The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent discriminated against Petitioner in its employment decisions in violation of Section 760.10, Florida Statutes (2001).
Findings Of Fact Petitioner, Oscar Jones (Petitioner), is a black male. He began working for Respondent in July 1997, as a longshoreman working on "chicken boats." In that position, Petitioner loaded boxes of frozen chicken into the holds of refrigerated ships. Respondent, Coastal Maritime Services, LLC (Respondent), is engaged in the business of stevedoring and seaport terminal operations, including loading and unloading ships, and receiving cargo. On May 28, 1998, Respondent injured himself when a very heavy box of frozen chicken fell on his ankle. Other than first aid at the worksite, Petitioner declined further medical treatment that day. He was given a medical form authorizing treatment at the medical clinic which provided medical services to injured employees who might be covered under Respondent's workers' compensation insurance. The next day, on May 29, 1998, Petitioner sought medical treatment for his injury at the medical facility which handled Respondent's workers' compensation injuries. As part of that treatment, Petitioner was asked to take a drug test and Petitioner consented. Although no formal written drug test policy was in effect by Respondent at the time of Petitioner's injury, the general policy and practice was that a work-related injury would subject an employee to a voluntary drug test. Petitioner's drug test came back positive for marijuana. As a result of the positive drug test result, Respondent's insurance carrier controverted Petitioner's workers' compensation claim. There was no evidence that Respondent's management had any responsibility or involvement in the carrier's decision to controvert Petitioner's entitlement to workers' compensation benefits. During the 12-month time period of January 1998 through December 1998, Petitioner was not the only employee of Respondent required to take a drug test after a work place injury. In fact, in June 1998 (the same time period as Petitioner's test) seven white employees were required to take a drug test and three black employees were required to take a drug test. For the entire 1998 calendar year, 51 total drug tests were administered, with 31 of those tests administered to non- black employees (for example, white or Hispanic) and only 21 of those tests administered to black employees. Similarly, for the entire 1998 calendar year, a total of 18 employees were not administered drug tests, either because medical attention was refused or because of the severity of the injury. Of those 18 employees, 11 were non-black employees and seven were black employees. Employees who were not required to take a drug test either were those who refused medical attention or who were severely injured and had to seek treatment from hospital emergency rooms where drug tests were not given. Clearly, race played no factor in who was required to take a drug test or who received a drug test. Petitioner did cite the names of two white employees, Jay Chavers and Andy Wiley, who allegedly were treated more favorably than Petitioner, in that those two employees did not take a drug test. However, those two employees were not "similarly situated" to Petitioner. First, the injuries of both Mr. Chavers and Mr. Wiley were much more serious in nature than the contusion (bruise) that Petitioner had suffered and both were taken to emergency rooms for their injuries where drug tests were not routinely administered. Specifically, Mr. Chavers had fallen from a high distance and suffered numerous broken bones, thus, rendering him incapable of giving consent to a drug test at the hospital. As to Mr. Wiley, his injuries were not subject to workers' compensation coverage, unlike Petitioner's. Thus, given the nature of the injuries of Mr. Chavers and Mr. Wiley, those two individuals were not sufficiently "similarly situated" to Petitioner to enable him to establish a prima facie case of racial discrimination. Petitioner's positive drug test result had no other impact on his employment with Respondent, apart from the controversion of his workers' compensation benefits. Indeed, Respondent attempted to get Petitioner to return to work. Shortly thereafter, in early June 1998, Petitioner contacted the chief financial officer of Respondent, Kathleen Wiley, who in 1998 was Respondent's office manager. Petitioner expressed concern to Ms. Wiley about his workers' compensation benefits and his employment status with Respondent. Ms. Wiley informed Petitioner that he was still considered to be employed with Respondent and that he needed to contact Ben Brown for a light duty assignment. Petitioner was expressly informed that light duty work was available that would meet his medical restrictions imposed after his injury. Petitioner never followed-up with Mr. Brown about light duty work. Almost immediately thereafter in June 1998, Respondent hired Bud Underwood as its new safety manager. Mr. Underwood's responsibilities were to oversee workers' compensation cases and follow up on accidents and injured employees. Ms. Wiley informed Mr. Underwood to follow up on the situation of Petitioner to get him to return for a light duty assignment. In late June or early July 1998, Mr. Underwood contacted Petitioner as directed and offered him light duty work within his medical restrictions. Petitioner informed Mr. Underwood in very obscene terms that he was not going to accept any light duty assignments. Petitioner never appeared for any light duty assignments after that conversation. Based upon Petitioner's response to that telephonic offer of light duty employment, Respondent sent Petitioner a letter around July 9, 1998, informing him that based upon his refusal of light duty work, he had been deemed to have abandoned his employment, and thus was no longer employed by Respondent due to self-termination. Thereafter, in September 1998, Petitioner contacted Respondent by telephone seeking employment. However, by that time, opportunities