The Issue Whether Harold W. Barney, deceased, was "killed in the line of duty" as that term is used in Chapter 121, Florida Statutes (1975). Petitioner contends: That chief Harold Barney, deceased, was killed in line of duty because the congestive heart failure from which he died was caused by a pulmonary thromboembolus, which was caused by an on-the-job injury, or by the strenuous work that he had to do, in terms of mental stress. That therefore, the widow and Petitioner, Mrs. Barney, is entitled to receive the widow's benefit provided by Section 121.019(7)(c)1., Florida Statutes (1975). That the presumption of Section 185.34, Florida Statutes, permits the Respondent to assume that the death was in line of duty or that he was killed in-line-of duty if it could be shown that he died of heart disease, hypertension or hardening of the arteries. Respondent contends: That there was no nexus or medical connection between Chief Barney's employment with the Dade County Department of Public Safety and the incident which caused his death. Therefore, Petitioner is not entitled to the benefits of a widow of one killed in line of duty. That the presumption contained in Section 185.34, Florida Statutes, is inapplicable.
Findings Of Fact Depositions of Robert J. Myerburg, M.D., Eric Lian, M.D., and E. Wilson Purdy have been considered in this order. The portions of the depositions on matters that are not in evidence are not considered in this order. Cloyice B. Barney, the Petitioner, is the surviving spouse of Harold W. Barney, a deceased member of the Florida Retirement System under Chapter 121, Florida Statutes, who was employed by the Dade County Public Safety Department at the time of death, on June 3, 1975. Petitioner timely filed her petition for administrative hearing upon denial by the agency, the Division of Retirement, of her request of payment pursuant to the in-line-of-duty death benefits provision, Section 121.019(7)(c)1., Florida Statutes (1975). The decedent, Harold Barney, was involved in an automobile accident on October 4, 1972, at approximately 6:15 P.M. He was driving a county car which suffered damages estimated at One Hundred Fifty Dollars ($150.00). There is no substantial evidence that Mr. Barney was injured in this accident. He did not mention any injury to his family, his employer or to his personal physician. His son testified that he did not notice any physical change in his father immediately after the accident, but state that after a period of time he began to limp off and on for a couple of days and then maybe months later he's start to limp again. Upon questioning, the deceased would respond he was tired but did not attribute the limp to any accident. Dr. Harvey L. Jorgenson first saw the deceased on October 3, 1974. Chief Barney did not relate a history of any type of injury to Dr. Jorgenson, but Dr. Jorgenson testified that his walk "was a little bit different. . . it wasn't exactly a limp." Two or three weeks before his death Mr. Barney awoke feeling extremely tired. He continued to follow his normal work schedule until May 30, 1975, when he left work to see his personal physician who admitted him to the hospital. He died in the hospital three days later, on June 3, 1975. Dr. Joseph H. Davis, Chief Medical Examiner for Dade County, Florida, performed the autopsy at the request of the family, on June 4, 1975. When asked his opinion of the cause of death, he stated, In my opinion, the cause of death was congestive heart failure due to pulmonary thromboemboli. That means blood clots which break loose within the veins of the body and are carried through the venous system to the lungs to lodge in the lungs, due to bland plebothrombosis of lower extremities -- phlebo meaning vein, thrombosis, clots, lower extremities meaning from the groin region down, somewhere in that area, having origin in that area. And by bland, I mean that there was no evidence of an active inflammatory condition, in which case the diagnosis would have been thrombophlebitis, meaning inflammation of veins. They had the shape and the configuration of origin from lower extremity as opposed to, say, upper extremity or pelvis. Dr. David stated that he found evidence of the following diseases: (1) moderately enlarged heart of "the type of weight increase [of the heart] that would be seen with somebody with hypertension," (2) a small tumor in the center of one of the adrenal glands called a pheochromocytoma, and (3) both kidneys were enlarged with cysts, polycystic kidneys associated with hypertension. He found no evidence of prior injury or arterial disease. He was puzzled as to how the thromboemboli was formed. The dissection of the deceased lower extremities was confined only to the area immediately above the knee joint, the back of the knee where there is a major collection of veins, the large popliteal vein is formed; and, also, my dissection continued from the back of the knee, the popliteal area, down to about midway on the calf. I did not go into the ankles nor did I carry my dissection of the femoral and afemoral veins up through the thigh. In reply to the query, "Did you find any evidence yourself of prior trauma to the lower extremities?" he stated, No. The extremities appeared symmetrical and normal in appearance. There were no obvious, significant scars, swelling, discolorations; and, in the history, my inquiry of Dr. Jorgenson revealed no history of trauma. In answer to the question, "Would the fact that this accident occurred in 1972 rule out the possibility that the blood clots were formed from a trauma that occurred in 1972?" Dr. Davis replied, It would rule it out in the sense that, in one mechanism -- that is, a mechanism inflammatory reaction -- that type of mechanism, I think, would be pretty-well ruled out because, had that been the case, I would expect, despite an individual being stoic, episodes of swelling of the extremities and incapacitation and discolorations of the skin from poor circulation and so forth. The other type of tie, where there can be a tie-in, is where the original episode was severe enough to result in thrombi, distortion of the veins, healing with scarring and partial interference with blood flow through the veins so that, instead of a normal smooth-walled flexible tube with valves placed at regular intervals, there are valves that would have been distorted by thrombus, obliterating that area of the vein, and then the valve is no longer competent and the walls are narrowed in one area, but not in other areas. And, if that situation occurs, then the stage is set for the subsequent formation of thrombi at some indetierminant time in the future; and that's the only way -- If there were trauma in 1972 and if, over a period of time, the apparent symptoms of the trauma disappeared and everything was quiescent and then this occurred, if there is a link it would have to be on the basis of distortion of the veins left over from the previous trauma and, at this particular time, the interference with blood flow was sufficient to produce some additional clots in this area that was set up for it. Dr. Davis testified that the limping if it occurred subsequent to the accident and that if there was no prior diagnosis of arthritis or something, then, following a trauma, showed residual signs of discomfort, incapacitation, to wit: limping, then that would set the stage for consideration of the original trauma as possibly playing a role in the subsequent events which led to this death. Dr. Davis did not dissect the legs stating, it's not my custom to dissect lower extremeties due to the funeral customs of this country. So, if I encounter a person with a pulmonary embolus and where there is a perfectly logical explanation based on circumstances -- a person, say, with congestive heart failure, cancer, et cetera, severe disease process, he's been confined to bed -- I usually don't dissect the legs. Dr. Davis stated that the emboli that he found in the lungs were in various stages of healing and there "was some where the margin of the clot was already being incorporated into the wall of the pulmonary artery by scar tissue." He stated, "It wasn't something that had impressed me as having been there much longer" than perhaps two weeks or so. Dr. Davis was asked the question, "If he had suffered an injury to such an extent that it caused him recurrent limping and we will assume further that each time there was a flare-up or some of the time there was a flare-up if there would be clot formed, would that, be a reasonable possibility that that could happen?" Dr. Davis replied, "It's a possibility, yes, but" and in answer to the question, "Can you say on that evidence, [as to his limping] within a reasonable degree of medical probability, that the accident was the cause of the emboli?" Dr. Davis replied, "No, I cannot." Dr. Harvey L. Jorgenson first saw Mr. Barney on October 3, 1974, and found that Mr. Barney had had a kidney stone removed in 1971 and that he had repeated attacks of malarial fever after World War II but none after 1971. He found that he weighed 204 pounds where his normal weight should have been 185 and therefore, was about 20 pounds overweight. His blood was normal except his uric acid was 8.5 whereas the upper limit is 8 in the normal range. His blood cholesterol was 380 but should have been not higher than 300. His blood pressure was 140 over 100 and should have been not more than 90. It was suggested that he diet and take a medication prescribed for his blood pressure. Dr. Jorgenson saw him on the 11th of April, 1975, and suggested that he reduce a little more in weight and continue to take medicine for his blood pressure, which had improved. He was told to report to the doctor if anything changed. The next time Dr. Jorgenson saw Mr. Barney was the 30th of May, 1975, at which time he was very ill and was sent to the hospital. Dr. Jorgenson stated that there were many veins in the body that are the size and shape of the leg veins and stated that it was an enigma to him as to the cite of the emboli. Dr. Eric Lian stated, The most frequent site for venous thrombosis is in the popliteal -- what I mean, in the posteria vein, in the posteria area, the calf vein, the veins of the calf." When asked, "Is there any connection between hypertension and increased coagulability?" he said, It depends on the causes of hypertension and its consequences. If a patient has essential hypertension and then develops a congestive heart failure, certainly suggest increased chance of thromboembolism. [Question:] Is that what happened in this case? This patient, I think one can't say with certainty. He has a history. It's possible, but I don't think one can say it with certainty. And I will say most of the causes of thromboembolism, even young, healthy people, you cannot find any cause at all, nor any concurrent theory on this, you can't find." He also stated: [Question:] "Can you state, categorically that that stress was not linked to his death? I cannot say it's a cause of death. That's all I can say. Okay? Stress, itself, it cannot be a cause of death -- mental stress-- unless you have physical abnormality to begin with." Dr. Robert J. Myerburg stated that the shape of the emboli was from the vein rather than from the heart but that he did not know where the emboli came from. He stated, "I would suspect that the veins of the legs being most likely in an obese individual." Dr. Myerburg in answer to the question whether it is impossible for emotional stress to cause the venous thrombi to occur stated, "Well, the present state of knowledge knows of no relationship between emotional stress and the formation of venous thrombi." Dr. James R. Jorgenson, an assistant county attorney, stated that there were two major events occurring in addition to the major event of administering a large metropolitan police agency that was under investigation in the two or three week period before Mr. Barney died. That the deceased held a very responsible position and in addition was pursuing a college degree and was president-elect of the downtown Kawanis Club. Chief E. Wilson Purdy, Director of Public Safety and Sheriff of Dade County, testified that the deceased was an extremely conscientious employee and his main assistant. His duties were stressful and complex and he also used his time to pursue his education and civic involvement which was encouraged by his employer. The Hearing Officer finds: There was a possibility that the deceased, Mr. Barney, suffered bodily injury in the accident in which he drove his automobile into a car rail and sustained One Hundred Fifty Dollars ($150.00) damage to the vehicle. There is a possibility he injured his lower extremities. The fact of an injury was not established. There is a possibility that an injury caused the blood clot or embolism which ultimately reached the heart and caused the death of Mr. Barney. There is a possibility said injury was the same injury which might have been sustained on October 4. The fact that an injury caused the clot was not established. Mr. Barney lived a very stressful active life which included a difficult job, a hard course of educational pursuit and a position of leadership in the community particularly as an officer in the Dade County Kawanis Club. There has been no evidence produced to show stress caused the death of the deceased although some feel it is a factor in developing coronary artery disease, heart attacks and sudden death. The fact that job stress caused the death was not established. The proposed recommended orders together with the briefs of the parties have been carefully considered in the rendition of this order as has the depositions of the two doctors and the Director of Public Safety and Sheriff of Dade County, Florida, and the testimony adduced at the public hearing.
