The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
Findings Of Fact The current petition Following the entry of a final order of the Board of Medicine dismissing the administrative action previously filed against her, petitioner filed the pending request for an award of attorney's fees and costs, pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes. Respondent, Department of Business and Professional Regulation, Board of Medicine (Department), has conceded that: the underlying licensure disciplinary "action in Department of Professional Regulation v. Ada Gonzalez, M.D., DBPR Case No. 90-06789, was initiated by the Department of Professional Regulation (now Department of Business and Professional Regulation), a state agency, and, therefore, the Department is not a nominal party only"; the "Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes"; the "Petitioner prevailed in the underlying case . . . in that the Board of Medicine dismissed the case with a Final Order filed on October 27, 1993"; and, the "Petitioner's claimed attorney's fees and costs [attorney's fees of $20,189.00 and costs of $3,784.95] seem reasonable; however, Respondent asserts that the statutory cap of $15,000.00 inclusive of fees and costs, is applicable." Under the circumstances, the sole issue with regard to the claim for attorney's fees and costs under Section 57.111, Florida Statutes, is whether the actions of the Department were "substantially justified" when it initiated the underlying disciplinary action and, with regard to the claim for attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes, apart from the applicability of such section to the instant case, is whether any pleading, motion or other paper was filed in the underlying proceeding for an "improper purpose." The underlying disciplinary action On or about May 22, 1990, the Department received, pursuant to statutory requirement, a closed claim report from the Department of Insurance. The report reflected that an indemnity of $160,000 had been paid to the family of Patient C. D. through a settlement within the presuit period prescribed by Section 768.57, Florida Statutes. The predicate for the claim against petitioner, Ada Gonzalez, M.D., was the apparent assertion that the patient died as a consequence of petitioner's failure to appropriately treat her. By memorandum of May 22, 1990, the Division of Medical Quality Assurance recommended to the Department of Professional Regulation's complaints department that a case be opened. That memorandum provided: DISCUSSION: This review is predicated upon receipt of a closed claim DOI report. The specific allegation is that the doctor treated the patient for PID - rule out urinary tract infection. The patient was reportedly treated with antibiotics on 11/14/88 and on 11/16/88 appeared better. However, the patient reportedly did not improve and died of a ruptured ovarian abscess on 11/18/88. There are no medical records to review and there is no history or explanation given as to what happened in the time period from the onset of the pain to the demise of the patient. * * * COMMENTS AND RECOMMENDATIONS: I recommend a case be opened. There is a question of stan dard of care. Records should be obtained and referred to a similarly placed physician for review. As a consequence of the foregoing referral, the Department opened its Case No. 90-06789, and assigned its investigator Providence Padrick to the case. The investigator obtained a copy of the Palm Avenue Physicians Center and the Fatima HMO medical records, which included the documentation reflecting petitioner's treatment of the patient; the Jackson Memorial Hospital medical records, the facility at which the patient expired; and the autopsy report. Petitioner was duly informed by the Department that the case had been opened against her, and she was offered an interview but declined. The Palm Avenue Physicians Center and Fatima HMO medical records reflect that the patient was first seen by petitioner on November 14, 1988, and presented with a complaint of bilateral flank pain radiating to the lower abdomen, frequency of urination with some tingling on urination, a yellowish vaginal discharge, and a low grade temperature; such symptoms of approximately one day duration. Examination revealed lower abdominal tenderness to palpation, cervical motion tenderness, and a brown cervical discharge. Petitioner diagnosed pelvic inflammatory disease ("PID") and possible urinary tract infection ("UTI"). As a consequence of the history and examination, petitioner ordered x- rays of the abdomen, biochemical profile, pregnancy test, syphilis test and cultures of the vaginal discharge and urine; prescribed antibiotics; made a referral for the patient to see a gynecologist in two weeks; and, advised the patient to return for a follow-up visit in two days. As for the testing results, the urine culture and sensitivity came back positive for a urinary tract infection; however, all of the other laboratory tests came back negative. The patient was next seen by petitioner on November 16, 1988, for her follow-up visit. At the time, the patient reported that she felt better, and petitioner's examination revealed less vaginal discharge and discomfort, although she still suffered a low grade fever. Petitioner confirmed her earlier diagnosis of pelvic inflammatory disease, and prescribed another antibiotic (Septra DS) for urinary tract infection. The following day, November 17, 1988, the patient returned to see petitioner complaining of severe abdominal pain over the whole