The Issue The issue is whether Respondent's license as a registered nurse should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), which regulates the practice of nursing, has alleged that Respondent, Heidi Howard (formerly known as Heidi Howard Hamby), a licensed registered nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a registered nurse at Select Specialty Hospital (Specialty Hospital) in Jacksonville, Florida, in November 2000. Respondent holds license number RN 2004412 issued by the Board. She is presently employed as a registered nurse at Shands Regional Trauma Center in Jacksonville. In November 2000, Respondent worked for Suwannee Medical Personnel, a staffing firm which supplied nurses to various health care facilities in the Jacksonville area, including Specialty Hospital. On November 12, 2000, she was working the 7 a.m. - 3 p.m. shift and had the responsibility of caring for T.C., a 71-year-old male patient suffering from dementia, secondary to Alzheimer's Disease; left hemispheric cerebrovascular accident; history of hypertension; anemia; a history of a nephrostomy tube; and acute renal failure. In lay terms, he had a severe kidney failure, a stroke, and a form of Parkinson's Disease, with Alzheimer's Disease. However, even though T.C. could not speak and he had a poor memory, he was not a hostile or difficult patient. In addition to his other ailments, T.C. had an involuntary tremor of the jaw, which caused his mouth to open and close involuntarily. Because of all of these ailments, the patient was on a soft diet (soft foods or liquids), and his medications had to be crushed, so that he would not choke or aspirate while eating or taking medications. Aspiration occurs when the food or fluid is sucked into the lungs rather than going down the esophagus and stomach, and it may cause pneumonia and other conditions in the patient. Because of T.C.'s medical condition and susceptibility to aspiration and choking, it was necessary to elevate his bed to 45 degrees when administering medications or feeding him. These instructions were prominently posted on a sign at the end of T.C.'s bed. Late on the morning of November 12, 2000, Mary Jo Guizard, a registered nurse on duty that day, was walking down the hall in front of T.C.'s room when she heard Respondent laughing and saying words to the effect "Hey, you guys, come look at this" and in a joking manner say "I don't even have to crush his pills." She also observed Respondent pouring water into T.C.'s mouth from about an inch above his mouth causing water to run down the sides of his mouth. Ms. Guizard further recalled that T.C.'s head "may have been on a pillow," and that the bed "may have been at a twenty-degree angle, if that." However, she specifically recalled that the bed was not at the required 45 degrees. The incident was reported by another nurse to the floor supervisor a few minutes later, and Ms. Guizard confirmed these events in a written statement. Beatrice Padilla, formerly a certified nurse's aide at Specialty Hospital and who now lives in Kansas, was also on duty when the incident occurred. Her testimony has been preserved by deposition. Ms. Padilla was walking down the hall when she heard laughter coming out of T.C.'s room. After being invited into T.C.'s room by Respondent "to see something," Ms. Padilla watched Respondent pour water into the patient's mouth from a cup about an inch or inch and one-half above his mouth. Because T.C. could not control his mouth, the mouth would open and shut and spray water down the side of his face. According to Ms. Padilla, T.C.'s head was on a pillow, and the bed was "flat" rather than being raised to a 45-degree angle. Respondent also joked that she did not have to crush T.C.'s medication since she could drop it in his mouth and he would crush it himself through his involuntary jaw movements. Upon seeing this, Ms. Padilla "smacked [Respondent] in the arm," told her that "it wasn't funny," and immediately reported the incident to her supervisor. Whether the facility actually filed the complaint with the Board or, as Respondent suggests, her former roommate did so after the two had a quarrel, is not of record. The Boards's expert established that pouring water in the mouth of a patient with the same diagnoses as T.C., from an inch above the mouth, without the bed being properly elevated, creates a potential danger for aspiration and is not an acceptable method of administering fluids. By doing so, Respondent's conduct fell below the minimal acceptable standards of prevailing nursing practice. At hearing, Respondent suggested that the two witnesses who observed the incident (Ms. Guizard and Ms. Padilla) were not telling the truth, and that Ms. Guizard had changed the details of her testimony after making a written statement. However, these contentions have been rejected. Respondent also contended that while she did in fact pour water into T.C.'s mouth, it would have been impossible for her to pour it from an elevation of an inch or so without the patient fighting back. The