The Issue With regard to Count I of the Administrative Complaint, the issue is whether the Respondent possessed a controlled substance for other than a legitimate purpose. The Respondent admits possession; therefore, the issue is whether she possessed the controlled substance for legitimate purposes. Count II alleges 47 specific instances in which the Respondent violated hospital policy by failing to account for a controlled substance by properly recording withdrawals and administrations of the controlled substance. The petitioner alleges that the Respondent made false reports or a record which she knew was false and, by the aforesaid conduct, failed to conform to minimal standards of acceptable and prevailing nursing practices. With regard to Count II, both factual and legal issues are controverted. The Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact Count I The Respondent is a licensed registered nurse and duly certified registered nurse anesthetist (CRNA) holding license number 40895-A. At all times relating to the charges, the Respondent was so licensed and was employed as a CRNA at Bayfront Medical Center (Bayfront), a full-service hospital located in St. Petersburg, Florida. A CRNA essentially performs the acts of an anesthesiologist, inducing and maintaining in surgical patients a physical state which is appropriate for the particular surgical procedure to be performed through the administration of drugs to the patient. On March 4, 1981, the Respondent had been working in the operating room at Bayfront during her regular shift and had just completed a surgical procedure at 12:00 noon, when at approximately 1:00 p.m. she was called to the administrative offices. She changed from her operating room clothes, took off her warm-up operating room jacket, and put on a long lab coat. The Respondent proceeded to the administrative offices, where she remained until she accompanied Donna Roberts, Manager, Surgical Services, back to Respondent's locker, where a consent search was conducted by Roberts. Roberts' search revealed an ampule which was labeled Sublimaze, a trade name for the controlled substance fentanyl, in the pocket of Respondent's lab coat, which was in the Respondent's locker in the dressing room for female surgical staff at Bay front. Said locker room is located some 25 to 30 feet from the operating rooms. The record reveals that CRNAs and anesthesiologists at Bayfront checked out medications at the beginning of their shifts at approximately 7:00 a.m. and retained these medications throughout the day, returning the remaining medications at the end of the day at approximately 5:00 to 6:00 p.m. The record reveals that CRNAs and anesthesiologists have breaks, eat lunch, and are at the hospital when not involved in surgery. Count II The following procedures were in effect and followed by staff at Bayfront at the time involved in the Administrative Complaint. Although these procedures may not comport with the legal requirements, they were at that time and place the minimal acceptable standards of conduct accepted by the hospital administration. CRNAs and anesthesiologists drew their medications for the day early in the morning from the recovery room nurses in the recovery room. CRNAs and anesthesiologists on the hospital staff frequently drew medications for unknown patients, indicating type of surgery or in some instances giving the patient's name as John Smith. There was no requirement for CRNAs or anesthesiologists to initial narcotics records showing receipt of medications drawn from the recovery room nurse, who was charged with issuing these controlled substances. The names of patients were not required to be entered on the narcotics record. It was not uncommon for CRNAs and anesthesiologists on the hospital staff to be changed from one patient to another prior to the commencement of surgery. It was also not uncommon for one CRNA to relieve another CRNA during a surgical procedure and to finish the procedure. CRNAs and anesthesiologists were not required to show wastage. They used the quantity of drugs necessary during a surgical procedure, and if they ran out they had the circulating nurse in the operating room obtain additional medications from the recovery room nurse. Members of the hospital staff and other anesthesiologists turned in excess medication at the end of the day. Sublimaze or fentanyl was introduced as an anesthetic agent and for many years was treated much like sodium pentathol, which is not controlled. Sublimaze or fentanyl is a controlled narcotic substance. Some of the CRNAs employed at Bayfront use few, if any, controlled substances in their practice. However, many of the anesthesiologists use fentanyl regularly. The Respondent appears to have been the only CRNA who regularly used Sublimaze or fentanyl in her practice. The following findings regarding the lettered paragraphs of the Administrative Complaint are summarized below by date: On 02/02/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Forman. She did not work on Forman. She did work on the patients Kilmark and Whitehead. She administered 3.5 cc (two ampules) of Sublimaze to Kilmark and 4 cc (two ampules) of Sublimaze to Whitehead. On 02/04/81, the Respondent had signed out to her ten ampules of Sublimaze for the patient Warren. She worked on Warren and administered 19 cc (ten ampules) of Sublimaze to him. On 02/06/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Asaro, three ampules of Sublimaze for the patient Mastry, and three ampules of Sublimaze for an unknown patient. The records show that the Respondent administered 9 cc (five ampules) of Sublimaze to the patient McMullen. The Respondent did not turn in or account for three ampules of Sublimaze. On 02/09/81, the Respondent had signed out to her three ampules of Sublimaze for the patient Hull and four ampules of Sublimaze for an unknown patient. The records reveal she participated in three surgeries on this date on patients Braswell, Walker and Morgan. The patient Hill was assigned to another anesthesiologist. The record reveals that the Respondent administered 5 cc (three ampules) of Sublimaze to Braswell, 6 cc (three ampules) of Sublimaze to Walker, and none to Morgan. The Respondent failed to turn in or account for one ampule of Sublimaze. On 02/11/81, the Respondent had signed out to her five ampules of Sublimaze for the patient Brown and three ampules of Sublimaze for the patient Graham. She participated only in the surgery on Graham. It appears that CRNA Kolodzeij may have anesthetized Brown. The Respondent administered 6 cc (three ampules) to Graham. Kolodzeij drew no medications for her surgeries on the date in question. Kolodzeij relieved Respondent during the Graham surgery and finished the procedure. The Respondent left for Kolodzeij to use on Graham all the ampules of Sublimaze which she had checked out. On 02/13/81, the Respondent had signed out to her five ampules of Sublimaze for the patient Smith and five ampules of Sublimaze for an unknown patient. The records reveal no patient Smith. The Respondent's only surgery on this date was the patient Vielhauber. The record reveals that the Respondent administered 6 cc (three ampules) of Sublimaze to Vielhauber. She failed to turn in or account for seven ampules of Sublimaze. On 02/15/81, the Respondent had signed out to her four ampules of Sublimaze for the patient Jocalsky. She participated in no surgeries on the date in question. The Respondent did not turn in or account for four ampules of Sublimaze. On 02/16/81, the Respondent had signed out to her six ampules of Sublimaze for an unknown patient and four ampules of Sublimaze for the patient Smith. The records reveal that the Respondent participated in five surgeries on the date in question. She administered 4 cc (two ampules) of Sublimaze to the patient Harrison, 3.5 cc (two ampules) to the patient Stephens, 6 cc (three ampules) to the patient Miller, 6 cc (three ampules) to the patient Fuldaver, and none to the patient Flournay, for a total of ten ampules. The records reflect that CRNA Robbins participated in surgery on a patient Jacobson, for which Robbins drew no medications. On 02/18/81, the Respondent had signed out to her six ampules of Sublimaze for unnamed patients and five ampules of Sublimaze for the patient Nelson. She participated in two surgeries on the date in question. She administered 3.5 cc (two ampules) of Sublimaze to the patient Rothwell and 12 cc (six ampules) to Nelson. Ford, R.N., as recovery room nurse, received two ampules of Sublimaze on the date in question as turned in from an unrecorded source. These are credited against the ampules withdrawn by the Respondent. The Respondent failed to turn in or account for one ampule of Sublimaze. On 02/20/81, the Respondent had signed out to her four ampules of Sublimaze for the patient Baker. She administered 6 cc (three ampules) of Sublimaze to Baker. The Respondent failed to turn in or account for one ampule of Sublimaze. On 02/23/21, the Respondent had signed out to her ten ampules of Sublimaze for the patient Hicks. The record reflects that the Respondent administered 9 cc (five ampules) to Hicks. The Respondent failed to account for or turn in five ampules of Sublimaze. On 02/24/81, the Respondent had signed out to her two ampules of Sublimaze for the patient Jackson, two ampules of Sublimaze for the patient Marlin, and five ampules of Sublimaze for an unnamed patient. She participated in two surgeries on the date in question. She administered 5 cc (three ampules) of Sublimaze to Jackson and 3 cc (two ampules) of Sublimaze to the patient Lumpkin. The Respondent failed to account for or turn in four ampules of Sublimaze. On 02/27/81, the Respondent had signed out to her four ampules of Sublimaze for an obstetrical patient at 6:30 a.m. on the date in question and three ampules of Sublimaze for an obstetrical patient at 6:45 p.m. on the date in question. She participated in two surgeries on this date, one at 9:15 a.m. and one at 9:30 a.m. She administered 4 cc (two ampules) of Sublimaze to the patient Halstead at 11:30 a.m. The Respondent failed to turn in or account for three ampules of Sublimaze drawn at 6:45 p.m. On 03/04/81, the Respondent had signed out to her a total of eight ampules of Sublimaze for the patient Brown. She administered 5 cc (three ampules) to Brown. The Respondent failed to turn in or account for three ampules of Sublimaze. On or about March 4, 1981, the Respondent was discharged from Bayfront. The Administrative Complaint in this cause was issued on September 24, 1981. At the request of the Respondent, the final hearing in this matter was continued on three occasions: March, November and December 1982. Since the filing of the Administrative Complaint, the Respondent has been unable to work in her profession due to the unresolved charges against her. She has been employed as a secretary since 1981 and has suffered significant reduction in her income.
Recommendation Having found the Respondent guilty of one count of violating Section 464.018(1)(f), Florida Statutes, and considering that she has been effectively denied the right to practice for two years, it is recommended that the Respondent, Carolyn Wilder, be permitted to return to practice and placed on probation for one year. DONE and RECOMMENDED this 30th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Robert W. Pope, Esquire 689 Central Avenue, 2nd Floor St. Petersburg, Florida 33701 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing Ill East Coastline Drive, Room 504 Jacksonville, Florida 32202
Findings Of Fact Respondent is, and at all material times has been, a licensed physician, having been issued license number ME 0040551, by the State of Florida. Respondent is a 1979 graduate of the University of Juarez. Respondent performed an internship at Mount Sinai Hospital in Chicago, Illinois, from 1979 to 1980. Between 1980 and 1982, Respondent performed a two year internal medicine residency at Grant Hospital in Chicago, Illinois. Respondent is "Board-eligible" in the area of internal medicine. Internal medicine involves a non-surgical approach to evaluating multiple organ systems. It involves understanding diseases at a "higher" level and dealing with multiple illnesses. Respondent once has taken, but did not pass, the examination to become Board certified in internal medicine. Respondent has had no other complaints filed against his license to practice medicine in Florida, other than the one at issue in this case. On or about May 2, 1986, Respondent admitted patient L. S. to Clearwater Community Hospital in Clearwater, Florida, because of a possible cerebral vascular accident which occurred 3 days prior to admission. Patient L. S. was a 76-year old male patient who was a member of the "Gold Plus" IMC Health Maintenance Organization. At or about the time of admission of patient L. S. to Clearwater Community Hospital, Respondent obtained a patient medical history from L. S. and performed a physical examination. As a result of the stroke, patient L. S. had speech difficulties at the time of admission to Clearwater Community Hospital. Respondent's initial patient history for L. S. included the following information: With respect to the cerebral vascular accident, the patient had awakened 3 days prior to the admission and had difficulty with speech and difficulty using his right hand. The patient was able to ambulate without difficulty and had noted no improvement or worsening in symptoms in the three days prior to admission. The patient had had intestinal surgery 50 years previously, which, according to Respondent's documented history, resulted in chronic diarrhea. Additionally, the patient had been hospitalized two years earlier for "dysphagia (a difficulty in swallowing) with a negative work-up." According to the patient, the patient had no coronary artery disease, hypertension, peptic ulcer disease or diabetes. The patient's social history provided the information that the patient smoked tobacco, one-half pack per day, and did not drink alcohol. The patient provided information that he was on the following medication: Lomotil p.r.n. (as needed); Lanoxin 0.125 mg. per day; and Quinaglute 100 mg., dose schedule unknown. Respondent