The Issue The issues in this case are whether Petitioner committed the alleged violations and, if so, should her paramedic license be revoked.
Findings Of Fact At all times relevant to this proceeding, Petitioner was employed as a paramedic by the City of Gulfport and worked as a paramedic for the Gulfport Fire Department. In this capacity, Petitioner worked under the auspices of the medical director for Pinellas County Emergency Medical Services (Pinellas County EMS). Petitioner was a paramedic from 1997 until March 2003. Prior to that time, from 1991 until 1997, she worked as an emergency medical technician (EMT). On February 20, 2003, Petitioner, along with Lt. Brian Campbell and Firefighter/EMT Dennis Jackson, were called to respond to the scene of a shooting. Petitioner was the only paramedic on the scene and, therefore, the only person on the scene certified by the Office of the Medical Director (OMD) to provide advanced cardiac life-saving treatment. Petitioner received the call at 12:22 a.m., and arrived at the patient's side at 12:30 a.m. When Petitioner arrived at the patient's side, she observed a white male, approximately 20 years old, lying on his back in the street. His skin color was ashen, his mouth and eyes were wide open, and his pupils were fixed and dilated. Upon physical examination, Petitioner could not detect a pulse and observed two small holes in the patient's trunk. At that point, Petitioner did not know whether the two holes represented two separate entry wounds or one entry and one exit wound. Petitioner observed a trail of blood, at least a block long, leading to the patient, but there was not a lot of blood around the patient. Petitioner attached an electrocardiogram (ECG) monitor to the patient to monitor the electrical activity of his heart. When Petitioner first turned on the ECG monitor, she observed four ticks of electrical activity within a 14-second span. Petitioner testified that based on her observation and physical examination of the patient, she believed that the electrical activity exhibited on the ECG monitor was not pulseless electrical activity (PEA), but rather "artifact" caused by her manipulation of the patient. Petitioner further testified that, thereupon, she stopped touching the patient and observed that the ECG read-out went mostly flat, showing only occasional ticks. Petitioner testified that these occasional ticks, as observed on the ECG monitor, indicated to her that the patient was in asystole. Shortly thereafter, Petitioner declared the patient dead. After Petitioner declared the patient dead, she prepared a Patient Care Report (Report or Patient Care Report) while still on the scene. In the Report, Petitioner wrote that she found a white male laying on the ground with an apparent small entrance wound in his upper chest and a possible small exit wound near his back rib. She further noted that the patient's temperature was normal, that his eyes were fixed and dilated, that he was not breathing (apneic), and that he had no discernible pulse. Petitioner also noted in the Report that the patient was in asystole within one minute after the ECG pads were attached, but she failed to note the initial four ticks she observed, which may have represented PEA. In the Report, Petitioner noted that at 12:30 p.m., the patient was hooked up to the monitor; at 12:31 p.m., he was asystolic; and at 12:32, she confirmed the patient dead. Upon completing the Report at the fire station, Petitioner attached to the Report the last of several ECG strips she had intermittently printed while at the patient's side. The ECG printout that Petitioner attached to the Report depicted a classic "flat line" indicative of asystole or no electrical activity. Petitioner discarded each of the ECG strips that contained some indicia of electrical activity. A Patient Care Report is a legal document that Petitioner is required to complete by law. By signing the Report, Petitioner acknowledged that the information contained in the Report was true and accurate. Later, on the morning of February 20, 2003, when the employees' shifts at the fire station were changing, Petitioner and Toni Lanahan (Lanahan), a firefighter/paramedic coming on duty, talked about the shooting incident. That such conversation occurred is undisputed. However, there was conflicting testimony as to what Petitioner told Lanahan during that conversation. According to Lanahan, Petitioner told her that when she (Petitioner) arrived at the scene, the patient looked dead but she hooked him up to the ECG monitor, that he had a rhythm but she did not work him, and that she turned off the monitor. Petitioner testified that she did not tell Lanahan that the patient had a heart rhythm, but only that the patient "was dead" and that she did not work him.1 About two hours after her conversation with Petitioner, Lanahan retrieved stored ECG code summary data of the patient described above.2 When Lanahan reviewed the ECG code summary, she saw that the patient had a presenting ECG rhythm showing approximately 40 beats per minute of PEA with gradually slowing PEA for the entire seven minutes depicted in intervals on the ECG summary. Based on her review of the ECG record of the gunshot wound patient, Lanahan believed that in this situation, the OMD protocols mandated that immediate resuscitative treatment be administered. Lanahan then reported these concerns to her emergency medical services (EMS) Coordinator, Lt. Marenkovic, who in turn, reported the incident to Gulfport Fire Chief Brian Brooks. Chief Brooks notified the OMD of the possible violations of its protocols by Petitioner. The OMD initiated an investigation, which included reviewing the written statements of Petitioner, Lt. Campbell, and EMT Jackson; the ECG code summary for the incident; Petitioner's Report; and the transcripts of the sworn interviews of Petitioner, Lt. Campbell, and EMT Jackson taken by the Gulfport Fire Department. After reviewing the above-referenced documents, Dr. Laurie Romig (Dr. Romig), the medical director of the Pinellas County EMS, decided to revoke Petitioner's certification. This decision was based on Dr. Romig's determination of the following: (1) Petitioner violated numerous protocols in the Medical Operations Manual, both administrative and direct patient care protocols; and (2) Petitioner attempted to make the situation appear differently from what it turned out to be, and that, apparently, she did that on purpose. Specifically, Dr. Romig