The Issue Whether, in evaluating the responses to an Invitation to Bid and in making a preliminary decision to award the subject contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact At all times relevant to these proceedings, Respondent has been the duly-constituted school board for Miami-Dade County, Florida. Respondent issued the subject ITB to obtain the services of an organization to screen applicants for employment and existing employees for drug use. Screening of employees subject to the Omnibus Transportation Employee Testing Act (OTETA) was included in the subject ITB. The purpose of the subject ITB was stated as follows in paragraph 1 of the section styled “Special Conditions”: The purpose of this bid is to obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services, both to meet the general requirements for collection and drug screening services and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide. [1] Petitioner and Mercy timely filed responses to the ITB. Following the bid opening on May 23, 2006, Respondent determined that the bid award should go to Mercy, which was the low bidder. After Mercy, Petitioner was the next low bidder.2 Petitioner thereafter timely filed its notice of intent to file a bid protest, which was followed by a timely filed bid protest. Paragraph 4 of the Special Conditions Section of the ITB (paragraph 4) pertained to technical requirements and provided, in part, as follows: TECHNICAL REQUIREMENTS: The following items, which shall constitute proof of technical competency, are requested to be submitted with the bid, or within three (3) days of request: * * * Copies of the certifications/licenses of all collection site staff and laboratory staff who will be handling specimens in the chain of custody as indicated in Attachment B. A copy of the quality assurance program of the testing laboratories, which must encompass all aspects of the testing process as indicated in Attachment B and Attachment E. List all collection sites, which must include the site address and copy of the certification of each site to be considered for this bid. Number of mobile sites available and proof of compliance and/or certification of mobile sites, if applicable. When it submitted its initial response to the ITB, Mercy did not specifically respond to the items listed in subparagraphs b., c., d., and e. of paragraph 4. On May 24, 2006, Respondent wrote to Mr. Rey, Mercy’s, laboratory director and the person responsible for Mercy’s response to the ITB, requesting copies of documents responsive to subparagraphs b., c., d., and e. of paragraph 4. Mercy thereafter timely supplied the requested information. CERTIFICATION Attachment B to the ITB contained the following pertaining to certification: A laboratory must be certified by the United States Department of Health and Human Services (DHHS). DHHS has established comprehensive standards for laboratory policies, procedures, and personnel, which provide quality assurance and performance testing specific to urine testing. To be certified, a laboratory must be capable of testing for, at a minimum, the following classes of drugs: Alcohol, Marijuana, Cocaine, Opiates, Amphetamines, Barbiturates, Benodiazepines, Methaqualone, and Phencyclidines, as listed in Attachment E. There was a dispute between the parties as to whether Mercy demonstrated it had the requisite certification. That dispute is resolved by finding that Mercy demonstrated that it had the requisite certification to perform all testing other than the OTETA testing.3 Mr. Rey testified, credibly, that Mercy intended to subcontract out the OTETA testing to a laboratory certified to perform such testing. Mercy did not identify the entity that would conduct the OTETA testing, however, there is nothing in the ITB to prohibit such subcontracting and there is nothing in the ITB that would require a bidder to have such a subcontract in place at the time it submitted its response to the ITB. Further, there is no requirement in the ITB that the bidder identify the entity that would serve as the subcontractor for the OTETA testing.4 There was also a dispute as to whether the certifications provided by Mercy would suffice as certification for the contemplated collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. Mr. Rey testified, credibly, that the collection sites could be operated by Mercy pursuant to its existing certifications. MEDICAL REVIEW OFFICER Attachment B contained the following in paragraph 17 under the heading of “Compliance”: 17. Reporting and Review of Results. (The service of a Medical Review Officer (MRO) is required to review ALL [sic] test results. The MRO may NOT [sic] be an employee of the laboratory. Mercy did not identify the person or organization that would serve as the MRO in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non- responsive because Paragraph 17 is merely a statement of industry practice. The ITB did not require bidders to identify the person or organization that would serve as the MRO for the winning bidder. THIRD PARTY ADMINISTRATOR A laboratory performing the type screening contemplated by the ITB must have a third party administrator (TPA) to administer the drug testing program. As with the MRO, a TPA must be independent of the laboratory to avoid conflicts of interest. Mercy’s response did not identify the person or organization that would serve as the TPA in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non-responsive because the ITB did not require bidders to identify the person or organization that would serve as the TPA for the winning bidder. IDENTIFICATION OF COLLECTION SITES Under the heading of Collection and Screening Site Parameters in Attachment B, Technical Requirements, the ITB provides, in part, as follows: Collection and screening sites shall be accessible Monday through Friday from 8:00 to 4:30 p.m., at a minimum, and shall meet the following parameters: The following locations [sic] parameters are examples of locations, which shall comprise the areas for collection and drug screening to insure convenience for applicants and employees: Area 1. East of 27th Ave. from Flagler St. North to 215th St. Area 2. West of 27th Ave. from Flagler St. North to 215th St. Area 3. East of State Road 836, south to intersection of US 1, then south to 392nd St. Area 4. West of State Road 836, south to intersection of US 1, then south to 394th St. * * * 4. At least one site in the North end of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Mercy’s response to the foregoing was to provide specific addresses to two locations that were presently available as collection sites, to advise that it had a mobile collection site, and to provide three approximate locations where it would establish collection sites if awarded the bid. There was a dispute between the parties as to whether Mercy was responsive to the foregoing item pertaining to collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. The ITB did not require bidders to provide specific addresses for collection sites, nor did it require bidders to specify the hours of operation of each proposed collection site. The testimony of Ms. Fahmy and Ms. Jones established that Mercy adequately responded to this item of the ITB. BREATH ALCOHOL TESTING Mercy’s response to the ITB did not separately address breath alcohol testing or certification for such testing. Mercy’s response did include bid prices on specified breath alcohol testing procedures as required by the ITB. There was no requirement that Mercy provide a separate certification for breath alcohol testing. Petitioner is a TPA, not a laboratory, and is the existing provider for the drug screening services contemplated by the ITB. Petitioner intended to subcontract all laboratory work required by the ITB. Petitioner’s response to the ITB was responsive. Mercy’s response to the ITB was also responsive. Mercy committed to comply with all requirements of the ITB and it established by its responses that it had the wherewithal to meet that commitment. Mercy was the low, responsive, responsible bidder on the ITB.
Conclusions For Petitioner: Holiday Hunt Russell, Esquire The Law Offices of Holiday Hunt Russell, Chartered 1930 Harrison Street, Suite 309 Hollywood, Florida 33020 For Respondent: Stephen L. Shochet, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s bid protest and awarding the ITB to Mercy. RESERVATION OF JURISDICTION Jurisdiction is reserved to rule on Petitioner’s Motion for Attorney’s Fees and Costs following Respondent’s entry of a Final Order in this matter. DONE AND ORDERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2006.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 67443, based on a two-count violation, Sections 458.331(1)(m) and (t), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and the testimony of witnesses presented in this proceeding, the following facts are found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 67443 by the State of Florida. At all times material hereto, Respondent practiced as an emergency room physician. When treating a patient, an emergency room physician has a duty to rule out the most serious life- threatening conditions. Pulmonary embolism is a blood clot, which forms in or travels to the lungs. It is a life-threatening condition. A thrombus is a blood clot that forms at a particular site, while an embolus is a piece of a thrombus that breaks off and wedges itself in another artery. The most common type of thrombus that causes pulmonary embolism is a deep vein thrombus, which originates in the lower extremities (legs). Once a thrombus forms in the leg, an emboli can break off from the thrombus, travel through the bloodstream and wedge itself in the lungs, creating a pulmonary embolism. On June 13, 1995, Patient R.D. presented to the emergency room of the Daytona Beach Medical Center in Daytona Beach, Florida, at approximately 7:35 p.m. Patient R.D. was a 41 year-old obese male who weighed 305 pounds. Patient R.D. presented to the emergency room complaining of chest pain (rated 3-4 on a scale of 10) and shortness of breath beginning at 8:30 a.m. that day. The patient was seen by a nurse who prepared a "triage nursing assessment." The nurse documented the following about Patient R.D.: Chief complaint of nausea and diaphoresis (cold sweat) earlier in the day; pulse rate of 112, which indicated tachycardia; elevated respiratory rate of 28; labored breathing; clear breath sounds; and trace pedal edema. The "Implementation: Nursing Action" noted that Patient R.D. had marked dyspnea (labored breathing). He was immediately placed on oxygen. At 7:40 p.m., Respondent, the emergency room physician on duty, examined Patient R.D. During Respondent's subjective examination of Patient R.D., Respondent documented: Chest pain all day, heaviness in the center of the chest with some nausea, negative vomiting; negative numbness and sweating; negative history of this [sic]; positive shortness of breath all