The Issue This case involved the treatment of and records maintained on Veronica Tuthill while she was a patient at Padgett's Nursing Home from May of 1979, until February, 1980. There were certain factual matters in dispute, to include: Did Veronica Tuthill receive preventive treatment for decubitus ulcers? Did Mrs. Tuthill have a physical-therapy assessment, and was it recorded? Were records on Mrs. Tuthill properly maintained by the nursing staff? Was the transfer document completely prepared when Mrs. Tuthill was transferred from Padgett's Nursing Home to Bay to Bay Nursing Home? Did Mrs. Tuthill receive proper treatment for decubitus ulcers? The primary legal issue is whether the Respondent, Rubin Padgett, is legally responsible for any of the deficiencies alleged. Because of the voluminous quantity of evidence produced and the many proposed findings, the findings herein are limited to those which were at issue. Significantly conflicting testimony regarding issues of fact have been indicated, together with the specific finding. The Board showed that there were certain specific instances when the nursing staff failed to chart or to chart completely the nursing care and treatment rendered Mrs. Tuthill, that a nursing staff member failed to properly complete the transfer document, and that Mrs. Tuthill developed decubitus ulcers while a patient at Padgett's Nursing Home. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. 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. Only those materials received into evidence at hearing were considered as part of the record and formed the basis for these findings. FINDINGS OR FACT The Respondent, Rubin Padgett, is a licensed nursing home administrator and has extensive experience in this field, to include service on the state regulatory board. Respondent is not a registered nurse, medical doctor or related health care professional. Veronica Tuthill was brought to Florida by her daughter, Barbara Magee, who discovered her mother in a nursing home in Virginia. Mrs. Tuthill had been placed in the Virginia home by an unidentified daughter. Ms. Magee was vague about her mother's past medical history, and Mrs. Tuthill was apparently unable to provide her treating physicians with an adequate medical history. However, Mrs. Tuthill was in poor medical condition with contractures, a poorly healed and misaligned fractured hip, malnutrition, anemia, chronic pulmonary disease, arteriosclerotic heart disease and one decubitus ulcer (bedsore) when Ms. Magee brought her to Florida. On April 18, 1979, Mrs. Tuthill was admitted to Centro Espanol Hospital. She was given treatment for her various problems, to include transfusions and treatment for her decubitus ulcer. She was discharged from the hospital on May 10, 1979, with her condition improved; however, she still had the chronic problems described above and a decubitus ulcer the size of a quarter on her left hip. On May 10, 1979, Mrs. Tuthill was admitted to Padgett's Nursing Home (PNH). During her stay at PNH, Mrs. Tuthill's original decubitus ulcer broke down again. She also developed additional ulcers on her left and right buttocks and on her right foot. In many instances the nursing records for Mrs. Tuthill were not adequate because they did not fully and in every instance reflect the treatment and nursing care given the patient. These deficiencies included failure to chart the size, condition, etc., and treatment given Mrs. Tuthill's decubitus ulcers. However, it is specifically found that Mrs. Tuthill received the ordered treatment and preventive measures regularly taken to prevent the formation of decubitus ulcers. The development of decubitus ulcers on opposite sides of Mrs. Tuthill's body and buttocks while she was at PNH supports the testimony of the nursing staff treating her that she was turned properly as ordered, although said care was not always recorded in the nursing records. The records of treatments rendered also support the staff's testimony. A physical therapy assessment was performed and an appropriate entry charted in the nursing notes. The report of the therapist was not found in Mrs. Tuthill's file when it was reviewed by inspectors from the Department of Health and Rehabilitative Services (HRS). When this was reported to the director of nurses, she requested and received a copy of the report from the physical therapist which was placed in Mrs. Tuthill's file. This report reflects that Mrs. Tuthill was assessed for physical therapy and was determined not to be capable of receiving any benefit from physical therapy. Moreover, at the time of her assessment the results were reported to Mrs. Tuthill's physician, who discontinued his orders for physical therapy. This was annotated in the nursing notes at the time. Mrs. Tuthill was transferred from PNH to Bay to Bay Nursing Home on February 25, 1980. The transfer form on Mrs. Tuthill was