The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be resolved in this proceeding is whether Petitioner was constructively terminated from her employment with Respondent because of her national origin.
Findings Of Fact Petitioner is a female of German and Turkish descent and has a somewhat heavy German accent. In 1995, Petitioner was employed with Bay Medical Center, a hospital in Panama City, Florida. Petitioner was employed as a unit secretary for one of the hospital units. She voluntarily resigned that position in 1997. In March of 1998, Petitioner was again employed by Bay Medical Center as a unit secretary. She was a member of a secretarial float pool and floated from one unit of the hospital to another as needed. Later, due to a hospital reorganization, the unit secretarial position was reclassified to a Clerical Support Associate (CSA) position. The CSA position included more duties than the unit secretary position and had a higher wage. As a CSA, Petitioner was responsible for providing essential clerical support as required by patient’s and clinical staff. Her duties included entering physician orders into the hospital’s computer system, scheduling tests and procedures for patients, charging and crediting patient bills, greeting patients and visitors, chart maintenance, and otherwise assisting as needed. Petitioner eventually, was assigned as a full-time CSA in the Critical Care Unit (CCU). The CCU was a very small unit with only eight open beds and was the least active unit in the hospital at that time relative to the duties of a CSA. The lower activity resulted in less work and less stress for the CSAs assigned to the CCU. Because of the light workload and low- stress environment for CSA’s, P.J. Dotson, Petitioner's supervisor in the CCU, used the CCU to train new CSAs. Because Petitioner had experience with the work, she occasionally helped train new CSAs. At some point, Ms. Dotson determined that the CSAs in the CCU were only performing two and a half to three hours of clerical work during an eight-hour period. The small amount of productivity by the CSAs was unacceptable. In order to increase the CSAs’ productivity, Respondent changed the job role of the CSAs in the CCU, including Petitioner's, and added basic patient care tasks. Some of the new tasks included feeding patients and helping patients on and off bedpans. Additionally, the CSAs' hours changed to require them to come in earlier. On December 12, 2000, Petitioner was disciplined by Ms. Dotson for complaining to a physician about Respondent's decision to change the job requirements of the CSAs in the CCU. The physician was Respondent's "customer," not Petitioner's supervisor and Ms. Dotson felt that it was inappropriate for Petitioner to discuss her employment situation with a "customer." Ms. Dotson’s position was a reasonable position by an employer. After the disciplinary action, Petitioner declined the upgraded CSA position because she did not want to change her working hours and did not want to do hands-on patient care. Rather than terminating Petitioner's employment, Respondent allowed Petitioner to transfer to the EKG department to work as an EKG technician which position also included some clerical tasks. Petitioner served as an EKG technician for two months. During those two months, Petitioner experienced numerous performance problems and was disciplined several times by Ms. Dotson. Petitioner admits she simply was not very good at direct patient care and performed poorly as an EKG technician. On February 20, 2001, Ms Dotson issued Petitioner a Notice of Corrective Action based on a number of issues that had arisen beginning around January 15, 2001. The Notice states, "During week two, we started experiencing several problems with the paper work [Petitioner] was doing. Files were not in correct order (alphabetical), Cardiology Associates were complaining about paperwork, [and] the unsigned copies of Echo reports were not getting to M.D.s for their signature.” These problems were detrimental to efficient and timely patient care in an area of health care, cardiology, where efficiency and timeliness of care are very important. Due to these concerns, Ms. Dotson changed Petitioner's orientation schedule and established specific times to achieve performance goals. However, the changed schedule did not help resolve Petitioner's performance problems. After Petitioner was fully trained to perform an EKG procedure, Petitioner "developed the inability to perform this task" within a few weeks. Petitioner also improperly double-billed a large number of Respondent's patients. The double billing was a major oversight on Petitioner's part that could have been seriously detrimental to Respondent's ability to serve Medicare and Medicaid patients if the problem had not been discovered and resolved by Ms. Dotson. On March 8, 2001, Petitioner received a final written warning