Findings Of Fact Mrs. M. L. Croft was called and sworn and testified that she was a R.N. and was employed from October 1974 until March 1975 at Bay Convalescent Center, Panama City, Florida as the Director of Nursing. On or about November 1, 1974, several events came to her attention which caused her to look into the patient care rendered by Mrs. Parrish to patients and coworkers at Bay Convalescent Center. On November 1, 1974, she received a call from the father of an employee of Bay Convalescent Center, Ruby Goodman, a nurse's aide, who advised Croft that his daughter was ill and that she had received some medical care from Mrs. Parrish. Croft determined by an examination of records and a discussion with Mrs. Parrish that Mrs. Parrish had administered penicillin, darvon, and emperin to Ruby Goodman. Mrs. Parrish admitted that she had administered these medications to Ruby Goodman but stated to Mrs. Croft that she had not known it was against the rules. with regard to Ruby Goodman, Mrs. Parrish testifying in her own behalf said that she had thought that it was the policy of the Center to treat its employees based upon a prior occurrence when an employee had reported sick and another Registered Nurse had given medications to the employee. Ms. Croft stated that she had also examined the charts kept by Mrs. Parrish during the month of October 1974. These included the chart of Ellis Roberts for the period of October 4 until October 30, 1974, which the witness identified and was received as Exhibit 1. There is no entry contained on Exhibit 1 for 12:00 midnight, October 12, 1974, and thereafter at 12:00 midnight and 6:00 a.m. from October 13 until October 17, 1974, indicating whether the patient received or refused ampicillin. Because no entry was made it cannot be determined whether a charting error had occurred, or whether Roberts received or refused his medication. No entry was made in the nurses' notes (Exhibit 4) indicating a change in medication or procedure for the administration of ampicillin. Ms. Croft testified that she counted the number of pills in the ampicillin bottle assigned to Roberts on the morning of November 1, 1974, and there were two more capsules present than there should have been. Exhibit 1 would indicate that Roberts possibly did not receive ampicillin on a total of eleven occasions between October 12, 1974 and October 17, 1974, when the medication was discontinued. Based upon Exhibit 1, Ms. Croft should have discovered eleven extra capsules of ampicillin on hand in Roberts' ampicillin bottle. Neither the testimony nor Exhibit 1 indicates who was caring for the patient, Roberts, on the evening of October 12, 13, 14, and 17, 1974. Ms. Croft testified that Mrs. Parrish was on duty during the night shift, 11:00 p.m. until 7:00 a.m. on October 15 and October 16, 1974. Mrs. Parrish testified that she could not recall the events well but that she had withheld medication from Roberts only on one occasion and that was on doctor's orders when Roberts had run a high temperature and Mrs. Majors, R.N., had taken over charting of the patient. On that occasion because of the patient's temperature all medications were discontinued and the patient packed in ice and given an alcohol rub according to Mrs. Parrish. She further explained that Mrs. Majors had handled the charting and entered the doctor's orders upon the patient's records, therefore, she did not know why the instructions to discontinue ampicillin did not appear in the doctor's order notes for October 15, 1974. Having examined the nurse's notes and doctor's orders for October 15, 1974, Mrs. Parrish in response to the Hearing Officer's inquiry, could not identify the aforementioned incident with Roberts. Exhibit 4 indicates that Roberts first had ice packs applied on the night of October 29, 1974, in response to a serious change in his condition. The charting of the patient's condition for October 29, 1974, was by Mrs. Majors, R.N. With regard to the charges against Mrs. Parrish relative to the patient Ellis Roberts, the Hearing Officer concludes that the evidence presented does not prove that Mrs. Parrish failed to administer ampicillin as ordered by the attending physician because the records indicate eleven occasions upon which the drug was possibly not administered while Ms. Croft's pill count indicates only two extra ampicillin pills. Exhibit 4, the nurse's notes for October 10, 1974 through October 18, 1974, do not reveal any entries by Mrs. Parrish. The absence of entries on Exhibit 1 makes it impossible to determine when or if Mrs. Parrish was on duty. However, the uncontroverted testimony of Ms. Croft was that Mrs. Parrish was on duty during the period 12:00 midnight and 6:00 a.m. on the nights of October 15 and 16, 1974. Exhibit 1 clearly indicates that at error in the charting of ampicillin occurred at 12:00 midnight and 6:00 