Recommendation Deny the request for payment under Section 121.091(7)(c)1., Florida Statutes (1975). DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of October, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1977. COPIES FURNISHED: Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Brian S. Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on June 24, 2001.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 0071241. At the time of Patient M. S.’s treatment, Respondent practiced orthopedic medicine in Florida. Respondent is currently employed as an orthopedic surgeon in Pennsylvania and as an assistant professor at the Medical Center of Penn State University. He no longer practices medicine in Florida. On February 11, 1998, Patient M. S., a 41-year-old male, was involved in a motor vehicle accident. He was transported by ambulance to Lee Memorial Hospital in Fort Myers, where he was evaluated by the emergency room physician. Respondent was consulted as the orthopedist on call for the emergency room that evening. When Respondent arrived at the emergency room, Patient M. S. was lying on a stretcher with his lower left leg in provisional traction as applied by the emergency medical technicians at the scene of the accident. Patient M. S. spoke only Spanish, so Respondent had to rely on an interpreter to communicate with him. Respondent observed that the left lower leg was shortened and completely externally rotated, consistent with a comminuted distal femur fracture. A "comminuted" fracture is a fracture in which there are multiple breaks in the bone, with several fragments. Respondent testified that upon touch, Patient M. S.'s leg was like "a bag of marbles." The patient’s right leg was not fractured but had a six-centimeter deep laceration over the shin that went down to the bone. There was a less than one-centimeter superficial wound over the left distal, anterior thigh, caused by a spike of bone fragment that had pierced the skin from within. This wound was leaking bloody, fatty material. Bones contain adipose, or fatty, tissue. A fracture of the bone can result in communication of that fatty tissue with the open wound, meaning there is direct contact of the fracture site to the outside of the body. X-rays confirmed Respondent's observation of a comminuted distal femur fracture. Respondent diagnosed Patient M. S. with a large wound to the right leg and "left complex intra-articular femur fracture, grade I open." A "grade I" open fracture, according to the Gustilo and Anderson system for grading open fractures, is a relatively clean wound with a skin fracture of less than one centimeter (cm). Respondent described the femur fracture as one of the worst he had ever seen, with multiple bone fragments and a considerable degree of trauma to the muscle surrounding the fracture. Respondent and both expert witnesses agreed that a fracture of this nature is highly susceptible to infection. Respondent irrigated the right lower leg wound with a Betadine and sterile saline solution, then debrided and closed the wound in the emergency room. "Betadine" is a trade name for povidone-iodine, a topical antiseptic microbicide. Intravenous antibiotics were administered to prevent infection of this deep wound. Respondent then treated the fracture in Patient M. S.’s left lower leg by taking it out of the temporary traction applied by the EMTs, placing a skeletal traction pin in the proximal tibia and transferring the patient to a hospital bed, where he was placed in balanced skeletal traction. As to the small wound on the left leg, Respondent's contemporaneous notes indicate only that it was dressed with Betadine-soaked gauze. The discharge summary for Patient M. S. states that the left leg wound was "irrigated and dressed." Respondent testified that he cleaned and dressed the wound, but did not irrigate it on February 11. Respondent's testimony on this point is credited. The complexity of the fracture to Patient M. S.’s left lower leg and the hospital’s operating room schedule required that the surgery be done on February 14, 1998. Patient M. S. remained in traction in the hospital during this pre-operative period. On February 14, 1998, Respondent conducted orthopedic reconstructive surgery to repair the complex fracture of Patient M. S.’s left lower leg. Respondent attached medial and lateral plates and screws and performed a bone graft. The surgery lasted approximately eight hours. At the conclusion of the surgery, the incisions were dressed and Patient M. S.’s left leg was wrapped in a bulky sterile dressing. Deep drains were placed in the knee and thigh during wound closure to prevent the formation of a deep hematoma, which can be a medium for infection. The nurse's assessment for February 16, 1998, notes a small amount of bloody drainage from the auto collection drainage device. Patient M. S. was running a temperature of 100.1ºF. The nurse's assessment for February 17, 1998, notes a large amount of bloody drainage from the auto collection device on two separate occasions. Subsequently, the assessment notes a "slight odor" from the dressing on Patient M. S.'s left leg surgical incision site. On February 18, 1998, Patient M. S. had a temperature of 102ºF, with an elevated white blood cell count. Respondent evaluated Patient M. S. and observed that the dressing on the left leg was "damp/green tinged" and had a "foul odor of Pseudomonas." Respondent lowered the dressing and found it to be "saturated and green." Respondent concluded that the dressing had been colonized from without by Pseudomonas bacteria, and ordered intravenous tobramycin as a precaution to prevent the bacteria from colonizing to the wound. On both February 17 and 18, there was serosanguineous drainage from the surgical incision on Patient M. S.'s left leg. On February 19, 1998, Patient M. S. ran a temperature of 102.1ºF. Respondent discharged Patient M. S. on February 20, 1998. At that time the patient fulfilled all appropriate discharge criteria. His fever had subsided to a normal temperature and his hemoglobin was stable. Patient M. S. was given discharge instructions by Respondent in writing as well as orally in Spanish. Respondent prescribed the oral antibiotics Keflex and Cipro for two weeks as a further precaution against infection. Patient M. S. was scheduled for a follow-up visit with Respondent on March 4, 1998. Patient M. S. was instructed to call Respondent if he experienced increased pain, numbness or tingling, a fever of 101ºF or higher, tenderness or pain in his calves, or excessive swelling, redness, or drainage. On or about February 26, 1998, Patient M. S. presented to St. Joseph’s Hospital in Tampa with apparent pain plus pus drainage from the surgical incision site on his left leg. He was diagnosed with methicillin resistant Staphylococcus aureus, Enterobacter, and Pseudomonas in his left leg. On or about March 2, 1998, Patient M. S. underwent an above the knee amputation of his left leg due to complications from infection in the leg. Subsequent to discharging Patient M. S. from Lee Memorial Hospital on February 20, 1998, Respondent received no notice of further problems with Patient M. S.’s leg until receiving notice of this action against him. Patient M. S. did not contact Respondent after complications began to develop. St. Joseph's Hospital in Tampa did not contact or consult with Respondent after Patient M. S. presented there. Respondent's first knowledge of any complications from the surgery came when he received notice of this proceeding against his license. Two issues are presented by the course of treatment described above. The first issue is whether Respondent acted within the standard of care by cleaning and dressing the less than one cm open fracture in the emergency room, or whether Respondent should have performed an irrigation and debridement of that wound in the operating room. Respondent is a board certified orthopedic surgeon with a great deal of experience in trauma. This was one of the worst femur fractures he had ever seen. His priorities on the night of February 11 were to acutely address the severe cut on Patient M. S.'s right shin, and to pull the left leg to length prior to surgery. The small left leg wound was "very clean," and in hindsight Respondent questioned whether he should even have classified it as a Grade I open fracture. He cleaned the wound, placed a Betadine dressing on it, then followed "routine procedure" by prescribing prophylactic antibiotics. The agency's expert, Dr. Steven Lancaster, also is a Board-certified orthopedic surgeon who routinely undertakes trauma cases in his practice. Based on the testimony of Dr. Lancaster the standard of care requires urgent irrigation and debridement of all open fractures, and this standard is prescribed by both the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. Irrigation involves cleaning an area with saline solution. Debridement involves the trimming of contaminated or devitalized tissue, the removal of foreign material from wounds, and the cleaning of bone and muscle tissue. Dr. Lancaster stated that, absent a life-threatening condition, it is necessary to perform the irrigation and debridement of an open fracture as soon as possible. Patient M. S. faced no life-threatening condition. According to Dr. Lancaster, the urgency is due to the fact that bacteria have already been introduced into the wound at the time of injury. If more than twelve hours pass, the bacteria have colonized, and the wound is more properly considered infected than merely contaminated. Dr. Lancaster testified that the small size of the wound did not change the urgency of performing the irrigation and debridement; microscopic bacteria are as capable of entering a small wound as a large one. Respondent's expert, Dr. Edward Sweetser, is also a board certified orthopedic surgeon with trauma experience, though the majority of his practice is in general orthopedics. Dr. Sweetser testified that he would not have debrided the small left leg wound in the emergency room, and that the standard of care would not require debridement. He noted that it was a very small laceration, that it appeared to be a puncture from within, and that it did not appear to be contaminated. Dr. Sweetser believed that cleaning and covering the wound with Betadine-soaked gauze was sufficient to keep bacteria out of the wound, and that the ordering of an intravenous antibiotic was entirely appropriate for treatment of any open wound. It is found that the agency established by clear and convincing evidence that the standard of care required urgent irrigation and debridement of the small left leg wound. Dr. Lancaster persuasively testified that such observations as the small size of the wound or that the wound appeared "very clean" to the naked eye did not affect the potential for bacterial infection. Respondent offered no rebuttal to Dr. Lancaster's testimony that urgent irrigation and debridement of open fractures is the standard prescribed by the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. The agency failed to establish by clear and convincing evidence that Respondent's failure to perform the irrigation and debridement of the left leg wound was the cause of the subsequent infection. All of the testifying orthopedists agreed that an injury such as that suffered by Patient M. S. is highly susceptible to infection from multiple possible sources. Dr. Sweetser persuasively opined that the likely main cause of the infection was the severity of the injury, both to the bone and the soft tissue, and the extended length and extensive exposure of the surgical procedure. The second issue is whether Respondent acted within the standard of care subsequent to the surgery by treating Patient M. S. with prophylactic antibiotics, or whether Respondent should have pursued the more aggressive course of reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. Respondent did not suspect an inside infection of Patient M. S.'s wound. He knew that an injury of this nature carries a high incidence of infection, and believed that prophylactic antibiotics sufficiently allayed that threat. When he changed the dressing on February 18, Respondent noted serous drainage, which he termed normal given the amount of trauma and the extremely large exposure required to perform the surgery. Respondent also noted the green tinge on the outside of the dressing. When the drainage soaks through to the outside of the dressing, it is not unusual for the outside of the dressing to become colonized by Pseudomonas bacteria, which are abundant in the hospital setting. He had no indication or suspicion that the infection was within the wound. The wound looked "very good," with no redness or purulence, intact with only serous drainage. Respondent put a clean dressing on the wound and, as a precaution due to the outside colonization, ordered tobramycin in addition to the intravenous antibiotics Patient M. S. was already receiving. Respondent noted the fever and elevated white blood cell count, but also noted that Patient M. S. was afebrile with a stable hemoglobin when he was released from the hospital. Fever is common in post-surgical patients for reasons other than infection. The most common cause is the release of pyrogens by soft tissue trauma. Another common cause of fever is atelectasis, small areas of collapse in the lung resembling pneumonia. Patient M. S. received multiple transfusions, which can cause fever due to the body's immune response. In some instances, antibiotics themselves can cause a fever. Respondent testified that, after spending eight hours in surgery, he would have "done anything" to save Patient M. S.'s leg. If he had suspected an inside infection, he would have taken the patient back into the operating room, reopened the wound, and obtained a deep culture. Dr. Lancaster testified that Respondent fell below the standard of care by discharging Patient M. S. "with a febrile condition and, potentially, with an infected leg." Dr. Lancaster believed that the fever and elevated blood count required an explanation, and that Patient M. S. should not have been discharged until some effort was made to identify whether there was an infection. Dr. Lancaster's opinion is of questionable value because Patient M. S. was not running a fever and showed a stable hemoglobin on the date of discharge. Dr. Lancaster did not directly address how the patient's apparent stability on February 20 might affect his opinion. Dr. Lancaster acknowledged that post-surgery fever is common and not necessarily indicative of an infection. Dr. Sweetser's credible testimony is that, "based on reasonable medical probability," Patient M. S.'s discharge on February 20 did not violate the standard of medical care. He based his opinion on the facts that the patient had no fever, no increasing swelling in the wound, no redness, no purulent drainage, and no increase in pain. Nothing in the medical record provided a reasonable basis for Respondent to reopen the wound, and that reopening the wound delays healing and itself heightens the risk of infection. It is found that the Agency failed to establish by clear and convincing evidence that the standard of care required reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. The objective facts in the medical record make it reasonable that Respondent did not suspect infection in the wound on Patient M. S.’s left leg. Therefore, his failure to obtain a wound culture or to consult with an infectious disease specialist was not outside the standard of care required of him in this case. Both experts agreed that the chances of saving Patient M. S.'s leg would have been better if Respondent had been consulted when the patient presented at St. Joseph's Hospital in Tampa. The Agency's expert, Dr. Lancaster, stated that when a patient has a complication, it is better practice for the operating surgeon to treat it. Dr. Sweetser testified that the operating surgeon possesses information for which the written notes and x-rays cannot substitute.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding that Respondent violated Section 458.331(1)(t), Florida Statutes, and imposing the following penalty: a reprimand, 10 hours of Continuing Medical Education in orthopedic medicine to be completed within 12 months of the final order, and payment of an administrative fine in the amount of $250.00. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. __________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce M. Stanley, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether there were deficiencies at Naples sufficient to support Agency for Health Care Administration’s (AHCA) decisions to issue Heritage Health Care & Rehab Center - Naples (Naples) a Conditional license on March 11, 1999, and continue that rating until June 7, 1999.
