The Issue The issue to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of $2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.
Findings Of Fact The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine. The survey team believed it found a violation of 42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status " On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning, July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until 2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or psycho-social status during that night, such that an attending physician should have been called during the night. Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift). F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through 9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until 9:00 a.m. on the morning of July 2, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed. DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of December, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Respondent, Ann Claycomb (Claycomb), was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 39853-1. On December 24, 1987, Claycomb was employed as an agency nurse by Alpha Health Care, Inc., and was on assignment to Health South Rehabilitation, a skilled nursing and rehabilitation facility in Miami, Florida. While at the facility on that date, Claycomb worked the morning shift 7:00 a.m. to 3:30 p.m., and was assigned to the skilled nursing floor. The skilled nursing floor contained 20-25 elderly, though mostly alert patients. At the commencement of Claycomb's shift, it was her responsibility to administer medications to these patients which conformed with that prescribed by their medication administration record (MAR). Shortly after Claycomb began her rounds, Elaine Wood, the Unit Manager at Health South Rehabilitation, began to receive complaints from patients for what they perceived to be errors in the medicinal drugs administered or attempted to be administered to them by Claycomb. Upon investigation, the following medication errors were discovered. Claycomb administered what she believed to be two Tylenol tablets to patient H.B. Following administration, the patient became lethargic and her vital signs deteriorated but later returned to normal. Lethargy is not a side effect of Tylenol. Although the MAR prescribed two Slow K tablets at 9:00 a.m., and Lilbrax as needed, Claycomb recorded having administered one Slow K tablet and Atarax to patient H.R. Claycomb dispensed Atarax to patient A.J. at 9:00 a.m. when the MAR prescribed dose to be given at 1:00 p.m. Patient refused medication because given at the wrong time. In committing the foregoing medication errors Claycomb's practice fell below the minimal standards of acceptable and prevailing nursing practice in the administration of medicinal drugs. Verification of other complaints received by Ms. Wood could not be verified because, contrary to accepted and prevailing nursing practice, Claycomb did not annotate some patients' MAR upon dispensing medications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending the license of respondent, Ann Claycomb, until such time as she submits proof satisfactory to the Board of Nursing that she can practice nursing safely. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3603 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraphs 2 and 3. 5 & 6. Addressed in paragraphs 46. Addressed in paragraph 4c. Subordinate or not necessary to result reached. Not necessary to result reached. Not necessary to result reached. To the extent supported by competent proof addressed in paragraph 4. Proposed findings 11a and 11d are based on hearsay which does not supplement or explain any competent proof. 12-15. Not pertinent nor necessary to result reached. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Ann Claycomb 4175 South West 98th Avenue Miami, Florida 33165 Lawrence M. Shoot, Esquire 6011 West 16th Avenue Hialeah, Florida 33012 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
Findings Of Fact Petitioner became a Registered Nurse in 1965 and has been engaged in the nursing profession since that time. She was awarded a Bachelor of Science in nursing in 1975 from Florida International University and is presently enrolled in the masters of nursing degree program at the University of Miami. In 1973 Petitioner enrolled in the Primary Care Nurse Practitioner program at the University of Miami and successfully completed the six months program in December 1973. During this program she received 1,000 hours training. Upon completion of this training, Petitioner was eligible for licensure as an Advanced Nurse Practitioner but did not apply for registration at that time although she worked as a Nurse Practitioner immediately upon completion of the training. From January 1974 to March 1977 Petitioner worked at Jackson Memorial Hospital at Miami as an Advanced Family Nurse Practitioner. During this period she received actual instruction of approximately one hour per day for a total of some 710 hours in duties