performed an appropriate initial physical examination on patient L. S. Of significance was Respondent's finding with respect to the patient's heart: "Irregular, irregular rhythm with no gallops or murmurs appreciated." After completing the initial history and physical examination, Respondent's impression was: Acute CVA, patient now three days post-insult and appears to be stable. He already has good use of his right upper extremities and his speech is intelligible although slurred History of cardiac arrhythmia History of chronic diarrhea secondary to intestinal surgery 50 years ago. As part of his plan for the patient, formulated after obtaining the initial history and physical, Respondent noted, "Will also consider ECHO cardiogram as the heart irregularity may provide the source of the emboli." While patient L. S. was hospitalized during the May 2, 1986, admission, Respondent ordered the following tests which were performed on the patient: a complete blood count; a prothrombin time test; an activated partial thromboplastin time test; a routine urinalysis; a portable upright chest x-ray; a bilateral duplex carotid ultrasound study; a CT scan of head - stroke routine (non contrast study); a Brain CT Scan Stroke Protocol-Post contrast series only; an electroencephalogram (EEG); a blood chemistry profile; and an electrocardiogram (EKG)(the patient was also placed on a telemetry monitor). On admission, Respondent ordered Lomotil, one tablet to be given as needed for diarrhea, Lanoxin 0.125 mg. to be given four times a day, and Quinaglute 100 mg. to be given twice a day. On the same day of admission, Respondent changed the order for Quinaglute to 325 mg. to be taken by mouth twice a day. On admission and again on May 9, 1986, Respondent ordered blood serum levels of digoxin (Lanoxin is a drug containing digoxin). These blood levels revealed that the digoxin level was low on admission (normal laboratory values were listed as between 0.5 to 2.0 - the actual value was 0.1). The repeat digoxin level reflected that the digoxin was within normal limits on May 9, 1986 (the actual value was 1.1). Quinidine levels were also obtained (to determine the level of the drug Quinaglute in the blood), pursuant to Respondent's request. The quinidine level taken on admission was below normal (normal laboratory values were listed between 2.0 and 5.0 - the actual value was .7). The repeat quinidine level performed on May 9, 1986, reflected that the quinidine levels were within normal limits (2.6). Under the circumstances, the Respondent cannot be severely criticized for the initial history he took from the patient. In ideal circumstances, an internist would attempt to get more detail on the patient's smoking history pertinent to possible chronic obstructive lung disease or possible congestive heart failure, on the patient's chronic diarrhea, and on the patient's drug dosages. But the Respondent was dealing with a 76-year old man who came to see him for symptoms of a stroke three days before. The patient had difficulty making his speech understood and had no family or friends available to help him give his medical history to the Respondent. It was within acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances for the Respondent to take as much history as the patient was capable of comfortably giving at that time. The Respondent was planning on referring the patient to the hospital's stroke team, which over the course of the hospital stay would completely evaluate the effect of the stroke on the patient. The Respondent planned to have blood serum levels done which would establish proper drug dosages. The Respondent's primary concerns were the possibility of an evolving stroke and the possibility of malignant cardiac arrhythmias. Since there were no complaints or symptoms of chronic obstructive pulmonary disease or congestive heart failure, it was not necessary to pursue the smoking details on the initial history on this admission. As for the diarrhea, the Respondent was dealing with a 76-year old man who reported chronic diarrhea for 50 years. It may have resulted from intestinal surgery 50 years ago, and it may have been exacerbated by the Quinaglute the patient had been prescribed for his heart arrhythmias. Severe malabsorption problems would show up on the blood screen and the complete blood count the Respondent was planning to have the patient undergo. Otherwise, it was acceptable under the circumstances of this case to concentrate on the two primary concerns and treat the diarrhea symptomatically with Lomotil as needed for the time being. The Respondent should have followed up on obtaining available previous hospital records, especially the local admission for dysphagia two years prior, but that information would not appear in the initial history. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated the patient's heart as a possible cause of the stroke. The evidence suggests that it is fairly debatable among physicians whether to order a $500-$600 echocardiogram in a case such as this; it is not necessary to meet the standard of care. When the Respondent initially examined the patient and heard irregularly irregular heart rhythms, he initially considered an echocardiogram. Irregularly irregular heart rhythms suggest atrial fibrillation which can predispose a patient to heart clots (emboli) which can break off, travel through the circulatory system and cause a stroke. But the results of the CAT Scan indicated that the stroke was not caused by a heart embolus but by a constriction of smaller blood vessels. In addition, the results of the EKG and telemetry monitoring revealed that the patient did not have atrial fibrillation but had significant and possibly malignant premature ventricular contractions (PVCs). While this particular heart beat irregularity is serious and can be fatal, it does not predispose a patient to heart emboli and resulting strokes. With this information, the echocardiogram was no longer necessary. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated his lung function. The chest x-ray and EKG which the Respondent had done for the patient enabled the Respondent to diagnose obstructive pulminary disease (C.O.P.D.) if the patient had it. Milder cases of C.O.P.D. would have required with a pulmonary function test or a blood gas level. The evidence suggests that it is fairly debatable among physicians whether to have done one of those tests in this case; it was not necessary to meet acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances. The patient had no complaint of shortness of breath with exertion that would suggest emphysema. To the contrary, he progressed well in physical therapy during the 10-day hospitalization with no indication of this symptom. Nor did the patient have cyanosis or clubbing that would be symptomatic of chronic bronchitis. Those are the two kinds of C.O.P.D. about which a physician evaluating L. S. would be concerned. Regarding the patient's chronic diarrhea, the Respondent performed some general screening tests which, while non-specific in nature, had potential to provide some information about the patient's nutritional status. The complete blood count (C.B.C.) may provide information about some deficiencies. Generally, in an isolated deficiency of vitamin B12 or folic acid, one would expect to find an elevated M.C.V. (mean corpuscular volume), which would show up on a C.B.C. In this case, however, the C.B.C. provided no real information about the nutritional status of patient L. S. The M.C.V. was only slightly elevated. A prothrombin time test can be done to evaluate vitamin K deficiencies and was done in this case. Additionally, the blood levels of several substances can provide information about malnutrition. In this case, the chemistry profile revealed malnutrition. The blood chemistry profile revealed low albumin levels, low globulin levels and low total protein levels. The possibility exists that patient L. S. suffered from diarrhea which was caused or aggravated by the Quinaglute that the patient was also taking. Quinaglute can cause diarrhea. This was not evaluated by the Respondent. It could not be evaluated by the medication history the patient was able to give (i.e., by determining how long the patient had been taking Quinaglute in relation to the period of time the patient had had diarrhea.) Besides, the Respondent made the decision to stabilize the patient's potentially life- threatening heart arrhythmias using the Quinaglute instead of withdrawing the Quinaglute in an attempt to cure the diarrhea problems with which the patient had lived for 50 years. The Respondent cannot be severely criticized for this decision. On this admission, it was acceptable to treat the patient's diarrhea symptomatically for the time being and further evaluate and treat it after the Respondent dealt with the more serious matters of the C.V.A. and the heart arrhythmias. On or about May 12, 1986, Respondent transferred patient L. S. to Druid Hills Skilled Nursing Center from Clearwater Community Hospital. As reflected in Respondent's discharge summary for patient L. S., Respondent was not able to determine the precise cause of the stroke which patient L. S. suffered prior to discharging the patient from the hospital. The discharge diagnoses reflect: (1) acute cerebral vascular accident; and (2) cardiac arrhythmias with frequent P.V.C.'s. The Respondent kept patient L. S. in Clearwater Community Hospital for ten days, from May 2 until May 12, 1986. Although the evaluation and tests were completed within five days, the Respondent did not want to discharge the patient to his home where he would be by himself, but rather to a nursing home. While waiting for a nursing home bed to become available, the Respondent used the resulting extended hospital stay to continue physical therapy. At the time of transfer from the hospital to Druid Hills, patient L. S. was frail. He was 76 years old, five feet ten inches tall and weighted only 113 pounds. Having just had a stroke, he was far from the picture of health, and this was noted by some of the nursing staff upon transfer to Druid Hills Skilled Nursing Center. He looked and was ill, but he was stable. At the time of admission to Druid Hills, patient L. S. was in essentially the same condition as when admitted to Clearwater Community Hospital, ten days earlier. The patient still suffered from slurred speech and had problems with his right arm. But he was stable and anxious to begin speech and physical therapy. On May 12, 1986, at about 2:00 p.m., Judith Salyer, L.P.N., attempted to contact Respondent in order to confirm routine house orders by "beeping" Respondent. Respondent called the nursing home at 4:30 p.m. on the same day to provide the following admission orders: Lanoxin 0.125 mg. by mouth four times a day ASA by mouth four times a day Persantine 75 mg. by mouth two times a day Quinaglute 325 mg. by mouth every eight hours Lomotil by mouth three time a day for diarrhea Tylenol by mouth four times a day Restoril 15 mg. by mouth at night for sleep as needed Physical Therapy Speech Therapy In addition to slurred speech, on May 14, 1986 (two days after admission to Druid Hills), patient L. S. began to have problems with his eye which was red and draining yellow matter (inaccurately described as "pus" in the nursing notes.) When asked by nursing staff if his eye hurt, L. S. advised them that it did. In all other respects, patient L. S.'s condition seemed essentially unchanged. Respondent was not advised of the change in the patient's eye. On the following date, patient L. S. developed additional symptoms. These included coughing and a runny nose with white mucous. The patient's eyes continued to be pink tinged with a moderate amount of yellow drainage from the eye noted. At 2:20 p.m. on May 15, 1986, Judith Salyer, L.P.N., spoke with Respondent and received the routine house orders which Salyer had called about on May 12, 1986. Salyer did not advise Respondent of the minor cold symptoms. Later on the evening of May 15, 1986, it was noted that patient L. S.'s appetite was poor. On May 16, 1986, at 2:00 p.m., it was noted that L. S. was refusing to eat meals and had a inoderately unsteady gait. On May 17, 1986, it was noted that L. S. informed the nurse on duty that he had had loose stools five times. Additionally, it was noted that the patient was refusing to eat meals. At 9:00 p.m. on May 17, 1986, patient L. S. was noted to be "out of bed." No complaints of diarrhea were noted. Additionally the patient ate 80% of his meal and requested ice cream. In the early part of the day on May 18, 1986, patient L. S. was noted to have "chronic diarrhea" by nursing staff. (Throughout his nursing home stay, the patient was given Lomotil, an anti-diarrheal agent, in an effort to treat the diarrhea.) Between at least 9:30 p.m. on May 18, 1986, and the evening of May 19, 1986, patient L. S. appeared to be doing reasonably well. The patient's appetite was good. There were no complaints of diarrhea. The runny nose, coughing and eye drainage were not noted after May IS, 1986. At 2:00 p.m. on May 20, 1986, Nurse Salyer noted that patient L. S. appeared slightly confused at intervals. The patient had mild congestion and a productive cough. The patient's gait was noted to be unsteady at times. At that time, Salyer "beeped" Respondent in an attempt to advise Respondent of the patient's change in condition. Respondent did not call back on May 20, 1986. A productive cough is a cough which produces "gobs" of mucous. Such a cough can be indicative of a lower (as opposed to upper) respiratory infection or congestion in the chest. The presence of a productive cough is a cause for concern. In a later entry made on May 20, 1986, a Nurse Rooker noted that the patient had remained in bed during the shift. His appetite was 40%. It was noted that L. S. was congested, coughing up large amounts of whitish mucous. On May 21, 1986, at some time before 2:00 p.m., Respondent was notified by telephone of patient L. S.'s stable vital signs, "cold symptoms," that the patient appeared slightly confused at intervals, was refusing to eat, was mildly congested with a productive cough and had an unsteady gait at times. Given this information, Respondent