Findings Of Fact Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives." The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks." Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling. In fact, Ms. Fuller did not return within the six-week time period. Mr. Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms. Rosenberg and Ms. Jackson. Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave. Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return. In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment. Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petition of Debbie Fuller be dismissed. DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted, except for the last sentence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Respondent's Proposed Findings of Fact Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: John P. McAdams, Esq. CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. P.O. Box 3239 Tampa, FL 33601 Carla D. Franklin, Esq. P.O. Box 694 Gainesville, FL 32601 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Petitioner's termination from employment by Respondent on November 12, 2004, for Petitioner's refusal to take a DNA test to affirmatively establish the paternity of a child he wanted to add to his company-provided insurance coverage was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2004).
Findings Of Fact Petitioner was employed by Respondent from May 1998 until his termination on November 12, 2004. Petitioner had performed his duties adequately during his employment period and had no major disciplinary reports in his record. Petitioner was at the time of his termination from employment a single, divorced, white male, and he was living with his girlfriend, Shannon Mitchell. On September 28, 2004, Petitioner received a message while he was at work that his girlfriend had called and was in distress, purportedly suffering from back pains. Petitioner requested and was given permission to go home to attend to her. Upon arrival at home, Petitioner discovered that his girlfriend had in fact given birth to a child. Petitioner may or may not have known about the birth before he left work; his testimony on that issue was contradictory. Petitioner had only learned of his girlfriend's pregnancy about one week before the birth despite the fact they had lived together for almost a year. Petitioner notified Respondent about the birth the next day (September 29) in accordance with company policies. He also requested and was granted leave from work. The child was immediately added to Petitioner's health insurance coverage in accordance with Respondent's normal practice. Even though Respondent added the child to Petitioner's family insurance coverage, there were several concerns about the unusual circumstances surrounding Petitioner's reporting of the birth, to wit: That he didn't tell his employer about the birth when he left to go home that day even though he likely knew it had occurred; that he represented a lack of knowledge about the pregnancy even though he was living with the child's mother; that the hospital records did not list Petitioner as the father. Respondent's insurance plan is self-funded and is administered directly by management of the company. Each employee's cost of insurance is determined by the prior year's costs and expenses. The company pays about 99.5 percent of the employee's cost; the employee pays the remainder plus the cost of coverage for family members. Proper administration of the health plan is therefore important to both management and employees alike. Respondent employs over 250 people. The employee handbook is silent on the degree or kind of proof necessary to establish paternity of a child for insurance purposes. Neither Respondent nor its insurance program has an established policy requiring employees to obtain a paternity test in order to prove relationship to their child. There is no prohibition against an unmarried person adding his or her child and, in fact, the company has provided benefits for such children. It is not common for Respondent to ask an employee to submit to a DNA examination in order to establish paternity for insurance coverage purposes. The only other time such a test had been required was for an unmarried male employee who was not able to provide a birth certificate for his child showing he was the father. That situation, like the present matter, had certain unusual facts associated with it. While working for the company during the years of 1998 to 2003, Petitioner was married. During that time he and his wife had two children, both of whom were added to his family insurance coverage. He was not required to provide proof of paternity for those children other than a birth certificate. Based upon the unusual circumstances regarding Petitioner's reporting of his most recent child's birth, Respondent demanded further proof of paternity. On October 12, 2004, Respondent's human resources director, Sandra Ho, asked Petitioner to have a DNA test performed and to provide Respondent with the results on or before November 12, 2004. Respondent did not offer to pay for the required test. Petitioner acknowledged receipt of this demand from his employer which included an ultimatum regarding his continued employment should he fail to comply. In response to the request for proof of paternity, Petitioner provided Respondent a Social Security document for the child and a hospital discharge notice for Shannon Mitchell. Neither of these documents listed Petitioner as the child's father. On or about November 10, 2004 (two days prior to the DNA test deadline), Petitioner provided Respondent with a copy of the child's birth certificate listing him as the father. He had filled out "paperwork" at the hospital to obtain the birth certificate. There was no evidence in the record as to what the paperwork entailed. Respondent had accepted birth certificates as proof of paternity for other employees. Petitioner did not obtain or provide to Respondent a DNA test result. In fact, he did not make any effort to obtain such a test. He did discuss with Respondent his concerns about the costs of such a test. Based upon Petitioner's refusal to comply with his employer's directives, he was terminated from employment on November 15, 2004, effective November 12, 2004. The basis for termination was Petitioner's insubordination and refusal to follow the orders of his employer. Petitioner supervised approximately six people on a regular basis. Respondent was concerned about Petitioner's continued ability to properly supervise others while he was refusing to cooperate with management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of July, 2006.
