The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
The Issue Did Respondent, Ladybird Academy of St. Cloud (Ladybird), commit a Class I violation of The Child Care Facility Handbook, section 2.8,F.1? If so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with licensing child care facilities. Ladybird holds a child care facility license from the Department, authorizing it to operate a child care facility. Ms. Peralta was the director of Ladybird at all times material to this matter. The Department had never sanctioned Ladybird. In February 2020, Ladybird was providing child care for N.M., a two- year-old at the time. The events that are the subject of this proceeding occurred on February 5, 2020. The incident upon which the Department bases its charges was video recorded. N.M. and the other children at Ladybird had small cots, elevated slightly off the floor. The cots are made of a slight metal frame with fabric stretched across it. The frames are lightly padded. On February 5, 2020, a Ladybird caregiver, Jennifer Montes, was having difficulty getting N.M. to lay down for a nap. She was sitting on the floor beside the cot. Each time Ms. Montes placed N.M. on the cot, N.M. resisted and tried to get back up. This happened several times. After struggling to get N.M. to stay on the cot, Ms. Montes shoved him down onto the cot from her sitting position. During her attempts to force N.M. to remain on the cot, Ms. Montes did not lift N.M. up into the air. During these attempts, N.M.'s head hit the cot frame hard enough to bruise N.M.'s cheek. When N.M. came home, N.M.'s mother noticed a small mark on N.M.'s cheek. It had not been there in the morning when she left N.M. at Ladybird. By the next evening, the mark was a visible bruise. On Friday, February 7, 2020, N.M.'s mother showed Ms. Peralta a photograph of the bruise and asked her to investigate. Ms. Montes had not reported the incident to Ms. Peralta. Over the weekend, Ms. Peralta reviewed the video recordings of the preceding week and identified the incident causing the bruise. On Monday, Ms. Peralta told N.M.'s mother what she learned and showed her the recording. She also discharged Ms. Montes. The evidence does not prove that the bruise required medical care or created a risk of death or serious harm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter its final order finding that Respondent, Ladybird Academy of St. Cloud, committed a Class I violation of The Child Care Facility Handbook, section 2.8,F.1., and imposing a fine of $100.00. DONE AND ENTERED this 30th day of November, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2020. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Brian Christopher Meola, Assistant General Counsel Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) Patricia Peralta Ladybird Academy of St. Cloud 3475 Progress Lane St. Cloud, Florida 34769 Sheila M. Rodriguez-Figueroa, Esquire Unit 2409 150 East Robinson Street Orlando, Florida 32801 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Florida Administrative Code Rules 65C- 22.009(2)(b)1. and 3., are invalid exercises of delegated legislative authority and whether a statement in a Gold Seal Quality Care Program Fact Sheet constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department of Children and Families (DCF or Department) is the agency of the State of Florida that regulates child care facilities, large family child care homes, and family day care homes within the state to protect the health and welfare of the children in care. Petitioner RCMA is a child care facility licensed by the Department and located in Arcadia, Florida. RCMA's current child care facility license #CI2DE0009, is effective January 1, 2012, through December 31, 2012. Child care facilities, large family child care homes, and family day care homes in Florida that meet criteria demonstrating that they exceed the minimum licensing requirements and promote quality child care are eligible for Gold Seal Quality Care designation by DCF. Designation indicates a facility providing a higher standard of care. Gold Seal Quality Care designation has no bearing on licensure as a child care facility, large family child care home, or family day care home. A Gold Seal Quality Care designation is an authorization required by law in order for a facility to receive certain tax benefits and enhanced school readiness program reimbursement from the Early Learning Coalition. Issuance of a Gold Seal Quality Care designation is not merely a ministerial act and it is not a license required primarily for revenue purposes. Gold Seal Quality Care designation is a license. DCF granted RCMA Gold Seal designation on March 31, 2008. On December 29, 2011, DCF issued an Administrative Complaint alleging that RCMA committed a Class I licensing violation. The Administrative Complaint sought to impose sanctions against RCMA's child care facility license and to revoke RCMA's Gold Seal designation. On or before April 27, 2012, RCMA's accrediting association, the National Association for the Education of Young Children (NAEYC), revoked RCMA's accreditation. There was no evidence at hearing as to whether its action was based solely upon DCF's allegations in the Administrative Complaint that RCMA had committed a Class I licensing violation.1/ On or about May 24, 2012, RCMA was notified of the Department's intended action to revoke its Gold Seal designation because NAEYC had revoked RCMA's accreditation. The notification letter advised RCMA of