a.m. on October 15 and 16, 1974. Ms. Croft testified further that she had examined the chart of Anita Pritchard, which she identified and which was received as Exhibit 2. This exhibit indicates that the patient did not receive a prescribed does of lanoxin by the entry having been circled for 9:00 am. and 5:00 p.m. on October 21, 1974. However, the record further indicates along side the 9:00 a.m. entry on October 21, 1974, that the medication was given. Ms. Croft was asked to examine the nurse's notes and doctor's instructions but was unable to find any basis for the change in medication schedule. A review of Exhibit 2 indicates that the patient received all of the medications to be given at 9:00 a.m. and 5:00 p.m. on October 21, 1974. Exhibit 2 further indicates that the patient did refuse medications form other nurses on other occasions. According to the instructions on Exhibit 2, Mrs. Parrish did not properly complete the annotation of the patient's refusal to take the medication because, according to the testimony of Ms. Croft, no entry was made in nurse's notes stating the reason for not giving the medication. Mrs. Parrish, according to her testimony, had no clear recollection of the event and could not determine from an examination of Exhibit 2 if the initial and circle appearing on the exhibit were hers or whether the lanoxin was given the patient. Ms. Croft then identified the medication chart of Lena Sparks which was received into evidence as Exhibit 3. Ms. Croft testified that Exhibit 3 revealed that the patient Lena Sparks had received on the night of October 30, 1974, a dosage of tunial prior to bedtime. Exhibit 3 further reflects that the patient was to receive a dosage of tunial "HS PRN". According to these instructions, the patient should have received tunial at bedtime as needed or required. Exhibit 3 reflects that Mrs. Parrish administered a dosage to Ms. Sparks at 3:45 a.m. on the morning of October 31, 1974. The administration of the drug tunial to Ms. Sparks by Mrs. Parrish was contrary to the instructions regarding the administration of this drug to Ms. Sparks. Ms. Croft, having examined the records, could not find any doctor's authority to repeat the dosage at any time. Ms. Parrish testified that Ms. Sparks was a noisy and loud person and that on another occasion she had given her medication to quiet her upon the instructions of another nurse. She testified that based upon the prior incident that she had felt justified in administering tunial to Ms. Sparks and the patient awoke at 3:45 am. on October 31, 1974. Mrs. Parrish appeared to be evasive and belligerent and her testimony concerning events .were vague and she could recall very few actual facts surrounding the incidents in question. The one incident which she recalled regarding the radical change in the patient Roberts' condition did not occur on the date when, according to, the testimony of Ms. Croft, Mrs. Parrish was on duty and failed to properly administer Roberts' medication or chart the administration of his medication. According to Ms. Croft Bay Convalescent Center is a skilled nursing facility whose patients require trained nursing care. She also testified that oral changes in doctors' instructions require entry in nurses' notes and doctors' instructions followed up by a "change order" which must be forwarded to the doctor within twenty-four (24) hours, signed by the doctor, and returned for enclosure in the file. Mrs. Parrish has been an L.P.N. for twenty (20) years and prior to her employment by Bay Convalescent Center had been primarily a private duty nurse for the preceding ten (10) years. At the time of the incident alleged in the Complaint, Mrs. Parrish had been employed at Bay Convalescent Center for approximately three (3) weeks. Mrs. Parrish testified that she was unfamiliar with Bay Convalescent Center's medication charting procedure.
Recommendation Having made the aforestated findings of fact regarding the licensee, Emmaline Hutto Parrish, I find that her actions with regard to Ruby Goodman, Ellis Roberts, Anita Pritchard, and Lena Sparks to have been unprofessional and to have violated Section 464.211)(b), Florida Statutes, and I would recommend that the licensee's license be revoked. DONE and ORDERED this 15 day of October, 1975. 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 13th day of October, 1975. COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 William E. Harris, Esquire 406 Magnolia Avenue Panama City, Florida 32401 Ms. Helen Keefe, Executive Director Fla. State Board of Nursing 6501 Arlington Expressway Suite 201 Jacksonville, Florida