not properly completed by the nursing staff at PNH at the time she was transferred to Bay to Bay Nursing Home. On March 5, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery on her decubitus ulcers. She was discharged on March 19, 1980, after the ulcers were debrided. On March 24, 1980, Mrs. Tuthill was again admitted for surgical closure of the ulcers as had originally been planned. She was discharged on April 7, 1980, with all her ulcers closed and healed. On August 10, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery to close two decubitus ulcers which had developed during her stay at Bay to Bay Nursing Home. During her hospitalizations, Mrs. Tuthill received blood transfusions to increase her hemoglobin in order that she could receive anesthesia. This also improved her overall health, positively affecting her anemia, nutrition, pulmonary disease and arteriosclerotic circulatory problems, thereby assisting in the treatment of her ulcers. Expert medical testimony was conflicting on whether proper nursing care can prevent the formation of decubitus ulcers. It is specifically found that bedridden patients can develop decubitus ulcers while receiving the best of nursing care and treatment. This finding is supported by the fact that Mrs. Tuthill developed ulcers in both nursing homes and under two different treatment regimes. Expert medical testimony was conflicting on the appropriate medical treatment for decubitus ulcers. Mrs. Tuthill's medical treatment at PNH was within the limits of the conservative approach to treatment of decubitus ulcers. Her treating physician altered his treatment, increasing the strength of the medications and efforts to reduce and heal the patient's ulcers. Surgery is also an acceptable treatment for moderate-to-severe ulcers; however, Mrs. Tuthill's ulcers at the time of her discharge from PNH were at the moderate stage of development. Respondent had appointed a qualified medical director and a qualified nursing director, and had developed written procedures as required prior to Mrs. Tuthill's admission. These directors were directly responsible for the supervision of their particular services. Respondent was responsible for the overall administration of the nursing home; however, he was dependent upon the specific professional judgment and knowledge of his subordinate staff directors. Although PNH was inspected annually, and some failings regarding charting of medications were discovered and reported, these failings were not sufficient for HRS to deny licensure. Respondent took remedial action to improve the performance of his staff after these inspections. No evidence was introduced that there were significant departures from the standards of care established by the applicable rules and regulations or prevailing professional standards in the care of other patients. At the time the HRS personnel investigated Mrs. Tuthill's case, they did not investigate other patient files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Rubin Padgett, is found not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes, it is recommended that the Administrative Complaint against him be dismissed. DONE and ORDERED this 13th day of July, 1982, 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 13th day of July, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Mildred Gardner, Executive Director Board of Nursing Home Administrators 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The primary issue for determination is whether Sea Breeze Health Care (Respondent) committed the deficiencies as alleged in the Amended Administrative Complaint dated April 2, 2004, which amended both complaints in the above-styled consolidated cases. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of August 28, 2003 until October 29, 2003; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 1937 Jenks Avenue, Panama City, Florida 32405 (the facility). By stipulation of the parties, the facts reveal that Respondent is a long term care facility that receives Medicare and Medicaid funds for compliance with Federal statutory and rule requirements. Petitioner is required to classify deficiencies according to the nature and scope of the deficiency. The classification of deficiencies is also determinative of whether the licensure status of a nursing home is "standard" or "conditional" and also governs the amount of administrative fine to be imposed. Petitioner conducted an annual survey of Respondent's facility from August 25th through August 28th, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, class II ratings to the four deficiencies or Tags ( F223, F241, F314, and F318) at issue in this proceeding. Resident 6 is a 56 year old, cognitively alert male who was admitted to Respondent's facility on May 21, 2003. He had a history of diabetes. When admitted to the facility, he had pressure ulcers on his coccyx and right