its right to request a hearing, but was not in the form of an Administrative Complaint. It was stipulated by the parties that Petitioner is substantially affected by rules 65C-22.009(2)(b)1. and 3. On August 6, 2012, Administrative Law Judge R. Bruce McKibben issued a Recommended Order on the Administrative Complaint in DOAH Case No. 12-750, concluding that DCF had failed to prove the Class I licensing violation and recommending that the Administrative Complaint and Revocation of Gold Seal Quality Care Designation be dismissed. On August 27, 2012, DCF entered a Final Order rescinding the Administrative Complaint. Ms. Sherrie Quevedo was the Child Care licensing Supervisor for the geographic area including Arcadia, Florida, at the time of the formal hearing on the Administrative Complaint against RCMA's child care facility license. Ms. Quevedo was a supervisor called by Respondent and her statements as to policies of DCF were regarding matters within the scope of her employment. Ms. Quevedo did not work in the policy-making arm of DCF, and she could not speak authoritatively as to the Department's interpretation of statutes implemented by DCF. Ms. Deborah Russo is the Director of Child Care Regulation Office at DCF, where she is responsible, in conjunction with Department leadership and the General Counsel's Office, for establishing Department policies and implementing statutes setting out legislative policies. The Department terminates the Gold Seal designation for a facility when its accreditation expires or when it is revoked by the accrediting organization. Ms. Russo testified that it is DCF's interpretation of section 402.281, Florida Statutes, that the Department does not have discretion not to terminate a child care facility's Gold Seal designation if that facility's accrediting association revokes the provider's accreditation. The Gold Seal Quality Care Program Fact Sheet contains the statement that "section 402.281(3), Florida Statutes, requires that the Department deny or revoke a child care provider's Gold Seal Quality Care designation" if the provider has a Class I violation within a two-year period (the Statement). The fact sheet was distributed to Gold Seal child care facilities throughout the State of Florida in 2009 and the Statement is of general applicability to all child care facilities designated as Gold Seal Quality Care providers. The Statement, or a substantially similar statement reflecting the Department's interpretation of the statute, has not been adopted as a rule under chapter 120, Florida Statutes. RCMA has committed no licensing violations defined by DCF rule as a Class I violation during the two years preceding the rule challenge petition in this case.
Findings Of Fact Petitioner was incorporated on July 27, 1987. The original incorporators were Irene M. Kent and her husband, Jay Easterbrook. The original directors were Ms. Kent and Mr. Easterbrook. Ms. Kent and Mr. Easterbrook have remained the only directors of Petitioner. They are also the only shareholders. Since the formation of Petitioner, Ms. Kent has owned 51% of the shares and Mr. Easterbrook has owned 49% of the shares. Mr. Easterbrook is the president, and Ms. Kent is the vice- president of Petitioner. Petitioner is in the business of general contracting. Prior to deciding to form petitioner, Ms. Kent had been a schoolteacher for five years. She had had no prior significant experience in contracting and holds no contracting license or registration. Her educational background is in education. Mr. Easterbrook is a licensed general contractor and is qualifying agent of Petitioner. He is a civil engineer with a college degree in engineering. When Petitioner was incorporated, Mr. Easterbrook was employed full- time by National Seal Company as manager of the southeast region. A substantial portion of the work that he supervised was the installation of industrial plastic liners manufactured by National Seal Company. Petitioner's first job, which was for $20,000, was for the installation of a National Seal liner in Ellaville, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. Toward the end of the job, a welder who worked for National Seal assisted in the installation. However, Ms. Kent, not Mr. Easterbrook, performed the on-site supervision and inspections of the job, which was completed on October 26, 1987. Petitioner's second job, which was for less than $10,000, was for the installation of a National Seal liner in Bostwick, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. The job was performed shortly after the Ellaville job. Petitioner's third job, which was for $15,000, was for the installation of a National Seal liner in Hardee County, Florida. The contract for this job, which Petitioner learned of through Mr. Easterbrook's contacts, was entered into at about the same time as the Bostwick contract. Petitioner's only other job to date was as the general contractor responsible for the construction of 14 relocatable classrooms for various public schools in Seminole County, Florida. Ms. Kent learned of this job, which was for about $300,000, through an announcement in the local newspaper. This job was completed on March 31, 1988 and earned Petitioner a profit of $40,000. Mr. Easterbrook does all of the estimating for Petitioner in the preparation of its bids for contracts and interpretation of blueprints and specifications contained in invitations for bids. Ms. Kent assists in this part of the work by pricing materials. She also hires, supervises, and pays the subcontractors; purchases materials and equipment; and performs the bookkeeping, although Petitioner also employs an independent public accountant. Mr. Easterbrook quit his job with National Seal Company effective February 16, 1988, and took another week to close his office. He has since worked exclusively for Petitioner. Prior to his departure from National seal Company, Mr. Easterbrook devoted considerable time, although often by telephone only, rendering technical assistance to his wife with respect to the above- described jobs. In February, 1988, be spent 40-50 hours a week working for Petitioner where he has been on the payroll since January or February, 1988.