day with chest pain, but can work; negative history of asthma; negative history of heart disease; family history positive for cardiac disease (mother in her 60's); social history (smoked a joint 24 hours ago). The patient reported that despite his complaints, he was still able to work. Patient R.D. was obese and had recently smoked marijuana, two of the secondary risk factors associated with pulmonary embolism. Patient R.D. did not present to Respondent with the classic signs and symptoms of pulmonary embolism. While taking Patient R.D.'s history, Respondent did not document any history of cholesterol levels, cigarette smoking, recent leg injury, prior blood clots, or sedentary time periods. Respondent failed to document important aspects of Patient R.D.'s family and social history. Respondent failed to adequately document the history taken. Respondent performed a complete physical examination of the patient, including an examination of his legs. During Respondent's objective examination of Patient R.D., Respondent documented: lungs clear to auscultation (no rattles or wheezing) with good alveolar BS bilaterally; cardiac S1S2 and distant; abdomen obese and negative tender; legs with 1+ pedal edema; negative CVA tender (no tenderness over kidneys); no nuchal rigidity (no neck stiffness). The patient had no diaphoresis in the emergency room. Respondent then ordered a chest X-ray, an electrocardiogram (EKG), blood work (CBC), and electrolyte panel and cardiac enzymes. Respondent also had a pulse oximetry performed. Major risk factors of pulmonary embolism include: history of malignancy, recent leg injury, prior blood clots including deep vein thrombosis, and sedentary time periods. Secondary risk factors include: obesity and smoking, including marijuana smoking, and elevated cholesterol levels. The signs and symptoms of pulmonary embolism include, but are not limited to, shortness of breath, chest pain or pressure, diaphoresis (sweating), increased respiratory rate, and tachycardia (abnormal rapid heart rate). Although Respondent testified that he considered pulmonary embolism as one of his top five differential diagnoses, the patient's clinical signs and symptoms were insufficient for Respondent to have to rule out a pulmonary embolism. As the signs and symptoms of a pulmonary embolism can wax and wane, it is not an easy diagnosis to make. When examining the legs of a patient suspected of having a pulmonary embolism, the standard of care requires a physician to look for swelling, edema, tenderness and a cord, which would be a clotted vein. In order to determine tenderness, a physician must palpate the legs of the patient. Also, when examining the legs, a physician should perform an examination by stretching the calf to look for tenderness (called Homan's sign). Respondent performed a palpation of the patient's legs, but did not perform an examination for Homan's sign. Respondent's physical examination of Patient R.D. was adequate under the circumstances. The standard of care requires that a physician document pertinent positives and negatives in the medical records. Swelling, edema, tenderness and results of palpation are pertinent positives and negatives. Although Respondent performed an adequate physical examination of Patient R.D., Respondent failed to adequately document the physical examination. In this case, the pertinent positives or negatives should have included the results of the leg examination including, but not limited to, swelling, tenderness, palpation for cords and tenderness, and motion of the foot. Specifically, Respondent did not document whether he palpated the legs of Patient R.D., or whether the examination revealed any swelling or tenderness in the legs. Moreover, Respondent did not document Patient R.D.'s respiratory status. Also, Respondent did not document any history of deep vein thrombosis (DVT), which is a pertinent positive or negative. An EKG reveals the rhythm of the heart. Respondent ordered an EKG and reviewed the computer printout of the EKG results, which revealed non-specific ST changes. Respondent noted the non-specific ST changes in his notes. The EKG also revealed sinus tachycardia and S1-Q3-T3 changes. Tachycardia on an EKG is abnormal, unless the cause is determined. In order to treat tachycardia, a physician must determine the underlying cause, which directs the physician to the appropriate treatment plan. Respondent did not determine the underlying cause of Patient R.D.'s tachycardiac condition. S1-Q3-T3 reveals a strain on the right side of the heart. Respondent did not document the tachycardia or S1-Q3-T3 changes, or determine their underlying cause. Respondent did not recommend admission for Patient R.D. even though Patient R.D. had an abnormal EKG. Respondent also ordered blood work, a chest X-ray, and a pulse oximeter test. Respondent and the Radiologist interpreted the chest X-ray as negative. The patient's pulse oximeter initially revealed a 91 percent rating, a subsequent pulse oximeter revealed a 92 percent. A 91-92 percent pulse oximeter is low in a 41 year-old male, unless the patient has a long standing history of chronic lung disease. Respondent did not order arterial blood gases or a lung scan for Patient R.D. An arterial blood gas test is more accurate than a pulse oximeter. Respondent should have ordered an arterial blood gas only if the pulse oximeter did not improve. After the breathing treatment, Patient R.D.'s pulse oxmeter was 96 percent, which is a significant improvement. A physician must order a lung scan after looking at a constellation of all factors put together, including increased heart rate, low pulse oximeter, increased respiratory rate, abnormal EKG and symptoms of chest pain and shortness of breath. Respondent did not order a lung scan for Patient R.D., even though it could have been ordered. A lung scan is the standard regimen for diagnosing a pulmonary embolism. At approximately 8:00 p.m., Patient R.D. was nauseated and vomited light green bile. Respondent treated Patient R.D. with Proventil, a nebulizer, which is used to treat and relieve bronchospasms. Patient R.D. felt better after the Proventil treatment. Respondent diagnosed Patient R.D. with Hyperactive Airway Disease and Diabetes. Although an emergency room physician does not admit patients, an emergency room physician can recommend to the private physician that a patient be admitted for further evaluation. A private physician relies heavily on the information presented by the emergency room physician. If the private physician disagrees with the emergency room physician recommendation, then the private physician must come to the hospital to personally examine and discharge the patient. Respondent contacted the patient's family physician, advised him of the patient's condition, but did not recommend Patient R.D. be admitted. In the early morning hours of June 14, 1999, Patient R.D. died as a result of a bilateral pulmonary embolism. Respondent's care and treatment of this patient was supported by the testimony of two experts. They indicated that the major risk factors for pulmonary embolism are malignancy, surgery or any trauma to the long bones; none of which were present in this case. The secondary risk factors are pregnancy, cigarette smoking and obesity. Pulmonary embolism is seen most often in orthopaedic surgery patients and, secondarily, in patients with fractured long bones or multiple trauma including the lower extremities. The only sign and symptom that is seen with any regularity in the presentation of pulmonary embolism patients is shortness of breath. Other signs and symptoms occur with such infrequent regularity as to be non-specific and can occur in a plethora of other illnesses. Patient R.D. did not have any of the primary risk factors for pulmonary embolism and any reasonable physician would not think of pulmonary embolism as a primary diagnosis or even as a conceivable diagnosis in a patient with these present symptoms. The experts agree that Patient R.D.'s relatively minor complaints of shortness of breath would have even given Respondent a clinical suspicion of pulmonary embolism. When examined, Patient R.D. was not diaphoretic or apprehensive, had normal color, with skin warm to the touch. The patient simply did not present as one in acute distress secondary to sudden pulmonary embolism as the Petitioner contends. At discharge the patient had improved so significantly that his oxygen saturation rate was near normal and respiration rate near normal. Dr. R. Latanae Parker had reviewed the autopsy and drew several conclusions from it. He interpreted the medical examiner's microscopic examination of the clot to indicate that they were "fresh" and mobilized within minutes of death. Dr. Parker testified that this patient died of a sudden death by a sudden pulmonary embolism that was massive enough to occlude blood flow such as there was not adequate profusion to the coronary system and to the cerebral system. Based on Patient R.D.'s condition before discharge from the emergency department, Dr. Parker testified it was not necessary for Respondent to have pulmonary embolism as one of his differential diagnoses or to have otherwise ruled out that condition. Petitioner has presented no credible testimony which would establish that the deep vein thrombosis (DVT) seen on autopsy was diagnosable in the emergency room by gross exam, palpation or otherwise. The DVT seen on autopsy was silent and, therefore, undiagnosable in the emergency room as Patient R.D. did not have a history of trauma, swelling, inflammation or discoloration of his lower extremities. The autopsy supports Dr. Parker's testimony because the leg circumferences were found to be equal and there was no indication of swelling, discoloration or evidence of trauma. Petitioner's standard of care expert, Dr. Jay Edelberg, provided testimony which actually refutes several allegations in Petitioner's complaint. Specifically, Dr. Edelberg agreed that Respondent's initial assessment of Patient R.D.'s heart was adequate and that Respondent did not ignore Patient R.D.'s cardiac status. Dr. Edelberg also agreed that it was not inappropriate for Respondent to have provided this patient with the Proventil breathing treatment and that a diagnosis of a chronic airway condition was unnecessary in order to treat with such nebulizer. Dr. Edelberg also agreed that Respondent accurately interpreted the EKG and chest X-ray and his findings were properly recorded in the chart. Respondent appropriately diagnosed Patient R.D.'s condition and pursued the appropriate plan of treatment of the patient's condition. Respondent appropriately evaluated the patient's history and complaints which the patient had provided to the triage nursing staff. Respondent performed an appropriate assessment of the patient in the emergency room including obtaining a history of his subjective complaints; his pertinent medical history; and an objective physical evaluation of the patient while in the emergency room. Respondent appropriately ordered the necessary tests to evaluate the patient's condition, based on his examination including an EKG, portable chest X-ray, blood chemical profile, complete blood count, cardiac enzymes and pulse oximeter test. Respondent appropriately interpreted the aforementioned diagnostic studies and tests in establishing his diagnosis and treatment of the patient. Respondent appropriately diagnosed the patient with hyperactive airway disease (i.e., bronchospasm) and properly treated that condition with Proventil while in the emergency room. Respondent appropriately diagnosed the patient with diabetes based on his elevated blood sugars and appropriately coordinated the treatment of that condition with the patient's family practitioner on the following day. Respondent appropriately assessed the patient's risk factors for pulmonary embolism, including his examination of the patient's legs to determine the presence of any signs of deep vein thrombosis. Respondent did consider the patient's report to the triage nurses that he had been diaphoretic earlier in the day. Respondent did consider the patient's complaints of chest pain and appropriately treated him for that condition. Respondent appropriately considered the patient's cardiac status and fully assessed the possibility that the patient's condition was of cardiac origin. Respondent appropriately interpreted and considered the non-specific changes in the patient's EKG in the course of his diagnosis and treatment of Patient R.D. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by not referring the patient to a cardiology or pulmonary specialist. Respondent appropriately discharged the patient from the emergency room, as admission to the hospital was not indicated under the circumstances based on the patient's significant improvement. Respondent's treatment plan for Patient R.D. was appropriate for his presenting complaints. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with that level of care, skill or treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the case of Patient R.D. Respondent did not adequately maintain medical records which justified his plan of treatment for Patient R.D. to include the history; examination results; test results; drug prescribed, dispensed and administered; and documentation of his having conferred with Patient R.D.'s reported primary care physician.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Medicine enter a final order, in which: Respondent is found not guilty of violating Section 458.331(1)(t), Florida Statutes. Respondent is found guilty of violating Section 458.331(1)(m), Florida Statutes. Respondent be disciplined, as follows: Administrative Fine of $500.00. Reprimand. DONE AND ENTERED this 27th day of December, 1999, 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 27th day of December, 1999. COPIES FURNISHED: Carol A. Lanfri, Esquire Kristy Johnson, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Art C. Young, Esquire Rissman, Wiesberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street, 15th Floor Orlando, Florida 32801 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent inappropriately touched a female student in violation of Sections 231.28(1)(c), (f), or (i), Florida Statutes, or Rule 6B-1.006(3)(a) or (e), Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Florida educator's certificate, number 700508. His certificate is valid through June 30, 2003, and covers the areas of varying exceptionalities, elementary education, English, specific learning disabilities, visually impaired, and primary education. During the 1995-96 school year, Respondent was employed as an exceptional student education (ESE) teacher by the Sumter County School District. Respondent was assigned to teach at the South Sumter Middle School. Respondent had taught at South Sumter Middle School since the 1994-95 school year. During the first year at the school, Respondent was the ESE math, science, and social studies teacher. During the 1995-96 school year, Respondent was the ESE team leader. During the 1995-96 school year, R. J. was an eighth- grade student at South Sumter Middle School. She was classified as emotionally handicapped (EH) and was assigned to an EH classroom. R. J. was not as disruptive as her EH classmates, so her teacher allowed her, after finishing her work, to leave the classroom and visit Respondent's classroom, in which the students were better behaved. R. J.'s teacher allowed R. J. to attend Respondent's class 1-2 hours weekly. While there, R. J. mostly tutored the other students. One day, in Mid-May 1996, while visiting Respondent's classroom, R. J. was watching a film with the rest of the class. She was seated in the back of the room with Respondent, who was doing some administrative work during the screening of the film. The room was half-lighted. At one point during the film, some servants were dressing a wealthy child. When they attached garters, one boy in the class shouted, "She's wearing a girdle." Respondent responded by saying that the garment was not a girdle, but a device to hold up socks. Sitting next to Respondent, R. J. asked him to explain further what a garter is. Respondent poked her knee to show her where the garter attached. Respondent did not move his chair closer to R. J.'s chair, nor did he run his hand up or down R. J.'s leg. Later the same day, the ESE department sponsored the weekly Coke Day. Respondent had started Coke Day because ESE students never went on field trips. Taking place late in the day on Fridays, Coke Day presented the opportunity for students who had behaved well during the preceding week to buy sodas donated by teachers, with the proceeds going to field trips. In addition to paying for ESE field trips and providing an incentive for good behavior, Coke Day also gave the ESE students a chance to socialize and receive praise for good work and good behavior. Toward the end of the time allocated to Coke Day, Respondent saw that someone needed to pick up discarded soda cans and other debris from the field where Coke Day took place. As Respondent was doing so, while the field was filled with students, R. J. approached Respondent closely and complained that another student had been flirting with her. Respondent told the other student to stop flirting with R. J. During this incident, Respondent was holding in one hand a plastic litter bag, into which he was placing empty soda cans. As he warned the other student to stop flirting with R. J., Respondent pushed her lightly on her hip with his hand holding the bag, as though to move her out of the way as he passed her. The bag may have also brushed against Respondent in the vicinity of her buttock thigh. Petitioner subpoenaed R. J. to testify in this case, but she refused to honor the subpoena. Petitioner therefore presented R. J.'s testimony in the form of a videotaped deposition taken on October 11, 1996, in the criminal case, which did not result in a conviction. In her deposition, R. J. testified that Respondent rubbed the tips of his fingers up one time and down one time along the front of her thigh when demonstrating the location of a garter. She also testified that Respondent lightly squeezed her buttock for two or three seconds on the field during Coke Day. Fifteen years of age at the time of the deposition, R. J. testified haltingly. Although not appearing overly nervous about testifying, R. J. required repeated prompting when asked to describe in detail the touches and, even then, her testimony was vague. At times, R. J.'s attempts to describe in detail what she claimed Respondent had done had an invented quality, as R. J.'s replication of Respondent's movements seemed to lack any real conviction or certainty. R. J. claims that she has been the victim of sexual abuse several times, naming as perpetrators her step-father and uncle, and she says that hugs from her father make her uncomfortable. R. J. also admitted that a friend had had sexual intercourse with her, while she was asleep after an evening of drinking. R. J. describes a troubled family life, testifying that her mother and step-father accuse her of being promiscuous. An eyewitness to the Coke Day incident, D. P., gave conflicting statements at the time of the investigation. At some point after the day of the incidents, D. P. became R. J.'s boyfriend. At the hearing, D. P. testified contradictorily about whether he saw any inappropriate touching. There is little doubt that he saw nothing. An agent of the Florida Department of Law Enforcement testified at the hearing. The agent is a coordinator of crimes against children. Shortly after the incidents, the agent visited the school. After speaking to a school administrator and possibly reading R. J.'s statement, but before talking to her, the agent interviewed Respondent. Not taping the interview, the agent misinformed Respondent that he had talked to R. J., and other students had joined in her claims of inappropriate contact. When Respondent denied any inappropriate contact, the agent, during this initial interview, accused Respondent of lying. The agent testified that Respondent admitted that he had pulled R. J.'s chair closer prior to demonstrating the location of a garter. This is something that he has later denied. However, the matter is inconsequential, even for the limited purpose of trying to assess Respondent's credibility. As for the Coke Day incident, the agent testified that Respondent said he might have touched, but did not grab, R. J.'s buttock. Absent additional detail, this admission does not establish an inappropriate touching or a lack of credibility The most significant part of the agent's testimony is his claim that Respondent admitted that he needed sexual counseling and asked what kind of deal he could get if he "told the truth." Respondent denied making these statements. Several possibilities exist concerning the agent's testimony describing these two statements. The agent may have misunderstood Respondent or may be misreporting what Respondent said. Respondent may have made these quoted statements. However, several facts are quite clear. First, nothing else in the record provides significant support for these statements, at least to the extent that they would also constitute implicit admissions of inappropriate touching. Second, the agent described Respondent as cooperative. Given the contrasting personalities of the agent, who is intense and focused, and Respondent, who is quiet-spoken to the point of passivity, it is quite possible that Respondent made statements substantially the same as reported by the agent in response to a coercive atmosphere perhaps inadvertently created by the agent. Although it is not possible to resolve the dispute in the testimony concerning the two statements that the agent claimed that Respondent made, it is clear that the record lacks clear and convincing evidence that Respondent touched R. J. in an inappropriate manner.