heel, and his left leg had been amputated above the knee. He was referred to physical therapy to improve his functional mobility. On July 25, 2004, a doctor ordered that Resident 6 was to receive a sliding board to assist staff in transferring the Resident from his bed to his wheelchair, based upon a recommendation for the board made by the facility’s physical therapist. The sliding board was never ordered. Additionally, the doctor ordered a knee brace for Resident 6's right knee that had been recommended by the therapist for the purpose of increasing the Resident's range of motion and decreasing muscle spasms to his right hamstring. Respondent provided Resident 6 with a knee brace from July 25th until August 4th; however, the Resident complained of pain that it was causing him. The nursing staff then asked the physical therapist to re-evaluate the brace. A new brace, to have been ordered for the Resident, was processed incorrectly by the supply manager at the facility. The brace request was then rejected by Respondent's corporate office. While awaiting the receipt of the new brace, the physical therapist directed the restorative nursing staff to use a temporary brace and pillows as wedges around the Resident’s leg in lieu of the permanent brace, which they did. Additionally, the Resident's pain medication was increased until the new brace could be obtained. During the course of Petitioner's survey, the surveyor observed that the Resident complained on six separate occasions of pain and muscle spasms. The knee brace did not arrive until September 3, 2003. The failure of the facility's supply manager to order the devices on the correct form deprived Resident 6 of devices needed to improve his range of motion. As noted above, Resident 6 was admitted to the facility with pressure sores on his coccyx and right heel, classified as stage IV wounds. Respondent's facility’s treatments of the Resident's coccyx wound was inadequate because Resident 6 had a physician’s order to treat his coccyx wound daily with calcium alginate. However, the wound care nurses did not follow that order and instead followed the facility’s wound protocols that directed staff to treat the wound every three to four days and as necessary, such as when the wound became contaminated with feces. After the completion of Petitioner's survey, Respondent personnel contacted Resident 6's physician about the discrepancy between the order and the protocols. The physician directed that the order be changed to comport with the facility’s protocol. During the survey, Petitioner's surveyor observed the wound care nurse using unclean techniques when she changed the Resident’s coccyx wound care dressing. The wound care nurse’s testimony denying this observation is not credible. The surveyor observed the wound care nurse, during the course of changing the Resident's wound dressings, retrieve calcium alginate from a previously opened sterile package with her bare hands, then cut a length for use with scissors retrieved from her pocket, all before washing her hands and without gloves. After cutting the calcium alginate for use, the wound care nurse laid this piece of medication on the dressing area, then put other supplies and gloves on top of it. When packing this medication into a wound, the medication should be kept as clean as possible and the dressing supplies should be kept on a clean dressing field. The unclean manner of dressing Resident 6's wounds, coupled with the directive from personnel that he defecate in his diaper, exposed his coccyx wound to contamination from feces. In the course of Petitioner's survey of Respondent's facility during the period of August 25-28, 2003, Petitioner's surveyor overheard Resident 6 tell the facility wound care nurse that he needed to go to the bathroom. The wound care nurse offered the Resident no assistance and told him to defecate in his diaper. Later in the course of further questioning of the patient, Petitioner's surveyor learned that Respondent's staff frequently acted in the fashion observed by the surveyor, forcing the Resident to defecate in his diaper and sit in his feces. The facility wound care nurse disputed the surveyor’s account of her conversation with Resident 6, and denied that she told Resident 6 to defecate in his diaper. Her testimony is not credited. Resident 6 was toileted in a manner that violated his dignity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order upholding the assignment of the Conditional licensure status for the period August 28 through October 29, 2003, and imposing an administrative fine of $2,500 for each of the violations proven in Count I, Count II, and Count IV of the Amended Administrative Complaint, for a total of $7,500. DONE AND ENTERED this 21st day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 21st day of July, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact Wright is a licensed