The Issue The issue in this proceeding is whether Petitioner's request for an exemption from disqualification from employment in a position of trust or responsibility should be granted.
Findings Of Fact Petitioner has been employed in a position of trust and seeks an exemption from disqualification. On February 19, 1985, Petitioner entered a plea of guilty to the offense of battery, Case No. 85-MM-137-A, in the County Court of Gadsden County, Florida. Adjudication was withheld and the court placed Petitioner on probation and ordered Petitioner to make restitution for hospital bills and pay court costs. This offense involved Petitioner and Jenean Stewart, with whom Petitioner had lived and with whom Petitioner had resided together in the past as if a family. There was no evidence presented or assertion made that Petitioner and Ms. Stewart were married at the time of the offense or at any other time. The parties stipulated to the admission of the court documents which describe the incident. The Complaint charged Petitioner with a violation of Section 784.03, Florida Statutes, which is described in both the 1983 and 1985 Florida Statutes as battery, a misdemeanor of the first degree. The Summary of Offense and Probable Cause Affidavit reveals that Petitioner and Ms. Stewart got into a fight and that Petitioner kicked, hit, and choked her and made several threats to do bodily harm to her with a shotgun. It additionally reveals that Ms. Stewart advised the arresting officer that she was pregnant and that Petitioner had struck her in the stomach causing her pain. The Summary of Offense and Probable Cause Affidavit also reveals that no physical marks or injury was found on Ms. Stewart by the officer who signed the affidavit.1 No evidence was presented that Ms. Stewart was a minor at the time of the offense. Other than this incident, no evidence was presented to indicate that Petitioner has ever been charged with any other crime. No evidence was presented as to any rehabilitation of Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 18th day of July, 2002.
Findings Of Fact Ms. Lily M. Pennington Jones, the Respondent herein, is a registered nurse. She is licensed to practice in Florida under license number 60752 suffix 2 issued by the Petitioner, Board of Nursing. She has been a nurse since 1953. During April and May, 1979, Ms. Jones was employed as a registered nurse at the Marion Community Hospital in Ocala, Florida. Her position was RN Patient Care Coordinator. As such she was in charge of fourteen people including all the nurses in the hospital working on her shift. One of the hospital personnel under her supervision was a licensed practical nurse, Sandra Mowery (nee Long). On April 21, 22 end 23, 1979, Ms. Mowery was assigned to the Cardiac Care Unit at Marion Community Hospital. During that time, a patient named Jack Reynolds was being treated in her unit. His treating physician, Dr. Parrish, had prescribed for him 6,500 units of Heparin every four hours. His medical records indicate that he did receive the prescribed dosages at 2, 6, and 10 P.M., on April 21, 1979. They further indicate that he received the prescribed Heparin dosages at 2 A.M., 6 A.M., 10 A.M., 2 P.M., 6 P.M., and 10 P.M. on April 22, 1979. On April 23, 1979 Mr. Reynolds' medical records indicate that he received the requisite Heparin dosages at 2 A.M., 6 A.M., 10 A.M., 2 P.M., 6 P.M., and 10 P.M. In contradiction of his medical records Ms. Mowery testified at the final hearing that because of instructions from Ms. Jones, she did not give Mr. Reynolds his 10:00 P.M. Heparin dose, on April 21, 1979. She further testified that Ms. Jones told her to chart the medication as having been administered even though it was not. This testimony is not accepted as credible. For the subsequent Heparin administrations -- 2 A.M., 6 A.M., April 22, 1979, and 10 P.M., April 23, 1979 -- required to be made to Mr. Reynolds during Ms. Mowery's shifts, she testified that Ms. Jones told her not to give the medication, but to chart it as though it had been given. This testimony is not accepted as credible. According to Ms. Mowery she ignored Ms. Jones instructions and gave the medication. She did not tell Ms. Jones about this and the record does not reflect that she told anyone else, either Dr. Parrish, the patient's physician, or Ms. Jones' supervisor, about the alleged instructions of Ms. Jones which she disobeyed. 