The Issue In DOAH Case No. 02-1421, addressing a survey concluded on October 23, 2001, the issue is whether Respondent Delta Health Group, doing business as Rosewood Manor (Rosewood), violated Rule 59A-4.1288, Florida Administrative Code and should be assessed a civil penalty and costs. In DOAH Case Nos. 02-1905 and 02-4040, addressing the survey of January 22 through January 25, 2002, the issue is also whether Rosewood violated Rule 59A- 4.1288, Florida Administrative Code. In DOAH Case No. 02-1905, the issue is whether a conditional license should issue. In DOAH Case No. 02-4040, the issue is whether civil penalties and costs should be assessed.
Findings Of Fact AHCA is the state agency responsible for licensure and enforcement of all applicable statutes and rules governing nursing homes in Florida pursuant to Sections 400.021 and 400.23(7), Florida Statutes. Rosewood is a skilled nursing facility located at 3107 North H Street, Pensacola, Florida, holding license no. SNF1482096, which was issued by AHCA. Although not found in any rule, an unofficial standard in the industry requires that a resident be observed every two hours. This standard, when complied, is usually not documented. On September 11, 2001, AHCA conducted a survey of Rosewood's skilled nursing facility. During the survey AHCA concluded that the facility failed to ensure that a resident's environment remained as free as possible of accident hazards. Specifically, the AHCA surveyors determined that the door to a bio-hazardous storage area had been, either purposely or inadvertedly, propped open instead of being locked, and as a result, a resident entered the area, and injured himself with used hypodermic needles stored therein. Subsequently, on December 6, 2001, AHCA filed a Notice of Intent to Assign Conditional Licensure Status, based on the September 11, 2001, survey. The Notice was dated November 29, 2001. The Notice had attached to it an Election of Rights for Notice of Intent. Prior to December 10, 2001, the Election of Rights for Notice of Intent was returned to AHCA indicating that the factual allegations contained in the Notice of Intent to Assign Conditional Licensure Status were not disputed. On January 30, 2002, ACHA filed its Final Order. This Final Order incorporated the Notice of Intent dated November 29, 2001, and recited, that by not disputing the facts alleged, Rosewood admitted the allegations of fact. However, Rosewood did not admit the facts alleged. Rosewood merely stated that it would not contest the facts. The Survey of September 11, 2001. Resident 1 suffered from dementia, congestive heart failure, and epilepsy. He had a history of psychiatric problems. He was known by the staff to engage in aggressive behavior. Resident 1 was a "wanderer," which, in nursing home jargon, is a person who moves about randomly and who must constantly be watched. On May 24, 2002, Resident 1 attempted to get in another resident's bed and when a staff member attempted to prevent this, he swung at her but missed. On the morning of August 28, 2001, Resident 1 wandered in the biohazard storage room, which was unlocked and unguarded. Resident 1 succeeded in opening a Sharp's container which was used for the storage of used hypodermic needles. His handling of these needles resulted in numerous puncture wounds. These wounds could result in Resident 1 contracting a variety of undesirable diseases. Because he died soon after of other causes it was not determined if he contracted any diseases as a result of the needle sticks. This incident resulted from Rosewood's failure to prevent Resident 1 from wandering and from Rosewood's failure to ensure that harm did not befall their resident. The Survey of October 23, 2001. Resident 1A Resident 1A was admitted to Rosewood on May 31, 2001. At times pertinent he was 87 years of age. He suffered from a urinary tract infection, cardiomyopathy, congestive heart failure, hypertension, degenerative joint diseases, and a past history of alcoholism. On May 16, 2001, he struck a nursing assistant. He was diagnosed by a psychiatrist on October 31, 2001, as having dementia. He was also known by Rosewood staff to be a wanderer. On September 7, 2001, this resident engaged in combat with his roommate. Resident 1A was the loser in this contest. When found by staff, his fellow combatant had him in a headlock and was hitting him with a metal bar. The resident suffered facial lacerations as a result. The facility responded to this event by moving Resident 1A into another room. Resident 1A's care plan of September 10, 2001, had a goal which stated that, "Resident will have no further incident of physical abuse toward another resident by next care plan review." On October 4, 2001, the resident entered the room of a female resident and physically abused her. This resulted in this resident's being beaten by the resident with the help of another. Resident 1A suffered cuts and bruises from this encounter. As a result, Rosewood implemented a plan on October 4, 2001, which required that Resident 1A be observed every 15 minutes. Prior to that time he was observed at least every two hours, which is the standard to which Rosewood aspires. Subsequent to this altercation Resident 1A was evaluated by a psychiatrist. The psychiatrist did not recommend additional observation. On October 5, 2001, early in the morning, the resident was physically aggressive to staff and backed a wheelchair into another resident. The other resident struck Resident 1A twice in response. Later in the day, the resident also attempted to touch a female nurse's breasts and to touch the buttocks of a female nursing assistant. The evening of October 21, 2001, Resident 1A was found holding another resident by the collar while another was hitting the resident with his fist. Resident 1A suffered skin tears as a result. There was no documentation that Resident 1A was or was not observed every 15 minutes as required