The Issue Whether disciplinary action should be taken against Respondent's license as a veterinarian based on alleged violations of Section 474.214, Florida Statutes (1997), as charged in the Administrative Complaints filed against Respondent in this proceeding. Count I of the Administrative Complaint in Case No. 00-2357 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances. Count II of the Administrative Complaint charged Respondent with a violation of Section 474.214(1)(ee), Florida Statutes (1997): failing to keep contemporaneously written medical records as prescribed by Rule 61G18-18.002(3), Florida Administrative Code. The Administrative Complaint in Case No. 00-2358 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material, Respondent was a licensed veterinarian, having been issued license number VM 0003822. Facts relating to Case No. 00-2357 On or about March 5, 1998, Respondent performed a spay on "Midnight," a dog owned by Maryjane Greene and her husband. On or about March 8, 1998, "Midnight" expired at the Greene's home. When Mrs. Greene dropped off "Midnight," she was not sufficiently informed by Respondent about her option to have a pre-anesthesia lab work-up performed. There is no indication of an offer to perform a pre- anesthesia lab work-up, nor an indication that Mr. or Mrs. Greene declined such an offer, nor a consent form declining such a work-up, noted in the medical records kept by Respondent for "Midnight." It is a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the spay of "Midnight" included Xylzine (a.k.a. Rompun) a drug with a profound and potentially deleterious effect on the heart which may cause a first degree or second degree heart block. The anesthetic protocol used by Respondent during the spay of "Midnight" also included Ketamine, which is not approved for use in dogs. When used as an anesthetic protocol, it is considered an extra-label use of the drug. An extra-label use of a drug means that there have been no safety studies completed, and it cannot be adequately predicted what effects the medication will have on an animal on a consistent basis. There is no indication in Respondent's records for "Midnight" that Mrs. Greene was informed regarding the use of Ketamine in her dog's procedure. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug and not to have the client sign a consent form. Xylazine and Ketamine are both cardiac depressants. When used in combination they each make the other more of a cardiac depressant, thus requiring the administration of another drug, such as Atropine, to minimize the cardiac depressant effect. There is no indication in Respondent's medical records for "Midnight" that Atropine or any other drug was administered, other that the Xylazine and Ketamine. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xylazine and Ketamine was a deviation from the standard of care. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xyalzine and Ketamine played a substantial role in "Midnight's" demise. Upon picking up "Midnight," Mrs. Greene was given limited post-operative instructions. She was told not to give "Midnight" water until he could walk a straight line; not to give food until he could hold water down; only leash walks for 10 days; and no baths for 7-10 days. Respondent's post-operative discharge instructions given to Mrs. Greene did not comply with the standard of care in veterinary medicine. Facts relating to Case No. 00-2358 On or about August 25, 1998, Respondent performed surgery to remove a mass from the perineal area of "Snoopy," a nine-year-old obese Beagle belonging to Juan Ferras. There is no indication in Respondent's records for "Snoopy" that the surgery was performed due to an emergency, although the credible testimony indicated that it was an emergency. Given "Snoopy's" age (nine years) and weight (60 lbs.), it would be in the dog's best interest to perform a pre- anesthesia lab work-up, or to at least offer one to the owner. Respondent did not indicate in his medical records that he offered to perform a pre-anesthesia lab work-up on "Snoopy." In view of the emergency nature of the surgery, it was not a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the procedure on "Snoopy" included Ketamine, which is not approved for use in dogs. When used, it is considered an extra-label use of the drug. Ketamine should be used with extreme caution in dogs for which the veterinarian is unaware of the renal function or the liver function of the dog. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug, and not to have the client sign a consent form. There is no indication in Respondent's records for "Snoopy" that Juan Ferras was informed regarding the use of Ketamine in his dog's procedure. Upon picking up "Snoopy," Mr. Ferras was given limited post-operative instructions. Respondent's failure to give specific post-operative discharge instructions to Mr. Ferras constituted a deviation from the standard of care. After discharge, "Snoopy" began vomiting and was readmitted to Respondent's facility on or about August 27, 1998. On or about August 28, 1998, "Snoopy" expired at Respondent's facility. There is no indication in Respondent's records on "Snoopy" that upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, Juan Ferras refused to pay or was only willing to pay a small portion of any treatment rendered to "Snoopy." Because of this finding it is unnecessary to address whether refusal to pay a fee is an appropriate defense by Respondent. Upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, "Snoopy" was determined to be approximately 11 percent dehydrated and in a state of shock. In order to correct the dehydration and maintain "Snoopy," it would have been required to administer approximately 4300-4400 ccs of fluid. Respondent's records indicate that only 800 ccs of fluids were administered to "Snoopy." This left "Snoopy" with a tremendous deficit of fluids. Respondent's explanation as to the reason for the small amount of fluid shown on "Snoopy's" chart is not credible. Respondent's failure to administer the correct amount of fluids constitutes a deviation from the standard of care. Upon readmission to Respondent's clinic, Respondnet did not draw blood or perform any type of bloodwork on "Snoopy." Respondent's failure to draw blood or perform any type of bloodwork on "Snoopy" after being readmitted for dehydration and vomiting and shock constitutes a deviation from the standard of care. The fluids which were administered to "Snoopy" were administered sub-cutaneously. The failure to insert an IV catheter to administer the fluids, rather than administering them sub-cutaneously, constitutes a deviation from the standard of care. One way of re-hydrating a dehydrated patient is by weighing the dog and then adding enough fluids to get the patient to its normal weight. There is no indication in Respondent's records that "Snoopy" was weighed at the end of the day on or about August 27, 1998, or that "Snoopy" weighed approximately 60 pounds late in the day on or about August 27, 1998. Respondent's records for "Snoopy" contain a notation at 10:00 p.m. August 27, 1998, of "ADR" which means "ain't doing right." A patient whose records indicate "ADR" should be continuously monitored or transferred to an emergency facility. "Snoopy" was not monitored overnight and through the early hours of the next morning. Had Respondent taken appropriate steps with regards to fluid resuscitation upon "Snoopy's" readmission to Respondent's facility, "Snoopy's" chance of survival would have been much higher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be render by the Board of Veterinary Medicine, as follows: Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statutes (1997), as alleged in Count I of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case NO. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(ee), Florida Statutes (1997), as alleged in Count II of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case No. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statues (1997), as alleged in the Administrative Complaint for DOAH Case No. 00-2358 (DBPR Case No. 98-21230). In light of these findings of guilt and aggravating circumstances, the following penalties are recommended: A thirty-day suspension of licensure. An administrative fine in the amount of four-thousand dollars ($4000.00). Assessing costs of investigation and prosecution, in the amount of $973.24 for Case No. 00-2357 and $684.29 for Case No. 00-2358. Five years of monitored probation upon such terms and conditions as the Board finds necessary and reasonable. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2000. COPIES FURNISHED: Walter H. Dornbusch, D.V.M. 1117 Malabar Road, Northeast Palm Bay, Florida 32907 Robert H. Hosay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sherry Landrum, Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The ultimate issue to be resolved in this proceeding is whether the SSDB's proposal to construct a freestanding ambulatory surgery center in Volusia County, Florida, should be approved or denied. SSDB and the Department contend that the proposal meets statutory criteria and comports with the Department's rules. SSDB and the Department contend that there is a need for the facility and that SSDB is fully competent to construct and operate the facility. OBMH and HHMC contend that there is no need for the proposed facility, that the facility is not likely to be an economically viable venture, that the facility would injure existing businesses, and that the application should be denied because SSDB did not file a letter of intent with the local health council in a timely manner.