determined that the patient had a "cold" or upper respiratory infection. New orders were received and transcribed. On May 21, 1986, Respondent ordered Ampicillin 250 mg. to be taken every four hours for eight days. Respondent also ordered Actifed to be taken three times a day as needed for "sinus congestion." Respondent gave patient L. S. Ampicillin, which is an antibiotic, for his symptoms as a precautionary or prophylactic measure. Antibiotics should not, as a general rule, be ordered without having a well-grounded understanding why the patient is ill. The cause of the infection should be determined. The most basic reason for not giving an antibiotic without first evaluating the source of the infection is that the antibiotic then can serve to simply hide the symptoms. The antibiotic will cause some improvement, making it appear that the patient is not quite as ill, when in fact the infection persists. Additionally, there is a theory in medicine that the antibiotic can serve to cause a resistant strain of infection. Respondent assumed that, like most other nursing home patients, patient L. S. was suffering from a cold. Respondent ordered no further tests to evaluate the patient and Respondent declined to see the patient on May 21, 1986. Under the facts and circumstances of this case, it was inappropriate for Respondent to prescribe Ampicillin, an antibiotic, without first evaluating the source of the infection. Assuming that L. S. had a "cold" or upper respiratory infection, it was appropriate for Respondent to order Actifed, an antihistamine, for L. S. on May 21, 1986. However, given the presence of a productive cough, chest congestion could have been present. With chest congestion, an antihistamine like Actifed would have been inappropriate. Actifed will dry up the chest. Mucous in the chest which needs to be expectorated, and brought up and out, will remain in the chest. A mucolytic expectorant, not an antihistamine, should be ordered when the chest is congested. Given the facts that patient L. S. was recuperating from a recent CVA, had difficulty in swallowing, and had multiple medical problems, the Respondent could have been more aggressive in either examining this patient, who had a productive cough, or ordering appropriate testing. A reasonably prudent physician, under similar conditions and circumstances, could have personally examined the patient L. S. on May 21, 1986, or soon thereafter. Alternatively, a reasonably prudent physician could have ordered a C.B.C. and a chest x-ray or some other ancillary diagnostic modalities. A C.B.C. is a method by which one can obtain a count of blood cells, particularly white blood cells, in a patient in order to determine whether there is an ongoing infection. The type of white blood cells present (lymphatic cell or a leukocytic cell) can assist in the determination of whether the infection is bacterial or viral in nature. A chest x-ray is necessary to diagnose pneumonia or obstruction in the lungs. Given the history of patient L. S.'s difficulty in swallowing, it is entirely possible that the patient aspirated food or mucous. When such a foreign substance is inhaled into the lungs, it blocks off the bronchials (the airways into the lungs) and causes an obstruction which will lead to pneumonia. Given this patient's condition and history, Respondent could have used a chest x-ray to evaluate the patient to rule out the possibility of aspiration. But it was not necessary for the Respondent to have arranged to personally examine the patient or order tests at this stage. It would be appropriate to monitor a patient with a viral infection (or "cold") or to prescribe antibiotic such as Ampicillin for a bacterial infection. On May 21, 1986, the antibiotic Ampicillin was given to patient L. S. by nursing staff at Druid Hills. This antibiotic was administered as ordered until May 29, 1986, when it was discontinued on the eighth day. On May 22, 1986, Nurse Salyer noted that patient L. S. had diarrhea. Patient L. S. told Nurse Salyer that in the past the patient had taken Ampicillin and that the Ampicillin had caused diarrhea. Salyer further noted on that date that L. S. was coughing up large amounts of yellowish phlegm. On May 22, 1986, at some time prior to 3:00 p.m., Salyer "beeped" Respondent in an attempt to advise Respondent of L. S.'s statement that the antibiotic was causing diarrhea. Respondent did not call Salyer back by the end of her shift on May 22, 1986. On the 3:00 p.m. to 11:00 p.m. shift at Druid Hills, on May 22, 1986, Kathy Rooker, L.P.N., was involved in the care of patient L. S. At 4:50 p.m., Rooker noted that Respondent had not returned the earlier telephone call. Therefore, Rooker called the answering service for Respondent again and asked the answering service to "beep" Respondent again. The Respondent did not call Rooker back. On May 23, 1986, Nurse Salyer notified Respondent of L. S.'s statement that the antibiotic that patient L. S. was taking (Ampicillin) had previously caused the patient to have diarrhea. Respondent decided not to change the antibiotic order for patient L. S. Ampicillin is known to cause diarrhea in some individuals. But so do many other antibiotics. A reasonably prudent physician, after having been advised that the patient had diarrhea and that the patient previously had had diarrhea while on the same antibiotic, could either change the antibiotic therapy or wait and see if the diarrhea continued or became a problem. On May 23, 1986, at 2:00 p.m., Salyer noted that patient L. S. continued to experience congestion and a productive cough, and continued to have a poor appetite. The same information was noted on the evening shift on May 23, 1986. This condition persisted on May 24, 1986. Additionally, the patient's temperature was 100 degrees on May 24, 1986. Previously, the patient had had an essentially normal temperature. On May 25, 1986, it was noted that patient L. S. was still congested with a productive cough. Additionally, the patient's temperature continued to be elevated. On May 26, 1986, no entry was made in the nurses' notes as to the status of the patient's congestion and cough. It was noted that the patient's friend, "John," came to request permission to take L. S. out for the day. However, L. S. indicated that he felt too weak to go. Both L. S. and his friend asked that Respondent be called for a leave of absence order in the future. It was further noted that the patient continued to have a poor appetite. In the morning on May 27, 1986, Nurse Salyer "beeped" Respondent for the leave of absence order. Respondent did not return that call during Salyer's shift on May 27, 1986. In the 2:00 p.m. entry for May 27, 1986, Salyer noted that patient L. S.: had bed rest during the shift; suffered from chronic diarrhea with mucous in the stool; was refusing to eat with poor fluid intake; had yellow mucous draining from his eyes; and had continued congestion with a productive cough. At 9:00 p.m. on May 27, 1986, it was noted that the patient's condition as described above had persisted. Additionally, it was noted that Respondent had not returned the telephone call made by Salyer that morning. In fact, it does not appear that Respondent ever returned Salyer's call made on May 27, 1986. On May 28, 1986, it appeared that patient L. S. was improving some in comparison to the patient's condition on previous dates. It was noted that the patient's respirations were "easy." However, it was also noted that the patient still had periods of confusion, still had poor appetite, still was congested and had yellowish drainage from the right eye. On May 29, 1986, the patient's condition further deteriorated. On this date, in the morning, it was noted that the patient remained congested. In the afternoon, a friend of L. S. named Sigfred Ivanicki, came to see L. S. Ivanicki had visited L. S. in Druid Hills twice a week (on Sundays and Thursdays) while L. S. was in the nursing home. When Ivanicki saw L. S. on Thursday, May 29, 1986, in the afternoon (Ivanicki usually visited between 4:00 p.m. and 6:00 p.m.), Ivanicki was very concerned about the deterioration he saw in L. S.'s condition and believed at that point that L. S. was dying. Ivanicki had had an opportunity to see patient L. S. several times before May 29, 1986. Initially, when Ivanicki saw patient L. S. shortly after the admission of the patient to Druid Hills, patient L. S. appeared cheerful and on the road to recovery. Ivanicki would, on each visit, perform tasks of a personal nature for L. S. Thereafter, the patient developed bad congestion with a productive cough and had diarrhea. None of these symptoms appeared too serious to Ivanicki. However, on May 29, 1986, Ivanicki became truly concerned about L. S. After seeing patient L. S. on May 29, 1986, Ivanicki went to see the head nurse at Druid Hills and asked that Respondent be called to come see the patient and transfer the patient to the hospital. At that time, Ivanicki was told that Respondent was very hard to reach. At 6:00 p.m. on May 29, 1986, a nurse Febbo assessed patient L. S.'s condition. Nurse Febbo noted that the patient refused to eat, complained of shortness of breath and had a flushed face. The patient's skin was warm and dry. The patient's vital signs were as follows: pulse 102 beats per minute, temperature 99.8, blood pressure 120/60 and respiration rate 28 per minute. The patient's lungs were clear with decreased breath sounds. The patient was congested and was expectorating thick clear mucous. The patient was incontinent of bowel. On May 29, 1986, at 6:00 p.m., Nurse Febbo noted that she attempted to contact Respondent at 546-5702 unsuccessfully, and had notified Respondent's answering service that she was attempting to contact Respondent. Respondent returned Nurse Febbo's call at 8:00 p.m., on May 29, 1986. The nursing staff advised the Respondent of patient L. S.'s condition as reflected in Finding 52, above. In response, the Respondent provided the following telephone order for the patient: Lomotil three times a day, discontinue betadine to the little finger, and obtain a splint for right hand. Respondent did not order a C.B.C. or a chest x-ray at that point, even though both tests would have been appropriate. Additionally, Respondent did not go see the patient when advised of the patient's condition. Regardless whether the nursing staff had placed a "STAT" call, a reasonably prudent physician, after being advised of the condition of patient L. S., would have either gone in to see the patient or promptly ordered a C.B.C. and a chest x-ray. The vital signs and physical examination results reflect a very sick individual. The decreased breath sounds indicated that pneumonia or a pneumonic process had begun in the patient's lungs. Additionally, the diarrhea had advanced to the stage where the patient was incontinent. Respondent should have either seen the patient (something he had decided not to do up to this date) or should have ordered a chest x-ray and C.B.C. The nurses' notes for 8:00 p.m. on May 29, 1986, reflect that the patient L. S. was given Actifed by mouth for congestion, consistent with Dr. Hayward's orders given on May 21, 1986, and not changed. Given the presence of a pneumonic process in L. S.'s lungs, Actifed was inappropriate. See Finding 36, above. On May 30, 1986, it was noted prior to 9:30 a.m. that the patient L. S. was growing increasingly weak and was coughing up a greenish yellow mucous. The patient's lungs were noisy and appeared to be filled with fluid. The nursing staff had begun attempts to contact Respondent, probably beginning as early as 7:30 a.m. At 9:30 a.m., the nurses' notes reflect that the nursing staff had attempted to call Respondent several times and had paged Respondent at the hospital but had received no return telephone call. At 10:00 a.m., Gold Plus called the nursing staff at Druid Hills. Mr. Ivanicki had contacted Gold Plus to complain about Respondent's failure to transfer L. S. to the hospital for treatment. Gold Plus, after talking to the nursing staff, was also to attempt to contact Respondent. At 10:15 a.m., on May 30, 1986, over two hours after the first telephone calls, Respondent finally called Druid Hills and ordered that the patient be sent to the emergency room at Clearwater Community Hospital. Confusion occurred over the transfer of the patient to the hospital, due to no fault of Respondent. As a result of this delay, the patient was not transported to Clearwater Community Hospital until about 11:45 a.m., on May 30, 1986. However, before the actual transport could occur, the patient partially "coded" or had a cardiopulmonary arrest. At the time of the arrival of patient L. S. at Clearwater Community Hospital, the patient had a cardiopulmonary arrest and resuscitation techniques were successfully used. A chest x-ray performed showed haziness in the lungs which was suspicious for aspiration pneumonia. On June 14, 1986, patient L. S. died at Clearwater Community Hospital. The patient had been in a coma since arrival at the hospital. The immediate cause of death was listed as cardiogenic shock. Respondent's final diagnoses were: (1) cardiopulmonary arrest; (2) aspiration pneumonitis; (3) possible acute myocardial infarction; (4) thrombocytopenia; (5) cardiac arrhythmia with frequent PVCs; (6) hyperkalemia; (7) status post-recent CVA; and (8) severe post-anoxic encephalopathy. It was the practice of nursing personnel at Druid Hills to identify calls to physicians as "STAT" calls when an emergency or critical situation existed. With a STAT call, an immediate response was necessary. Nursing staff at Druid Hills did not consider patient L. S.'s condition to be an emergency or critical until May 30, 1986. The calls to Respondent were not identified as "STAT" calls. It would have been inappropriate for the Respondent to delay his response to telephone calls made by Druid Hills nursing staff pertaining to patient L. S. on May 29 and 30, 1986. A reasonably prudent physician, acting under similar conditions and circumstances, would have returned such telephone calls within an hour unless other emergencies existed. But it was not proved that the Respondent received and delayed his response. The Respondent generally was good about returning telephone calls and was experiencing difficulty both with the Gold Plus switchboard and with his answering service. The Respondent's response to those calls may well have been reasonable under the circumstances. In contrast, the calls on May 20, 22 and 27 were not of any emergency nature and did not require priority response. It was not proved that the Respondent's response to' those calls were delayed unreasonably. (Gold Plus had a policy of not permitting a leave of absence, the subject of the May 27, 1986, call.) Except to the extent that the Respondent's course of treatment was inappropriate, as noted above, the Respondent's records (including the hospital and nursing home records) justify his course of treatment of L. S. Respondent, in his treatment of patient L. S., failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, as a result of the deficiencies and omissions noted above.