The Issue The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.
Findings Of Fact Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 1st day of October, 1990.
Findings Of Fact At the commencement of formal hearing, Respondent moved ore tenus to dismiss upon grounds that no disputed issues of material fact existed. Upon representations of Petitioner's counsel that there remained issues of whether or not there had been selective application of the rules to Petitioner (TR 6-7 and 19), of whether or not the license restrictions imposed upon Petitioner duplicated education already completed by the Petitioner at Jackson Memorial Hospital, and a representation that the evidence to be adduced at formal hearing would include educational events up to the date of the de novo formal proceeding sufficient to entitle Petitioner to certification without any probationary period or restrictions (TR 10-12, 16 and 18), ruling was reserved on the motion to dismiss until the completion of Petitioner's case-in-chief. At the conclusion of Petitioner's case-in-chief, Respondent again renewed its motion to dismiss. The motion was denied without prejudice, pending review of the full application file and other documentary evidence admitted in Petitioner's case-in-chief. Respondent has raised the motion yet again in its post-hearing proposals and it is ruled upon in the following conclusions of law. By its January 21, 1987 Order, the Board of Medicine, Advisory Council for Respiratory Care granted Petitioner a license as a respiratory care practitioner subject to the following restrictions: ...the license shall be issued subject to probation upon the conditions: Applicant is not to work in any critical care area, including the emergency room, and, Applicant will not do ventilator care in the home. This probation shall be in force until Applicant has successfully completed an advanced care registry eligibility program with adequate supervision. Said program may be approved by the Chair of the Council. It is stipulated that Petitioner meets standard requirements for licensure. It is disputed as to whether she is entitled to an unlimited/unrestricted license absent the probationary educational requirements. Petitioner received several written and oral warnings relating to incidents of improper patient care while employed at Mount Sinai Medical Center, Miami, Florida, from 1979 to 1982 and prior to making application for her license in 1986. One significant incident involved Petitioner's supervising a student using a sidearm nebulizer and treatment in the Mount Sinai surgical intensive care unit. Petitioner failed to verify information given to her by the student in that she did not personally view the patient and left the room while the treatment was still in the patient. Another significant incident involved Petitioner leaving another sidearm nebulizer in line with a ventilator circuit on a patient. Petitioner admitted her error with regard to these incidents and admitted their inherent danger to patients. The Petitioner was terminated from employment at the Mount Sinai Medical Center on July 21, 1982, for negligence in performance of her duties. Petitioner began work at Jackson Memorial Hospital, Miami, on August 9, 1982. She has maintained continuous employment with Jackson Memorial Hospital up to the date of formal hearing. Until the January 21, 1987 Council Order, Petitioner also worked critical care areas of Jackson Memorial Hospital and did home ventilator therapy for a private company called "Allied." Since January 21, 1987, she has limited her work as required by the licensing order, and since its entry she has performed only duties involving floor care and treatments in the units. Petitioner testified at formal hearing that she successfully completed Respiratory Therapy Theory I and II at Miami Dade Community College subsequent to leaving Mount Sinai, as well as numerous other introductory education courses (TR 35- 36). This testimony is in part contrary to her testimony before the Advisory Council on November 18, 1986. By that prior testimony, she admitted she had not received any clinical course experience of any kind and did not do any ventilating at Jackson Memorial Hospital subsequent to her dismissal from Mount Sinai Medical Center and prior to the Council hearing on November 18, 1986. (Jt. Ex. 2 pp. 59-62) With one exception, all of Petitioner's formal training and clinical training as a respiratory technician for which documentation exists, shows that her training occurred prior to her firing from Mount Sinai in 1982. The one exception is a certificate dated March 16, 1985, showing that Petitioner was found to have fulfilled the educational requirements of the National Board of Respiratory Care, but there is no showing in the record of what these requirements might be or of when they were fulfilled. (Jt. Ex. 1) Petitioner admitted at formal hearing that she has completed no specific course of study and has not completed any advanced care registry eligibility program. The individual subjects she has claimed to have completed since her Mount Sinai experience do not appear to be either clinical or to offer hands- on experience. On periodic Jackson Memorial Hospital Employee Evaluations, Petitioner has received "low" ratings in the categories of "work habits" for the period 8/14/83 to 8/12/84; for "quantity of work" and "personal relations" for the period 8/15/84 to 8/11/85; and again for "work habits" for the period 8/11/85 to 8/10/86. She has "Satisfactory" or "High" ratings in other categories during each of these periods. No proof of arbitrary, capricious, or selective imposition of educational or probationary requirements was demonstrated.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board of Medicine enter a Final Order affirming its January 21, 1987 Order. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1412 The Petitioner's proposals were struck. Rulings upon the Respondent's proposed findings of fact (PFOF) are hereafter ruled upon pursuant to section 120.59(2), Florida Statutes: Respondent's PFOF: 1. Rejected as subordinate and unnecessary and as covered in FOF 1 and 2 and the Conclusions of Law. 2-3. Covered in FOF 3. Covered in FOF 5. Covered in FOF 7. 6-7. Modified in FOF 9-10 to conform to the greater weight of the evidence as a whole and to exclude irrelevant material. 8. Covered in FOF 11. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Gregory F. Esposito, Esquire 5440 North State Road 7 Suite 23 Fort Lauderdale, Florida 33319 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case for determination are whether Respondent Jose Suarez-Diaz, M.D., violated Section 458.331(1)(m) and (t), Florida Statutes (2003), as alleged in an Amended Administrative Complaint filed by the Department of Health before the Board of Medicine on November 29, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (Admitted facts). Respondent, Jose Suarez-Diaz, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 14791. (Admitted facts). Dr. Suarez-Diaz is board-certified in Anesthesiology. (Admitted facts). Dr. Suarez-Diaz’s mailing address of record at all times relevant to this matter is 8340 S.W. 62nd Avenue, Miami, Florida 33143. (Admitted Facts). The Department conceded that Dr. Suarez-Diaz has not previously been the subject of a license disciplinary proceeding. Patient J.C. On October 28, 2003, J.C. was admitted to Mercy Hospital in Miami, Florida, with a diagnosis of possible appendicitis. J.C., a 49-year-old male, had a history of heart attack, which occurred in 1998, five years prior to his admission; pneumonia which occurred two months prior to his admission; and chronic obstructive pulmonary disease. After admission, J.C. underwent a chest x-ray, which showed moderate cardiomegaly, and an EKG, which showed left ventricular hypertrophy. J.C. was scheduled for an immediate laparoscopic appendectomy, with Dr. Suarez-Diaz in charge of anesthesiology. Prior to surgery Dr. Suarez-Diaz completed a pre- anesthesia evaluation, documenting J.C.’s history of a 1998 heart attack, pneumonia two months prior to admission, and chronic obstructive pulmonary disease. He did not, however, document