by the care plan of October 4, 2001. He was provided with drugs on October 5, 2001, and October 17, 2001, in an attempt to ameliorate his aggressive behavior; however, the pharmaceuticals provided were unlikely to modify his behavior until four to six weeks after ingestion. On October 31, 2001, Resident 1A was discharged because he was determined to be a danger to others. He died in November 2001. Resident 5 Resident 5 was admitted to Rosewood August 15, 1998. Resident 5 suffered from atrial fibrillation, cardiovascular accident, and pneumonia, among other maladies. Resident 5 was at high risk for accidents. Specifically, he was at risk from falling. In his admissions history dated August 15, 1998, it was noted by Dr. Michael Dupuis that, "If he attempts to stand, he falls." Indeed, the record reveals dozens of falls which occurred long before the survey of October 23, 2001. In response to Resident 5's propensity to fall, Rosewood tried self-opening seat belts while in his wheelchair, placement in a low bed, instituted a two-hour toileting schedule, and attempted to increase the resident's "safety awareness." Rosewood prepared a "Rehabilitation Department Screen" on June 8, 2001, to address the risk. This document indicated that the resident needed assistance with most activities. In the evening of July 28, 2001, Resident 5 was found on the floor of his room. It was believed that he fell when trying to self-transfer from his bed to his wheelchair. He suffered no apparent injury. On August 14, 2001, Resident 5 was found on the floor in the bathroom. He stated that he was trying to get into his wheelchair. He was not injured. On August 29, 2001, Resident 5 was found lying on his side on the floor in a bathroom because he had fallen. He received two small skin tears in the course of this event. On September 12, 2001, Resident 5 was found on the floor holding onto his bed rails. He was on the floor because he had fallen. He told the nurse that he fell while trying to get in bed. He did not suffer any injury during this event. On October 5, 2001, Resident 5 was found lying on the floor in a puddle of blood. He had fallen from his wheelchair. On October 7, 2001, Resident 5 fell in the bathroom while trying to get on the toilet. On October 8, 2001, Resident 5 fell out of his wheelchair and was found by nursing staff lying on the floor in a puddle of blood. This event required a trip to a hospital emergency room. He received three stitches on his forehead and suffered a skin tear on his lower left forearm. On October 14, 2001, Resident 5 was discovered by a nurse to be crawling on the floor. He denied falling and stated that he was just trying to get back in his wheelchair. On October 20, 2001, Resident 5 fell out of his wheelchair. Resident 5's care plan dated September 19, 2001, noted a history of falls and injury to himself and defined as a goal to prevent fall with no report of injury or incidents due to falling by the next review date. Methods to be used in preventing falls included assistance with all transfers, verbally cuing resident not to stand or transfer without assistance, ensurance that a call light and frequently used items were in reach, the provision of frequent reminders, and ensurance that his living areas were kept clean and free from clutter. Rosewood implemented a plan to encourage the resident to ask for assistance when transferring. Subsequent to the June 8, 2001, evaluation, and the September 19, 2001, care plan, which called for a number of interventions, as noted above, Resident 5 continued to experience falls. Resident 5's feisty personality and determination to transfer himself without assistance made it difficult for the facility to guarantee that he did not experience falls. It was noted by Nurse Steele that a care plan requiring one-on-one supervision is not required by AHCA. Nurse Steele, however, opined that perhaps one-on-one supervision would be the only practice which would guarantee that the resident would experience no falls. The Survey of January 22-25, 2002. Resident 12 Resident 12 suffered from osteoporosis, dementia, hyperthyroidism, transient ishemic attacks, urinary tract infection, urinary incontinence, anemia, and hypoglycemia, among other things. Resident 12 was receiving nutrition through a tube so it was necessary to elevate the head of her bed to prevent pneumonia or aspiration. Resident 12, at times pertinent, was immobile and was dependent on facility staff to accomplish all of her transfers and all activities of daily living including turning and repositioning. As evidenced by numerous observations recorded on the "Braden Scale for Predicting Pressure Sore Risk," Resident 12 was at risk for developing pressure sores. Resident 12 was observed by the facility with a pressure sore on the coccyx on December 21, 2001. A care plan had been created on October 12, 2002, providing that she was to be turned every two hours, and was to be provided with a pressure reduction mattress, and was to be kept clean and dry, among other actions. On December 24, 2001, it was noted in a "Data Collection Tool," that the resident's coccyx area was healed. On January 10, 2002, it was noted in Resident 12's care plan that the sore was fully healed. During the survey Nurse Brown on one occasion observed a member of the facility's staff change a dressing over the resident's coccyx, observed the area, and determined that the resident had a pressure sore. A pressure sore is a wound, usually over a bony area, such as the coccyx, which is caused by the weight of the body compressing flesh between the bony area and a bed or chair. Depending on the severity of the sore, pressure sores require a substantial period of time to heal. Pressure sores are graded as Stages I, II, III, or IV, with Stage IV being the most severe. Nurse Brown evaluated Resident 12 as having a Stage II pressure sore during the survey. Nurse Brown observed Resident 