charged Petitioner with violating Pinellas County Emergency Medical Services Protocol 2.3, Sections 5 and 6, and Protocol 10.8 and the following Pinellas County Emergency Medical Services Rules and Regulations: Sections XIII-3-b, related to falsification or inappropriate alteration of emergency medical services records; XIII-3-e, related to theft or dishonesty in performance of duty; XIII-3-i, related to demonstrated ability, failure or refusal to adhere to established protocols and standards as established by the authority; and XIII-3-k, related to just cause, including unbecoming behavior or unprofessional conduct reflecting a poor system image. The Pinellas County emergency protocols are written requirements that paramedics must follow when administering emergency treatment to patients. The protocols are published in a document entitled Pinellas County Medical Operations Manual, which is approved by the medical director and distributed to all Pinellas County EMS paramedics. Petitioner received a copy of the most recent medical operations manual in January 2003. EMS Protocol 5.10 prescribes treatment for patients presenting with PEA. As defined in Protocol 5.10, PEA is "any semi-organized electrical activity that can be seen on a monitor screen although the patient lacks a palpable, radial, brachial, or carotid pulse." When PEA is present in a patient, Protocol 5.10 mandates that immediate life-saving treatment be implemented. The patient initially had electrical activity. Nonetheless, Petitioner did not follow Protocol 5.10. According to Petitioner's testimony, she believed that the patient was asystolic and, thus, the protocol related to PEA was inapplicable to the shooting victim. Petitioner's belief was not supported by the ECG report. Protocol 5.4 delineates the procedures to be followed in the treatment of asystole. In the book utilized for Pinellas County EMS paramedic training, "asystole" is defined as a cardiac arrest rhythm associated with no discernible electrical activity on the ECG ("flat line"). Significantly, Protocol 5.4 and Protocol 5.10, discussed in paragraph 21, require that resuscitative efforts be started immediately and that such resuscitative efforts and treatment be terminated by the paramedic only "after 10 minutes of continuous asystolic arrest with appropriate interventions." Even if Petitioner's assertion that the patient was asystolic is accepted, she failed to provide the required resuscitative efforts and/or treatments prescribed by Protocol 5.4. Petitioner did not prematurely terminate resuscitative efforts, she never implemented them. Protocol 5.15 prescribes the treatment and transport considerations for "patients with cardiac arrest secondary to trauma, regardless of presenting cardiac rhythm." The protocol provides that such patients should be transported to the closest hospital emergency facility. Contrary to the requirements in Protocol 5.15, the patient was not transported to a hospital emergency facility. Protocol 2.3 requires paramedics, when possible, to contact and consult with On-line Medical Control (OLMC) in any case in "which a deviation from protocol has been made intentional or otherwise." The OLMC is a system which allows paramedics to contact the OMD and consult with a medical doctor regarding a situation in the field. Petitioner clearly deviated from Protocols 5.4 and/or 5.10, by failing to initiate and implement the resuscitation procedures required by both protocols, and Protocol 5.15, by failing to have the patient transported to a hospital emergency facility, yet she never contacted the OLMC as mandated by Protocol 2.3. Petitioner acknowledged that she did not follow either Protocols 5.4 or 5.10, both of which required immediate resuscitative efforts. Petitioner testified that instead, she followed Protocol 10.8, which provides an exception to the protocols that require initiation of resuscitative efforts. Petitioner contends that Protocol 10.8 provided the basis for her withholding resuscitation from the patient. Protocol 10.8 requires that cardiopulmonary cerebral resuscitation (CPCR) be initiated "in all cases when the patient is found in cardiopulmonary arrest unless one of the exclusion or special situation criteria applies." The exclusion criteria provides that CPCR may be withheld if the patient has, "in conjunction with apnea, pulselessness and asystole on the ECG," an "obviously unsurvivable trauma." If CPCR is withheld, Protocol 10.8 requires that exclusion criteria be fully documented and described. Protocol 10.8 does not define "obviously unsurvivable trauma." However, according to Dr. Romig, the term connotes catastrophic injuries observable by an untrained eye. Dr. Romig, an expert in emergency medicine and traumatic cardiac arrest, testified that nothing about this patient, based on her review of the records and documents, indicated that the patient had suffered an "obviously unsurvivable trauma." Also, Lt. Campbell, an EMT certified for 12 years, who was at the scene, testified that although the patient "looked dead," he could not say that the patient suffered an "obviously unsurvivable trauma" because the patient showed only a small bullet wound to the chest and a "little bit" of blood on his (the patient's) clothing. The weight of the evidence showed that the patient had not suffered an obviously unsurvivable trauma. However, even accepting Petitioner's testimony that she believed that the patient had suffered an obviously unsurvivable trauma, she failed to comply with Protocol 10.8. If Petitioner, in fact, relied on Protocol 10.8 in deciding to not administer CPCR, she was required to document and describe the exclusionary criteria, which was the basis of her decision to withhold CPCR. Petitioner failed to provide any such documentation and, thus, violated Protocol 10.8. In addition to violating the above-noted protocols, Petitioner was dishonest in the performance of her duties as a paramedic and also falsified EMS records. The ECG summary showed that despite the patient's having electrical cardiac activity of at least 40 beats, Petitioner turned off the ECG machine and pronounced the patient dead. After pronouncing the patient dead, she then turned the ECG machine on again, and intermittently printed activity on four separate occasions until reaching a reading showing no electrical cardiac activity. By engaging in this conduct, Petitioner was dishonest in the performance of her duties. Paramedics are required to truthfully