Findings Of Fact SSDB is a corporation that is a wholly owned subsidiary of Surgical Inc. Eighty percent of the stock of Surgical Services, Inc., is owned by American Medical International, Inc., a large, multinational health care corporation which owns and operates hospitals and other health care services. American Medical International is the third largest health care provider in the United States. The remaining 20 percent of Surgical Services, Inc., stock is owned by Randall L. Phillips, the company's president. SSDB is proposing to construct and operate a freestanding ambulatory surgery center in Daytona Beach, Volusia County, Florida. The service area for the proposed facility would be Volusia County. This facility would house four operating rooms and would be designed to handle all types of surgical procedures that can be performed on an outpatient basis. SSDB has entered into a contract to purchase land that provides a suitable site for the facility. It is located at the intersection of Clyde Morris Boulevard and Mason Avenue in Daytona Beach. The contract price for the property is $270,000. In addition to the cost of land acquisition, the preopening costs of the project would total $2,080,000. That amount would cover legal and accounting fees, architectural and engineering fees, a site survey, consulting fees, construction costs, movable equipment costs, and other engineering expenses. The preopening cost estimates are less than the $2,500,000 estimated in the original Certificate of Need application. The reduction is attributable to cost efficiencies primarily in selection and purchase of equipment. The costs estimated by SSDB are adequate to cover all preopening expenses and to provide an adequate facility. Financial support for the facility will be provided by American Medical International. This will include an equity contribution, a loan, and all necessary working capital. American Medical International has committed to provide financing adequate to construct and operate the facility. American Medical International has the financial resources to fulfill this commitment. The facility proposed by SSDB would be 15,500 square feet in size. The design is adequate for the proposed use and satisfies applicable health care facility standards and state and federal laws. The equipment proposed for the facility is sufficient to allow the handling of anticipated types of procedures. The facility will be open to all physicians qualified to perform the types of surgery that can be tone within an ambulatory setting. The facility will accept Medicare patients. The facility will admit any patient scheduled by surgeons, and ability to pay will not be a criterion for admission. SSDB has developed a marketing program to attract physicians and patients to the facility. SSDB has proposed adequate staffing for its facility and will be able to fulfill its staff requirements. SSDB is fully competent, given its backing by American Medical International, to construct and operate the proposed facility. OBMH is a Florida nonprofit corporation. It operates a 205-bed hospital in Volusia County, Florida, and renders medical services to residents of Volusia County and surrounding areas. OBMH presently renders ambulatory surgical services on an outpatient basis in connection with its surgery department. MEMO is a special taxing district. It operates a 345-bed hospital in Volusia County, Florida, and services residents of Volusia County and surrounding areas. HEM has a same-day surgery program and renders ambulatory surgical services through this procam on an outpatient basis. Ambulatory surgical services can be performed either in a hospital- based setting such as operated by OBMH and HHMC, or in a freestanding facility such as proposed by SSDB. HHMC presently has 12 general-purpose operating rooms. The HHMC same-day surgery program utilizes these rooms, but has a separate admitting area and waiting room that is utilized for inpatient surgery cases. OBMH has four general-purpose operating rooms. Outpatient or ambulatory surgeries are regularly performed in these rooms. There are presently 41 general-purpose operating rooms in Volusia County's eight hospitals. Outpatient or ambulatory surgical procedures are performed in these rooms. The Florida Health Care Plan is a health maintenance organization located in Volusia County. It has three operating rooms here inpatient or ambulatory surgery procedures are performed for members of the organization. The Neuman Dye Institute is a freestanding ambulatory surgical center licensed by the Department. It is located in DeLand, Volusia County, Florida. It has two operating rooms which are used for treatment of eye disorders. Approximately 15 percent of the surgeries performed in hospitals in Volusia County during the year August 1, 1982, through July 31, 1983, were done on an outpatient basis. The total number of surgical procedures performed in Volusia County has increased only slightly during the past three years. The number of impatient procedures has decreased, while the number of outpatient procedures has increased rather dramatically. This increase reflects a national trend which increasingly favors ambulatory or outpatient surgeries. It is likely that the number of outpatient cases as a percentage of total surgeries will continue to increase in Volusia County. The 15 percent figure for outpatient surgeries relates only to those procedures conducted in a hospital setting. It does not include procedures performed at the health maintenance organization, the Neuman Eye Institute, or in physicians offices. One major source of patients for ambulatory surgery programs is elective plastic surgery procedures. Two of the plastic surgeons who practice in Volusia County have their own operating rooms where ambulatory surgical procedures can be conducted. These physicians are not likely to use a separate, freestanding facility. The remaining plastic surgeons in Volusia County have utilized the same-day surgery facility at HHMC and have expressed satisfaction with that program. Existing facilities in Volusia County are adequate to accommodate the anticipated growth and the number of outpatient or ambulatory surgeries that will be performed during the next three years in Volusia County. Hospital surgical facilities in Volusia County are significantly underutilized at present. Existing facilities have the capacity to accommodate a more dramatic increase in total surgical procedures