practical nurse in Florida, holding license number PN 185281. In accordance with her licensure, Wright worked as a practical nurse at Manor Care Nursing Center in Jacksonville, Florida. On January 15, 1991, patient R.B. was admitted to Manor Care for recovery from multiple factures and organic brain damage. R.B. was receiving nourishment, Jevity, through a nasogastric tube (NGT). On January 18, 1991, at approximately 5:00 p.m., R.B. removed the NGT. R.B.'s mental confusion was such that she would attempt to remove the NGT regularly and mittens were used to prevent this behavior. Wright was the nurse responsible for R.B.'s care from approximately 4:00 p.m. to midnight on January 18, 1991. She recorded R.B.'s removal of the NGT. At some point thereafter, registered nurse Rosalina Harrell came and reinserted the NGT. At 9:30 p.m., Wright's notes indicate that R.B. was coughing and that she checked the placement of the NGT. Placement is checked to insure that the tube is inserted into the stomach and not into the trachea and lungs. According to Wright's notes and testimony, she discontinued feeding to give R.B. a rest, even though the placement checks were negative, meaning that the checks did not show that the tube was in the trachea or lungs. Wright restarted the feeding of Jevity (a white liquid food supplement). At 10:30 p.m., Wright's notes showed that R.B. was coughing up "large" amounts of white frothy phlegm. Wright again held the tube feeding for a short time. Another practical nurse, Margaret Patti, came on duty to replace Wright as the nurse in charge of R.B.'s care. In discussing R.B.'s condition with Wright, Wright informed Patti that R.B. had been coughing since the tube was inserted by Harrell. Wright said she did not remove the tube because she was not sure it was indeed in the wrong place. Wright and Patti then both did one test for placement and it was negative to show that the tube was incorrectly placed . Wright then did two other tests while Patti was out of the room, but she reported to Patti that those tests were also negative. Because of the concerns expressed by Wright, Patti monitored R.B. closely after Wright left around midnight. Patti observed some coughing and white sputum between 11:30 p.m. and 2:00 a.m., January 19, 1991. Again at 2:00 a.m. Patti recorded the R.B. was coughing and there was a moderate amount of white sputum present. Then the coughing became continuous and Patti removed the NGT. At 4:00 a.m., Patti recorded that R.B.'s respirations were even and unlabored and that tube feeding remained discontinued. At 5:00 a.m., Patti was advised by the nursing assistant that R.B. had no respiration or heartbeat. Patti called the doctor at 5:40 and R.B. was dead. An autopsy revealed that R.B. had died from asphyxia due to aspiration of Jevity. The lungs were full of Jevity and the bronchioles were plugged by the soft white material. There was nothing in R.B.'s stomach. As it relates to Wright's actions that night, at no time did Wright call a supervisor, registered nurse or doctor to express concern about the placement of the NGT or to indicate the presence of coughing or a white frothy substance around R.B.'s mouth. The presence of coughing and white frothy sputum or phlegm around the mouth is a danger sign that the NGT is in the trachea instead of the stomach. The minimum standard of acceptable and prevailing nursing practice requires that a licensed practical nurse report coughing or frothiness to her supervisor or to an R.N. If the practical nurse did not place the tube, she should contact the person who did insert the tube. If no one is available, then the practical nurse should remove the tube and contact the supervisor, an R.N., or the doctor, by telephone. There is no other acceptable level of care except to stop the food immediately and then report the coughing and presence of white frothy sputum to the appropriate person. At Manor Care that night, no supervisor or R.N. was on the premises, but Wright made no attempt to reach anyone by telephone regarding the situation. Wright's failure to meet these minimum standards of care constitutes unprofessional conduct as that term is defined in Section 464.018(1)(h), Florida Statutes (1991).