Recommendation It is RECOMMENDED THAT the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 J. Wiley Horton Booth & Horton, P.A. Post Office Drawer 840 Tallahassee, Florida 32301 Mark Herdman Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Respondent, Markeith Daniels (Respondent or Daniels), is a correctional officer certified by the Criminal Justice Standards and Training Commission, having been issued certificate number 254286. At the time of the events giving rise to these proceedings, Respondent was employed by the Florida Department of Corrections as a correctional officer assigned to the Dade Correctional Institution. On or about November 2, 2007, then-Deputy (now Lieutenant) Thomas Webb stopped Respondent in Apalachicola for an improper start of the vehicle he was driving. After approaching Respondent's car, Lt. Webb could smell alcohol on his breath. Lt. Webb asked if Respondent had been drinking, and Respondent indicated he had had a few beers. Lt. Webb asked Respondent to step out of the car and perform selected field sobriety tests. Lt. Webb testified that, based upon his training and experience, Respondent was under the influence of alcohol. He failed the field sobriety tests because he did not wait for complete directions to be given before starting the tests, and did not follow directions once given. For example, on the "one- leg stand" test, he did not count out loud as instructed, began counting at 4 and at the end of what was to be 30 seconds, Respondent had only counted to 22. Daniels' vehicle was searched. Lt. Webb found two bottles of Verdi Spumante, an alcoholic beverage, in the car. One bottle was unopened while the other was open and empty. Lt. Webb also found two cans of cold, Natural Lite beer in the back seat. Respondent claimed that the beer had been taken from a refrigerator at approximately 9:30 p.m., and that he had given several beers from the twelve-pack to a friend. Daniels was placed under arrest and transported to the Franklin County Jail, where his breath was tested for alcohol content. Protocols for breath alcohol testing require two samples to be given and tested. The first breath sample given by Respondent registered a reading of .121 at 4:28 a.m. The machine provides a two-minute break between breath sample attempts, and this two-minute window is recorded on the breath alcohol test affidavit as "air blanks," at 4:29 and 4:30. From the air blank recorded at 4:30, Respondent had three minutes to provide an additional sample. After three minutes, no sample had been provided, and Lt. Webb pressed the "refusal" button. Respondent would have been able to see the results from the first breath sample before being asked to give the second one. The criminal charges against Daniels were dismissed for reasons that are not clearly identified in this record.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Markeith Daniels has violated Section 943.13(7), Florida Statutes, and that Respondent's license be placed on probation for a period of one year, with terms to be determined by the Commission. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 August, 2009. COPIES FURNISHED: Sharon S. Traxler, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Markeith L. Daniels Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent is guilty of failing to practice medicine in accordance with the applicable standard of care by failing to assess adequately a patient's complaints, failing to provide an adequate diagnosis, failing to obtain a specialized consultation, and failing to pursue the appropriate treatment, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records to justify the use of Cardizem and document the drug's effect, in violation of Section 458.331(1)(m). If guilty of either of these offenses, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0048483. He is Board Certified in Emergency Medicine. On May 16, 1994, shortly after 2:00 PM, a 48-year-old male presented at the Naples Community Hospital emergency room with the chief complaints of a rapid heart rate and shortness of breath. He felt warm, but denied feeling nauseous or chest pain. He also reported that he had not had any previous cardiac problems or any head trauma. The patient's heart rate was rhythmic, though rapid at 132 beats per minute. His respiration rate was 24, and his blood pressure was 110/80. The nurse initially examining the patient applied a pulse oximeter and obtained an abnormally low reading of 70 percent on room air. The patient's grey color confirmed that this was not an erroneous reading. The nurse immediately placed the patient on oxygen. After the oxygen was started, Respondent saw the patient, whom he found not to appear sick. The patient's breathing, though rapid, was not labored. He explained that he had come to the hospital only at the insistence of his employer. Evidently, his color had quickly improved with the administration of oxygen. Thinking that this might be a case of tachycardia, which can cause a sensation of shortness of breath, Respondent appropriately ordered a chest x-ray, EKG, and cardiac labs. Respondent received the chest x-rays promptly. They were normal, precluding, among other things, a collapsed lung. The cardiac labs were also normal. Respondent ordered two more EKGs during the patient's hospitalization on May 16. The parties disagree as to the significance of the results of the three EKGs, which revealed some abnormalities. Petitioner failed to prove that the abnormalities revealed in the EKGs were material to a correct diagnosis. Respondent's expert testified that these abnormalities were common among adults and nonspecific. He added that they did not reveal that the patient was suffering from a pulmonary embolism. This detailed, unqualified testimony from an experienced physician is credited over the testimony of Petitioner's expert. Respondent ordered an intravenous access, which was established at 3:00 PM. Although still receiving oxygen, the patient's oxygen saturation was at 97 percent at 2:45 PM and 4:00 PM. Based on his tentative diagnosis of tachycardia, Respondent administered 20mg of Cardizem at 3:35 PM. Cardizem is a calcium channel blocker, which slows down the heart rate. Generally, the patient's condition improved following the administration of the oxygen. According to the nurses' notes, the patient's breathing had slowed down by 2:45 PM, and he reported that he was feeling better by 4:45 PM. Respondent saw the patient four times during his hospitalization and confirmed for himself the nurses' observations before discharging the patient by 6:00 PM. Respondent's discharge diagnosis was paroxysmal supraventricular tachycardia--resolved. He later amended the diagnosis to sinus tachycardia, but testified that he still would have discharged the patient with this diagnosis, under all of the circumstances. The patient returned to the hospital at 10:00 AM the next day, effectively dead on arrival. He had suffered an acute pulmonary saddle embolus. The sole question in this case turns on the adequacy of Respondent's diagnosis and treatment on May 16. Petitioner's expert conceded that there were no independent issues involving the adequacy of the medical records, and Petitioner's proposed recommended order makes no mention of this alleged violation. In hindsight, it is impossible to attribute to mere chance the events of May 16 when the patient died the next morning from an acute pulmonary saddle embolus. Something happened at work, and probably was still happening when the patient first arrived at the hospital, and this was related to what killed the patient the following day. However, Petitioner has not proved that whatever happened to the patient persisted long enough for Respondent to be able to diagnose it based on the data available to him on May 16 or, even if it had, that Respondent's failure to diagnose it was a departure from the applicable standard of care. The first potentially important piece of information collected by the hospital, apart from this history, was the abnormally low pulse oximeter reading. However, Petitioner failed to prove that Respondent was aware of this information, or reasonably should have been aware of this information, at the time that he was treating the patient. The hospital had recently instituted the practice, since discontinued, of separating the nurses' notes, where the low reading was recorded, from the remainder of the medical records for a patient. Ensuing pulse oximeter readings, of which Respondent was aware, were recorded in a different place in the records from the initial pulse oximeter reading. Moreover, it is unclear whether, if Respondent had been aware of the patient's abnormally low pulse oximeter reading, this knowledge would have materially changed what Respondent had to do to meet the applicable standard of care. Ensuing pulse oximeter readings were 96 and 97 percent. Prior to discharge and after discontinuation of the oxygen for a suitably long period of time to eliminate its effects, the patient's pulse oximeter reading remained in the high 90s. Petitioner's expert witness conceded that the pulse oximeter is not a diagnostic tool for a pulmonary embolism. He testified that the EKGs were not a diagnostic tool for a pulmonary embolism, but would give hints of this condition. His main argument was that the initial pulse oximeter reading of 70 percent at room air should have been followed by an arterial blood gas test, which "probably" would have been abnormal. An abnormal arterial blood gas reading should have been followed by a VQ scan, which he asserted should have been abnormal due to little emboli coming off the lungs. However, there is a large element of speculation in the testimony of Petitioner's expert concerning these two tests. It is as likely as not that the arterial blood gas results would have been normal. The VQ scan would almost certainly have been normal, as the autopsy revealed no profusion of emboli, but only an acute pulmonary saddle embolism as the cause of the patient's death. Respondent's expert conceded that a pulmonary arteriogram probably would have been useful, but, in 20 years' practice, he could not recall ordering such a test, which is relatively frequently done in large academic institutions, but not in community hospitals, due to the mortality associated with the procedure and the 2-3 percent of false negatives. Additionally, this record does not so clearly disclose the relationship between the incident on the afternoon of May 16 and the death on the morning of May 17 to permit even an inference that a pulmonary arteriogram would have detected an abnormality in the interim between these two points. Perhaps the most important fact in evaluating whether Respondent met the applicable standard of care is that the patient exhibited none of the predisposing factors for a pulmonary embolism. He had no cardiopulmonary disease. He had no chronic obstructive pulmonary disease. A cable television installer, he was not sedentary and had no stasis of the blood flow, such as from a prolonged immobilization. He was not obese. He had no relevant trauma or injury to the lower extremities. The diagnosis of a pulmonary embolism is very difficult even with predisposing factors; in the absence of such factors, the diagnosis is dauntingly difficult. As Respondent's expert testified, he has never encountered a case of pulmonary embolism without a predisposing factor. Under all of these circumstances, especially the absence of predisposing factors, Respondent's failure to order a pulmonary arteriogram or obtain a consultation was not a departure from the applicable standard of care, nor was his failure to diagnose a pulmonary embolism, if one in fact existed on May 16. Shortness of breath and rapid heart rate are nonspecific complaints. Respondent retained the patient in the hospital for four hours for observation and analysis of test results. Respondent examined the patient four times during this hospitalization. Respondent reasonably and correctly ruled out a variety of more common diseases and illnesses. Under all of the circumstances, the final diagnosis of tachycardia, which related the shortness of breath to tachycardia or possibly anxiety, was not a departure from the applicable standard of care. Petitioner has therefore failed to prove by clear and convincing evidence that Respondent failed to meet the applicable standard of care in any respect in his diagnosis or treatment of the patient on May 16.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998. COPIES FURNISHED: Gabriel Mazzeo, Senior Attorney Carol A. Lanfri, Staff Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 William Partridge Grossman, Roth and Partridge SouthTrust Bank Plaza 1800 Second Street, Suite 777 Sarasota, Florida 34236 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Dr. Marm Harris, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
The Issue Whether Respondent is unable to practice nursing with reasonable skill and safety by reason of illness or use of alcohol, in violation of section 464.018(1)(j), Florida Statutes (2020); and, if so, the appropriate penalty.