7, During the evening of May 19 and the morning of May 20, 1979, Mr. Arthur Taylor was a patient at Marion Community Hospital. According to the medical records of Mr. Taylor, vital signs (temperature, pulse, and respiration) were not recorded for the times of 8 P.M., and 12 midnight, May 19, 1979, and 4 A.M., May 20, 1979. At the final hearing Ms. Mowery testified that Ms. Jones instructed her to obtain Mr. Taylor's vital signs. When because of the patient's resistence she was unable to get the signs, she testified that Ms. Jones instructed her to record some anyway. This testimony is not accepted as credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be DISMISSED. DONE and ENTERED this 29th day of September, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1980.
The Issue Whether disciplinary action should be taken against the Respondent's license to practice nursing, based upon alleged violations of Sections 464.018(1)(h), 464.018(1)(I), 464.018(1)(j), and 455.227(1)(q), Florida Statutes, and if so, what discipline is proper.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.42, Florida Statutes; Chapters 455 and 465, Florida Statutes. The Respondent, Fred Leon London, III, a 48-year-old male, and at all times material to this matter, holds active nursing license numbers PN 1089021 and RN 2804642. Respondent has been a registered nurse for approximately five years. In October of 1995, Respondent was employed as a registered nurse at Columbia Park Medical Center in Orlando, Florida, working the 3:00 p.m. to 11:00 p.m. shift. On October 4, 1995, the hospital, at which Respondent worked, had a discrepancy with one of its narcotic systems called the Phyxis machine. The discrepancy was reported by Respondent. A search was conducted to locate the missing drugs and the narcotics could not be located at that time. It was determined that Respondent and one other nurse were the last two nurses who operated the machine. Pursuant to hospital policies, the Respondent and the other nurse were asked to submit to a urine screen for the purpose of determining if they had ingested any drugs. The Respondent submitted to a urine screen as requested by his employer on October 5, 1995. The urine screen was performed by Smith Kline Beecham Laboratories. The test results performed on behalf of the hospital and the subsequent voluntary test taken by Respondent on October 13, 1995, cannot support a finding of fact, since the reports are uncorroborated hearsay. Following the in-house investigation, the Respondent was terminated from his employment and a report was filed with the Board of Nursing. The missing narcotics were subsequently located the following day. They had been misplaced, but not tampered with. They were returned to inventory. Respondent was referred to the Intervention Project for Nurses (IPN). Respondent participated in a psychosocial assessment on October 12, 1995. Respondent has no prior criminal or disciplinary history and denies that he used marijuana or any other controlled substance on October 4 or 5, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty as to Counts I, II, III, and IV of the Administrative Complaint, dated August 4, 1997, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 8th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 April, 1998. COPIES FURNISHED: Craig A. McCarthy, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Dr. Xavier C. Pinellas Qualified Representative 211 Broadway, Suite 115 Kissimmee, Florida 34741 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
The Issue The issue in this case is whether Petitioner’s claim for medical treatment by Dr. Gutovitz should be paid under the terms of her state health insurance plan.