of Nurse Practitioner in addition to the daily experience gained working as a Nurse Practitioner. In 1977 Petitioner moved to Colorado where she worked as a Nurse Practitioner from October 1977 until April 1978 for the Rocky Mountain Planned Parenthood organization and the Mountain Community Medical Clinic. In the latter position she manned a clinic that was some 30 to 40 miles from the nearest doctor and communicated with the doctor by telephone in diagnosing and treating patients. She worked some 348 hours in this position. Additionally, Petitioner taught in the Nurse Practitioner program at the University of Colorado one to three days per week from January until May 1978. Upon Petitioner's return to Florida in May 1978 she applied for licensure as an Advanced Nurse Practitioner and was denied licensure because the regulations were changed effective March 31, 1978, to require a one-year educational training program in lieu of the six months program completed by Petitioner. The current approved program at the University of Miami provides some 1,105 hours of training similar to the training Petitioner obtained at the earlier course.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent has been licensed as a licensed practical nurse (LPN) in the State of Florida, license no. PN 35080-1. The Department is the state agency charged with the responsibility of regulating the practice of nursing within the State of Florida. During the month of September, 1988, Respondent was employed as a night-shift LPN at Parkside, a residential treatment facility for psychiatric patients. On or about September 25, 1988, Respondent attempted to administer the morning medication to a resident patient, J.L. The patient refused the applesauce (which contained the medicine) and struck the Respondent across the wrist with great force. J.L. had been scheduled for a pass (an opportunity to leave the grounds) that day, but following the incident described in paragraph 3, Respondent decided to revoke J.L.'s privilege. When Respondent informed J.L. that the pass was revoked, J.L. became very agitated. Respondent summoned a fellow worker, Pressoir Berrouet, to assist and to restrain J.L. At some point in time between the activities described in paragraphs 3 and 4, Respondent went to her personal automobile and retrieved a stunning apparatus which she owns for her self-protection. Respondent took the "zapper" or "stun gun" to the patio area of the facility where Mr. Berrouet had secured J.L. in a chair. While J.L. was not restrained by bonds (physical restraints are impermissible at this type of facility), Mr. Berrouet had his hands on the patient's arms so that she was effectively pinned and unable to exit the chair. By this time, Lilli McCain, a day-shift employee at Parkside, had arrived at the facility. She observed Respondent approach J.L. who was still pinned in the chair on the patio. Ms. McCain observed a "black something" in Respondent's hand and witnessed Respondent touch J.L. with the instrument. She then heard J.L. scream out, "you pinched me." Respondent had purportedly "zapped" J.L. Moments later, Ms. McCain observed a red mark on J.L.'s chest. Mr. Berrouet had his back to Respondent through out the time of the incident described in paragraph 6. Consequently, he did not see the Respondent touch the resident, J.L. He did, however, hear a click noise which immediately preceded the scream from J.L. Respondent was upset at having been struck by J.L. Subsequent to the events described above, she resigned from her employment at Parkside. Respondent admitted to Laurie Shifrel, the nursing supervisor at Parkside, that she had used a "zapper" on the resident, J.L. Respondent also told Deborah Moon, the residential program coordinator for the Henderson Mental Health Center (a company which owns Parkside), that she had used a "zapper" on the resident, J.L. At hearing, Respondent testified that she did not use the stunning apparatus on J.L. but admitted she had taken the instrument onto the property to frighten J.L. The more compelling proof demonstrates, however, that Respondent did use the stunning apparatus on J.L. Parkside policy did not require residents to take medications against their will. If a resident refused medication, the proper procedure was to note that information on the patient chart so that the physician could be informed. Restraints were not used at Parkside to control resident behavior. In the event a resident were to become uncontrollable, the operating procedures required that the nursing supervisor be called to the facility or 911 for Baker Act referral depending on the severity of the resident's misconduct. J.L. did not have a history of becoming physically abusive at Parkside. It is not acceptable nursing practice to strike a psychiatric patient or to use a shocking device to curb undesirable behavior. Such conduct falls below the minimal acceptable standard for nursing care. Further, given J.L.'s history, it would be inappropriate to attempt to scare J.L. by a threatened use of such a