Findings Of Fact Respondent is, and has been at all times material hereto, licensed by the State of Florida as a Respiratory Therapist, non-critical care status, having bean issued license number N000008. On March 30, 1988, Respondent applied to Petitioner for licensure as a Respiratory Therapist, non-critical care status, under a special exemption for certification without examination. Respondent has not passed the licensing examination on any of the three occasions she has taken it. Respondent submitted the required application to the Board of Medicine accompanied by a copy of a graduate equivalency diploma (G.E.D.) #293361 issued in the name of Beverly Burke". On July 21, 1988, the Advisory Council on Regulatory Care approved Respondent's application for licensure as a Respiratory Therapist, non-critical care status. On August 18, 1988, Respondent requested that the Board of Medicine upgrade her license from non-critical care status to critical care status. A critical care status position usually pays a higher salary and requires more skill than a non-critical care status position. Respondent submitted an application, accompanied by G.E.D. #293361 and other supporting documentation. On September 23, 1988, the Florida Department of Education learned that G.E.D. #293361 was issued to Edwin G. Burke, Respondent's husband. Respondent has neither a high School diploma nor a G.E.D. The document Respondent submitted with her application was her husband's G.E.D. which Respondent had falsified to make it appear that she met the statutory criteria for licensure. Respondent has worked as a respiratory therapist since 1982. Since 1982, Respondent has, from time to time, attended Broward Community College on a part-time basis, in an attempt to combine an Associate of Arts degree with a G.E.D. As of the time of the hearing, Respondent had not achieved either degree, but she had resumed work toward her G.E.D. On February 20, 1989, the Board of Medicine denied Respondent's application for licensure as a Respiratory Therapist, critical care status. Thereafter, this Administrative Complaint, seeking to discipline the licensure as a Respiratory Therapist, non-critical care status, was filed. Respondent timely filed a request for a formal administrative hearing. There was no evidence that any complaints had been previously lodged against Respondent or that she had been previously disciplined by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Professional Regulation, Board of Medicine, which finds Respondent guilty of having violated Section 468.365(1)(a), Florida Statutes, which further finds that Respondent does not meet the statutory criteria for registration as a Respiratory Therapist, and which revokes the Respiratory Therapist registration of Beverly Burke. DONE AND ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3672 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact :n paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order, except that the date of the approval by the Advisory Council on Respiratory Care was July 21, 1988, not July 27, 1988. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material pari~ by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Susan Loehn, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Alan S. Glueck, Esquire 2331 North State Road #7 Suite 106 Fort Lauderdale, Florida 33313 Beverly Burke 6940 N.W. 6th Court Plantation, Florida 33317 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
Findings Of Fact Petitioner and Respondent operate two of the four medical equipment suppliers located on Fowler Avenue in Fort Myers. The other two companies are Fort Myers Surgical Company and American Medical Oxygen Supply Company. Petitioner received an erroneous statement from Summit Medical Supplies, Inc., containing two invoice numbers for which Petitioner had no record. When asked for a copy of these invoices, Summit Medical Supplies, Inc., provided Petitioner with copies of invoices made out to Respondent, both of which had been marked paid on the face of the invoices. These two invoices were addressed to Home Oxygen Services and Medical Equipment, Inc., 4536 Fowler Avenue, Fort Myers, Florida (Exhibit 1). Petitioner's address is 3559 Fowler Avenue and the erroneous statement addressed to Home Medical Supplies, Inc., was sent to this address. On one occasion Petitioner received a call from Smalley Transportation regarding delivery of hospital beds to Petitioner which, it was soon discovered, were addressed to Respondent. In his testimony Shawn Bayes referred to several incidents involving customers and several incidents involving businesses which had contacted his company regarding equipment belonging to Respondent. None of these incidents had been observed by the witness but had been told to him by other employees. Timely objection to this testimony was made. On one occasion a suction pump had been delivered to a patient who later requested Petitioner to pick up equipment. Upon arrival it was learned Respondent had inadvertently picked up Petitioner's pump with the other equipment provided by Respondent. The suction pump was returned to the premises from which it had been picked up by Respondent. Respondent acknowledged there has been some confusion by customers regarding whose equipment they were using but that confusion was not limited to Petitioner and Respondent but also involved the other medical supply companies. Once explained to a customer, the confusion did not recur. All of the equipment supplied by the parties is clearly identified by tags on the property containing the name and address of the supply company. All of the medical equipment suppliers with businesses in Fort Myers supply similar equipment to predominantly elderly patients, approximately 50 percent of which are covered by Medicare. These patients are referred to the supplier by doctors, hospitals, and home health agencies.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Petition of Home Medical Equipment Company be dismissed. DONE AND RECOMMENDED this 12th day of April, 1985, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985. COPIES FURNISHED: Shawn D. Bayes, President Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542 Vincent D. Sapp, Esquire Post Office Box J Fort Myers, Florida 33902 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
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 presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992. Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking her respiratory care practitioner license number TT 0006767. DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 30th day of January, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183 Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert B. Dell, P.A. 4801 South University Drive Fort Lauderdale, Florida 33328
The Issue The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.
