal system in place. It was the facility's practice to look at each incident when it happened and work from there. Ms. Hembree concluded that had a system of evaluating residents who had difficulties with smoking been in place, the incident involving resident No. 6 might have been avoided. Under the circumstances of this incident however, with the intervention of the father, that is not likely. A team of surveyors inspected the Respondent's facility on October 14 and 15, 1998, as a follow-up to the inquiry by Cushman and Bower into the fire. The statement of deficiencies which was issued as a result of the survey defined three tags, F 324, F 272, and F 279 which relate to certain requirements of federal and state law governing the operation of a nursing home. Tag F 272 deals with the requirement for resident assessments and states: The facility must make a comprehensive assessment of a resident's needs which is based on a uniform data set . . . [which] describes the resident's capability to perform daily life functions, and significant impairments in functional capacity. The comprehensive assessment must include at least the following information: Medically defined conditions and prior medical history. Medical status measurement. Physical and mental functional status. Sensory and physical impairments. Nutritional status and requirements. Special treatments or procedures. Mental and psychosocial status. Discharge potential. Dental condition. Activities potential. Rehabilitation potential. Cognitive status. Drug therapy. Tag F 279 also relates to the requirement for resident assessment and states: The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical and psychosocial needs that are identified in the comprehensive assessment. Tag F 324 relates to quality of care, and in this case deals primarily with residents No. 6 and No. 15. It alleges a lack of adequate supervision in that no preventive measures were in place in regards to supervision of these residents while smoking. Ms. Bacinello, a federally-certified surveyor participated in the Agency's survey of Respondent's facility which took place on October 14 and 15, 1998. She and the other surveyors looked at Respondent's operation more broadly than did Cushman and Bower and listed deficiencies in the survey report under the tags listed above. Resident No. 8 identified on the survey report was an elderly resident with dementia and other medical problems who was sleeping on a low bed. Review of the facility record revealed no need for this resident to be using this type of bed which was eight inches off the floor and which had no head or foot board. A bed of this type is normally used for residents with a history of falling out of bed. In the instant case, with no head or foot board, Ms. Bacinello concluded there was no way the resident could get in or out of bed without help. Though the facility records showed this resident was at risk of falls, perhaps from a wheel chair or other types of falls, there was no history of her falling out of bed. Ms. Bacinello could find no written history in the facility files, other than the use of the generic term "falls," justifying use of this type of bed for this resident. The reason for this citation is the determination that the facility failed to conduct a proper assessment, compounded by the fact that the use of this type of bed could contribute to the risk of a resident fall. This is a valid finding. Ms. Bacinello also identified the case of resident No. 14 as inappropriate. Upon interviewing the resident, Ms. Bacinello learned she was a woman in her sixties who had been diagnosed with multiple sclerosis. She had been in the facility for an extended period and had lost use of her hands and feet. She was a total-care resident who could not even use the call bell. Her bed was located farthest from the door. Her condition, and her barely audible voice, had not been identified in the facility's assessment of the resident. When Ms. Bacinello spoke with the facility staff about what she had learned regarding this resident, they agreed the problems had not been recognized. This, too, is a valid finding. A third resident identified by Ms. Bacinello was resident No. 13, an elderly resident suffering from dementia, hypertension, fainting, and depression. The resident slept in a bed of standard height with a very thin mattress and no head or foot board. The resident assessment on record showed a history of falls, but there was no specific information regarding when they took place or under what circumstances. Admittedly, the records did not show any falls from the bed at night or when the resident attempted to get in or out of bed. Ms. Bacinello contends this lack of information identifies the problem. The records indicate the bed may have been ordered by a physician, but that is not, by itself, sufficient. The issue here is not whether the type of bed was appropriate, but the sufficiency of the assessment done. The resident was found sitting