and in outpatient surgical procedures than is anticipated over the next three years. Given the existence of the hospital facilities, the Neuman Eye Institute, the health maintenance organization, and operating rooms located in physicians' offices, adequate facilities exist to accommodate the increased demand for outpatient surgeries that is anticipated in Volusia County. SSDB is proposing to offer its services to the public during the first year of operation for an average charge of $490 per procedure. The cost would increase to $540 for the second year. The average per-case cost for outpatient surgeries at HHMC is $393. The average per-case cost at OBMH is $439. Given the fact that one case can Involve multiple procedures, it is evident that existing facilities in Volusia County are charging less for ambulatory surgical services than SSDB proposes to charge. While some increases in present charges are likely, given general trends, it is not likely that HHMC or OBMH will charge as much for outpatient surgical procedures as SSDB proposes to charge. It has been asserted that HHMC's charges for outpatient surgeries are inadequate to cover HHMC's costs and that the charges are being kept low artificially. The evidence is to the contrary. HHMC's charges for outpatient surgeries are adequate to meet the facility's expenses. The facility proposed by SSDB does not present any cost savings to patients. Services at the proposed facility would be more expensive than the same services at existing facilities in Volusia County. Freestanding surgical centers have generally presented some advantages to physicians no consumers. In many places, outpatient surgeries are difficult to schedule in a hospital setting because they are susceptible of being bumped by surgeries that are considered more urgent. Furthermore, in many locations, physicians have had difficulty scheduling their outpatient surgeries in blocks of cases so that they can perform them more efficiently. Those problems have not occurred in Volusia County. Physicians who regularly perform outpatient surgeries in hospitals in Volusia County have been able to schedule their cases in blocks and have experienced no difficulties with bumping. SSDB has projected that its proposed facility would experience an acceptable loss during its first year of operation, but that it would show a net profit during its second and third years of operation. These estimates are based upon projections that 2,160 procedures would be performed at the facility at an average rate per procedure of $490 during the first year and 2,640 procedures at an average rate of $540 during the second year. These projections are unrealistic. The projections contemplate that approximately one-third of all outpatient surgeries in Volusia County would be performed at the proposed facility. The projections also contemplate a very dramatic increase in the number of outpatient surgeries and that more than 60 percent of the increased outpatient procedures would be done at the proposed facility. While it is likely that the number of outpatient surgeries performed in Volusia County and elsewhere will continue to increase as a percentage of total surgeries and that eventually as much as 30 percent of all surgeries performed in Volusia County will be done on an outpatient basis, the increase is not-likely to occur in a single year. Even if It did, it is unlikely that local physicians and consumers cold so dramatically reject present facilities as SSDB projects. Indeed, there is no evidence from which it could be concluded that there is any dissatisfaction on the part of physicians or consumers in Volusia County with present facilities. The evidence is to the contrary. A second reason why the projections are inaccurate is that in making the projections SSDB ignored the existence of the Neuman Eye Institute, the health maintenance organization, and operating rooms that have been established in physicians' offices. A third reason is that SSDB proposes to provide services at a higher cost than at existing facilities. A fourth reason is that SSDB has underestimated the proportion of Medicaid and Medicare cases that are likely to be performed at the facility at a cost that is less than the average cost per procedure proposed by SSDB. It is unlikely that SSDB could operate at a profit during its first three years of operation. At the time that SSDB filed its letter of intent and application with the Department of Health and Rehabilitative Services, there was no local health council in existence Volusia County, Florida. SSDB did not file a copy of its letter of intent or application with the local health council and would have had no place to file it if it attempted to do so.
Recommendation That a final order be entered by the Department of Health and Rehabilitative Services denying the Application for Certificate of Need filed by Surgical Services of Daytona Beach, Inc. RECOMMENDED this 31st day of October, 1983, in Tallahassee, Florida G. STEVEN PFEIFFER Assistant Director 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 31st day of October, 1983. COPIES FURNISHED: Fred Baggett, Esq. Michael J. Cherniga, Esq. Post Office Drawer 1838 Tallahassee, Florida 32302 Jay Adams, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Richard B. Orfinger, Esq. 619 North Grandview Avenue Daytona Beach, Florida 32018 Harold C Hubka, Esq. Post Office Box 5488 Daytona Beach, Florida 32018 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent, SA-PG Sun City Center, LLC, d/b/a Palm Garden of Sun City (hereinafter "Palm Garden" or the "Facility") failed to follow established and recognized practice standards regarding care to its residents; and whether Respondent failed to comply with the rules governing skilled nursing facilities adopted by Petitioner, Agency for Health Care Administration (hereinafter "AHCA" or the "Agency"). If the answer to those questions is in the affirmative, then there is an issue as to what penalty should be imposed on Respondent. HOLDING: There is no competent and substantial evidence that Palm Garden failed to follow established practice standards that resulted in harm to its residents and failed to comply with rules governing skilled nursing facilities, or that otherwise warrants a fine or Conditional rating. Palm Garden was marginally deficient in two minor areas concerning their own policies, but neither violation is a Class II deficiency, nor warrants imposition of a sanction.