Findings Of Fact Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 1st day of October, 1990.
The Issue Whether the Respondent violated Section 468.365(1)(p), (u), and (w), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice respiratory therapy.
Findings Of Fact Respondent, Dena Wadzinski (Respondent), was at all times material hereto licensed as a certified respiratory therapist in the State of Florida, having been issued license number TT 0005509. She has been licensed to practice as a respiratory therapist since November 1990. Respondent was employed as a respiratory therapist by University Community Hospital (UCH) as a respiratory therapist in November 1993, working three twelve (12) hour shifts per week. Respondent worked continuously at UCH until January 6, 1995, when she went on maternity leave for eight weeks. On March 3, 1995, Respondent returned to her position as respiratory therapist at UCH. Respondent reported to work at approximately 6:25 a.m., and proceeded to the conference room where respiratory therapists receive their work assignments. Steve Horne, supervisor of respiratory therapist at UCH, assigned Respondent to the progressive care unit at UCH designated 3 North. Respondent was scheduled to work a twelve hour shift, from 7:00 a.m. to 7:00 p.m. At the time Mr. Horne gave Respondent the assignment, he apologized for having to assign her to 3 North on her first day back from maternity leave. 3 North, sometimes referred to as the "hell floor," is a very busy unit. This progressive care unit has ventilator patients and those classified as DNR (do not resuscitate). While the patients on 3 North do not meet the criteria for admission to an intensive care unit, they are too ill to be on a regular floor. Due to their conditions, these patients often require more attention from the respiratory therapists than patients on regular floors. After receiving her floor assignment, Respondent remained in the conference room and waited for Lisa McClure, the respiratory therapist assigned to 3 North on the preceding shift. At UCH, the normal procedure was for a respiratory therapist completing a shift to meet with the respiratory therapist who was relieving her to give a report regarding the patients on the assigned floor. Typically, the meeting between the respiratory therapists would take place at the time one shift began and the other shift ended. In light of this, given the assigned shifts of Respondent and Ms. McClure, the meeting should have occurred around 7:00 a. m. on March 3, 1995. However, Ms. McClure did not arrive at the conference room to give Respondent the report until approximately 7:35 or 7:40 a. m. After receiving a brief generalized report from Ms. McClure, Respondent reported to 3 North. Although Respondent was excited about returning to work, she was anxious about her first day back on the job. As to her mental state, Respondent was "overwhelmed," felt pressured to complete all her assigned job responsibilities, and "just wasn't in sync." Except for the maternity leave, since becoming a respiratory therapist, Respondent had never been away from the job for such an extended period of time. Also, this was the first time Respondent had been away from her baby since he was released from the hospital. Upon arriving at 3 North, Respondent went to the nurse's station, where she picked up her first chart and read an order for Patient F.P. Respondent admitted that she did not read the entire chart, nor did she look at any other charts at the nurse's station. Respondent reviewed the physician's March 3, 1995, order for Patient F.P. The order, written by Dr. Ashok Modh, indicated that Patient F.P. was to be placed on a trach collar with 40 percent oxygen from 8:00 a.m. to 8:00 p.m., as tolerated by the patient. Patient F.P. was on an intermittent mechanical ventilator rate (IMV) of 6 and PS of 10 from 8:00 p.m. to 8:00 a.m., the evening before. The IMV indicates the amount of breaths a ventilator gives the patient and the PS indicates the patient's own breaths. The ventilator actually counts all the breaths a patient takes regardless of how those breaths are achieved. The order Respondent reviewed on March 3, 1995, is consistent with Patient F.P. having been off the ventilator on previous days. The ventilator order for Patient F.P. indicated that the patient's ventilator settings should be as follows: tidal volume of 700, respiratory rate of 6 breaths per minute, and an inspired oxygen concentration of 40 percent. After reviewing Dr. Modh's order and leaving the nurse's station, Respondent turned left instead of right, and entered the room of Patient L.A. rather than the room of Patient F.P. Respondent believed she was in Patient F.P.'s room. Patient L.A. was seriously ill upon re-admission to UCH on December 6, 1994. Patient L.A. had a