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medicine: (1) hold the Respondent, Edward C. Hayward, M.D., guilty of violating Section 458.331(t), Florida Statutes (1985)(Count One of the Administrative Complaint); (2) dismiss the charges in Count Two of the Administrative Complaint (alleged failure to maintain adequate medical records); (3) place the Respondent on probation for two years under such terms as the Board of Medicine deems appropriate; and (4) fine the Respondent $1,000.00. RECOMMENDED this 13th day of April, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2568 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1.-11. Accepted and incorporated. Proposed findings regarding the milk of magnesia order, rejected. It was part of routine orders. The patient never developed constipation so it never was administered. The proposed finding is irrelevant and unnecessary. Otherwise, accepted and incorporated. Accepted and incorporated. 14.-17. Rejected as contrary to facts found. The paragraphs reciting the tests the Respondent had done are accepted and incorporated; the rest is rejected as contrary to facts found. First three sentences, accepted and incorporated; the rest is rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found. Nurse's description of the patient as "acutely ill" is subordinate to facts found. It is not a diagnosis. Otherwise, accepted and incorporated. 23.-25. Accepted and incorporated. 26. Except that the use of the word "pus" is rejected as inaccurate, accepted and incorporated. 27.-36. Accepted and incorporated to the extent necessary and not subordinate. Accepted but subordinate to facts found. Accepted and incorporated to the extent necessary and not subordinate. Rejected that the Respondent made no attempt to determine the cause of the patient's illness as contrary to facts found; the rest is accepted and incorporated. Rejected, as contrary to facts found, that Actifed was "inappropriate." What was inappropriate was the failure to properly evaluate whether the patient had chest congestion. 41.-44. Accepted and incorporated to the extent necessary and not cumulative. 45. Rejected as contrary to facts found. 46.-57. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. 61.-68. Accepted and incorporated. Rejected as contrary to facts found. Accepted but subordinate to facts found. Rejected as contrary to facts found. Accepted and incorporated. Respondent's Proposed Findings Of Fact. 1.-7. Accepted and, to the extent necessary, incorporated. Penultimate sentence rejected as contrary to the greater weight of the evidence; the rest is accepted and incorporated. Accepted, as far as it goes, and incorporated. However, the proposed findings ignore the productive cough that was observed throughout the period May 20-29, 1986, and which was reported to the Respondent on May 21 and 29, 1986. Third sentence, to the extent it implies it states all the symptoms, rejected as contrary to facts found. Fourth sentence rejected as contrary to facts found--temperature was somewhat elevated and both pulse and respirations were up for a patient in bed rest. Sixth sentence rejected as contrary to facts found--the patient was awake at intervals during the night. Rest is accepted and incorporated with some additional facts. First sentence rejected as contrary to facts found--the patient's condition began to worsen seriously on May 29, 1986, and continued to worsen through the night. The nurses were alarmed at his condition on the morning of May 30, 1986, and began trying to call the Respondent at approximately 7:30 a.m. Third sentence, rejected as not proven when the Respondent received the message that the nursing staff was trying to contact him. The rest is accepted and incorporated. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard W. Payant, Esquire 2349 Sunset Point Road Clearwater, Florida 34625 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on July 28, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 0031639 on October 26, 1977. Respondent is board certified in general surgery and has worked and trained as a general and vascular surgeon. Respondent has practiced medicine in Tampa since 1988. Respondent offered testimony establishing that his peers respect his ability as a surgeon. Until 1996, Respondent had not been the subject of disciplinary action by the Board of Medicine or by any other licensing entity. On January 26, 1996, the Board of Medicine issued a final order in Division of Administrative Hearings Case No. 95-3925, imposing discipline on Respondent’s license to practice medicine. Case No. 95-3925 involved two separate incidents in which Respondent performed surgical procedures that had not been specifically consented to by the patients. In the first incident, Respondent removed the severely diseased left leg of the patient when the signed consent to surgery was for removal of the right leg. The patient was well known to Respondent, and it was understood between Respondent and the patient that both legs would eventually require amputation. In the second incident, Respondent removed a toe that had become dislocated during a debridement of the patient’s foot. The toe was connected only by ligament and necrotic tissue, and Respondent removed it during the debridement procedure rather than waiting to obtain specific consent for its removal. In the final order, the Board of Medicine concluded that Respondent had violated Sections 458.331(1)(p) and (t), Florida Statutes, by failing to obtain proper consent from a patient and by practicing medicine below the standard of care. Based on these conclusions, the Board of Medicine imposed the following relevant disciplinary measures: Respondent’s license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $10,000 to the Board of Medicine, within one year of the date this Final Order is filed. Respondent’s license to practice medicine in the State of Florida is SUSPENDED for a period of 6 months including the time served under the emergency suspension. Respondent shall submit a practice plan prior to reinstatement to be approved by the Board’s probation committee. Within 6 months of the effective date of this Final Order, Respondent shall have an independent, certified risk manager review Respondent’s practice. Specifically, this independent consultant shall review the Respondent’s practice concerning preoperative procedures including patient consent. This consultant will prepare a written report addressing Respondent’s practice. Such report, if necessary, will include suggested improvements of the quality assurance of Respondent’s practice. Respondent will submit this report to the Board’s Probation Committee with documentation that demonstrates compliance with the suggestions enumerated in the consultant’s report. Upon reinstatement, Respondent’s license to practice medicine in the State of Florida shall be placed on PROBATION for a period of two years, subject to the following terms and conditions: Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rules 59R, Florida Administrative Code. Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, quarterly, and at such other times requested by the committee. Respondent shall be noticed by the Board staff of the date, time and place of the Board’s Probation Committee whereat Respondent’s appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of this Probation, and shall subject the Respondent to disciplinary action. * * * 6. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 to be approved by the Board’s Probation Committee.... The responsibilities of a monitoring physician shall include: Submit quarterly reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer’s practice. Brief statement of probationer’s compliance with terms of probation. Brief description of probationer’s relationship with monitoring physician. Detail any problems which may have arisen with probationer. * * * Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probationary terms. Describe relationship with monitoring/supervising physician. Advise Board of any problems. * * * 11. Respondent understands that during this period of probation, semi-annual investigative reports will be compiled by the Agency for Health Care Administration concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. On January 31, 1996, Respondent submitted to the Board of Medicine the practice plan required by the final order. The practice plan named Joseph Diaco, M.D., as Respondent’s monitoring physician, and stated that Dr. Diaco would review twenty percent of Respondent’s patient charts. The practice plan stated that Respondent would comply specifically with all the terms and conditions of the final order, and with the recommendations of the certified risk manager. The practice plan further stated: ... Dr. Sanchez will have specific discussions with his surgical patients prior to any anesthesia being administered, wherein he will discuss the intended surgical procedure again, and will have the intended surgical site marked with indelible ink. The record does not document that the Board of Medicine’s Probation Committee formally approved Respondent’s practice plan, or addressed the terms of the practice plan in any way. Such approval is presumed from the fact that Respondent appeared before the Probation Committee on several occasions subsequent to filing the practice plan, and the record does not indicate that the Probation Committee registered any objection or suggested any modifications to the practice plan. Respondent made the required appearances before the Probation Committee. Respondent and Dr. Diaco submitted the required quarterly reports to the Board of Medicine, and Dr. Diaco fulfilled the monitoring requirements of the practice plan. Periodically during the probation period, Mr. Richard Hess, an investigator with the Agency for Health Care Administration, would contact Respondent and Dr. Diaco to inquire as to Respondent’s practice and compliance with the terms of probation. Mr. Hess would inquire regarding such matters as the submission of quarterly reports, the payment of the administrative fine, and the current locations at which Respondent was practicing. Mr. Hess would submit his reports to the Agency for Health Care Administration and to the Board of Medicine, and these reports were used to supplement the information submitted directly by Respondent and Dr. Diaco. Based upon the information he was provided by Respondent and Dr. Diaco, Mr. Hess never found Respondent out of compliance with the terms of his probation. On the morning of November 2, 1997, an order was entered at Vencor Hospital by the primary treating physician for placement of a central venous line for patient D.M., an 80 year- old female patient. A central venous line is most often placed for access to the circulatory system for the provision of medications and/or fluids when the peripheral venous system is not available for such use. A central venous line may be ordered if the patient has no veins remaining for the insertion of a peripheral catheter, or for extended access, such as when a patient requires a long-term cycle of antibiotics for a bone infection. Patient D.M. required the central line for antibiotics to treat infected ulcerations on her lower extremities. The placement of a central line may be performed by any licensed physician, though surgeons are often called in to perform the procedure for primary physicians. Two physicians who teach at the University of Miami testified that third-year residents are allowed to perform the procedure with only indirect supervision. Dr. Diaco testified that nurse practitioners may perform the procedure under the supervision of a physician. The procedure is performed at the patient’s bedside, not in an operating room. No general anesthesia is required. A local anesthetic is administered at the point of insertion. The entire procedure takes two to three minutes to perform. The central line may be placed in at least three locations in the body: the leg, the neck, or the collarbone. In the case of D.M., Respondent placed the line by way of the collarbone. A needle is inserted under the clavicle and into the vein that unites with the jugular vein to form the second largest vein in the human body, the superior vena cava. Using a guide wire, a catheter is threaded through the subclavian vein and placed inside the superior vena cava. Prior to performance of the procedure, the patient’s head is typically placed lower than her feet in what is called the Trendelenburg position. If the patient has a feeding tube, it is typically turned off prior to the procedure to prevent aspiration of tube material. Proper placement of the central line is confirmed by X- ray taken immediately after the procedure. Such confirmation of placement is necessary due to the risks associated with incorrect placement. The most immediate risk is pneumothorax, the puncturing of the patient’s lung. Other less common complications are blood loss, cardiac arrest, infection, and irregular heartbeat. The consensus of the experts who testified at hearing was that the procedure poses no greater risk of complication for elderly patients such as D.M., but that elderly patients who do suffer complications may have a harder time recovering than would younger, more robust patients. D.M. was