Findings Of Fact AHCA is the state agency responsible for licensing and monitoring skilled nursing facilities in Florida. Part and parcel of its duties is the inspection of all facilities on an approximately annual basis. Further, AHCA may conduct a survey of a facility upon receipt of a complaint from a third party about operations or conditions at a specific facility. Palm Garden is a 120-bed skilled nursing facility located in Sun City, Florida. The Facility provides services to private pay residents and is also certified to provide services for residents under the Medicaid and Medicare reimbursement programs. At all times relevant hereto, Palm Garden was operating under a Standard nursing home license. On April 26 through 30, 2010, AHCA conducted an annual survey at the Facility. During the course of the survey, AHCA surveyors made findings concerning two allegedly deficient practices by the Facility. The deficiencies are identified as follows: (1) One resident, identified herein as Resident 68, complained of burning on urination and said no treatment was offered to relieve the pain; and (2) One resident, identified herein as Resident 138, had wounds on his skin that his family believes were not properly treated. During the survey, Resident 68 purportedly complained to a surveyor that she was currently having pain when she urinated and was not being treated for the condition. The surveyor reviewed the resident's chart and determined that Resident 68 had previously complained of urination pain on April 10, 2010. In response to her complaint, a Diascreen test was performed on that same date. The test came back negative for urine infection. The test was normal in all regards, except for glucose level. The resident was at 250 mg/dL (milligrams per deciliter) of glucose when the normal range is between 50 and 150 mg/dL. The Agency expert opined that the glucose level discrepancy renders the test result less reliable. In her opinion, the report would be inconclusive as to whether a urinary tract infection ("URI") existed. There are, as the Facility's expert opined, other conditions, including diabetes, which can cause a high glucose rating. Resident 68 suffered from diabetes at the time the test was done. On balance, it appears that the test was viable. On the date the Diascreen test was performed, a checklist for potential URI was placed in the resident's medication administration record. That checklist set forth a protocol to follow over the next 72 hours in order to better assess the resident's condition. There is no evidence the protocol was followed. The Facility's infection control nurse, Sue Fuller, admitted that sometimes it is difficult to get all nurses to strictly follow established procedures. However, Resident 68 was receiving 24-hour care by the Facility and was monitored regularly as part of that care. The resident's chart does not indicate any further problems concerning urination pain until April 27, 2010, i.e., day two of the annual survey. On that date, there is a doctor's note indicating dysuria, i.e., painful urination condition. The doctor prescribed Pyridium, a urinary antiseptic (not an antibiotic) for treatments. The physician did not order any additional tests or other treatment. It is apparent a physician was involved in Resident 68's care, but he did not diagnose a UTI. AHCA concluded from its investigation that Resident 68 suffered actual harm between April 10 and April 27, 2010, because there is no documentation that the resident's pain was being addressed. However, Palm Garden charts by exception, meaning that they only place into the chart events which are abnormal or negative. Ignoring the issue of whether that is the best way to chart a resident's care, the absence of chart notations relating to URI or painful urination means, from the Facility's perspective, that there was no complaint of pain on the days it was not mentioned. The resident was visited by a physician on April 16 and 22, 2010, but the doctor's notes do not indicate a complaint concerning pain when urinating. The resident's chart does indicate that Resident 68's activities of daily living, meal consumption, and therapy records reflect normal activity without any notable exceptions. It is unlikely an elderly person with an untreated UTI would be able to pursue normal activities. AHCA did not independently ascertain whether Resident 68 experienced pain during the period between April 10 and April 27, 2010. The Agency's conclusion in that regard is based on pure speculation by the surveyor. There is no competent evidence that there was harm to the resident.2 The resident purportedly told the surveyor that she (resident) had experienced pain during that time, but the clinical records do not support that claim.3 During the survey, Resident 138 was noted to have two skin wounds on his buttocks. The resident's wife had complained to surveyors about the wounds because she did not believe appropriate treatment was being provided by the Facility. A surveyor contacted the Facility's wound nurse to inquire about the wounds, which the surveyor believed to be pressure sores. No measurements had been taken of the wounds, a deficient practice from the surveyor's perspective. The surveyor stated, "And they were Stage II pressure ulcers. I mean, she was saying they were excoriations, but they were on the bony prominence. It was a Stage II. It wasn't very deep when I saw it. The one on the left buttocks was irregular, and the one on the right buttocks was smaller. I didn't see any drainage and there was no odor and it was actually superficial. It would be a Stage II pressure ulcer." (See Transcript, page 84.) In fact, the wounds were considered excoriations, rather than pressure sores by the Facility. The Facility's director of nursing, who was very familiar with Resident 138 and had examined him prior to and during the survey, described the wounds as excoriations based on the way they were healing. Excoriations are not normally measured because they change rapidly and tend to heal quickly. Conversely, pressure sores must be measured as a part of their on-going treatment because they heal slowly and must be monitored. The surveyors found the wounds to be very small and superficial. If they were pressure sores, they would have been Stage I sores. Stage I pressure sores do not blanch. To blanch means that if pressure is applied to the area, blood would rush back after the pressure is released. The wounds on Resident 138 were personally blanched by the Facility's director of nursing.4 There are other wounds that look like pressure sores, but actually come about due to other causes. For example, a sore may occur when a person lies in urine, thus, agitating the skin. Sores may be caused by frequent contact with liquids and by residents being moved in their beds. There is no mention in Resident 138's medical chart of pressure sores. Rather, the doctor's notes refer to the resident's wounds as open sores or excoriation. At one point the Wound Treatment Evaluation Record for the resident listed a Type I and a Type II for wound type and pressure ulcer stage. However, that notation was later indicated as an error by the wound nurse. There is no competent medical evidence that Resident 138's wounds on his buttocks were pressure sores. Nonetheless, the surveyors observed nursing staff treating Resident 138's wounds and found some deficient practices. A treating nurse put on gloves after setting up her treatment table. The nurse then reached back and closed the curtain around the resident's bed (a proper practice), but did so with her gloved hand. That action would desterilize the glove. She then began treating the resident without re-washing her hands or re-gloving. The nurse then discarded the wound dressing and changed gloves. However, she did not wash her hands before changing gloves. She then poured saline on the wounds as required. The surveyor at this point noted what she believed were two wounds, neither of which was draining or had an odor. The wounds were superficial, not deep, according to the surveyor. At that point, the nurse cleaned both wounds using the same piece of gauze. She then applied dressing to the wounds, completing her treatment. The surveyor found that touching the curtain with a gloved hand was an infection control violation. So too was the cleaning of two wounds using the same piece of gauze. The Facility opines that the treatment process was not a sterile situation, until such time as the wound had been cleaned and dressed. Touching the curtain before that process and changing gloves without washing would not necessarily be deemed infection control issues, although transferring germs from the curtain to the wound area was a possibility. The wound area was not a pressure sore, thus did not contain infection. It was, therefore, proper to wash the wound area with the same gauze without violating infection control procedures. It is the opinion of the AHCA surveyor that Resident 138 had two wounds. She believed one wound was smaller than the other and that neither of them were open or had odor, but that each of them was a Stage II decubitus ulcer. It is the opinion of the Facility that there were no decubitus ulcers on the resident. Rather, the resident had an area of excoriation that was treated pursuant to the doctor's orders. Based on the greater degree of personal involvement with the resident and the confirmation of their opinion by the treating physician, the Facility's perception is given greater weight. A number of treatments were used to address Resident 138's wounds. An order for hydrocolloid was entered, followed by elimination of the hydrocolloid in favor of optase jell, then discontinuance of the optase jell in favor of methylex. The Facility properly followed the physician's prescribed treatment for this resident. No persuasive, non- hearsay evidence was presented as to the status of Resident 138's wounds as of the date of the final hearing, so there can be no finding as to whether the wounds healed (an indication of excoriation, rather than decubitus) or not (a contrary indication).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, denying the imposition of a fine or a Conditional license against Respondent, SA-PG Sun City Center, LLC, d/b/a Palm Garden of Sun City, and dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
The Issue The issue for determination is whether the Petitioner is liable to the Agency for Health Care Administration ("Agency") for Medicaid reimbursement overpayments and related fines, costs, and interest.
