The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2015.
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
The Issue Should Respondent Patricia Dee G. Stehpenson's license to practice medicine in the State of Florida be revoked, suspended or otherwise disciplined based on the allegations contained in the Administrative Complaint filed herein?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was a licensed physician in the State of Florida, having been issued license number ME 0051453. The patient, a 73 year old female, presented to Respondent on July 11, 1991, with complaints of flashes of light over the past ten years which had increased over the past two years. The patient also complained of seeing halos around street lights at night. During this visit, Respondent diagnosed the patient as having 20/30 corrected vision in her right eye and 20/40 plus 2 corrected vision in her left eye, and that the patient had cataracts. However, Respondent did not recommend cataract surgery at this time. In January, 1992, the patient took the State of Florida driver's license test, including the eye test, and received her driver's license. However, the examiner notice that the patient was having trouble with the eye test and, although the examiner gave the patient her driver's license, the examiner suggested that the patient see an opthalmologist. At the time the patient received her driver's license in January, 1992, the patient was enjoying golf, bowling and driving. Although the patient did not immediately follow the driver's license examiner's advice concerning her eyes, the patient did visit with Respondent on May 8, 1992. At this visit, the patient advised the Respondent that the flashes and floaters had improved but that her vision was interfering with her golfing and driving. Again, Respondent did not recommend removal of the cataract. The patient's vision continued to interfere with her golfing and driving, notwithstanding the patient's testimony to the contrary which I do not find to be credible. The patient's next visit with Respondent was on October 16, 1992. At this visit, the patient advised Respondent that her vision had "lessened a lot" in the left eye. Visual acuity testing indicated corrected vision of 20/30 in the right eye and 20/40 plus 2 in the left eye. However, while the level of vision at which the patient was able to perceive letters (20/40 plus 2) did not change, the refraction (stronger glasses) required to achieve that level indicated more myopia, indicating that the cataract had progressed which supports the patient's complaint that her vision had "lessened a lot". Also at the October 16, 1992, visit, Respondent tested the patient's vision using brightness acuity testing (glare test) and measured the patient's vision as 20/70, with glare in the left eye. The glare test is a method whereby the doctor shines a light in the person's eye to determine the effect of glare on the person's vision. Although some ophthalmologists consider the glare test of no value, other ophthalmologists consider the glare test as another tool to assist the surgeon in making a decision concerning the necessity for cataract surgery. During the October 16, 1992, office visit, Respondent discussed with the patient: (a) the effect the cataract was having on the patient's activities (life-style); (b) the patient's complaint that her vision had lessened; (c) the results of the glare test showing the patient's vision as 20/70 with glare and; (d) other visual acuity testing; and (e)advised the patient that cataract surgery was indicated. Also, Respondent explained the cataract surgery procedures and discussed with the patient the risks and the benefits of the surgery. The patient had no reservations or objections to the surgery and consented to the surgery in hopes of improving her eyesight as well as her life- style. For a person with cataracts, a corrected vision of 20/40 or worse is the vision level where some cataract surgeons will recommend cataract surgery, while other cataract surgeons consider a corrected vision of 20/50 or worse, with or without glare, as the vision level where cataract surgery should be recommended. However, because the vision as determined by visual acuity testing (the ability of the person to perceive letters) does not always accurately reflect the person's quality of vision (the quality of perception on a day to day basis), neither vision level referred to above when considered alone can be used as a hard and fast rule to form a basis for cataract surgery. Since the quality of vision can only be described by the person with the cataract(s), the cataract surgeon must also determine, after consultation with the person, that the cataract(s) are interfering with the person's life-style. Therefore, a person with corrected vision of somewhat better than 20/40 or 20/70 with or without glare, may be a candidate for cataract surgery, provided the cataract is causing a reduction in the person's quality of vision beyond what is indicated by visual acuity testing and thereby interfering with the person's life-style. Furthermore, there are no written standards or guidelines which set a particular vision level for the cataract surgeon to follow when making a decision to recommend cataract surgery. The surgeon must take into consideration all factors and make a decision