an 80 year-old female patient who shared Room 218 at Vencor Hospital with J.P., an 89 year-old female patient. D.M. and J.P. were of the same general age, ethnic origin, and gender. They had similar medical problems, including bilateral lower extremity decubiti and ulcerations. D.M. was able to understand conversation and could verbally communicate with staff. D.M. signed on her own behalf the consent form for the insertion of the central venous line. The signature on the consent form was obtained by and witnessed by Elizabeth Rood, a registered nurse on duty during the day of November 2, 1997. Ms. Rood testified that she believed D.M. was rational enough to sign the form on her own behalf. Vencor Hospital policy dictated that informed consent be obtained from the patient by the surgeon who was to perform the procedure. The nursing employees of Vencor Hospital and Respondent all testified that, despite the stated policy, it was common practice at the time for nurses to obtain the signatures of patients on the consent forms. The express terms of Respondent’s practice plan also required Respondent to have “specific discussions with his surgical patients prior to any anesthesia being administered. ” J.P. suffered from organic brain syndrome and was generally unable to communicate verbally. J.P. was unable to give consent for surgical procedures on her own behalf. Ms. Rood obtained D.M.’s signature on the informed consent form at about 10:00 a.m. Shortly thereafter, hospital staff contacted Respondent to inform him of the order and request that he perform the placement of the central line. Respondent replied that he was unable to perform the procedure at that time because of a more urgent consultation at St. Joseph’s Hospital, but would come to Vencor Hospital later to perform the procedure. Shortly before the start of the nursing night shift, the central line cart with supplies for the procedure was brought by the day supervisor to the second floor of Vencor Hospital and placed outside Room 218. Lisa Cotroneo was the night charge nurse. When she arrived for her shift, she received report from the day charge nurse. That report indicated that D.M. was to receive a central line placement at some time during the evening. The nursing staff at Vencor was divided into teams of two or three nurses assigned to particular rooms on the floor. Team three was responsible for Room 218. At the start of the night shift, Nurse Cotroneo informed two of the three nurse on team three, Donna Maranto and Fortune Ndukwe, that a central line was to be placed on patient D.M. that evening. Nurse Cotroneo did not inform the third nurse, Mary Shogreen, because Nurse Shogreen was a pool nurse called in to work on short notice and had not yet arrived for her shift. Nurse Shogreen was the nurse on team three who was assigned primary care duties for the patients in Room 218. Nurse Shogreen was later informed by Nurse Ndukwe that one of her patients would be receiving a central line placement that evening. Nurse Shogreen testified that she intended to check with the charge nurse to confirm the order for a central line placement, but that she never did so. At around 8:00 p.m., Respondent telephoned the nursing unit to inform the charge nurse that he was on his way to perform the placement of the central line. Nurse Cotroneo conveyed this information to Nurses Maranto and Ndukwe, and told them to be sure everything was ready for Respondent’s arrival. Respondent arrived at Vencor Hospital shortly after 8:00 p.m. and proceeded to the second floor nursing station, where he asked for and received the chart for patient D.M. He reviewed the chart, which contained the signed consent form and the order for placement of the central line. After reviewing the chart, Respondent inquired as to the location of D.M. and the nurse who would assist him in the procedure. Respondent was told that D.M.’s nurse was down the hall. Respondent walked down the hall and approached a group of three or four nurses. Respondent did not know any of them. He informed the group that he was Dr. Sanchez and was there to perform the central line placement. One of the nurses, later identified as Mary Shogreen, told him she was ready for him. She led him down the hall toward Room 218. Respondent paused at the central line cart outside Room 218 to pick up a pair of surgical gloves and the kit used for the central line placement. When Respondent entered the room, he observed Nurse Shogreen already at the bedside. The room was dark, save for a single light over the bed of the patient where Nurse Shogreen was working. Respondent saw that Nurse Shogreen was turning off the feeding tube to the patient, a common precursor to performance of a central line placement. Respondent walked to the other side of the patient’s bed and addressed the patient by the name of D.M. He told her that he was Dr. Sanchez and that her physician had asked him to insert a central venous catheter in her. Respondent looked into the patient’s eyes and realized she was not comprehending what he said. Nurse Shogreen was standing directly across the bed and could hear Respondent’s efforts to talk to the patient, including his addressing that patient as “D.M.” Respondent asked Nurse Shogreen if the patient was “always like this,” i.e., unresponsive. Nurse Shogreen answered that she had never had the patient before, but believed that was the usual condition of the patient. It would not be unusual for an elderly patient such as D.M. to be communicative and able to understand and sign a consent form at 10:00 a.m., but then be uncommunicative in the evening. The medical community informally refers to this phenomenon as "sundown syndrome." Respondent told Nurse Shogreen to assist him in placing the patient in the Trendelenburg position, and to get a rolled towel to place between the patient’s shoulder blades. While Nurse Shogreen was getting the towel, Respondent examined the patient’s neck and chest. Nurse Shogreen returned with the towel, but was unable to adjust the bed into Trendelenburg position. Respondent told her to go get another nurse who knew how to work the bed. She brought in Nurse Ndukwe, who was also unable to get the bed into the proper position. At length, they found a certified nurse assistant who was able to place the bed into position. Neither Nurse Shogreen nor Nurse Ndukwe expressed any concern to Respondent regarding the identity of the patient. Nurse Ndukwe had received an explicit report concerning the fact that patient D.M. was to receive a central line placement. Nurse Shogreen had heard Respondent address the patient as D.M. Respondent completed the procedure, which took about one minute. He proceeded to the nurse’s station and ordered the standard X-ray to confirm the proper placement of the central line, completed the consult form, and dicated both his consultation report and operative report. Nurse Shogreen remained behind in the room to clean up after the procedure. She made notations in the bedside chart of patient J.P., the mistaken recipient of the central line. Even at this point, Nurse Shogreen did not realize that the wrong patient had received the central line. The findings as to events in Room 218 on the evening of November 2, 1997, were based on the testimony of Respondent. Nurse Shogreen testified that it was Respondent who led the way into the room, Respondent who proceeded to the wrong bed, and Respondent who prevented Nurse Shogreen from going out to get the patient’s chart to confirm her mental condition after questioning by Respondent. Nurse Shogreen agreed with Respondent’s version of the problems with getting the bed into proper position, but testified that Respondent was so angry and in such a hurry that he performed the central line placement before the staff was able to place the bed in the proper position. Based on both the substance of the testimony and the demeanor of the witnesses, it is found that Respondent’s version of events is more believable, and that Respondent is a more credible witness than Nurse Shogreen. The undersigned is unable to credit testimony that a physician of Respondent’s skill and experience would plunge ahead into the room and commence a procedure on a patient he had never seen, without doing anything to ascertain her identity. The undersigned finds it more plausible that Respondent followed Nurse Shogreen’s lead, observed the visual cues she was providing, and assumed that the patient to whom Nurse Shogreen attended was in fact patient D.M. Respondent's proffer of testimony regarding inconsistencies in Nurse Mary Shogreen's testimony before the Peer Review Committee was disregarded in formulating these findings of fact. Several physicians offered expert testimony as to whether it is within the standard of practice for a surgeon to rely on his assisting nurse for patient identification. Dr. David Shatz, an associate professor of surgery at the University of Miami, testified that any surgeon must be absolutely sure he is working on the right person. He testified that once Respondent was unable to get a verbal response from the patient, he should have asked the nurse if he was speaking to patient D.M. Dr. Shatz concluded that it is a deviation from the standard of care to perform a procedure on a noncommunicative patient without checking the patient’s identification bracelet. Dr. Stephen Michel agreed that Respondent failed to meet the standard of care by placing the central line in the wrong patient. Dr. Michel’s other conclusions regarding the events in question cannot be credited because he admitted he was assuming that Dr. Sanchez was not permitted by the terms of his probation to be working in Vencor Hospital at all. This assumption was incorrect, and colored the remainder of his conclusions. Dr. Enrique Ginzburg, also an associate professor of surgery at the University of Miami, testified that a surgeon is usually unfamiliar with the patient in a central line placement, and stated that he could not remember the last time he checked an identification bracelet when the nurses were in the room with him. He agreed that it would be easy to check the armband, but that physicians simply do not check the armband if nurses are present to identify the patients. Dr. Jerry Diehr, an anesthesiologist at St. Josephs Hospital in Tampa, testified that a reasonably prudent physician would do what Respondent did. He stated that he relies on nurse identifications in similar circumstances, and that it is common practice for physicians to do so. Dr. Diehr testified that physicians rely on nurses for all manner of patient identification. He noted that care is often dictated by telephone calls. When a nurse calls him and tells him about the condition of his patient, the underlying assumption is that the nurse has correctly identified the patient and adequately reported the condition. Physicians may base their entire course of treatment on such reports from nurses, and must be able to rely on the nurses for such identification and reporting. Dr. Diaco strongly opined that physicians must be able to rely on nurses for patient identification. It is the nurse’s responsibility to identify the correct patient when the physician does not know the patient. Dr. Diaco testified that if physicians cannot rely on nurses for such basic information as the identity of their patients, they may as well live in the hospital and administer their own medications. Peter Shute, an expert in general nursing practice, opined that the three nurses on duty at Vencor Hospital on the evening of November 2, 1997, were negligent in their duty to know the patients on their assigned unit. He testified that Nurse Shogreen was particularly negligent, because she had not received full report on her patients, found out that one of her patients was to receive a central line placement that evening, but did not immediately obtain a full report and take steps to ensure that all preparations had been made. The weight of the evidence is that it was within the standard of care under the conditions and circumstances for Respondent to rely on Nurse Shogreen’s identification of the patient. This finding does not minimize the fact that Respondent bears ultimate responsibility for the performance of an invasive procedure on a patient who did not give informed consent. After Respondent dictated his notes and left the hospital, David Vallejo, the X-ray technician, came to the floor to obtain the X-ray ordered by Respondent. He discovered that the patient who received the central line was J.P., not D.M. Mr. Vallejo went to the nurse’s station and informed Nurse Cotroneo, who called the nursing supervisor to come to the room with her. Nurse Cotroneo and the supervisor confirmed that both patients in Room 218 were wearing their identification bracelets. The nursing supervisor called J.P.’s primary physician, who ordered an X-ray, which confirmed that J.P. suffered no ill effects from the placement of the central line. He also ordered removal of the central line, which was accomplished without incident. Respondent was informed of the error by telephone. He came to Vencor Hospital the next day, November 3, 1997, and documented the error in the medical records of both D.M. and J.P. On that day, a different surgeon performed the central line placement on D.M. All of the expert witnesses agreed that Respondent’s charting and recording of the incident, both before and after he learned of the error, were adequate and indicated no effort to conceal the facts of the situation. The experts also agreed that marking the intended surgical site with indelible ink serves no purpose in a central line placement. Petitioner's own expert, Dr. Shatz, stated that marking the site of a central line placement would be "silly." On November 3, 1997, Vencor Hospital suspended Respondent’s hospital staff privileges pending an investigation of the incident. Respondent immediately contacted Dr. Diaco, his indirect supervisor, as soon as he learned of the error. Respondent fully informed Dr. Diaco of the facts of the situation. Dr. Diaco told Respondent that he did nothing wrong and that “the nurse is in big trouble.” Respondent also sought the counsel of his attorney, Michael Blazicek. Mr. Blazicek