more persuasive evidence shows, however, that T.C. was not a hostile patient. Finally, Respondent points out that the patient did not choke or aspirate. While this is true, a violation of the statute can occur even if there is no actual harm to a patient. In mitigation, Respondent introduced into evidence a certificate from her supervisor at Specialty Hospital thanking her for "working so hard and being a great teamplayer." In addition, there is no evidence that Respondent has ever been disciplined by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violation described in the Administrative Complaint. It is further recommended that Respondent be fined $500.00, given a reprimand, and placed on probation for one year subject to such conditions as the Board deems appropriate. Finally, it is recommended that Respondent be required to take an approved continuing education course in Medication Administration. DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalache e 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 30th day of October, 2002. COPIES FURNISHED: Dan Coble, RN, Ph.D. CNAA C, BC Executive Director Board of Nursing 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Michael T. Flury, Esquire Department of Health Division of Medical Quality Assurance 4052 Balk Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Heidi Howard 5321 Ogilvie Lane St. Augustine, Florida 32086-5619 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent is a registered nurse who began her employment at South Lake Memorial Hospital on August 29, 1977, and was terminated on April 23, 1980. During her employment, the Respondent received four poor evaluations and/or warnings for her nursing practice. The first warning occurred on August 1, 1979. This warning involved allegations of poor nursing performance by the Respondent. These allegations included the Respondent leaving her unit, failing to properly organize her work, failing to properly restrain a patient, wasting time by running too many EGG strips instead of performing her assigned functions, failing to take vital signs timely when coming onto shift, becoming hostile with the Director of Nursing, and failing to obey the direct order of the Director of Nursing to leave the hospital and go home after an argument on July 12, 1979. Although there was no direct evidence as to most of the allegations, the Respondent admitted to late charting, failing to timely take vital signs, spending time working with ECG strips, and failing to obey a direct order to-go home given by the Director of Nursing. The next evaluation occurred on November 26, 1979. The deficiencies in Respondent's practice as alleged by the Director of Nursing were that the Respondent gave a patient whole blood instead of packed cells as ordered by the physician, failed to verify an error in transcription by the ward clerk which resulted in a patient's x-rays being delayed for a day, and improperly charting when the Respondent noted on the nursing notes that at 9:00 p.m. there was no significant change in a patient's condition, when in fact the patient had left the hospital at 8:30 p.m. The lack of direct evidence of these allegations was compensated for by the Respondent's admissions as she testified concerning the circumstances surrounding why the incidents occurred. The third warning occurred on March 19, 1980. The allegations in the warning concerned the Respondent having shouted at a supervisor, abandoning her patients, allowing two I.V.s to run dry, failing to carry out a doctor's orders, and failing to chart. Again, there was no direct evidence of the allegations, however, the Respondent admitted that she left her duty station because of sickness prior to relief arriving in the unit, failed to properly follow doctor's orders, and failed to chart for the time she was present in the unit prior to her reporting to the emergency room. The fourth and final warning, which resulted in termination, occurred on April 23, 1980. The allegations by the Director of Nursing were that the Respondent hung one-fourth percent normal saline solution rather than the one- half percent normal saline solution ordered by the physician, and that the Respondent failed to administer the 5:00 p.m. medication. Again, the allegations were admitted by the Respondent as she attempted to explain why they occurred. The Director of Nursing testified that during each of these warnings, the Respondent's attitude was that she had done nothing wrong and, therefore, could not improve on her performance. The testimony of the Department's nurse investigator was to the effect that the Respondent's actions failed to meet the minimal standard of acceptable and prevailing nursing practice. The investigator also testified that, in her opinion, a nurse with Respondent's poor attitude could be extremely dangerous in a hospital setting. After many years of difficult and stressful work, many nurses suffer from what is commonly referred to as "burn out" and are no longer useful, and can be dangerous in a high stress area of