Findings Of Fact Background Naples is a nursing home located in Naples, Florida, licensed by and subject to regulation by the Agency for Health Care Administration. Each year, Naples is surveyed by AHCA to determine whether the facility should receive a Superior, Standard, or Conditional licensure rating. On March 11, 1999, AHCA conducted an annual survey of Naples. After that survey was completed, AHCA alleged that there were several deficiencies at Naples which violated various regulatory standards that are applicable to nursing homes. However, AHCA agreed that the only deficiency relevant to the DOAH hearing was its allegation that Naples violated the requirement, contained in 42 CFR Section 483.13(c), that a nursing home develop and implement policies that prohibit abuse and neglect of residents. AHCA issued a survey report in which this deficiency was identified and described under a "Tag" numbered F224. AHCA is required to assign a federal "scope and severity" rating to each deficiency identified in the survey report. AHCA assigned the Tag F224 deficiency identified in the March survey report a federal scope and severity rating of "G," which is a determination that the deficient practice was isolated. AHCA is also required to assign a state classification rating to each deficiency identified in the survey report. After the March 11th survey, AHCA assigned the Tag F224 deficiency a state classification rating of Class II which, under AHCA’s own rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because AHCA determined that there was a Class II deficiency at Naples after the March 11th survey, it changed Naples’s Standard licensure rating to Conditional, effective March 11, 1999. By law, Naples was required to post the Conditional license in a conspicuous place in the facility. Naples was also required to submit a Plan of Correction (the "Plan") to AHCA. Although the plan did not admit the allegations, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. The Plan also represented that all corrective action relating to the Tag F224 deficiency would be completed by April 10, 1999. AHCA returned to Naples on March 29, 1999, March 30, 1999, and April 22, 1999, and re-surveyed the facility. After each survey, AHCA determined that there were deficiencies at Naples, but stipulated prior to hearing that none of these deficiencies were justification for the issuance or the continuation of the Conditional license at issue in this case. After the April 22, 1999, survey, AHCA determined that Naples completed all corrective action with regard to the March 11, 1999, Tag F224 deficiency and complied with the requirements of 42 CFR Section 483.13(c). After the June 7, 1999, survey, AHCA determined that Naples was in substantial compliance with all applicable regulations and issued Naples a Standard license effective that date. Naples filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of all of the above- cited surveys, as well as AHCA’s decision to issue Naples a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted. At hearing, the parties were ordered to file their proposed recommended orders on or before September 15, 1999. Finding 1; Tag F224; March 11, 1999, Survey Report: An unnamed resident at Naples who had fragile skin and a history of skin tears sustained a skin tear to her arm on March 8, 1999. Naples’ staff obtained a doctor’s order for a dressing to be applied to the area and changed daily. The dressing was applied as ordered except for an isolated instance when it was not applied on March 9, 1999. On March 10th, AHCA’s surveyor observed that the dressing had not been changed on the previous day. She interviewed the nurse who had obtained the order for the dressing, and was told that the dressing had not been changed on March 9, 1999, because the nurse forgot to print out the order from the computer and place it in the Resident’s medical record. The nurse immediately changed the Resident’s dressing. The surveyor did not observe the nurse changing the dressing. Instead, she went back into the Resident’s room after the dressing was changed and observed that the area covered by the dressing was bleeding. The surveyor inferred from that observation that the old dressing had stuck to the Resident’s skin because of the failure to change the dressing on March 9th. She also inferred that the nurse who changed the old dressing had not moistened it prior to removing it so as to cause it to bleed. The surveyor did not interview the nurse to verify her suspicion that the nurse changed the dressing incorrectly. Instead, she alleged that Naples neglected the Resident because the nurse failed to change the dressing pursuant to the doctor’s order, and because she changed the dressing so as to cause the Resident to bleed. Naples does not dispute that the Resident’s dressing was not changed on the March 9th. However, the evidence was undisputed that the failure to change a dressing for one day presented no risk that the Resident’s skin tear would worsen or become infected. In fact, the skin tear did not worsen as a result of the facility’s failure to change the dressing on March 9th. AHCA’s surveyor conceded that she had no evidence that the skin tear worsened and thus failed to provide any evidence that the failure to change the dressing presented any risk of harm to the Resident. Moreover, AHCA’s surveyor erroneously concluded that the nurse who changed the dressing caused it to bleed. The nurse moistened the old dressing prior to removing it and placed a new dressing on the area; the skin tear did not bleed during that process. The evidence was clear that the old dressing would not have stuck to the skin tear even if the dressing had not been changed on March 9th because, on March 8th, she applied a triple antibiotic ointment that acted as a barrier between the gauze dressing and the Resident’s skin. Finally, the Resident’s skin was extremely fragile and, in the past, the Resident had caused her own arm to bleed by slighting bumping it. Finding 2; Tag F224; March 11, 1999, Survey Report: Resident 14 was issued a doctor’s order for a dressing to a lesion on her back. It stated that the dressing was to be changed daily. AHCA’s surveyor observed on March 10, 1999, that Resident 14 had a dressing that had not been changed since March 8, 1999, covering the lesion. The surveyor further observed that the dressing had become displaced so that the tape used to secure the wound was partially covering the wound. Despite this isolated failure to change the dressing, the surveyor cited Naples for neglecting Resident 14. Naples conceded that the Resident 14's dressing had not been changed on March 9th as ordered. However, as it did with the unnamed Resident in Finding 1, Naples demonstrated that the failure to change Resident 14’s dressing was isolated and did not present any risk that the Resident’s lesion might worsen or become infected. Naples also showed that the lesion did not, in fact, worsen. AHCA’s surveyor conceded that she had no evidence that the failure to change the dressing was repeated conduct, or that the lesion worsened, and thus failed to present any evidence that the failure to change the dressing presented any risk of harm to Resident 14. Finding 3; Tag F224; March 11, 1999, Survey Report: Resident 21 was a demented woman with a history of anxiety, aggressive behavior toward others, and attention- seeking behaviors. At approximately 1:00 a.m. on March 10th, Resident 21 was found striking her forehead with a small picture frame stating, "I’m going to kill myself, I’m tired of all this." She was not hitting herself hard enough to inflict any injury to herself, and did not damage the picture frame. Nonetheless, a nurse stopped the Resident and counseled the Resident, who then stated, "I’ll stop and go to sleep." After the nurse left the room, the Resident repeated her action. The nurse immediately returned, removed the frame, and called the Resident’s physician. The physician determined that Resident 21 was not suicidal, and ordered Ativan (a medicine given for anxiety) and a psychiatric consultation for the Resident. Twenty minutes after she was given the Ativan, Resident 21 got up and sought additional attention by pushing her wheelchair in the hallway. She was redirected to her bed by a certified nursing assistant ("CNA") and, while being put to bed, grabbed packets of air freshener and threatened to eat them. The packets were immediately removed from the Resident and taken from her room by the CNA. Twenty minutes after being put to bed by the CNA, Resident 21 arose and returned to the hallway and attempted to enter other residents’ rooms. She was redirected by staff to her room and bed, whereupon she stated to the staff that "The nurse gave me water. I’m going to kill myself." Twenty minutes after this incident, Resident 21 sought attention by playing her radio loudly, and stated, "I’m going to kill myself." Another dose of Ativan was given to her and shortly thereafter, she went to sleep. Although staff routinely checked on Resident 21, there were no further incidents. The following morning, Resident 21 was seen by her psychiatrist who determined that she was not suicidal. Instead, he concluded that Resident 21’s isolated actions during the previous night were attention-seeking behavior which did not indicate that she intended to kill herself. He ordered additional medications for her and, as a precaution, wrote an order in her record to "remove all dangerous objects from her room and monitor resident closely." When AHCA’s surveyors entered the facility on March 10, 1999, picture frames and mirrors were present in Resident 21's room. The surveyor asked the staff about the level of monitoring for the Resident, and whether the facility had a policy that defined and implemented precautions for suicidal residents. The surveyor was not satisfied and cited the facility for neglecting the Resident because it failed to remove "dangerous objects" from her room, failed to adequately monitor her, and failed to have a suicide precaution policy. The surveyor’s conclusion that Naples neglected Resident 21 was predicated on her belief that Resident 21 was suicidal. However, the Resident's psychiatrist testified unequivocally that the Resident was not suicidal. The Resident did not strike herself hard, nor with the intent to hurt herself, but was engaged in attention-seeking actions. She demonstrated no intent to commit suicide. The psychiatrist's diagnosis, and his (and her regular physician’s) decision to treat her condition with medications were effective. She exhibited no further similar behavior. AHCA’s surveyor did not interview Resident 21’s psychiatrist prior to making her allegations of neglect, and thus did not know that the psychiatrist had determined that the Resident was not suicidal. At hearing, she acknowledged that the psychiatrist’s conclusion would have presented "a whole different story." AHCA’s surveyor also erroneously concluded that the Resident was not adequately monitored. The nursing notes concerning Resident 21 contained over thirty entries between March 10th and March 12th describing observations of the Resident. These notations exceeded any applicable nursing standard, and more than met the requirements contemplated by the psychiatrist when he ordered the staff to monitor the Resident closely. The surveyor determined that the nurses’ notes reflected inadequate observation of the Resident because the notes did not reflect that the Resident was being observed every fifteen minutes, and then hourly for twenty four hours. However, the surveyor failed to offer any regulation or other source to support her contention that monitoring the Resident every fifteen minutes was the appropriate standard. To the extent that the standard was based upon the surveyor’s assumptions that Resident 21 was suicidal or because the psychiatrist ordered that level of monitoring, Naples demonstrated that those assumptions were incorrect. AHCA’s surveyor also erroneously concluded that the failure to remove picture frames and mirrors from Resident 21’s room was a violation of any doctor’s order or applicable standard of care. The requirement that dangerous objects be removed from the Resident’s room came from the order of the Resident’s psychiatrist, and he testified that he did not intend for the facility to remove all picture frames or mirrors from the Resident’s room. Instead, he only intended his order to cover objects such as knives or letter openers. He clarified this interpretation of his order to Naples’ staff during the survey. Naples is not required by any federal or state regulation to have a suicide prevention policy. Indeed, such a policy would never have an opportunity to be implemented even if it existed. If a resident at Naples is determined to be suicidal, the resident would be immediately transferred to a psychiatric hospital for observation, evaluation and treatment. Naples Policy Regarding Abuse and Neglect: Naples has a written policy that prohibits abuse and neglect of its residents. It also sets forth a process for investigating incidents of suspected abuse and neglect that includes suspending staff who might have been involved in any incident while the investigation is pending. Additionally, Naples implements policies required by federal regulations that help to assure that its residents are not neglected. It conducts background checks of employees, and only those who have no history of abuse or neglect are hired to work at Naples. Furthermore, employees are instructed and encouraged to inform the administration about any incident which might be considered abuse or neglect of a resident, and are provided with seminars which address issues of abuse and neglect of residents. Naples conducts random audits of its residents’ medical records to insure that residents are receiving their required care. These policies have been successful. Additionally, Naples demonstrated that it followed its written policy with regard to the incidents cited under Tag F224 of the March survey report. Pursuant to that policy, the facility’s Director of Nursing investigated all of the cited incidents in a timely manner and suspended one nurse pending that investigation. The Director of Nursing appropriately concluded that neglect of the residents cited in the report had not occurred and did not call any investigative agency regarding the incidents.