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final Order and therein: Issue a reprimand to Geraldine McNeal Wright. Place Wright on probation for six months subject to attendance at continuing education courses relative to the omissions in this case, to include a review of danger signs and appropriate responses in patients with nasogastric tubes and a refresher on the appropriate administration of procedures for checking the placement of such a tube. Impose a fine of $100. DONE and ENTERED this 11th day of February, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of February, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4573 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Nursing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-5); 7(7); 9(12); 10(10); 11(11); 12(11); and 15(12 & 16). [Note--There are two different sets of paragraphs numbered 7, 8, and 9. A review of the actual Finding of Fact will clarify to which paragraph these specific rulings apply.] Proposed findings of fact 8, 9, 8, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13 and 16 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Geraldine McNeal Wright As indicated above, Wright's proposed findings of fact are in a form which does not permit clear specific rulings. Those proposed findings of fact which are based on the documents attached to the proposed order, which were not part of the evidentiary record, are rejected. Additionally, those proposals which constitute argument are rejected. The proposed findings of fact which are consistent with the facts found herein are adopted. All other proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Charles Faircloth Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Geraldine McNeal Wright 7925 Merrill Road, Apt. 216 Jacksonville, FL 32211 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 E. Coastline Dr. Jacksonville, FL 32202
The Issue Whether SeaView was properly issued a conditional license and should pay an administrative fine for violation of regulations at the time of surveys conducted on February 8 and February 21, 2002.
Findings Of Fact AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7). SeaView is a licensed nursing home located in Pompano Beach, Florida. AHCA conducted a survey of SeaView on February 8, 2002, and alleged that SeaView violated the standards of Section 400.022(1)(l), and Rule 59A-4.109(1)(c)2, and 3, which relate to the obligations of a nursing home to supervise residents to assure their safety. It is undisputed that during the survey period, two residents were outside the facility, out of the company of staff, for brief periods of time. AHCA contends that these incidents demonstrate that SeaView failed to adequately supervise these residents, thereby placing them, and one other resident, “at risk of serious injury, harm, impairment or death.” AHCA also asserted that SeaView failed to adequately implement policies and procedures for investigating, reporting, and preventing allegations of possible neglect in violation of Section 400.022(1)(l) and Rule 59A-4.109(1)(c)2, by failing to report an incident to the abuse registry, failing to review a resident’s records as part of its investigation, failing to interview sufficient people as part of its investigation, and failing to take corrective action. AHCA is required to rate the severity of any deficiency identified in a survey. AHCA assigned both of the identified deficiencies a Class I rating. This means that the deficiency “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility.” Section 400.23(8)(a). On a follow-up visit on February 21, AHCA again cited the same violations as Class I deficiencies. The charges arising out of the February 8 survey revolve primarily around a resident referred to by the parties as G. D. At the time of his admission to SeaView in September 2001, G. D. suffered from Alzheimer’s disease and alcoholic dementia. It was SeaView's practice to place cognitively impaired residents such as G. D. on the second floor of the facility. SeaView's management felt that the second floor was a more secure location for individuals like G. D. who, on account of their impairments, were considered to be at risk for attempting to exit the facility without staff knowledge or supervision, also known as "elopement." Like many Alzheimer's patients, G. D. was confused, often agitated and combative, and prone to wander. His care plan therefore employed management practices typically recommended by medical professionals for the caregivers of Alzheimer's patients, i.e. checking on him every hour, encouraging his family to bring in personal possessions, and involving him in activities of his liking, etc. G. D., like many Alzheimer's patients, was unable to fully benefit from activities. He was inclined to wander in and out of activities and to verbally interrupt them. He was at times restless and resistant to care. He was on medications which produced side effects which may have negated their beneficial effects. He tended to walk around the hallways aimlessly and try to push the alarmed doors open. Staff at SeaView, aware of these behaviors, appropriately contacted G. D.’s physician in December 2001, to obtain an order for a new psychiatric consult. This resulted in the addition of a new medication. Thereafter, nursing notes on January 7, 2002, indicated that G. D. was less aggressive and less agitated. Shortly before 8:00 p.m., on January 9, 2002, G. D. was being attended to by a certified nursing assistant (CNA) who left him briefly to attend to another resident. G. D. went