the results of the chest x-ray. At approximately 2330 hours (11:30 p.m.), Dr. Suarez- Diaz began anesthesia. J.C. was, from the start of surgery, connected to the following monitors: pulse oximoetry (which measured the level of oxygen in J.C.’s blood); electrocardiogram (which measures heart activity); and NCO2 monitor (which measured the level of CO2 in J.C.’s blood); and a blood pressure monitor (hereinafter these monitors are collectively referred to as the “Monitors”). Dr. Suarez-Diaz documented the connection of all of the Monitors, except the NCO2 monitor, in J.C.’s medical records. The Monitors, consistent with insurance requirements, remained connected to J.C. throughout the surgery, and, based upon Dr. Suarez-Diaz’s uncontroverted and convincing testimony, were monitored throughout J.C.’s surgery. Surgery commenced at approximately 2345 hours (11:45 p.m.). Almost immediately after anesthesia was first administered, J.C. experienced bronchospasm (the constriction of his airway). In response, Dr. Suarez-Diaz appropriately increased the volume of gas into J.C.’s lungs. In addition to constriction of J.C.’s airways, the few oxygen level recordings made by Dr. Suarez-Diaz indicate that J.C.’s blood oxygen levels were below normal, especially considering the amount of oxygen J.C. was being provided. Due to the emergency nature of the surgery, surgery commenced after J.C.’s bronchospasm was controlled. What took place during surgery, from the standpoint of Dr. Suarez-Diaz’s responsibilities, cannot be determined from Dr. Suarez-Diaz’s medical record, which is essentially illegible and grossly incomplete: Systolic and diastolic blood pressure readings should have been recorded often, but were not. Of the 15 diastolic readings which should have been recorded, only five readings were; Vital signs were not recorded until after 0045 hours (12:25 a.m.); Pulse oximoetry readings ended at 0015 hours (12:15 a.m.); EKG readings were not recorded after 2400 hours (midnight); and End-tidal CO2 readings ended at 0015 hours (12:15 a.m.). Surgery ended on October 29, 2003, at between 0015 and 0030 hours (12:15 and 12:30 a.m.). Due to impacts on J.C.’s diaphragm during the surgery, ventilation became so difficult that it became necessary for Dr. Suarez-Diaz to “bag” J.C. in order to maintain better control over oxygen levels in J.C.’s blood. When a patient is “bagged” ventilated is provided manually with a gas bag. Bagging allows a physician to control the rate of ventilation in a way which a ventilator machine cannot. Because Dr. Suarez-Diaz was engaged in bagging J.C., and at the same time closely monitoring J.C.’s oxygen levels, Dr. Suarez-Diaz was unable to record his observations in J.C.’s medical records. According to Dr. Suarez-Diaz’s uncontroverted and persuasive testimony, J.C. was one of the three most difficult patients he had dealt with in his 50 years of experience. When surgery ended, J.C. was kept in the operating room with all monitors connected. Dr. Suarez-Diaz still failed to record vital signs and oxygen saturation levels. At some time between 0035 and 0045 hours (12:35 to 12:45 a.m.), J.C. was extubated (the removal of tubes used to breath for the patient) and was breathing on his own. While Dr. Suarez-Diaz noted in his records that J.C. had been extubated, he did not record whether the monitors remained connected between the time he was extubated and then moved to a stretcher. According to his own uncontroverted testimony, he did not maintain the monitors when J.C. was transferred to the stretcher because, in Dr. Suarez-Diaz’s opinion, J.C. was breathing on his own. Shortly after extubation, J.C. experienced respiratory difficulty and became dusky and pulseless. At approximately 0045 hours (12:45 a.m.), J.C. was reintubated and a code was called for cardiac arrest; CPR and defibrillation were performed. Dr. Suarez-Diaz remained until approximately 0100 hours (1:00 a.m.), when J.C.’s blood pressure was reestablished. Electoencephalograms were performed on J.C. on October 29 and 31, 2003. Both tests indicated reduced activity consistent with a lack of oxygen to the brain. On November 10, 2003, J.C. was extubated with “do-not- resuscitate” orders. J.C. died on November 18, 2003. E. The Standard of Care. The Department obtained opinions of two expert witnesses concerning Dr. Suarez-Diaz’s treatment of J.C.: Joan Christie, M.D., who testified by deposition (Petitioner’s Exhibit 1); and Les King, M.D., whose opinion letter to the Department was admitted without objection as Respondent, Dr. Suarez-Diaz’s Exhibit B. Dr. King’s opinion letter was not given as much weight as it may have if he had testified, but his opinions do raise significant questions about Dr. Christie’s opinions. Both of the Department’s experts relied upon essentially the same information to formulate their options. Both reached contrary opinions concerning whether Dr. Suarez- Diaz failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of J.C. Dr. King offered the following general, summary opinion: This patient had coronary artery disease of advanced stages HTW and COPD. This is not always information available prior to emergent surgery. Management of the anesthetic, ACLS and post code care are seemingly appropriate for the events. The subject met the standard of care. Dr. Christie, on the other hand, testified generally that Dr. Suarez-Diaz violated the Standard of Care by failing to adequately monitor J.C. “prior to” extubation. The difficulty with Dr. Christie’s testimony in this regard is that she relied completely on the medical records for J.C., without any consideration of Dr. Suarez-Diaz’s uncontroverted and convincing testimony that he indeed did monitor J.C. prior to extubation. Dr. Christie’s testimony does not, therefore, support a finding or conclusion that Dr. Suarez-Diaz violated the Standard of Care “[b]y failing to maintain adequate monitoring . . . after extubation despite intra-operative indications of oxygenation difficulty ” Dr. Christie also offered the following opinion, which apparently was intended to apply to the question of whether Dr. Suarez-Diaz violated the Standard of Care “after” extubation: I think that the lack of monitoring, particularly in the last – lack of monitoring of end-tidal CO2 and oxygenation in the last half an hour and at the time of extubation are not the standard of care. . . . Petitioner’s Exhibit 1, Page 33, Lines 21 through 25. There are several problems with Dr. Christie’s opinion. First, she again relied completely on the medical records, without any consideration of Dr. Suarez-Diaz’s uncontroverted and convincing testimony as to why he did disconnected the monitors prior to placing J.C. on the stretcher. Secondly, Dr. Christie’s opinion is not very precise as to what period of time she is talking about. She clearly rendered her opinion as to the care provided at the time of extubation, but the Amended Administrative Complaint charges a lack of monitoring “after extubation.” Thirdly, Dr. King reached contrary conclusions on this matter. Dr. King precisely addressed the question of whether J.C. should have been monitored upon transport to the stretcher: 3. It is difficult to determine exactly what transpired at the end of anesthesia and in the moving to the stretcher piror to transport to Recovery. Charting is exceptionally incomplete. As far as meeting the standard of care, it seems to have been appropriate patient management. Standard of care de facto is for patients to be transported from the operating room to recovery without monitoring. Appropriate care seems to have been rendered. . . . . 