history of an abdominal aortio aneurysm, chronic obstructive pulmonary disease, and possible congestive heart failure and cerebrovascular disease. Patient L.A. was expected to live only a few weeks to a few months. Due to the Patient L.A.'s condition and prognosis, at the family's request, the patient was in a DNR (do not resuscitate) status. Patient L.A. was ventilator dependent without prospect of weaning. During the entire time he was at UCH, except for the brief time periods when the hospital staff attempted to wean him, Patient L.A. was on a ventilator. All attempts to wean Patient L.A. were unsuccessful. On the morning of March 3, 1995, Patient L.A.'s condition prevented him from being able to breathe without the assistance of a ventilator. On March 3, 1995, the physician's orders for Patient L.A. included the following ventilator settings: tidal volume of 750, respiratory rate of 22 breaths, and an inspired oxygen concentration of 50 percent. Patient L.A. was one of the patients on 3 North whom Respondent was assigned to care for on March 3, 1995. This was the first time that the Respondent had cared for Patient L.A. When Respondent entered Patient L.A.'s room, Nurse Glade was in the room near the medicine cabinet located in the patient's room. The two engaged in small talk, including some conversation about Respondent's baby. Respondent and Nurse Glade did not engage in any formal discussion regarding Patient L.A. or his condition. Respondent looked at Patient L.A. (thinking he was F.P.) and introduced herself. Patient L.A. did not acknowledge Respondent's presence, but just looked around the room. Respondent indicated to Nurse Glade that she was going to begin weaning the patient, although it is unclear whether Nurse Glade heard Respondent. After the statement by Respondent, Nurse Glade indicated that she would get the patient something to relax him because "he gets this way". Nurse Glade was referring to Patient L.A.'s apparent restlessness. However, in her conversation with Respondent, Nurse Glade did not specify the medication she intended to administer to Patient L.A. On the morning of March 3, 1995, Nurse Glade administered a shot of morphine to Patient L.A. sometime prior to Respondent removing the patient from the ventilator. However, the Respondent neither observed Nurse Glade administering the medication to Patient L.A. nor was Respondent aware of the type of medication Nurse Glade intended to or actually administered to the patient. Respondent left the Patient L.A.'s room for less than a minute to obtain trach collar, tubing, and oxygen from the supply closet down the hall. Respondent returned to Patient L.A.'s room and spoke to him briefly. Because Respondent noticed no secretions, she did not suction the patient. Respondent listened to the patient's breath sounds. The breath sounds were wheezy, but this was not unusual in a patient with chronic pulmonary disease. Still believing she was treating Patient F.P., Respondent looked at the ventilator and noticed a rate of 22. Based upon the fact Respondent knew F.P. was on an IMV of 6 per Dr. Modh's order, she concluded that the Patient L.A. was breathing 18 breaths on his own and thus was doing well. Considering all these factors, Respondent had no reason to believe that the Patient L. A. was not a proper candidate to wean from the ventilator. After assessing the patient, Respondent removed Patient L.A. from the ventilator and placed the trach collar on his neck. Respondent then hooked the tubing on the collar and then to the oxygen from the wall which was placed on 40 percent per Dr. Modh's order. Respondent observed the patient for approximately one minute after the ventilator was removed. Respondent then asked Nurse Glade who was in the room, whether she would be in the room for a few minutes, because Respondent wanted to go across the hall to begin work on another patient. After Nurse Glade indicated that she would be in the room, Respondent proceeded to the patient's room across the hall. Respondent did not anticipate a problem with leaving the patient because she believed that he had been previously weaned from the ventilator. Assuming that Respondent was carrying out the order on the correct patient, there is no specific time for which a respiratory therapist must remain with a patient after performing a procedure. About five minutes after leaving Patient L.A.'s room, Respondent heard someone call for respiratory. Having determined that the call was coming from Patient L.A.'s room, Respondent immediately went to the room where she found several nurses, one of whom was ambuing him. Respondent took over the ambuing from the nurse and proceeded to give Patient L.A. 100 percent oxygen. Dr. Modh, Patient L.A's pulmonary consultant, later arrived to assess the situation. At that time Respondent