Findings Of Fact Manuel Valazquez, a resident of the Respondent ACLF, was admitted to the facility on May 31, 1984, from Jackson Manor Nursing Home. When he was transferred from the nursing facility to the ACLF, Valazquez was in good physical condition except for the presence of one bedsore on his foot. Valazquez and his family had requested the transfer from the nursing home to the Respondent's facility because the Respondent was a friend of the Valazquez family and Valazquez was not happy at the nursing home. During the course of his stay at the Respondent's facility, Valazquez's condition deterioriated due to numerous bedsores. While at the Respondent's facility, Valazquez received a total of seven treatments for these bedsores, the last of which occurred on June 25, 1984. On August 10, 1984, Valazquez was transferred to Snapper Creek Nursing Home with approximately ten bedsores over his body. Additionally, Valazquez was extremely thin, experienced muscle atrophy and organic brain syndrome with senile dementia. Following his admission to Snapper Creek, Valazquez died on August 14, 1984, of septicemia as a result of malnutrition and the presence of numerous advanced bedsores. While at the Respondent's facility, Valazquez did not receive proper care for his life-threatening condition in that he was kept in a hot room on plastic sheets and was not turned to relieve the body pressure which causes bedsores and keeps them from healing. Although the room in which Valazquez was kept had an air conditioner, it was not turned on by the Molinas because Valazquez did not request it. It is unreasonable, however, to expect an elderly man suffering from organic brain syndrome and dementia with serious medical problems to make such a request. Instead, the Respondents should have known that the heat of midsummer combined with his existing bedsores mandated that Valazquez be kept cool and comfortable. Valazquez should not have been admitted to the Respondent's ACLF when he had any bedsores and once these bed- sores began to multiply on his body, Valazquez should have immediately been transferred to a skilled nursing facility. In failing to take appropriate steps to remove Valazquez from his facility as soon as the bedsores began to develop and in keeping him in a hot room on plastic sheets, the Respondent acted in a negligent manner which seriously affected the health, safety and welfare of Manuel Valazquez.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of $2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.
Findings Of Fact The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine. The survey team believed it found a violation of 42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status " On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning, July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until 2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or psycho-social status during that night, such that an attending physician should have been called during the night. Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift). F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through 9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until 9:00 a.m. on the morning of July 2, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed. DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of December, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue In DOAH Case No. 02-1421, addressing a survey concluded on October 23, 2001, the issue is whether Respondent Delta Health Group, doing business as Rosewood Manor (Rosewood), violated Rule 59A-4.1288, Florida Administrative Code and should be assessed a civil penalty and costs. In DOAH Case Nos. 02-1905 and 02-4040, addressing the survey of January 22 through January 25, 2002, the issue is also whether Rosewood violated Rule 59A-4.1288, Florida Administrative Code. In DOAH Case No. 02-1905, the issue is whether a conditional license should issue. In DOAH Case No. 02-4040, the issue is whether civil penalties and costs should be assessed.
Findings Of Fact AHCA is the state agency responsible for licensure and enforcement of all applicable statutes and rules governing nursing homes in Florida pursuant to Sections 400.021 and 400.23(7), Florida Statutes. Rosewood is a skilled nursing facility located at 3107 North H Street, Pensacola, Florida, holding license no. SNF1482096, which was issued by AHCA. Although not found in any rule, an unofficial standard in the industry requires that a resident be observed every two hours. This standard, when complied, is usually not documented. On September 11, 2001, AHCA conducted a survey of Rosewood's skilled nursing facility. During the survey AHCA concluded that the facility failed to ensure that a resident's environment remained as free as possible of accident hazards. Specifically, the AHCA surveyors determined that the door to a bio-hazardous storage area had been, either purposely or inadvertently, propped open instead of being locked, and as a result, a resident entered the area, and injured himself with used hypodermic needles stored