nursing. Respondent testified in her own behalf and offered an explanation for each allegation presented by Petitioner. Respondent testified that relative to the first warning, even though she only had two patients, she did not have adequate time to do her charting during her shift and, therefore, had to stay two hours late. Respondent further testified that on one occasion she had not timely taken her vital signs because the Director of Nursing had delayed her with a needless confrontation. Respondent testified that she did not leave the facility as ordered on August 12, 1979, because she was afraid that she would be abandoning her patients, and could lose her vacation and sick leave benefits. With respect to the November 26, 1979 evaluation, the Respondent testified that she gave whole blood instead of packed cells because the whole blood was incorrectly labeled as packed cells. Respondent further testified that she became aware of the error after the solution had infused, and that had she looked at the solution earlier she would have been able to see that it was an incorrect blood product, and would have been able to correct the problem. As to the incorrect transcription resulting in a patient's x-rays being delayed, the Respondent stated that it was the ward clerk's responsibility, not hers, to transcribe the doctor's orders. With respect to the 9:00 p.m. nursing notes when the patient had left the facility at 8:30 p.m., the Respondent's response was that she had been aware that the patient was gone, but was summarizing the patient's condition during the entire shift up to the point the patient left. Respondent acknowledge that the nursing notes may have been misleading. As to thee warning of termination on March 19, 1980, the Respondent admitted leaving her unit prior to relief arriving. Her explanation gas that she had been attempting for one hour to get assistance, to no avail. Upon questioning, she admitted that she was-only "a little dizzy" and had diarrhea. On that day she did not chart any nursing care given by her while on duty. The Respondent was caring for twelve patients at that time. With respect to the April 23, 1980 termination, Respondent admitted that she hung the incorrect percentage saline solution, but that she did so because a prior nurse obtained the incorrect solution from a supply room. The Respondent then also admitted failing to give out the 5:00 p.m. medication as ordered, but stated the reason for her failure to administer the medication was her inability to obtain help from her supervisor which was necessary because she was overworked. Respondent also testified that during this time period, she went on rounds with a doctor, and also went to dinner. The Respondent testified that she felt she was a good and qualified nurse. Respondent also testified that she had been fired previously from Leesburg General Hospital. The Respondent believes her attitude to be good and indicated that the hospital was overreacting to a few isolated incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license to practice nursing in the State of Florida, license number 39108-2, be suspended indefinitely. If the Respondent seeks reinstatement, it will be her responsibility to undergo counseling with a psychologist or psychiatrist, for an in-depth evaluation and treatment, the results of which shall be submitted to the Board of Nursing if and when the Respondent wishes to apply for reinstatement of her nursing license. If the Respondent applies for reinstatement of her license, it shall be her responsibility to demonstrate to the Board that she is able to engage in the practice of nursing in a safe, professional, proficient and legal manner. This demonstration shall include but not be limited to a report by her psychologist or psychiatrist, along with a recommendation from him that she be reinstated to the practice of nursing. 1/ DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent. ROYCE S. McCALL, was licensed by the State of Florida as a licensed practical nurse, the license initially issued on December 4, 1978 and renewed thereafter until the present. His license number is 0500981. On July 11, 1984, Respondent was employed as a licensed practical nurse with the Walton County Convalescent Center (WCCC) in DeFuniak Springs, Florida. Late that evening, at approximately 4 or 5 a.m., Respondent, as charge nurse on one of the Center's units, along with Rachiel Infinger and Corene Fondren, was about to change a bladder catheter on one of the Center's residents, a Mrs. Rourke. Before doing so, however, he discovered that Mrs. Rourke had fouled herself and he refused to do the procedure then instructing Mrs. Rourke's aides to clean her up. He then went to the room occupied by Mrs. Harper, an elderly, completely bedridden patient between 80 and 90 years old, who rarely talks and can hardly move her arms and legs. Mrs. Harper also required a bladder catheter change and Respondent, along with another nurse, was attempting to do it. Since apparently Mrs. Harper was resisting