told Dr. Modh that she was weaning the patient, and "He didn't handle it". Dr. Modh responded, "Doing treatment?" Respondent then repeated, "No, I was weaning him". It was only at this point that Respondent learned that she had been treating Patient L.A., and not Patient F.P. When Dr. Modh entered Patient L.A.'s room, the patient was in agional cardiac rhythm, a cardiac rhythm which indicates the heart is dying. Dr. Modh ordered Epinephrine for Patient L.A., but when that was not successful, further efforts to resuscitate the patient were discontinued due to Patient L.A.'s DNR status. Patient L.A. was pronounced dead at 8:32 a.m. on March 3, 1995. Respondent went to speak with her supervisor and the risk manager, who instructed her to fill out an incident report. Several attempts were made by Respondent to complete an incident report, but her initial incident forms were too lengthy. Respondent was instructed to be short and to the point. Respondent was also directed to complete her charting before she left for the day. Respiratory therapists at UCH must use a computer to do their charting. Respondent sought assistance from Mr. Suggs, of UCH's Risk Management office. In order for a respiratory therapist to chart patient information, a therapy procedure must first be coded into the computer. Because Patient L.A. was to have received an aerosol treatment, Respondent entered an aerosol treatment for Patient L.A. The comment section of the form is limited to three lines. Respondent did not use all the available space, but believed that what she wrote adequately described the treatment she provided Patient L.A. The entry made by Respondent read as follows: "PLACED ON TRACH COLLAR AT 40 percent PT DID NOT TOL MORE THAN 5 MIN, PT AMBUED DR, NOTIFIED" At the time Respondent completed the incident report and charted the information on Patient L.A., she was extremely upset. Prior to March 3, 1995, Respondent had never been involved in a situation that required an incident report. Petitioner contends that the medical record prepared by Respondent concerning the events that transpired following the removal of Patient L.A. from the ventilator were inadequate. Specifically, Petitioner contends that Respondent should have included whether Respondent was in the room when Patient L.A. began to experience respiratory distress and a more detailed description of the patient's condition when Respondent was in the room. Further, it was asserted that Respondent's medical records do not indicate why the Respondent removed Patient L.A. from the ventilator. On March 3, 1995, UCH had established protocols for mechanical ventilation which included criteria for weaning a patient from mechanical ventilation. The document entitled "Mechanical Ventilation (General Consideration)" provide in part the following: Among the criteria for weaning from mechanical ventilation are: Therapist confirms order with RN before weaning process. Therapist checks room number and patient's wrists band before weaning. The patient's pathophysiological (clinical) condition which was responsible for his being placed on the ventilator has either resolved or is resolving. The patient while on the ventilator should have an inspired oxygen concentration of less than 40 percent (with good blood gases), should have an inspiratory effect greater than -20 centimeters water pressure, and lungs should be relatively clear. The protocols are "general guidelines and are not meant to be rigid and apply to every case." Some of the guidelines listed in the protocols related to weaning are variable and are not used as strict criteria for electing to start or discontinue mechanical ventilation of a patient. For example, the protocol calls for a patient to have an inspired oxygen concentration of not less that 40 percent. However, an oxygen concentration of 50 would not necessarily disqualify a patient from being removed from a ventilator. There are three criterion which must be followed when disconnecting a patient from a ventilator. The respiratory therapist must look at the order in the chart, properly identify the patient, and assess the patient's status. Prior to removing Patient L.A. from the ventilator, Respondent reviewed the order for Patient F.P. However, Respondent admitted that she did not check the patient's room number and bracelet as required by the UCH protocol for weaning or removing a patient from the ventilator. Respondent assumed that she was in the room of Patient F.P., when she was actually in the room of Patient L.A. She observed no significant secretions which warranted suctioning, and Patient L.A. did not appear to be in any breathing distress. Respondent listened to Patient L.A.'s breath sounds which seemed consistent with the documented lung disease. Based upon Respondent's assessment and