Findings Of Fact The Agency is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. The Petitioner provides physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 037381800. The Agency sent the Petitioner a Preliminary Agency Audit report on June 30, 1998, notifying him of a preliminary determination of Medicaid overpayments in the total amount of $21,156.35. The Agency sent the Petitioner a Final Agency Audit Report on October 28, 1998, confirming the Agency's determination of Medicaid overpayments in the total amount of $21,156.35. The Agency's determination of overpayment was based upon findings that obstetrical echography services "were billed and paid in violation of Medicaid policy governing those services." The Agency performed an audit of the Petitioner for the period January 1, 1993, through October 31, 1996. According to the Agency audit report, the Petitioner's records contained violations of two billing policies outlined in the Medicaid Physician Provider Handbook. The first violation was that the Petitioner billed and received payment for more than one initial ultrasound procedure per pregnancy, and the second was that the Petitioner failed to submit documentation of medical necessity for additional procedures. During the years examined by the audit, Medicaid policy allowed providers to bill for more than one complete initial procedure per patient, so long as providers filed supporting documentation of medical necessity. However, the documentation submitted by the Petitioner indicated that the additional ultrasound procedures he conducted were mere follow-up procedures, instead of medically necessary complete procedures. According to the terms of the Medicaid Physician Provider Handbook, "[i]f more than two (or any combination of two) ultrasounds are performed during a pregnancy, they must be billed with modifier-22 and a report documenting the medical necessity for the procedure." The Petitioner submitted bills for more than two ultrasound treatments per recipient without explaining why the procedures were medically necessary. The Agency audit report established that the Petitioner has been overpaid as a result of the Petitioner's erroneous billings. The total overpayment to the Petitioner was calculated as "the difference between what he got paid for a complete procedure and the amount that he should have gotten paid for the follow-up." The Agency records received in evidence and the testimony of the Agency's witness establish that the amount overpaid to the Petitioner totaled $21,156.35. The Petitioner, as an authorized provider of Medicaid services, had signed a Medicaid Provider Agreement. That agreement states, among other things, that the "provider agrees to submit Medicaid claims in accordance with program policies." When the Petitioner became a certified Medicaid provider, he received a handbook outlining billing procedures for the performance of diagnostic ultrasounds. The Petitioner admitted that he knows "little about billing," that he "didn't involve [himself] in the billing at all," and that he has never read the Physicians' Current Procedural Terminology book, which sets forth the universally used billing codes.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Agency issue a final order requiring the Petitioner to reimburse the Agency for overpayments in the total amount of $21,156.35, plus such interest as may accrue as of the date on which payment is made. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 January, 2001.
Findings Of Fact Respondent, Mrs. Gloria Miller Gilbert, operates an Adult Congregate Living Facility known as Miller's ACLF. She is licensed to operate that facility by Petitioner Department of Health and Rehabilitative Services and has been so licensed since December 14, 1980. Mrs. Gilbert is a registered nurse. She has more than twenty-two years of nursing experience. Her specialities are obstetrics and geriatrics. Mr. Harley L. Carlton, who is 83 years old, was a resident at Miller's ACLF on December 14, 1980. Mr. Carlton had in the past been a regular resident at Miller's but most recently was living at home with his son. His son had requested that Mrs. Gilbert keep Mr. Carlton for the weekend of December 13-14, 1980. She agreed to make an exception to her normal policy of not accepting short term residents only because she knew Mr. Carlton from the past. At approximately 8:30 AM., on December 14, 1980 he was walking down a stairway in Respondent's facility. Mr. Carlton abruptly fell and hit his head on an open door. Mrs. Gilbert, who was standing near the bottom of the stairs, immediately ran over to where he lay. She asked him if he was all right. He said, "Yes." He stood up and Mrs. Gilbert brought a wheelchair for him to sit in. She then took him into the kitchen to examine his head under a good light. She observed a laceration of his scalp which looked as though the scalp had been scuffed and torn back. At this point Mrs. Gilbert decided that Mr. Carlton needed to go to the hospital emergency room for treatment. In her opinion the laceration required sutures. Mrs. Gilbert then told Mr. Carlton that she was going to call the emergency squad to take him to the hospital. He replied, "No, I am not going to the hospital. Call Amos. Get Amos over here." Amos is Mr. Carlton's son. Mr. Carlton was fearful that if he went to the hospital his hair would be cut in order to treat his head. Throughout the morning he refused Mrs. Gilbert's repeated offers to take him to the emergency room. Between 9:00 to 9:30 A.M., Mrs. Gilbert made a telephone call to contact Mr. Amos Carlton at his home. Tommy Carlton, Amos' son, answered the call and explained that Amos was in Sunday School. Amos was not expected home until 11:30 A.M. or noon. Believing that she could persuade Mr. Carlton to go to the emergency room, Mrs. Gilbert told Tommy that she would take his grandfather there. Her belief was incorrect. Mr. Carlton was adamant in his refusal to go for treatment. Tommy went to the hospital and waited approximately one and one-half hours but neither Mr. Carlton nor Mrs. Gilbert appeared. Tommy then left the hospital and went to Miller's ACLF where he saw his grandfather. Mrs. Gilbert who had taken a wheelchair across the street was not present when Tommy arrived. When Tommy saw his grandfather he observed the laceration on his head and saw two stitches across the wound. There was no evidence presented to show that Mr. Carlton did not have any sutures in his head when he was accepted for the weekend at Miller's ACLF. Mr. Carlton was unresponsive to Tommy's attempts to converse with him. This is not Mr. Carlton's usual behavior. Although he showed signs of what a layperson would call senility, he was usually willing to talk with Tommy. Tommy then went home at 12:30 P.M. and met with his father, Amos. Together the Carlton men returned to Miller's ACLF. Again Mrs. Gilbert was not present. Upon seeing the two stitches in Mr. Carlton's wound both Amos and Tommy believed that he had already seen a physician. They asked an aide at Miller's for the name of the doctor who put the stitches in so they would know who should later remove them. The aide who said she was not present at the time of Mr. Carlton's fall did not know. Both Amos and Tommy took Mr. Carlton home. After half an hour they became concerned about his condition and took him to the emergency room at Putnam Community Hospital. The two sutures of unknown origin which had been placed in Mr. Carlton's wound here removed by the attending physician, Dr. McIntyre. He resutured the laceration. Mr. Carlton was then released to go home with Tommy and Amos. Several days later it was necessary for Mr. Carlton to return for an examination of neck pains and to have the sutures in his head wound removed. At the time of his injury Mr. Harley Carlton had not been adjudicated mentally incompetent. He had no legal guardian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order dismissing the Administrative Complaint against Mrs. Gloria Miller Gilbert. DONE and ORDERED this 24th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1982. COPIES FURNISHED: James A. Sawyer, Esquire Sub-District Counsel Department of Health and Rehabilitative Services 3001 Southwest Broadway Ocala, Florida 32671 Mrs. Gloria Miller Gilbert 418 Emmet Street Palatka, Florida 32077