based on the surgeon's judgment as to what is best for that person. The patient's vision level and the interference the patient was experiencing with her life-style because of the cataracts in her left eye justified Respondent's decision to recommend and perform the cataract surgery on the patient, notwithstanding any of the testimony of Dr. Leslie Monroe to the contrary. On November 3, 1992, Respondent performed phacoemulsification (removal of cataract) with posterior chamber intracular lens implant (implantation of lens) on the patient's left eye. While the patient was in the holding area being prepared for surgery there were complications with the anesthesia. The anesthesiologist, Robert Dienes, M. D., first gave the patient a retrobulbar block which was repeated apparently due to Dr. Dienes' conclusion that the first retrobulbar block was ineffective. Apparently, Dr. Dienes also concluded that the second retrobulbar block was ineffective and gave the patient a superior lid peribulbar block. After giving the peribulbar block, Dr. Dienes noticed a dissecting subconjunctival hemorrhage and notified Respondent. Upon examining the patient's eye, Respondent found the globe (whole eye) to be soft with no active bleeding, indicating the eye was not full of blood and that there was no retina tear or rupture of the globe. Respondent also noticed that "the conjunctiva was real chemotic or it had blood behind it". Respondent also measured the patient's eye pressure with a Schiotz tonameter because there was no slit-lamp in the holding area. The patient's eye pressure was 5, with a 5.5 gram weight, which was normal. The patient's medical records do not reflect an indirect ophthalmoscopy being performed by Respondent on the patient's left eye between Respondent being advised of the dissecting subjunctival hemorrhage by Dr. Diemes and the Respondent performing surgery on the patient's left eye to remove the cataract and implant the lens. Furthermore, Respondent has no independent recollection of performing an indirect ophthalmoscopy during the above period of time before surgery. Respondent's normal practice under conditions and circumstances similar to those in this case has been to perform an indirect ophthalmoscopy during the above period of time before surgery. Therefore, it is assumed that Respondent performed an indirect ophthalmoscopy on the patient after being advised of the subconjunctival hemorrhage but before surgery, notwithstanding the fact that patient's medical records do not reflect such procedure being performed or the fact that Respondent has no independent recollection of performing such procedure during the above period of time. However, assuming arguendo that Respondent did not perform the indirect ophthalmoscopy before surgery, the Agency has failed to establish facts to show that under the conditions and circumstances of this case that such failure amounted to the failure of Respondent to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. After considering the conditions and circumstances surrounding the complication that arose while the patient was being anesthetized, Respondent made a decision that it was in the best interest of the patient to go forward with the removal of the cataract and implantation of the lens. The operation was completed without any further incident and there was a successful removal of the cataract and lens transplant. Respondent's decision to go forward with the surgery had no adverse effect on the subsequent treatment of the complication that arose while the patient was being anesthetized. In fact, the result of the treatment subsequent to the cataract surgery would have been the same even if Respondent had not gone forward with the surgery. Respondent, using a ophthalmoscope, was able to see the inside of the eye more clearly and assess the complication that arose while the patient was being anesthetized. While performing this indirect ophthalmoscopy, Respondent noted undulation of the vitreous with pigmented blood cells present and that the anesthesia needle had penetrated the globe. The patient was seen the next morning, November 3, 1992, by Respondent. After assessing the condition of the patient's left eye, Respondent referred the patient to Keye Wong, M. D., a retina specialist. Upon examining the patient's left eye on November 4, 1992, Dr. Wong noted vitreous hemorrhaging and retinal detachment. Dr. Wong performed an operation on the patient's left eye in an attempt to correct the damage and attach the retina. The patient's vision is not as good as it was before the operation, and still effects the patient's life-style. The patient has difficulty tolerating sunlight, which may or may not be a result of the complication experienced while the patient was being anesthetize. Respondent's action of going forward with the surgery after becoming aware of the complication that arose while the patient was being anesthetized did not cause, complicate, aggravate or result in any of the problems the patient has suffered postoperatively. Respondent did not fail to recognize, identify or treat properly the complications that arose before, during or after the surgery. The Agency has failed to establish facts to show that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances at anytime while Respondent was treating the patient, including