Findings Of Fact Based upon the credibility of witnesses and evidence presented at the final hearing and stipulated facts, the following Findings of Fact are found: 1 Respondent objected to Petitioner’s admission of Exhibit 7, which was a close-captioned television video recording of Respondent and others on July 2, 2020. Respondent argued that Petitioner only offered a portion of the recordings from that day, and, thus, Petitioner should offer the complete video. To address Respondent’s objection, Petitioner was instructed to contact Mr. Anderson to verify whether additional recordings were available for July 2, 2020. However, Mr. Anderson was not available. Given the location of the camera and the area of treatment, the video camera may have captured Respondent leaving the emergency room. After considering the record, however, additional recordings would not have changed the outcome of the undersigned’s findings in this matter. 2 Respondent indicated at hearing that he was offering the reference letter as his sole exhibit. He was permitted to file the exhibit with DOAH after the hearing. Instead, Respondent filed a copy of a certificate of completion for nursing continuing education courses. The reference letter was not filed and, thus, is not a part of the record. Stipulated Facts At all times material to this complaint, Respondent was licensed as a registered nurse within the State of Florida, having been issued license number RN 3349322. Respondent’s address of record is 805 Sunday Road, Chipley, Florida 32428. At all times material to this complaint, Respondent was employed by Doctors Memorial Hospital (DMH), located in Bonifay, Florida. Respondent submitted to a blood alcohol test, which returned positive at a level of 0.2637 g/dl. Facts Related to the Events on July 2, 2020 On July 2, 2020, several colleagues of Respondent observed Respondent’s behavior at work, which raised questions regarding whether Respondent was impaired. Janet Smith, a registered nurse, worked at DMH. She had worked with Respondent for approximately 10 years before July 2, 2020. Ms. Smith arrived to work at 8:00 a.m. She observed Respondent at the emergency room desk from a distance of 10 feet for approximately 10 to 15 minutes. She testified that Respondent’s speech was “different, it was drawn out, and he was talkative, more friendly than usual.” Ms. Smith had more than 30 years of experience working in the emergency room and was familiar with the behavior of persons under the influence of alcohol. Based on her experience, she believed that “[Respondent] appeared drunk.” Concerned about Respondent’s behavior, Ms. Smith shared her concerns with other staff members, including Ashley Hall, Debra Smitty, Rohan Anderson, and Dr. Contini. Dr. Contini and Ms. Smitty were not offered as witnesses at the final hearing. Although Ms. Smith had concerns about Respondent’s behavior on July 2, 2020, she otherwise believed he was a strong nurse. Rohan Anderson also observed Respondent on July 2, 2020, after Debra Smitty shared her concerns about Respondent’s behavior. Mr. Anderson works at DMH as the Chief Operating Officer and Director of Information Technology. Mr. Anderson had also worked with Respondent at another hospital and did not recall any prior impairment issues. Similar to Ms. Smith, Mr. Anderson observed Respondent from a distance of 10 to 15 feet near the emergency room desk. He also noticed that Respondent’s speech was different than usual. Mr. Anderson testified that Respondent was “slurring his words … the way he was controlling the pitch of his voice. And I knew something was going on based on that.” Mr. Anderson then shared his concerns about Respondent’s behavior with Dr. Ulhaq, the emergency room director. Mr. Anderson unequivocally testified that Respondent was known for being a good nurse and was used as an example for training purposes. Loyd Simmons, an advanced registered nurse practitioner, was working in the emergency room on July 2, 2020. At Dr. Ulhaq’s request, Mr. Simmons evaluated Respondent based on the reports of suspected alcohol use. Mr. Simmons noted that Respondent was not acting like his “normal” self and he appeared to be unsteady on his feet. Respondent experienced difficulty with upward gaze. However, he was alert, oriented, with clear speech. Mr. Simmons performed a physical examination of Respondent, where he did not find any bruises or signs of a recent fall. He also conducted a neurological examination with Dr. Ulhaq, which revealed a positive Babinski. A positive Babinski result may be an indicator of a problem in the central nervous system. It may, however, also be related to alcohol use. Mr. Simmons interpreted findings of Respondent’s EKG and CT scan as within normal limits. Mr. Simmons found Respondent’s EKG and CT scan results did not indicate a condition that would affect his blood alcohol level. The hematology results returned normal results. The blood alcohol level test returned a result of 263.7 mg/dc, meaning .263 g/dcl.3 The chemical analyzer machine used to perform the blood alcohol test was working properly, calibrated properly, and the machine properly reported correct blood alcohol test results for Respondent. Based on his findings, Mr. Simmons diagnosed Respondent with alcohol intoxication. There was no evidence deduced from the tests performed that Respondent suffered from liver complications or COVID-19 that would cause his significantly high alcohol level results. Mr. Simmons testified that he had no prior personal knowledge of Respondent being impaired at work. Ms. Hall worked with Respondent on July 2, 2020. She observed Respondent for approximately 30 minutes while working together. She testified that he was more “jolly” than usual on that day and his mannerisms were exaggerated. She then shared her belief with the Director of Nursing that Respondent appeared to be impaired. Ms. Hall was present during Respondent’s evaluation in the emergency room. She assisted with placing an IV catheter to withdraw a blood sample from Respondent. She followed the standard process by cleaning the insertion site with isopropyl alcohol, and allowing the area to dry before inserting the catheter. She withdrew the blood sample and then delivered the sample to the lab drop-off window for testing. She had no further contact with the blood sample. Although Ms. Hall primarily worked a different shift than Respondent, she had never witnessed Respondent exhibiting similar behavior as he exhibited on July 2, 2020. Overall, each witness who worked with Respondent on July 2, 2020, reported that he was not behaving like normal and his behavior was consistent with alcohol impairment. Evaluation on January 14, 2021 Respondent was placed on administrative leave and ultimately, terminated for “being at work while under the influence of alcohol.” He was 3 The legal limit in Florida for intoxication is considered a blood alcohol level of .08 or above. presented with the option to voluntarily report to Intervention Project for Nurses (IPN) in lieu of a complaint filed with the Department, and he agreed to contact IPN. Respondent subsequently elected not to voluntarily participate in IPN because he could not “afford it.” The Department then issued an Order requiring Respondent to undergo an evaluation with Dr. Reeves. Dr. Reeves, a licensed medical doctor in the State of Florida since 1994, has specialized in addiction medicine since 2010. Dr. Reeves is board certified in addiction medicine and a member of several professional organizations for addiction treatment providers. Dr. Reeves serves as the Medical Director for two treatment facilities, South Walton Medical Group and Sacred Heart Hospital of the Emerald Coast. Prior to practicing addiction medicine, he worked as a vascular surgeon. Dr. Reeves has written articles and delivered presentations on the topic of addiction medicine. Dr. Reeves has testified in other legal proceedings within the past 10 years and has never been disqualified as an expert. Dr. Reeves was accepted as an expert on addiction medicine in this matter. Dr. Reeves performed an independent medical examination (IME) of Respondent on January 14, 2021. Dr. Reeves routinely conducts IMEs of health care professionals to determine whether an individual has an issue with addiction or addictive substances, including alcohol. Dr. Reeves follows a process for conducting an IME. He reviews the available records, any medical history, and witness statements. Dr. Reeves then meets with the individual to conduct an in-person evaluation, which includes assessment tests and screening exams. Dr. Reeves testified that he understood that Respondent was referred to him for alleged alcohol intoxication while at work. Dr. Reeves was concerned as alcohol is a depressant and directly affects the judgement and decision-making functions in the brain. Dr. Reeves discussed the events that gave rise to the Department’s complaint and subsequent referral for evaluation. Respondent explained to Dr. Reeves that he began drinking more often while he was quarantined with COVID-19. Respondent told Dr. Reeves that he had increased his drinking from two to three beers a night to three to four beers per night, four to five times per week. Respondent stated that he drank several drinks the night before he returned to work to help him sleep. He did not believe that he drank a lot and was surprised that his test results reflected a significantly elevated alcohol level. He denied being intoxicated at work on July 2, 2020. Respondent completed a questionnaire after he arrived for his evaluation, which Dr. Reeves reviewed with him during the evaluation. Respondent suggested in his questionnaire that perhaps the alcohol level was because he had taken Nyquil4 while driving to work. Respondent later retracted that statement. Regarding assessments, the evaluation included an ethyl glucuronide (ETG) test, which was performed upon Respondent’s arrival to Dr. Reeves office. An ETG test is a urine test that measures the level of ethyl glucuronide in the body. An ETG test would generally yield positive results within two to five days after alcohol is ingested. Respondent’s test was negative. Dr. Reeves testified that the negative test results suggest Respondent had not drank alcohol within the prior three to five days. Dr. Reeves also asked Respondent to undergo a phosphatidylethanol (PEth) test, which tests a blood sample to measure intake of alcohol. The PEth test has a longer timeframe for measurement than the ETG test, as it measures alcohol in the system for up to 14 days after ingestion. To maintain the validity of the test, it must be completed within 48 hours of the request. 4 Dr. Reeves testified that a dose of Nyquil contains approximately the same amount of alcohol as a glass of wine. He estimated that a person would need to consume 10 to 15 doses of Nyquil to achieve a result of .2637 gm/dcl (Respondent’s test results). Respondent did not complete the test within that timeframe. Thus, there were no PEth test results for Dr. Reeves to consider. Dr. Reeves testified that the PEth test was not a necessary factor for diagnosing an alcohol-use disorder, as he had sufficient objective data from his evaluation to make a diagnosis. Expert Opinion Based upon his evaluation, Dr. Reeves diagnosed Respondent with moderate alcohol disorder. Dr. Reeves relied upon the criteria established in the Diagnostic Statistic Manual-5 (DSM-5), which sets out the standard of care for diagnosis of psychiatric disorders. The DSM-5 includes alcohol-use disorder as a psychiatric diagnosis. Dr. Reeves testified that if you meet two or more of 11 alcohol-use disorder criteria used in the DSM-5, the individual meets the criteria for that level of the disorder. Applying objective factors identified during his evaluation of Respondent, Dr. Reeves determined that Respondent met four of the 11 criteria for moderate alcohol-use disorder. Specifically, Dr. Reeves identified the following criteria in making his assessment: Alcohol is often taken in larger amounts or over a longer period than was intended; * * * 5. Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home; * * * 8. Recurring alcohol use in situations in which it is physically hazardous; and * * * 10. Tolerance is defined by (a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect, or (b) a markedly diminished effect with continued use of the same amount of alcohol. Dr. Reeves testified that a nursing professional is considered a safety sensitive occupation, which requires good decision-making ability. Since alcohol significantly impairs judgement and decision-making ability, an individual who is impaired by alcohol is not safe to practice as a nurse. Dr. Reeves credibly opined that Respondent is not safe to practice as a nurse due to his diagnosis of moderate alcohol-use disorder. Dr. Reeves’ opinion is accepted. Dr. Reeves recommended a course of intensive outpatient treatment for a specified period of time. Even if Respondent indicated he stopped drinking, without treatment, Dr. Reeves maintains that Respondent is not safe to practice nursing. Based on his review of the records obtained from DMH, Dr. Reeves concluded that Respondent’s records reflected no symptoms to demonstrate that he suffered from a transient ischemic attack (TIA)5 as Respondent suggested. There was no evidence offered at hearing that Respondent harmed patients while he was impaired. Other than his behavior exhibiting impairment, the testimony overwhelmingly supported that he was considered a good nurse. Ultimate Findings of Fact Petitioner presented clear and convincing evidence to demonstrate that Respondent was impaired while at work on July 2, 2020. 5 A TIA is a temporary period of symptoms similar to a stroke. Petitioner presented clear and convincing evidence to demonstrate that Respondent is unable to practice nursing with reasonable skill and safety to patients due to his moderate alcohol-use disorder and alcohol use.