because her work-related problems persisted. At that time, Ms. Dotson informed Petitioner that she needed to find a different position within Bay Medical Center, resign, or be terminated. Ms. Dotson also took this opportunity to coach Petitioner on how to sell herself to other managers, so Petitioner could acquire another position. One of the areas Ms. Dotson discussed with Petitioner was her communication skills. Ms. Dotson explained that she needed to communicate better because she has an accent, does not articulate well and often speaks with her hands in front of her mouth thereby making it difficult for others to understand her. In addition, Ms. Dotson explained to Petitioner that she demonstrated a somewhat negative attitude and failed to take responsibility for her mistakes. These traits were concerns for managers in the various departments throughout the hospital. These traits were also demonstrated at the hearing. There was no evidence that any action taken by Ms. Dotson was done for discriminatory purposes or that the reasons given for such action were pretextual. Indeed, Petitioner admitted that Ms. Dotson did not discriminate against her. However, because of these traits, Petitioner had a difficult time finding another position within Bay Medical Center, even though there was a high turnover rate among CSAs throughout the hospital. Eventually, Petitioner was accepted by Ms. Pat Owens to serve as a CSA on Three South, a medical/surgery unit at Bay Medical Center. Indeed, Petitioner’s transfer to Three South was against hospital policy since Petitioner was slated for termination from her earlier position and had received her final warning. However, in order to help Petitioner, the transfer was allowed. Although Petitioner had served as a CSA in CCU previously, the working atmosphere of Three South was very different. Three South was, as Petitioner described it, a "very, very busy floor." Three South had 39 beds and over 200 physicians on staff. However, during Ms. Owen’s time as manager of Three South, Ms. Owens did not formally discipline Petitioner regarding her job performance. Ms. Owens did not testify at the hearing. Petitioner admits that she made mistakes while Ms. Owens was her supervisor. She testified that there were "minor things" that Ms. Owens would make her redo. However, under these facts, the fact that Ms. Owens chose not to discipline Petitioner formally is not evidence of discrimination. The hospital was not satisfied with the way Three South was being managed by Ms. Owens. The unit staff were not following various hospital protocols impacting patient care. Numerous complaints were made by both patients and doctors regarding the quality of care being delivered by the unit staff. Therefore, in April, 2002, Ms. Andi Bush was hired as the manager of Three South. She was hired in order “to get Three South into shape.” Ms. Bush also became Petitioner's supervisor and demanded considerably more performance and compliance with protocols of all the employees on Three South. After Ms. Bush became manager, Petitioner claims that Ms. Bush commented on Petitioner's accent and that "[Ms. Bush's] hearing would be perfect if anybody else would talk to her. But whenever I said something to her or tried to quote her [sic] about something, all of a sudden she had this major problem." This alleged evidence is not convincing. Ms. Bush wears a hearing aid and relies on "lip-reading" because she has a significant amount of hearing loss due to nerve damage. She often has difficulty hearing others' words and asks others to repeat themselves. This difficulty was demonstrated at the hearing. In addition, Petitioner did not provide any details about the times Ms. Bush allegedly commented on her accent. There is no evidence in the record about how often or in what context any such comment allegedly happened. Given the facts that Ms. Bush is hearing impaired and reads lips and that Petitioner often speaks with her hands in front of her mouth, has an accent and does not enunciate her words, comments by Ms. Bush regarding Petitioner’s accent do not support a finding of discrimination. Ms. Bush, unlike her predecessor, enforced the hospital protocol’s and demanded that her staff comply with those protocols. It was clear that Ms. Bush's job, as the new manager of Three South, was to impose accountability and discipline on that unit. Indeed, Petitioner testified that, during Ms. Bush's initial meeting with the employees on Three South, Ms. Bush made it clear that she believed Three South was a "mess" and that "she was going to straighten it out." Petitioner failed to provide any evidence that Ms. Bush applied the rules or issued discipline inconsistently among the employees or that employees of other nationalities were treated better than her. There is no comparator evidence in the record to demonstrate that Ms. Bush's discipline of Petitioner