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 issuing a Standard rating to Naples and rescinding the Conditional rating. DONE AND ENTERED this 12th day of November, 1999, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 12th day of November, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Donna Stinson, Esquire Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 309 Post Office Box 60127 Ft. Myers, Florida 33901-6177 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondent, Stacey Abo, was licensed in the State of Florida as a Registered Nurse (RN) holding license number 1457012. Presently, Respondent's license is in an inactive or lapsed status, having expired on March 31, 1987 without being renewed. Respondent was employed as a licensed RN at Memorial Hospital Memorial (Memorial) in Ormond Beach, Florida from May 1983 until her termination on July 5, 1985. During Respondent's tenure of employment at Memorial the Respondent: (a) was counseled on September 16, 1983 by Jackie Mirsky, Nursing Supervisor after it was reported to Mirsky by other nurses who did not testify at the hearing that they had smelled the odor of alcohol on Respondent's breath while she was on duty on September 6, 1983 and September 14, 1983; (b) was confronted by Sandra Peeples, charge nurse, on July 11, 1982 because Peeples suspected the odor of alcohol on Respondent's breath while she was on duty on June 11, 1984; (c) was terminated from her employment at Memorial on July 5, 1985, after it was reported to Johnette Vodenicker, Assistant Administrator, by another nurse, who did not testify at the hearing, that she had smelled the odor of alcohol on Respondent's breath on July 4, 1985 and, for having been counseled on September 16, 1983 and June 11, 1984 in the same regard. Peeples "thought" she smelled alcohol on Respondent's breath on June 11, 1984. Respondent admitted having "a beer" with lunch but there is insufficient evidence to show that Respondent had the odor of alcohol on her breath while on duty on September 6, 1983, September 14, 1983, July 4, 1985 or at any other time while she was on duty, other than June 11, 1984. The Respondent was employed as a licensed RN at Halifax Medical Center (Halifax) in Daytona Beach, Florida, from November, 1985 until her termination on October 8, 1986. Sometime in December, 1985, shortly after being employed at Halifax, the Respondent attempted suicide by ingesting several different drugs and, was hospitalized at Halifax for approximately two (2) weeks. Because of the suicide attempt, Respondent was referred to counseling. Respondent attended counselling session with Dr. Abed. It was understood that she could return to work on Dr. Abed's recommendation. Sometime around January 1, 1986 Respondent was allowed to return to work as a concentrated care unit nurse on the condition that Respondent continue counseling until released by Dr. Abed. There is insufficient evidence to establish how Halifax was to be notified of Respondent's continued counseling or the frequency of such notification. Halifax was never notified by Dr. Abed that Respondent had been released from treatment. Respondent's notification of her counseling with Dr. Abed was sporadic, however there was insufficient evidence to establish that such notice was not in accordance with the understanding between Halifax and the Respondent. There was insufficient evidence to establish the reason for Respondent's suicide attempt or that such suicide attempt resulted in Respondent being unable to practice nursing with reasonable skill and safety to patients except for the two (2) week period she underwent counseling with Dr. Abed. Respondent was reported to Judith Ann Clayton, nurse manager, intensive surgical center, Halifax Medical Center, for numerous errors which involved administering and monitoring "I.V's" to patients on May 15, 1986 (Petitioner's Exhibits No. 5- A) and May 19, 1986 (Petitioner's Exhibits 5-B through 5-E) by nurses who came on duty on the next shift immediately after Respondent`s shift. Somewhere around the time of the "I.V." incidents, Respondent was observed by Clayton as having the odor of alcohol on her breath while on duty. When confronted by Clayton, the Respondent admitted having had "a beer" with lunch. There is insufficient evidence to show if Respondent was ever counselled or disciplined by the hospital for this incident. As a result of these reported errors involving improper administration and monitoring of "I.V.`s" to patients and, having the odor of alcohol on her breath while on duty, Respondent was placed on medical leave of absence for two (2) months. During these two (2) months, Respondent was provided counseling by Halifax with the understanding that at the end of counseling Halifax would determine her status. During Respondent's medical leave of absence she attended counselling and was allowed to return to work with a limited work assignment on June 30, 1986 on the neurological surgical unit under the supervision of Jean R. Snodgrass. At the beginning, Respondent's duties did not include administering and monitoring "I.V.`s", administering other medication or signing off orders in the patient's chart. However, on October 8, 1986, Respondent was responsible for administering medication and administering and monitoring "I.V.`s". On October 8, 1986, Respondent, while fully responsible for fourteen (14) or fifteen (15) patients, left and did not return to her assigned station on the neurological surgical unit during her scheduled shift. Respondent failed to notify the proper authority or anyone else of her departure and without securing a replacement, thereby abandoning her patients. Due to Respondent's abandonment of her patients, Halifax terminated her employment on October 8, 1986. By abandoning her patients on October 8, 1986, Respondent failed to conform to minimum standards of acceptable and prevailing nursing practice and was not practicing nursing safely.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Board of Nursing enter a Final Order finding the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes and that Respondent's nursing license be suspended for a period of one (1) year, stay the suspension, place the Respondent on probation for a period of three (3) years under the condition that Respondent undergo psychological counseling and any other condition the Board may deem appropriate, and assess an administrative fine of $300.00 to be paid within ninety (90) days of the date of the Final Order. Respectfully submitted and entered this 16th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2232 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 Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3.-4. Adopted in Finding of Fact 3. 5.-6. Rejected as hearsay that is uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 7 but clarified. The first sentence is rejected as not supported by substantial competent evidence. The second sentence is rejected as hearsay uncorroborated by any substantial competent evidence. The third sentence is adopted in Finding of Fact 7. 14.-15. Rejected as hearsay uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 12 but clarified. Adopted in Finding of Fact 13 but clarified. Rejected as not supported by any substantial competent evidence. Additionally, it is rejected as not being relevant or material. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Rejected as not supported by any substantial competent evidence. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stacey Abo 12 Riverdale Avenue R.R. No. 2 Ormond Beach, Florida 32074 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Exec. Director Board of Nursing Department of Professional Regulation Room 504, 111 E. Coastline Dr. Jacksonville, Florida 32201