both preoperative and postoperative treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner Agency for Health Care Administration enter a final order dismissing the Administrative Complaint filed herein against Respondent Patricia Dee G. Stephenson, M. D. DONE and ENTERED this 23rd day of January, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 23rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1560 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Agency's Proposed Findings of Fact. Proposed findings of fact 1-2 are adopted in substance as modified in Findings of Fact 1 and 2. The first sentence of proposed finding of fact 3 is adopted in Finding of Fact 3. The second and third sentence are not supported by evidence in the record. Proposed finding of fact 4 is adopted in substance as modified in Finding of Fact 5, otherwise not supported by evidence in the record. Proposed finding of fact 5 is adopted in substance as modified in Finding of Fact 7, otherwise not supported by evidence in the record. Proposed finding of fact 6 is adopted in substance as modified in Findings of Fact 12, 13, and 14, otherwise not supported by evidence in the record. Proposed findings of fact 7 and 8 are adopted in substance as modified in Findings of Fact 21 and 22, otherwise not supported by evidence in the record. Proposed finding of fact 9 is a restatement of Dr. Monroe's testimony and is not a finding of fact. However, see Findings of Fact 16 and 17. 8, Proposed findings of fact 10, 16, 17 and 19 are adopted in substance as modified in Findings of Fact 15, 16, 10, 8 and 9. Proposed finding of fact 11 is adopted in substance as modified in Finding of Fact 16, otherwise not supported by evidence in the record. Although proposed findings of fact 12, 13 and 15 are findings of fact, they are neither material nor relevant to this proceeding. See Finding of Fact 9. Proposed finding of fact 14 is a restatement of Dr. Grabow's testimony and is not stated as a finding of fact, but see Finding of Fact 10. Dr. Grabow's testimony was 20/50 vision with or without glare which is different than just 20/50 vision. 11. Proposed findings of Fact 18 and 20 are not supported by evidence in the record. Respondent's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 27 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Marm Harris, M. D., Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, Esquire Agency for Health Care Administration Fort Knox Building Number Three 2727 Mahan Drive Tallahassee, Florida 32308 Steve Rothenburg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 William E. Partridge, Esquire Lutz, Webb, Partridge, BoBo, and Baitty One Sarasota Tower 2 North Tamiami Trail, Suite 500 Sarasota, Florida 34236
The Issue Whether Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Standing. The Petitioners, Medivision, Inc., and Tampa Surgi-Center, d/b/a Ambulatory Surgery Center, have standing to challenge the proposed rules at issue in these cases. See the affidavits of Larry Cyment and Donna McMillan. Intervenor, Florida Hospital Association, Inc., has standing to participate in these cases. See the affidavit of Pat Haines. The following Intervenors have established their standing to participate as intervenors in these cases through testimony or affidavit: Cataract Surgery Center, Cortez Foot Surgery Center, Ambulatory Surgery Center of Bradenton, Tampa Outpatient Surgical Facility, Naples Day Surgery, Ambulatory Surgical Center, Specialty Surgical Center and Tallahassee Single Day Surgery. Eye Surgery Center, The Eye Associates, FW Associates and Cordova Ambulatory Surgical Center have failed to prove their standing to participate in these cases. The Proposed Rules; Purpose and Adoption. The Health Care Cost Containment Board (hereinafter referred to as the "Board"), published Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006 (hereinafter referred to as the "Proposed Rules"), in Volume 16, Number 12, of the Florida Administrative Weekly (March 23, 1990). The purpose of the Proposed Rules is to collect data concerning the provision of ambulatory surgery services in the State of Florida. Data collected by the Board will allow a comparison of patient charges and will create an additional bases for the analysis of trends in the health care field. In particular, data collection will promote the analysis of shifts in the provision of health care from inpatient to outpatient settings. Data concerning patient identity, geographic location, diagnosis, procedures performed and charges for services is required to be collected and submitted to the Board pursuant to the Proposed Rules. In June of 1989, the staff of the Board presented a study to the Board concerning the growth of ambulatory health care services. Staff recommended that the Board direct that steps be taken to explore the possibility of collecting ambulatory surgery data. The Board accepted the recommendation and appointed a Technical Advisory Panel. The Technical Advisory Panel appointed by the Board consisted of nine representatives of various interested groups. Two members were from freestanding ambulatory surgery centers and two members were from hospitals providing ambulatory surgery services. At meetings of the Technical Advisory Panel in July, August, September and October, 1989, the collection of ambulatory