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, through the Agency For Health Care Administration, and formerly the Department of Business and Professional Regulation, has been the state agency in Florida responsible for the regulation of the practice of medicine and the licensing of physicians in this state. Respondent has been a physician licensed in Florida under license number ME 003824. Starting on January 12, 1988 and continuing thereafter until on or about March 16, 1988, Respondent treated Patient #1 for a condition known as Dupuytren's Contracture of the left hand. This conditions results in the thickening of scar tissues and contracture of fibrous bands in the palm and fingers which pulls the fingers into the palm and constricts their ability to flex or straighten out. Patient #1 had suffered from this condition since 1982. In 1984, a surgeon in New Jersey performed Dupuytren's Contracture release surgery on the patient's right hand, but the results were not altogether satisfactory. Respondent first saw Patient #1 on January 12, 1988. At this initial visit, Respondent discussed the implications of the proposed surgical procedure and advised the patient of the possible adverse consequences thereof. He noted that because the patient had delayed seeking treatment for the left hand, there was a strong possibility of complications as a result of surgery which could involve nerve damage and infection in addition to a possibility of vascular damage and necrosis of the tissue of the hand. On February 10, 1988, Respondent performed a Dupuytren's Contracture release on the patient's left hand at the Gulf Coast Orthopedic Center, (GCOC). This surgery is a complicated, delicate and difficult procedure which in the instant case, was made even more difficult by the extent of the existing contracture of the patient's hand. After the completion of the surgery, Respondent placed Patient #1 on Keflex, an antibiotic, and also prescribed Darvocet for pain. Respondent saw Patient #1 again on February 11, 1988. At this time, the patient was complaining of pain in the hand and of the tightness of the bandage. Respondent examined the wound at this time, cleaned it, placed a plastic platform splint on the hand and re-bandaged it. The patient was also prescribed Percodan for pain and advised to continue the Keflex at a 1,500 mg/day dosage. Patient #1 returned to Respondent again on February 12, 1988, still complaining of pain and that the bandage was too tight. After again examining the hand, Respondent re-bandaged it, placing gauze between the patient's fingers and the splint. He also gave the patient another prescription for Percodan for the pain. On February 17, 1988, the patient again came to the Respondent's office for his third postoperative checkup. When Respondent removed the bandage, he noticed a small greenish area on the palm which was exuding what appeared to be white pus. Respondent thoroughly cleaned the wound by placing the hand in a whirlpool bath of water and Betadine solution for approximately 45 minutes. He did not culture the green area or the white exudation. When he released the patient that day, however, he increased the Keflex dosage to 2,000 mg/day but refused to give him a prescription for additional Percodan for the pain. Instead, he told him to take extra strength Tylenol. He also told the patient to keep the hand elevated but did not suggest the patient call in the event of pain. Respondent did not see Patient #1 again until February 24, 1988 even though the pain had increased during that period. The patient, however, did not call the Respondent to complain, believing the increase in pain was the result of the removal of the prescription for Percodan and the substitution of a lesser strength substance, Tylenol, therefor. The patient assumed, from the Respondent's prior comments, that the pain was normal and to be expected. When Respondent saw Patient #1's hand again on February 24, 1988, he became excited because it appeared there was infection in the left palm which had spread to the PIP joint of the middle finger at which point there was some necrosis. Respondent appeared upset because the Patient had not called him when the pain continued or increased. Patient #1's wife had asked that the patient do so, but the patient decided to wait until the next scheduled appointment on February 24, 1988. At this time, Respondent removed the sutures from the patient's hand and irrigated the wound with a mixture of saline solution and an antibiotic, Kepsol. A culture was also taken at this time. Since Respondent did not have hospital admitting privileges in the area, he arranged through Dr. Alea, an associate in his clinic who did have such privileges, to have Patient #1 admitted to Bayonet Point Hospital for treatment of the infection. The treating physician there was Dr. K. Sundaresh, an infectious disease specialist. The admission was on February 24, 1988. Dr. Sundaresh placed Patient #1 on prolonged antibiotic treatment, obtained a bone scan to document any infection, and directed debridement, incision and drainage of the wound. The bone scan report indicated that Patient #1 "most likely" had developed osteomyelitis, a bone infection, at the base of the middle finger on the left hand. X-rays taken around the same time, on March 1, 1988, revealed findings consistent with osteomyelitis. Following the hospital admission, Respondent departed for Arizona for three days to attend a previously scheduled medical seminar, returning on February 27, 1988. While he was gone, however, Respondent spoke daily with Patient #1 by telephone and consulted with the physicians who were treating him. Dr. Alea suggested that Patient #1 be examined by another orthopedic physician, Dr. Moss, but when Dr. Moss came to see Patient #1 in the hospital, he was told the patient had already seen Respondent. The consult report prepared by Dr. Moss reflects no consult was had because the patient "wants treatment as now arranged under Dr. Bonati." Records of GCOC indicate that on March 1, 1988, Respondent spoke with patient #1's daughter by telephone indicating that if the patient did not come to the clinic that day, he would be released from Respondent's care. In fact, the patient did go to see Respondent on March 1 and 2, 1988 on pass from the hospital, but claims he did not refuse treatment by Dr. Moss. When Respondent saw Patient #1 in his office on March 1, 1988, after noticing