on the floor by the bed. Even though she is a resistive individual and climbs out of bed, and even though she was monitored closely by the staff in an effort to prevent falls, the written assessment in the resident's records is not sufficient to provide the information required to ensure a continuity of appropriate care by successor staff. Another evaluator, Ms. Procissi, identified the case of resident No. 11 as representing a deficiency in assessment. This resident suffers from Alzheimer's dementia. Facility records reflect that she wanders off from group activities. Even though the resident has a right not to attend these activities, and the deficiency does not relate to her failure to participate, there was a lack of a comprehensive assessment of the resident's needs. Based on the existing assessment, Ms. Procissi could not tell what the resident did, and could, therefore, not determine what she needed. In light of the description of the resident's wandering, the staff is on notice of a need to provide special care. No deficiency has been established in this case. Resident No. 12 suffered from dementia, psychosis, diabetes, and obstructive pulmonary disease. He occupied a low bed because he had fallen in the past. The assessment did not show the way he fell, and the assessment, in the opinion of Ms. Procissi, did not justify the use of a low bed. The assessment indicated that the resident fell because of his dementia, but that condition does not cause falling. The pulmonary disease did not cause or pre-dispose falling, either. As in the other cases cited, the citation here was based not so much on the use of the low bed, but on the perception of a failure to provide adequate assessment of the resident to justify the use of the low bed which, itself, could cause problems for the resident. The issue is what the resident needs, and there must be some support for the decision made, regardless of what it is. This is a valid finding. Resident No. 5 came to Respondent's facility from a mental hospital and was known to be a wanderer. The assessment that was done on this resident coded her as having no mood or behavior problems, to include wandering, but she was placed in a secure unit part-time. In the opinion of Ms. Cushman, the assessment done on this resident did not accurately describe her condition or give any justification for placing her in a secured unit in the afternoon. Since the resident was known to wander, the failure to identify this condition on the assessment constitutes a deficiency. Another deficiency relating to this resident dealt with the care plan which was developed for her. The care plan called for the resident to be in a secure unit, but she was there only part-time. Her wandering had been reduced, but nothing was done to ensure her safety. The care plan did not match the resident's current needs nor was it implemented. It is so found. Resident No. 15 was described in the facility records as a schizophrenic who wandered and who demonstrated disruptive behavior. Facility records indicated the resident was housed in a special care unit, but Ms. Cushman found this was not so. In addition, Ms. Cushman determined the resident was identified as being at risk of harm for smoking due to her cognitive condition, but there was no assessment to show why she was so classified. Resident No. 18, who suffered from Alzheimer's dementia, was assessed as being at risk for falls and was sleeping on a low bed. However, the assessment indicated no balance or range of motion problems, and Ms. Cushman observed that the resident wandered, but with a steady gait. Though described as at risk for falls, there was no assessment to establish conditions justifying that determination. There were numerous other deficiencies identified by the surveyors which, though identified under independent finding of fact numbers in the survey report, all relate to the same basic issue of the inadequacy of the assessments and the care plans. The issue here is not so much the failure to provide adequate care, but a failure to justify, in the resident assessments and the care plans, the actions taken. Ms. Hembree noted, for example, that resident No. 7, who suffered from osteoporosis, gout, obesity, and gait disturbance, was identified as having problems with incontinence. This called for care plan intervention to manage the incontinence, but review of the care plan showed none was developed. All of the assessment and care plan deficiencies, Class III deficiencies, were corrected by October 20, 1998. Ms. Brown, the nursing supervisor on the 7:00 a.m. to 3:00 p.m. shift, referring to the previously-described resident No. 6, who set his clothing on fire, described him as a continual chain smoker. The procedure in place, as she recalls it, called for him to request a cigarette from the nurse at the nurse's station. A staff member would then go outside with him to light his cigarette and to stay with him while he smoked. The resident was not allowed to