surgery services data was considered. The Technical Advisory Panel discussed collection costs, the type of data to be collected, implementation dates, legislative authority, methods of submitting data and the scope of data collection. The Board was made aware of the Technical Advisory Panel's efforts through minutes of the Panel's meetings and other materials provided to the Board. The collection of ambulatory surgery services data was considered by the Board at its October, November and December, 1989, meetings. The Proposed Rules were approved by the Board at its December, 1989, meeting. There is no statutory authority which specifically provides that data may be collected by the Board from "freestanding ambulatory surgical centers." The Board cited Section 407.03, Florida Statutes (1989), as the specific authority for the Proposed Rules. The Board cited Sections 407.003, 407.03 and 407.08, Florida Statutes (1989), as the laws implemented by the Proposed Rules. Scope of the Proposed Rules. Ambulatory surgery services are provided in a variety of settings: hospitals (e.g., acute care, psychiatric and rehabilitation), licensed freestanding ambulatory surgery centers, physician offices and other unlicensed health care facilities. The Proposed Rules provide that all licensed hospitals included in Groups 1 through 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual which provide outpatient surgery services and all licensed ambulatory surgery centers in Florida are required to collect and submit 45 data elements to the Board. Psychiatric hospitals and rehabilitation hospitals are not subject to the Proposed Rules. Physicians' offices and other unlicensed health care providers are also not subject to the Proposed Rules. The Proposed Rules are limited to licensed providers of ambulatory surgery services so that the Board's staff can insure that all members of the groups selected data actually collect and report data. The Board cannot insure that all unlicensed providers of ambulatory surgery services, such as physicians' offices, comply with the Proposed Rules. Therefore, if data was required to be collected and submitted by unlicensed providers, the data would be less reliable. The weight of the evidence failed to prove that the requirement of the Proposed Rules that only hospitals included in Groups 1 and 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual and licensed freestanding ambulatory surgery centers collect and submit data constitutes an invalid exercise of delegated legislative authority. Specific Data vs. Aggregate Data. The Proposed Rules require the collection and reporting of 45 specific data elements. Aggregate data concerning ambulatory surgery services could be obtained from insurance companies and used by the Board as an alternative to the more specific data required to be collected pursuant to the Proposed Rules. Aggregate data is a compilation of specific data. Aggregate data can be used to comply with the Board's statutorily required functions. If aggregate data is used, however, it is likely that reporting will be incomplete. Not all information is reported to insurance companies concerning outpatient activity. Therefore, aggregate data obtained from insurance companies would not cover 100% of ambulatory surgery services provided by reporting entities, resulting in the potential for presenting an incomplete or inaccurate picture of ambulatory surgery services. The recommendations and conclusions which can be reached from aggregate data are limited. Specific data allows more flexibility for research purposes. Specific data will assure greater accuracy and comparability of data. Recommendations and conclusions reached from specific data should be more accurate. In order to insure comparability of data, specific data concerning patients, geographic location, diagnoses, procedures and charges must be collected. The Board collected aggregate data concerning ambulatory surgery services through a special study. The Board collected the data from hospitals and, on a voluntary basis, from licensed ambulatory surgery centers. "Typical" charges for specified ambulatory surgery procedures was collected. This collection effort was flawed by the lack of specific data. The accuracy of the reports based upon the aggregate data was criticized publicly. The reports were even criticized by one of the witnesses called to testify by Intervenors, Cataract Surgery Center, et. al. The weight of the evidence failed to prove that the requirement of the Proposed Rules that specific data be collected and submitted instead of aggregate data constitutes an invalid exercise of delegated authority. Confidential Patient Data. Some of the data elements to be reported pursuant to the Proposed Rules constitute confidential patient information. Disclosure of confidential patient information is prohibited by Florida law. The Proposed Rules do not require or authorize disclosure of confidential patient information. The manner in which the data collected will be distributed has not yet been decided upon by the Board. The evidence failed to prove that the Board will not comply with prohibitions against disclosure of confidential patient information. The weight of the evidence failed to prove that the requirement of the Proposed Rules that confidential patient information be reported to