conferred with Dr. Diaco, and also concluded that this was a nursing problem, not a standard of care problem for Respondent. The results of the hospital’s internal Peer Review Committee review seemed to bear out the opinions of Dr. Diaco and Mr. Blazicek. On November 26, 1997, Respondent was restored to full privileges at Vencor Hospital. Nurse Shogreen received verbal counseling and a one-day suspension for failure to render proper treatment to the correct patient. Vencor Hospital’s “Root Cause Analysis Team” found that nursing protocols should be changed to prevent a recurrence of patient misidentification. Patients would henceforth be identified by bed letter designation. Identification of the patient and consent to treatment would be verified by two people, one of whom must be a hospital employee. On November 17, 1997, the quality review manager of Vencor Hospital submitted an Adverse or Untoward Incident Report (Code 15) regarding the incident, pursuant to Sections 395.0197(6) and 641.55(6), Florida Statutes. A Code 15 Report is a report of serious adverse incidents in licensed facilities. The Code 15 Report identifies the physicians and nurses involved by their license numbers, and identifies the patient and facility. It describes the nature of the incident and all actions taken by the hospital in response to the incident. The purpose of the Code 15 Report is to notify the Agency for Health Care Administration and the Department of Health within 15 days of a serious adverse incident so the Agency may review the incident and begin an investigation. Respondent appeared before his Probation Committee on November 13, 1997. At this time, Respondent knew that the hospital would be filing a Code 15 Report, though it had not actually done so. Respondent was still on summary suspension at Vencor Hospital, pending review. Prior to his Probation Committee appearance, Respondent conferred with his attorney, Mr. Blazicek, who counseled him to answer any questions forthrightly, but not to volunteer information about the incident to the Probation Committee. This advice was based on the facts that the incident was still under investigation, that there had been no finding of wrongdoing by Respondent, and that summary suspension was a standard procedure for such incidents indicating no conclusions as to ultimate responsibility. Mr. Blazicek testified that he knew Respondent still had one more written quarterly report to file in January 1998. He reasoned that if the hospital's investigation resulted in adverse findings, Respondent could report the incident in that later filing. The Probation Committee raised no questions as to the Vencor Hospital incident, and determined that Respondent’s probation would terminate as scheduled upon payment of the administrative fine. Respondent did not volunteer information about the incident or the summary suspension. Respondent and Dr. Diaco filed their final quarterly reports in January 1998. Neither of them reported the Vencor Hospital incident. Respondent reported that he was in full compliance with all probationary terms. By the time the final quarterly reports were received, the Department of Health was aware of the Code 15 Report. Nonetheless, the Department issued an Order of Termination on February 2, 1998, finding that Respondent had satisfactorily completed the term of his probation as of January 26, 1998.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine enter a final order determining that Rolando R. Sanchez has violated Section 458.331(1)(p), Florida Statutes, and suspending his license for a period of nine months from the date of the Order of Emergency Suspension of License, imposing a fine of $2,500.00 and placing Respondent on probation for a period of two years from the date the suspension expires. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Albert Peacock, Esquire John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are set forth in 11 separate counts within the four consolidated cases: Case No. 09-5360 Count I--Whether Respondent failed to properly monitor and care for a patient in restraints. Count II--Whether Respondent failed to ensure the physician's plan of care for patient was implemented. Case No. 09-5363 Count I--Whether Respondent failed to properly implement the physician's plan of care for patient. Case No. 09-5364 Count I--Whether Respondent failed to ensure a patients' right to privacy. Count II--Whether Respondent failed to ensure that food was served in the prescribed safe temperature zone. Count III--Whether Respondent failed to ensure that only authorized personnel had access to locked areas where medications were stored. Count IV--Whether Respondent failed to perform proper nursing assessments of a patient. Count V--Dismissed. Count VI--Whether Respondent failed to maintain patient care equipment in a safe operating condition. Case No. 09-5365 Count I--Whether Respondent failed to triage a patient with stroke-like symptoms in a timely fashion. Count II--Whether Respondent's nursing staff failed to assess and intervene for patients or ensure implementation of the physician's plan of care.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, monitoring health care facilities in the state to ensure compliance with all governing statutes, rules and regulations. It is the responsibility of AHCA to regularly inspect facilities upon unannounced visits. Often AHCA will inspect facilities for the purpose of licensure renewal, certification, or in conjunction with federal surveys. AHCA will also inspect facilities on the basis of complaints filed by members of the general public. Respondent, Gulf Coast Medical Center ("Gulf Coast" or "GCH") is a hospital within the Lee Memorial Health System. South West Florida Regional Medical Center ("SWF") was another hospital within the Lee Memorial Health System. SWF closed in March 2009, when it was consolidated with Gulf Coast. On October 15, 2008, the Agency conducted a complaint investigation at SWF; a follow-up complaint investigation was done on November 13, 2008. SWF filed and implemented a plan of correction for the issues raised in each of the investigations. The November investigation resulted in an Administrative Complaint containing two counts. On December 16, 2008, AHCA performed another complaint investigation at Gulf Coast. Gulf Coast filed and implemented a plan of correction for the issues raised in the investigation. The investigation resulted in an Administrative Complaint containing one count. On January 5 through 9, 2009, AHCA conducted a routine licensure survey at Gulf Coast. The hospital filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing six counts (although Count V was dismissed during the course of the final hearing). On February 18, 2009, AHCA did its follow-up survey to the previous licensure survey. Gulf Coast filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing two counts. Case 09-5360 The complaint investigation at SWF on November 13, 2008, was conducted under the supervision of Charlene Fisher. Count I in this case addresses findings by the Agency concerning a patient who was placed in restraints at the hospital on August 28, 2008. The patient, A.D., came into the hospital emergency department under the Baker Act seeking medical clearance to a facility. The patient presented at approximately 4:00 p.m., with back pain. He had a history of drug abuse, so there was concern by the hospital regarding the use of narcotics or certain other medications to treat the patient. The patient engaged in some scuffling with police. A physician signed and dated a four-point restraint (one on each limb) order, resulting in the patient being physically restrained. The restraint was deemed a medical/surgical restraint, rather than a behavioral restraint. AHCA had concerns about the restraint, specifically whether there was a notation for Q 15 (or every 15 minutes) monitoring of the restrained patient. However, medical/surgical restraints only require monitoring every two hours. The restraint worksheet for the patient confirms monitoring every two hours. The patient was ultimately admitted to the hospital at 9:37 p.m., and, thereafter, began complaining of left shoulder pain. The hospital responded to the patient's complaints about back pain and began treating the pain with analgesics. However, the patient continued to complain about the pain. An X-ray of the patient's shoulder was finally done the next morning. Shoulder dislocation was confirmed by the X-ray, and the hospital (four hours later) began a more substantive regimen of treatment for pain. Surgery occurred the following morning, and the shoulder problem was resolved. It is clear the patient had a shoulder injury, but it is unclear as to when that injury became more painful than the back injury with which the patient had initially presented. The evidence is unclear whether or when the shoulder injury became obvious to hospital staff. During its course of treating this patient, the hospital provided Motrin, Tylenol, Morphine, Percocet and other medications to treat the patient's pain. Count II in this case also involved a restrained patient, M.D., who had presented to the emergency department under the Baker Act. The patient was released from handcuffs upon arrival at the hospital. After subsequently fighting with a deputy, this patient was also placed in a medical/surgical restraint pursuant to a physician's order. The doctor signed and dated, but did not put a time on, the restraint order. A time is important because there are monitoring requirements for patients in restraints. However, the time of 0050 (12:50 a.m.) appears on the patient's chart and is the approximate time the restraints were initiated. The proper procedure is to monitor a restrained patient every two hours. This patient, however, was removed from his restraints prior to the end of the first two-hour period. Thus, there are no records of monitoring for the patient (nor would any be necessary). The evidence presented by AHCA was insufficient to establish definitively whether the hospital nursing staff failed to properly respond to the aforementioned patients' needs. It is clear the patients could have received more care, but there is not enough evidence to prove the care provided was inadequate. Case No. 09-5363 On December 16, 2008, AHCA conducted a complaint investigation at SWF. The Agency had received a complaint that the hospital did not properly implement a physician's plan of care. Count I in this complaint addresses alleged errors relating to two of four patients reviewed by the surveyors. Both of the patients came to the hospital from a nursing home. One patient, I.A., had presented to the emergency department complaining of chest pains. The medication list sent to the hospital by the nursing home for I.A. actually belonged to someone other than I.A. I.A.'s name was not on the medication list. The drugs listed on the patient chart were different than the drugs I.A. had been taking at the skilled nursing facility from which she came. The skilled nursing facility actually sent I.A.'s roommate's medication list. The erroneous medications were then ordered by the admitting physician and administered to the patient. The hospital is supposed to review the medication list it receives and then enter the medications into the hospital system. The person reviewing the medication list does not necessarily have to be a nurse, and there is no evidence that the person making the error in this case was a nurse or was some other employee. It is clear, however, that the person reviewing the medication list did not properly ascertain that the list belonged to patient I.A. The other patient from the nursing home had been admitted for surgery at SWF. Again, the nursing home from whence she came sent a medication list that was incorrect. The medications on the incorrect list were entered into the system by a SWF employee. The erroneous medications were ultimately ordered by the attending physician for the patient, but there is no evidence the patient was ever administered those medications. Neither of the residents was harmed by the incorrect medications as far as could be determined. Case 09-5364 From January 5 through 8, 2009, AHCA conducted a licensure survey at Gulf Coast and SWF in conjunction with a federal certification survey. Count I of the complaint resulting from this survey addressed the right of privacy for two residents. In one instance, a patient was observed in her bed with her breasts exposed to plain view. In the other instance, a patient's personal records were found in a "public" place, i.e., hanging on the rail of a hallway in the hospital. AHCA's surveyor, Nancy Furdell, saw a female patient who was apparently asleep lying in her bed. The patient's breasts were exposed as she slept. Furdell observed this fact at approximately 1:15 p.m., on January 7, 2009. Furdell did not see a Posey vest on the patient. She did not know if anyone else saw the exposed breasts. Furdell continued with her survey duties, and at approximately 5:00 p.m., notified a staff member as to what she had seen. Furdell did not attempt to cover the patient or wake the patient to tell her to cover up. The female patient with exposed breasts was in the intensive care unit (ICU) of the hospital. Visiting hours in ICU at that time were 10:00 to 10:30 a.m., and again from 2:00 till 2:30 p.m. Thus, at the time Furdell was present, no outside visitors would have been in the ICU. ICU patients are checked on by nursing staff every half-hour to an hour, depending on their needs. This particular patient would be visited more frequently due to her medical condition. On the day in question, the patient was supposed to be wearing a Posey vest in an effort to stop the patient from removing her tubing. The patient had been agitated and very restless earlier, necessitating the Posey vest. Also on January 7, 2009, a surveyor observed some "papers" rolled up and stuffed inside a hand-rail in the hospital corridor. This occurred at 1:15 p.m., on the fourth floor of the south wing of the hospital. A review of the papers revealed them to be patient records for a patient on that floor. The surveyor could not state at final hearing