keep his own matches or cigarettes with him, and to her knowledge, he was not smoking a cigarette from the nurse's station when he caught himself on fire. When she was informed by one of the housekeeping staff that the resident was on fire, she ran outside and observed him with a cigarette in one hand and his lighter in the other. Ms. Brown contends this incident would not have occurred if the smoking procedure in place had been followed by the resident. However, both the resident and his father were very non- compliant, and she is satisfied it was the joint misconduct of the resident and his father which caused the incident. Ms. Tanagon, the director of nursing, concurs. After the incident, she talked with the resident's father who admitted to her that he had given the cigarettes and lighter to his son while he was on-pass over the weekend. Notwithstanding the fact that she and other staff members had spoken with the father in an attempt to have him stop providing cigarettes to his son directly, the father continued to do so. Ms. Tanagon also described another resident, M.H., herein referred to as resident No. 15, who was ambulatory, cognizant, and able to care for herself. She had no tremors and no other problems, but she smoked cigarettes which she obtained from the nurse's station under the procedure described for Resident No. 6. In Ms. Tanagon's opinion, residents were not hazards merely because they smoked, and not all the smoking residents properly were described as at risk because they smoked. This opinion is shared by Mr. Flores, the institution's MDS and care plan coordinator. Mr. Flores knew resident No. 15 and prepared the care plan and assessment for her. In his opinion, she was in no danger of injury due to her smoking. She was an independent lady who could feed and dress herself and take care of her own activities of daily living. She needed minimal assistance with hygiene and grooming, but due to her cognitive impairment, also needed some supervision in her decision-making. Denise F. Baultrip-Cuyjet knew both resident No. 6 and resident No. 15 when she was director of social services at Respondent's facility, and was part of the team which prepared the assessments and care plans there. She does not believe resident No. 15 was at risk due to her smoking. The resident was somewhat anti-social and wanted to be left alone. She was not easily approached, and when smoking, concentrated fully upon that. Nonetheless, she knew the routine for smoking at the facility and was compliant with it. She knew where and how to get cigarettes, how to use them, and how to put them out. The danger to resident No. 15 was not her smoking, but her wandering, and her lack of judgement relates not to her smoking but to her tendency to leave the facility to go to the store for cigarettes. Ms. Baultrip-Cuyjet also described resident No. 6 as agitated, belligerent, threatening, assaultive and impatient. Nonetheless, she could approach him when others could not. There is no doubt he was addicted to nicotine, and though he was independent, they were able to work out the procedure by which he could get the cigarettes he wanted. There was no restriction placed on his going outside to the patio when he wanted, and in her opinion, it would have been a violation of his resident rights to search him when he would do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints filed in DOAH Case No. 98-5297 proposing the imposition of administrative fines in the total amount of $11,400; withdrawing the letter dated October 27, 1998, imposing an immediate moratorium on admissions to the Respondent's facility as noted in DOAH Case Nos. 98-5173 and 98-5276; and withdrawing the letter dated October 20, 1998, changing the facility's rating to Conditional, as noted in DOAH Case No. 98-5527. DONE AND ENTERED this 18th day of June, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Alfred W. Clark, Esquire 117 South Gadsden Street Suite 201 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox, Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 8th day of June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, sufficient to justify the imposition of disciplinarysanctions against her license. The resolution of this issue rests upon a determination of whether Respondent intubated the esophagus of a patient, as opposed to the patient's trachea, in the course of rendering anesthesia care; and whether Respondent then failed to provide a record justifying such a course of medical treatment.