a greenish material on the patient's left palm which he thought might be pseudomonas, he elected to continue the antibiotic treatment that was initiated in the hospital. When the patient was released from the hospital on March 4, 1988, the wound was healing well. Dr. Sundaresh arranged for the patient to continue the intravenous antibiotic treatments through a home nursing services. The final diagnosis at the time of discharge was osteomeleyitis of the middle finger of the PIP joint on the left hand due to pseudomonas aeruginosa infection. Respondent saw Patient #1 in his office on March 7, 9, and 16, 1988, after the patient's discharge from the hospital. The patient was scheduled for another visit on March 22, 1988, but cancelled that appointment and also elected to discontinue the physical therapy Respondent had prescribed for him at GCOC. The hospital records show that while there, Patient #1 received daily physical therapy treatments consisting of whirlpool treatments to the hand and sterile dressings, starting on his admission on February 24, 1988, but no range of motion exercises. The physical therapy prescribed at GCOC by Respondent starting on March 8, 1988 included range of motion exercises which he continued until March 15, 1988. At the time of the last visit, on March 16, 1988, Respondent noted that the patient's wounds were healing well, but there was some limited range of motion. One of Petitioner's experts, Dr. Nadler, a board certified orthopedic surgeon with over 17 years experience, who is in practice with Dr. Angelides, to whom he refers all his hand surgery cases, opined that the standard of care for orthopedic surgery such as performed here by Respondent would be for the surgeon to have the ability to admit and follow the patient in a hospital if complications should arise. At very least, the surgeon should have the ability to make arrangements for another orthopedic surgeon to follow the patient in his absence. According to Dr. Nadler, it is not at all unusual for infection to occur in Dupuytren's Contracture release surgery. He concluded that Respondent fell below the standard of care when he performed a complicated surgical procedure on Patient #1 without having the personal ability to admit his patient to a hospital or to follow his patient's progress in the hospital in the event complications, such as an infection, should occur. He also concluded that Respondent's failure to have another orthopedic surgeon available to follow the patient while in the hospital was below standards as well. This opinion was shared by Petitioner's other expert, Dr. Visconti, a board certified orthopedic surgeon who, by his own admission, however, is not a hand surgeon specialist. Respondent's expert, Dr. Angelides, a board certified orthopedic surgeon who specializes exclusively in surgery to the hand and upper extremity, indicated that the presence of a green wound which exudes pus is consistent with infection. The standard of care for treating such an infection consists of cleaning the wound, obtaining cultures of the suspected infection, and seeing the patient again within a day or two for follow-up examination. In Angelides' opinion, Respondent's leaving the bandage on Patient #1's hand from the time of surgery on February 17 through February 24, without taking it off to check on the course of infection was not the way he would have handled the situation. However, he did not go so far as to state the Respondent's failure to do so was inappropriate, and he could find no impropriety in the way Respondent managed this case. Recognizing that the case presented here was about as severe an example of Dupuytren's Contracture as can be seen, Dr. Angiledes opined that the result achieved by Respondent was quite good considering the severity of the problem. He was not put off by the development of necrosis here, accepting that as a common complication in cases of this nature. He was satisfied by Respondent's calling in an infectious disease specialist and with the continuation of antibiotics administration after discharge through home health care. In his opinion, the surgery was appropriate and the ensuing complications common. The admission of the patient through an intermediary was not, to him, inappropriate so long as, as here, the patient continued to be seen by an infectious disease specialist. In substance, Dr. Angelides could see no problems with this case that were not properly handled and nothing that could have been done that was not done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case finding Respondent not guilty of the offenses alleged in the Administrative Complaint and ordering it dismissed. RECOMMENDED this 22nd day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. - 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. - 35. Accepted and incorporated herein. 36. - 38. Accepted and incorporated herein. 39. & 40. Accepted and incorporated herein. 41. & 42. Accepted. 43. Accepted and incorporated herein. 44. & 45. No more than recitations of evidence. & 47. Accepted and incorporated herein. Rejected as a classification of Respondent's treatment as "inappropriate." The deposition cited as authority for that comment does not support it. However, the action described and the time frame in question are accurately noted. Accepted. Accepted as a recitation of the witness' testimony. Rejected as to the description "well supported." & 52. Accepted as restatements of testimony. Accepted. See "50" above. Rejected as not supported by clear and convincing evidence. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted. & 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted and incorporated herein. Not an evidentiary Finding of Fact. - 14. Accepted as restatements of testimony. 15. - 18. Accepted as restatements of testimony. 19. & 20. Accepted as restatements of testimony. 21A. - O. Not proper Findings of Fact. These are more Proposed Conclusions of Law which are drawn by the Hearing Officer independently in that portion of the Recommended Order. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven A. Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Tampa, Florida 33610 Paul B. Johnson, Esquire Johnson & Johnson, Post Office Box 3416 Tampa, Florida 33601 Sam Power Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Oakwood was licensed by Petitioner as a skilled nursing facility. Oakwood operates a 120-bed nursing home located in Eustis, Florida. From June 19 through July 1, 2002, Dorothy Mueller, who at the time was employed by AHCA as a Registered Nurse Specialist, conducted a complaint investigation at Oakwood. She received the complaint from Florida Protective Services of the Department of Children and Family Services (DCFS). Ms. Mueller is Surveyor Minimum Qualification Test (SMQT) qualified. She is currently licensed as a registered nurse in Florida but retired from AHCA in December 2002. Ms. Mueller began the complaint investigation on June 19, 2002. She announced her visit to the facility's administrator, observed residents, interviewed staff, and reviewed records. She requested a sampling of residents' records. The sample she reviewed included the record of Resident D.R. During the course of the complaint investigation, Ms. Mueller did not interview Resident D.R. as she had already been discharged from the facility. Ms. Mueller examined Resident D.R.'s care