Conclusions For Petitioner: Ellen LeGendre Carlos, Esquire Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Benjamin Dallas Stoe, pro se 805 Sunday Road Chipley, Florida 32428
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 violated section 464.018(1)(j), Florida Statutes (2020); and suspending Respondent’s registered nursing license, until such time that Respondent enters into IPN and complies with any and all terms and conditions imposed by IPN. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Ellen LeGendre Carlos, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 Benjamin Dallas Stoe 805 Sunday Road Chipley, Florida 32428 Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 Deborah McKeen, BS, CD-LPN Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D02 Tallahassee, Florida 32399
The Issue The issue in this case is whether Florida Administrative Code Rules 11D-8.012 and 11D-8.013 are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner has been charged with “DUI Manslaughter/Failed to Render Aid” and “Vehicular Homicide/Failed to Give Information or Render Aid” in Palm Beach County, Circuit Court Case No. 502010CF005829AXXXMB. The prosecution in the criminal case intends to offer the results of a blood alcohol test performed on blood collected from the Petitioner as evidence at the trial. The Petitioner has moved to exclude the blood alcohol test results from the trial based, in part, on the method used to collect his blood for forensic testing. The Respondent is the state agency responsible for implementing the “Implied Consent” blood alcohol testing program, including the adoption of rules. The Respondent has adopted such rules which are set forth in Florida Administrative Code Chapter 11D-8. The Petitioner has asserted that the Respondent’s “Implied Consent” rules are insufficient to ensure the scientific reliability of the blood alcohol test results to be offered against him in the criminal trial. On March 21, 2014, the circuit court judge presiding in the criminal trial entered an Order Granting State’s Motion to Invoke the Doctrine of Primary Jurisdiction, which specifically directed the Petitioner to file a petition challenging rule 11D-8.012 with the Division of Administrative Hearings. On April 24, 2014, the Petitioner filed a Petition to Determine the Invalidity of an Existing Rule, challenging rules 11D-8.012 and 11D-8.013 as invalid exercises of delegated legislative authority. The parties stipulated that the Petitioner is substantially affected by, and has standing to challenge the validity of, rules 11D-8.012 and 11D-8.013. Rule 11D-8.002 provides the following relevant definitions: (2) Accuracy - the nearness of a measurement to a known concentration. * * * (4) Agency - a law enforcement agency other than the Department, or an entity which conducts breath tests or submits blood samples for alcohol testing pursuant to these rules, or a civilian entity performing such duties on behalf of a law enforcement agency. * * * (7) Alcohol - ethyl alcohol, also known as ethanol. * * * Analyst - a person who has been issued a permit by the Department to conduct blood alcohol analyses. Approved Blood Alcohol Test - the analyses of two separate portions of the same blood sample using a Department- approved blood alcohol test method and a Department-approved procedure, with results within 0.010 grams of alcohol per 100 milliliters of blood (g/100mL), and reported as the blood alcohol level. * * * Blood - whole blood. Blood Alcohol Level - the alcohol concentration by weight in a person’s blood based upon grams of alcohol per 100 milliliters of blood (g/100mL). * * * (19) Department - the Florida Department of Law Enforcement. * * * (22) Methods - types of alcohol analyses approved by the Department to conduct chemical or physical tests of blood or breath. * * * (24) Permit - when issued by the Department, certifies that the holder has met all necessary qualifications, remains in full compliance with these rules and is authorized to perform all related duties. A permit is issued only to a qualified applicant and remains valid and in full effect until determined otherwise by the Department. Rule 11D-8.012 The Petitioner has asserted that rule 11D-8.012 is an invalid exercise of delegated legislative authority because the rule does not establish a venipuncture procedure regulating needle gauge and tourniquet usage by which blood is obtained for the purpose of performing a blood alcohol test. At the same time, the Petitioner asserts, and the Respondent agrees, that the Respondent lacks statutory authority to adopt such a rule. Rule 11D-8.012 provides as follows: Blood Samples - Labeling and Collection. Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does not contain alcohol. Blood samples must be collected in a glass evacuation tube that contains a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate or EDTA (ethylenediaminetetraacetic acid). Compliance with this section can be established by the stopper or label on the collection tube, documentation from the manufacturer or distributor, or other evidence. Immediately after collection, the tube must be inverted several times to mix the blood with the preservative and anticoagulant. Blood collection tubes must be labeled with the following information: name of person tested, date and time sample was collected, and initials of the person who collected the sample. Blood samples need not be refrigerated if submitted for analysis within seven (7) days of collection, or during transportation, examination or analysis. Blood samples must be otherwise refrigerated, except that refrigeration is not required subsequent to the initial analysis. Blood samples must be hand-delivered or mailed for initial analysis within thirty days of collection, and must be initially analyzed within sixty days of receipt by the facility conducting the analysis. Blood samples which are not hand-delivered must be sent by priority mail, overnight delivery service, or other equivalent delivery service. Notwithstanding any requirements in Chapter 11D-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level. Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. Commercially available kits, generally containing glass evacuation tubes, a non-alcohol skin wipe, and a 21-gauge needle assembly, may be used to collect samples for blood alcohol testing. The Respondent’s rules do not require usage of such kits, and the components of the kits are commonly available where blood collection is performed. The Legislature identified the persons authorized to collect samples for blood alcohol testing in section 316.1933(2)(a), Florida Statutes, which states as follows: Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances or controlled substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical purposes. The Petitioner asserts that the gauge of the needle used to puncture a vein for blood collection and improper application of a tourniquet during the collection process can result in “hemolysis” of blood and an inaccurate blood alcohol test result. As noted above, rule 11D-8.002(14) defines “blood” to mean “whole blood.” Whole blood is comprised of four components, including white cells, red cells, platelets, and plasma. Hemolysis is the release of the contents of red blood cells (hemoglobin) into blood plasma. Hemolysis can occur from a variety of causes, including, but not limited to, the manner of collection (regardless of the gauge of the needle used to puncture the vein), improper agitation of a sample in the collection tube, and storage of a sample. All blood alcohol testing performed by forensic laboratories in Florida is conducted through “gas chromatography headspace analysis.” Extensive testimony was presented at the hearing as to the process of gas chromatography headspace analysis. The reliability and accuracy of the gas chromatography headspace analysis process is not at issue in this proceeding. Gas chromatography headspace analysis involves the removal and testing of a subsample of the blood sample contained in a collection tube. A subsample taken from a sample that exhibits hemolysis contains all of the components present at the time of collection and is whole blood. The evidence fails to establish that hemolysis alters the concentration of alcohol within a subsample taken from a sample of whole blood. The evidence fails to establish that hemolysis affects the results of a blood alcohol test performed on whole blood by gas chromatography headspace analysis. Rule 11D-8.013 Rule 11D-8.013 governs the issuance of permits to analysts conducting blood alcohol tests, including a requirement that analysts define the method and procedures to be followed in conducting the tests. The Petitioner has asserted that the rule is an invalid exercise of delegated legislative authority because the rule does not explicitly require analysts performing a blood alcohol test to identify and/or exclude an “unreliable” blood sample from the testing process. Essentially, the Petitioner argues that samples exhibiting hemolysis or coagulation should not be analyzed for alcohol content. Rule 11D-8.013 provides as follows: Blood Alcohol Permit - Analyst. The application for a permit to determine the alcohol level of a blood sample shall be made on a form provided by the Department and shall include the following information: Name and address of applicant; A copy of state license if licensed, or college transcript; Name and address of employer and laboratory facility where applicant performs analyses; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, A complete description of proposed analytical procedure(s) to be used in determining blood alcohol level. Qualifications for blood analyst permit - To qualify, the applicant must meet all of the following requirements: Department approval of analytical procedure(s). All proposed analytical procedures will be reviewed and a determination of approval will be made by the Department; Satisfactory determination of blood alcohol level in five proficiency samples provided by the Department using the proposed analytical procedure. Satisfactory determination shall be made by reporting results for blood alcohol proficiency samples within the acceptable range for the samples. For blood alcohol testing, acceptable ranges shall mean the calculated proficiency sample mean + or - 3 standard deviations iterated twice. The mean and standard deviations will be calculated using the results reported by the analysts and reference laboratories; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, Meet one of the following: Possess a clinical laboratory license in clinical chemistry as a technologist, supervisor or director, under Chapter 483, F.S.; or Be a licensed physician pursuant to Chapter 458, F.S.; or Complete a minimum of 60 semester credit hours or equivalent of college, at least 15 semester hours of which must be in college chemistry. The department shall approve gas chromatographic analytical procedures and enzymatic analytical procedures based on alcohol dehydrogenase which meet the following requirements: Includes the approved method used and a description of the method, and the equipment, reagents, standards, and controls used; Uses commercially-prepared standards and controls certified by the manufacturer, or laboratory-prepared standards and controls verified using gas chromatography against certified standards. For commercially-prepared standards and controls, the manufacturer, lot number and expiration date must be documented for each sample or group of samples being analyzed. For laboratory-prepared standards and controls, date, person preparing the solution, method of preparation and verification must be documented; A statement of the concentration range over which the procedure is calibrated. The calibration curve must be linear over the stated range; Uses a new or existing calibration curve. The new calibration curve must be generated using at least three (3) standards: one at 0.05 g/100mL or less, one between 0.05 and 0.20 g/100mL (inclusive) and one at 0.20 g/100mL or higher, and must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher. The existing calibration curve must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher; Includes the analysis of an alcohol- free control, and the analysis of a whole blood or serum control. The whole blood or serum control may be used to satisfy the control requirement(s) in paragraph (d); A gas chromatographic analytical procedure must discriminate between methanol, ethanol, acetone and isopropanol and employ an internal standard technique; An enzymatic analytical procedure based on alcohol dehydrogenase must use the procedure recommended by the instrument manufacturer/test kit vendor for whole blood alcohol analysis, and the enzyme used must have sufficient selectivity to provide negligible cross-reactivity towards methanol, acetone and isopropanol. The permit shall be issued by the Department for a specific method and procedure. Any substantial change to the method, analytical procedure, or laboratory facility must receive prior approval by the Department before being used to determine the blood alcohol level of a sample submitted by an agency. The Department shall determine what constitutes a substantial change. An analyst shall only use a Department- approved procedure to determine the blood alcohol level of samples submitted by an agency. Approval of blood alcohol analysis methods and procedures shall be based on rule requirements in effect at the time they were submitted for approval. Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3) 322.63(3)(b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b), (e), 327.353(2), 327.354(3) FS. Analysts submit the procedures referenced in the rule in the form of written “standard operating procedures” (SOP) filed with the Respondent. No SOP was admitted into the record of the hearing. As set forth above, the evidence fails to establish that hemolysis affects the results of a blood alcohol test performed on whole blood by gas chromatography headspace analysis. A subsample taken from a sample that exhibits hemolysis contains all of the components present at the time of collection and is whole blood. Accordingly, the evidence fails to establish that a sample exhibiting hemolysis should be excluded from testing. Notwithstanding the requirement in rule 11D-8.012 that glass evacuation tubes containing a preservative and an anticoagulant be used in the collection process, a collection tube containing a blood sample submitted for testing can, on occasion, include coagulated blood. Coagulation can occur for a variety of reasons, including the type of needle used in the collection process or the failure to mix the sample properly with the anticoagulant contained in the tube. Rule 11D-8.002(15) defines “blood alcohol level” as “the alcohol concentration by weight in a person’s blood based upon grams of alcohol per 100 milliliters of blood (g/100mL).” The entire sample in a collection tube containing a portion of coagulated blood contains all of the components that were present in the “whole blood” of the subject from whom the blood was collected. However, coagulation causes some of the blood components to solidify. Alcohol (ethanol) is water-soluble. Coagulation alters the ratio of liquid to solid in the sample and can increase the concentration of alcohol in the liquid portion of the sample. The evidence fails to establish that the mere presence of coagulation inevitably precludes the withdrawal of a subsample that properly reflects the components of the whole blood contained in the collection tube. Because gas chromatography headspace analysis uses a subsample of the liquid portion of the sample, the accuracy of the blood alcohol level reported by the subsample is related to the degree of coagulation present in the sample.