Findings Of Fact Petitioner was, at all times relevant hereto, an employee of the State of Florida, receiving medical benefits under the State Employees’ HMO Plan (the “Health Plan”). In January 2015, Petitioner contacted North Florida OBGYN Associates, P.A. (the “Doctor’s Office”), to schedule a doctor’s appointment. A computer screenshot provided by the Department indicates that the purpose of the appointment was to “discuss infertility/endometriosis.” An appointment was scheduled for March 22, 2015. Upon arrival at the Doctor’s Office, Petitioner filled out an intake sheet. She stated the purpose of her visit was for the problems of “endo & checkup.” She indicated that she was not currently using birth control. As part of her medical history, she indicated: migraine headaches, reflux/IBS/ulcer, endometriosis, and infertility. Upon completion of his examination and treatment of Petitioner, Dr. Gutovitz dictated his “History & Physical Report” notes on the visit. He stated as follows: The patient is a 29 year old female who presents for a preconceptual consultation. LMP date: (2/25/2015) The frequency of cycles is monthly. The duration of menses is less than 3 days. The menstrual flow is moderate. The patient has never been able to conceive. The patient has been unable to conceive after 2 years of unprotected intercourse. Intercourse has been occurring twice per week. There has been associated abdominal pain, pain on intercourse, breast tenderness (only when she is on her period) and cramping (only in the morning and then will go away). Vitamin and mineral intake: currently on prenatal vitamins (taking Women’s one a day, vitamin b-12, vitamin d, calcium). Nutrition: normal /adequate. Unknown. There is a medical history of endometriosis dx at the 20 by Dr. Samuel Christian). Pt. presents to discuss conception. She and her partner have been trying to [get] pregnant for 2 years. She reports at age 21 she had a laparascopy for pain and was diagnosed with severe endometriosis and advised to have a hysterectomy. She had no follow up treatment, was not put on OCP. She continue to pain with menses, with intercourse and sometimes throughout the cycle. She does have regular cycles about 28 days apart. The partner has never had any children. He did have an injury to his scrotum about 7 years ago (fell off a truck onto some sharp object that “ripped open my scrotum in an L shape”), had stitches, significant swelling. Discussed components of conception –- ovulation, pathway and semen. Referral to the FIRM [Florida Institute of Reproductive Management] for SA [sperm analysis], and recommended consultation with Dr. Freeman. Suggest laparascopy. CPT for the pelvic pain. If covered by insurance, encouraged patient to have surgery done with Dr. Freeman. However, if not covered (if considered fertility intervention), would be happy to perform this surgery. Discussed fertile time in cycle, timing and frequency of intercourse. Brief review of fertility interventions. Pt happy with this information, will proceed to AS and schedule consultation with Dr. Freeman. Also discussed patient’s weight. Discussed healthy diet and exercise. Pt considering gastric sleeve procedure. Discussed some of the pros and cons of this being performed before or after fertility intervention. Pt likely to postpone surgery at this point. Dr. Gutovitz listed “Infertility, Female” as the diagnosis. The plan of treatment called for the patient to “Follow up with reproductive endocrinologist.” There is no mention of treatment for endometriosis. It is clear from Dr. Gutovitz’s notes that the purpose of the visit was to discuss infertility. Although endometriosis was mentioned, it was merely in a medical historical context. Following her visit to the Doctor’s Office, Petitioner made an appointment with Dr. Freeman (as advised by Dr. Gutovitz during the March 22 visit). She visited Dr. Freeman’s office on April 15, 2015. Dr. Freeman’s intake sheet on the patient indicates the chief complaint as “Primary infertility, endometriosis/pelvic pain.” Dr. Freeman discussed the infertility issue, but noted “[Petitioner] is interested in further evaluation and treatment but most interested in control of her pelvic pain.” Nonetheless, he noted that Petitioner’s husband would undergo a semen analysis to determine his fertility potential. About a week later, Petitioner presented again to Dr. Freeman for a follow-up visit. The doctor again addressed and discussed her pelvic pain and how it might be treated. He noted, “[Patient] is completely self-pay for fertility treatment and wishes to defer on HSG currently to see if tubal patency exists.” He concludes his notes on that visit with: At this point in time, [Petitioner] will forward results of her primary care physician’s lab work over to our office. Once this occurs, we will meet for reconsultation and likely undergo several cycles of empiric ovulation induction as a first step. If she does not become pregnant with that, then we will likely