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency”) regarding certificate of need (“CON”) Application No. 10161 submitted by HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point (“Bayonet Point”). 1. Bayonet Point filed CON Application No. 10161, which sought to establish an 18- bed comprehensive medical rehabilitation (“CMR”) unit to its facility, located in Pasco County, District 5. The Agency preliminarily denied Bayonet Point’s CON application. 2. Bayonet Point filed a petition for formal hearing challenging the Agency’s denial. 3. Morton Plant Hospital Association, Inc., d/b/a Morton Plant North Bay Hospital (“North Bay”), successfully filed a Petition to Intervene in support of the Agency’s denial of Filed January 6, 2014 1:26 PM Division of Administrative Hearings Bayonet Point’s Application No. 10161. 4. Bayonet Point has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of Bayonet Point’s CON Application No. 10161 is UPHELD. gene eh ORDERED in Tallahassee, Florida on this _@_ day 7 onl? Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review, which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the Final Order has been furnished to the persons named below by the method designated on this CO day of a 20Y. 7 Richard J. Shoop, Agefity Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration Jan.mills@ahca.myflorida.com (Electronic Mail) James McLemore, Supervisor _ Certificate of Need Unit Agency for Health Care Administration James.Mclemore@ahca.myflorida.com (Electronic Mail) Karen Ann Putnal, Esquire Robert A. Weiss, Esquire Moyle Law Firm, P.A. Stephen A. Ecenia, Esquire David Prescott Richard M. Ellis, Esquire 118 North Gadsden Street Gabriel F.V. Warren, Esquire Tallahassee, Florida 32301 Rutledge Ecenia, P.A. Kputnal@moylelaw.com Post Office Box 551 Rweiss@moylelaw.com Tallahassee, Florida 32301 (Electronic Mail) Steve@reuphlaw.com David@reuphlaw.com Rellis@reuphlaw.com Gwarren@reuphlaw.com (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings www.doah.state.fl.us (Electronic Mail) Lorraine M. Novak, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Lorraine.Novak@ahca.myflorida.com (Electronic Mail)
Conclusions Sovereign immunity extends to “corporations primarily acting as instrumentalities . . . of the state, county, or municipalities.” See § 68.28(2), F.S.; Pagan v. Sarasota County Public Hospital Board, 884 So.2d 257 (Fla. 2d DCA 2004). MRHS was deemed to be an instrumentality of the hospital district by the Attorney General in an opinion dated December 8, 2006 and the circuit court in Marion County has reached the same conclusion in several cases. As a result, MRHS is entitled to sovereign immunity under § 768.28, F.S. The public policy basis for extending sovereign immunity to private entities such as MRHS has recently been questioned by two appellate courts. See University of Florida Board of Trustees v. Morris, 32 Fla. L. Weekly D1803 (Fla 2d DCA July 27, 2007) (Altenbernd, J., concurring), rev. denied, 2008 Fla LEXIS (Fla. Jan. 7, 2008); Andrews v. Shands at Lakeshore, Inc., 33 Fla. L. Weekly D30 (Fla 1st DCA Dec. 20, 2007). The nurses are employees of MRHS and they were acting within the scope of their employment when providing services to Tyler. As a result, the nurses’ negligence is attributable to MRHS. The nurses had a duty to provide competent medical care to Tyler. They breached this duty and violated the standards of care for nursing personnel by failing to report the cyanotic episodes to Dr. Pierre and by failing to properly perform the four-extremity blood pressure test. The nurses’ actions and inactions contributed to the delayed diagnosis of Tyler’s heart condition. However, Dr. Pierre’s failure to order an immediate cardiology consultation when she detected a heart murmur shortly after Tyler’s birth also contributed to the delayed diagnosis of Tyler’s heart condition. The delayed diagnosis of Tyler’s heart condition led to his “crash” on December 16 because it is more likely than not that Tyler would have been transferred to Shands or another tertiary facility had his condition been diagnosed sooner. Tyler was not a candidate for the second and third stages of the Norwood procedure because of the damage caused by the “crash,” and he also suffered brain damage during the “crash” that caused his developmental delay. The amount of damages agreed to by MRHS is reasonable, even though Dr. Pierre likely shares some of the responsibility for Tyler’s condition. Indeed, the life care plan prepared for Tyler reflects that the cost of a transplant is between $650,000 and $700,000 and Tyler is expected to require multiple transplants over the course of his life. Moreover, the non-economic damages (e.g., pain and suffering) of Tyler and his parents could very well have exceeded the settlement amount had the case gone to jury trial. LEGISLATIVE HISTORY: This is the first year that this claim has been presented to the Legislature. ATTORNEYS’ FEES AND LOBBYIST’S FEES: The claimants’ attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent of the amount awarded by the claim bill in accordance with §768.28(8), F.S. Lobbyist’s fees are not included in the 25 percent attorney’s fees. Lobbyist’s fees will be an additional 4 percent of the amount awarded by the claim bill, which would be $28,000 based upon the $700,000 claim. The Legislature is free to limit the fees and costs paid in connection with a claim bill as it sees fit. See Gamble v. Wells, 450 So. 2d 850 (Fla. 1984). The bill does so by stating that “[t]he total amount paid for attorney’s fees, lobbying fees, costs and other similar expenses relating to this claim may not exceed 25 percent of the amount awarded [by the bill].” If this language remains in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants will receive a total of $525,000, with $393,750 going into Tyler’s special needs trust and $131,250 going to his parents. The remaining $175,000 will go to attorney’s fees, costs, and lobbyist’s fees. If this language was not in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants would receive approximately $362,000, with approximately $271,500 going into Tyler’s special needs trust and approximately $90,500 going to his parents. The claimants’ attorney would receive a total of approximately $310,000 ($175,000 for attorney’s fees and approximately $135,000 for costs), and the lobbyist would receive $28,000. OTHER ISSUES: The bill identifies the Marion County Hospital District as the entity responsible for payment of the claim. The parties agree, and I recommend that the bill be amended to reflect MRHS as the entity responsible for payment because it is responsible for operating the hospital pursuant to a lease from the hospital district. The bill requires the entire claim to be paid into Tyler’s special needs trust. The parties agree, and I recommend that the bill be amended to require payment of the claim in accordance with the allocation approved by the circuit court, i.e., 75 percent into Tyler’s special needs trust and 25 percent to his parents. The bill requires any funds remaining in Tyler’s special needs trust upon his death to revert to the General Revenue Fund. The parties agree, and I recommend that the bill be amended to remove this language because the bill is being paid from the hospital’s funds, not State funds. The bill should be also amended to include the standard language requiring payment of Medicaid liens prior to disbursing any funds to the claimants. See § 409.910, F.S. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 68 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Charlie Dean Representative Marcelo Llorente Faye Blanton, Secretary of the Senate T. Kent Wetherell Senate Special Master House Committee on Constitution and Civil Law Tony DePalma, House Special Master Counsel of Record
The Issue Whether Respondent's licenses as funeral director, embalmer, and funeral establishment should be suspended or revoked, or the licensees otherwise disciplined for alleged violations of Chapter 470, F.S., as set forth in the Administrative Complaint dated December 17, 1980. This case involves six counts against Respondent of which five allege that he failed to file death certificates within three days after the death of various decedents, as required by Section 382.081, Florida Statutes. The other count alleges that Respondent did not have sanitary floors in the preparation room and that the preparation room was not maintained in a clean and sanitary condition in violation of Petitioner's Rules 21J-21.03(1)(c) and (h) , Florida Administrative Code. Subsequent to filing of the Administrative Complaint, Respondents requested an administrative hearing on the charges. At the hearing, petitioner presented the testimony of two witnesses, Leo Huddleston and Richard Carroll, and submitted six exhibits in evidence. Respondent William E. Woods testified In his own behalf. In view of the fact that Respondents objected to the admission of certain death certificates marked as Petitioner's Exhibits 2 through 6 for lack of proper authentication, Petitioner was provided a period of ten days subsequent to the hearing to file certified copies of the death certificates. Such copies were filed on April 14, 1981, and have been marked Hearing Officer's Composite Exhibit 1.