therein. Subsequently, on December 6, 2001, AHCA filed a Notice of Intent to Assign Conditional Licensure Status, based on the September 11, 2001, survey. The Notice was dated November 29, 2001. The Notice had attached to it an Election of Rights for Notice of Intent. Prior to December 10, 2001, the Election of Rights for Notice of Intent was returned to AHCA indicating that the factual allegations contained in the Notice of Intent to Assign Conditional Licensure Status were not disputed. On January 30, 2002, ACHA filed its Final Order. This Final Order incorporated the Notice of Intent dated November 29, 2001, and recited, that by not disputing the facts alleged, Rosewood admitted the allegations of fact. However, Rosewood did not admit the facts alleged. Rosewood merely stated that it would not contest the facts. The Survey of September 11, 2001. Resident 1 suffered from dementia, congestive heart failure, and epilepsy. He had a history of psychiatric problems. He was known by the staff to engage in aggressive behavior. Resident 1 was a "wanderer," which, in nursing home jargon, is a person who moves about randomly and who must constantly be watched. On May 24, 2001, Resident 1 attempted to get in another resident's bed and when a staff member attempted to prevent this, he swung at her but missed. On the morning of August 28, 2001, Resident 1 wandered in the biohazard storage room, which was unlocked and unguarded. Resident 1 succeeded in opening a Sharp's container which was used for the storage of used hypodermic needles. His handling of these needles resulted in numerous puncture wounds. These wounds could result in Resident 1 contracting a variety of undesirable diseases. Because he died soon after of other causes it was not determined if he contracted any diseases as a result of the needle sticks. This incident resulted from Rosewood's failure to prevent Resident 1 from wandering and from Rosewood's failure to ensure that harm did not befall their resident. The Survey of October 23, 2001. Resident 1A Resident 1A was admitted to Rosewood on May 31, 2001. At times pertinent he was 87 years of age. He suffered from a urinary tract infection, cardiomyopathy, congestive heart failure, hypertension, degenerative joint diseases, and a past history of alcoholism. He was also a wanderer. On September 7, 2001, this resident engaged in combat with his roommate. Resident 1A was the loser in this contest. When found by staff, his fellow combatant had him in a headlock and was hitting him with a metal bar. The resident suffered facial lacerations as a result. The facility responded to this event by moving Resident 1A into another room. Resident 1A's care plan of September 10, 2001, had a goal which stated that, "Resident will have no further incident of physical abuse toward another resident by next care plan review." On October 4, 2001, the resident entered the room of a female resident and physically abused her. This resulted in this resident's being beaten by the resident with the help of another. Resident 1A suffered cuts and bruises from this encounter. As a result, Rosewood implemented a plan on October 4, 2001, which required that Resident 1A be observed every 15 minutes. Prior to that time he was observed at least every two hours, which is the standard to which Rosewood aspires. Subsequent to this altercation Resident 1A was evaluated by a psychiatrist. The psychiatrist did not recommend additional observation. On October 5, 2001, early in the morning, the resident was physically aggressive to staff and backed a wheelchair into another resident. The other resident struck Resident 1A twice in response. Later in the day, the resident also attempted to touch a female nurse's breasts and to touch the buttocks of a female nursing assistant. The evening of October 21, 2001, Resident 1A was found holding another resident by the collar while another was hitting the resident with his fist. Resident 1A suffered skin tears as a result. There was no documentation that Resident 1A was or was not observed every 15 minutes as required by the care plan of October 4, 2001. He was provided with drugs on October 5, 2001, and October 17, 2001, in an attempt to ameliorate his aggressive behavior; however, the pharmaceuticals provided were unlikely to modify his behavior until four to six weeks after ingestion. On October 31, 2001, Resident 1A was diagnosed by a psychiatrist as having dementia. He was discharged on that date because he was determined to be a danger to others. He died in November 2001. Resident 5 Resident 5 was admitted to Rosewood August 15, 1998. Resident 5 suffered from atrial fibrillation, cardiovascular accident, and pneumonia, among other maladies. Resident 5 was at high risk for accidents. Specifically, he was at risk from falling. In his admissions history dated August 15, 1998, it was noted by