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2011),1/ "just cause" to terminate Respondent from employment based on a breath alcohol level of 0.112, as alleged in the Administrative Complaint dated February 8, 2012.
Findings Of Fact In January 2003, Petitioner hired Respondent to teach exceptional student education courses. Since commencing her employment with Petitioner, Respondent has always received an annual performance evaluation rating of no less than fully satisfactory. Respondent has a bachelor's degree in exceptional student education and, most recently, received a master's degree with an endorsement in reading and special education. For the 2011-2012 academic school year, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent's professional services contract provides that "THE TEACHER SHALL BE BOUND TO SERVE AS PROVIDED IN SECTION 1012.33, FLORIDA STATUTES," and "SHALL NOT BE DISMISSED DURING THE TERM OF THIS CONTRACT EXCEPT FOR JUST CAUSE AS PROVIDED IN SECTION 1012.33(1)(a), FLORIDA STATUTES." (Capitalization in original). The contractual term of Respondent's contract covered the period of August 16, 2011, through June 8, 2012. On the morning of January 13, 2012, Respondent began her day by dressing both herself and her two-year-old daughter. Respondent safely drove her daughter to daycare and then proceeded to safely drive herself to Bayshore High School. Respondent arrived at school around her customary time of between 7:15 a.m. and 7:25 a.m., parked her car in the school's parking lot, without incident, and then entered the school building where she checked her mail, walked to her classroom, and made general preparations for the school day, which included briefly exchanging pleasantries with her colleague, Michele Neathery. Although the exchange between Respondent and Ms. Neathery was brief, at no time during the encounter did Ms. Neathery smell alcohol about Respondent's person or observe Respondent behaving in a way that would suggest impairment. Respondent's first instructional period of the day on January 13, 2012, started at 8:50 a.m., and ended at 10:20 a.m. A.M. was a student in Respondent's first class and also served as Respondent's classroom aide. At the time of the final hearing, A.M. was 19 years old. A.M. testified that on January 13, 2012, Assistant Principal Ginger Collins came to Respondent's classroom and asked her to step into the hallway. Before this occurred, A.M. had conversed with Respondent for about ten minutes, and during this time, he did not notice anything unusual about Respondent's appearance or her behavior. At approximately 10:20 a.m., on the day in question, Ms. Collins had gone to the classroom occupied by Respondent to discuss with her a situation from the previous day that involved one of Respondent's students. Ms. Collins entered the classroom occupied by Respondent and asked Respondent to step into the hallway with her so that they could discuss the situation from the previous day. Respondent complied with the request from Ms. Collins, exited the classroom, and positioned herself outside of her classroom door so that she could speak with Ms. Collins and simultaneously monitor her students through the window of the door to the classroom. Respondent, while speaking with Ms. Collins in the alcove to her classroom, observed that two of her students were not on-task. Ms. Collins, from her vantage point, did not observe the two students that Respondent saw who were off-task and otherwise did not witness any "rambunctiousness or loud behavior" in Respondent's classroom. Respondent, in an attempt to alert the two students to the fact that they were being monitored and to otherwise get them back on-task, slapped her hand against the door three times. Ms. Collins had never observed Respondent use this student management technique. Because Ms. Collins did not see that two of Respondent's students were off-task during the time when she conversed with Respondent, Ms. Collins thought it was odd and out of character for Respondent to have slapped the classroom door for what to Ms. Collins, was no apparent reason. Although Ms. Collins thought it "odd" when Respondent slapped the door, Respondent's student, A.M., credibly testified that prior to January 13, 2012, he had witnessed Respondent slap her hand against the door a "couple of times before" as a technique for refocusing her students. There was no evidence offered during the hearing that slapping a door with one's hand is an inappropriate classroom management technique. Respondent's act of slapping the door with her hand is not evidence of Respondent's normal faculties being impaired but is instead, under the circumstances, evidence that her faculties were intact. Respondent was able to observe and appreciate that two of her students were off-task and she responded by taking appropriate corrective action to redirect the errant students. Had Respondent not taken such corrective action, it would certainly make for a more credible assertion that her normal faculties were impaired because, then, it could be said that Respondent was unable to appreciate the need to correct her students because of alcohol-related influences on her judgment. This, however, is not the case. Furthermore, the evidence establishes that all of Respondent's students were on-task until Respondent was asked to step into the hallway by Ms. Collins. The fact that all of Respondent's students were on-task when Ms. Collins initially entered Respondent's room is further indication that Respondent was in control of her classroom and not suffering from diminished faculties related to alcohol consumption. When Ms. Collins conversed with Respondent outside of Respondent's classroom, Ms. Collins became concerned about allowing Respondent to return to the classroom because Ms. Collins observed that Respondent "was covering her mouth" with her hand when she spoke, was shifting her body "from side to side," had a strong smell of alcohol emanating from her person, and was speaking louder than usual. Although Ms. Collins had concerns about Respondent's ability "to return to the classroom," Ms. Collins did not monitor Respondent's performance in the classroom upon completion of their conversation. According to evidence stipulated to by the parties, one of the behaviors associated with alcohol-related impairment is "decreased inhibition." The word "inhibition" is defined as "a mental process imposing restraint upon behavior or another mental process." Merriam-Webster Online Dictionary. Respondent's act of covering her mouth while speaking is not evidence of decreased inhibition, but is, instead, evidence of heightened inhibition. Respondent was cognizant of the smell of her breath and by covering her mouth with her hand, she was taking steps which were reasonably designed to deflect any offending breath-related odor. Had Respondent suffered from "decreased inhibition," then it is certainly more likely that Respondent would have spoken to Ms. Collins in such a way as to not have shielded Ms. Collins from any smells that may have been emanating from Respondent's mouth. After completing her initial conversation with Respondent, Ms. Collins immediately shared her concerns about Respondent with Assistant Principal Baron McCombs, Respondent's supervisor. Within a few minutes of being alerted to the situation by Ms. Collins, Mr. McCombs went to Respondent's classroom. Mr. McCombs entered Respondent's classroom and asked Respondent to accompany him to his office. The total time that Mr. McCombs was in Respondent's classroom was "[j]ust a matter of seconds." During the few seconds that Mr. McCombs observed Respondent in her classroom, he noticed that Respondent "was acting very out of character . . . sort of flamboyantly, [and] [h]er voice was sort of boisterous, and her hands were sort of flailing, and her speech patterns were sort of elongated." Mr. McCombs described Respondent as usually being a very reserved person. Although Mr. McCombs observed Respondent behaving in a manner that he considered "out of character," he did not believe that Respondent's behavior was detrimental to her students. Respondent admits the behaviors described by Mr. McCombs, but credibly testified that the observed behaviors were intentionally orchestrated because she was trying to get her students excited about learning about President George Washington and his false teeth. Mr. McCombs and Respondent exited her classroom and walked together to his office. During the walk to his office, Mr. McCombs did not observe Respondent staggering or otherwise having difficulty ambulating. Once in Mr. McCombs' office, Respondent and Mr. McCombs spoke briefly about an incident from the previous day involving one of Respondent's students. Respondent did not elongate her words while speaking with Mr. McCombs in his office, and according to Mr. McCombs, Respondent's demeanor at the time was "reserved." Ms. Collins entered Mr. McCombs office within a few minutes of Respondent's arrival, and once Ms. Collins took her seat, the conversation shifted to the real reason why Respondent had been summoned to the office by Mr. McCombs. Mr. McCombs informed Respondent that she was suspected of being under the influence of alcohol. Respondent's initial response to the accusation was to say, "Oh my God, I can't believe that this is happening," and she then became emotional and started to cry. When questioned, Respondent admitted that she had been drinking the night before. Specifically, Respondent admitted that she had her last drink "somewhere around 1:00 or 1:30 in the morning." Mr. McCombs left the room to report the matter to school Principal David Underhill. While waiting for Mr. Underhill to arrive, Respondent continued to converse with Ms. Collins. Respondent asked questions about the protocols and procedures related to the allegations and also wanted to know the impact of the situation on her employment. While discussing these issues with Respondent for more than an hour, Ms. Collins did not detect that Respondent's "speech was slowed or sluggish." Mr. Underhill eventually arrived and explained to Respondent the procedures and protocols associated with suspected impairment testing. At about 12:30 