for longshoremen, such as Mr. Jones were extremely limited, as the "chicken boat" operation had all but shut down for financial reasons, and no positions were available at the time. Thus, Respondent sent Petitioner a letter dated September 2, 1998, informing him that no positions were available, but encouraging him to reapply. Despite the invitation to Petitioner that he should reapply, Petitioner never submitted any subsequent inquiry for employment. Respondent's "chicken boat" operation had shut down completely by February 1999. Petitioner later applied for unemployment compensation benefits, but those benefits were denied on the ground that Petitioner had abandoned his employment by refusing the light duty work that was offered to him. In fact, in an evidentiary hearing held in his unemployment compensation matter, the Unemployment Appeals Referee found as a fact that Petitioner admitted that he had refused the light duty work offered to him. Petitioner's appeal of that adverse decision was, likewise, denied by the Unemployment Appeals Commission. Petitioner's race played no role in Respondent's determination that Petitioner had abandoned his employment or in Respondent's determination that no position existed for Petitioner in September 1998. Similarly, race played no role in the insurance carrier's decisions regarding Petitioner's workers' compensation benefits. In fact, Petitioner voluntarily settled his workers' compensation claim disputes in a settlement agreement signed by him and his attorney dated March 22, 1999. Petitioner had a family to support and needed the money. Pursuant to that settlement agreement, Petitioner agreed to accept $4,500 in full, final and complete settlement, release and discharge of any and all claims against the employer arising out of Petitioner's alleged accident, injury, and disability in issue, including, but not limited to claims for temporary total, temporary partial, permanent total, and/or permanent partial disability compensation, and past and future medical benefits. Petitioner verified that the settlement was adequate and was not entered into under duress. Rather, Petitioner of his own accord thought that the settlement was in his best interest. The Department of Labor approved the settlement. Petitioner has made no credible showing that there was any relationship between his race and the adverse employment actions of which he has complained.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 16th day of December, 2002. COPIES FURNISHED: Peter Reed Corbin, Esquire Richard L. Ruth, Jr., Esquire Ford & Harrison LLP 121 West Forsyth Street Suite 1000 Post Office Box 41566 Jacksonville, Florida 32203 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Oscar Jones 1817 East 27th Street Jacksonville, Florida 32206 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of July, 2000.
The Issue Whether Respondent raced an animal with a drug in violation of section 550.2415(1)(a), Florida Statutes (2012),1/ as alleged in the Administrative Complaints, and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes (2015). At all times material, Mr. Ziadie held a pari-mutuel wagering occupational license, number 701515-0121, issued by the Division. At all times material, Mr. Ziadie was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D-6.2/ Under section 550.2415(1)(a), an animal may not be raced with any drug. It is a violation for any person to administer a drug to an animal which results in a positive test in samples taken from the animal after the race. Under section 550.2415(1)(c), "[t]he finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race." Under rule 61D-6.002(1), "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the . . . horses he/she enters to race." As reflected in Division records kept in accordance with the 2010 Equine Detention Barn Procedures Manual ("the Manual"), which was in effect at all relevant times, Mr. Ziadie was the trainer of record of the thoroughbred horses from which samples were obtained in Ziadie I and Ziadie II. Mr. Ziadie is substantially affected by the Division's intended action. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division collect urine and blood samples from racehorses. It includes a fenced- in and secured area that generally has at least six stalls, as well as an area for walking the horses after a race. After a horse has been selected for sample collection (usually the top two or three finishers and sometimes a "special" that has been added at the request of the stewards), a Division employee tags the horse and accompanies it back to the detention barn. Along the way, a Division veterinary assistant assigned to the horse assumes custody and escorts the horse. At the barn, the horse is positively identified by means of a tattoo on the underside of its lip. The horse is walked to cool it down and sometimes bathed, and then taken into a stall for sample collection. Following their respective races, Mr. Ziadie's horses were immediately taken in this fashion to the detention barn for the taking of urine and blood samples. The Division publishes the Manual under the direction of Ms. Blackman as the chief of operations. The Manual is used at all horse racing facilities in the state of Florida and was last updated on June 25, 2010. The Manual provides that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the Manual. It describes seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and describes detailed procedures in this "strict sequence of events that must be followed." As the Manual makes clear, Division employees at the detention barns in the state of Florida are all required to follow the procedures outlined in the Manual "each and every time" they work with samples. They do not have discretion not to follow its requirements. Mr. Stirling credibly testified that in his capacity as executive director of the Florida Horseman's Benevolent and Protective Association, a position he has held for 20 years, he was an advocate for the horsemen. He attended all of the workshops for rules relating to medication overages as one of his primary duties. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in the Manual were never discussed at a rulemaking hearing. These procedures are not a part of rule 61D-6.005, adopted in 2001. As he testified, Mr. Stirling was not even aware of these procedures until a month or two before the final hearing in these cases. The Manual has not been adopted under the procedures of section 120.54. At the time of these races, rule 61D-6.005, effective November 19, 2001,3/ governed the procedures for the taking of urine and blood samples from the horses. Subsection (3) provided in part: The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. Subsection 4.5 of the Manual describes the sample tag in greater detail: RL 172-03 is a self-adhesive sequentially numbered bar-coded, three part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory that is used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (Blood, Urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card, is completed and appropriately signed and is sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen ("blood label"), the numbered portion designated for the urine specimen ("urine label"), and the numbered portion containing additional information about the animal and trainer that is to be signed by the witness ("card"). In the sampling procedures followed in these cases, the blood label was not affixed to the collection tube. The blood label, from which the card portion was "detached," was affixed to the evergreen blood tube. This was consistent with the governing rule, as well as the Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed with respect to the serum and urine samples taken in Ziadie I and Ziadie II were in compliance with the procedures set forth in the Manual. As stated in subsection 4.4 of the Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with." The same purposes are served by sealing the serum specimen. After the blood samples were taken by the veterinarian, they were not "sealed" in the collection tubes. The fact that the collection tubes are air tight prior to and after the taking of the blood and initially contain a partial vacuum to facilitate collection, does not constitute "sealing" of the specimen in its container for purposes of the rule. As Dr. Watson testified: Q: Okay. Are these 15 milliliter tubes sealed? A: Well, they're sealed in that there's a vacuum in there and in order to draw the blood efficiently, that vacuum has to be there. If that seal is broken then it would not work. But, as far as sealing for legal purposes, they're not sealed at that time. There's a process that it has to go through in order to extract the serum. The three collection tubes are not the specimen container, but the last three digits of the number from the blood label affixed to the specimen container were written on each blood collection tube with a black "Sharpie" type marking pen to ensure control of the sample. The Manual prescribes detailed procedures for spinning the blood collected from the race horses in a centrifuge to extract the serum. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in the Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the Manual provides: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. Rule 61D-6.005 does not make any reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape, or the freezing of the specimen. The Manual establishes additional policies and procedures not contained in the rule. The serum must be separated from the blood because whole blood cannot be frozen without damage that would affect its usefulness in laboratory testing. Centrifuging facilitates the separation of the serum from the whole blood. The transfer of the separated serum from the glass collection tubes to the plastic evergreen tube is then done for two reasons. First, the plug that helps separate the serum can allow the blood cells to seep around and return to the serum, where they can release hemoglobin and iron, which can distort laboratory analysis. Second, using the plastic evergreen tube saves shipping weight and reduces the incidence of breakage during shipping. The centrifuged collection tubes are stored in a locked refrigerator. The opening of the centrifuged collection tubes and the pouring of the serum into correspondingly numbered evergreen specimen containers is carefully performed by Division employees with the intent to avoid contamination. The sealed evergreen specimen containers then remain in a locked freezer until they are shipped to the laboratory. The evidence was clear and convincing that the serum specimens in these consolidated cases were derived from the blood sample tubes bearing the same last three numbers as the tag which was prepared when the blood was taken. The serum specimens came from Mr. Ziadie's horses. Dr. Barker testified that the "free pour" of the serum was the point at which the specimen was most vulnerable, and that contamination or tampering was possible. He stated he would have preferred more supervision, witnessing, and documentation as to who was doing what, at what time. Dr. Cole concurred that there is always a possibility of contamination when a sample is transferred from one container to another. However, the free pour method used to transfer the serum from the collection tubes into the evergreen specimen container is one of the better approaches, as opposed to using a pipette or other method that would put something into the sample. Contamination from the free pour of the serum is unlikely. There was no evidence introduced to suggest that misidentification, tampering, or contamination of the specimens was likely or probable. The state veterinarian who took the blood sample from each horse signed PMW Form 504, a Daily Record of Sample Collection, indicating that this had been done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it. Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. No document is signed to note the time that the state veterinarian leaves the samples at the detention barn or the time that the chief veterinary assistant opens the collection tubes and transfers the serum. Custody of the samples remains with Division personnel throughout this process. No transfer of custody takes place until the specimen containers are shipped to the laboratory. In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag (Form RL 172-03) after the taking of the urine and blood samples. In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag after the sealing of the urine specimen in its container, but before the sealing of the serum specimen in its container, the evergreen tube. In each instance of sampling in these cases, the owner's witness did not observe the extraction of the serum or the sealing of the serum specimen in its container with the evidence tape. The witnesses could have remained to watch those procedures had they requested to do so. Subsection 4.6 of the Manual states, "the owner, trainer of record or designated authorized witness may leave with the released animal or may elect to witness the conclusion of the collected blood specimen processing and sealing cycle." According to Division policy, two signs are posted in the detention barns to advise owners' witnesses that they may remain to witness the centrifuge process and sealing of the sample. Specific testimony that a sign was in place at the exact times sample collection took place in each of these races, or the exact location that it was posted, was lacking. However, there was more general testimony from Dr. Watson that signs have been posted ever since he has been employed. Dr. Watson credibly testified that, during the five years he has been working at the tracks, no owner's representative has ever stayed to watch the centrifuging of the samples or the sealing of the serum specimen container. The pouring of the collection tubes into the specimen container takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an owner's witness to remain until the serum specimens were sealed. The procedures that were followed--set forth in the Manual--which allowed the owner's witness to sign the sample tag after witnessing the taking of the blood but before the sealing of the specimen, were not in compliance with rule 61D-6.005(3), quoted above, which required the owner's representative to sign as a witness to both the taking and sealing of the specimen. Even had it been clearly shown that signs advising the owners' representatives that they were allowed to stay and witness the sealing of the specimen container were prominently displayed on every occasion on which the samples were taken, this would not bring the procedure being followed into compliance with rule 61D-6.005(3). The requirement that the authorized representative must witness not only the taking, but also the sealing of specimens, is a provision directly related to maintaining integrity in the sample collection process. Such deliberate disregard of the plain language of the rule directly affects the fairness of the entire blood sampling procedure. The urine and serum samples in these cases were properly delivered to the University of Florida racing laboratory and the integrity of the samples was intact. The laboratory conducts an initial screening of each urine sample in a process of elimination to weed out negative samples that do not contain any suspected drugs. This screening looks at a large number of samples and screens them broadly. The suspicious samples are then subjected to confirmation testing, in either serum or urine, testing a fewer number of samples and targeting for detection of specific drugs. The Association of Racing Commissioners International create Uniform Classification Guidelines for Foreign Substances. Classes range from class I drugs, which have no therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Class III, IV, and V drugs all have some therapeutic value. Clenbuterol is a bronchodilator, a drug which may be prescribed for horses for therapeutic purposes. If a horse had blood or sand in his lungs after a race, he might be placed on clenbuterol for five to eight days, twice a day, and the medication would clean the lungs out completely. Clenbuterol also has the capacity to be a repartitioning (conversion of fat into muscle) agent. It is not as effective as an anabolic steroid, but it does have the capacity for building muscle. Rule 61D-6.008 does not permit any clenbuterol in the body of a racing animal on race day. Clenbuterol is a Class III drug under the Uniform Classification Guidelines for Foreign Substances. Phenylbutazone is a nonsteroidal anti-inflammatory drug effective in treating fever, pain, and inflammation. It was credibly described as having effects similar to aspirin. Rule 61D-6.008(2)(a)2. provided in part that, "[p]henylbutzone may be administered to a horse providing . . . the post-race serum sample of such horse contains a concentration less than 2 micrograms (mcg) of Phenylbutazone or its metabolites per milliliter (ml) of serum." Phenylbutazone is a class IV drug under the Uniform Classification Guidelines for Foreign Substances. The laboratory routinely receives only the information on the urine and blood labels with the specimens and does not know the identity of the horse or trainer. Samples tested in the laboratory are assigned an "LIMS" number internal to the laboratory and do not contain any information that would identify the horse or trainer. The technicians who actually conduct the tests are not informed of the name of the horse or trainer involved. Once the Division is advised by a laboratory report that a sample has "tested positive" for a particular substance, the Division matches the laboratory report to the sample tag, which has been kept under lock and key, to determine the identity of the horse and trainer. The stewards and trainer are then notified. After the trainer is notified of positive results, he has the opportunity to request a split sample. In this procedure, a portion of the specimen is shipped from the University of Florida laboratory to an outside laboratory for independent analysis. There is a minimum amount of