and accurately complete the Patient Care Records of patients for whom they provide emergency medical services. Here, the ECG summary showed PEA of over 40 beats per minute initially and diminished electrical activity for over eight minutes total, six minutes of which were after Petitioner had already pronounced the patient dead. Petitioner initially saw a rhythm of four beats or ticks in a 14-second period, which was a beat rate of 40 and showed on the ECG strip as 42. Although the initial reading of approximately 40 beats and PEA was clearly visible during the entire nearly eight minutes depicted on the six-second intervals shown on the ECG code summary, this was omitted from Petitioner's Report. Petitioner omitted from the patient's Record the ECG readings that showed electrical activity. Instead, Petitioner reported that at the time she declared the patient dead, he was in "asystole" when, in fact, the ECG summary showed PEA. Moreover, Petitioner documented the Report with an asystole ECG strip reflecting a "flat line" reading printed some six or seven minutes after the reported time of death.3 Petitioner admitted during her sworn statement and at this proceeding that she deliberately did not attach to the Report any part of the ECG strip that reflected the interim electrical activity. Petitioner testified that the ECG strips showing interim electrical activity could raise doubts about the propriety of the treatment she gave this patient in a future criminal trial or other investigation.4 The medical director is required by law to ensure that Pinellas County EMS personnel provide quality care and are not a danger to the safety of the county's citizens, residents, or visitors. Here, Petitioner violated the protocols related to the standard of care for patients and completion of reports and rules and regulations related to dishonesty in the performance of duties and to falsification of records. These infractions are a possible threat to public health and safety of residents of and visitors to Pinellas County. As such, they constitute just cause to conditionally revoke Petitioner's Pinellas County Paramedic Certificate. The conditional revocation allows Petitioner to reapply for a paramedic certificate in two years. Such recertification may include a one-year probationary period, with monitoring by the medical director to include a review of all trauma-run reports. Petitioner's Pinellas County Emergency Medical Technician Certification was not revoked and she retains that certification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding Petitioner guilty of the violations alleged in the Notice of Revocation dated March 28, 2003, and upholding revocation of Petitioner's Pinellas County Paramedic Certificate. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 1st day of October, 2003.
The Issue An Administrative Complaint dated February 2, 1998, alleges that Respondent, Dennis Gross, M.D., violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. More specifically the Administrative Complaint alleges that Dr. Gross failed to properly diagnose and treat a 20-month old patient on August 8, 1994, which patient expired that same day.
Findings Of Fact Dennis Gross, M.D., is now and since December 31, 1973, has been licensed as a medical doctor in the state of Florida with license no. ME0021286. Dr. Gross is board-certified in pediatrics. He has had an active, private general pediatric practice in central Florida for the last 22 years, seeing an average of 30-35 patients a day. His practice consists of well child care, routine visits, physicals, and immunizations, but also includes acute care, illnesses, and injuries. His office hours are Monday through Friday and a half-day on Saturday; he routinely takes calls from his patients' parents and does not rely on his nurses to handle those calls. He also sees patients at night or on weekends at the hospital, but generally if a patient is critically ill and requires in-hospital care, he calls for a consult from a pediatric intensivist, a sub-specialty of pediatric care for critically ill children. Dr. Gross was the pediatrician for the M. family for about 12 years. R.M., a male child was born on November 18, 1992, and Dr. Gross began treating him from birth. During the course of his treatment of R.M., Dr. Gross learned that the child had a rare immunodeficiency syndrome, cyclic neutropenia, characterized by cyclical (generally 14-45 days) reduction in the patient's neutrophils (the most prevelant type of white blood cells.) R.M.'s father and older half-sibling also had this condition. When the patient's neutrophils are low, bacterial infections occur. In the infant R.M. such infections occured frequently. Between his birth and August 1994, Dr. Gross treated R.M. for various infections on approximately 24 occasions. These included boils and abcesses, infected rashes and other infections primarily localized on the skin. R.M. was also treated for normal childhood illnesses such as coughs, colds, and ear infections. On each occasion Dr. Gross was able to quickly identify the problem and treated it appropriately. For approximately 22 months R.M. thrived and achieved age-appropriate growth and developmental levels. On August 8, 1994, between 9:00 a.m. and 9:30 a.m., R.M.'s mother called Dr. Gross at his office and told him that R.M. had a low-grade fever and had vomited through the night. She said he had not vomited, however, within the 4 to 5 hours. Dr. Gross told the parent to put R.M. on clear liquids, to call back if the vomiting persisted, and to check back the following day anyway because of the child's history. Although the mother was aware of Dr. Gross' practice of seeing patients the same day on request she did not make such a request at that time. Instead, R.M.'s father, a school principal, stayed home with him in the morning and brought him to school to the mother, a teacher, in the later morning. R.M.'s mother took him home and apparently called Dr. Gross' office for a same-day appointment because she appeared with R.M. at the pediatrician's office around 3:30-4:00 p.m. When Dr. Gross entered the examining room, R.M. was walking around the room. Dr. Gross placed him on the examining table and observed an "alert and active child." His mouth appeared slightly dry and with the exception of increased bowel sounds and a rectal temperature of 104.1?, all other signs were normal. Dr. Gross told the mother that he felt R.M. had gastroenteritis, a viral