somewhat, Respondent asked Ms. Infinger to help. During the course of the procedure, Mrs. Harper brought her hand down into the area where Respondent was working in an attempt to stop him. It was obvious that the procedure was somewhat painful to her and in the opinion of Ms. Infinger, Respondent was being less than gentle. When Mrs. Harper brought her hand down, Respondent grabbed it and moved it out of the way telling her at the time to, "Move your damned hand." This comment was heard by both Ms. Infinger and Ms. Fondren. When Respondent moved Mrs. Harper's hand, it collided with the bed rail which broke the skin causing it to bleed. Ms. Infinger noticed this and mentioned it to Respondent. He said he would take care of it and Ms. Infinger went some place else to do something. When she came back some 30 to 45 minutes later, she found that Respondent had still not dressed the skin break on Mrs. Harper's hand. Ms. Infinger thinks Respondent was too rough with Mrs. Harper. She believes it was not necessary for him to throw the elderly woman's hand off as he did. There were two aides present who could have, had they been asked, moved the hand and held it out of the way. There is some divergence in the testimony of Ms. Infinger and Ms. Fondren as to whether Respondent threw Mrs. Harper's hand or pushed it with the former contending it was a throw and the latter contending it was merely a push. Even Ms. Fondren, however, who believes this rough action was a reflex action by Respondent who had been in a bad mood all evening, agrees that since someone was there to help him, he should have asked for help rather than reacting on his own. If either witness is to be believed, however, Respondent acted unprofessionally. On the other hand, however, Ms. Stubbs, Ms. Blocker, and Ms. Fields, all of whom had worked with Respondent for several months, knew him from their repeated observations of him at work never to be abusive or rough with his patients. He is generally very kind to his patients, taking the time to explain what he is doing and exhibiting patience and understanding. His patience is somewhat less with the aides who in his opinion, do not do what they should on duty. Mrs. Harper has had several other skin tears both before and after the one in issue here. She is an old woman who bruises easily and whose skin can be broken easily. While not a difficult patient, she is somewhat confused and tends to try to interfere at times with the ministrations of those trying to help her and her hands often get in the way. Here, it is obvious that Respondent was in a bad mood late at night when he went to treat Mrs. Harper. He had just come from another patient who had not been properly cared for by the aides responsible for her and he was clearly annoyed. No doubt Mrs. Harper, not through spite or even consciously, attempted to stop him from doing what was no doubt a painful procedure and he reacted unprofessionally. This is not to say he consciously intended to harm her, but his reaction was less than it should have been in this situation. When Ms. Infinger came back and found that Respondent had not tended to Mrs. Harpers wound, she immediately reported this fact to Barbara Jean Miller, a licensed practical nurse working on another unit that evening who quickly treated and dressed the skin tear. When she left duty the next morning, she reported what she had seen and done and what Ms. Infinger had told her to the Assistant Director of Nursing who she saw outside in the parking lot. This lady reported it to the Director of Nursing, Mrs. Harwell, who conducted her own investigation. Mrs. Harwell interviewed Respondent who after first denying that the incident had taken place, admitted that he did yank Mrs. Harper's arm but stated he did not know it had hit the bed rail. He also initially denied knowing there was an injury but then admitted he had been told there was and that he had said he would fix it. He admitted that he was upset that evening. In the catheter procedure that Respondent was accomplishing, it is never appropriate to handle a patient so forcefully that it results in an injury even though it may be necessary to restrain or move the patient in some fashion. In Mrs. Harwell's opinion, Respondent's handling of Mrs. Harper in this instance was below minimum standards for the nursing profession. After talking with all the witnesses and securing pictures of the injury, based on her investigation and her discussions with Respondent, she terminated his employment with WCCC that day not only because in this instance his performance was below standards and unprofessional but also because this was the second incident of substandard performance on his record. She had previously chastised him for speaking improperly to or about another patient several weeks previously. Consequently, it is clear that Respondent moved Mrs. Harper's hand in such a manner that resulted in injury to her which is unprofessional conduct on his part compounded by his failure to return to treat the wound once he was made aware of it.