Findings Of Fact Respondent is Saroja L. Ranpura, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0039872. Respondent was licensed in the State of Florida on April 27, 1982. She currently practices medicine in Ohio. Petitioner is the Department of Professional Regulation, Board of Medicine, the state agency charged with the regulation of physicians in the State of Florida. On August 29, 1985, Frank Snydle, M.D., performed a laparoscopy on patient C.P. at Heart of Florida Hospital in Haines City, Florida. This medical procedure was performed on an outpatient basis. As a result, C.P. came into the hospital on the day the surgery was to be performed. She met Respondent, who later provided anesthesia care to her in the course of the laparoscopy. Respondent examined C.P. at that time, prior to the surgery, and noted that C.P. had a small mouth. Later, C.P. was brought into the operating room on a stretcher and moved herself over onto the operating table. Present in the operating room at that time were Jean Allen, L.P.N., Norma Masters, R.N., and Respondent. Respondent proceeded to do an unusual procedure known as a "blind nasal intubation." The procedure requires the placement of an tube in the patient's throat through the nose, as opposed to the mouth, in order to maintain an open airway during later anesthesia administration in the process of surgery. C.P. was sedated, but awake, during this process and was intubated with a minor degree of difficulty. Prior to placement of the endotracheal tube, Respondent had the patient breath pure oxygen through a mask covering the mouth and nose. The preoxygenation process, according to Respondent, provided extra oxygen "as a reservoir and as astorage" to C.P.'s body tissues. By letting a patient breath 100 percent oxygen for three to four minutes, the resultant saturation permits a margin of four to six minutes for such an intubation to be safely completed without risk of the patient becoming hypoxic. Jean Allen, with almost 25 years of nursing experience in a surgical assistance career where she assists in 400 to 600 operations per year, observed Respondent during the entire intubation process, inclusive of the preoxygenation phase. Accepted medical practice after such an intubation requires that the person placing the tube then listen for breath sounds over each lung and over the area of the stomach. Respondent maintains that she did listen for those breath sounds with the aid of a stethoscope. The anesthesia record completed by Respondent has a notation "BEBS" for bilateral and equal breath sounds which Respondent testified that she heard with the stethoscope prior to administering additional sodium pentothal to the patient and inflating the cuff of the endotracheal tube. This testimony of Respondent is not credited in view of the testimony of Ms. Allen that she observed Respondent during this entire time and that Respondent did not listen for the breath sounds with a stethoscope prior to administering the additional sodium pentothal to the patient. Allen's testimony is also afforded the greater credibility due to her opportunity as a neutral witness to observe the events which transpired and her testimony that although she didn't observe Respondent closely after the additional sodium pentothal was administered, she maintained that she would have recalled Respondent's use of the stethoscope prior to that point. Notably, it is at that point prior to the administration of the additional sodium pentothal and inflation of the cuff of the endotracheal tube where Respondent maintains she listened for the breath sounds. Respondent, after completion of the placement of the endotracheal tube, administered additional sodium pentothal to the patient without listening for breath sounds; connected the tube to the anesthesia machine; and remarked that "it must be in place, the bag is moving" in reference to the bag on the anesthesia machine which generally inflates as the lungs of the patient deflate. While inflation or deflation of a breath bag on an anesthesia machine is one part of the procedure for checking placement of an endotracheal tube, the expert testimony of John Kruse, M.D., and David Alan Cross, M.D., establishes that this procedure alone is not a reliable method of determining proper tube placement. Frank Snydle, M.D., who had entered the operating room by this time in the sequence of events, did a manual vaginal examination of the patient, left the room, scrubbed his hands and returned. He then donned surgical gloves and gown, moved to the left side of the patient and prepared to proceed with the operation. Ms. Allen took her position at the foot of the table, between the patient's legs with an unobstructed view of Respondent. Dr. Snydle proceeded to make a small incision in the patient's abdomen through which he inserted a hollow, "Verres" needle. Carbon dioxide was then introduced to C.P.'s abdominalcavity to push the abdominal wall away from the internal organs. Next, a device known as a "trocar" and a "trocar sleeve" was inserted through the incision into the abdomen. The trocar was then withdrawn and a laparoscope was inserted into the sleeve. Built somewhat like a telescope with a built-in light source, the laparoscope permits the surgeon to look inside the abdomen and visually observe the patient's internal organs. During this procedure, Nurse Allen commented that she heard a sound like a fog horn or frogs croaking when she touched the patient's