device. Respondent was sincerely remorseful that she had brought the device onto the Parkside property. Evidence regarding a proper penalty, in the event a violation were found to have occurred, was not offered at the formal hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of the violation alleged, placing the Respondent on probation for a period of one year, requiring the Respondent to attend and complete such CE courses as may be appropriate, and imposing an administrative fine in the amount of $500.00. DONE and ENTERED this 2nd day of November, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalache Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2944 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. The portion of paragraph 2 which is addressed in finding of fact paragraph 3, is accepted; otherwise rejected as irrelevant. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is rejected as irrelevant and unnecessary to the conclusions reached herein. Paragraphs 6 through the first four sentences of paragraph 9 are accepted. The fifth sentence of paragraph 9 is rejected as contrary to the weight of the credible evidence. The last sentence of paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of paragraph 11 is rejected as contrary to the weight of the evidence or irrelevant. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as hearsay, irrelevant, or contrary to the weight of the credible evidence. To the extent the facts are set forth in findings of fact paragraphs 3 through 8, paragraphs 13 through 22 are accepted; otherwise rejected as hearsay, irrelevant, or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted. The remainder is rejected as irrelevant or hearsay. Paragraph 24 is accepted. Paragraphs 25 through 30 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: None submitted. COPIES FURNISHED: Lisa M. Bassett Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Jane Frances O'Leary 5295 15th Terrace, N.E. Pompano Beach, Florida 33064 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. DPR CASE NO.: 0106973 DOAH CASE NO.: 89-2944 JANE F. O'LEARY, Respondent. /
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent, Phyllis Carol Holmes, was a licensed practical nurse licensed by the State of Florida under license number 31075-1, employed as a licensed practical nurse at Crestview Nursing and Convalescent Home (CNCH), in Crestview, Florida, as a charge nurse on the 11:00 P.M. to 7:00 A.M. shift. When Respondent first began work at CNCH, she was required to go through a modest training and orientation program starting on June 21, 1983. As part of this program, she was briefed by various section heads on such matters as personnel policies and procedures, knowledge of working units and various aspects of nursing procedures. The checklist utilized in accomplishing this orientation was signed by four different nurses who accomplished the orientation briefings and it reflects that all aspects of the orientation were accomplished. In addition, Respondent was furnished with a complete written job description outlining the summary of work to be performed and the performance requirements for each which she acknowledged. She was also furnished with a policy letter on nursing personnels' responsibilities for charting and a policy letter on decubitus care procedure. Under the above-mentioned policies and procedures, as charge nurse Respondent had the responsibility for some 60 patients. Part of the requirements of her position included: Making rounds when coming on duty to see that there were no special problems; Administering medications; Preparing and controlling all documenta- tion for individual patients; Making rounds at least every two hours and checking on seriously ill patients more often than that; and Administering treatment immediately as needed in those areas where appropriate. Charge nurses also have the responsibility to insure that patients are moved every two hours to be sure that pressure sores (bed sores) do not develop. On or about July 19, 1983, Barbara Ann Griffin was working as a nurse's aide for Respondent who was charge nurse over her on the 11 - 7 P.M. shift. She observed the Respondent involved in a catheter insertion into an elderly female patient whose name she cannot remember. The records admitted at the hearing do not identify the patient by name but merely as a patient number. In any case, the evidence clearly reflects Respondent inserted a catheter into the female patient's rectum by mistake, then pulled it out, wiped it off and then inserted the same catheter into the patient's meatus. The term meatus means passage or opening. In this case, the witness was referring to the external opening of the urethra. This incident was also observed by Linda Gibbons, an aide who also cannot recall the name of the patient. She recalls, however, that Respondent has had difficulty in inserting catheters on other occasions and in each case, would insert it, perhaps in the wrong opening, withdraw it, and insert it again. At the hearing Respondent admits