Dr. Michael Dupuis that, "If he attempts to stand, he falls." Indeed, the record reveals dozens of falls which occurred long before the survey of October 23, 2001. In response to Resident 5's propensity to fall, Rosewood tried self-opening seat belts while in his wheelchair, placement in a low bed, instituted a two-hour toileting schedule, and attempted to increase the resident's "safety awareness." Rosewood prepared a "Rehabilitation Department Screen" on June 8, 2001, to address the risk. This document indicated that the resident needed assistance with most activities. In the evening of July 28, 2001, Resident 5 was found on the floor of his room. It was believed that he fell when trying to self-transfer from his bed to his wheelchair. He suffered no apparent injury. On August 14, 2001, Resident 5 was found on the floor in the bathroom. He stated that he was trying to get into his wheelchair. He was not injured. On August 29, 2001, Resident 5 was found lying on his side on the floor in a bathroom because he had fallen. He received two small skin tears in the course of this event. On September 12, 2001, Resident 5 was found on the floor holding onto his bed rails. He was on the floor because he had fallen. He told the nurse that he fell while trying to get in bed. He did not suffer any injury during this event. On October 5, 2001, Resident 5 was found lying on the floor in a puddle of blood. He had fallen from his wheelchair. On October 7, 2001, Resident 5 fell in the bathroom while trying to get on the toilet. On October 8, 2001, Resident 5 fell out of his wheelchair and was found by nursing staff lying on the floor in a puddle of blood. This event required a trip to a hospital emergency room. He received three stitches on his forehead and suffered a skin tear on his lower left forearm. On October 14, 2001, Resident 5 was discovered by a nurse to be crawling on the floor. He denied falling and stated that he was just trying to get back in his wheelchair. On October 20, 2001, Resident 5 fell out of his wheelchair. Resident 5's care plan dated September 19, 2001, noted a history of falls and injury to himself and defined as a goal to prevent fall with no report of injury or incidents due to falling by the next review date. Methods to be used in preventing falls included assistance with all transfers, verbally cuing resident not to stand or transfer without assistance, ensurance that a call light and frequently used items were in reach, the provision of frequent reminders, and ensurance that his living areas were kept clean and free from clutter. Rosewood implemented a plan to encourage the resident to ask for assistance when transferring. Subsequent to the June 8, 2001, evaluation, and the September 19, 2001, care plan, which called for a number of interventions, as noted above, Resident 5 continued to experience falls. Resident 5's feisty personality and determination to transfer himself without assistance made it difficult for the facility to guarantee that he did not experience falls. It was noted by Nurse Steele that a care plan requiring one-on-one supervision is not required by AHCA. Nurse Steele, however, opined that perhaps one-on-one supervision would be the only practice which would guarantee that the resident would experience no falls. The Survey of January 22-25, 2002. Resident 12 Resident 12 suffered from osteoporosis, dementia, hyperthyroidism, transient ishemic attacks, urinary tract infection, urinary incontinence, anemia, and hypoglycemia, among other things. Resident 12 was receiving nutrition through a tube so it was necessary to elevate the head of her bed to prevent pneumonia or aspiration. Resident 12, at times pertinent, was immobile and was dependent on facility staff to accomplish all of her transfers and all activities of daily living including turning and repositioning. As evidenced by numerous observations recorded on the "Braden Scale for Predicting Pressure Sore Risk," Resident 12 was at risk for developing pressure sores. Resident 12 was observed by the facility with a pressure sore on the coccyx on December 21, 2001. A care plan had been created on October 12, 2001, providing that she was to be turned every two hours, and was to be provided with a pressure reduction mattress, and was to be kept clean and dry, among other actions. On December 24, 2001, it was noted in a "Data Collection Tool," that the resident's coccyx area was healed. On January 10, 2002, it was noted in Resident 12's care plan that the sore was fully healed. During the January 2002 survey, Nurse Brown on one occasion observed a member of the facility's staff change a dressing over the resident's coccyx, observed the area, and determined that the resident had a pressure sore. A pressure sore is a wound, usually over a bony area, such as the coccyx, which is caused by the weight of the body compressing