to the nurse’s station, interacted with the nurse there, and left in his wheelchair. Less than ten minutes later, the CNA tried unsuccessfully to locate him. The nurse and CNA looked throughout the second floor, and when they still did not find him, went downstairs where a visitor who was just leaving motioned through a window that he was outside. The staff went out and found him tipped over on his right side, in his wheelchair, about 6-8 steps from the front door and near the bottom of concrete steps leading to a second floor exit door. He was alert and spoke, and said he was fine and that he fell from “way up top.” Staff checked G. D. and called 911. G. D. was taken by ambulance to a hospital. The neurosurgeon who was consulted documented that there was no evidence of head trauma. A CT scan was performed which did show that G. D. had old, chronic subdural hematomas (internal bleeding) on both his right and left sides, with a recent bleed into the one on the left. There is no evidence regarding when or how G. D. suffered the hematoma. The evidence did establish that hematomas can occur in the absence of significant trauma, and can even result from a strong sneeze or cough. The CT scan revealed no evidence of significant head trauma, however, such as swelling, which would be expected to be present with a severe blow. G. D. died three days later of the hematoma. It is impossible to know how G. D. was able to exit the building. At first, SeaView concluded, largely on the basis of his statement, that G. D. had fallen down the outside stairs from the second floor. SeaView staff revised its opinion on further consideration, and concluded that G. D. was somehow able to make his way down the elevator to the first floor, and then exit the building unnoticed. In reaching this conclusion, SeaView noted that the upstairs door had a 15-second delay mechanism and alarm, which had to be manually turned off by staff once activated. No alarm was heard or deactivated, and a check revealed that the mechanism was working. Shortly after the incident, staff exited the upstairs door and the alarm sounded. AHCA’s investigation determined that all doors were in working order and in compliance with all life safety code requirements. Neither the stairway nor the wheelchair exhibited any damage as would be expected from a fall down the steep, concrete stairs, and G. D. himself showed no external signs of injury except a skin tear on his arm. The evidence established that the incident occurred just prior to 8:00 p.m.; a time when staff were no longer present in the common areas, as they were putting residents to bed, and just before the front door alarm was activated for the night. From those facts, SeaView reasons that "the most likely means of exit would have been for G. D. to negotiate the elevator and exit through the front door of the facility." However, as SeaView concedes, there was no evidence that G. D. had ever used the elevator before; the idea that he was able to do so on this occasion taxes credulity, and in any event is also not supported by evidence. In charging SeaView with failing to adequately supervise G. D., AHCA denies that it is advancing a strict liability standard in cases where a patient is successful in exiting a building. Rather, AHCA contends that SeaView's failure to sufficiently supervise G. D. is proven by the fact that he was outside the building long enough to allow a fall from his wheelchair. The dispute may be one of semantics. AHCA concedes that escape is a known and common risk with dementia patients in nursing homes; that the law prohibits physical or medical restraint of residents; and there is no combination of interventions which are effective in all circumstances to prevent escape; and, most significantly, that there is no standard of practice which requires one-on-one supervision. AHCA alleged that SeaView was on notice that G. D. had escaped the facility on two prior occasions. This allegation was not supported by evidence, nor was there any evidence of prior incidents of escapes by other residents at SeaView. AHCA additionally charged that SeaView violated a duty of reporting by not calling the state's elder abuse registry to report G. D.'s escape. However, the evidence established that SeaView did in fact notify AHCA and filed required reports with the agency. Sea View's administration concluded that neglect did not exist, and thus there was no need to make the additional report to the registry. The decision was based upon the short time during which G. D. was out of view of staff, and the immediate attention given to finding him. Reasonable nursing home administrators might have erred on the side of reporting, but there is no evidence to suggest that the course followed by SeaView was outside the bounds of legitimate professional judgment. Immediately following the incident involving G. D., when SeaView's