13. For stable patients following surgery and anesthetics, general transport to recovery is un-monitored other than direct observation. Generally, if the patient is stable, there is not an issue in moving the patient to the stretcher unmonitored. Respondent, Dr. Suarez-Diaz’s Exhibit B. While Dr. King’s opinions may not be adequate, given the manner in which they were entered into evidence, to find that Dr. Suarez-Diaz “met the Standard of Care,” his statements, coupled with the lack of precision in Dr. Christie’s opinion and Dr. Suarez-Diaz’s testimony, are adequate to find that Dr. Christie’s opinion does not support a finding or conclusion that Dr. Suarez-Diaz violated the Standard of Care “[b]y failing to maintain adequate monitoring prior to . . . extubation despite intra-operative indications of oxygenation difficulty ” Finally, Dr. Christie opined, in relevant part, as follows concerning the issue of whether Dr. Suarez-Diaz violated the Standard of Care by simply “failing to maintain adequate medical records”: In my view the practitioner did not meet the standards with respect to documentation and – in the medical records. . . . Petitioner’s Exhibit 1, Page 10, Lines 7 through 9. Dr. Christie goes on to describe in some detail the significant shortcomings in Dr. Suarez-Diaz’s medical records for J.C. Dr. Christie’s opinion as to whether inadequate medical records along constitutes a violation of the Standard of Care, again, is contrary to Dr. King’s opinion, and, more importantly, the definition of the Standard of Care. Clearly, Dr. Suarez-Diaz kept medical records which were inadequate as to whether he monitored J.C. The evidence, however, proved that, despite the inadequate records, he did monitor J.C. and provided the care he was required to provide. The Standard of Care requires a physician to use adequate “care, skill, and treatment” of in the physician’s care of a patient. As poor as Dr. Suarez-Diaz’s records for J.C. were, the mere inadequate records do not support a finding that he did not provide adequate “care, skill, and treatment” to J.C. The evidence failed to prove that Dr. Suarez-Diaz violated the Standard of Care as alleged in the Amended Administrative Complaint in his care of J.C.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine dismissing Count I of the Amended Administrative Complaint; finding that Jose Suarez-Diaz, M.D., has violated Section 458.331(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint; issuing a reprimand; requiring that he pay an administrative fine of $2,500; and requiring that he attend ten hours of continuing medical education related to appropriate record keeping. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 13th day of March, 2008. COPIES FURNISHED: Irving Levine Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner is entitled to a permit to operate a medical oxygen retail establishment.
Findings Of Fact Petitioner, All Florida Medical Supplies, Inc. located in Delray Beach, Florida, is the applicant for a permit to operate a medical oxygen retail establishment. The application was filed due to a change in the ownership of Petitioner. Respondent, Department of Health (DOH), is the agency authorized to regulate medical oxygen retail establishments, as provided in Chapter 499, Florida Statutes (2008). On November 14, 2007, DOH received Petitioner’s Application for a Permit under Chapter 499, Florida Statutes, to operate as a medical oxygen retailer. The applicant’s address was given as: “601 N. Congress Ave. Bldg. 6 Suite Number 606, Delray Beach, FL 33445.” The handwritten mailing address given appeared to be “128 Van Gown Way, Royal Palm Beach, FL 33411-1580.” The name given for the emergency contact at the mailing address was David L. Ford. On December 11, 2007, and on December 31, 2007, DOH sent letters to the 128 Van Gown address requesting additional information to complete the application. On January 8, 2007, one of the owners of Petitioner, Ellen Gust, sent an address correction to DOH by facsimile, along with a corrected application providing a new address. The corrected address was the 601 North Congress Avenue address. On January 11, 2008, another letter citing an application deficiency was sent to the original Van Gown mailing address not the corrected mailing address. In the meantime, the assigned DOH permitting staff person and Mrs. Gust, for Petitioner, had some telephone and email contacts that eliminated the remaining deficiency. On January 18, 2008, DOH notified Petitioners that is application was complete. A DOH inspector received the completed application from the permitting office and, on February 7, 2008, conducted an inspection of the business at its location at 601 North Congress Avenue in Delray Beach. The inspector saw approximately 60 cylinders of oxygen at the inspection site and determined that they were full, based on the color of the tape used to seal them. She testified that Mrs. Gust told her that the cylinders had been filled on site. The inspector found that the full oxygen cylinders were improperly labeled. That is, the labels on the cylinders lacked the name of the company and location where filled, as required by the Food and Drug Administration’s compressed medical gases guidelines. In addition, the expiration date on the cylinders was December 2007, and there was no way to determine the oxygen content because Petitioner failed to produce any stability testing records. Mrs. Gust told the investigator that the date on the cylinders was the date they were filled. The inspector observed cylinders inside a delivery van that also had an expiration date of December 2007. The lot numbers on the cylinders inside the business and in the van were the same, but the validity of the lot numbers could not be verified by reference to any corresponding business records or fill logs. Mrs. Gust’s husband told the inspector that the lot numbers were the numerical date of the year and month the tanks were filled, which is acceptable except that the methodology was not listed in any of Petitioner’s policies and procedures. Based on the inability to verify that the oxygen was safe and effective for use by patients, or to determine the useful life in the absence of stability test records or fill logs, the inspector ordered the removal of the seals on the cylinders and the release of the oxygen. The inspector also found unclear signage to designate a quarantine area in the warehouse. The inspector recommended, and DOH agreed that Petitioner failed the site inspection and that its permit application should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the Department of Health enter a final order denying the application of All Florida Medical Supplies, Inc., for a permit to operate a medical oxygen retail establishment. DONE AND ENTERED this 15th day of August, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of August, 2008. COPIES FURNISHED: Javier Talamo, Esquire Kravitz & Talamo, LLP 7600 West 20th Avenue, Suite 213 Hialeah, Florida 33016 Jennifer L. Condon, Esquire Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-2202 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether Angel Balbuena, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Antonio Balbuena is the natural father of Angel Balbuena (Angel), a minor, and Juan Carlos Donado and Antonio Balbuena are co-guardians of Rosa Donado, the natural mother of Angel. Angel was born a live infant on February 5, 2001, at Palmetto General Hospital, a hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Angel's birth were Richard Friefeld, M.D., and Jose Abreu, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Angel's birth At or about 3:30 p.m., February 4, 2001, Ms. Donado presented to Palmetto General Hospital, for induction of labor. Ms. Donado received cervidil overnight and IV hydration, and the baby's tracing was noted as reactive. At approximately 6:33 a.m., February 5, 2001, Ms. Donado's membranes spontaneously ruptured. Shortly thereafter, Ms. Donado "complained she couldn't breathe and proceeded to have seizure-like movements;" at approximately 6:40 a.m., full code was called for cardiopulmonary arrest; and at 6:59 a.m., Angel was delivered by stat cesarean section. At delivery, Angel was depressed (limp, with no tone, spontaneous movement, or respirations), and was immediately given oxygen by bag and mask, with improvement in color and heart rate over 100 beats per minute, and then intubated. Apgar scores were recorded as 4, 5, and 5, at one, five, and ten minutes, respectively,3 and cord pH was recorded at 6.66. Following resuscitation, Angel was transported to the neonatal intensive care unit (NICU), where he was admitted at approximately 7:30 a.m. The Neonatal Admission History and Physical provided, in part, as follows: Maternal History . . . . Mother is 43 y/o . . . who received pre- natal care by Dr. Freifeld. Pregnancy complicated by Gestational diabetes Diet controlled. Mother also had Amnio for AMA [Advanced Maternal Age] of 43 which showed 46XY. No other problems or complications. Delivery low trans. Cesarean section . . . . Resuscitation: mask vent, ET tube, med. volume Maria Oliver, M.D. [a neonatologist] was called to the delivery room because of Maternal cardio-respiratory arrest. Delivery analgesia used: general- intubation. Suctioning at delivery: bulb. The respiratory effort at birth was delayed. Delivery outcome: live birth admitted to ICN. Cord Venous Gases: VEN pH=6.66 pCO2=184 p02=5 BE=-16.5 Called stat to attend an emergent primary C/S due to maternal Cardio-Respiratory arrest, for a presumptive Dx. of Amniotic fluid embolism. Mother came to Palmetto on 02/04/01 for Cervidil induction for 40wk preg. Mother received Cervidil overnight and IV hydration, the baby's tracing was reactive, at approx. 