flesh between the bony area and a bed or chair. Depending on the severity of the sore, pressure sores require a substantial period of time to heal. Pressure sores are graded as Stages I, II, III, or IV, with Stage IV being the most severe. Nurse Brown evaluated Resident 12 as having a Stage II pressure sore during the survey. Nurse Brown observed Resident 12 on two occasions on January 22, 2002; on four occasions on January 23, 2002; on two occasions on January 24, 2002; and on four occasions on January 25, 2002. On each of these occasions Resident 12 was lying on her back with her head elevated. She also observed the resident on several occasions sitting in a wheelchair. A wheelchair does not cause pressure on the coccyx. A "Data Collection Tool" with an assessment date of January 18, 2002, indicated that on January 20, 2002, that there was present on Resident 12, a "coccyx split .25 cm superficial open area, left buttocks 2 cm dark gray rough area." On January 21, 2002, the "tool" noted, "left buttocks 2 cm open area darkened, coccyx split .25 cm remains." A "tool" dated January 25, 2002, noted, "open area on coccyx 2 cm." A "tool" dated February 1, 2002, noted "red area on buttocks" as did a "tool" dated February 8, 2002. A "tool" dated February 15, 2002, noted, "excoriation on buttocks" and on February 22, 2002, the notation was "red area on buttocks." A "Data Collection Tool" dated March 1, 2002, noted, "No open areas." There is nothing in the records maintained by the facility which indicate that subsequent to the healing of the pressure sore on January 10, 2002, another pressure sore developed on Resident 12's coccyx. Nurse Brown was an expert on pressure sores and she saw the area on the coccyx and determined it was a Stage II pressure sore. Thomas Hulsey, also a nurse and also an expert in nursing, observed the wound and concluded that it was merely a skin split or excoriation likely caused by the resident's urinary incontinence. He also observed that after a short passage of time the wound disappeared, which is inconsistent with a pressure sore. Considering the evidence as a whole, it is determined that the redness described subsequent to January 20, 2002, was something other than a pressure sore. The absence of a pressure sore tends, moreover, to indicate that what Nurse Brown observed was not indicative of the general care Resident 12 was typically receiving. Resident 10 Resident 10, a woman 64 years of age, suffered from cardiovascular accident, dysphasia, decubitus ulcers, urinary tract infections, sclera derma, and seizures. She was unable to move any part of her body except for her left arm. Two to three caregivers were required to accomplish transfers. On December 16, 2001, at about 9:45 in the morning, Lula Andrews, a certified nursing assistant, reported finding Resident 10 lying on her side or back on the floor of her room. At 9:10 a.m. Resident 10 had been seen in her bed so she could have been residing on the floor for as long as 35 minutes. Ms. Andrews and two other certified nursing assistants put her back in her bed. Resident 10 weighed about 150 pounds. Ms. Andrews inquired of Resident 10 as to how she came to be resting on the floor and she replied she had, "blackened out." Resident 10 did not receive injuries in connection with this event. The bed was three to four feet above the floor. Ms. Andrews was suspended during an investigation of this incident. Based on the evidence of record it could be deduced that Resident 10 fell from her bed or it could be deduced that Ms. Andrews attempted to transfer Resident 10 without assistance with the result that Resident 10 was dropped or deposited on the floor due to Ms. Andrews' inability to cope with Resident 10's bulk. The evidence of record fails to provide a basis for resolving this question. Neither scenario demands a finding that there was a failure to provide adequate supervision. Resident 16 Resident 16 had a diagnosis of schizophrenia. She also had a seizure disorder, osteoarthritis, and hypothyroidism. She had a care plan addressing her potential to suffer falls. On May 4, 2001, Resident 16 had a grand mal seizure while sitting on a piano stool. The 72-hour report generated by this event noted that she was not injured and refused all medications. On September 29, 2001, Resident 16 had a seizure while sitting on a piano bench. She was playing the piano prior to suffering the seizure. As a result of the seizure she fell backward and bumped her head. She denied experiencing pain from this event. On October 3, 2001, Resident 16 was in the visitor's bathroom, alone, washing her hands. She was upright before the lavatory and when she attempted to sit down in her wheelchair she did not notice that it was not directly behind her. Therefore she missed the seat of the wheelchair and landed on the floor. She sustained no injuries. Nurse