12 on two occasions on January 22, 2002; on four occasions on January 23, 2002; on two occasions on January 24, 2002; and on four occasions on January 25, 2002. On each of these occasions Resident 12 was lying on her back with her head elevated. She also observed the resident on several occasions sitting in a wheelchair. A wheelchair does not cause pressure on the coccyx. A "Data Collection Tool" with an assessment date of January 18, 2002, indicated that on January 20, 2002, that there was present on Resident 12, a "coccyx split .25 cm superficial open area, left buttocks 2 cm dark gray rough area." On January 21, 2002, the "tool" noted, "left buttocks 2 cm open area darkened, coccyx split .25 cm remains." A "tool" dated January 25, 2002, noted, "open area on coccyx 2 cm." A "tool" dated February 1, 2002, noted "red area on buttocks" as did a "tool" dated February 8, 2002. A "tool" dated February 15, 2002, noted, "excoriation on buttocks" and on February 22, 2002, the notation was "red area on buttocks." A "Data Collection Tool" dated March 1, 2002, noted, "No open areas." There is nothing in the records maintained by the facility which indicate that subsequent to the healing of the pressure sore on January 10, 2002, another pressure sore developed on Resident 12's coccyx. Nurse Brown was an expert on pressure sores and she saw the area on the coccyx and determined it was a Stage II pressure sore. Thomas Hulsey, also a nurse and also an expert in nursing, observed the wound and concluded that it was merely a skin split or excoriation likely caused by the resident's urinary incontinence. He also observed that after a short passage of time the wound disappeared, which is inconsistent with a pressure sore. Considering the evidence as a whole, it is determined that the redness described subsequent to January 20, 2002, was something other than a pressure sore. The absence of a pressure sore tends, moreover, to indicate that what Nurse Brown observed was not indicative of the general care Resident 12 was typically receiving. Resident 10 Resident 10, a woman 64 years of age, suffered from cardiovascular accident, dysphasia, decubitus ulcers, urinary tract infections, sclera derma, and seizures. She was unable to move any part of her body except for her left arm. Two to three caregivers were required to accomplish transfers. On December 16, 2001, at about 9:45 in the morning, Lula Andrews, a certified nursing assistant, reported finding Resident 10 lying on her side or back on the floor of her room. At 9:10 a.m. Resident 10 had been seen in her bed so she could have been residing on the floor for as long as 35 minutes. Ms. Andrews and two other certified nursing assistants put her back in her bed. Resident 10 weighed about 150 pounds. Ms. Andrews inquired of Resident 10 as to how she came to be resting on the floor and she replied she had, "blackened out." Resident 10 did not receive injuries in connection with this event. The bed was three to four feet above the floor. Ms. Andrews was suspended during an investigation of this incident. Based on the evidence of record it could be deduced that Resident 10 fell from her bed or it could be deduced that Ms. Andrews attempted to transfer Resident 10 without assistance with the result that Resident 10 was dropped or deposited on the floor due to Ms. Andrews' inability to cope with Resident 10's bulk. The evidence of record fails to provide a basis for resolving this question. Neither scenario demands a finding that there was a failure to provide adequate supervision. Resident 16 Resident 16 had a diagnosis of schizophrenia. She also had a seizure disorder, osteoarthritis, and hypothyroidism. She had a care plan addressing her potential to suffer falls. On May 4, 2001, Resident 16 had a grand mal seizure while sitting on a piano stool. The 72-hour report generated by this event noted that she was not injured and refused all medications. On September 29, 2001, Resident 16 had a seizure while sitting on a piano bench. She was playing the piano prior to suffering the seizure. As a result of the seizure she fell backward and bumped her head. She denied experiencing pain from this event. On October 3, 2001, Resident 16 was in the visitor's bathroom, alone, washing her hands. She was upright before the lavatory and when she attempted to sit down in her wheelchair she did not notice that it was not directly behind her. Therefore she missed the seat of the wheelchair and landed on the floor. She sustained no injuries. Nurse Brown opined that had Resident 16 been supervised properly this fall would not have occurred. On December 17, 2001, Resident 16 was sitting on a piano bench when it appeared that she was fainting. One of the staff prevented her from actually falling over. The resident insisted that she was fine. On January 18, 2002, a facility staff person saw Resident 16 about to fall forward from her wheelchair and attempted to catch her before she reached the floor. The staff member was unsuccessful and the resident struck her head on the floor, which resulted in a four-centimeter by four-centimeter bump on her head. Resident 16's care plan required that facility staff closely supervise the resident. The facility also failed to ensure that she received adequate doses, and properly prepared doses of her anti-seizure medicine. Resident 20 Resident 20, during times pertinent, was a man of 96 years of age. He had a history of seizure disorder, depression, vascular dementia, gastro esophageal reflux disease, peptic ulcer disease, chronic obstructive pulmonary disease, coronary artery disease, and osteoporosis. He entered the facility on January 22, 1995. On September 7, 2001, Resident 20 had a physical encounter with Resident 1A, who was his roommate. Resident 20 was found holding Resident 1A in a headlock and was pounding Resident 1A with a metal seat spine. As a result, Resident 1A received cuts and bruises. The