6:33am mother had spontaneous ROM and by nursisng [sic] and father's account immediately complained that she couldn't breath [sic] and proceded [sic] to have seizure like movements at 6:40 am full code was initiated and baby was delivered at 6:59 am. Baby was born via stat c/s w/triple nuchal cord around neck, limp, no tone or spontaneous movements or respirations, immediate bag and mask initiated w/improvement in color HR>100, and chest movement, immediately intubated, w/excellent chest exclusion, NO spontaneous movements, NO spontaneous respirations, NO grimance [sic] or reflex. Baby received 20cc/KG of Lactated ringers as volume expander, followed by 2meq/kg of NaBicarb9 presumed weight of 3kg. Baby's color improved to pink from pale/ash, good pulses, HR>100, excellent chest mevements [sic] and breath sounds w/bagging, was transported to NICU in pre-heated isollete, for further stabilization and diagnostic w/u. The umbilical cord appeared mec. stained though no mec. was noted at time of rupture of membranes. ADMISSION HISTORY: Baby was briefly placed on high-frequency vent, but HR began to drop and responded to convetional [sic] vent well, no seizures noted . . . . At about 1 hr of life baby started to grimace w/light stimuli and prior to second hour of life opened eyes spontaneouly [sic] briefly, there is sucking movement, and upper extremety [sic] movement . . . . Examination . . . . GENERAL: hypotonic, distressed, pale pink SKIN: pale, pink HEAD: open, anterior fontanelle EYES: initially fixed and dilated, but at about 2 hrs became reactive to light . . . . LUNGS & CHEST: paradoxical respirations, on conv. ventilation CARDIAC: normal rate and rhythm, no murmur * * * LIMBS & HIPS: upper extrem showing some movement, lower still poor movement NEUROLOGIC: hypotonic, s/p severe perinatal stress, and metabolic acidosis low APGARS, starting to respond to light stimuli . . . . Assessments & Plans ASSESSMENT: Term male, severe perinatal stress, low APGAR's, severe metabolic acidosis, Nuchal cord X3, R/O sepsis, MaternalCardio-resp. arrest. Possible maternal amniotic fluid embolism. ADMIT DIAGNOSES: Perinatal depression (admit), maternal cardio-resp arrest. Respiratory distress (admit). Term infant (admit). Metabolic acidosis. Suspected sepsis (admit) . . . . ADMIT PLAN: . . . Neurology (Dr. Bustamante) consult, EEG Dopamine drip, Na.bicarb to correct MA. Following admission to NICU, Angel had an electroencephalogram (EEG) to evaluate for seizure activity. That study was read as abnormal, with the following impression: MARKEDLY ABNORMAL STUDY. DYSRRHYTHMIA GRADE 3, SUBCONTINOUS ELECTROGRAPHIC SEIZURES CORRELATING WITH SUBCONTINUOUS BIFRONTAL EPILEPTIFORM ACTIVITY (LEFT GREATER THAN RIGHT) SUPERIMPOSED ON A SUPPRESSION GRADE 2 PATTERN. CLINICAL CORRELATION IS ADVISED AND A FOLLOW UP STUDY IS SUGGESTED. Angel also had a head ultrasound to evaluate for intracranial abnormalities. That ultrasound was read as follows: The study shows normal visualization of the ventricular system and corpus callosum as well as of the germinal matrix without evidence of abnormality to suggest the presence of subependymal or intraventricular bleed. IMPRESSION: NORMAL ULTRASOUND OF THE INFANT HEAD. At 11:50 p.m., February 5, 2001, Martha Bustamante, M.D., a pediatric neurologist, examined Angel at the request of Dr. Oliver. Following evaluation, Dr. Bustamante recorded her assessment and plan (A/P) as follows: . . . s/p severe perinatal asphyxia, required prolonged & vigorous resuscitation, nuchal cord x 3 [with] meconium stained amniotic fluid. Severe metabolic acidosis . . . . Status Epilepticus - [continue] anticonvulsant med[ication] phenobarb . . . will get [followup] EEG in 48 [hours] . . . . Suspect multiorgan involvement. Already [decreased] urine output [with increased] Bun, Creat . . . . Continue hyperventilation/supportive care. guarded prognosis On February 6, 2001, Dr. Bustamante recorded the results of a 10:15 p.m., examination as follows: No further [seizures] since last night. No active bleeding. Neuro exam - no continuous obligate asymmetric tonic neck reflex but still [with] head/neck preferences to [left]. [Positive for] asymmetrical U[pper] E[xtremity]'s limb move[ment] noted at rest and [decreased] move's [with] R[ight] U[pper] E[xtremity]. [Positive for] cortical thumbs and diffuse hypertonia . . . Continue close observation over renal output/Bun, Creat. . . [Followup] EEG tomorrow. A/P - Showing improving neuro status following severe hypoxic-schemic insult. Continue aggressive supportive care. Get P[hysical] T[herapy]/O[ccupational] T[herapy] input . . . and S[peech] T[herapy] in future. On February 7, 2001, Angel extubated himself, was placed on an oxyhood for a brief period, and then transitioned to room air. Followup EEG on February 7, 2001, was read as abnormal, with the following impression: ABNORMAL STUDY DUE TO THE PRESENCE OF INTER- ICTAL MULTIFOCAL EPILEPTIFORM ACTIVITY. THIS STUDY IS CLASSIFIED AS A DYSRHYTHMIA GRADE II/MULTIFOCAL. THIS FOLLOW UP STUDY SHOWS MARKED IMPROVEMENT WHEN COMPARED TO THE PRIOR STUDY OF 2/5/01. CLINICAL CORRELATION IS ADVISED. Dr. Bustamante recorded the results of her neurologic examination of February 7, 2001, as follows: . . . No further [seizures] [Followup] EEG = multifocal spikes[,] phenobarb level 22[.] [Patient] extubated himself and breathing on his own. Neuro-Obtunded [with] intermittent hypervigilant state c[onsistent]/w[ith] H[ypoxic] I[schemic] E[ncephalopathy]. [Increased] tone in all limbs, profound head lag. [Positive for] diffuse hyper-reflexia. Facial dipligia [with] gaging [with] poor suck on own secretions suggestive of dysphagia. [Upgoing] plantars. Fisted hands. Over the next two days, Angel showed improved neurologic status, and on February 9, 2001, the following NICU Progress Note was entered: Interim events: Angel remains extubated, stable in room air, no A's and B's, responds w/eye movement, and upper extrem movement to voice, light and touch stimuli, lower extremities not hypertonic, NO gag, NO cry, No seizures on Phenobarb, all other organ systems stable, excellent urine output, will start minimal feeds today. Angel's neurologic progress continued to show improvement, and on February 12, 2001, the following entry appeared in the NICU Progress Note: EXAM: responsive to touch, and voice, attempting moving upper extremities, (+)eye opening, gag reflex present. GENERAL: quiet, hypotonic HEENT: open, anterior fontanelle normal shape and size, equal red reflexes, equally reactive pupils normally set, no anomalies patent nares, intact palate. RESPIRATORY: symmetric chest, no distress, clear and equal breath sounds supple neck, intact clavicles. CARDIAC: normal rate and rhythm, no murmur. ABDOMEN: 3 vessel cord. NEUROLOGIC: weak, discoordinated suck, hypotonic . . . . EXTREMITIES: 10 fingers and toes, stable hips, symmetric, moves all 4, straight spine . . . . Since Angel had been seizure-free since February 5, 2001, phenobarbitrol was discontinued pending the results of a "cat scan/mri." The brain CT was done February 12, 2001, and read as normal. Dr. Bustamante reported the results of