Brown opined that had Resident 16 been supervised properly this fall would not have occurred. On December 17, 2001, Resident 16 was sitting on a piano bench when it appeared that she was fainting. One of the staff prevented her from actually falling over. The resident insisted that she was fine. On January 18, 2002, a facility staff person saw Resident 16 about to fall forward from her wheelchair and attempted to catch her before she reached the floor. The staff member was unsuccessful and the resident struck her head on the floor, which resulted in a four-centimeter by four-centimeter bump on her head. Resident 16's care plan required that facility staff closely supervise the resident. Although not an issue involving supervision, it is noted that the facility failed to ensure that she received adequate doses, and properly prepared doses of her anti-seizure medicine. Resident 20 Resident 20, during times pertinent, was a man of 96 years of age. He had a history of seizure disorder, depression, vascular dementia, gastro esophageal reflux disease, peptic ulcer disease, chronic obstructive pulmonary disease, coronary artery disease, and osteoporosis. He entered the facility on January 22, 1995. On September 7, 2001, Resident 20 had a physical encounter with Resident 1A, who was his roommate. Resident 20 was found holding Resident 1A in a headlock and was pounding Resident 1A with a metal seat spine. As a result, Resident 1A received cuts and bruises. The facility staff determined that Resident 20 was very territorial and that the appropriate solution would be to assign him a room so that he could be alone. Nevertheless, on November 10, 2001, a roommate was assigned to Resident 20. The resident complained and the new roommate was moved to another room. Resident 20's care plan was not revised to reflect his territorial nature. On December 28, 2001, another resident was moved into Resident 20's room. On January 2, 2002, Resident 20 told a nursing assistant that the new roommate was wearing his, Resident 20's, clothes. The nursing assistant pacified Resident 20 and left the room. Shortly thereafter Resident 20 attacked his new roommate with a reach/grab device causing the new roommate to receive a cut. One of the surveyors, Nurse Salpetr opined that the nursing assistant was derelict in leaving Resident 20 alone with his new roommate. This opinion based on all of the facts and circumstances, is rejected. As a result of this incident Resident 20, pursuant to the Baker Act, was sent to a psychiatric hospital for evaluation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing, DOAH Case Nos. 02-1421, 02-1905, and 02-4040. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of January, 2003. COPIES FURNISHED: Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building, III Tallahassee, Florida 32308 R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Petitioner is entitled to reinstatement of his license as a registered nurse in the State of Florida.
Findings Of Fact Petitioner is a nurse licensed by the Florida Board of Nursing, having nursing license number RN 2651872. On June 3, 1998, an Administrative Complaint was filed against Petitioner in Case No. 1998-00739, asserting that Petitioner engaged in unprofessional conduct in violation of Section 464.018(1)(8), Florida Statutes. The parties entered into a Settlement Agreement and on March 3, 2000, a Final Order was filed by the Board of Nursing approving the Settlement Agreement and imposing one year of probation. Pursuant to an Order to Show Cause, Petitioner appeared before the Board of Nursing in August 2000. By Order filed September 25, 2000, the Board of Nursing extended Petitioner's probation for six months and required him to obtain an evaluation coordinated by the Intervention Project for Nurses (IPN) within six months. On approximately March 29, 2002, an Administrative Complaint was filed against Petitioner in Case No. 2001-12091, alleging that Petitioner had engaged in unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, and violated the terms of the Final Order in Case No. 1998-00739, in violation of Section 456.072(1)(q), Florida Statutes. On October 28, 2003, the Board of Nursing entered a Final Order with respect to Case No. 2001-12091. The Final Order reprimanded Petitioner; suspended Petitioner's license for a period of three years; required him to undergo an evaluation coordinated by PRN; and imposed a $1,000.00 administrative fine. Specifically, the Final Order provided: The license of Hubert H. Herring is hereby reprimanded. The licensee, Hubert H. Herring, is suspended for three (3) years and thereafter until she/he personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing. That demonstration shall include at least an in-depth psychological evaluation coordinated through the Intervention Project for Nurses, with an MMPI