a drug that can be detected scientifically with a reliable concentration range. As the scientific capability to detect a drug improves, this testing level can be lowered by a laboratory. The instrumentation can almost always detect the presence of the drug below the reliable concentration range that establishes the testing level. As Ms. Wilding testified, a "withdrawal time" is the time interval prior to sample collection at which the last administration of a drug can take place to allow the drug to be cleared from the horse's system so that no "positive" would be reported in that sample based upon the test detection level or reporting point for that particular drug. Mr. Stirling testified that based upon informal conversations with Dr. Tebbet, Dr. Cole, and Dr. Sams, former directors of the laboratory, he had disseminated information to horsemen for years that a five-day withdrawal time would be appropriate for clenbuterol. From July 1, 2010, until June 30, 2011, there were four clenbuterol positives from horse race tracks in Florida. From July 1, 2011, until June 30, 2012, there were 13 clenbuterol positives from horse race tracks in Florida. During this same fiscal year, the laboratory also found the presence of clenbuterol in 193 additional samples, but did not deem them "positives." In these samples, the laboratory detected clenbuterol in a concentration of less than 25 picograms per milliliter. Dr. Barker credibly testified that the fact that 193 findings of clenbuterol at less than 25 picograms per milliliter were not called "positives" indicated that either the laboratory or the Division had some form of confirmation level established. As Ms. Wilding testified, changes to the protocol as to the amount of a drug that must be present in a sample before that sample will be called "positive" are made through revisions to the laboratory's standard operating procedures (SOPs). Ms. Blackman testified that she had conversations with Ms. Wilding at the laboratory "sometime in, maybe, the summer of 2012" about the ability of the laboratory to calibrate their instruments to detect clenbuterol at the lowest level, based upon Ms. Blackman's understanding that clenbuterol was being abused, in that it was being prescribed not just for its bronchodilator effect, but also for its anabolic effects. SOP DCN: R1.07.04.05.04-07, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective April 27, 2012, established the low end of the calibration curve at 10 picograms per milliliter. The amount of the lower positive control was 25 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported." From July 1 until December 31, 2012, there were nine clenbuterol positives from horse race tracks in Florida. The first Florida positive called by the laboratory for a thoroughbred race horse whose post-race serum sample contained a level of clenbuterol less than 25 picograms per milliliter of serum was for the first race in Ziadie I, on July 4, 2012, which was reported as a positive with a level of 18 picograms per milliliter. Testing also confirmed in serum the presence of phenylbutazone in that first sample, in the amount of 2.3 micrograms per milliliter, an amount in excess of the 2 micrograms per milliliter which is permitted. The laboratory results were sent to the Division by letter dated August 6, 2012. The initial confirmation of the phenylbutazone overage and clenbuterol positive from the race of July 4, 2012, was originally sent to the stewards to resolve but was later taken from the stewards and turned into an administrative complaint. On August 9, 2012, a long article appeared in the Miami New Times entitled "Cheaters Prosper at Calder Park." The article described a racing industry tainted by drug violations and criticized the Division for lax regulations and poor enforcement. The article identified Mr. Ziadie by name, giving a short biography and saying there were signs of "systematic rulebreaking" over his long racing career. Ms. Blackman saw the article. She also forwarded an e-mail attaching the article to Ms. Wilding at the laboratory. Clenbuterol was confirmed in serum taken after the other four races of the Ziadie I complaint, held on August 17, August 30, September 14, and September 27, 2012. The concentration of clenbuterol in those samples ranged from 10 to 21 picograms per milliliter. The results from the laboratory were provided to the Division on September 25, October 1 (two races), and October 16, 2012. At Mr. Ziadie's request, the samples were split, and an independent laboratory confirmed the presence of clenbuterol in each sample. In late December 2012, the Division gave the laboratory authority to begin conducting confirmation testing for clenbuterol in urine rather than in serum. In the beginning of 2013, the laboratory changed to a 140 picogram per milliliter confirmation level for clenbuterol in urine. The Division did not give notification to the horsemen or veterinarians of these changes. From January 1, 2013, until June 30, 2013, there were 154 clenbuterol positives from the horse race tracks in Florida. Dr. Barker testified: So you would be able to see clenbuterol in urine for a much longer period of time. And, of course, that's also why ARCI now has a urine threshold instead of a plasma threshold because the idea was to push it out as far as they could and still be able to call it. They couldn't do that sufficiently in blood, they felt, so they converted it to a urine threshold. So if you go from a plasma threshold to a urine threshold, particularly the-–if it's a threshold that ARCI has recommended, you know, ARCI threshold is 140 picograms per ml in urine, and that's based on using the lowest dose and a 14-day withdrawal. Well, if you had been using the lowest dose and had been following a five-day withdrawal, you would come up positive. If you had been using the lowest dose and had been following a ten-day withdrawal, you're going to come up positive. And so if people, trainers and veterinarians, were not being informed of a change in how the laboratory was testing and interpreting