whether there were hospital personnel in the vicinity of the handrail where she found the patient records, nor could she say how long the patient records had been in the handrail. Rather, the evidence is simply that the records were seen in the handrail and were not in anyone's possession at that moment in time. Count II of the complaint was concerned with the temperature of certain foods being prepared for distribution to patients. Foods for patients are supposed to be kept at certain required temperatures. There is a "danger zone" for foods which starts at 40 degrees Fahrenheit and ends at 141 degrees Fahrenheit. Temperature, along with time, food and environment, is an important factor in preventing contamination of food and the development of bacteria. Surveyor Mary Ruth Pinto took part in the survey. As part of her duties, she asked hospital staff to measure the temperature of foods on the serving line. She found some peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice at 66 degrees Fahrenheit. According to Pinto, the hospital's refrigerator temperatures were appropriate, so it was only food out on the line that was at issue. Pinto remembers talking to the hospital dietary manager and remembers the dietary manager agreeing to destroy the aforementioned food items. The hospital policies and procedures in place on the date of the survey were consistent with the U.S. Food and Drug Administration Food Code concerning the storage, handling and serving of food. The policies acknowledge the danger zone for foods, but allow foods to stay within the danger zone for up to four hours. In the case of the peaches and yogurt, neither had been in the danger zone for very long (not more than two hours). The cranberry juice was "shelf stable," meaning that it could be stored at room temperature. The food services director for the hospital remembers the peaches and yogurt being re-chilled in a chill blaster. She does not believe any of the food was destroyed. Count III of the complaint addressed whether an unauthorized person had access to a room where medications were being stored. A state surveyor, Gary Furdell, was part of the survey team on January 5, 2009. Furdell was touring the second floor of the hospital when he noticed a locked door. Furdell asked a hospital medical technician who was standing nearby about the door. The medical technician gave Furdell the code to unlock the door. Furdell peeked inside and noticed bottles that he presumed were medications. It would be a violation for a medical technician to have access to medications, because medical technicians cannot distribute drugs. The room Furdell looked into is a "mixed use" room located behind a nursing station. A mixed use room is used to store medical supplies, including medications, as long as there is a locked cabinet in the room for that purpose. This particular mixed use room had a locked cabinet. The room is used for the preparation of medications and for other purposes. No narcotics were stored in this particular mixed use room. The room contained locked cabinets used to store other medications. The evidence presented was insufficient to determine what "medications" Furdell may have seen in the room. Count IV of the complaint concerned the nursing assessment of a patient, and whether the assessment was properly and timely performed. A patient, M.S., had been admitted to the hospital on June 18, 2008, for lung surgery. Following the surgery, Amiodarone (a very toxic drug which can cause clots and other complications) was administered to treat M.S. for heart arrhythmia. The Amiodarone was administered intravenously and M.S. developed blisters and irritation at the intravenous site. That is not an uncommon complication with Amiodarone. M.S.'s attending physician was notified about the irritation and prescribed a treatment. He also ordered a consult with an infectious disease specialist who ultimately changed M.S.'s antibiotics. Although M.S. was seen daily by her physicians, the nursing notes do not reflect the assessment and treatment of her blisters. It appears that proper care was rendered, but the care was not documented properly. Another patient was admitted to the hospital on December 15, 2008, with End Stage Renal Disease and diabetes mellitus for which she began dialysis treatment. The patient was not weighed before and after a particular dialysis treatment on January 5, 2009. However, the patient had been moved to an air mattress bed on that date for comfort. The air mattress bed did not allow for a weight to be taken as it could be on a regular bed. There is an allegation in the Administrative Complaint concerning the discontinuation of the calorie count for a patient. This issue was not discussed in AHCA's Proposed Recommended Order, nor was sufficient evidence of any wrong- doing concerning this matter presented at final hearing. During the survey, the hospital was found to be storing the medication Mannitol in blanket warmers, rather than in warmers specifically designed for the drug. The blanket warmers maintained the Mannitol at 100-to-110 degrees Fahrenheit. The manufacturer's label on the drug calls for it to be dispensed (injected) at between 86 and 98.5 degrees Fahrenheit. In order to meet this requirement, the hospital takes the drug out of the blanket warmer in time for it to cool sufficiently before it is injected. There is nothing inherently wrong with using a blanket warmer to store Mannitol. On January 5, 2009, a surveyor found two vials of Thrombin, one vial of half-percent Lidocaine and Epi, and one vial of Bacitracin in operating room No. 4. The operating room is within the secured and locked suite of surgical rooms on the second floor. Two of the vials had syringes stuck in them and one of them was spiked. Whoever had mixed the medications was not attending to them at the time the surveyor made her observation. There were two unlicensed technicians in the room preparing for the next surgery. A registered nurse anesthetist was present as well. There was no identifying patient information on the medications. The hospital's policies and procedures do not require the patient's name to be on the label of medications prepared for impending surgery. That is because the procedures for the operating room include a process for ensuring that only the correct patient can be in the designated operating room. There is a fail-safe process for ensuring that only the proper patient can receive the medications that are set out. At around 2:45 p.m. on January 5, 2009, there were patient records in the emergency department showing that several drugs had been administered to a patient. The surveyor did not see a written order signed by a physician authorizing the drugs. When the surveyor returned the next morning, the order had been signed by the physician. The hospital policy is that such orders may be carried out in the emergency department without a doctor's signature, but that a physician must sign the order before the end of their shift. AHCA cannot say whether the physician signed the order at the end of his shift or early the next day. Count V of the complaint was voluntarily dismissed by the Agency. Count VI of the complaint concerned the status of certain patient care equipment, and whether such equipment was being maintained in a safe operating condition. A patient was weighed at the hospital upon admission on December 27, 2008, and found to weigh 130 pounds using a bed scale. Six days later, on January 2, 2009, the patient's weight was recorded as 134 pounds. Two days later, in the same unit, the patient weighed 147 pounds and the next day was recorded as weighing 166 pounds. During the survey process, the patient was weighed and recorded at 123 pounds on a chair scale. The hospital does not dispute the weights which were recorded, but suggests there are many factors other than calibration of the equipment that could explain the discrepant weights. For example, the AHCA surveyor could not say whether the patient sometimes had necessary medical equipment on his bed while being weighed, whether different beds were involved, or whether any other factors existed. AHCA relies solely on the weight records of this single patient to conclude that the hospital scales were inaccurate. Case No. 09-5365 On February 18, 2009, AHCA conducted a licensure survey at Gulf Coast. Count I of the complaint from this survey concerned the timeliness of triage for a patient who presented at the hospital emergency department with stroke-like symptoms. AHCA surveyors witnessed two patients on stretchers in the ambulance entrance hallway leading to the emergency department. Each of the two patients had been brought in by a separate emergency medical service (EMS) team and was awaiting triage. One patient was taken to an emergency department room (ER room) 50 minutes after his/her arrival at the hospital. The other patient waited 45 minutes after arrival before being admitted to an ER room. Meanwhile, a third patient arrived at 2:20 p.m., and was awaiting triage 25 minutes later. During their observation, the surveyors saw several nursing staff in the desk area of the emergency department, i.e., they did not appear to be performing triage duties. The emergency department on that date was quite busy. That is not unusual during February, as census tends to rise during the winter months due to the influx of seasonal residents. A summary of the action within the emergency department from 1:00 p.m. to 3:00 p.m., on the day of the survey shows the following: Patient L.G., 74 years old with stable vital signs, was radioed in by her EMS team at 1:08; L.G. was processed into the ER at 1:21 (which is not an unreasonable time; EMS teams call in when they arrive at or near the hospital. By the time they gain access, wait their turn if multiple ambulances are present, and get the patient inside, several minutes may lapse). L.G. was stabilized and quickly reviewed by ER staff, then officially triaged at 2:04. Patient H.M., an 89-year-old male residing in a nursing home, arrived at 1:20 and was processed in at 1:59. He was triaged at 2:01, but ultimately signed out of the hospital against medical advice. Patient E.M. arrived at 2:18 and was processed at 2:25. Triage occurred one minute later. This patient presented as a stroke alert, and hospital protocol for that type patient was followed. Patient C.J. arrived at 1:08 and was processed at 2:38. Triage occurred immediately after C.J. was processed. This patient was not stroke alert, but had some stroke-like symptoms.1 C.J. had not been transported to the hospital as emergent, because the symptoms had been going on for 24 hours. Patient W.M., an auto accident victim, arrived at 1:40 and was processed at 1:49. Triage occurred within six minutes. Patient M.M., W.M.'s wife (who had been with M.M. in the automobile accident, but was placed in a separate ambulance), arrived at 2:06 and was triaged at 2:34. There is no record of when M.M. was processed. Patient L.M. came to the hospital from a nursing home. She arrived at 1:43 and was processed at 2:35. L.M. was triaged at 2:37. Patient K.M. arrived at 2:45 and was processed within three minutes. Triage occurred at 2:52. Her triage was done very quickly due to the condition in which she arrived, i.e., shortness of breath and low oxygen saturation. Patient R.S. arrived at 1:00 and was triaged at 1:15. The aforementioned patients represent the patients presenting to the emergency department by ambulance during a two-hour period on a very busy day. It is the customary procedure for ER staff to make a quick visual review (rapid triage) of patients as they come into the hospital. Those with obvious distress or life-threatening conditions are officially triaged first. Others, as long as they are stable, are allowed to wait until staff is available for them. As part of their duties, nurses necessarily have to be in the desk area (nursing station) in order to field phone calls from physicians concerning treatment of the patients who present. It is not unusual or improper for nurses to be in the nursing station while residents are waiting in the processing area. It is clear that some patients waited a much longer time for triage than others. However, without a complete record of all patients who presented that day and a complete review of each of their conditions, it is impossible to say whether the hospital was dilatory in triaging any of them. Count II of the complaint addressed the nursing staff and whether it failed to assess and intervene in the care of a patient or failed to implement a physician's plan of care for the patient. Patient D.W. was a 67-year-old female who was morbidly obese, diabetic, debilitated, had end stage renal disease, and was receiving dialysis. Upon admission, D.W. had a Stage 3 pressure ulcer to her sacrum and a Stage 4 ulcer on her left calf. A wound care protocol was initiated immediately, and a Clinitron bed was obtained for her on the day of admission. Due to the seriousness of her condition, the wound care physician declined to accept her case at first. He later ordered Panafil, and it became part of the protocol for treating the patient. The nursing documentation for D.W. was only minimally sufficient, but it does indicate that care was provided. Patient R.H. was an 83-year-old male who presented on February 10, 2009, in critical condition. R.H. was suffering from congestive heart failure, pneumonia, and respiratory failure. Due to the critical nature of his respiratory problems, R.H. was placed on a ventilator. As a ventilator patient, he did not fit the profile for obtaining wound care. Nonetheless, the hospital implemented various other measures to deal with R.H.'s pressure wounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, imposing a fine in the amount of $500.00 in DOAH Case No. 09-5363 and a fine in the amount of $500.00 in DOAH Case No. 09-5364, Count VI. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 30th day of April, 2010.