abdomen. Allen's remark is corroborated by Norma Masters and Dr. Snydle. The proof establishes, as corroborated by expert testimony of Dr. Kruse, that such sounds were associated with air, captured in C.P.'s stomach as the result of esophageal intubation, escaping from the stomach when pressure was applied. When Dr. Snydle made his first incision in the patient's abdomen, Allen observed that the blood was dark and Dr. Snydle agreed. Respondent inquired whether it could be venous blood. Snydle indicated he didn't think this was the case. Notably, the dark blood was observed, according to Respondent's medical records at 10:27 a.m. Further, Petitioner's experts, Dr. Kruse and Dr. Cross, based on their review of C.P.'s medical records, determined that the patient was initially intubated at approximately 10:15 a.m. Thus, approximately 12 minutes transpired from the beginning of the intubation process and conclusion of preoxygenation of the patient until the observation of dark bloodat the time of incision. After her inquiry regarding whether the blood could be venous, Respondent further responded that she was giving the patient 50 percent oxygen. She testified that she then increased the oxygen level to 100 percent. While the anesthesia record indicates administration of 100 percent oxygen, there is no time notation when this occurred. Blood again welled up from the incision and Nurse Allen commented that the blood appeared black. The less oxygenated blood becomes, the darker it appears. By this time, Dr. Snydle had inserted the laparoscope in C.P.'s abdomen. He observed that the internal organs were a "blueish color" ; an observation consistent with a decreasing level of oxygen in the patient's blood and an indication that the patient was hypoxic. When the patient's internal organs were discerned to be blue, Respondent asked Dr. Snydle to wait a moment and requested the assistance of Norma Masters, the circulating nurse. Masters came to the head of the operating table and was handed another endotracheal tube by Respondent. Respondent then began the process of intubating the patient with that tube through the mouth. The original nasal tube was left in place during the insertion of the second tube; an unheard of possibility, according to expert testimony, unless one tube was in the patient's esophagus and the other in the trachea. Nurse Allen's testimony establishes that the second tube, inserted via the patient's mouth, became foggy after insertion. The observation by Allen is consistent with experttestimony and establishes the fog was created by warm moist air from the patient's lungs flowing through the second tube. Respondent's testimony that she placed the second tube at the conclusion of the surgical procedure is not credited in view of the very clear, contradictory testimony of Masters and Allen that the endotracheal tube was replaced contemporaneously with the notation that the blood was dark and the patient's organs "blueish". After removal of the nasal tube and connection of the second tube to the anesthesia machine, Respondent manually squeezed the anesthesia bag to ventilate the patient. Dr. Snydle observed that the organs were turning pink again, and continued the procedure without further incident. After finishing the procedure, Snydle went out of the operating room, sat at a desk across the hall and began to write his orders. Following the procedure, the patient was wheeled to the recovery room, a short distance away. Nurses Allen and Masters did not see C.P. open her eyes during this process. Respondent's assertion that the patient opened her eyes and was responsive to commands is corroborated only by Dr. Snydle. However, while he noted in his operative report and his deposition that C.P. was awake following the operation, Snydle's observation is not credited in view of other proof establishing that his back was to the patient as she was wheeled past and that he assumed an awake state in the patient because Respondent was speaking to C.P. In view of the foregoing, Respondent's testimony that the patient was awake or responsive to commands following the surgery is not credited. After the patient was removed approximately 15 feet away to the recovery room, Respondent maintains that she informed Margaret Bloom, R.N., who was on duty there, that the patient's endotracheal tube was not to be removed, although she omitted telling Bloom about the dark blood incident. Bloom, who is also a certified registered nurse anesthetist, maintains that Respondent told her nothing about C.P.'s condition; instead, she went rapidly to the rest room in the lounge area. Bloom, left in the recovery room with the patient, then proceeded to hook up appropriate monitors and oxygen to the patient's endotracheal tube and began the process of monitoring C.P.'s vital signs. Bloom places the time of C.P.'s arrival time in the recovery room at approximately 11:05 a.m. The patient was not responsive to Bloom's spoken commands when brought to the