data, and basically was working from a position that required a longer withdrawal time and the horsemen didn't know that, well, you're going to-–you should get all kinds of positives. Dr. Barker's explanation of the consequences of changing from a serum confirmation to a urine confirmation for clenbuterol is credited. His testimony also at least partially explains why there is not a clear correlation between the concentrations of clenbuterol detected in serum with the concentrations detected in urine from samples taken at the same time. The amounts of clenbuterol and the times it was administered to the horse remain unknown variables, and clenbuterol is detectable for a longer period of time in urine. Differences might also be explained by the amount of water the horse drank, or other factors. On or about February 8, 2013, following the great increase in the number of positive calls for clenbuterol, Mr. Stirling posted a notice regarding withdrawal times at the tracks and published it in the "overnights" that went to trainers. The notice stated: According to the Department [sic] of Pari Mutuel Wagering the withdrawal time for clenbuterol is the same as it was previously (5 days) at the proper dosage. If you had a recent positive for clenbuterol and used the old/new withdrawal time there should be no administrative action taken against you. At either the end of February or the beginning of March of 2013, the Division requested the laboratory to return to clenbuterol confirmation screening in serum, rather than urine. SOP DCN: R1.07.04.05.04-09, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective March 7, 2013, established the low end of the calibration curve at 5 picograms per milliliter. The low end of the calibration curve reflects the lower limit of detection at which the SOP can detect a drug with a reliable concentration range. The amount of the lower positive control was set at 15 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported." Clenbuterol was confirmed in serum in confirmation testing of 13 of the Ziadie II samples, taken after races from March 13, 2013, through October 27, 2013, ranging in concentration from 5 to 14 picograms per milliliter. These samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each sample. Testing also confirmed in serum the presence of phenylbutazone in the sample taken from the race on January 19, 2014, in Ziadie II, in the amount of 2.3 micrograms per milliliter, plus or minus .3 micrograms. The Division did not give notification to the horsemen of any changes in the testing level at which the laboratory would report that a sample had tested positive for clenbuterol. Ms. Blackman testified that clenbuterol is not permitted at any level on race day, and it is the trainers' responsibility, in conjunction with their veterinarians, to decide whether to administer a particular medication at all. She testified that she did not think it was in the best interest of the horses or the Division to make announcements every time they are able to detect a new drug or an existing drug at a lower level. In contrast, she noted, when the amount of phenylbutazone permitted in a horse on race day was lowered from mg to 2 mg, this was announced to the horsemen through the public rulemaking process. An advance notice of about six months allowed trainers to work out adjustments with veterinarians so there would not be a huge number of phenylbutazone positives when the new rule became effective. Since phenylbutazone is a "threshold" drug permitted on race day at no greater than prescribed amounts, Ms. Blackman testified that it was reasonable to give horsemen notice of this change. Dr. Cole testified that she had a different view about changes to testing levels of drugs such as clenbuterol that were completely prohibited on race day when she was the director of the lab, saying she believed it was "prudent and fair" to notify the horsemen of changes in advance: Often when we're changing levels or sensitivity for medication type—drugs that have legitimate use in a horse, we would try to have a conversation with the horsemen to let them know that change was coming so that they could comply. Generally it's going to be an increase in the withdrawal time that they're going to be needed. On March 20, 2013, Mr. Stirling sent an e-mail to Ms. Blackman stating that he was beginning to get low-level positives for clenbuterol again, giving an example of picograms per milliliter. He stated he thought the testing medium had been changed back to blood to return to a five-day withdrawal time and asked how the Division planned to handle the low-level clenbuterols from December. In e-mail correspondence continuing through April and May of 2013, Mr. Stirling continued to question the Division about the withdrawal time and to urge a 25 picogram per milliliter testing level. Ms. Blackman advised that the laboratory was re-confirming in serum the clenbuterol positives that had been confirmed in urine. She noted that a 10 picogram per milliliter reporting point for testing in serum had been established prior to the change in the medium for confirmation and noted there was no "threshold" for clenbuterol in Florida. On May 24, 2013, Ms. Blackman advised Mr. Stirling that clenbuterol positives confirmed in serum at 5 picograms per milliliter or a greater concentration would be prosecuted. On or about May 29, 2013, Mr. Stirling issued a memorandum to Florida horsemen advising that the Division was continuing to call clenbuterol positives at levels detected below 25 picograms per milliliter and suggesting that they should no longer rely on a five-day withdrawal time. The memorandum suggested that a 14-day withdrawal time "should be more than safe" for avoiding a clenbuterol positive. Mr. Ziadie admitted he did not change his practice of utilizing a five-day withdrawal time in response: I was still stuck on the five days, your honor. I was stubborn. I know I did wrong. I know that there was a rumor and I know there was a brochure going around 14 days. but I was trying to do the best for my horses. I