abdomen, nausea and vomiting. Examination revealed that the patient was in distress, with a distended abdomen, decreased bowel sounds and positive tenderness on palpation over the abdominal area. Petitioner again diagnosed pelvic inflammatory disease and urinary tract infection, and referred the patient to the Fatima HMO for observation, IV fluids and x-rays. The patient refused, however, to go to the Fatima HMO and, in fact, evidenced her intent to cancel her membership in the HMO. At or about 6:34 p.m., November 17, 1988, the patient presented to the Jackson Memorial Hospital Emergency Room complaining of severe abdominal pain, nausea and vomiting, and yellow vaginal discharge. Routine laboratory work was undertaken, but when she was taken to the x-ray department and placed on the table she became unresponsive. Cardiopulmonary resuscitation was immediately commenced without success, and the patient was pronounced dead at 11:25 p.m. that evening. An autopsy performed by the Dade County Medical Examiner revealed the following abnormal findings: Diffuse peritonitis Ruptured left fallopian tubal abscess Crude intrauterine contraceptive device Bilateral ovarian cysts Soft liver, spleen, and kidneys Congested lungs Gallstones Scarred gallbladder The autopsy concluded that the cause of death was acute diffuse peritonitis due to ruptured fallopian tubal abscess. On August 11, 1992, the Department forwarded its investigative report and related exhibits to its expert, Stanley H. Bernstein, M.D., for review and opinion concerning petitioner's adherence to the appropriate standard of care. By letter of August 20, 1992, Dr. Bernstein responded to the Department's request as follows: The subject A. G. [petitioner] was treating this 49 year old female for symptoms related to the genito-urinary tract. The scant information noted in the medical office records suggested that the patient had a urinary tract infection as well as symptoms suggesting pelvic inflammatory disease. How ever no studies were initiated to define the extent of the infection in the pelvis. No consultations from either a urologist of [sic] gynecologist were obtained. Although antibiotic was given, there was no realization that the infection in the pelvis might have needed much more intensive therapy. The subject is unknown to me. There was no adequate assessment of the patient's condition. Since pelvic inflammatory disease was suspected, a consultant gynecologist and/or appropriate x-rays of the pelvis should have been done. Since the subject did not suspect the true diagnosis in this case, inappropriate antibiotics were given. Since appropriate diagnostic tests such as ultrasound and/or cat scan of the pelvis were not done the diagnosis could not be appreciated. The plan of treatment was inadequate. There was no adequate monitor being carried out for this patient in regard to antibiotic therapy. The written medical records were woefully inadequate. The applicable standard of care for this patient was not met since the subject did not appreciate the possibility that the patient had more extensive infection in her pelvis. The subject did note that pelvic infection was probably present but she never used appropriate consultants. This suggests that the subject had a poor understanding of the extent to which such infections can cause major catastrophic events. It seem to be that the subject needs further training-certainly in medical conditions where infection is present. On September 24, 1992, the probable cause panel of the Board of Medicine (Board) met in Tampa, Florida. Those present at the meeting were panel members Louis Murray, M.D., chairman, and Mr. Gilbert Rodriguez; Alan Grossman, Assistant Attorney General; Larry McPherson, Jr., chief medical attorney for the Department; Randolph Collete, senior attorney for the Department; and, James Reese, chief medical investigator for the Department. At the commencement of the meeting, the panel members (Dr. Murray and Mr. Rodriguez) acknowledged that they had received and reviewed the complete investigative file pertaining to, among others, the petitioner. With regard to petitioner's case, the transcript of that meeting reflects the following brief discussion: MR. COLLETTE: Item A-03 is on Ada Gonzalez, M.D., case number 90-06789. The case is before the Panel on a recommendation that probable cause be found and an adminis trative complaint be filed. It's alleged that the respondent practiced medicine below the acceptable level of care by failing to appropriately diagnose and treat the patient C. D.'s condition and mistakenly treating her for a urinary tract infection with antibiotics when, in fact, the patient was suffering from an ovarian abscess; and that the respondent failed to keep written medical records justifying the course of treatment; and that the records are sketchy and inadequate. Based upon these facts, the Department is alleging a violation of 458.331(1)(t) and (m), and recommends that probable cause be found and an administrative complaint be filed. MR. RODRIGUEZ: Move a finding of probable cause and the filing of an administrative complaint. MR. MURRAY: Second. MR. MURRAY: So moved a finding of probable cause and the filing of an administrative complaint, seconded, and passed without objection. On October 8, 1992, an administrative complaint was filed against petitioner alleging that she violated the Medical Practices Act, Section 458.331(1)(m) and (t), Florida Statutes, by failing to practice medicine at the accepted standard of care in that petitioner was guilty of "mistakenly