facility was negligent in permitting Resident 20 access to the metal seat spine which could be used as a weapon. The facility staff determined that Resident 20 was very territorial and that the appropriate solution would be to assign him a room so that he could be alone. Nevertheless, on November 10, 2001, a roommate was assigned to Resident 20. The resident complained and the new roommate was moved to another room. Resident 20's care plan was not revised to reflect his territorial nature. On December 28, 2001, another resident was moved into Resident 20's room. On January 2, 2002, Resident 20 told a nursing assistant that the new roommate was wearing his, Resident 20's, clothes. The nursing assistant pacified Resident 20 and left the room. Shortly thereafter Resident 20 attacked his new roommate with a reach/grab device causing the new roommate to receive a cut. One of the surveyors, Nurse Salpetr opined that the nursing assistant was derelict in leaving Resident 20 alone with his new roommate. As a result of this incident Resident 20, pursuant to the Baker Act, was sent to a psychiatric hospital for evaluation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing, DOAH Case Nos. 02-1421, 02-1905, and 02-4040. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2003. COPIES FURNISHED: Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building, III Tallahassee, Florida 32308 R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue 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 At all times pertinent to the issues contained herein, Respondent. ROYCE S. McCALL, was licensed by the State of Florida as a licensed practical nurse, the license initially issued on December 4, 1978 and renewed thereafter until the present. His license number is 0500981. On July 11, 1984, Respondent was employed as a licensed practical nurse with the Walton County Convalescent Center (WCCC) in DeFuniak Springs, Florida. Late that evening, at approximately 4 or 5 a.m., Respondent, as charge nurse on one of the Center's units, along with Rachiel Infinger and Corene Fondren, was about to change a bladder catheter on one of the Center's residents, a Mrs. Rourke. Before doing so, however, he discovered that Mrs. Rourke had fouled herself and he refused to do the procedure then instructing Mrs. Rourke's aides to clean her up. He then went to the room occupied by Mrs. Harper, an elderly, completely bedridden patient between 80 and 90 years old, who rarely talks and can hardly move her arms and legs. Mrs. Harper also required a bladder catheter change and Respondent, along with another nurse, was attempting to do it. Since apparently Mrs. Harper was resisting somewhat, Respondent asked Ms. Infinger to help. During the course of the procedure, Mrs. Harper brought her hand down into the area where Respondent was working in an attempt to stop him. It was obvious that the procedure was somewhat painful to her and in the opinion of Ms. Infinger, Respondent was being less than gentle. When Mrs. Harper brought her hand down, Respondent grabbed it and moved it out of the way telling her at the time to, "Move your damned hand." This comment was heard by both Ms. Infinger and Ms. Fondren. When Respondent moved Mrs. Harper's hand, it collided with the bed rail which broke the skin causing it to bleed. Ms. Infinger noticed this and mentioned it to Respondent. He said he would take care of it and Ms. Infinger went some place else to do something. When she came back some 30 to 45 minutes later, she found that Respondent had still not dressed the skin break on Mrs. Harper's hand. Ms. Infinger thinks Respondent was too rough with Mrs. Harper. She believes it was not necessary for him to throw the elderly woman's hand off as he did. There were two aides present who could have, had they been asked, moved the hand and held it out of the way. There is some divergence in the testimony of Ms. Infinger and Ms. Fondren as to whether Respondent threw Mrs. Harper's hand or pushed it with the former contending it was a throw and the latter contending it was merely a push. Even Ms. Fondren, however, who believes this rough action was a reflex action by Respondent who had been in a bad mood all evening, agrees that since someone was there to help him, he should have asked for help rather than reacting on his own. If either witness is to be believed, however, Respondent acted unprofessionally. On the other hand, however, Ms. Stubbs, Ms. Blocker, and Ms. Fields, all of whom had worked with Respondent for several months, knew him from their repeated observations of him at work never to be abusive or rough with his patients. He is generally very kind to his patients, taking the time to explain what he is doing and exhibiting patience and understanding. His patience is somewhat less with the aides who in his opinion, do not do what they should on duty. Mrs. Harper has had several other skin tears both before and after the one in issue here. She is an old woman who bruises easily and whose skin can be broken easily. While not a difficult patient, she is somewhat confused and tends to try to interfere at times with the ministrations of those trying to help her and her hands often get in the way. Here, it is obvious that Respondent was in a bad mood late at night when he went to treat Mrs. Harper. He had just come from another patient who had not been properly cared for by the aides responsible for her and he was clearly annoyed. No doubt Mrs. Harper, not through spite or even consciously, attempted to stop him from doing what was no doubt a painful procedure and he reacted unprofessionally. This is not to say he consciously intended to harm her, but his reaction was less than it should have been in this situation. When Ms. Infinger came back and found that Respondent had not tended to Mrs. Harpers wound, she immediately reported this fact to Barbara Jean Miller, a licensed practical nurse working on another unit