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Respondent was charged in a five count Administrative Complaint with making or filing a report which the licensee knew to be false in his capacity of a licensed chiropractic physician; failing to keep written chiropractic records justifying the course of treatment of a patient; submitting to a third party payor a claim for services or treatment which was not actually provided to a patient; submitting to a third party payor a claim for a service or treatment without at the same time also providing a copy of the claim to the insured; and making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic.
Findings Of Fact Petitioner Department of Professional Regulation is the state agency charged with regulating the practice of chiropractic pursuant to Section 20.30 and Chapters 455 and 460, Florida Statutes. Respondent is, and at all times material hereto has been, a licensed chiropractor in the State of Florida, having been issued license number CH 0003234. His address of record is 3822 W. Broward Boulevard, Plantation, Florida. This discipline case arose out of a complaint from a patient named Dale McCormick when Respondent put Mr. McCormick's unpaid bill into "collection." On March 17, 1986, Respondent had examined Dale McCormick and began treating him for shoulder/lower back pain. Mr. McCormick did not testify at formal hearing. Therefore, the only testimony as to what examinations and treatments were actually performed by Respondent on Mr. McCormick was that of Respondent. Respondent first testified that the examination he performed was "brief" and included a depression test on each shoulder and circular depression test on the skull, with observation and touching of swelling, edema, and muscle spasm. Respondent did not remember whether he did a range of motion examination on Mr. McCormick and could not discern from the Confidential Patient Case History whether or not he had done so because it is his practice only to record positive findings (i.e. loss of range of motion) and he had recorded no loss of motion. Respondent's own conclusion from this record was that either he had done a range of motion test with no positive findings worthy of recording in his records or he had not done a range of motion test at all. The ambiguity of this chiropractic record, the only one which can be clearly demonstrated to relate to Mr. McCormick (see Finding of Fact 17), demonstrates the inadequacy of the record in that the chiropractor who actually performed the examination. (Respondent) could not recall from his review of that record what had been involved in his physical examination. Respondent's testimony also illustrates the probable confusion that would be experienced by a different health care professional reviewing the same record. See Findings of Fact 19 and 20. Although Respondent subsequently testified that he also considered his examination of Mr. McCormick to be a "comprehensive" examination, he indicated that this appellation depended on the intensity of what any given doctor wanted to do. Respondent conceded that normally he would have given a much more intensive examination but on the day he examined Mr. McCormick he was rushed; that he had intended to get more information from the patient and supplement his records on a subsequent or follow-up visit; and that his records could have been more complete. Respondent diagnosed lumbar strain. Respondent testified that he prescribed phenylalamine for pain, and cold pack for edema and muscle spasm; that he performed traction, muscle stin, spinal adjustment and hot packs as therapy for pain and muscle spasm, and provided a lumbar sacral brace. Phenylalamine for edema, therapy for pain, and a lumbar sacal brace are treatments also listed on a bill which bears Mr. McCormick's name and the Respondent's file number for Mr. McCormick. They are also noted beside Mr. McCormick's name on a sign-in sheet used for every patient Respondent saw on the same day but they are not listed on either chiropractic "record" discussed in Findings of Fact 12-18 infra. The bill also reflects the initials "SAMSHPTR" which was not directly explained by any testimony but which the undersigned infers from the testimony to signify spinal adjustment (SA), muscle stin (MS), hot packs (HP) and traction (TR). Respondent consistently attempted to justify his diagnosis by describing the treatment rendered after the diagnosis as opposed to using his examination to reach a diagnosis and then justifying the treatment rendered by naming the diagnosis. The bill and the sign-in sheet are forms commonly in use by chiropractors but are not normally considered professional "chiropractic records." Mr. McCormick paid $35 and received a receipt saying he had reduced his account to a zero balance. Nonetheless, he also signed a lien and insurance authorization form by which Respondent was entitled to seek compensation for the treatment rendered from a third party payor, Mr. McCormick's insurance company. In the absence of testimony by Mr. McCormick as to what the financial arrangement was, and considering the logic that liens are not required of persons who have truly paid in full, Respondent's unrefuted testimony that his secretary/clerk issued the "paid in full receipt" to Mr. McCormick in error is accepted. Thereafter, Respondent billed Mr. McCormick's insurance company for $290, the balance of Mr. McCormick's bill claimed due by Respondent. Respondent billed the insurance company for the following: 90020 Initial Exam $150 97260, 97010, 97012, 97014 65 07040 Lumbar/Sacral Belt 50 Therapy for pain 60 Respondent testified that he did not know precisely what each of the insurance claim codes signified because he let his clerk/secretary fill these in. He understood code 90020 to signify however intense an examination he chose to give; 97260 to mean "spinal adjustment," and 97010, 97012, and 97014 to mean traction, muscle stin, and hot packs in one order or another, which order he was unsure. Dr. Robert Butler, accepted as an expert in chiropractic over objection, testified that 90020 meant "comprehensive examination;" he did not opine on what the other codes might mean. There is no independent documentation concerning the insurance codes which would tend to support either witness' "opinion" of what the codes signify. There is no evidence to show whether Respondent did or did not simultaneously provide a copy of the insurance claim to the insured (McCormick) and the third party payor (insurance company). Respondent's chiropractic records relative to this case include only a Confidential Patient Case History Form (P-3) and an Orthopedic Neurological Exam Form (R-1). Both records fail to include basic vital signs or other examination relative to a comprehensive examination as described by Dr. Butler. Respondent's Confidential Patient History Form has left blank several areas of general and specific conditions that normally should be filled in by the patient prior to treatment. There is, in fact, no information covering the history of the onset of the problem or injury for which Mr. McCormick presented himself to Respondent. It merely recites "rt & lt shoulder pain" and "rt and lt. low back pain." Although Respondent's Orthopedic Neurological Exam Form contains blank areas to fill in the date and time of injury and the location of the present complaint, these were not filled in on this form and no information as to overall medical history is recorded thereon. This form contains space to record examination results but none are recorded, including common observations for height, weight, posture, and vital signs. Dr. Butler conceded that if the Orthopedic Neurological Exam Form could be related to McCormick, it would be sufficient written record of justification of an examination being performed for billing purposes and he expressed no opinion as to the appropriateness of the amount charged therefor. From the Orthopedic Neurological Exam Form, Dr. Butler could only conclude that the patient described was a "healthy individual" without any positive findings upon examination, and that although the form also contains information concerning selective tests performed on the patient, none of the tests recorded revealed positive findings to justify Respondent's diagnosis of Dale McCormick. The Orthopedic Neurological Exam Form was not produced by the Respondent in the course of submitting to informal discovery. It was only located by Respondent among his papers in the course of final formal hearing and subsequent to Dr. Butler's initial testimony and Respondent's testimony. It is machine-copied on the back of a copy of the assignment of lien and insurance authorization signed and dated by Mr. McCormick. From the immediately foregoing facts alone, it may be concluded that this particular record was maintained in a haphazard manner and not in conformity with reasonable chiropractic care and practice. Moreover, this form does not have Mr. McCormick's name on its face and does not reflect any other information identifying who the patient was, the date of examination, or any information which would confirm that the form was made out contemporaneously with Respondent's physical examination of Dale McCormick. There is no suggestion it was ever submitted to the insurance company to verify Respondent's treatment of Mr. McCormick. For the foregoing reasons and even though Respondent was permitted to reopen his case so as to present this "newly discovered evidence", admitted as "R-1", the undersigned is not persuaded that this Orthopedic Neurological Exam Form relates to the patient in question, Dale McCormick. Neither report justified the course of treatment rendered by Respondent. Upon the expert testimony of Dr. Butlers it is found that: The single most important aid for a chiropractic physician in evaluating a patient's condition is a comprehensive history. The minimal standards in the chiropractic profession for a comprehensive patient history are obtaining the primary complaint, secondary complaints (if they exist), duration of the problem, the nature of the problem, what has been done for the problem, if any previous accidents or injuries exist, whether the patient is taking any medication for the problem, and if the patient is receiving any other treatment. Patient histories should be recorded to assist the treating chiropractic physician or successive health care professional in subsequent treatment of the patient. The results of examinations should be recorded by the chiropractic physician to assist the treating chiropractic physician or any successive health care professional in subsequent treatment of the patient. It is standard in the profession for chiropractors to maintain a minimal record of proceedings, communications, and findings and procedures relative to the management and care of each patient. Dr. Butler acknowledged that it is possible to treat a patient without obtaining a patient history but insisted it is risky to treat professionally within the confines of the professional standards without knowing what the underlying condition is. While the exact treatment of a patient with shoulder/low back pain may vary, the physician should record his treatment in the chiropractic records for the patient. This was not done in this case by Respondent. In Dr. Butler's opinion, the examination related in Respondent's testimony was insufficient to treat shoulder/low back pain. Respondent has been previously disciplined for violations of Sections 460.413 (1)(d) and (e) Florida Statutes and Rules 21D-15.01 (2)(g) and (i) with regard to advertising, which offenses are unrelated to the one violation proved herein.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Chiropractic enter a final order dismissing Counts I, III, IV, and V of the Administrative Complaint and finding Respondent guilty of Count II, a violation of Section 460.413 (1)(n) Florida Statutes, imposing a fine of $1,000, suspending Respondent's license as a chiropractic physician for one month, and imposing a one year period of probation to follow directly upon the completion of the one month suspension, with the period of probation to be reduced in the event the Respondent demonstrates to the Board satisfactory completion of courses in chiropractic record-keeping, the courses to be selected and specified by the Board in its final order. DONE and RECOMMENDED this 27th day of October, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Of Administrative Hearings this 27th day of October, 1988. APPENDIX TO RECOMMENDED ORDER The following constitute rulings pursuant to Section 120.59 (2) Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). Petitioner PFOF: 1-20 are accepted either in whole or in part. Where not fully accepted, modifications have been made to conform to the greater weight of the evidence as a whole, to distinguish between expert opinion accepted and expert opinion not accepted due to equivocations on the record, or opinions expressed without sufficient predicate to be accepted, or to assess the weight and credibility of the witnesses. Proposal 5 specifically has been modified to more closely conform to the greater weight of the credible evidence as a whole. Proposal 6 is mere recitation of testimony out of context and to the degree it has not been accepted within other findings, is modified and distinguished within the facts as found in FOF 20. Proposal 20 has been accepted but only those matters material have been adopted in FOF 21. Respondent's PFOF and 3 are accepted and adopted except as subordinate or unnecessary. is accepted but is irrelevant and not a disputed issue of material fact. Respondent waived any necessity for a subpoena by offering the materials to the prosecution. Moreover, he complained at formal hearing that the DPR attorney did not pick them up quickly enough. 4-6 are partly accepted in FOF 10 to the extent that Dr. Butler was tendered and accepted as an expert in chiropractic over objection, but the remaining parts of each of these proposals is rejected as mere argument and as merely a recitation of authority. COPIES FURNISHED: PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 RAY SHOPE, ESQUIRE AND CYNTHIA SHAW, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH SMITH, D.C. 3822 WEST BROWARD BOULEVARD FORT LAUDERDALE, FLORIDA 33312 LAWRENCE A. GONZALEZ, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 BRUCE D. LAMB, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.