the Board constitutes an invalid exercise of delegated authority. Computer Use. The Proposed Rules require that data be submitted by computer tape or computer diskette. Therefore, data will have to be input into a computer system. The Proposed Rules specify the format data must be in when submitted. Most of the language of the Proposed Rules is computer terminology. The terminology of the Proposed Rules will require some knowledge of computers to carry out the requirements of the Proposed Rules. The language of the Proposed Rules is intentionally designed to convey technical information. The general purpose and requirements of the Proposed Rules does not take any special knowledge to understand. Requiring the submission of data by electronic means is designed to assure the accuracy and confidentiality of the data. The requirement of the Proposed Rules that data be reported in computer form and the use of computer terminology does not constitute an invalid exercise of delegated legislative authority. Errors in the Proposed Rules. Proposed Rule 10N-6.002(2) defines "Ambulatory Surgery Services" as procedures "provided in a hospital in its dedicated ASC ..." [Emphasis added]. Instead of "ASC" the Board intended to use the terms "operating room." Proposed Rule 10N-6.005 contains a list of the data elements to be collected and reported to the Board. This Proposed Rule contains the following errors or unclear language: Item 20 is "Facility Fee - Pri. Proc." "Pri. Proc." is an abbreviation for primary procedure. Items 21-24, similar to Item 20, contains the abbreviation "Sec. Proc." instead of secondary procedure. Items 25-27 contain a reference to "Page 3". As published in the Florida Administrative Weekly, there is no page 3. Item 35, which deals with expected methods of payment, refers to "Comm. Ins. (incl. BCBS)." This reference is an abbreviation for commercial insurance (Blue Cross Blue Shield). Item 44, patient birth date, uses the abbreviation "MMYYYY." This abbreviation should be "MMDDYY." Proposed Rule 10N-6.006 refers to "Primary Diagnosis Code" and "Secondary Diagnosis Code." The Rule should refer to Primary and Secondary "Procedure" Code. The mistakes identified in findings of fact 38-40 are not significant enough to characterize the rule as vague. Nor are these mistakes sufficient enough to otherwise conclude that the Proposed Rules constitute an invalid exercise of delegated legislative authority. Economic Impact. The Economic Impact Statement (hereinafter referred to as the "EIS"), issued with the Proposed Rules provided the following concerning the economic impact of the Proposed Rules on the Board: ESTIMATE OF THE COST OF IMPLEMENTATION: The agency will be affected by the costs of rule promulgation and by the demands placed upon staff time to assure compliance with the rules and to analyze the data collected. Costs for these activities are estimated to be approximately $85,000 per year. The weight of the evidence failed to prove that this portion of the Board's EIS is unreasonable. The EIS provided the following concerning the economic impact of the Proposed Rules on persons affected by the Proposed Rules: ESTIMATE OF THE COST OF IMPLEMENTATION: Implementation by affected facilities will cost approximately $2.9 to $3.1 million. These funds will be used to develop the programs necessary to collect and submit the data required. On-going compliance will have a much less significant impact. . . . . ESTIMATE OF COST TO ALL PERSONS DIRECTLY AFFECTED BY THE RULE: The initial cost to Florida hospitals and freestanding ambulatory surgery centers (ASC) would be from approximately $2.9 to $3.1 million to develop the reporting system necessary to generate the necessary data elements. On-going annual cost to the hospitals and free standing ASCs would be substantially less after the first year's start-up procedures are adopted. . . . . The EIS is insufficient because it does not adequately discuss the costs (implementation and ongoing costs) to affected persons or the impact of the Proposed Rules on small business. The weight of the evidence proved that the Proposed Rules will have an economic impact on affected persons. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the implementation cost affected persons can be expected to incur as a result of the Proposed Rules. As indicated in the EIS, the Board's determination of the estimate of the economic impact on affected persons was based upon surveys the Board distributed to licensed ambulatory surgery centers, an estimate of costs that hospitals incurred in implementing the Board's detailed patient data collection rule, the Board staff's experience with computer costs (including the collection and entry of data) and consultation with a computer expert familiar with the Proposed Rules. The surveys relied upon by the Board were distributed to all licensed freestanding ambulatory surgery centers. A total of 91 surveys were distributed. The Board requested that the surveys be returned within one week. Forty-one responses to the surveys were received by the Board from licensed freestanding ambulatory surgery centers. The responses constitute hearsay. Findings of fact concerning whether the information contained in the responses is correct, therefore, have not been made. The responses to the surveys have, however, been relied upon to