her February 16, 2001, neurologic examination as follows: H[ead] C[ircumference] 34 cm [up] 1 cm from birth. Last [seizures] 2/5/01. Feeding better since 2/15/01. Plain brain CT 2/12/01 reported as (-). Receiving OT/ST/PT . . . . Neuro . . . . MS: lethargic [with decreased] alertness & responsiveness. [Positive for] weak cry. [Positive for] fairly good suck. CN: not visually fixating. [Positive for] roving-like move's, not tracking . . . [decreased] facial tone/expression [with] subtle [right] facial droop. Motor: [decreased] tone in axial & upper ext[remities] musculature. [Increased] tone in L[ower] E[xtremities]. [Positive for] intermittent asymmetrical posturing/moves [with] R[ight] U[pper] E[xtremity] in ext./ L[eft] U[pper] E[xtremity] in flexion, R[ight] L[ower] E[xtremity] in ext & LLE in flex suggestive of R>L weakness, hyper- reflexia diffusely but no clonus. Sensory: Withdrawals fairly symmetrically to painful/tactile stimuli. A/P Hypoxic Ischemic Encephalopathy. Off phenabarb since 2/12 and no [seizure] recurrence since last [seizure] on 2/5/01. While in house continue supportive care and current therapy . . . . [Patient] will need out pt. rehab. PT/OT + ST. Angel was discharged from Palmetto General Hospital on February 19, 2001, and his Neonatal Discharge Summary4 noted the following discharge exam and discharge plan: Discharge Exam . . . . GENERAL: alert and active, pink and well perfused * * * LUNGS & CHEST: no distress, clear and equal breath sounds CARDIAC: normal rate and rhythm, no murmurs, good femoral pulses * * * LIMBS & HIPS: moves all 4 limbs, stable hips NEUROLOGIC: normal suck, symmetric Moro, decreased strength and tone Discharge Plans The follow up provider at discharge was unknown. The parents were instructed to call for an appointment in 1 week. A home health referral was made. Additional appointments: Developmental clinic, neurology f/u opp[,] infant referred for developmental follow-up testing . . . . Angel's subsequent development Following discharge from Palmetto General Hospital, Angel was referred for follow-up to Celadie Fiallo, Jr., M.D., a pediatrician practicing as Pediatrics-R-Us, P.A., and the University of Miami School of Medicine Early Intervention Program. In so far as the record reveals, Angel was seen on two occasions at the Early Intervention Program: on March 27, 2001, and October 17, 2001. Angel's visit of March 27, 2001, was reported as follows: Medical Assessment: Angel was referred by Palmetto hospital because of perinatal asphyxia and neonatal seizures . . . . Angel has been doing well since discharge from the hospital . . . . Physical exam is remarkable for hypertonia of back muscles and lower extremities. He can lift his head in the prone position and visually track an object . . . . His vision appears normal. He passed hearing today. * * * Recommendations: Based on the above results and on observations of Angel's behavior during the evaluation today it is recommended that: Continue follow up with pediatrician. Refer for physical therapy 2 times per week for hypertonia . . . . Angel's visit of October 17, 2001, was reported as follows: Medical Assessment: Developmentally, he rolls over both ways and bubbles. Angel has good appetite, eats baby food and some solid foods and drinks milk from the bottle. Physical exam is remarkable for left esotropia. Neuromuscular exam shows increased muscle tone in all extremities. He tends to keep his hand[s] fisted but will open them to reach. Mild shoulder retractions. DTR's are brisk. Absent left lateral protective reflex. Right is present as well as parachute. Vision appears normal and he passed hearing test on 3/27/01. Developmental Assessment: Tests Administered: Bayley Scales of Infant Development/Developmental Profile (DPIYC) * * * Bayley: The Bayley Scale resulted in a Mental Development score within the average range, developmental equivalent of 7 months; and Motor Development score within the delayed range, developmental equivalent of 6 months. DPIYC Test Results: Cognitive (8 months): Angel can attain a completely hidden object. Communication: (7 months): Angel can localize sound source. Fine Motor (8 months): Angel can scoop a pellet. Gross Motor (6 months): Angel can roll from back to stomach. Social: (8 months): Angel can reach for image of self in mirror. Adaptive (7 months): Angel can drink from cup with help. * * * Recommendations/Referrals: Based on the above results and on observations of Angel's behavior during the evaluation today it is recommended that: Physical therapy to assist with his gross motor skills. Continue follow up with pediatrics . . . . Angel was initially seen by his pediatrician, Dr. Fiallo on March 12, 2001. By October 2001, Dr. Fiallo had referred Angel for a physical therapy evaluation to address a perceived delay in motor development. That evaluation concluded Angel evidenced mild generalized hypertonia, with a gross motor development level at 7 months, and recommended physical therapy twice a week. Dr. Fiallo concurred with this evaluation and certified the need for physical therapy (2 times a week for 6 months) to Medicaid, with a rehabilitation potential of "good," as opposed to "fair" or "poor." Subsequently, on November 5, 2001, Angel's guardian reported evidence of possible seizure activity, and Dr. Fiallo referred Angel for an EEG and an MRI of the brain. Angel's guardian did not keep the appointment for the EEG, but the MRI was done at Miami Children's Hospital on November 9, 2001, and reported as follows: HISTORY: Nine month old evaluated for seizures and developmental delay. * * * FINDINGS: The ventricles are normal in size and position. The white matter myelin pattern is very incomplete. There is symmetric hypomyelination in the biparietal periventricular white matter extending into the corona radiata on the T2 weighted studies. It appears slightly more pronounced than physiologic terminal zones. The remainder of the myelin pattern is unremarkable for age. There are no abnormal sites of contrast enhancement. There is no significant structural brain anomaly apparent. CONCLUSION: There is hypomyelination in the biparietal white matter which appears more pronounced than physiologic terminal zones. In view of the history of developmental delay and seizures, follow-up MR is recommended to reassess the myelination and verify appropriate maturation of the brain. Clinical correlation is also recommended to evaluate whether the patient has a static or progressive encephalopathy. Thereafter, the EEG was rescheduled for July 17, 2002, at Miami Children's Hospital. That appointment was kept, and the EEG was reported as follows: IMPRESSION: Abnormal EEG study obtained in the awake, drowsy and sleep states because of the multifocal epileptiform discharges and the asymmetric background. These findings indicate a multifocal cerebral dysfunction left more than right which is potentially epileptogenic. Following the results of the EEG, Dr. Fiallo referred Angel to Miami Children's Hospital for evaluation by Michael Duchowny, M.D., then Director, EEG Laboratories and Seizure Unit, Miami Children's Hospital, and Clinical Professor in Pediatric Neurology, University of Miami School of Medicine. That evaluation, done on January 21, 2003, was reported as follows: Angel is a 1 year, 11 month old male with developmental delay and history of episodes of crying and shaking during sleep . . . . An EEG was done on 07/17/02, which demonstrated multifocal epileptiform discharges indicating multifocal cerebral dysfunction greater on the left side than the right side. MRI of the brain was done on 11/09/01 and demonstrated biparietal white matter hypomyelination He gets physical therapy, but no speech therapy at this time. Developmentally he has been delayed and walked at 19 months. A review of Angel's PRE and PERINATAL HISTORY shows him to be the product of a pregnancy without complications. He was born at term after spontaneous rupture of membrane. Labor was complicated by maternal cardiopulmonary arrest, which was followed by emergency caesarean section. He had respiratory distress at birth and was intubated for seven [sic] days. He spent 15 days in the Palmetto Hospital