or other appropriate testing from a psychiatrist, psychologist, or other licensed mental health counselor experienced in the treatment of addiction. The licensee shall supply a copy of this Order to the evaluator. The evaluation must contain evidence that the evaluator knows of the reason for referral. The evaluator must specifically advise this Board that the licensee is presently able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained. The licensee must also submit prior to appearance before the Board a reentry plan, proof of continued treatment and counseling if recommended in the psychological evaluation, and demonstration of two years of documented continuous drug free/alcohol free living. The Board reserves the right to impose reasonable conditions of reinstatement at the time the licensee appears before the Board to demonstrate her/his present ability to engage in the safe practice of nursing. Petitioner appealed the Final Order and on January 28, 2005, the First District Court of Appeal affirmed the Final Order in Case No. 1D03-5084. The mandate of the district court issued February 15, 2005. See Herring v. Department of Health, 891 So. 2d 1167 (Fla. 1st DCA 2005). No stay of the penalty was sought during the pendency of the appeal. On November 18, 2004, the Department of Health filed an Administrative Complaint against Petitioner in Case No. 2004- 01520, alleging a violation of the Final Order in Case No. 2001- 12901. On or about June 29, 2005, the Board of Nursing filed a Final Order in Case No. 2004-01520, revoking Petitioner's license. Petitioner appealed this Final Order. The Department of Health requested the First District Court of Appeal to relinquish jurisdiction to the Board of Nursing because the penalty of revocation was outside the Board's disciplinary guidelines. The Court granted the Motion to Relinquish Jurisdiction and on January 10, 2006, the Board vacated the Final Order revoking Petitioner's license. On that same day, the Board issued a new Final Order in Case No. 2004- 01520, that reprimanded Petitioner's license; fined him $250 and imposed investigative costs of $1,592.21; and suspended Petitioner's license until he made payment of the fine and costs of the most recent Final Order and "demonstrates compliance with each and every term of the Final Order in Case No. 2001-12091 filed on October 28, 2003." On February 20, 2006, the First District Court of Appeal dismissed the appeal as moot in light of the vacation of the Final Order being appealed. Petitioner has not been authorized to practice nursing in the State of Florida since October 28, 2003, some four and a half years ago. No evidence was presented at hearing to show whether Petitioner has attended continuing education courses during this time or taken any steps to keep his nursing skills and knowledge up to date. Petitioner submitted the deposition of Dr. Bernard, a physician with whom he worked prior to the suspension of his license. He also presented the testimony of Karen Clark, the staffing coordinator at Tandem Rehabilitation Center. Ms. Clark served in that capacity from December 2002 through August 2004, and knew Mr. Herring during her employment there. According to her testimony, Mr. Herring was a nursing supervisor and was still employed at Tandem when she left in August 2004. She considered him a good, "team player" employee.1/ No testimony was presented, however, regarding his current ability to practice with reasonable skill and safety. Mr. Herring petitioned the Board for reinstatement of his license. His re-entry plan "is simple, to go back to work and provide for my family." He submitted information showing he had paid his fines, renewed his license, and sought evaluation from IPN providers. He stated, however, that he could not and would not be involved with IPN, both because of cost and what he considered to be "extreme prejudice" to him. Two evaluations from IPN providers were presented to the Board of Nursing. The first, prepared by Dr. Selah of the Center for Medicine and Psychiatry, Inc., indicates that in Dr. Selah's view, Petitioner was not safe to practice nursing with reasonable skill and safety. The second, prepared by Dr. Judy Rivenbark, stated that Petitioner would be safe to practice nursing only if he obtained therapy, entered into and complied with an IPN contract and demonstrated that he was current and up to date on his nursing skills. Although considered by the Board of Nursing, no testimony was presented at hearing from either professional. The Board considered his request and on December 27, 2006, entered an Order on Petition for Reinstatement denying his request.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request for reinstatement of his nursing license. DONE AND ENTERED this 22nd day of April, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of April, 2008.