that she had a problem one time with Mrs. Henderson in inserting a catheter, but she denies reinserting it once she discovered it had been improperly inserted. She states that she got a new catheter from the supply room and inserted it rather than utilizing the one previously inserted and denies ever having any other problems with catheters on any other patients. However, the incident in question was brought to the attention of Mr. Hopkins, the nursing home administrator, at the time in question, and when he spoke with Respondent about it, she admitted that she made a mistake, but said the room was dim and she was in a hurry at the time. From the above, it is found, therefore, that Respondent on or about the date alleged, improperly inserted a catheter into a patient without insuring that it was sterile. Ms. Griffin, an aide, also indicates that on or about September 15, 1983, when she was conducting her midnight rounds, she observed the resident in Room 213A having some sort of problems. According to Ms. Griffin, from the symptoms the patient was displaying, it appeared that the patient had had a stroke. She immediately reported this to the Respondent at the nurse's station and then went back to the patient's room. Approximately 15 minutes later the Respondent came in, looked at the patient, and decided not to call the doctor because, according to Ms. Griffin, "it was too late." Ms. Griffin contends that Respondent did not check on the patient again that night, but at 6:00 A.M., told her to get the patient up for the day. Ms. Griffin went off duty at 7:00 A.M. and did not again see the patient who she later heard had been hospitalized with a stroke. Respondent, on the other hand, contends that instead of waiting 15 minutes when advised by Ms. Griffin, she went to the patient's room almost immediately. Admittedly, she did not make any notes in the patient's record about this situation but claims this was because she was giving her midnight medicines and thereafter forgot. However, she claims she checked the patient approximately every 30 minutes all through the night. Respondent contradicts Ms. Griffin's description of the patient indicating that when she first saw her, the patient was displaying no symptoms and when she saw the patient later that morning, she looked fine. Though she did not make notes at the time, the following day Ms. Holmes entered an after-the-fact note in the records which indicated that the patient was checked at 30 minutes past midnight due to an elevation in blood pressure. Her observation at the time was that the patient's color was good and her skin was warm and dry. The patient appeared cheerful and smiling but not talkative and appeared to be in no acute distress. The admission physical done at the time the patient was admitted to the hospital on September 15, 1985, reflects that there was no swelling of the extremities which had a full range of motion and there was no evidence of Babinski's symptoms which relate to a reflex when the tendons to the extremities are palpated. The history also shows that on the day of admission, the patient was found to have a right-sided weakness and slurred speech but there is no evidence to support the symptoms reported by Ms. Griffin. In substance, then, it appears that while the Respondent failed to report the patient's symptoms to the physician, there is some substantial question that the patient was in the acute distress indicated by the witness, Ms. Griffin. Further, Ms. Griffin admitted that she was in and out of other rooms in the home throughout the remainder of the shift and though she contends she is sure Respondent did not visit the patient during the remainder of the shift, there is no way she can be so certain. In paragraph 4 of the Administrative Complaint, Petitioner alleged that on or about April 11, 1984, Respondent administered Ascriptin to a patient in her care even though the physicians's order for the patient had discontinued administration of this substance on April 4, 1984. Review of the documentation submitted by the Petitioner in support of its claim here, specifically the medication administration record for patient number 17, reflects that on April 11, 1984, the Respondent did administer Ascriptin to the patient. The physician's orders clearly reflect that on April 4, 1984, Ascriptin, along with several other medications were discontinued by the physician. However, on April 16, 1984, according to the medication administration record, another nurse also administered Ascriptin. Petitioner admits that the medical administration record did not show the fact that the medication was discontinued. The entry indicating discontinuance was made well after the second administration by the other nurse. However, Ms. LeBrun, the then Director of Nursing for CNCH, contends that even though the medication administration record did not show the discontinuance, Respondent should have noted that the medicine had not been given for quite a while and gone to the doctor's orders to see why that was the case. Had she done