Neonatal Intensive Care Unit. His birth weight was 7-pounds, 3-ounces. There were no other neonatal complications according to his foster mother. * * * REVIEW OF SYSTEMS: Restless sleep as described above. He has no history of cardiac, lung, GI, or GU disorders. His foster mother notices that his muscles are "tense." PHYSICAL EXAMINATION shows him to be alert and in no acute distress. Weight is 25 pounds, 1-ounces. Head circumference is 46.5 cm, which places him at about the 25th percentile. There are no dysmorphic features or neurocutaneous manifestations. His tonsils are 1+bilaterally. Abdoment is soft with no organomegaly. Spine and extremities are normal. He transfers, and has bilateral parachuting responses. NEUROLOGIC EXAMINATION: His mental status is attentive. He follows commands very well, but has minimal speech production. He mostly makes unintelligible sounds. Cranial nerves II through XII are intact. Fundi show no apparent retinopathy. Motor examination reveals normal bulk, tone, and strength and use of all four extremities. He has minor decrease in fine motor ability in both upper extremities. The deep tendon reflexes are 3+ throughout and brisk, with no clonus and symmetrical. Plantar responses are flexor bilaterally. On cerebellar coordination, there is no tremor or abnormal movements. His gait is somewhat wobbly and he falls frequently if not assisted. IMPRESSION: 1) Global developmental delay. 2) Speech delay. 3) Paroxysmal nocturnal motor events, questionable for seizures. 4) Oromotor apraxia. 5) Snoring. 6) Abnormal EEG and MRI. PLAN: 1) Would be beneficial to see the nocturnal events and his foster mother states that she will attempt to video these events and bring us an example. 2) Occupational and speech therapies in addition to physical therapy . . . . Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioners are of the view that during the course of labor, delivery, or resuscitation, Angel suffered an injury to the brain caused by oxygen deprivation, secondary to his mother's cardiopulmonary arrest, that rendered him permanently and substantially mentally and physically impaired. In contrast, NICA is of the view that, while Angel's mother suffered a cardiopulmonary arrest, the proof fails to support the conclusion that any oxygen deprivation Angel may have suffered was sufficient to produce brain injury, and that his impairments were, more likely than not, related to prenatal (developmental) events. Moreover, NICA is of the view that regardless of the etiology of Angel's developmental delay, he is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Angel's impairment To address the cause and timing of Angel's impairment, as well as its significance, the parties offered certain records related to Angel's birth and subsequent development, portions of which have been addressed supra and portions of which will be addressed infra (Petitioners' Exhibits 1A-1E and 2, and Respondent's Exhibits A-C and E); the deposition of Steven Abern, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology (Petitioners' Exhibit 3); the deposition of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology (Respondent's Exhibit F); and an affidavit of Dr. Duchowny (Respondent's Exhibit D). Dr. Abern, whose deposition was offered on behalf of Petitioners, was of the opinion, based on his review of the medical records and his neurologic evaluation of Angel on January 20, 2003,5 that Angel was permanently and substantially mentally and physically impaired, and that, more likely than not, his impairment resulted from a brain injury caused by oxygen deprivation that occurred during labor, delivery, or resuscitation. Dr. Abern described the results of his examination as follows: . . . Approximately two-year old right [handed] Hispanic male . . . . In therapy for not walking, walks unsteady. No language, just babbles Has appointment with neuro[logist Dr. Duchowny] tomorrow . . . . 7/02 abnormal EEG. [M]ultifocal epileptiform discharges left greater than right as well as continuous slow left hemisphere. In therapy two times a week for 45 minutes for two months. short thumbs, slobbers a lot, no regression . . . . Toddler walk, wide based . . . . No concerns with hearing or vision . . . . [F]unctioning at approximately one-year level . . . . Rudimentary pincer . . . . (Petitioners' Exhibit 3, pages 49-51) Notably, Dr. Abern characterized the results of his examination as consistent with the results of Dr. Duchowny's examination of January 21, 2003, in that he observed, as did Dr. Duchowny, "normal tone, normal strength, no tremor or abnormal movements. His gait is somewhat wobbly, and he falls frequently if not assisted." (Petitioners' Exhibit 3, page 54) With regard to the etiology of Angel's impairment, Dr. Abern was of the opinion that Angel's impairments were the "sequela" of a "profound hypoxic ischemic insult at the time of birth secondary to his mother's cardiopulmonary arrest." (Petitioners' Exhibit 3, page 24) In so concluding, Dr. Abern noted Angel's severe depression at birth; the presence of a triple nuchal cord around the neck; the need for prolonged resuscitation; a cord blood pH consistent with severe acidosis; evidence of seizure activity within the first few hours of life; evidence of multiple organ abnormalities; and the need for medication (Dopamine) to maintain blood pressure. Dr. Abern was also of the opinion that the MRI scan of November 9, 2001, revealed brain injury, consistent with a hypoxic ischemic insult at birth. Dr. Abern explained his reasoning as follows: Q. It is your opinion that the MRI for Angel Balbuena done on November 9, 2001, is consistent with Angel having experienced an hypoxic insult during labor and delivery? A. Yes, it is. Q. How so? A. How so, because if you read the report where there is the -- there is symmetric, and he uses the words hypomyelination, in the biparietal periventricular white matter extended into the corona radiata on a T2 weighted studies. It appears slightly more pronounced than physiologic internal zones. I would call it a periventricular leukodystrophy because where these leucines that he's calling the hypomyelination is in the watershed areas which is where you would expect a child who has no blood pressure and lack of oxygen or decreased blood flow to have the damage which is exactly where you see it. (Petitioners' Exhibit 3, pages 33 and 34) In weighing Dr. Abern's opinion regarding the significance of Angel's impairment, the following observations by Dr. Abern are worthy of note: Q. Is it your opinion that Angel Balbuena is permanently and substantially mentally impaired? A. What do you mean mentally impaired? Let's define that term. Q. How would you define an infant that is mentally impaired? A. There is [sic] lots of ways to define it. That's why I am asking. He is developmentally delayed. When I saw him, he had some motor problems. I know that he had some speech problems, but I can't tell you cognitively because I don't have enough information. * * * Q. Is it your opinion that Angel Balbuena is permanently and substantially physically impaired? A. He is physically impaired. Whether it is permanent, with his therapies he may be corrected. But right now at this point in time with the snapshot I would say, yes. Q. You would say, yes, he is permanently and substantially physically impaired? A. At this point in time. Q. Based on the records you have seen and based upon your evaluation of Angel Balbuena, do you have an opinion as to whether or not he has been improving from a physical standpoint since his birth? A. From the records that I've seen, he has improved. Q. Do you expect him to continue to improve? A. That is the hope. * * * Q. What was your impression based upon your evaluation [of January 20, 2003]? A. My impression is that he was functioning at approximately one-year developmental level. He was going to see Dr. Duchowny the next day. I was concerned that this child may be having seizures from taking the history. And that the child is developmentally motorically and language delayed. Q. You said motorically? A. Motorically. * * * Q. Based on your evaluation, what is the nature of Angel's motor delay? A. The