recovery room. The patient appeared well oxygenated to Bloom; a judgement she made based on her observation of the color of C.P.'s lips and fingernails, since C.P. is a black female. Bloom rated C.P.'s circulation at twenty to fifty percent of preanesthetic pressure and determined the patient to be totally unconscious. Respondent returned to the recovery room at this time, told Bloom that she had done an "awake intubation" on the patient and that the tube should remain in place until Bloom determined that the patient was ready for it to be removed. Respondent then left the recovery room. As the result of blood tinged mucus filling the patient's endotracheal tube, Bloom removed the tube after thepatient registered breathing difficulties and attempts by Bloom to suction the mucus failed. She replaced that tube with a device known as an oral pharyngeal airway which goes in the patient's mouth and curves down the throat, holding the tongue forward. The device does not reach to the lungs. Shortly thereafter the patient began making glutteral noises and Bloom placed a venturi mask on the patient. The mask controlled the percentage of oxygen going to the patient, estimated by Bloom to be sixty to one hundred percent oxygen. The patient's breathing improved. Bloom completed replacement of the endotracheal tube with the airway device and mask shortly before Respondent again returned to the recovery room. Respondent, upset at Bloom's action in removing the endotracheal tube, proceeded to replace the oral airway device with a nasal tube. At 11:20 a.m., Bloom noted in her records that the patient's state of consciousness was unchanged. Later the patient made moaning sounds and was responsive to pain stimulation at approximately 12:20 p.m. Respondent concedes that C.P. suffered an hypoxic event at some point which resulted in damaged brain function. It is Respondent's position that such event occurred in the recovery room as the result of laryngospasm, occasioned by Bloom's removal of the endotracheal tube. Allen and Masters working in the operating room a short distance away testified that the sounds they heard emanating from the area of the recovery room were not the type of noise they associated with laryngospasm. Bloom, trained to recognize laryngospasm, testified that C.P. did not have sucha spasm. The expert testimony of David Cross, M.D., based on a study of arterial blood gases of C.P. following the surgery, establishes that the patient suffered an hypoxic episode too severe and too protracted to have been the result of a possible laryngospasm in the recovery room and that, in his expert opinion, she did not have a recovery room laryngospasm. Respondent's defense that C.P.'s survival of such a lengthy esophageal intubation in the operating room is an impossibility, is not persuasive. The opinion of Respondent's expert, Dr. Gilbert Stone, that no esophageal intubation occurred in the operating room is predicated on his belief that the tube was not changed during the surgery. Dr. Stone conceded that replacement of the tube during surgery at the time the dark blood was noticed with resultant improvement in the patient's condition permits a conclusion that esophageal intubation was the cause of the hypoxia. Testimony of Petitioner's experts, Dr. Cross and Dr. Kruse, are consistent in their conclusions that C.P. was esophageally intubated by Respondent, although they differ in their reasons for C.P.'s survival of the event. The opinion of these experts, coupled with the eye witness testimony of Allen and Masters, further support a finding of Respondent's esophageal intubation of the patient in the operating room and that she failed to recognize such intubation in a timely manner as a reasonable and prudent physician should have. The expert opinion testimony of Dr. Cross establishes that C.P. was intubated in her esophagus and survivedas a result of oxygen, going into her stomach under pressure, being forced back up her esophagus into the pharynx and then drawn by negative pressure into the lungs. This resulted in a effect similar to, but not as efficient as, the technique known as apneic oxygenation. The technique, once used to provide marginally adequate oxygen levels to maintain a patient's neurological and cardiac status, has fell into disfavor since patients suffered from respiratory acidosis due to the buildup of carbon dioxide in the lungs. Cross also pointed out that the heart can function for a much longer period of time without adequate oxygen than is possible for the brain. Cross's testimony provides an explanation for C.P.'s neurological damage without similar cardiac impairment. Cross also noted that the preoxygenation process which C.P. initially underwent after entering the operating room added to the time she was able to undergo oxygen deprivation before the onset of tissue damage. Respondent notes the discovery of a tumor in C.P.'s throat some months later as a possible contributor to the patient's hypoxic event during