Findings Of Fact Respondent William E. Woods is a licensed funeral director who operates William E. Woods Funeral Home, a licensed funeral establishment, located at 212 North Parsons Avenue, Brandon, Florida. Respondents have been so licensed at all times material to the matters involved in this proceeding. (Testimony of Woods, Carroll) On November 20, 1980, Petitioner's investigators Richard Carroll and Leo Huddleston conducted an inspection of Respondent's funeral home. During the course of their inspection, the Investigators observed about 24 or 25 dead human bodies in varying states of decay in the preparation room and in an adjoining room previously used for display of caskets. In the "casket" room, bodies were located on cots, and on wooden boards on the carpeted floor. The bodies were covered by sheets or canvas, and body fluids were seen seeping from the bodies onto the floor. Flying and crawling insects were visible in the vicinity of the remains and one of the investigators was bitten by fleas while conducting the inspection. Maggots were seen on the covering sheets and a strong odor was present in the room. In the preparation room, the investigators saw one corpse on the preparation table with no covering other than a bandage. Three dead bodies were located on a six-shelf wooden rack, and one on a board platform. As in the other room, body fluids were observed dripping onto the asphalt tile floor. Some of the fluids were dried and caked. A great number of insects, including house flies, gnats, and beetles were in the room, and insect droppings had accumulated around the walls. Upon inquiry by the investigators at the time of the inspection, Respondent Woods stated that he had had family medical problems which had exhausted his cash and credit resources to the extent that he had been unable to make advance payments for the disposition of indigent decedents. (Testimony of Huddleston, Carroll, Petitioner's Exhibit 1 a-f) On December 4, 1981, the investigators returned to Respondents funeral home, accompanied by a representative of the Hillsborough County Health Department. Although the conditions previously noted had been substantially corrected in the preparation room, bodies were still present in the "casket" room and the odor was still prevalent. As a result of this visit, a citation was issued to Respondent by the County Health Department for the unacceptable condition of the bodies and premises. In early April 1981, Investigator Carroll went to Respondent's funeral home and found that further improvements had been made in the condition of the preparation room. It had been cleaned, renovated, and new equipment, including a refrigeration system, had been installed. No insects wore found on the premises and the dead bodies had been removed from the "casket" room. However, the odor still pervaded that area. (Testimony of Huddleston, Carroll) During the month of September 1980, Respondent Woods received for disposition the bodies of Yadwigo Dudko, Johnny Gardiner, Willie Washington, Henry Spielkamp and James Lowe. Dudko died on September 6, 1980. Medical certification of cause of death was entered on the death certificate on September 15, 1980, and the death certificate was filed with the local registrar of vital statistics by Respondent on September 30, 1980. Johnny Gardiner died on September 10, 1980, medical certification of cause of death was entered on the death certificate on September 15, 1980, and the death certificate was filed by Respondent with the local registrar on September 30, 1980. Willie Washington died on September 15, 1980, medical certification of cause of death was entered on the death certificate on October 6, 1980, and the death certificate was filed by Respondent with the local registrar on October 7, 1980. Henry Spielkamp died on September 27, 1980, medical certification of death was entered on the death certificate on October 10, 1980, and the death certificate was filed by Respondent with the local registrar on October 14, 1980. James Lowe died on September 24, 1980, medical certification of cause of death was entered on the death certificate on October 6, 1980, and the death certificate was filed by Respondent with the local registrar on October 7, 1980. (Hearing Officer's Composite Exhibit 1) Respondent Woods testified at the hearing and admitted that his funeral establishment had been in an unsatisfactory sanitary condition at the time of the November 1980 inspection. Although he had embalmed all of the bodies that were seen at that time by Petitioner's investigators, they had been received by him at various times after death and some received from the county medical examiner had been dead for a lengthy period of time and were, in fact, "unembalmable." Respondent has a contract with the County to process the remains of indigent or unclaimed decedents and, during 1980, he received about 150 of these cases. He charges the County $350 for burial, but has to advance payment for cemetery lots and other services prior to invoicing the County. There is then a 45 to 60 day period until he is reimbursed for his expenditures. During 1980, Respondent's wife was hospitalized at various times incident to extensive spinal surgery. Respondent was obliged to hire private nurses for her care and the total medical expenses of some $22,000 took all of his available financial resources. It was for this reason that he was unable to advance the necessary monies to dispose of all the bodies received at his place of business. As a result, the bodies seen by Petitioner's investigators in November 1980 had been present in the funeral home for varying periods as far back as January 1980. Due to his financial straits, Respondent was unable to employ more than one assistant and, as a consequence, the condition of the funeral establishment deteriorated. Respondent has renovated the preparation room and added refrigerated facilities to the body storage area. Everything in the room except the ceiling is now of a non-porous nature. The carpeting in the "casket" room is in the process of replacement. That room had formerly been the casket display room for the funeral home, but had temporarily been utilized as a storage area for bodies during the past year. Respondent testified that he was unaware of the extent to which insects had invaded the two rooms in question, but that he lived on the upper floor of the funeral home and had monthly professional exterminators service all areas except those where bodies were located. In such areas, Petitioner and his employee performed spraying on a regular basis. The excessive number of beetles that he discovered when removing the bodies after Petitioner's inspection were due to their prior existence in lumber which had been used to build a body storage facility several years ago, according to what he had been told by a state entomologist. The beetles have now been eradicated from the premises. As to the delayed death certificates, Respondent claimed that this problem occurred as the result of difficulties of obtaining certifications of cause of death from the various physicians. In the case involving James Lowe, Respondent stated that the Tampa General Hospital had held the body for over three days and should have filed the death certificate itself. Although Respondent was aware of the fact that Rule 10D-49.26, F.A.C., required funeral directors to file temporary death certificates when unable to obtain either the attending physician's medical certification of cause of death or the personal information about the deceased within the prescribed statutory time period plus a five-day extension of time, he testified that he had attempted to file such a certificate once with the local health department, but its personnel had refused to accept anything except a completed death certificate and that the Department continued to follow that practice. (Testimony of Woods)
Recommendation That the licenses of Respondents William E. Woods and William E. Woods Funeral Home be suspended for a period of six months, but that the suspension be held in abeyance and the licensees be placed on probation for a like period of time, subject to appropriate conditions established by petitioner. DONE and ENTERED this 26th day of April, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Andrew D. Argintar, Esquire Suite 100, The Legal Center 725 East Kennedy Boulevard Tampa, Florida 33602 A. Hartley, Executive Director Board of Funeral Directors and Embalmers Room 507, 111 East Coastline Drive Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Petitioner, vs. CASE NO. 81-236 WILLIAM E. WOODS and WOODS FUNERAL HOME, Respondent. /
Findings Of Fact The Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Marc Richman, D.O. The said complaint was assigned to the Division of Administrative Hearings pursuant to a request for Administrative Hearing pursuant to Chapter 120 and was assigned Division of Administrative Hearing Case Number 88-5258. On June 24, 1989, the Department of Professional Regulations issued a notice of voluntary dismissal in the above captioned proceeding and dismissed all charges against Marc Richman, D.O., in that case. Marc Richman, D.O. is a prevailing small business party within the meaning of Section 57.111(3)(c) and (d). The amount of attorney's fees and cost sought by the Petitioner in the Petition for Attorney's Fees is reasonable for the Representation of Marc Richman, D.O., in the defense of the Administrative Complaint through the date of issuance of the Notice of Dismissal. The Department of Professional Regulation maintains that the proceeds (sic) above-captioned were substantially justified at the time the Administrative Complaint was initiated by the state agency in that it maintains that there existed a reasonable basis in law and fact at the time of the filing of the Administrative Complaint. This position is disputed by the Petitioner, Marc Richman, D.O. The request for attorney's fees in the amount of $8,572.00 and costs of $563.96 for a total of $9,225.96 is reasonable for the representation of Petitioner throughout the instant proceeding. These proceedings were initiated by the filing of a complaint on September 16, 1986 with the Department of Professional Regulation (DPR), Petitioner in Case 88-5258, by the parents of G.H. who died October 18, 1984. G.H. was a long time patient of Dr. Jaffee, D.O. who called in Dr. Richman, an orthopedic surgeon to consult and perform an arthodesis on the left ankle of G.H. to relieve constant pain. G.H. was a 34 year old male accountant who had suffered from juvenile rheumatoid arthritis since the age of 4. Although badly crippled he was able to lead a relatively independent life. As a result of his malady G.H. had for years taken steroid and corticosteroid medications. These medications depress the body's immune system and the ability to fight off infections. Accordingly, G.H. was at more than normal risk anytime he was exposed to infectious diseases. After Petitioner explained the procedure and the risks to G.H., the latter elected to have Petitioner perform the arthodesis. This operation consists of grafting bone into the ankle to stabilize that joint. The donor site chosen for the bone to graft to the ankle was the crest of the left ilium of the patient. This operation was successfully performed on August 2, 1984 at Metropolitan General Hospital, Pinellas Park, Florida. In the hospital on August 9, 1984, while G.H. was being adjusted in his bed, he felt a pop in his left hip and a large hematoma developed over the wound at the donor site. It is not unusual for hematomas to develop over surgical wounds but it is important that such conditions be closely watched because hematomas are a fertile field for an infection. The