make findings of fact concerning what information the Board based its EIS on. The Board received the following pertinent responses to the surveys from licensed freestanding ambulatory surgery centers: (1) 26 of the responders use computers, 12 have no computer capacity and 3 have some computer capacity; 17 or 18 different software programs are in use; and, (3) the costs to implement the proposed collection of data ranged from $0 to $50,000.00. Twenty- six responders indicated that they did not know how long it would take for them to implement the proposed collection of data. The Board determined that the average implementation cost for licensed freestanding ambulatory surgery centers reported in the responses to its survey was $18,975.00 and that the average implementation time was 13 weeks. The Board rounded up the average cost reported to it in the surveys and estimated that the cost of implementing the Proposed Rules at licensed freestanding ambulatory surgery centers would be $20,000.00. Based upon the existence of 85 licensed facilities, the Board estimated the total implementation cost for licensed freestanding ambulatory surgery centers to be $1,700,000.00 ($20,000.00 x 85). The Board estimated that the maximum cost of implementing the Proposed Rules at affected hospitals would be $2.00 per patient record. This estimate was based upon the Board's estimate of the cost of hospital compliance with the Board's detailed patient discharge data rule. Based upon an estimate of 600,000 patient records a year which will have to processed as a result of the Proposed Rules, the Board estimated the total cost of implementation in affected hospitals to be $1,200,000.00. The Board concluded that the total minimum cost of implementing the Proposed Rules will be $2,900,000.00 ($1,700,000.00 cost for freestanding ambulatory surgery centers plus $1,200,000.00 cost for affected hospitals). The Board discussed the cost of implementing the Proposed Rules with J. Thomas Solano, an expert in computers. Mr. Solano estimated that the cost of modifying an existing computer system (small to mid-range computer) to comply with the Proposed Rules would be $4,000.00 to $10,000.00. The Board used the highest estimate, $10,000.00, and multiplied this cost by the number of affected persons (85 freestanding ambulatory surgery centers and 220 hospitals x $10,000.00). This resulted in a rounded-up estimated implementation cost of $3,100,000.00. The Board concluded that the total maximum cost of implementing the Proposed Rules will be $3,100,000.00. Some of the data to be collected and reported pursuant to the Proposed Rules is already being collected by affected persons. Therefore, the primary cost of complying with the Proposed Rules will be associated with modifying existing computer software and/or hardware. The cost of modifying an existing computer system can fluctuate widely. As a general rule, computer users with existing software must rely upon their existing software provider to make modifications. The cost of modifying software can, therefore, be much higher than Mr. Solano estimated. As an alternative to modifying existing systems, affected persons can acquire a freestanding personal computer and software which can be used to comply with the Proposed Rules. The cost of such an acquisition should be approximately $2,500.00 to $5,600.00. Intervenor, T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it will have to spend approximately $14,000.00 to $20,000.00 to implement the Proposed Rules. This estimate is based upon a letter purportedly from the Intervenor's computer company. The information contained in the letter is hearsay. The estimated implementation costs are, therefore, not supported by admissible evidence. The estimate, even if supported by competent substantial evidence, is within the Board's estimated implementation costs and, therefore, fail to prove that the Board's EIS is unreasonable or that the Board failed to fully consider the economic factors or impact. Intervenor, Cataract Surgery Center, estimated implementation costs of $1,900.00. This amount is limited to additional maintenance fees, supplies and personnel costs. Cataract Surgery Center believes there will no charge from its computer vendor to modify its software. Cataract's estimated costs are reasonable and within the Board's estimates. Ambulatory Surgical Center of Lake County (hereinafter referred to as "Lake"), does not own a computer. It uses the computer system of its physician owners. Lake considered more than one method of complying with the Proposed Rules. It considered buying a personal computer and estimated it would cost $5,000.00. This cost is consistent with the estimates of the Board. Lake also considered purchasing an integrated hardware and software package. It estimated that such a system would cost $40,000.00 to $50,000.00. The estimate is based upon hearsay. Even if the evidence concerning the cost of an integrated system is accepted as correct, the evidence fails to prove that such costs are necessary to comply with the Proposed Rules. The estimate for this system is based upon Lake's decision that it would perform other functions with the computer system, including storing management information and performing billing functions. These functions are not required in order to comply with the Proposed