surgery. Another of Respondent's experts, Dr. Deane Briggs, an otolaryngologist specializing in diseases of the ears, nose and throat, treated C.P. in October of 1985, following the August, 1985 surgery. He discovered the existence of a sub-glottic tumor in the patient's throat. However, the existence of the tumor at the time of the initial surgery is not established. Testimony of anesthesiologist experts, including Respondent's own expert, Dr. Stone, do not support a finding that the tumor, if itexisted, had any effect during the operation. Further, Dr. Briggs' opinion that Respondent probably intubated the patient's right stem bronchus, as opposed to the esophagus, and that neurological damage therefore occurred in the recovery room is not credited in view of the conflict of this testimony with that of other witnesses and expert opinions. A finding that C.P.'s neurological impairment following surgery may have been exacerbated by a possible laryngospasm in the recovery room is relevant only with regard to mitigation of the severity of penalty to be imposed for Respondent's misconduct. Respondent's esophageal intubation of the patient in the operating room, and the resultant hypoxic event are established by clear and convincing evidence. The fact that C.P. suffered brain damage is undisputed by the parties. The proof clearly and convincingly establishes that the severe and protracted hypoxic episode sustained by the patient resulted not from a possible mild recovery room laryngospasm, but from Respondent's esophageal intubation of that patient in the operating room. It is concluded with respect to treatment of C.P., Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to keep medical records which justified her course of treatment of the patient, C.P. This finding is based upon the testimony of Dr. Cross that Respondent'smedical records did not justify her course of treatment, as well as the testimony of Respondent's expert, Dr. Stone. While testifying that he did not believe Respondent had intubated the patient's esophagus, Stone also acknowledged that Respondent's records would be inadequate if such had indeed occurred.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered for Respondent's violation of Section 458.331(1)(t), Florida Statutes, placing Respondent's license on probation for a period of three years upon terms and conditions to be determined by the Board of Medicine, including, but not limited to, a condition requiring Respondent's participation in appropriate continuing medical education courses; and imposing an administrative fine of $2,000. IT IS FURTHER RECOMMENDED that such Final Order impose a penalty for Respondent's violation of Section 458.331(1)(m), Florida Statutes, of an administrative fine of $500 and a letter of reprimand. DONE AND ENTERED this 28th day of August, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-28. Accepted. 29. Unnecessary to result. 30.-31. Accepted. 32.-34. Adopted by reference. 35.-61. Adopted in substance. 62. Unnecessary to result. 63.-68. Adopted in substance. 69.-87. Adopted by reference. Respondent's Proposed Findings. 1.-3. Rejected, not supported by the evidence. 4.-5. Rejected, not supported by the evidence, Further, proposed findings that records were adequate constitute legal conclusions. 6. Rejected, not supported by the evidence. COPIES FURNISHED: David G. Pius, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Sidney L. Matthew, Esq. Suite 100 135 South Monroe St. Tallahassee, FL 32302 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
Findings Of Fact At the commencement of formal hearing, Respondent moved ore tenus to dismiss upon grounds that no disputed issues of material fact existed. Upon representations of Petitioner's counsel that there remained issues of whether or not there had been selective application of the rules to Petitioner (TR 6-7 and 19), of whether or not the license restrictions imposed upon Petitioner duplicated education already completed by the Petitioner at Jackson Memorial Hospital, and a representation that the evidence to be adduced at formal hearing would include educational events up to the date of the de novo formal proceeding sufficient to entitle Petitioner to certification without any probationary period or restrictions (TR 10-12, 16 and 18), ruling was reserved on the motion to dismiss until the completion of Petitioner's case-in-chief. At the conclusion of Petitioner's case-in-chief, Respondent again renewed its motion to dismiss. The motion was denied without prejudice, pending review of the full application file and other documentary evidence admitted in Petitioner's case-in-chief. Respondent has raised the motion yet again in its post-hearing proposals and it is ruled upon in the following conclusions of law. By its January 21, 1987 Order, the Board of Medicine, Advisory Council for Respiratory Care granted Petitioner a license as a respiratory care practitioner subject to the following restrictions: ...the license