was for discriminatory purposes. Under Ms. Bush's administration, Petitioner was disciplined on several occasions for various performance issues. On May 23, 2002, Petitioner was issued a written warning for failing to enter a physician's order. The order requested a consultation with a cardiologist to determine what treatment the patient needed. Because Petitioner did not enter the order, the consultation was delayed for over 24 hours. When the consultation was eventually performed, the cardiologist determined that the patient needed a pacemaker. Petitioner's mistake could have had dire consequences for the patient involved. Petitioner does not deny that she failed to enter the order but claims that she was told by her co-workers that she did not need to enter the order because the patient was going to be transferred to a different floor. However, Petitioner knew that other co-workers could not instruct her not to follow the hospital’s protocol for entering a physician’s order in a timely manner. The discipline she received was clearly not pretextual and was appropriate for her failure to enter the physician’s order. On June 5, 2002, Petitioner received a written warning for excessive absenteeism. Again, Petitioner does not deny that she was excessively absent. Instead, Petitioner alleges that her absences "weren't really more extensive than anybody else's." Petitioner later admits, however, that these other employees were also punished for their tardiness and absenteeism. Petitioner provided no other evidence that Respondent applied its attendance policy inconsistently among the employees. Given these facts, the evidence is insufficient to demonstrate that Petitioner’s disciplinary action was discriminatory or pretextual. On July 3, 2002, Petitioner was suspended following two different incidents. First, Petitioner placed several documents in the wrong patient's chart. Second, Petitioner failed to properly consult a physician regarding a patient care issue. Both of these incidents could have had detrimental impact on the health and safety of Respondent's patients. Petitioner offered no evidence to dispute the accuracy of the report of these incidents. On August 7, 2002, Ms. Bush held a corrective action meeting with Petitioner to discuss the following incidents: (1) Petitioner's repeated failure to enter consultations into the computer; (2) Petitioner's repeated failure to consult physicians in a timely manner; (3) a patient complaint that her call light was not being answered during Petitioner's shift; and (4) Petitioner’s failure to file a stack of documents as she was assigned to do, but instead twice sent them to medical records to file. Petitioner denies making these mistakes, but her denial is based on her lack of memory for the events. Indeed, Ms. Bush based the disciplinary action on complaints and witness statements she received form a variety of sources. Again there was no evidence that the Ms. Bush’s actions were discriminatory or pretextual. Finally, on August 14, 2002, Petitioner was given her annual performance appraisal. Petitioner was rated as "unsatisfactory" based on her record of discipline and the real potential of her performance failures to adversely impact patient care. Based on her previous performance problems and the performance appraisal, Petitioner was told that she could no longer work as a CSA at Bay Medical Center. Indeed, Ms. Dotson who was consulted regarding Ms. Bush’s decision, concurred that Petitioner should not be transferred to any CSA position or position involving patient care due to past mistakes which were potentially detrimental to a patient’s health. Respondent gave her two weeks to find a different position within the hospital, resign, or be terminated. Respondent, through its personnel department, tried to assist Petitioner to find a position within the facility. After reviewing the printout of available positions with Petitioner the only positions that were open, and for which Petitioner was qualified, were in Dietary, Housekeeping, and Laundry. Petitioner did not offer any evidence of any other positions outside those areas that were available and for which she was qualified. Petitioner refused to apply to any of these positions and, instead, resigned on August 28, 2002. The evidence did not demonstrate that her resignation was forced or caused by any discriminatory actions by Respondent. Again, Petitioner failed to provide any evidence that Respondent discriminated against her and the Petition For Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 25th day of October, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Margie Beach-Gutierrez 5807 Butler Drive, Apartment 4 Callaway, Florida 32404 L. Taywick Duffie, Esquire Price H. Carroll, Esquire Hunton & Williams, LLP 600 Peachtree Street, Suite 4100 Atlanta, Georgia 30308 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