thought that it was the medication that they needed at the time when we were racing and I take blame for being stubborn and making a mistake, but I did keep it at 5 days. SOP DCN: R1.07.04.05.11-06, entitled "Extraction of Clenbuterol from Horse or Dog Urine and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective October 9, 2014, established the low end of the calibration curve at 50 picograms per milliliter and the high end of the calibration curve at 2000 picograms per milliliter. The amount set for both positive controls was 140 picograms per milliliter. The SOP provided: Report the calculated concentration of clenbuterol in the suspect sample as the average of its duplicates if its calculated value lies within the range of the calibration curve. If the calculated concentration of clenbuterol in the test sample is outside the range of the calibration curve, it will be reported as either greater than, or less than the limits of the calibration curve. Based on the serum test results, the Second Amended Complaint in Ziadie I was served on Mr. Ziadie on or about September 8, 2014. The First Amended Complaint in Ziadie II was served on Mr. Ziadie on or about March 16, 2015. Other trainers whose horses tested positive for clenbuterol did not have administrative complaints filed against them. The Division, instead, settled their cases with fines. Almost all of these trainers had few prior violations, however. There was credible testimony that the Division had offered to settle charges against one other trainer who had numerous prior violations with the imposition of fines and a short suspension, but there was no evidence that a settlement had been reached. It was also noted at hearing that this trainer's recent violations were in close proximity, which suggested that he might not have been informed of the violations in one case before the samples were taken in the next. The Division noted that this could be a mitigating factor, because a trainer would not reasonably have had an opportunity to adjust his medication levels in response to the earlier violations. Ms. Wilding testified that, in early 2015, she was asked by the Division to re-confirm the 2012 positive serum confirmations from Ziadie I using the urine samples taken immediately after those races. The urine samples had been used for initial screening in 2012, but had not been used for confirmation at that time. The urine samples had been stored in a minus 30-degree freezer since the initial screening in 2012 had determined them suspicious for clenbuterol. On March 18, 2015, Ms. Wilding sent an e-mail to her immediate subordinates, the supervisors of the laboratory's four main divisions, advising that "PMW Legal is asking us to analyze the five urine samples in the first Ziadie case for clenbuterol." Her e-mail listed the sample numbers for the five urine samples and directed that they be rescreened for clenbuterol and then tested for confirmation. The 2012 urine samples were rescreened for clenbuterol in 2015, and, as Ms. Wilding testified, the results were in "good agreement" with the screening results from 2012. This indicated that the presence of clenbuterol remained relatively stable over that period of time. Although the laboratory supervisors knew the trainer associated with the samples, as Ms. Wilding and Mr. Russell testified, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed these tests were not informed of the name of the horse or trainer involved. Clenbuterol was confirmed in the urine in the 2015 tests in each of the five samples from Ziadie I, ranging in concentration from 1.8 nanograms per milliliter to 1.3 nanograms per milliliter. The samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each urine sample. There was no significant degradation of the urine samples over the three-year period. The results were scientifically sound. In early May 2015, again at the Division's request, the laboratory began confirmation testing for clenbuterol in urine samples from the Ziadie II races. These urine samples were not rescreened because, as Ms. Wilding had earlier determined from the Ziadie I urine samples, the stability of clenbuterol in urine stored in a minus 30-degree freezer for several years was "excellent." The senior staff members were again likely told about the identity of the trainer. Again, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed the confirmation testing were not informed of the name of the horse or trainer involved. The samples confirmed positive for clenbuterol at concentrations, in picograms per milliliter, of 973, 551, 390, 212, 718, 450, 236, 740, 698, 225, 435, 197, and 435, all amounts with a measurement of uncertainty at plus or minus 30 picograms. Again, these results were scientifically sound. The serum specimens were routinely collected without the owners' representatives witnessing the sealing of the specimens and were not collected pursuant to the requirements of chapter 61D-6. The systematic and regular violation of this important requirement constituted a significant procedural error that affected the fairness of the blood sampling procedure. Subsection 4.6 of the Manual is an unadopted rule. The only evidence of the presence of phenylbutazone in any of Mr. Ziadie's horses was from serum obtained pursuant to the unadopted procedures of subsection 4.6 of the Manual and in a manner contrary to the Division's own rule. The Division failed to prove that Mr. Ziadie's horses carried a prohibited level of phenylbutazone in their bodies on race day. The urine test results proved that Mr. Ziadie's horses in these consolidated cases had clenbuterol in their bodies on race day. Mr. Lawson testified that as a licensed horse owner in the United States, South Africa, and Jamaica, he has had an opportunity to observe the different ways that trainers care for their thoroughbred horses. He testified that Mr. Ziadie's stalls were always clean, the handling of the feed was always done in a very systemized and structured way, and the best feed available was used, even though it had to be imported and was much