perform HSG to evaluate for tubal patency and consider the possibility of surgery. At the conclusion of the visit, they were understanding of the above, in agreement with the plan and rationale and had no additional questions or concerns. Empiric ovulation induction is a fertility treatment that induces ovulation. An HSG procedure uses dye to assess whether the fallopian tubes are blocked, i.e., whether there is tubal patency. Again, the doctor’s notes and comments address Petitioner’s endometriosis and pelvic pain, but his primary focus is on the infertility issue. Petitioner contends the two physicians simply misunderstood her needs or made a mistake when coding her office visits. The preponderance of evidence does not support her contention. Petitioner’s testimony concerning her claim was not persuasive. The Health Plan under which Petitioner was insured contains an exclusion of payment for infertility treatments. Section VI, Limitations and Exclusions, of the State Employees’ HMO Plan specifically excludes payment for “infertility treatment and supplies,” including testing, diagnostic procedures, and treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's claim for reimbursement of payments relating to her medical treatments by Dr. Gutovitz. DONE AND ENTERED this 7th day of March, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2016. COPIES FURNISHED: Nesha Butterfield 2545 Chesterbrook Court Jacksonville, Florida 32224 Gavin D. Burgess, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399-0950 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact 1 . On September 20, 1985, Respondent published notice of Emergency Rule 10CER85-9 in Florida Administrative Weekly (FAW) Volume 11, Number 38, at pages 3645 and 3646. This emergency rule took effect on September 5, 1985, and remained in effect for a period of ninety days. The underlying policy in this emergency rule was initially set forth in a series of policy clearances in 1979 and 1982. As stated in its FAW notice of this emergency rule, Respondent's specific reasons for finding an immediate danger to public health, safety or welfare were that: Under the Federal Law, the State of Florida, the Economic Services Program Office is required to impose sanctions where non- cooperation in the area of Child Support Enforcement has occurred. Recent appellate decisions, specifically Amos v. HRS and Williams v. HRS, prohibit the imposition of such sanctions unless and until rules defining non- cooperation and delineating due process procedures have been promulgated. Without this emergency rule which defines cooperation, non-cooperation and explains the due process procedures to be accorded clients, the State of Florida is out of compliance with the requirements of 45 CFR 302.21, 45 CFR 232.11 and 45 CFR 232.12. This situation of non- compliance ) jeopardizes the federal funding for the Public Assistance Program which could be reduced up to five (5 percent) percent and could totally deny federal financial participation for the IV-D Child Support Enforcement Program. The First District Court of Appeal invalidated the prior policy clearances since they had not been promulgated as "rules" under Chapter 120, Florida Statutes. Amos v. Department of Health and Rehabilitative Services, 440 So.2d 43 (Fla. 1st DCA 1983); Williams v. Department of Health and Rehabilitative Services, 461 So.2d 1004 (Fla. 1st DCA 1984). Due to the decisions of the First District Court of Appeal in Amos and Williams, supra . Respondent' general counsel was notified in March 1985 by the supervisor of Respondent's Public Assistance Appeal Hearings Office that all reports of non-cooperation based upon blood test results would be summarily reversed until Respondent's policy on non-cooperation was properly adopted as a rule. This meant there would be no more reports of non-cooperation until the rules here in question were adopted. In relevant part, Emergency Rule 10CER85-9 provides: 10CER85-9 Cooperation in Obtaining Child Support. Cooperation Required. As a condition of eligibility an applicant or recipient of public assistance must cooperate with the Child Support Enforcement Unit in its efforts to collect child support. The requirement to cooperate will be excused only when good cause for refusing to do so is determined to exist in accordance with 45 CFR Parts 232.40 through The applicant or recipient must cooperate by: Identifying and helping to locate the parent of a child for whom public assistance is claimed; . . . 