Rules. Lake currently treats approximately only 300 patients annually. The weight of the evidence failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the implementation cost which will be incurred by affected persons. The weight of the evidence also failed to prove that the inadequate treatment of implementation costs in the EIS was fully considered by the Board. Therefore, the treatment of implementation costs in the EIS constitutes harmless error. Although the primary costs to affected persons caused by the Proposed Rules will be associated with implementation of the Proposed Rules, there will also be certain costs associated with ongoing compliance with the Proposed Rules. There will be ongoing costs for the collection of data, entry of the data into a computer and reporting data to the Board. Ongoing costs caused by the Proposed Rules will be greater if an affected person with an existing computer system acquires a freestanding computer system instead of using the existing system. The Board's statement in the EIS concerning ongoing costs was not based upon information from affected persons. The statement concerning ongoing costs does not indicate what the ongoing costs of compliance with the Proposed Rules will be. It only indicates that it will be less than the initial implementation costs associated with the Proposed Rules. Although the weight of the evidence did not prove the estimated total amount of ongoing costs to affected persons from the Proposed Rules, the weight of the evidence failed to prove that ongoing costs will be greater than the estimated total amount of implementation costs. T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it would incur ongoing costs of approximately $6,000.00. This estimate is reasonable. Cataract Surgery Center estimated that it would incur ongoing costs of $41,600.00, or $20.00 per case, to comply with the Proposed Rules. Cataract Surgery Center's estimated costs include the following costs: reel purchase; handling; reel preparation; collection of billing data; process of sending information to the Board; clarification of errors; additional record production; and response to public inquiries. Cataract Surgery Center's estimated costs are not reasonable. The estimated time to comply with the Proposed Rules is excessive and some of the tasks, i.e., collection of billing data, are not required by the Proposed Rules. Cataract Surgery Center's conclusion that it may have an increase in maintenance fees is reasonable. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the ongoing costs affected persons can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of ongoing costs in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the ongoing cost which will be incurred by affected persons. The EIS contains a statement that the Proposed Rules should have no economic impact on small business. In reaching this conclusion the Board failed to take into account the legal definition of "small business" contained in Florida Statutes. The Board did, however, actually consider the impact the Proposed Rules would likely have on small ambulatory surgery centers subject to the Proposed Rules. The Board attempted to reduce the economic impact on small ambulatory surgery centers by allowing affected persons to file data on computer tape or on diskette. By allowing the use of diskettes for reporting data, the Board made it possible for affected persons to use personal computers to comply with the Proposed Rules. Delayed submission of some data elements was also allowed in order to reduce the impact on small facilities. It is unlikely that the Board would have made further modifications of the Proposed Rules had the legal definition of "small business" been considered. The weight of the evidence failed to prove what, if any, reasonable modifications should have been taken by the Board to accommodate any economic impact on small business. The weight of the evidence failed to prove whether any of the entities that participated in the proceeding were small businesses. Those entities, although meeting the definition of small business with regard to the number of employees they have and their net worth, failed to prove whether they are "independently owned and operated." See Section 288.703(1), Florida Statutes (1989). The weight of the evidence failed to prove if any person affected by the Proposed Rules is a small business. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of small business which can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of the impact on small business in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated legislative authority because of the impact on small business. The Petitioners and Intervenors presented evidence concerning a number of actions which the Board did not take during its consideration of the economic impact and factors of the Proposed Rules and its preparation of the EIS. This evidence proved only that there were other steps which the Board could have taken during its preparation of the EIS. The Petitioners and Intervenors failed to prove, however, that the steps which the Board did take were not sufficient. The Petitioners and Intervenors therefore failed to prove that the steps which the Board did not take were required or necessary.
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