brain damage that he had at or near the time of his birth. Q. Let me ask it another way. How is he delayed from a motor standpoint? A. He is two years old. He is just starting to walk. He doesn't have a fine motor rudimentary pincer. His developmental milestones were delayed. Q. In your opinion, based upon your evaluation, did Angel have hypotonia? A. I did not find any hypotonia. Q. What is hypotonia? A. Low tone. Q. In your opinion, based upon your evaluation, did Angel suffer any ataxia? * * * A. . . . I didn't write it down, and I don't recall. . . . I can tell you that his gait was wide based and [sic] in a toddler. Q. What's the significance of that finding? A. That he's walking and that he's a toddler gait. All children when they start to walk walk somewhat wide based. Q. So that's essentially normal? A. That's essentially normal at that point in time, correct. Q. Other than the finding that he was two years old and just starting to walk, were there any other motor deficits that you found on your evaluation? * * * A. The fine motor, the rudimentary pincer grasp. Q. Explain that, the rudimentary pincer grasp. A. You ask a child to pick up a Cheerio. They usually start with their whole hand and then they progress to the thumb and forefinger so they can pick up an individual Cheerio. His was rudimentary. Q. What do you mean by rudimentary? A. Development -- it was delayed. It was not developed as well as it should have been. Q. What other impression, if any, did you have based upon your evaluation on January 20, 2003? A. That was basically what I had. I knew he was going to see Dr. Duchowny the next day, and then Dr. Duchowny's exam basically confirms mine. It reveals normal tone, normal strength, no tremor or abnormal movements. His gait is somewhat wobbly, and he falls frequently if not assisted. (Petitioners' Exhibit 3, pages 24-26, and 51-54) As for the implications of Ms. Donado's cardiopulmonary arrest, Dr. Abern offered the following additional observations: Q. In your opinion, how long and how severe was the hypoxic insult experienced by Angel in this case? A. Angel's mother arrested around 6:45 in the morning. He was born at 6:59 in the morning. So there was approximately a 15- minute, 20-minute period of time he was compromised. * * * Q. If Angel had experienced an insult for 15 to 20 minutes during labor and delivery, would you have expected his transition from the intrauterine [environment] to the . . . . Extrauterine environment to be more difficult than what was reported in the medical records? A. No, because the child has a reserve. Q. Meaning what? A. Meaning that the placenta is still providing some of the nutrition, some of the oxygenation for him. It's not a total abrupt. He's still getting some blood flow, still getting some oxygen, and the child has their own reserve. * * * Q. So even though there may have been an infarct in the placenta as you described earlier, the affect on the child may not have been as significant given those reserves and the continual nourishment of the placenta? * * * A. It may or may not have been. I don't know what the child's reserves were. (Petitioners' Exhibit 3, pages 38, 47, and 48) Dr. Duchowny, who had examined Angel at the request of his pediatrician on January 21, 2003, conducted a follow up examination on July 16, 2003, at the request of NICA. Dr. Duchowny reported the results of his follow-up visit as follows: I reevaluated Angel Balbuena on July 16, 2003. Angel is now 2 1/2 years old . . . . As you know, Angel was previously evaluated by me on January 21, 2003. At that time he was almost two years old and presented with developmental delay and nocturnal episodes . . . . The major concern at that time focused on periodic nocturnal awakenings in which he would cry and appear to be fearful. He has also had one episode of unresponsiveness without motor accompaniments. An EEG on July 17th had revealed multifocal epileptic abnormalities. He was on no intercurrent medications. Angel's DEVELOPMENTAL MILESTONES were consistently delayed. He was not speaking at his first evaluation and had only recently begun taking steps at age 19 months. His examination confirmed his delayed speech and development. The etiology of his nocturnal motor events was not specified. Over the past six months Angel has made some limited progress. He is now speaking six or seven words and his father feels his motor abilities have improved across the board. He is still quite unstable, however, and will fall intermittently. He cannot run on his own . . . . Angel is receiving physical and speech therapy on a twice weekly basis and his caretaker supplements these exercises at home . . . . PHYSICAL EXAMINATION reveals him to be alert and cooperative. His head circumference measures 46.7 cm, which is within standard percentiles for age. His fontanels are closed. The hair is dark brown and of normal texture. He weighs 26 pounds. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are unremarkable. Angel's NEUROLOGIC EXAMINATION reveals him to be sitting up and attentive. He plays with toys and uses both hands. He is quite sociable. He did not talk in words during the evaluation but he clearly communicated his needs and responded to simple commands. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and are briskly reactive to direct and consensually presented light. There are no facial asymmetries. His tongue movements are poorly coordinated. There is minimal drooling. Motor examination reveals mild generalized hypotonia in a symmetric distribution. There is no focal weakness, atrophy, or fasciculations. He has good bimanual skills and individual finger movements. His deep tendon reflexes are slightly exaggerated at 3+. He can stand and bear weight and is able to walk across the room. However, his gait is somewhat unstable and there is head titubation and a wide-based stance. He has a tendency to fall in either direction. There are no specific focal or lateralizing findings. In SUMMARY, Angel's neurologic examination reveals evidence of speech delay and generalized hypotonia with ataxia. He has progressed since his previous evaluation in January. (Respondent's Exhibits D and E) Based on his neurologic evaluations and review of the medical records, Dr. Duchowny was of the opinion that: Although Angel clearly had a difficult delivery, significantly impaired cord blood gases, and an immediate need for intubation and ventalitory support, I do not believe that Angel's neurologic impairments were acquired in the course of labor and delivery. My opinion is based on the neurologic findings of generalized hypotonia and ataxia, which are more consistent with prenatally acquired cerebral palsy. His MRI performed on November 9, 2001 is consistent with this formulation as it demonstrates biparietal white matter hypomyelination, findings that are not indicative of a hypoxic ischemic insult acquired during labor or delivery. (Respondent's Exhibit E) Dr. Duchowny was also of the opinion that Angel was neither substantially mentally nor physically impaired. In his deposition testimony, offered on behalf of NICA, Dr. Duchowny elaborated on his opinions as follows: Q. What happens to an infant when the mother is having cardiopulmonary arrest? A. It depends on the severity of the arrest. Anywhere from nothing to catastrophic circumstances to the infant. Q. What was the severity of Angel's mother's cardiopulmonary arrest? A. Well, I think that -- it's not clear . . . . Q. So is it then unclear what effect the cardiopulmonary arrest of Angel's mother had on Angel? A. No, I think that was clear. I don't think it had an effect on Angel. Q. Well, why is it clear as to Angel and not clear as to his mother? A. Because Angel didn't suffer brain damage as a result of his mother's cardiopulmonary arrest. Q. And what about the hypoxic ischemic damage? A. His neurologic examination is not consistent with the effects of hypoxic ischemic damage and his MRI scan is not consistent with hypoxic ischemic damage, and there is also a maternal history of developmental delay, which predates the pregnancy, but that's less important. * * * Q. What is the extent of Angel's developmental delay? A. He has a