5. Identifying the actual putative father when an earlier name putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific test. Cooperation includes but is not limited to the following actions that are relevant to, or necessary for, the achievement of the objectives of locating the absent parent, establishing paternity, establishing a support obligation, and collecting and enforcing a support obligation: Appearing at an office of the state or local agency or the child support agency as necessary to provide verbal or written information, or documentary or physical evidence, known to, possessed by, or reasonably obtainable by the applicant or recipient; Providing the name of a putative father who has not been excluded by blood or other scientific test results acceptable as competent evidence by Florida courts; Appearing as a witness at judicial or other hearings or proceedings; Providing information regarding the identity or location of the alleged father of the child or attesting to the lack of information, under penalty of perjury; and Identifying the actual putative father when an earlier named putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific test. . . . Non-cooperation or failure to cooperate shall be defined to include but not be limited to the following conduct: Failure or refusal to identify the father of the child, or, where more than one man could, to the best of her knowledge, be the father of the child, to identify all such persons. If the mother identifies one or more persons as possible fathers of the child and asserts that there are no others who could be the father of the child, but Human Leucocyte Antigen (HLA) blood testing shows that none of the persons identified could in fact have been the father of the child, then the mother shall be deemed non-cooperative. If she subsequently identifies another person as a possible father of the child, she shall still be deemed non-cooperative until such person has been given an HLA blood test and is shown by the results to be a possible father of the child. Failure to appear for two (2) appointments with the IV-D unit without reason or notice; Providing incorrect information under oath regarding the paternity of the child or the obligation of the responsible parent; . . . . . Reporting Non-cooperation. When an applicant or recipient fails to cooperate with the Child Support Enforcement Unit, the Child Support Enforcement Unit shall notify and provide the Public Assistance Unit with evidence of the act of non-cooperation. Using the evidence provided, the Public Assistance Unit will determine if non-cooperation exists and whether to enforce the Public Assistance eligibility requirements. If the Public Assistance Unit determines that the applicant or recipient has failed to cooperate, the Public Assistance Unit shall provide written notice to the applicant or recipient of the facts which constitute non-cooperation, the intended action and the time within which the applicant or recipient must request a fair hearing. . . . If the Public Assistance Unit determines that the applicant or recipient has not failed to cooperate, the Public Assistance Unit shall not take any action against the caretaker relative. The Child Support Enforcement Unit must dispose of the legal proceedings in the most appropriate and expeditious manner. On November 1, 1985, Respondent published notice of Proposed Rule 10C-25.06 in FAW Volume 11, Number 44, at pages 4184, 4187, 4188. As stated in the Summary of Proposed Rules, "New Section 10C-25.06 is added to clarify the statutory requirement that recipients of public assistance cooperate in obtaining child support payments from the responsible parents." In relevant part, Proposed Rule 10C-25.06 is identical to Emergency Rule 10CER85-9 shown above, except that it specifies that an HLA "or other Scientific test" shall be used in finding noncooperation, as defined in subsection 2 of the rule. The specific statutory authority cited by Respondent for the emergency rule was Section 409.026, Florida Statutes, and the law implemented was Section 409.2572, Florida Statutes. Respondent also cited these sections as statutory authority for the proposed rule, and in addition cited Section 409.2557, Florida Statutes, as the law implemen_ted by the Proposed rule. Petitioner and Intervenor have been deemed non- cooperative under Emergency Rule 10CER85-9 and have been denied benefits under the Aid to Families with Dependent Children (AFDC) program. Specifically, their own needs have been removed from their AFDC grants, and a protective payee has been appointed to receive the remainder of their AFDC grants. They continue to be denied benefits under this emergency rule. Respondent has stipulated to their standing in these cases. Respondent did not face any immediate threat of a loss of federal funds prior to the adoption of Emergency Rule 10CER85-9. There had been no critical audit or official warning of sanctions from federal officials due to Respondent's failure to formally adopt the policies embodied in these rules. Therefore, it has not been established that an immediate danger to the public health, safety or welfare existed prior to the adoption of the emergency rule. This finding is based on the testimony of Donald H. Hewett, Administrator in the Office of Child Support Enforcement, Robert A. Leeper and Chriss Walker, Attorneys, and Marlin Seay, Director of the Office of Child Support Enforcement, all of whom expressed concern about a "possible" loss of federal funds, but who confirmed that there had been no critical audits or actual warnings from federal officials. The danger of loss of federal funding was not immediate, but was purely speculative. The Human Leucocyte Antigen (HLA) blood test, referred to in both the emergency and proposed rules, is very definitive in excluding males falsely accused of paternity. Using the HLA test, if a child possesses an antigen which is mot found in the mother or putative father, it is established conclusively, and to a moral certainty, that the putative father has been falsely accused. HLA blood testing is used to exclude, not establish, paternity and is widely used and accepted in this manner within the medical community. This finding is based on the testimony of Dr. G. L. Ryals, Director of Paternity Testing at Roche Biomedical Labs, who was accepted as an expert in paternity testing and evaluation, and Dr. Gary Niblack who was also accepted as an expert in paternity testing. It is recognized that rare blood types, mutations, and genetic conditions could, in very rare situations, result in false exclusions using the HLA or other blood tests. In addition, human error in blood testing can occur and result in false exclusions. Nevertheless, after considering all of the testimony and particularly the amount of personal experience the expert witnesses have had in using the HLA blood test, it is found that the HLA blood test is reliable, and is also the most accurate test available when used to exclude paternity. It is a reasonable and rational method for excluding paternity. The rules in question specifically require the use of an HLA "or other scientific test," such as the six red blood cell tests known as ABO, Rh, MNS, Kell, Duffy and Kidd. If an exclusion is obtained by performing these red blood cell tests, some labs conducting the test for Respondent do not perform the HLA test, while others perform the HLA test in every case. The red blood cell tests, although not as accurate or reliable as the HLA test, are still a reasonable and widely accepted method of excluding paternity. Laboratories under contract with Respondent to perform these blood tests follow extensive quality controls, are accredited and licensed. They follow established protocols to minimize errors and issue correct results to the maximum extent possible, and within degrees accepted by the medical community. Respondent generally accepts the lab results and does not employ staff experts to review these test results. The rate of exclusion in Florida is 28 percent to 29 percent while the national exclusion rate is approximately 30 percent. Thus, Florida's rate of exclusion is virtually the same as the national average. Respondent's Child Support Enforcement Office administers the Title IV-D Program while the Public Assistance Office administers the Title IV-A Program of the Social Security Act. Under the applicable federal regulations, as well as the rules in question in this case, it is the Public Assistance Office (IV-A) which imposes sanctions on an AFDC recipient and which can remove those sanctions. The Child Support Enforcement Office (IV-D) can report its finding of non-cooperation, but the imposition of those sanctions rests with the Public Assistance Office. When sanctions are imposed by the Public Assistance Office they remain in effect indefinitely, or until the recipient becomes "cooperative" by identifying the putative father of her child. The recipient is entitled to a hearing when sanctions are imposed and the decision of the hearing officer assigned by Respondent's Public Assistance Appeal Hearings Office is binding on Respondent but not on the recipient, who may appeal to the District Court of Appeal. According to Chriss Walker, attorney for the Child Support Enforcement Office, there is a general policy which gives investigators discretion in administering the "good cause" exemption in Subsection (1)(a) and in reporting non-cooperation to the Public Assistance Office. Specifically, if the child support enforcement investigator determines that the mother has been raped or otherwise really does not know the name of the man who is the father of her child, she will not be reported as non-cooperative, even if she had previously identified a man who was excluded by the HLA or other scientific test, since this constitutes "good cause" under Subsection (1)(a). Paternity blood testing is based on the fact that children inherit genetic information from their biological parents. The child's genetic information is compared to the mother's and putative father's using an HLA or other scientific test. An exclusion occurs when testing shows that the child has a genetic marker which neither the mother or putative father possess. Respondent accepts an exclusion in one system as valid and once a red cell exclusion is obtained, Respondent's procedures do not require further FLA testing in all instances.
The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010.