hematoma on G.H.'s hip showed no evidence of infection and G.H. was discharged from the hospital August 12, 1984 and sent home. Arrangements were made by Petitioner for Robert's Home Health Services, Inc. of Pinellas Park to send a nurse 3 times per week to check on G.H., take his vital signs, dress his wounds and attend to any other medical needs he may have. Verbal reports were made by the nurse to Richman reporting the condition of G.H. While being helped from his wheel chair into bed by his parents on or about August 15, 1984, G.H. apparently fell and caused additional bleeding of the wound on the left hip. On August 16, 1984 the nurse reported to Richman the additional bleeding and she was directed to have G.H. taken to the hospital to be seen by Richman. On August 16, 1984, Petitioner examined the wound, noted the reports that the hematoma was neither inflamed nor more tender, and that G.H.'s temperature had remained normal since the hematoma developed. He sent G.H. back home without further tests. The classic signs and symptoms of infection are redness, swelling, heat and pain. Redness of the skin due to intense hyperemia, is seen only in infections of the skin itself. Swelling accompanies infection unless the infection is confined to the bone which cannot swell. Heat results from hyperemia and may be detected even in the absence of redness. Pain is the most universal sign of infection. Along with pain goes tenderness, or pain to the touch, which is greatest over the area of maximal involvement. (Exhibit 12, Principals of Surgery, Fourth Edition). The hematoma on G.H.'s left hip between its inception and September 13, 1984 never exhibited any sign of infection. On September 6, 1984, G.H. reported to the visiting nurse that he had a pain in his stomach and didn't feel well. The nurse described this as having flu-like symptoms. This was reported to Petitioner and the nurse received no additional orders. On the nurse's next visit on September 10, 1984, G.H. reported his abdomen was still hurting and he didn't feel good. At this time his temperature was elevated at 101. The nurse called Dr. Jaffee's office and was told to have the patient admitted to Metropolitan Hospital. Upon admission to the hospital on September 10, 1984, G.H. was nauseous, vomiting, and had a high fever (103). He had no complaints regarding his ankle or iliac crest and the hematoma had decreased greatly. On September 13, 1984, while G.H. continued showing signs of infection (high fever) Petitioner operated on G.H. to remove the hematoma. At this time aerobic and anaerobic cultures were obtained. Forty-eight and seventy-two hours later these cultures had grown no infectious substance. Further studies and tests revealed that G.H. had bleeding ulcers and surgery was required to patch the ulcers. At this time the spleen was also removed. Following this surgery G.H. was more debilitated and with the precarious condition of his immune system he continued to go down hill until he expired on September 18, 1984. Cause of death was cardiac pulmonary arrest caused by candida septicemia. During the initial stage of the investigation, which was initiated some two years after the death of G.H., the investigator interviewed the parents of G.H., who had filed the complaint, and assembled the medical records including those kept by the home health agency. The parents contended that when the hematoma was removed by Dr. Richman he told the parents that he had found infection at that site. Dr. Richman denies making any such statement to the parents of G.H. and the medical records support the conclusion that there was no infection in the hematoma on September 13, when the hematoma was excised. The parents complained of the treatment that G.H. received from Drs. Jaffee and Richman as well as Roberts Home Health Services. Accordingly the investigation started with both Jaffee and Richman charged with malpractice by the parents of G.H. The investigator selected an orthopedic surgeon, Dr. Richard M. Couch, D.O., from DPR's consulting list and forwarded to him on January 7, 1987, the patient records of G.H. and requested he review those records and give his opinion on whether Drs. Jaffee and Richman diagnoses and treatment of G.H. was appropriate. In this letter (Exhibit 1) the investigator advised Dr. Couch that following surgery a hematoma developed, that after G.H.'s discharge from the hospital the hematoma ruptured and that G.H. was taken back to the emergency room where Dr. Richman saw the patient but found nothing significant about the hematoma. He also told Dr. Couch that when Richman cleaned out the hematoma he advised the family (of G.H.) that infection was found, and that, after this G.H. started internal bleeding which ultimately resulted in the patient's death. Dr. Couch responded to this request with two letters, the first of February 16, 1987 and a second on March 6, 1987. In his first letter Dr. Couch concluded that the iliac wound began draining on or about August 14, 1984 and cultures of this wound were not secured until after G.H.'s hospitalization on September 10, 1984. Since the hematoma was a post-operative complication he opined that Richman failed to adhere to certain tenets regarding wound care in this situation. However, Dr. Couch suggested the records be referred to an internist who reviewed the treatment provided by Dr. Jaffee. In his second letter Dr. Couch opined that Richman was at fault for not incising, debriding and draining the hematoma when it developed and for not taking cultures when Richman saw G.H. in the emergency room on later dates. He also found Richman at fault for not referring G.H. to a consultant in infectious diseases. A letter similar to the letter sent to Dr. Couch was sent by the investigator to Neal B. Tytler, Jr., D.O., an internist. Although the investigator contends he submitted the records maintained by Roberts Home Health Services in this case to Dr. Tytler it is obvious that before he submitted his report on June 5, 1987, Dr. Tytler had not read those records and was concerned regarding the absence of medical records during the period between G.H.'s discharge from the hospital on August 12, 1984, and his readmission on September 10, 1984. In his report Dr. Tytler carefully noted G.H.'s long term medication for juvenile rheumatoid arthritis and the serious side effects, viz depression of the immune system, which results from long-term steroid therapy. Recognizing the risk to G.H. from any surgery Dr. Tytler questioned the wisdom of the arthodesis but recognized that this was more of an orthopedic problem than an internal medicine problem. From the records received, Dr. Tytler concluded that G.H. developed a hematoma after his departure from the hospital and before September 6, 1984. Significantly, Dr. Tytler reported "Of concern to me is the apparent lack of records to document the events which transpired between August 12, 1984 and September 10, 1984. In this one month period an abscess formed at the surgical site and led to disastrous consequences. Unfortunately it can only be inferred that the first recognition of any problem occurred on September 6, 1984, when the patient developed `flu-like symptoms'. He was not examined and no one perceived that his problems were serious." When the probable cause panel met on June 25, 1988 to consider the charges against Drs. Jaffee and Richman, no probable cause was found as to Jaffee. One of the two members of the probable cause panel disclosed at the opening of the panel meeting that he knew Dr. Richman socially and that Richman had been his treating physician for a finger injury. He was excused from further participation and the hearing was tabled regarding Dr. Richman. At a subsequent panel meeting by telephone conference call, after a substitute lay panel member was selected and had been furnished the medical records, a vote was taken to find probable cause. The excerpt from those proceedings (Exhibit 8) shows that the DPR attorney opened the conference call by stating that Richman was charged with medical conduct falling below acceptable minimal standards and "at the last probable cause panel meeting you voted to find probable cause, and asked that administrative complaint be issued. At this time the Department recommends that you do find probable cause to believe that this violation exists." Following receipt of this erroneous information regarding the previous probable cause panel meeting, the Chairman, Mr. Wheeler, stated that after reviewing the entire file he believes probable cause exists to file an Administrative Complaint. Dr. Barker concurred. The case against Dr. Richman began to unravel when the deposition of Dr. Tytler was taken on February 24, 1989. Prior to taking this deposition Dr. Tytler had been provided records from Metropolitan General Hospital, records from Roberts Home Health Services and a copy of the Administrative Complaint. In response to questions regarding the treatment of G.H. as afforded by Dr. Richman, Dr. Tytler stated that a review of all medical records clearly demonstrated that after the hematoma developed at the donor site for the transplant no indication of infection ever appeared; that considering the medical history of G.H. and his high susceptibility to infection it would be more dangerous to the patient to evacuate the hematoma and risk additional infection than it would to continue to observe the hematoma and let it cure itself; that the cultures taken on September 13, 1984, when the hematoma was evacuated clearly and unequivocally demonstrated that the hip wound was not the source of the infection that ultimately led to the demise of G.H.; and that the treatment rendered by Petitioner was in all respects in conformance with required medical standards and procedures. Dr. Tytler further opined that treating an immune compromised patient with antibiotics without a specific infection in mind "could lead to the very scenario that caused his (G.H.) death", namely secondary infection. Further, with respect to the contention of Dr. Couch regarding the failure of Petitioner to take cultures at the hematoma site before September 10, 1984, Dr. Tytler opined that indiscriminate taking of cultures when no evidence of infection is present could result in a positive culture unrelated to the wound but which the doctor would be called upon to treat. This could invite a major change in therapy and an inappropriate prescribing of an antibiotic. Following the deposition of Dr. Tytler, DPR referred the medical records to another orthopedic physician and this doctor concurred with the opinion of Dr. Tytler that Dr. Richman's treatment of G.H. was not below minimally acceptable standards, that no malpractice was involved and that the treatment was in accordance with acceptable medical standards. The Department then dismissed the Administrative Complaint. In his deposition the physician member of the probable cause panel, James H. Barker, D.O., emphasized that his conclusion that probable cause existed to go forward with the Administrative Complaint was significantly influenced by the fact that no culture was done at the hematoma site. From his subsequent testimony it is clear that Dr. Barker was unaware, when he voted to find probable cause, that the culture taken from the hematoma site on September 13, 1984 was negative. The record clearly shows this to be a fact. As stated by Dr. Tytler in his testimony "hematoma yes; infection no." Dr. Barker was also concerned, and perhaps rightly so, that any time that someone goes in for an elective procedure and he dies "that alone makes you think there may be probable cause here." However, there must be factual evidence to support a finding of probable cause and here there was no such evidence.