Findings Of Fact Respondent is a nursing home licensed by Petitioner pursuant to Chapter 400, Florida Statutes. On December 8, 1980, Petitioner's nurse surveyor, Muriel Holzberger, visited Respondent's facility to review the medical records at Respondent's facility following receipt by HRS of a copy of a newspaper article charging Respondent with patient neglect. Ms. Holzberger reviewed the medical records of patient S and talked with the administrator. After reviewing the records Ms. Holzberger concluded that Respondent had not used the air mattress that accompanied S to the nursing home, that S developed bedsores which were first observed on 1 October, that he was not seen by the doctor until 6 October, that these bedsores worsened until 10 October, that on 10 October an "egg crate" mattress was placed on bed, proper medication was administered to S, and when he left the nursing home near the end of October, the lesions were healed. The three witnesses presented by Respondent, all of whom treated and observed S while he was a patient at the nursing center, testified that the air mattress which accompanied S to the nursing center was inflated and on the bed occupied by S from his admission until replaced by the egg crate mattress on 10 October. At the time of his admission, the patient was recovering from a stroke. He had been cared for by his wife at home following his cardiovascular attack and required total care. He could not communicate or feed himself. Apparently, his wife decided to take a short vacation and placed S in the nursing center to provide the needed care. On 1 October 198 the nurse on the three to eleven shift noted open areas on the patient's buttocks and lower extremities indicating pressure on these areas from lying in bed. On 2 October more open lesions appeared and the attending physician was called but could not be contacted. On 3 October the physician was contacted and he prescribed medication for the bedsores which had developed. On 6 October the patient was seen by the doctor but the open lesions continued to accumulate until around 10 October, after which the lesions abated. Upon delivering S to the nursing center, Mrs. S advised that S was subject to bedsores if not carefully attended and included with his effects a long letter describing treatment she had used to treat bedsores and some Betadine solution which been prescribed by the doctor for treating these lesions. Testimony was unrebutted that during the early part of S's stay at the nursing center (when the bedsores developed) the patient slept on the inflated air mattress, was turned frequently, and appeared despondent due to his wife's absence. He obviously was not as carefully attended to as he could have been, hence the accumulation and subsequent aggravation of the open lesions which healed when the wife returned and more careful attention was given to S. When open lesions were first observed on 1 October, Respondent's duty nurse applied dressings without doctor's orders. When the doctor could not be contacted on 2 October, his office was advised that the doctor would be called the following day. On 3 October the patient's condition was relayed to the doctor and he prescribed medication but, as noted above, did not visit the patient until October 6. The treatment prescribed on 3 October, viz, Betadine and heat lamp apparently was continued until the lesions were healed some four weeks later. The medical records maintained at the nursing center on S did not show the use of the air mattress which accompanied S to the nursing center. Use of this equipment is in the nature of preventive therapy and should have been recorded in the Nurses Notes. The medical records did record S's condition and the treatment given him both before and after receipt of the doctor's orders. No charges were preferred for applying medication to S's lesions before receipt of doctor's orders and this delict will not be considered.