that evening who quickly treated and dressed the skin tear. When she left duty the next morning, she reported what she had seen and done and what Ms. Infinger had told her to the Assistant Director of Nursing who she saw outside in the parking lot. This lady reported it to the Director of Nursing, Mrs. Harwell, who conducted her own investigation. Mrs. Harwell interviewed Respondent who after first denying that the incident had taken place, admitted that he did yank Mrs. Harper's arm but stated he did not know it had hit the bed rail. He also initially denied knowing there was an injury but then admitted he had been told there was and that he had said he would fix it. He admitted that he was upset that evening. In the catheter procedure that Respondent was accomplishing, it is never appropriate to handle a patient so forcefully that it results in an injury even though it may be necessary to restrain or move the patient in some fashion. In Mrs. Harwell's opinion, Respondent's handling of Mrs. Harper in this instance was below minimum standards for the nursing profession. After talking with all the witnesses and securing pictures of the injury, based on her investigation and her discussions with Respondent, she terminated his employment with WCCC that day not only because in this instance his performance was below standards and unprofessional but also because this was the second incident of substandard performance on his record. She had previously chastised him for speaking improperly to or about another patient several weeks previously. Consequently, it is clear that Respondent moved Mrs. Harper's hand in such a manner that resulted in injury to her which is unprofessional conduct on his part compounded by his failure to return to treat the wound once he was made aware of it.
The Issue The issues in this case are as established through an administrative complaint alleging misconduct by the Respondent when he was employed in his capacity as a licensed practical nurse at the Arlington Manor Care Center, Jacksonville, Florida. The charges are brought under the authority of Chapters 20, 455, and 464, Florida statutes. The details of the administrative complaint are more completely described in the conclusions of law.
Findings Of Fact Petitioner, State of Florida, Department of Professional Regulation, is charged with the regulation of the practice of nursing in Florida. This is in keeping with the authority expressed in Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 464, Florida Statutes. At all times relevant to the inquiry, Respondent, Christopher Allen Fitchett, has been a licensed practical nurse in the state of Florida, having been issued license number 0608751. At times relevant to the underlying administrative complaint, Respondent was employed at Arlington Manor Care Center, Jacksonville, Florida. On the night of March 21, 1984, commencing at 11:00 p.m. and continuing through 7:00 a.m., March 22, 1984, Respondent was acting as a charge nurse in the Arlington Manor Care Center. In this capacity, it was his responsibility to see that the residents of the facility were well cared for; that nursing practices were maintained; that the patients in the facility got their medicines and treatments; that doctors' orders were carried out; and that these duties were performed on time. Around 5:30 on the morning of March 22, 1984, Marilyn R. Funk, registered nurse, who was the director of nursing at Arlington Manor Care Center, arrived at the facility. She came in the back door and approached the left-hand side of the nursing station. Respondent was sitting in a chair with his head resting on the desk in the nursing station area. When the door which she had entered through closed, Mr. Fitchett did not respond. Funk stood by Fitchett for a period of two or three minutes, and Fitchett did not respond. At that time, Della, one of the residents of the facility, started to leave the facility and a nursing assistant, seeing the resident exiting the facility, called out to the resident to not go out. Respondent did not react to the circumstance of the patient's leaving and the nursing assistant's calling the resident back. During this time frame, one of the employees at the nursing home who worked in the kitchen dropped a Vaseline jar with a metal lid onto the floor in the nursing station area, making a loud noise. Fitchett did not react to that activity. All told, Ms. Funk observed the Respondent with his head down on the desk for a period of approximately fifteen minutes, during which time Respondent did not stir and his eyes were closed. A fair inference can be drawn that Fitchett was asleep during this time. As described by Nurse Funk and another licensed Florida registered nurse, Carolyn Hoffman, both of whom were accepted as experts in the nursing field, Respondent, by being asleep on duty and failing to be alert to the needs of the residents and his surroundings, was involved in unprofessional conduct which departs from the minimum standards of acceptable and prevailing nursing practice. Ms. Funk identifies the fact that Respondent should have told the other charge nurse who was in the building at the time that he was tired and wished to be relieved from his duties for a period. He could then have gone into the lounge area to rest for a short while. Problems that can occur when the Respondent is not alert would include a circumstance as seen with the resident Della who was about to leave the facility and be without supervision. In addition, Respondent's inattentiveness placed all the residents within the nursing home at general risk related to their health care. In this connection, on the date of the incident Respondent had not signed in or out for narcotics located in the nursing home. Moreover, when the director of nurses took the keys from the Respondent that morning, she discovered that the medicine room was open and the medicine cart was unlocked.