p.m. Ms. Collins, who had been with Respondent the entire time since entering Mr. McCombs' office, prepared to transport Respondent to the medical clinic for suspected impairment testing. Before leaving for the clinic, Ms. Collins escorted Respondent to her car to retrieve some items. The walk to Respondent's car took about five minutes. During the walk, Ms. Collins observed that Respondent did not experience any difficulty walking and that Respondent was coherent. Ms. Collins drove Respondent to the medical clinic for suspected impairment testing. Once at the medical clinic, Respondent provided two breath samples for a breathalyzer testing machine that measured Respondent's breath-alcohol level at 0.112. Since commencing employment with Petitioner, this was Respondent's first positive, confirmed alcohol test. The testing protocol at the medical clinic was such that Respondent met with a nursing assistant and stayed in the presence of the nursing assistant throughout the testing process. During the 20 or so minutes that Respondent was with the nursing assistant, it was observed by the nursing assistant that Respondent was coherent, she understood instructions that were given to her, and her speech was not sluggish. The nursing assistant did observe that Respondent had glassy eyes. After completing her final breathalyzer test, Respondent met with medical doctor Craig Trigueiro for about five to ten minutes. Dr. Trigueiro has been a physician for 37 years. When Dr. Trigueiro evaluates patients for suspected alcohol impairment, he described his process for face-to-face evaluation as follows: I look at them. I smell their breath. I observe their behavior. I ask them various questions, and then I document everything on the drug testing forms. [T-17] When Dr. Trigueiro met with Respondent, he noted the following on her drug testing form: Admits to last p.m. drinking until 1:00 a.m. In Alcoholics Anonymous. Glassy eyed. Has alcohol on breath. Breath alcohol, 0.112 and 0.112. Assistant principal. Ginger Collins here. Legally under the influence. Acutely intoxicated and cannot drive. Dr. Trigueiro stated that he noticed that Respondent was "a little unsteady on her feet," but on cross-examination, admitted that Respondent's apparent unsteadiness could have been related to causes other than alcohol consumption. Dr. Trigueiro, contrary to his stated practice of "document[ing] everything on the drug testing form," did not note on Respondent's drug-testing form that she was "a little unsteady on her feet." Dr. Trigueiro also testified that he noticed that Respondent was "sluggish in her speech." On cross-examination Dr. Trigueiro admitted that he did not mention on Respondent's drug-testing form that Respondent was "sluggish in her speech." Dr. Trigueiro testified that the reason why he did not note on Respondent's drug-testing form his observations of Respondent's sluggish speech and her being unsteady on her feet, was because he "didn't think that this type of situation would end up in court." Dr. Trigueiro stated that had the instant case been one involving "great bodily harm or death," as opposed to one merely involving an employer for-cause breath test, he would have performed a higher level of medical examination that would have included diagnostic exams, such as the "finger to nose" and "heel to toe" test. In Dr. Trigueiro's opinion, Respondent's intoxication was "cut and clear" because she had a breath-alcohol test which showed that Respondent was "legally intoxicated." Contrary to Dr. Trigueiro's conclusion that Respondent was "legally intoxicated," a breath-alcohol level of 0.08 or higher does not establish, ipso facto, "legal intoxication," but instead merely establishes a rebuttable presumption, as it relates to the operation of a motor vehicle, that a person is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(c), Fla. Stat. Specifically, section 316.1934(2) provides that the presumptions created therein do "not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." Id. Ms. Collins was with Respondent when she was seen by Dr. Trigueiro. According to Ms. Collins, when Dr. Trigueiro spoke to Respondent "he was very upset" and treated Respondent quite harshly. When Respondent told Dr. Trigueiro that she had been drinking until about 1:00 a.m., Dr. Trigueiro said to Respondent: "Do you think I'm a fool?" Dr. Trigueiro went on to state that he had been practicing medicine for over 30 years and that Respondent could not have consumed her last drink at the stated hour and then some twelve hours later have a breath- alcohol level of 0.112. Despite this initial assertion by Dr. Trigueiro, he, nevertheless, admitted on cross-examination that some people are more tolerant of alcohol than others and that not all individuals metabolize alcohol at the same rate. According to Dr. Trigueiro: The more alcohol someone drinks, the more enzymes in the liver exist to detoxify alcohol, which is why someone who drinks all the time has to drink more alcohol to . . . get a buzz to become--you know, feel the central nervous system effects of the alcohol. So someone who drinks a lot has to drink more alcohol simply because the liver enzymes are revved up to detoxify alcohol; whereas someone who doesn't drink much alcohol would become intoxicated at a much lower beverage intake, alcohol intake because the liver enzymes are not induced by chronic drinking. Dr. Trigueiro did not perform any tests on Respondent to determine that rate at which her body metabolizes alcohol. Dr. Trigueiro's medical opinion establishes that Respondent had glassy eyes, but does not establish that Respondent's normal faculties were impaired. When asked specifically if Respondent's "normal faculties were impaired," Dr. Trigueiro could only state that Respondent was "clinically impaired." Petitioner did not offer any evidence as to whether "clinical impairment" is synonymous with impairment of one's normal faculties, and Dr. Trigueiro's response suggests that the two standards are not synonymous. Dr. Trigueiro was more concerned with lecturing Respondent about her alcohol consumption, as opposed to conducting a thorough assessment of Respondent's level of functional impairment. Dr. Trigueiro obviously believed that a more thorough evaluation of Respondent's level of cognitive functioning was unwarranted because in his opinion, Respondent's case was "cut and clear" due to her breath-alcohol level of 0.112 and the fact that this was merely a case involving an employer for-cause evaluation. The greater weight of the competent substantial evidence establishes that when Respondent reported to school on January 13, 2012, and through and including the time that she met with Dr. Trigueiro, she was coherent, she was able to process information that was communicated to her and provide appropriate responses thereto, she was oriented to time and place, her speech was not sluggish or slurred, and she did not have any difficulty ambulating. The greater weight of the competent substantial evidence also establishes that during all times relevant hereto, the glassy appearance of Respondent's eyes was the only objective manifestation of the alcohol that was in Respondent's system and that the presence of "glassy eyes" does not establish in and of itself that a person's normal faculties are impaired. Respondent admits to being a recovering alcoholic. She is actively involved in an alcoholics support group and consults with her sponsor regularly. Near the end of the 2010-2011 academic school year, Respondent was experiencing difficulty in maintaining sobriety. There was no evidence presented that Respondent's challenges with maintaining sobriety during the previous school year negatively impacted her performance in the classroom. In recognition of her challenges, Respondent self-disclosed to the school principal, Mr. Underhill, her challenges with alcohol and requested a leave- of-absence so that she could receive in-patient treatment. Respondent's request for leave-of-absence was granted, and she attended and completed a rehabilitation program. Mr. Underhill, when asked about whether he had concerns about Respondent being in the classroom with students with alcohol in her system, testified that he "would be extremely concerned when a teacher in a classroom has to make multiple decisions, all at any given time, that any type of circumstances can arise [and Respondent's] level of [breath] alcohol is going to impair good judgment." Petitioner did not offer any credible evidence establishing that on January 13, 2012, Respondent's judgment was impaired or that she had difficulty, or would likely have difficulty, making appropriate decisions while in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The violations alleged in paragraphs 10, 12, 13, and 14 of the Administrative Complaint should be dismissed. The violation alleged in paragraph 11 of the Administrative Complaint should be dismissed to the extent that it seeks to establish just cause for termination of Respondent's employment. Paragraph 11 of the Administrative Complaint should be sustained to the extent that it establishes grounds for imposing non-terminable discipline against Respondent. Respondent shall be suspended, without pay, for a period of 60 calendar days. Respondent shall not be eligible to use any accrued leave during her period of suspension. Upon return from her suspension, Respondent, during the remainder of the 2012-2013 academic year, shall at her expense be subject to random alcohol testing as determined by the Manatee County School Board or its designee. A positive alcohol test shall result in further disciplinary action. Upon return from her suspension, Respondent, during the remainder of the 2012-2013, shall be assigned to a position where she does not have responsibility for the supervision of students. During Respondent's period of suspension, she shall remain eligible to participate in the Employees' Assistance Program and shall enroll in and successfully complete an alcohol dependency program. Respondent may be subject to disciplinary action should she fail to successfully complete the alcohol dependency program. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of August, 2012.