infection, and told her he didn't want the child to dehydrate. He administered a shot of antiemetic and R.M. howled, a thoroughly normal reaction. Dr. Gross also prescribed Phenergan suppositories and told the mother to keep him on clear liquids slowly and call back if necessary. The child walked out of the office with his mother. Approximately 45 minutes later at home R.M. stopped breathing and was taken to the hospital. Dr. Gross was called to the hospital where CPR, epinephrine and other emergency measures were employed to attempt to revive the child. He was pronounced dead at 6:25 p.m. The autopsy determined that the cause of death was "septicemia, due to complications of cyclic neutropenia." More specifically, bacteriology studies revealed three species of clostridium, including clostridium septicum identified in the blood culture. (Petitioner's Exhibit No. 4, p. 5/83) The Standard Of Care The foregoing facts are substantially uncontroverted. The parties' dispute is whether Dr. Gross' diagnosis of R.M. on August 8, 1994, constituted failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On this issue, the experts are at odds. Petitioner's sole witness was Dr. Lucian DeNicola, a professor of pediatrics in pediatric critical care medicine at the University of Florida Health Science Center in Jacksonville, Florida. Dr. DeNicola's opinion formed the basis for the Administrative Complaint in this case. Dr. DeNicola is board-certified in pediatrics and in pediatric critical care. With outstanding education and experience Dr. DeNicola has, nonetheless, very limited experience in an active outpatient general pediatrics practice such as Dr. Gross' practice. That practice was for 6 years at an outpatient clinic operated by the University of Massachusetts and that experience ceased approximately 16 years ago. Dr. DeNicola is an intensivist, specializing in the care of critically ill children. Based on R.M.'s history and the elevated temperature, Dr. DeNicola's opinion is that Dr. Gross should have suspected something serious, should have taken or ordered a blood culture, and should have immediately administered a broad spectrum antibiotic. Clostridia infections are virulent and highly toxic, but they are killed with antibiotics, usually a penicillin. Dr. DeNicola's opinion was considered and weighed in this proceeding but has been rejected in favor of the more relevant and, under the circumstances of this case, more credible, opinions of Respondent's witnesses. Dr. Raymond Caron is board-certified in pediatrics and has practiced in Orlando, Florida, for approximately ten years. A sole-practitioner like Dr. Gross, he sees children from birth through adolescence, providing a mix of routine well-child care and acute care. Dr. Cody Meissner's training and experience is closely analogous to that of Dr. DeNicola. That is, he practices medicine in a teaching hospital setting, through the Tuft's University School of Medicine in Boston, Massachusetts. Dr. Meissner is head of the Pediatric Infectious Disease Division at the New England Medical Center. He teaches, directs research, consults with pediatricians throughout New England, and spends several hours a day with patients in the hospital or emergency room. Dr. Meissner is board-certified in pediatrics and in pediatric infectious diseases. There are viral infections and bacterial infections. Viral infections do not respond to antibiotics and administering antibiotics indiscriminately is contraindicated and can be very detrimental. The indiscriminate use of antibiotics can create drug-resistent strains of infections and the antibiotics may ruin an outcome of subsequent blood cultures which are supposed to identify the potential bacteria. Dr. Gross did not have an in-office capacity to perform a blood culture nor did most his colleagues in private pediatric practice have that capacity. The standard of care did not require that capacity. Even a culture taken in an emergency room setting would have meant a several-hour delay between the time R.M. was seen by Dr. Gross and the results of the culture. In the meantime, the injection of an antibiotic by Dr. Gross would likely have masked the result of the culture and would have produced a false negative. More significantly, and even with Dr. Gross' foreknowledge of R.M.'s propensity for infections, nothing specifically in the child's condition on the afternoon of August 8, 1994, clued the pediatrician to the fact that the child was already full of deadly toxins. Bacterial infections, in contrast with viral infections, are generally identified with a focus of the infection: lesions, draining, inflammation, tenderness or localized pain or swelling. Impending septicemia typically is manifested by lethargy, limpness, cyanosis (paleness), low blood pressure, an inability to make eye contact, and severe irritability. R.M. presented none of these signs to Dr. Gross. R.M.'s very normal reaction to the injection would not be typically found in a child as sick as he truly was. Young children with temperatures of 104? are not extraordinary. Pediatricians in an active practice like Dr. Gross' may see several such patients daily, or weekly, depending on the season. Dr. Gross' diagnosis of gastroenteritis was consistent with his observations, examination and knowledge of the child's history. According to Dr. DeNicola, R.M. could have had an interferring viral infection that caused the earlier vomiting that set up the bacteremia. (deposition, p. no. 66) In summary, the standard of care as more credibly described by Respondent's witnesses did not require that Dr. Gross perform or order a blood culture or administer an antibiotic to R.M. on the afternoon of August 8, 1994.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Medicine issue a Final Order dismissing the Administrative Complaint at issue. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Carol A. Lanfri, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Martin B. Unger, Esquire Unger, Swartwood, Latham & Indest, P.A. Post Office Box 4909 Orlando, Florida 32802-4909 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela Hall, Agency Clerk Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent should renew Petitioner's license to operate a child care facility based on an alleged Class I violation of Florida Administrative Code Rule 65C- 22.001(5)(a) and an alleged history of noncompliance with the Florida Administrative Code rules regulating child care facilities.