treating [the patient] for a urinary tract infection with antibiotics, when in fact [the patient] was suffering from an ovarian abscess," and that petitioner's "medical records are sketchy and inadequate in that they fail to justify [her] course of treatment." Subsequent to the filing of the administrative complaint, petitioner's counsel employed an expert, Martin Arostegui, M.D., to review the matter and render an opinion regarding the merits of the claim against petitioner. Based on his review of the investigative file and an interview with petitioner, Dr. Arostegui concluded: . . . As a result of my extensive review, I have come to an opinion that is substantially different from that of the other physician who previously reviewed this file. I attribute this difference to the level and intensity of my review and scrutiny of the file records and my interview with Dr. Gonzalez who I found to be very professional, concerned and wholly credible. CONCLUSION: Dr. Ada Gonzalez was faced with a very difficult patient who was obese and, as a result, difficult to examine and who appeared to be clinically less sick than she really was. This patient developed a severe pelvic infection as a result of a home made intrauterine contraceptive device which probably was placed illegally and without regard for patient safety. The device was not disclosed to Dr. Gonzalez by the patient and it is reasonable to expect that Dr. Gonzalez would not uncover the device under the circumstances. Dr. Gonzalez attempted to get proper surgical evaluation and care for this patient but the patient refused, went home and, at least six hours later, appeared at an emergency department where the continuity of communication with Dr. Gonzalez was broken, the diagnosis was completely missed and the patient expired. In my opinion, Dr. Ada Gonzalez' care did not fall below community standards. However, Dr. Gonzalez did a less than satisfactory job of documenting her care of this patient and this probably had a role in the formulation of the different opinion by the other reviewing physician. It is particularly worth noting that the physician reviewer did not mention the existence of the home made intrauterine contraceptive device. On or about February 11, 1993, petitioner's counsel provided the Department a copy of their expert's report with the understanding that the Department would provide the report to its expert and if the expert's opinion was materially changed as a result the Department "would entertain taking this case back to probable cause, perhaps dismissing it or softening at least the consent agreement by eliminating perhaps probation or other items" [TR. pp. 15- 16]. Upon receipt and review of the aforesaid report, the Department amended the administrative complaint to correct certain factual inaccuracies. In this regard, paragraphs three, four and five of the original compliant, which had inaccurately averred that petitioner had treated the patient on October 8 and 31, 1988, were dropped; paragraph 7 of the original complaint, now paragraph 4 of the amended complaint, was amended to reflect that petitioner had "referred her [the patient] to a gynecologist in two weeks, and asked her to return in two days," as opposed to having simply "scheduled her to see a gynecologist" as alleged in the original complaint; and paragraph 10 of the original complaint, now paragraph 7 of the amended complaint, was amended to correctly reflect that petitioner referred the patient to Fatima HMO for observation, as opposed to referring her to Jackson Memorial Hospital as alleged in the original complaint. Other than such factual corrections, the premise for the charges leveled against petitioner remained unchanged. On April 16, 1993, the Department forwarded a copy of the amended complaint, which had been filed that date with its clerk, and a copy of petitioner's expert report to Dr. Bernstein for review. The cover letter that accompanied such materials concluded "Please read over the enclosed materials. If you see anything that you want to bring to my attention, please give me a call . . . ." Here, the proof fails to demonstrate any change in Dr. Bernstein's opinion as a consequence of his review of the materials, but fails to explicate why no change occurred. 2/ By letter of April 19, 1993, the Department advised petitioner's counsel of the amendment of the complaint, consequent to her review of his expert's analysis, and encouraged petitioner's agreement to a proposed stipulation for settlement of the case. Ultimately, in September 1993, the parties entered into a written consent agreement, subject to Board approval, to resolve the subject dispute. On or about October 2, 1993, the consent agreement was presented to the Board of Medicine for consideration. Present were fourteen members of the Board; however, one member, Dr. Louis Murray, was excused from participating since he had served on the probable cause panel. Pertinent to this case, the transcript of the Board meeting reflects the following comments by Board members: CHAIRMAN DAUER: Thank you. I just want to make a few opening comments here. I was a little bit disturbed when I saw the materials here, and let me express my concerns here. I think the doctor in this case probably did everything right. You had a patient that she first saw on November 14th, she ordered a beta HCG, it's clearly on the order here, the pregnancy test came back negative, there's no history of the IUD, she appropriately treated her, I think her medical records are adequate, and what happened, she