observations, Patient L.A. appeared to be a standard ventilator patient and a suitable candidate for weaning. In the instant case, given her observations and assessment, Respondent had no reason to question the physician's orders in regard to moving the patient from the ventilator. Therefore, Respondent removed Patient L.A. from the ventilator. Respondent did not follow established hospital protocol when she removed Patient L.A. from the ventilator. Specifically, Respondent failed to check the room number and the patient's wristband before weaning him from the ventilator. Respondent has not worked as a respiratory therapist since March 3, 1995. Although, UCH has never officially terminated Respondent, she has not been allowed to return to work. As a result, Respondent and her family have suffered financial hardship. Before this case, Respondent had practiced respiratory therapy for over four years with no history of any disciplinary action being taken against her license. Furthermore, Respondent has never been disciplined or admonished by a hospital. Respondent enjoys a reputation as an excellent respiratory therapist among health care professionals, including physicians, administrators, and other respiratory therapists. As a licensed respiratory therapist, Respondent was an exemplary employee with excellent skills and knowledge of respiratory care services.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered suspending the license of Respondent, Dena Wadzinski, for a period of eighteen (18) months, to be followed by a one year period of probation, under such terms and conditions as prescribed by the Board of Medicine. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of December, 1995. CARLOYN S. HOLIFIELD 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 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3555 The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. - 7. Subordinate or unnecessary to result reached. 8. - 11. Accepted and incorporated. Rejected as not supported by clear and convincing evidence. - 18. Subordinate to result reached. 19. - 27. Accepted and incorporated to extent subordinate and unnecessary. Rejected as not supported by clear and convincing evidence. Rejected as not supported by competent and substantial evidence. - 31. Accepted and incorporated. 32. - 33. Accepted as to Respondent's failure to check room number and patient wristband; remainder rejected as not supported by competent and substantial evidence or clear and convincing evidence. 34. - 38. Accepted and incorporated. Accepted. Accepted as to statement that Respondent required to listen to breath sounds; remainder rejected as not supported by clear and convincing evidence. Rejected as not supported by competent and substantial evidence. Rejected as not supported by competent and substantial evidence or clear and convincing evidence. Accepted. Respondent's Proposed Findings of Fact. 1. - 20. Accepted and incorporated to the extent not subordinate or necessary. 21. - 23. Accepted and incorporated. 24. Subordinate to the result reached. 25-29. Accepted and incorporated. 30. - 31. Accepted. 32. - 33. Accepted and incorporated. 34. Subordinate to result reached. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman, Hunter & Malloy Suite 1950 201 East Kennedy Boulevard Tampa, Florida 33602 Monica Felder, Esquire Kevin W. Crews, Esquire Agency for Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770
Findings Of Fact Upon consideration of the oral and documented evidence adduced at the hearing, the following relevant facts are found: In General Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0016786. On February 27, 1984, Florida Medical license of the Respondent was suspended for a period of one year in Department of Professional Regulation vs. Teotimo D. Bonzon, M.D., Case Number 82-799. At all times material to this proceeding, Respondent was the primary care physician for Mary T. Upton, a patient with a history of bronchial asthma. Valium On January 11, 1985 the patient, Mary T. Upton, developed onset of acute respiratory distress and was seen by the Respondent, first in his office and then as an outpatient. On the second occasion, Respondent gave the patient valium, a Schedule IV Controlled Substance. On January 12, 1985, Upton was admitted to Methodist Hospital of Jacksonville, Florida, with a complaint of Acute Asthmatic Bronchitis. Bronchial Asthma is a condition that affects the respiratory drive. Valium relaxes the muscles and sedates the central nervous system and respiratory drive of a person and, as such, is not a drug to be administered in an outpatient setting under the circumstances that Respondent administered valium to Upton. Theo-Dur After admission and initial treatment, the patient continued to experience respiratory distress, and the Respondent