Findings Of Fact At all times material here, Petitioners owned and operated Child Care 2000, #1 (the facility), located on State Road 44, Sorrento, Florida. Petitioner George Barrett was the licensed child care director of the facility, which had been a child care center for 14 years. The facility had an employee's manual that addresses its policies. The manual contained policies regarding regular staff meetings, parent/teacher conferences, and mandatory initial/in-service training requirements. The manual also included a section on safety, which stated as follows: Do not leave your classroom unsupervised at anytime, indoors or out. All electrical outlets must be covered at all times. Any broken or damaged equipment must be removed or brought to the Director's attention. Remember to count your children every hour. All of these things must be done daily. DO NOT leave children unattended. There will be tolerance for this action. The facility had a time clock, which the employees used to record their time at work. The information from the time clock transferred electronically to the facility's computer, which captured the information for use in a software program that generated payroll. If a teacher's time card was incorrect for any reason, the bookkeeper could manually override the system to correct any error. The facility also used the time clock to log the time that children attended the facility. The attendance records transferred electronically to the facility's computer, which captured the data for use in a software program that generated billing statements. The children's parents used a password to activate the time clock when they dropped off or picked up their children. There is no evidence that anyone at the facility knew how to manually override the children's electronic attendance log. Respondent alleges that its inspector, Glenda McDonald, performed an inspection of the facility on October 27, 2005. The inspection checklist contains allegations that the facility was noncompliant in the following areas: (a) Outdoor Play Area, Florida Administrative Code Rule 65C-22.002(4)(c)(g); (b) Fencing, Florida Administrative Code Rule 65C-22.002(4)(d)(e); (c) Outdoor Equipment/Suitable, Safe, Maintained, Florida Administrative Code Rule 65C-22.002(9)(b); (d) 10-hour In- service, Florida Administrative Code Rule 65C-22.003(6)(a)-(c); (e) Bottles Sanitary and Labeled, Florida Administrative Code Rule 65C-22.005(3)(b)(c); (f) Children's Health/Immunization Records, Florida Administrative Code Rule 65C-22.006(2)(a)-(c); (g) Personnel Records, Florida Administrative Code Rule 65C- 22.006(5)(a)-(c), (e), (f), (6)(e); and (h) Form 5131/Screening Documents, Florida Administrative Code Rule 65C-22.006(5)(d). Respondent did not present Ms. McDonald as a witness at the hearing. Without Ms. McDonald's testimony or an admission by Petitioners, there is no competent evidence by Respondent to show the facility's noncompliance on October 27, 2005. During the hearing, Petitioners did admit that the facility failed to comply with the rules on October 27, 2005, in the following respects: (a) the need to remove or replace a broken swing as required by Florida Administrative Code Rule 65C-22.002(9)(b); and (b) the need to update children's shot records and physicals as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). Petitioners presented testimony that the broken swing was repaired immediately after the October 27, 2005, inspection. Additionally, Petitioners admitted that they found it impossible to keep the children's shot records and physicals updated, but that they corrected the problem in a timely manner after the October 27, 2005, inspection. On January 30, 2006, one of Respondent's inspectors, Debbi Mitchell, performed an inspection of the facility. Ms. Mitchell observed that the facility was noncompliant in the following ways: (a) failure to update children's shot records as required by Administrative Code Rule 65C-22.006(2)(a)-(c); and (b) failure to update personnel screening documents as required by Florida Administrative Code Rule 65C-22.006(5)(d) and Section 435.04, Florida Statutes. There is no evidence to dispute Ms. Mitchell's testimony regarding the January 30, 2006, inspection. The failure to keep the children's shot records updated was a repeated offense. On or about March 31, 2006, Petitioner filed an application with Respondent to renew their license. Petitioners' daughter-in-law was the facility's office manager. When Petitioners were unable to be present at the facility, the daughter-in-law was the person in charge of the child care center. If the Petitioners were absent and the daughter-in-law had to leave the premises, Linda Race, a senior pre-kindergarten teacher was in charge of the facility. Ms. Race would take over as the person in charge when Petitioner's daughter-in-law handed her the facility's telephone. A.B. was the son of the daughter-in-law/office manager and the grandson of Petitioners. In the spring of 2006, A.B. was two-years-old. He attended one of the pre-kindergarten classes at the facility. It was not unusual for A.B. to see his mother during the school day. Sometimes A.B. would become upset and cry if he was not allowed to leave his class and go to his mother in the office. On April 25, 2006, Petitioners were not at the facility. Petitioner Alicia Barrett was taking care of Petitioner George Barrett, who was recovering from a serious illness. On April 25, 2006, Petitioner's daughter-in-law clocked into work at the facility at 8:10 a.m. A.B. arrived with his mother then joined his class. Later that morning, A.B. began crying for his mother. Ms. Race attempted to refocus A.B.'s attention before letting him go to his mother. From that time on, Ms. Race believed that A.B. was no longer participating in her class because he was with his mother. Ms. Race understood that A.B.'s mother was planning to leave the facility in the early part of the morning. On April 25, 2006, Petitioner's daughter-in-law clocked out of the facility at 9:59 a.m. She had been at the facility for one hour and 49 minutes before she clocked out. A.B.'s electronic attendance log for that day indicates that he was in attendance for one hour and 49 minutes. A.B.'s mother did not testify at the hearing. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race and her assistant, another teacher identified as Brittany Russell, were with the children on the facility's porch. As the children prepared to move from the porch to their classroom, Ms. Race and Ms. Russell, began taking a head count. About that time, A.B.'s mother approached Ms. Race and handed the facility's telephone to her. Accepting the telephone with a call on the line, Ms. Race realized that A.B. was not with his mother and that he was at the Circle K, a convenience store and gas station located next to the facility. Apparently, employees of the Circle K had called the facility to see if a child was missing. Ms. Race immediately ran from the facility to the Circle K to retrieve A.B. The totality of the circumstances indicates that A.B. was with his mother when he left the facility. The facility's teachers had no reason to believe otherwise. No one at the facility prepared an incident report relative to the events that occurred on April 25, 2006. However, under the circumstances of this case, it is clear that A.B.'s mother was aware of the emergency that was created when A.B. left his mother and went to the Circle K. On May 12, 2006, Ms. Mitchell investigated a complaint against the facility involving the events of April 25, 2006. The investigation of the complaint resulted in Respondent's issuance of an Intent to Impose Administrative Action for the following alleged violations: (a) inadequate supervision as required by Florida Administrative Code Rule 65C-22.001(5)(a), (b), (d)1.-3.; and (b) failure to document the incident involving A.B. as required by Florida Administrative Code Rule 65C-22.004(2)(d)2. There is no clear and convincing evidence to support these allegations. The facility did not provide inadequate supervision for A.B. because he was with his mother and not under the supervision of the facility when he went to the Circle K. Accordingly, there was no need for the facility to document the incident. On May 12, 2006, Ms. Mitchell also performed an inspection of the facility. During the inspection, Ms. Mitchell observed the following alleged noncompliance: (a) Planned Activities Posted and Followed as required by Florida Administrative Code Rule 65C-22.001(7)(a); (b) Outdoor Equipment/Suitable, Safe, Maintained as required by Florida Administrative Code Rule 65C-22.002(9)(b); (c) First Aid Staff/Supplies as required by Florida Administrative Code Rule 65C-22.004(2)(a)-(c); (d) Accident/Incident Documented as required by Florida Administrative Code Rule 65C-22.004(2)(d)2.- 4.; and (e) Children's Health/Immunization Records as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). On May 12, 2006, the plan of classroom activities/schedule for each age group was posted in entrance to the facility near the office. That area was an appropriate place for all parents entering or leaving the facility to access the plan. On May 12, 2006, the facility's playhouse, which was located on its playground, had broken boards. After Ms. Mitchell's inspection, Petitioner immediately repaired the broken boards. The failure to keep the playground equipment properly maintained was a repeated violation. On May 12, 2006, Ms. Mitchell inspected the facility's fist aid kit, finding it extremely incomplete. Petitioners immediately corrected this noncompliance. On May 12, 2006, Ms. Mitchell determined that Petitioner did not prepared an incident report relative to A.B. leaving the facility on April 25, 2006. However, such documentation was not required because A.B. was with his mother, who had clocked him out of the facility. On May 12, 2006, Ms. Mitchell found that the facility had outdated shot records and/or physicals for four students. This was the third consecutive instance of this type of noncompliance. After the inspection, Petitioner corrected the problem in a timely manner. At the time of the hearing, the facility was closed.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioners' application to renew their license to operate the facility, subject to terms and conditions that Respondent deems appropriate. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of September, 2006. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Stella V. Balandran Qualified Representative 95 South Trowell Avenue Umatilla, Florida 32784 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding is whether Petitioner, as a child day-care facility operator, committed the violations of Florida Statutes and Florida Administrative Code, as alleged in the Administrative Complaint, of failing to obtain or maintain proof that at least one staff member physically has a valid certificate of training in first-aid and infant and child cardiopulmonary resuscitation procedures and that such staff member is physically present at the facility.
Findings Of Fact Petitioner is a licensed day-care facility licensed by the Department of Children and Family Services (Department). On May 11, 2001, Susan Kipen, Family Services Counselor, Day-Care Licensure, of the Department, conducted an inspection of the Petitioner's facility. During the May 2001 inspection, Kipen discovered that no member of the facility's staff had the required training in first-aid and infant and child cardiopulmonary resuscitation (CPR) and that no evidence of such training was contained in the facility's records. The Department cited the facility for noncompliance. On May 29, 2001, a warning letter was issued regarding the lack of training. The letter established a correction date of June 8, 2001. On August 28, 2001, the Department again inspected Petitioner's facility. The inspection revealed that no staff present at the facility had the required first-aid or CPR training and no certificate of such training was maintained in the facilities records. At least one staff person had completed the training, however, that person was not physically present at the facility. The Department again cited Petitioner for noncompliance.