even referred her to a gynecologist. She got the patient back in 48 hours, and I think it was an incident that could not be expected. There's no way to expect this woman to have a ruptured tubal with the results she had done, the history that was not adequate. I think this doctor did everything right. I looked at this case material and I said why is this even here. I think the case should have been dismissed. * * * DR. ECHEVARRIA: I thoroughly agree with your comments, Mr. Chairman. As I read the original AC, I made a note to take issue with the Administrative Complaint to start with, and I really feel that she did things according to the book and it is an unfortunate final ending in this case, and I'm kind of wondering why peritonitis with a ruptured tubal would kill her this quickly. We see people with ruptured diverticulitis, ruptured appendices that linger on and on and on, and it doesn't kill them. So I don't know why the death occurred so quickly without a lot of other symptoms being associated with it. So I think there may have been something like toxic shock or whatever, as a result of the foreign body. I would agree, I would certainly favor a move to dismiss. Following such dialogue, a motion was made by a member of the Board to reject the consent agreement and dismiss the case. The motion passed unanimously, and by final order dated October 8, 1993, filed with the Department of Professional Regulation October 27, 1993, the consent agreement was formally rejected and the case dismissed. Whether the action of the agency was substantially justified or other special circumstances exist which would make an award of attorney's fees and costs unjust. Here, facially, the probable cause panel had before it evidence in the form of its expert's report that would, if his opinions were credited at final hearing, suggest that petitioner had failed to maintain adequate medical records and had failed to maintain the appropriate standard of care. The reliability or efficacy of that expert's opinions has, however, been rendered suspect by the Board's unanimous conclusion that petitioner's medical records and treatment were appropriate. Under such circumstances, and the Department having failed to demonstrate, at hearing, that the information upon which the Board based its decision differed in some marked degree from that considered by the probable cause panel or to offer proof to explicate the basis or reasonableness of the expert's conclusions, the expert's report cannot be accepted at face value as reasonably indicating that the violations had occurred. Therefore, it must be concluded that the Department has failed to demonstrate that its decision to initiate the underlying action was substantially justified or special circumstances exist which would make an award of attorney's fees and costs unjust. While the Department may have failed in its burden to demonstrate that its action was substantially justified, such does not compel the conclusion that any pleading or paper filed by the Department was interposed for an "improper purpose," such that attorney's fees and costs would be appropriately awarded under Section 120.57(1)(b)5, Florida Statutes. To the contrary, the proof fails to support such conclusion. Moreover, and most importantly, the proof fails to demonstrate that the subject charges ever pended before the Division of Administrative Hearings and, therefore, as discussed in the Conclusions of Law, there is no basis upon which to assess attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes.
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ 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 one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as 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 of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a physician licensed in the State of Florida, having been issued license number ME 47469. Respondent's address of record is Gastroenterology Consultants, 4700-M Sheridan Street, Hollywood, Florida 33021. Respondent, who has practiced medicine in the State of Florida since 1984 and is board-certified in the specialty of gastroenterology, has not been the subject of prior disciplinary action by the Board of Medicine. At all times pertinent to this matter, Respondent enjoyed surgical privileges at Memorial Hospital West in Pembroke Pines, Florida. The Allegations On December 2, 2010, patient V.C., a 59-year-old registered nurse, presented to Respondent's medical office to seek treatment for gastrointestinal issues. During the appointment, Respondent recommended that V.C. undergo a colonoscopy (for routine screening purposes), as well as an esophagogastroduodenoscopy——an upper endoscopy, or "EGD"——to address her symptoms of indigestion. Following a discussion of the risks and benefits of both procedures, V.C. provided informed, oral consent for Respondent to perform both procedures on a subsequent date. As is customary in the medical field, Respondent delegates scheduling tasks to one or more of his employees.3/ Consistent with this practice, a member of Respondent's staff scheduled V.C.'s colonoscopy and EGD for February 4, 2011, at Memorial Hospital West. Several weeks before the scheduled procedures, one of Respondent's assistants telephoned V.C. and informed her (V.C.) that her health insurance carrier would not pay for the EGD because she had yet to exceed her $5,000 annual deductible.4/ (V.C.'s insurer was, however, willing to assume the cost of the colonoscopy). In response, V.C. advised Respondent's staff member, during