was notified. Respondent ordered the drug Theo-Dur to be given orally. This was after Upton was given Theophylline, but before she was stabilized on Theophylline. Theo-Dur is a long sustained action form of Theophylline, which takes twelve hours to have an appreciable affect and, as such, is used primarily for maintenance and should not be used in acute situations such as Upton's until the patient is stabilized. Theophylline At the time Upton was admitted to the hospital on January 12, 1985 and Respondent started her on Aminophylline (also called Theophylline I.V.), Respondent was aware of Upton's previous use of medication containing Theophylline for her asthma condition and that she had a prescription to obtain such medication. Although Respondent was aware of Upton's previous use of medication containing Theophylline, Respondent did not inquire of Upton, or in any other manner determine, if she had ingested any form of Theophylline before administering the Aminophylline I.V. upon admission to the hospital on January 12, 1985. Upton had taken Theophylline before the Theophylline I.V. was administered. It is the recognized standard of care for a physician to obtain the level of Theophylline in the patient's body before administering Theophylline and, to periodically check the level of Theophylline to assure the best therapeutic level is achieved. Upton was on the hospital floor at approximately 11:20 a.m. on January 12, 1985 and the first time a physician ordered the Theophylline level checked was between 4:00 p.m. and 5:00 p.m. on January 12, 1985 after Respondent consulted with Dr. Libao. Before the Theophylline level was checked, Respondent had already administered Theo-Dur. Toxicity of Theophylline occurs when the content of the blood exceeds 20 milligrams per 100cc and any level over the 20 milligrams per 100cc may cause the patient to have gastrointestinal side affects such as nausea, vomiting and nervousness which may be life threatening. Respondent's failure to monitor the Theophylline level resulted in the patient receiving a toxic level of 24 milligrams per 100cc of Theophylline; however, there was no evidence that Upton suffered any side affects. D. Thoracostomy On January 17, 1985, routine chest x-rays confirmed a pneumothorax in Upton's left lung which was reported to the Respondent by the radiologist, Dr. Victor Saenz, by telephone between 10:00 a.m. and 11:00 a.m. on January 17, 1985. Without reviewing the x-rays, Respondent proceeded to treat the left pneumothorax with a chest tub (or Thoracostomy) in Upton's right lung. There was sufficient time to review the x-rays since the Thoracostomy was not performed until between 2:00 p.m. and 3:00 p.m. on January 17, 1985. Respondent did not order follow-up x-rays the day of the surgery to determine the effectiveness of the surgery. It is accepted medical practice for the physician, particularly a surgeon who performs an invasive procedure such as a thoracostomy, to order x- rays immediately following the surgery to make sure the procedure is working By placing the chest tub in the wrong side of the lung, Respondent created a situation wherein another pneumothorax might occur; however, by removing the chest tub from the right lung and placing it in the left lung alleviated this possibility. Respondent failed to realize that the chest tub had been placed in the wrong side of the lung (the right side) until the morning of January 18, 1985 when he was advised by the nurse that Upton had a pneumothorax on the left side rather than the right side where the chest tub had been placed by Respondent. Respondent's error was discovered as a result of routine x-rays performed by Dr. Walkett at 7:45 a.m. on January 18, 1985, the day following surgery. These follow-up x-rays also revealed Subcutaneous Emphysema throughout Upton's chest. Placing the chest tub in the right lung will not re-expand the left lung. Upon being informed of his error, Respondent proceeded to the hospital and removed the chest tub from Upton's right lung and placed it in her left lung. As a result of Respondent's error, Upton's heart beat increased around 3:00 a.m. on January 18, 1985 causing cardiac distress. Allergies At the time of the patient's admission it was noted that she was allergic to iodine. However, Respondent having treated Upton for some time prior to this admission, had knowledge that she was not allergic to iodine. Prior to the Thoracostomy and Tracheostomy, Respondent used Betadine scrub on Upton. Betadine contains iodine. Other solutions are readily available at Methodist Hospital that are not iodine-based. Tracheostomy On January 17, 1985 at or about the same time he performed the Thoracostomy, the Respondent performed a surgical procedure known as a Tracheostomy on Upton. Following the Tracheostomy, performed by