so, she would have noticed the order indicating the medication was discontinued. Ascriptin, however, is a pain medication and the doctor's original order indicated it was to be given in the event of pain. If the patient was not suffering pain, the patient would not have called for it and it would not have been given even if authorized. Respondent indicated that the patient did not complain of pain often. When she administered the medication last, there was no indication on the medication administration record that it had been discontinued and even as of April 11, 1984, when the medication was administered by the Respondent, seven days after the doctor's order discontinuing it, the medication was still in the patient's drawer on the medication cart. Inez Cobb has worked at CNCH for approximately 15 years as a nurse's aide and worked for Respondent during the 1983-1984 period. As she recalls, on the morning of May 2, 1984, while getting the patients up for the day, between 6:00 and 6:45 A.M., she entered the room of patient Haas. When she came in she observed the patient slumped in his chair. She checked his blood pressure and found it to be very low and his pulse was weak and faint. She immediately reported this to the Respondent who did nothing and as of 7:00 A.M., when the witness left duty, Respondent had failed to check on the patient. As she recalls, however, the incoming charge nurse who was to replace Respondent on the next shift also failed to check on the patient. Respondent contends that when she was notified of Mr. Haas' condition, she had the medicine nurse for the day shift check him and this nurse, acting on Respondent's instructions, called the doctor almost immediately after the Respondent was notified. Respondent was giving report to the oncoming charge nurse when Ms. Cobb mentioned Mr. Haas to her, and when she finished this report, she went and checked on him. Admittedly, she did not notify the physician. The nurse's notes made by Respondent on the day in question fail to reflect any mention of this incident. Ms. LeBrun noting that Respondent's nurse's notes fail to reflect any acknowledgment of the problem, indicated that proper practice would have been for Respondent to have immediately gone to observe the patient, made her own assessment, immediately called the physician, and then made her nurses notes entry. This is so especially in light of the comment regarding the incident in the flow sheet made by Ms. Cobb regarding the patient's condition. Also, according to Ms. Cobb, on May 11, 1984, she noticed a red area on the coccyx of patient Martin. She reported this to the Respondent several times even after the skin broke, but to her knowledge, nothing was done about it for several days. It is her understanding that when an aide sees an area like this, she is not allowed to treat it herself but must report it to the nurse on duty which she did. Unfortunately, the red spot turned into an ulcer which remained on the patient until he died at some later date. The decubitus care procedure and policy letter reflected above outlines the method of care to be taken with regard to the prevention of ulceration. It calls for keeping the patient's skin dry, massage and frequent turning. Ms. Gregg noted this situation on the flow sheets for May 11, at 5:15 A.M. The nurse's notes prepared by the Respondent at 5:15 A.M. in the morning on May 11 reflect merely that a bed bath was given with a linen change and that a broken area was noted on the patient's right buttox. There is no indication that any treatment was given by the Respondent or that the physician was notified. Respondent admits that she knew Mr. Martin had a broken area and she treated it often. Admittedly, she did not chart her treatment properly because she had to give all medicines at the time and do all the charts for more than 60 patients and did not get around to it. She contends she may not have heard Ms. Cobb report this situation to her because she is somewhat hard of hearing from time to time and as a result, has asked all her aides not to just give her information on the run but to be sure to get her attention when they need to report something. On the issue of whether Respondent's performance measures up to the standard of care required of nurses in Florida, Ms. LeBrun contends that the standard of care for licensed practical nurses is not that much different or much less than that required for registered nurses because in this State, licensed practical nurses do many of the same procedures often reserved for registered nurses elsewhere. In the area of medications, for example, there is no room for error. As a result, standards are high and Ms. LeBrun feels there is a need for checking and double checking. In the situation regarding the Ascriptin here, she believes that even though it is strictly a pain medication, the Respondent should still have checked the doctor's orders to insure the requirement was still valid before administering a medication which the records show had not been administered for quite a