The Issue Respondent is charged under Section 464.018(1)(c), Florida Statutes, of being convicted, regardless of adjudication, of a crime which directly relates to the practice of nursing or the ability to practice nursing, and under Section 464.018(1)(d) 5, of being found guilty, regardless of adjudication, of a violation of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence.
Findings Of Fact The Respondent is, and at all times material hereto has been, a licensed registered nurse in the state of Florida, having been issued license number RN 1931082. She has been licensed in one or more states as a nurse for 25 years. She has been a critical care nurse and worked emergency rooms and ambulances. She has never before been the subject of Florida license discipline. On March 15, 1995, Respondent was charged with the crime of vehicular homicide, a second degree felony, pursuant to Section 782.071, Florida Statutes (1993). (See Exhibit R-5 showing the statutory year.) That statute provided in pertinent part, 782.071 Vehicular homicide. -- "Vehicular homicide" is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree, punishable as provided in s. 774.082, s. 775.083, or s. 775.084 Respondent pled "not guilty" to the charge of vehicular homicide. On May 30, 1996, Respondent was tried and found guilty by a jury of vehicular homicide, in the Circuit Court in and for Manatee County, Florida under Case No. 94-3739F. A charge against Respondent of leaving the scene of the accident was dropped at trial. On June 27, 1996, Respondent was sentenced to six-and- one-half years of imprisonment followed by eight years of probation. The Second District Court of Appeal affirmed the Respondent's conviction, but her sentence was recalculated in connection with the applicable sentencing guidelines. There have been no other appellate decisions regarding Respondent's conviction. Respondent was due for work release shortly after formal hearing. The Respondent testified that she considered it her obligation as a nurse to stop and render assistance if she knew she hit someone with a motor vehicle; however, Respondent maintained that she did not know that she had hit anyone. The Agency presented no testimony, expert or otherwise, to relate Respondent's second degree felony conviction of vehicular homicide to the practice of nursing or the ability to practice nursing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a Final Order finding Respondent not guilty of both counts of the Administrative Complaint and dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998.
The Issue The matters presented for consideration in this instance concern an Administrative Complaint brought by the Petitioner against the Respondent seeking to suspend, revoke or take other disciplinary action against the Respondent's license, in particular, against her license as a Registered Nurse. The substance of the Administrative Complaint is contained in five (5) counts. Count I to the Administrative Complaint alleges that on or about March 10, 1981, Respondent signed out a controlled substance, to wit: two (2) ampules of Demerol, between the approximate hours of 7:00 P.M. to 7:15 P.M. for a patient, DeFrisco [sic]. DeFrisco [sic], reputedly states that she did not receive the Demerol. Based upon the foregoing alleged facts, Respondent has purportedly violated Subsection 464.018 (1)(d), Florida Statutes (1979), by making a false report of record which she knew was false and in addition has violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with the minimal standards of acceptable and prevailing nursing practice. 1/ Count II to the Administrative Complaint alleges that on or about March 5, 1981, the Respondent administered a controlled substance, to wit: Demerol, in excess of that ordered by the attending physician and for that reason violated Subsection 464.018(1)(f), Florida Statutes (1979), in that she failed to conform with the minimal standards of acceptable and prevailing nursing practice. 2/ Count III alleges that the Respondent wasted, without a witness, certain controlled substances, in violation of hospital policy, as follows: On 2/28/81 Dilaudid, 1 mg On 2/23/81 Demerol, 100 mg. On 2/22/81 Demerol, 50 mg. On 2/16/81 Demerol, 100 mg. On 2/22/81 Morphene Sulphate 3 mg. On 1/28/81 Demerol, 25 mg. On 1/22/81 Demerol, 100 mg. Based upon these alleged facts, the Respondent purportedly violated Subsection 464.018(1)(f), Florida Statutes (1979), by failing to conform with minimal standards of acceptable and prevailing nursing practice. Count IV to the Administrative Complaint alleges that on or about March 5, 1981, Respondent signed out a controlled substance, to wit: Demerol, at approximately 9: 02 A.M., and at 12:15 P.M., for the use of patient Theodora Durham. It is further alleged that patient Durham states that she did not receive the above mentioned Demerol. Based upon those alleged facts Respondent purportedly violated Subsection 464.018(1)(d), Florida Statutes (1979), in that she made a false report of record which she knew was false. Further, Respondent, based upon those facts, has allegedly violated Subsection 464018(1)(f), Florida Statutes (1919), by failing to conform with minimal standards of acceptable and prevailing nursing practice Count V alleges that on or about April 12, 1981, the Respondent reported to her place of employment, Beaches Hospital, under the influence of alcohol to the extent that it affected her body coordination Further, it is contended that Respondent's supervisor; Joyce Strarnes, did not allow her to complete her work shift because she, Respondent was unable to function safely and to conform with minimal standards of acceptable nursing practice Based upon these allegations, the Respondent has purportedly violated Subsection 464018(1)(f), Florida Statutes (1979), for failure to conform to the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established. 3/