Recommendation Having considered the foregoing Findings of Facts, Conclusions of Law, the evidence of record, and the candor and demeanor of the witness, it is RECOMMENDED that a final order be entered confirming the imposition of an administrative fine against Petitioner in the amount of $50.00. DONE AND ENTERED this 2nd day of May, 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 2nd day of May, 2002. COPIES FURNISHED: Temple DePlato Head Start at Green Cove Springs 100 Bel Tel Way, Suite 100 Jacksonville, Florida 32216 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2010.
Findings Of Fact Respondent is a lay midwife licensed by the state of Florida. She has practiced as a licensed lay midwife in Florida since 1981. Respondent began her training in Boston, Massachusetts, in 1975 when she began participating in an apprenticeship program under the supervision of two Board-certified obstetricians. That training lasted for three years and included self-study, seminars, and workshops. As part of that apprenticeship program, Respondent delivered one hundred babies under the supervision of those physicians. After moving to Florida, Respondent obtained her license as a lay midwife after attending fifteen births under the supervision of a physician and after taking a written and oral examination. Since being licensed in Florida, Respondent has attended and graduated from the South Florida School of Midwifery. She has subsequently been a preceptor and instructor at that School and is on the Board for the School. At the time of the final hearing in this cause, Respondent was only two months away from receiving her nursing degree. Respondent is a member of the Midwives Association of Florida. During the course of her licensure in Florida, Respondent has attended all types of continuing education programs, particularly in the field of maternal and child health. While licensed in the state of Florida, she has attended between five hundred and seven hundred births, sometimes as the primary caregiver, sometimes assisting other midwives, and sometimes assisting physicians during hospital births. At all times material hereto, Respondent has maintained an ongoing relationship with Dr. Atilla Eagleman, an obstetrician and gynecologist. She frequently consulted with Dr. Eagleman, and he performed risk assessments on Respondent's patients. In other words, Dr. Eagleman was Respondent's "back-up" physician. Dr. Eagleman became Board-certified in December, 1990. When patient Sandy Freireich first consulted with Respondent on May 11, 1989, Freireich was seventeen to eighteen weeks pregnant with her fourth child. Respondent told Freireich that in order for her to be accepted as one of Respondent's patients, she needed to provide Respondent with proof that she had obtained an initial risk assessment by a physician. Freireich told Respondent that she had obtained that examination from her regular doctor who was an obstetrician and that she would bring Respondent a copy of her medical records documenting that examination on her next visit. Since Respondent performs an initial risk assessment on her patients, she did so with Freireich and determined that she was a low-risk patient. On at least seven occasions, Respondent told Freireich that Freireich had to provide Respondent with a copy of the initial risk assessment records from Freireich's physician. On each occasion Freireich promised to provide such a record. Respondent also strongly encouraged Freireich to see Dr. Eagleman and have him perform an initial risk assessment. Freireich agreed to do so. Respondent also requested permission from Freireich to allow Respondent to obtain Freireich's records directly from Freireich's doctor by having Freireich sign a medical records release form. Freireich insisted that she wanted to speak to her physician to make sure her doctor understood rather than simply sending him a form to release her records. Along the way Freireich missed several appointments with Respondent. For those appointments which she kept, she failed to bring with her the promised documents. On September 6, 1989, when Freireich was 32.4 weeks pregnant, she signed a medical release form authorizing Respondent to obtain her medical records directly from her doctor. On that visit, Respondent recommended to Freireich that she obtain her third trimester risk assessment from Dr. Eagleman. On September 14, 1989, Respondent received records directly from Freireich's obstetrician. Those records did not contain an initial risk assessment for Freireich's current pregnancy. On September 20, 1989, when Freireich was 34.4 weeks pregnant, Respondent caused Freireich to receive a risk assessment and a physical and prenatal examination by a certified nurse midwife in Respondent's office. That risk assessment also revealed that Freireich was a low-risk patient. It is unknown whether Freireich ever obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. It is uncontroverted, however, that Respondent never received proof of such an initial risk assessment by a physician or by a certified nurse midwife. Furthermore, it is clear that Respondent consistently encouraged Freireich to obtain an initial risk assessment by a physician, and that it was Freireich who failed or refused to provide proof that such had been performed. In 1987 the Department proposed a number of changes to the rules regulating the practice of midwifery. The Florida Midwives Association challenged the proposed rules, and the Association and the Department engaged in a long-term dialog thereafter. New rules did not become effective until 1991. Although there were existing rules in place during that interim period, it became a common practice for midwives to contact Anne Richter, a consultant for the Department's midwife program. Based upon the information provided to her by a midwife, Richter would tell the midwife to care for a particular patient pursuant to the existing rules or pursuant to the proposed rules. It was common knowledge among the midwives in the state of Florida that the Department was informally allowing midwives to practice under the proposed rules rather than the existing rules and that one could call Anne Richter to obtain a "waiver" of rule requirements. On one occasion, Respondent had telephoned Richter regarding a patient who had come to Respondent when she was thirty weeks pregnant and had not obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. Richter told Respondent that it was permissible for Respondent to accept that patient whose only risk factor was starting care after twenty-eight weeks. Respondent did not accept that patient. Although Respondent had intended to telephone Richter to seek permission to continue providing