more expensive. He testified that Mr. Ziadie's horses were always well groomed, they always looked very healthy, their coats were very shiny, their feet were carefully inspected, and they were happy horses. He testified that Mr. Ziadie looked after the specific needs of each horse, rather than treating them all the same, and spent a lot of time personally inspecting them. He noted that Mr. Ziadie didn't race his horses as often as other trainers. Mr. Lawson's testimony was bolstered by the stipulated testimony of Dr. Al Smollen, a veterinarian for the tracks, and the testimony about the excellent condition of Mr. Ziadie's horses, the cleanliness of their surroundings, the quality of the feed, and the care given to the horses is credited. The Division presented clear evidence that Mr. Ziadie has had 14 prior violations of section 550.2415, Florida Statutes. The Division case number, date of offense, name of restricted drug, classification, and disposition are as follows: CASE NUMBER DATE DRUGS CLASS
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding Mr. Kirk M. Ziadie guilty of 18 counts of violating section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.002(1); imposing an administrative fine of $18,000; and suspending his license for six years. DONE AND ENTERED this 15th day of December, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of December, 2015.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
The Issue The issue for consideration in this case is whether Respondent's license as a medical technologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Clinical Laboratory Personnel was the state agency in Florida responsible for the regulation of the medical technology profession in this state, and for the licensing of medical technologists in Florida. Respondent, James A. Beyer, was licensed as a medical technologist under license number JC0033961, originally issued on November 27, 1995, and current until June 30, 2000. On February 23, 1996, B.A., a 21-year-old female, was admitted to Naples Community Hospital complaining of increasing abdominal pain. Laboratory tests run on the patient indicated she was undergoing an ectopic pregnancy. A diagnostic laporoscopy was performed, as were subsequent laporotomy and left salpingectomy with lysis of adhesions. It was also determined she had severe pelvic inflammatory disease with bilateral tubo-ovarian complexes. As a result, she was placed on drug and antibiotic therapy which improved her condition. The pathology report based on the surgery performed on the patient revealed no evidence of intrauterine pregnancy in the fallopian tube specimen. She was discharged from the hospital on February 29, 1996. Final diagnosis, as indicated on the discharge summary, was "left ectopic pregnancy" with secondary diagnoses of chronic pelvic inflammatory disease and extensive pelvic adhesions. Notwithstanding the final diagnosis, as noted on the discharge summary, the Agency contends a second pregnancy test done on the patient revealed she was not pregnant. The laboratory tests giving rise to the allegedly erroneous initial diagnosis were processed in the hospital's lab by one of two technologists. Respondent was one of the two. It appears the test results for patient B.A. were confused in the lab with those of another patient. No evidence was presented to show who actually handled and processed B.A.'s specimen, nor was any evidence introduced by Petitioner to show what the laboratory's appropriate procedures were. However, Respondent's initials were entered into the computer as having done the allegedly erroneous test. Respondent labeled the incident regrettable, as indeed it was. He admits that human error caused the mix-up in specimens, but notes that the incident took place in the primary care chemistry section of the laboratory which was staffed by several different individuals. He claims it is impossible to determine who was responsible for the error. Respondent has no memory of doing the procedure and does not believe he did it. His belief is based on several factors. The first of these is that for the error to have occurred, there would have to have been at least two specimens present: that of B.A. and that of another patient. The demographic information relating to B.A. would have to have been placed on the analyzer with the specimen from the other patient. When Respondent does this test, it is his procedure to hold the specimen in his hand while he reads the label and enters the patient identification information into the analyzer computer. Then he labels the serum cup to be used with the same patient identification information as is on the specimen container he is holding. Before running the test, he verifies the identification number on the test sample cup against the identification number in the computer, and it is inconceivable to him that he would have picked up another patient's sample and placed a portion of it on the instrument instead of the sample on which he was working. Another reason he believes he did not commit the error is that the incident was thoroughly and promptly investigated by laboratory and hospital personnel, and the human error cause was treated without placing blame on anyone. No disciplinary action was taken against him by the hospital, and he is still employed by Naples Community Hospital in the laboratory in the same position as before the incident occurred. His annual ratings before and after the incident have been "meets" or "exceeds" standards. Respondent is of the opinion that the Department of Health's investigation into the incident was superficial at best and lacks concrete evidence to support the claims of misconduct made. Petitioner presented no information to indicate what are the appropriate procedures to be followed in the laboratory for the procedure in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Laboratory Personnel enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James A. Beyer 2501 8th Street West Lehigh Acres, Florida 33971 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