Findings Of Fact This case is presented for consideration based upon the aforementioned Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Nursing, against the Respondent, Rebecca Lael Calhoun. The Petitioner, agency, is a regulatory body which has been granted the authority by the State of Florida to license, regulate and discipline those persons who practice nursing in the State of Florida. The Respondent Rebecca Lael Calhoun has been issued a license to practice as a Registered Nurse in the State of' Florida and at all times pertinent to this Administrative Complaint, has held that license issued by the Petitioner. Calhoun was employed at St. Luke's Hospital, in Jacksonville, Florida, between the months of December, 1980, and March 10, 1981. Her position with that institution was that of Registered Nurse. On March 10, 1981, the Respondent worked at the St. Luke's Hospital on Ward 1-C. In that capacity, she had responsibility for the medication cart where controlled substances and other medications were kept for patient use. One of the patients who was on Ward 1-C on March 10,1981, and for whom controlled substances and other medications were made available by physician's orders was one Barbara L. DiFrancesco. On that date, DiFrancesco had an operative procedure known as dilatation and curettage performed and after the procedure, was brought to room 161, which was a room on the ward where the Respondent was on duty. It was 4:30 P.M. when the patient was placed in that room. After DiFrancesco returned to her room, between the hours of 4:30 P.M. and 8:00 P.M. on March 10, 1981, she did not receive any form of controlled substance, in particular, Demerol. The Demerol was in fact removed from the hospital inventory in DiFrancesco's name and Respondent knew that the patient did not receive the Demerol. Nonetheless, the Respondent documented that the patient DiFrancesco had the substance withdrawn for the patient's benefit and had received such a controlled substance. The false documentation was discovered by Kathleen Lawson, Assistant Director of Nursing at St. Luke's Hospital who was investigating possible "discrepancies" on the part of the Respondent in the recordation of entries on the controlled substance forms kept by the hospital. On the evening of March 10, 1981, Lawson checked the controlled substance form at approximately 7:00 P.M., which pertained to Ward 1-C where the Respondent was working. This controlled substance form may be found as a part of the Petitioner's Composite Exhibit No. 1, admitted into evidence. (The entries on that form pertain to the time of the sign-out, name of patient, room number, nurse's signature, dosage amount, amount of wastage, if any, and signature of a witness to wastage, and the description of the medication or controlled substance signed out by the practitioner) Lawson's review of the controlled substance form on March 10, 1981, at around `1:00 P.M. did not indicate that Demerol had been signed out for the benefit of DiFrancesco; however, when Lawson returned to Ward 1-C at approximately 7:15 P.M. on that same evening, she observed an entry on the controlled substance form which had been made by the Respondent. This entry indicated that Demerol in the amount of 50 mg. had been signed out for the benefit of DiFrancesco at approximately 5:30 P.M. When confronted with the discrepancy of having failed to make a timely entry of the sign-out of the controlled substance, Demerol, for the benefit of the patient DiFrancesco, that is to say the fact that the 7:00 P.M. check revealed no sign-out and a 7:15 P.M. check revealed a sign-out post-timed to 5:30 P.M.; the Respondent was than asked to perfect all necessary documentation to conform all records on the question of the administration of a controlled substance for the benefit of the patient DiFrancesco. In response to this request, the Respondent made an entry on the nurse's notes portion of the patient DiFrancesco's medical chart, to the effect that at 5:00 P.M. Demerol in the amount of 50 mg., IM, intramuscular, was administered to the patient DiFrancesco for "cramping." A copy of those nurse's notes may be found in Petitioner's Composite Exhibit No. 3, admitted into evidence. Some of the aforementioned "discrepancies' that officials at St. Luke's Hospital had been concerned about in terms of the Respondent's reporting procedures pertained to the controlled substance form, related to wastage of Schedule II controlled substances. St. Luke's Hospital had a written policy dealing with this subject as may be found in Petitioner's Exhibit No. 6, which is a copy of that policy related to unit doe drug distribution. That written policy was to the effect that when Schedule II controlled substances are wasted, or partially administered to the patient, the wastage