care to Freireich, Respondent neglected to do so. On October 30, 1989, Freireich left a message cancelling her appointment for that day. Later that afternoon she contacted Respondent to advise Respondent that she was in labor. She declined to allow Respondent to come to Freireich's home until after 8:30 p.m. because she wanted her other children to be asleep before Respondent got there. Respondent arrived at the Freireich home at 8:50 p.m. She assessed Freireich's labor, performed a physical examination, and began attending to Freireich's needs during labor. At 11:30 p.m., the fetal heart rate was 150. The patient took a shower. When she finished her shower at 11:50 p.m., Respondent checked the fetal heart rate and found that it had decreased to 90. Respondent appropriately instructed the patient to lay on her left side and gave her oxygen at six liters since the deceleration in the heart rate may have been indicative of a problem that needed to be rectified. At 11:53 p.m., Respondent appropriately checked the fetal heart rate and again found that it was 90. Respondent then assessed the patient and found the patient to be fully dilated with the baby at between 0 and +1 stations. Since the patient was fully dilated, Respondent instructed her to push. Respondent again checked the fetal heart rate and found that it had decelerated to 60. That the patient had a history of having rapid deliveries and was a multipara (had previously had one or more viable births) was significant in that it was very likely that with good expulsive efforts the baby would be delivered in a short time. Respondent was concerned when she got the decelerated fetal heart rate but believed birth to be imminent. An experienced birth practitioner can judge whether delivery will be expeditious. At 11:58 p.m. the baby was at the +2 station (half the way down the birth canal, i.e., half way out). The fetal heart rate was 60 when Respondent again checked. Respondent's extensive training and experience had made her aware that it was not unusual to encounter a decelerated fetal heart rate directly prior to birth. A deceleration of the fetal heart rate at the final stage of labor can result from "head molding," and the rotation of the baby. In other words, it is very common to have a fetal heart rate drop due to head compression and the transverse lie of the head during the final stages of delivery. In 98% of those cases, the decelerated fetal heart rate will return to base line. In Respondent's previous experience, babies who had similar deceleration in their heart rate came out vigorous and robust, or may have needed a little tactile stimulation or warmth to be resuscitated, but always came out normal. Her training dictated that the proper procedure was to assess whether delivery was imminent. Respondent knew that a heart rate of 60 sustained for a few moments with no progress would be considered an emergency situation necessitating physician consultation or contacting emergency medical services for transportation to a hospital. On the other hand, a fetal heart rate of 60 sustained for a few moments with progress was not unusual, and the best course of action was to facilitate delivery of the baby. Since her patient was having strong contractions, was making good expulsive efforts, and the baby was descending rapidly down the birth canal, Respondent knew that birth was imminent. Exactly twelve minutes after the patient came out of the shower, the baby was delivered. The baby was stillborn. Respondent had no indication prior to the delivery of the baby that the baby would be severely compromised or dead. Respondent is fully trained in resuscitation of babies. She is certified in medical CPR, has taken many continuing education courses in emergency procedures, and is certified in and carries with her the equipment necessary for neonatal resuscitation: neosuctioning, an Ambu Bag, and oxygen. When the baby was delivered at 12:02 a.m., Respondent caused one of the adults present to contact fire rescue. Respondent immediately began resuscitation efforts and continuously attempted to resuscitate the baby until the fire rescue unit arrived, which was fifteen minutes after fire rescue was called the first time. Between the first decelerated fetal heart rate and delivery of the baby twelve minutes later, Respondent did not refer the patient to a physician or consult with Dr. Eagleman because to do so would have taken time away from managing a potentially dangerous situation and because she knew that Dr. Eagleman would merely tell her to get the baby delivered. Further, Respondent did not consider the drop in the heart tones to be abnormal requiring her to refer the patient to a physician since there was rapid progress and birth was imminent. Dr. Eagleman verified during the final hearing in this cause that had Respondent contacted him during the twelve minutes in question to report the decelerated heart rate, he would have told her to get off the telephone, go back to her patient, and "get the baby out." Respondent had never previously delivered a stillborn. There is no suggestion made in this record either that Respondent should have known that the baby would be stillborn or that Respondent contributed in any way to cause that unfortunate outcome. Respondent contacted Anne Richter to advise her what had happened and subsequently sent written reports to Richter detailing her care of patient Freireich. Petitioner has never before taken disciplinary action against Respondent.
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 violating Rule 10D-36.042(1), Florida Administrative Code (1989); Finding Respondent not guilty of violating Rule 10D-36.46(4)(e), Florida Administrative Code (1989); Finding that no disciplinary action should be imposed because the violation was neither willful nor repeated; and Dismissing the Notice of Formal Reprimand filed in this cause. DONE and ENTERED this 31 day of March, 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 day of March, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-1953 Petitioner's proposed findings of fact numbered 1, 2, 7, 8, 15 and 16 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-6, and 9-14 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 1-9, 12, 13, 15, 19-33, and 35-39 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 10 is rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 18 is rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 11, 14, 16, 17, 34, and 40 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Karen Miller, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 Thomas G. Sherman, Esquire 218 Almeria Avenue Coral Gables, Florida 33134 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