the Respondent, the patient's condition did not improve and she continued to experience complications, including Subcutaneous Emphysema. Subcutaneous Emphysema occurs when air pockets form under the patient's fat tissue layer which cause swelling and can compromise the patient. On January 18, 1985, the Respondent's temporary admitting and consultation privileges at Methodist Hospital were suspended in a letter from Dr. Wallace Walkett, the president of the Medical and Dental Staff. The treatment of Upton was turned over to other physicians. Dr. Frederick Vontz, a Board Certified Cardiovascular and Thoracic Surgeon was called in by Dr. Walklett to repair the problems with Upton's trachea. When Dr. Vontz first saw Upton she was in moderate to severe distress and her body was swollen from the Subcutaneous Emphysema. On January 26, 1985, Dr. Vontz performed a Bronchoscopy on Upton that showed granulation tissue, which is scar tissue that may be an obstacle to breathing. The cause of this granulation tissue was the tracheostomy procedure performed by Respondent. Due to Upton's difficulty in breathing and the continuing Subcutaneous Emphysema, she was taken to the operating room on January 31, 1985. In the operating room, Dr. Vontz discovered a tear in the trachea that extended to six and one-half centimeters above the carina. Dr. Vontz also discovered that the air causing the Subcutaneous Emphysema was escaping from a false channel in the trachea. The damage to the posterior wall of the patient's trachea was caused by the improper tracheostomy procedure performed by Respondent on January 17, 1985. Upton died at 12:00 noon on March 6, 1985 and, although there is evidence that the tear in Upton's trachea may have contributed to Upton's death, there is insufficient evidence to show that it was clearly the sole cause of Upton's death. The record is clear that the level of care, skill and treatment provided Upton by the Respondent, fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses, and Rule 21M- 20.001(2), Florida Administrative Code, it is, therefore RECOMMENDED that the Board enter a Final Order suspending the Respondent, Teotimo D. Bonzon's license to practice medicine in the state of Florida for a period of two (2) years with condition for reinstatement determined by the Board as it deems appropriate. RESPECTFULLY SUBMITTED and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3022 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner In General 1.-4. Adopted in Findings of Fact 1-4. Valium 1.-4. Adopted in Findings of Fact 5, 8, 7 and 6, respectively. Theo-Dur 1.-2. Adopted in Findings of Fact 9 and 10. Theophylline 1.-2. Adopted in Findings of Fact 11 and 13, respectively. 3.-4. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Findings of Fact 12 and 16. 7.-8. Adopted in Findings of Fact 12 and 17, respectively. Thoracostomy 1.-4. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. 7.-8. Adopted in Finding of Fact 19. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. 15.-l6. Adopted in Finding of Fact 27. 17. Adopted in Finding of Fact 25. Allergies 1.-2. Adopted in Findings of Fact 28 and 29. 3. Rejected as not being material or relevant. Tracheostomy 1.-9. Adopted in Findings of Fact 31-39 Unnecessary in reaching a conclusion in this case. Adopted in Finding of Fact 40. 12.-13. Subordinate to facts actually found in the Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent A. General 1.-3. Adopted in Findings of Fact 2, 1 and 4, respectively. B. The Use of Betadine 1. Adopted in Finding of Fact 28, but clarified. Theophylline Adopted in Finding of Fact 9, but clarified. Adopted in Finding of Fact 13 that Respondent had ordered Theophylline intravenously before checking the Theophylline level in the patient. Theo-Dur Rejected as not supported by substantial competent evidence in the record. Valium Rejected as not supported by substantial competent evidence in the record. Thoracostomy Adopted in part in Findings of Fact 18-27, otherwise rejected. Tracheostomy Adopted in Finding of Fact 31, but modified. Adopted in Finding of Fact 34. Adopted in Findings of Fact 24, 32 and 33, but modified. Adopted in Finding of Fact 36. The first sentence and the first phrase of the second sentence are adopted in Findings of Fact 38 and 39. The balance is rejected as being a restatement of testimony rather than a finding of fact. However, even if the last sentence was stated as a finding of fact, it would be rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: MARK A. SIERON, ESQUIRE POST OFFICE BOX 855 ORANGE PARK, FLORIDA 32067 JOHN R. WEED, ESQUIRE 605 SOUTH JEFFERSON STREET PERRY, FLORIDA 32347 STEPHANIE A. DANIEL, ESQUIRE CHIEF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 =================================================================