or partial administration is recorded on the controlled substance form through the name of the patient; room number; the nurse who wasted material; the material; the amount injected and/or the amount wasted. The substance is shown to a witness in the process of recording the incident description as set forth herein. Pursuant to the written policy, there is also a line on the controlled substance form for the placement of . Off initials of that person who witnessed the accountability of the wasted Schedule II controlled substance, when the substance is only partially administered. In addition, the Respondent and other nurse practitioners in the hospital underwent an orientation which apprised the Respondent and others of the matters pertaining to wastage of Schedule II controlled substances as set forth in the written procedures and the utilization of the controlled substance form. Also, a customary practice within the hospital was established in which totally wasted narcotics were witnessed by initials placed by the witness on the controlled substance form, in the same fashion as partially wasted substances. Having been made aware of the requirements of that drug distribution handout, the utilization of the controlled substance form and custom, the Respondent did, in fact, on occasion have wastage which was recorded on the controlled substance form and initialed by another nurse practitioner as may be seen in a review of Petitioner's Composite Exhibit No. 1, which is a series of controlled substance forms for various dates. Notwithstanding her knowledge of procedures and customs within the hospital, there were a number of dates in which the Respondent failed to have a witness initial the wastage of Schedule II controlled substances Those occasions were as follows: Date: January 28, 1981 Patient: Pinkney Dose: 50 mg. Demerol Waste: 25 mg. Demerol Witness: No entry Date: February 16, 1981 Patient: Gression Dose: 100 mg Demerol Waste: 100 mg. Demerol Witness: No entry Date: February 22, 1981 Patient: Perry Dose: 50 mg. Demerol Waste: 50 mg. Demerol Witness: No entry Date: February 23, 1981 Patient: Fraser Dose: 100 mg. Demerol Waste: 100 mg. Demerol Witness: An entry made to the effect that a witness was unavailable Date: February 28, 1981 Patient: Bergdorf Dose: 1 mg. Dilaudid Waste: 1 mg. Dilaudid Witness: No entry There were no facts presented other than those related to the patient Fraser on the presence of a witness to the events of wastage and destruction of the Schedule II controlled substances. In addition to the incident with DiFrancesco, there were two other occasions in which the Respondent had signed out a controlled substance and indicated giving that controlled substance to a patient, when in fact the patient did not receive the controlled substance. This pertained to incidents on March 5, 1981, involving a patient on Ward 1-C, where the Respondent was employed as a Registered Nurse at St. Luke's Hospital. On the aforementioned date, i.e., March 5, 1981, the patient Theodora Durham was in the hospital for procedures related to curettage and packing of the uterus. She was assigned to Room 158 on Ward 1-C as her patient's room. The controlled substance sign-out form for March 5, 1981, which is found as part of Petitioner's Composite Exhibit No. 1, indicates that at 9:02 A.M. and 12:15 P.M., Demerol in the amount of 50 mg. on each occasion was signed out for the benefit of the patient Durham. The sign-out and other entries were made by the Respondent. The Demerol was in fact removed from the hospital inventory. The patient's chart, a copy of which may be found as Petitioner's Composite Exhibit No. 2, admitted into evidence, also indicates nurses notes authored by the Respondent stating that the 50 mg. amounts of Demerol were administered intramuscular to the patient Durham at 9:00 A.M. and 12:00 Noon. In fact, the patient Durham never received the Demerol on either of the occasions referred to herein. The Respondent knew the patient had not received the Demerol. Following her employment at St. Luke's Hospital, the Respondent received employment at Beaches Hospital in Jacksonville Beach, Florida. On April 12, 1981, she reported work as a Registered Nurse at Beaches Hospital for the 11:00 P.M. to 7:00 A.M. shift. During the transition from the prior shift into the shift of the Respondent, two (2) fellow employees noticed the aroma of what they felt to be alcohol on the breath of the Respondent. The employees having reported their observation to the nurse supervisor, the Respondent was summoned into the office of the nurse supervisor and under questioning admitted that she had been "drinking." This response was related to the issue of whether the Respondent had been consuming an alcoholic beverage. The nurse supervisor detected an unkempt appearance about the person of the Respondent and the fact that the Respondent's eyes were bloodshot Following this discussion, the Respondent was asked to leave the hospital because she could not afford patient care to those patients on her ward, due to the fact that she had been consuming an alcoholic beverage before coming on duty which was contrary to the policy of the hospital.
Recommendation Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 218 East Forsyth Street Jacksonville, Florida 32202 Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922