plans, assessments, nursing notes, and wound care. Nurse Mueller was specifically looking for whether anyone at Respondent's facility was actually looking at the skin of Resident D.R.'s heels because Resident D.R. was wearing TED hose. Because Resident D.R. was at risk for developing pressure sores, Ms. Mueller was concerned that she found no specific preventative measures taken by the facility to help prevent the development of pressure sores on Resident D.R.'s heels.1/ In determining her findings, Ms. Mueller took into consideration the findings of the person from DCFS who had filed the complaint that caused AHCA to send Ms. Mueller to investigate. Additionally, Ms. Mueller also took into consideration notes from Resident D.R.'s family physician and statements he made to her regarding the condition of Resident D.R.'s heels two days after her discharge from Oakwood.2/ Based on Ms. Mueller's findings during this complaint investigation, federal tag F224 was cited against Oakwood. Resident D.R. was admitted to Oakwood on February 24, 2002, following a four-day hospitalization for hip surgery due to a fall at her home which resulted in a hip fracture. Resident D.R.'s hospital records reveal the development of a skin ulcer in her sacral area the morning of February 23, 2002, and that the ulcer worsened before Resident D.R.'s discharge from the hospital on February 24, 2002. Upon admission to Oakwood, Resident D.R. was assessed by Dorothy Gilbert, a Registered Nurse employed by Oakwood. Nurse Gilbert's full skin assessment of Resident D.R. noted two skin ulcers on Resident D.R.'s sacral area with no other skin breakdown. Nurse Gilbert noted that Resident D.R.'s heels were "soft nonreddened." According to Nurse Gilbert, that notation meant that the skin on Resident D.R.'s heels was normal, intact, nonreddened and showed no deterioration. The nurse's assessment form contains a diagram of a person showing front and back with the following instruction: "Skin: Indicate on diagram below all body marks such as old or recent scar, bruise, discoloration, laceration, amputation, decubitus ulcer, and any other questionable marking(s) considered other than normal." Nurse Gilbert made detailed notations and drawings on the diagram indicating any and all skin breakdown of Resident D.R. The foot area of the diagram contained no notation or drawing indicating any skin breakdown on Resident D.R.'s feet upon admission to Oakwood. Another page of the nurse's assessment form is entitled "Braden Scale-For Predicting Pressure Sore Risk." Nurse Gilbert gave Resident D.R. a score of 14 which identified her to be at moderate risk for pressure sores or ulcers. She was at risk for skin breakdown over her entire body, not just her heels, and her care plan accounted for this. Resident D.R. was wearing TED hose at the time of admission and wore them throughout her stay. TED hose are anti- embolism stockings typically used following surgery to enhance blood flow and prevent clotting. Resident D.R. was a petite, elderly woman weighing 83 pounds. Appropriate assessments and interdisciplinary care plans were developed for Resident D.R., including for her existing skin ulcers also referred to as sores or wounds. During Resident D.R.'s stay at Oakwood, one of her existing sacral skin wounds improved and the other wound healed. She received daily wound treatment by the nurses on duty and the wound care nurse measured her ulcers and assessed her skin each Thursday. Cynthia Burbey is an Licensed Practical Nurse employed by Oakwood. She observed Resident D.R.'s heel condition usually every day when she gave her treatment for wound care on her coccyx, and on her shower days which occurred twice a week. While the Certified Nurses Assistants (CNAs) give showers to the residents, the nurses follow the bathing of the resident with a body check/body assessment. Nurse Burbey never saw any skin deterioration on Resident D.R.'s heels, including the day Resident D.R. was discharged. At the time of the discharge, Nurse Burbey did a body assessment from head to toe of Resident D.R. and did not observe any skin deterioration on Resident D.R.'s heels. The CNAs at Respondent's facility play a significant role in observing skin condition and are to report any change in skin condition to the nurses. In addition to their role in observing skin condition at bath time, the CNAs repositioned Resident D.R. every two hours and assisted her in and out of bed each day. She was completely dressed and undressed each day by her attending CNAs who would remove her TED hose and change them. Pressure on skin over bony areas is a primary cause of pressure ulcers or bed sores. Resident D.R. received a variety of services and devices during her stay at Oakwood aimed at reducing the likelihood of bed sores, including knee wedges for both her bed and wheelchair, calf pads for her wheelchair, a pressure reducing mattress, and physical therapy. Because of her petite size, the knee wedge used for her bed resulted in Resident D.R.'s heels being "floated" off her mattress. Resident D.R., also received physical therapy services including range of motion exercises while at Oakwood. The range of motion exercises for her lower extremities would have provided her therapists and restorative aids an opportunity to detect evidence of skin breakdown on her heels, because her heels were touched by the therapists or aides during these exercises. While Resident D.R. wore socks for these therapies, the therapists and aides saw no evidence of staining on her socks, which often happens from drainage from a heel wound, or any evidence that their touching her heels resulted in any pain to Resident D.R. The restorative aides provided Resident D.R. with range of motion exercises six days a week, including the day before her discharge from Respondent's facility. The initial nursing assessment indicating "heel soft, nonreddened" raised Ms. Mueller's concerns that there was no care specifically directed toward Resident D.R.'s heels. However, there is no competent evidence that Resident D.R. had heel wounds either upon admission or which developed during her stay at Oakwood. Accordingly, there was no reason for Oakwood to have a skin care plan specifically addressing Resident D.R.'s heels, particularly in light of the fact that Oakwood had a skin care plan in place for Resident D.R. which was followed. Further, during cross examination, when asked whether the phrase "heel soft nonreddened," was an indicator that Resident D.R. had a problem with her heel, she acknowledged, "I would have to answer yes and no to that." AHCA 's charge of failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers is based solely on hearsay evidence. AHCA's sole witness, the surveyor who conducted the complaint investigation, never observed Resident D.R. at any time, either in Respondent's facility or after her discharge. The evidence presented does not establish that Oakwood failed to have due diligence to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for bilateral pressure sores. There is no competent proof that any heel sore developed on Resident D.R.'s heels while a resident at Oakwood. Moreover, the evidence shows that the nursing staff appropriately addressed the skin care needs of Resident D.R.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Oakwood Center. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2003.