administration was of the view that he might have exited from the second floor door, SeaView had an additional alarm installed to ensure audibility. AHCA cited concerns regarding two additional patients, referred to by the parties as Residents number 3 and number 4, in the February 8 survey. As to these patients, AHCA charged deficient practice in that portions of their care plans directed to the possibility of escape did not contain a time frame for monitoring their whereabouts, and the monitoring was not documented. With respect to Resident number 3, AHCA also asserted that the approach of trying to redirect the resident was faulty, as the records reflected that often he did not respond to redirection. A surveyor also testified that she noted two times when Resident number 3 was unobserved by staff, but this testimony was effectively discredited upon cross- examination. The evidence failed to establish either the insufficiency of the patient care plans or the failure by SeaView to implement appropriate care plans. The inclusion of a time frame for monitoring does not ensure that a resident will be unable to elude staff. G. D.'s care plan, for example, contained a requirement that he be checked hourly. In practice, he was in contact with staff far more often. AHCA alleged that the monitoring of residents was not adequately documented. However, the evidence failed to establish the existence of a legal or industry standard which suggests that routine observation, or monitoring, of a resident should be documented. As a result of the February 8 survey, AHCA required SeaView to move all residents who might have been at risk for elopement to the first floor. Additionally, AHCA required SeaView to place monitors at all exits to the facility, whose sole purpose was to monitor the exit doors, all of which, except the front door, were alarmed and on a delay mechanism. AHCA also required SeaView to increase the delay mechanism from 15 to 30 seconds. SeaView implemented all these measures. However, SeaView was opposed to moving dementia and wandering residents from the second floor, which was more secluded and secure than the first floor. SeaView complied against its better judgment, because AHCA threatened to take action against the administrator’s professional license if he did not comply. At the February 21 follow-up survey visit, the surveyors originally concluded that SeaView had corrected all deficiencies. However, after SeaView’s Director of Nursing informed them that a resident referred to by the parties as Resident number 7, or A. D., had been found outside a doorway the previous day. AHCA changed its conclusion and again asserted that both deficiencies remained at a level warranting conditional licensing. On February 20 A. D. was noted to be just outside the staff entry door near the laundry room. He was outside no longer than five minutes, and the evidence suggests that the housekeeping director escorted him outside. No evidence was presented to explain why the housekeeping director escorted the resident outside, or how the facility addressed this lapse. This gap in the evidence is troubling, but what is known about the incident does not support a finding of inadequate supervision inasmuch as the exit apparently took place with the assistance of staff, and was promptly remedied. The only direct evidence concerning what supervision A. D. received came from an AHCA surveyor, who testified that while she observed A. D., and he was up and about, staff would take his hand and redirect him when he approached doorways. AHCA asserted that the care plans for A. D. and a person referred to by the parties as Resident number 2 were deficient because, while there was a direction to monitor the residents, the care plans did not include the “type, frequency, and duration” of such monitoring. Again, the evidence established that monitoring involves visual or auditory contact by staff sufficient to assure that the patient's whereabouts are accounted for at reasonable intervals appropriate to the individual's circumstances. There is no regulation, and AHCA cited to no standard, which would require such information in a care plan. Significantly, similar care plans have been reviewed and approved by AHCA in subsequent surveys at SeaView.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the AHCA enter a final order dismissing the Amended Administrative Complaint with prejudice. DONE AND ENTERED this 23rd day of October, 2002, in Tallahassee, Leon County, Florida. ___ FLORENCE SNYDER RIVAS 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 23rd day of October, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Healthcare Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Catherine B. Parks, Esquire Quintairos, McCumber, Prieto & Wood, P.A. 9200 South Dadeland Boulevard Miami, Florida 33156 Alba Rodriguez, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