The Issue The issue in this case is whether Respondent, Joseph Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
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. Respondent, Joseph Ovadia, 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 0046214. At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities. Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery. Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985. Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients. As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998. Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986. The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing. On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings. Treatment of Patient W.G. On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room. W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening. Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G. W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury. The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony. The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300. A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m. Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m. At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4 Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating W.G. at the time. Dr. Ovadia was, therefore, telephoned "several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6 Despite the failure of the evidence to prove that Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital. Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation. The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter. The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order. W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital. Allegations of Wrongdoing Concerning W.G. In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts: come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997; clean and drain Patient W.G.'s lacerated thumb; or order that other hospital personnel clean and drain the laceration. The Experts' Opinions; The Standard of Care At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D. Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was: An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point. To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable. Petitioner's Exhibit 1, Page 14, Lines 1-9. Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id. Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was: . . . . Essentially in the W.G. case my opinion would be the correct treatment would be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus. Transcript, Volume 1, Page 95, Lines 5-9. Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed: If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed. . . . The tendon is much healthier with the skin closed. It doesn't dry out. Transcript, Volume 1, Page 137, Lines 12-17 Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care: Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00? A No, ma'am. Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound? A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added). Transcript, Volume 1, Page 141, Lines 12-20. Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound. As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound. Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that the wound should have been closed, he was of the opinion Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose. Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed. The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained." The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint. Treatment of Patient F.S. On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours). F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening. F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours). F.S. was given IV antibiotics and a shot for tetanus. At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably. As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation. At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response. At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning. Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again. Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1. F.S. left the hospital at approximately midnight.13 Allegations of Wrongdoing Concerning F.S. In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts: come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm. The Experts' Opinions; The Standard of Care Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra. Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.: Q Could you please express you opinion as to this case? A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that. Q And why would you believe it necessary to come to the hospital to see this patient? A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not. But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take. By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care. Petitioner's Exhibit 1, Page 16, Lines 16-25, and Page 17, Lines 1-10. Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard: Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]? A Yes. . . . . Q What would that opinion be? A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand. It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested. Transcript, Volume 1, Page 101, Lines 22-25 and Page 102, Lines 1-12. While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient: Q How long would you expect to wait until the bleeding stopped? A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I put a lighter dressing on it and they go home. Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then? A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding. Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable: Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case? A With the bleeding hand I think an hour's time is not unreasonable. Transcript, Volume 1, Page 150, Lines 1-6. The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S. Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to the hospital and it was another hour after that before F.S. left the hopsital: 7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding; 9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage; 10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and 11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after 10:55 p.m., an hour passed before F.S. left the hospital. Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra. The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter. Treatment of Patient W.L. On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours). W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment. Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours). Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call general surgeon, was contacted for clearance of the surgery. W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital. Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia. Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back. After waiting in the lounge without any word from Ms. Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that Dr. Russell was dismissing him from the care of W.L. and that W.L. would be transferred to another hospital for orthopedic care.16 At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17 Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call. Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18 Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders. At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested. Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility. At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added]. Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20 0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . . 0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO . . . . 0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care. 0220 . . . . No change in transfer admit status. . . . 0300 . . . No status change regarding admit transfer status. . . . 0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . . 0331 Pt to be transferred to ICU WEST 3 . . . . 0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr. Benitez to admit patient to Homestead Hospital. 0410 . . . Pt will be physically transferred when bed has been cleaned. . . . . . . . 0530 Pt transferred to hospital bed for comfort. . . . Petitioner's Exhibit 2, Pages 76-77. Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred. Allegations of Wrongdoing Concerning W.L. In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that: . . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon. The Experts' Opinions; The Standard of Care Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint. Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it: Q Could you express your opinion as to this case. . . . A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care. In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care. Petitioner's Exhibit 1, Page 4, Lines 13-25 and Page 5, Line 1-2. Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2. Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook. Dr. Cook opined as follows concerning the treatment of W.L.: Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this circumstance, do in that situation; in light of the knowledge of the facts of this case? A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation. Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added). Transcript, Volume 1, Page 115, Lines 3-25, and Page 116, Lines 1-4. While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows: My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient. These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient? I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added). Transcript, Volume 1, Page 166, Lines 7-25, and Page 167, Lines 1-12. Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified Dr. Ovadia could have taken were not, however, actions alleged in the Administrative Complaint and, therefore, are not relevant to this matter. The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint. The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return. More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion. As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding. Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital . . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon." Conclusion. The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint. The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
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 finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine. DONE AND ENTERED this 10th day of March, 2003, 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 10th day of March, 2003.
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