the same telephone conversation, that she no longer wanted the EGD on February 4, 2011, and wished to delay that particular procedure until later in the year——at which time, presumably, V.C.'s deductible would be satisfied. Unfortunately, and for reasons that are not apparent from the record, Respondent's assistant never informed him of V.C.'s instruction to cancel the EGD. On February 4, 2011, V.C. appeared at Memorial West Hospital to undergo her scheduled colonoscopy. At 1:30 p.m., a hospital nurse presented V.C. with a two-page document, which V.C. agreed to sign, titled "Consent to Surgery / Procedure." The pre-printed section of the consent form provided, in relevant part: I hereby authorize the physician(s) listed below and such assistants (which may include, without limitation, surgical resident and medical assistants employed by Memorial HealthCare System) as may be selected by him/her to perform the procedure known as . . . . On the first page of the document, immediately below the above- quoted language, "colonoscopy" was handwritten in prominent (and legible) block script; no other procedures were listed. At approximately 4:15 p.m., a member of the hospital staff presented Respondent with a copy of V.C.'s consent to surgery form. Consistent with his normal routine, Respondent signed, but did not examine, the consent document; as a consequence, Respondent did not notice the conspicuous absence of the EGD procedure from the form.5/ Fifteen minutes later, V.C., who lay on a gurney and had yet to be placed under anesthesia, was moved to the surgical suite. Thereafter, at 4:48 p.m., while V.C. was still fully conscious, Respondent conducted a "timeout." That is, Respondent announced, to the members of his team, the identity of the patient, her date of birth, any allergies the patient may have had, and the procedures he intended to perform: a colonoscopy and an EGD. No member of the team objected, and, for reasons that are unclear, V.C.——who, by that time, had been fasting for more than 16 hours and has no recollection of what occurred during the "timeout"——remained silent. Following the "timeout," a gastroenterology assistant, Rene Mendoza, instructed V.C. to open her mouth so that a bite block could be placed between her upper and lower teeth. Mr. Mendoza also informed V.C. that the bite block was intended to protect her teeth from the endoscope. V.C., although cooperative with the request, made no affirmative response to Mr. Mendoza's statements. Moments later, general anesthesia was administered to V.C., at which point Respondent performed a colonoscopy and an EGD. Soon after the procedures were completed, Respondent examined V.C.'s consent document and noticed that an EGD had not been listed. In lieu of an investigation into the matter (Respondent had not spoken personally with V.C. since the initial appointment on December 2, 2010), Respondent's immediate reaction was to add "upper endoscopy" next to "colonoscopy" on V.C.'s consent document. Wisely, however, Respondent quickly changed his mind and crossed through the added language. Shortly thereafter, and prompted by the content of the consent document, Respondent learned for the first time of V.C.'s decision to delay the EGD. In a subsequent letter to Memorial West, Respondent chalked the incident up to a miscommunication between himself and one of his staff: From what I know at this present time, the insurance company . . . would not cover for an upper endoscopy, however this is the fact that I learned after the procedures had been performed on 2/4/11 . . . . Following the procedure I did look at the consent form and asked why only colonoscopy was written and why an endoscopy was not included. There was miscommunication between my medical assistant and myself initially not knowing this above information . . . . Unfortunately, due to the multiple areas of miscommunication despite our time-outs, things were missed and we will place better constraints to verify this does not happen again. (emphasis added). On or about February 9, 2011, Respondent made contact with V.C. and advised that he would waive all costs associated with the EGD. With her financial concerns alleviated, V.C. is, at present, satisfied with Respondent's services, and, in retrospect, grateful that the EGD was performed. Summary of Evidence / Findings of Ultimate Fact Notwithstanding V.C.'s satisfaction with the final outcome, Respondent lacked V.C.'s authorization to conduct an EGD at the time it was performed——a fact of which Respondent should have been aware when the procedures were carried out. As detailed above, V.C. decided, based upon financial circumstances, to proceed only with the colonoscopy; this decision was communicated to one of Respondent's employees several weeks in advance of February 4, 2011, and reflected in the consent document that Respondent had in his possession before the EGD was performed. It is determined, as a matter of ultimate fact, that Respondent performed an unauthorized procedure (an EGD), and is therefore in violation of section 456.072(1)(bb), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Finding that Respondent violated section 456.072(1)(bb), Florida Statutes, as charged in Count I of the Complaint; Issuing Respondent a letter of concern; Imposing a fine of $750.00; Ordering Respondent to complete five hours of risk management education; and Ordering Respondent to attend a one-hour lecture on wrong-site surgeries. DONE AND ENTERED this 21st day of September, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2012.