speech delay. He's got delayed coordination and he has delay in mature muscle tone, low muscle tone. * * * Q. Was Angel delayed in any of his developmental milestones? A. Yes, he was delayed in his motor and speech milestones. * * * Q. Do you agree that Angel Balbuena is substantially mentally and physically impaired? A. No. Q. Do you agree that Angel's mental and physical impairments such as described are permanent? A. No. Q. Do you agree that Angel Balbuena suffered from oxygen deprivation in the course of labor and delivery? A. No. Q. So it is your testimony today, Doctor, that even though Angel Balbuena's mother suffered a cardiac arrest and was resuscitated, was being resuscitated for almost 20 minutes, that had no effect on Angel's oxygen supply to his brain? A. It may have had an effect on the oxygen supply to Angel's brain, but Angel doesn't have hypoxic ischemic damage. Q. Well, what effects did the oxygen deprivation to Angel's brain during his mother's cardiopulmonary arrest before his delivery have on him? What were the effects? A. None, as far as I can tell. I mean, there may have been some transient physiologic disruption, but no permanent effects. * * * Q. You mention in your letter of July 23rd, 2003 that it is your opinion that Angel's neurologic findings are more consistent with prenatally acquired cerebral palsy. What is cerebral palsy? A. Developmental disorder of motor functioning. Q. What causes cerebral palsy? A. Most of the cases are due to unknown intrauterine circumstances. Q. What is the cause in Angel's case? A. Intrauterine factors. I don't know the precise cause, but I believe they were acquired in utero. Q. What is the factual basis for your belief that these occurred in utero? A. His neurologic examination, the MRI findings. Q. What in the neurologic examination factually supports your opinion that Angel's neurological deficits occurred prenatally or intra-utero? A. The findings of hypotonia, ataxia and speech delay are all developmentally based and likely to be related to intrauterine factors. * * * Q. What is the factual basis for your opinion that Angel doesn't have global developmental delay from a cognitive standpoint? A. He's very socially aware; he's interactive. He can gesture for his needs. He can understand commands, and that suggests that he does have communication skills. He just lacks speech. (Respondent's Exhibit F, pages 25, 26, 29, 31, 33, 34, 41, and 42) Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Ms. Donado suffered cardiopulmonary arrest during labor and delivery, and there is evidence to suggest Angel may have suffered oxygen deprivation during that time, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation Angel may have suffered resulted in brain injury, or that he is permanently and substantially mentally and physically impaired. In so concluding, it is noted that, given the record, there is no reason to accept the views on causation expressed by Dr. Abern, over those expressed by Dr. Duchowny, and that regardless of the cause, Angel is not permanently and substantially mentally and physically impaired.
The Issue This case arises out of the Petitioner's objection to the issuance of a septic tank permit for property adjacent to his lot in Panama City Beach, Florida. The sole issue before the Hearing Officer, as alleged by Petitioner's pleading, is whether the applicant's permit for septic tank should be denied on the basis that it is in violation of Rule 10D-6.24, Florida Administrative Code, which requires that no septic tank be placed within 75 feet of a private water supply well. On November 15, 1982, by certified mail, the Bay County Health Department notified Petitioner of its intent to grant a permit for a septic tank at 6713 Gulf Drive, Panama City Beach, Florida. Thereafter, on December 13, 1982, Respondent filed a petition for formal proceeding, objecting to the issuance of the aforementioned permit and requesting a formal hearing. Pursuant to notice, a formal hearing was held at which the Petitioner testified on his own behalf and also called Paul Miller, an Environmental Sanitarian for the Bay County Health Department as a witness. Respondents called as witnesses Michael Sarra, Bay County Health Department, William Curtis Wright, and Thomas F. Gladstone. Petitioner offered and had admitted two exhibits and Respondents offered and had admitted three exhibits. The Petitioner, subsequent to the formal hearing, filed with the undersigned Hearing Officer two late-filed exhibits. No permission had been granted or requested at the formal hearing for the filing of late-filed exhibits and, therefore, those exhibits were neither considered nor utilized as a basis for the Findings of Fact or Conclusions of Law in this Recommended Order. Petitioner submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact On or about June 15, 1982, Mr. Dewayne Dilmore, by and through his contractor, Tom Gladstone, applied for a septic tank permit for a new residence located at 6713 Gulf Drive, Panama City Beach, Florida (See Petitioner's Exhibit B). After a required change in the design drawings reducing the structure from a 3-bedroom to a 2-bedroom residence, the application was determined to be in compliance with all statutory and regulatory requirements and was approved by the Bay County Health Department. Petitioner, Samuel M. Torrence, owns a residence at 6715 Gulf Drive, Panama City Beach, Florida. This home is west of and contiguous to Mr. Dilmore's lot. In response to a Notice of Intent to issue a septic tank permit for the adjacent lot, 6713 Gulf Drive, Mr. Torrence objected on the grounds that such septic tank would be located within 75 feet of his private water supply well. Prior to the June 15, 1982, application by Mr. Dilmore, there was an existing septic tank on Mr. Dilmore's lot. This septic tank had been on the lot since April, 1961. The Petitioner's home at 6715 Gulf Drive was constructed in 1968 or 1969. 4 The replacement septic tank on the applicant's lot will be located farther from the Petitioner's property than the existing septic tank. The testimony of Paul Miller and Michael Sarra, along with the approved application, establish that the application of Dewayne Dilmore and the proposed replacement septic tank meet all requirements of Rule 10D-6.24, Florida Administrative Code, and Florida Statute 381.272(1982). Approximately two years ago, Mr. Torrence had his home at 6715 Gulf Drive hooked into city water, and has no private well hooked up to any of the pipes of his home. Although the Petitioner contended that the replacement septic tank would be within 75 feet of a private well on his property, there was no evidence in the record of the specific location on his property of a private well or any measurements he had made. The evidence does not show that there is in fact a private well within 75 feet of the location of the replacement septic tank. The Department of Health and Rehabilitative Services has an established policy of grandfathering existing septic tanks, and this policy permits the septic tank on the Dilmore property as a replacement of an existing septic tank regardless of whether said tank would be located within 75 feet of a private water supply well on the Petitioner's property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is:: RECOMMENDED: That the permit for septic tank be issued and Petitioner's request to halt issuance should be denied. DONE and ENTERED this 12 day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of May, 1983. COPIES FURNISHED: Samuel M. Torrence Post Office Box 7106 Dothan, Alabama 36302 John Pearce, Esquire Department of HRS 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Mr. Mike Sarra and Mr. Paul Miller Bay County Health Department Post Office Box 1728 Panama City, Florida 32402 Mr. David H. Pingree Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992. Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking her respiratory care practitioner license number TT 0006767. DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183 Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert B. Dell, P.A. 4801 South University Drive Fort Lauderdale, Florida 33328