shall be issued subject to probation upon the conditions: Applicant is not to work in any critical care area, including the emergency room, and, Applicant will not do ventilator care in the home. This probation shall be in force until Applicant has successfully completed an advanced care registry eligibility program with adequate supervision. Said program may be approved by the Chair of the Council. It is stipulated that Petitioner meets standard requirements for licensure. It is disputed as to whether she is entitled to an unlimited/unrestricted license absent the probationary educational requirements. Petitioner received several written and oral warnings relating to incidents of improper patient care while employed at Mount Sinai Medical Center, Miami, Florida, from 1979 to 1982 and prior to making application for her license in 1986. One significant incident involved Petitioner's supervising a student using a sidearm nebulizer and treatment in the Mount Sinai surgical intensive care unit. Petitioner failed to verify information given to her by the student in that she did not personally view the patient and left the room while the treatment was still in the patient. Another significant incident involved Petitioner leaving another sidearm nebulizer in line with a ventilator circuit on a patient. Petitioner admitted her error with regard to these incidents and admitted their inherent danger to patients. The Petitioner was terminated from employment at the Mount Sinai Medical Center on July 21, 1982, for negligence in performance of her duties. Petitioner began work at Jackson Memorial Hospital, Miami, on August 9, 1982. She has maintained continuous employment with Jackson Memorial Hospital up to the date of formal hearing. Until the January 21, 1987 Council Order, Petitioner also worked critical care areas of Jackson Memorial Hospital and did home ventilator therapy for a private company called "Allied." Since January 21, 1987, she has limited her work as required by the licensing order, and since its entry she has performed only duties involving floor care and treatments in the units. Petitioner testified at formal hearing that she successfully completed Respiratory Therapy Theory I and II at Miami Dade Community College subsequent to leaving Mount Sinai, as well as numerous other introductory education courses (TR 35- 36). This testimony is in part contrary to her testimony before the Advisory Council on November 18, 1986. By that prior testimony, she admitted she had not received any clinical course experience of any kind and did not do any ventilating at Jackson Memorial Hospital subsequent to her dismissal from Mount Sinai Medical Center and prior to the Council hearing on November 18, 1986. (Jt. Ex. 2 pp. 59-62) With one exception, all of Petitioner's formal training and clinical training as a respiratory technician for which documentation exists, shows that her training occurred prior to her firing from Mount Sinai in 1982. The one exception is a certificate dated March 16, 1985, showing that Petitioner was found to have fulfilled the educational requirements of the National Board of Respiratory Care, but there is no showing in the record of what these requirements might be or of when they were fulfilled. (Jt. Ex. 1) Petitioner admitted at formal hearing that she has completed no specific course of study and has not completed any advanced care registry eligibility program. The individual subjects she has claimed to have completed since her Mount Sinai experience do not appear to be either clinical or to offer hands- on experience. On periodic Jackson Memorial Hospital Employee Evaluations, Petitioner has received "low" ratings in the categories of "work habits" for the period 8/14/83 to 8/12/84; for "quantity of work" and "personal relations" for the period 8/15/84 to 8/11/85; and again for "work habits" for the period 8/11/85 to 8/10/86. She has "Satisfactory" or "High" ratings in other categories during each of these periods. No proof of arbitrary, capricious, or selective imposition of educational or probationary requirements was demonstrated.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board of Medicine enter a Final Order affirming its January 21, 1987 Order. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1412 The Petitioner's proposals were struck. Rulings upon the Respondent's proposed findings of fact (PFOF) are hereafter ruled upon pursuant to section 120.59(2), Florida Statutes: Respondent's PFOF: 1. Rejected as subordinate and unnecessary and as covered in FOF 1 and 2 and the Conclusions of Law. 2-3. Covered in FOF 3. Covered in FOF 5. Covered in FOF 7. 6-7. Modified in FOF 9-10 to conform to the greater weight of the evidence as a whole and to exclude irrelevant material. 8. Covered in FOF 11. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Gregory F. Esposito, Esquire 5440 North State Road 7 Suite 23 Fort Lauderdale, Florida 33319 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