while. With regard to the catheter insertion, Ms. LeBrun states the fact that the patient did not develop an infection is irrelevant. The issue concerns the following of a procedure using a contaminated catheter which could easily have developed an infection for the patient. Referring to the stroke patient, Ms. LeBrun agrees with the testimony of Ms. Barrow, another licensed practical nurse, who was the day shift charge nurse relieving Respondent at 7:00 A.M. in the morning. As she recalls the situation on September 15, she observed the patient in question being brought out of the dining room. At that time, the patient was semi-lethargic. Ms. Barrow is of the opinion that if the patient was wakened at 6:30 A.M.; she would not have been in the condition she was in at 11:30 A.M. for a long time. Therefore, the stroke must have taken place just before 11:30 A.M.; as the patient was not in such poor shape during the preceding 11:00 P.M. - 7:00 A.M. shift. Ms. LeBrun feels that if the patient was in condition as described by the night nurse, it is not likely they would have gotten her up at 6:30 A.M. to go to the dining room. Nonetheless, she feels that Respondent should have responded sooner as the symptoms described by the night nurse are consistent with strokes as well as other things. On that basis, the Respondent should have made an assessment on the vital signs and notified the doctor immediately. Turning to the issue of the decubitus situation on the patient with the ulcer, Ms. LeBrun feels that the Respondent should have documented what she did for the broken area. If the records do not say what was done, it is presumed not to be done. When notified that the broken area was getting larger, the Respondent should have documented what treatment she administered since the nursing home had a procedure to be followed for this type of condition and it appears respondent did not follow this procedure. Several of the nurses who worked for the Respondent indicated that they had had other professional problems with her. For example, Ms. Griffin indicated that in addition to the catheter incident, she had instances when she would report problems to the Respondent but Respondent would make no record of it. She would, for instance, report patients with rashes to the Respondent but nothing would be done about it. It got so bad that the witness finally started to request Respondent to initial reports she made. Ms. Gibbons also has noticed Respondent to have had difficulty on other occasions than that involved in this hearing with the insertion of catheters. Ms. LeBrun prepared at least one efficiency report on Respondent which had to be reaccomplished because the Respondent would not sign for it and acknowledge the rating. In addition, Ms. LeBrun counseled Respondent on at least one occasion for jumping channels. On the basis of Ms. LeBrun's testimony, it would appear that there was some friction between the two nurses but this does not necessarily, in light of all the other evidence, indicate that Ms. LeBrun's testimony is biased or tainted. On the basis of the above incidents, Ms. Holmes was terminated from employment with the nursing home on June 29, 1984, because of poor performance. On December 21, 1983, the Board of Nursing entered an Order pursuant to a stipulation executed by the Respondent in another case which resulted in her being fined $250.00, being placed on probation, and being required to take certain continuing education courses. The stipulation reflects that the Respondent denied the allegations of fact contained in the Administrative Complaint which supported it which related to various failures by Respondent to conform to the minimal standards of nursing practice. Respondent indicated that she entered into the stipulation simply because she had no money with which to retain an attorney and was forced, therefore, to utilize the services of Legal Aid. It was her Legal Aid attorney who talked her into stipulating on the basis that she had no witnesses to support her position. She continues to deny the allegations in the former Administrative Complaint, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a licensed practical nurse in the State of Florida be suspended for a period of one year or until such time as she has completed a course of remedial study prescribed by the Board of Nursing and to its satisfaction, and that upon her completion of such course of study, she be placed on probation for a period of one year under such terms and conditions as prescribed by the Board of Nursing. RECOMMENDED this 29th day of July, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1985. COPIES FURNISHED: William B. Furlow, Esquire, and Celia Bradley, Esquire Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Dale E. Rice, Esquire Post Office Box 687 Crestview, Florida 32536 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Judie Ritter Executive Director Board of Nursing Room 504, 111 E. Coastline Dr. Tallahassee, Florida 32202 =================================================================