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application of Petitioner for certification as a minority business enterprise. DONE and RECOMMENDED this 10th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0355 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted. 4-5. Rejected as unnecessary. 6 and 9. Adopted in substance. 7-8. Adopted. 10. Adopted, except that first sentence is rejected as legal argument and reference to licensure in eight other states is rejected as unnecessary. 11, 14 and 16. Rejected as unnecessary. 12-13, 15. Adopted. 17. Adopted, except that reference to Ms. Kent's work hours is rejected as unsupported by the greater weight of the evidence. 18-19. Adopted. 20, 24-25. Adopted in substance. 21. Rejected as legal argument. 22-23 and 26-27. Adopted. COPIES FURNISHED: Irene M. Kent Diversified Tech, Inc. 2296 Matthew Circle Deltona, Florida 32738 Deborah S. Rose, Esquire Department of General Services 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
The Issue Should the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. (Wonderland), be terminated under the authority of section 402.281(4)(a), Florida Statutes (2015)1/ on account of a “class I violation?”
Findings Of Fact Wonderland is a child care facility licensed by Hillsborough County. Ms. Wilson owns and operates Wonderland. The Department awarded Wonderland a Gold Seal Quality Care designation effective May 9, 2011. The Department’s letter advising Wonderland that it had been awarded the Gold Seal designation also advised Wonderland that to maintain the Gold Seal it must not have a “class I violation.” (Ex. 2). Wonderland’s application for a sales and use tax exemption, signed by Ms. Wilson, stated that to qualify for the exemption the application must hold a “current Gold Seal Quality Care designation as provided in s. 402.281, F.S. ” (Ex. 3). Section 402.281(4)(a) states that a child care provider must not have any “class I violations” in order to maintain its Gold Seal designation. Ms. Wilson knew, or should have known, that a “class I violation” would result in the loss of Wonderland’s Gold Seal designation. On April 20, 2015, Hillsborough County’s Children and Youth Services issued an Administrative Complaint (Complaint) against Wonderland proposing to administer a “class I violation” based upon a determination that Wonderland did not provide adequate supervision for the children. Specifically, the Complaint charged that on March 5, 2015, a four-year-old child left the facility and walked across the street without the staff’s knowledge. The Complaint told Ms. Wilson that Wonderland had a right to request an administrative hearing to challenge the Complaint. Ms. Wilson chose not to challenge the Complaint. She elected for Wonderland to pay the proposed $250.00 fine. Ms. Wilson did not think of the effect accepting the Complaint would have upon Wonderland’s Gold Seal Quality Care designation. The Complaint did not advise of this collateral consequence. But, as found above, Ms. Wilson and Wonderland knew or should have known of it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, terminate the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. DONE AND ENTERED this 9th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2016.
The Issue Whether Petitioner, Department of Children and Families ("Department"), established by clear and convincing evidence that Respondent, A Child's World Childcare and Preschool, Inc. ("A Child's World"), committed a Class I violation; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for the enforcement of sections 402.301 through 402.319, Florida Statutes, governing the regulation of child care facilities in Florida. Since 2003, A Child's World has operated continuously as a licensed child care facility at 703 Southwest 6th Street, Okeechobee, Florida. By all accounts, A Child's World is an exemplary facility. A Child's World is recognized as a Tier 4 provider by the Early Learning Coalition, the highest quality indicator in the community. Since 2004, A Child's World has been Gold Seal accredited. The incident giving rise to the Administrative Complaint occurred on January 29, 2019, at the child care facility. In August 2018, K.P. began attending A Child's World along with her older sister, A.P. On the date of the incident, K.P. was four years old and A.P. was five years old. During the morning of January 29, 2019, K.P., A.P., and other children were playing on the outdoor fenced-in playground at the facility. At that time, all of the children were supervised by a teacher. Subsequently, Angela Osterman, center director for A Child's World, called for A.P to be brought from the playground to the office for dismissal. When K.P. went to the office along with A.P., Ms. Osterman brought K.P. back to the playground and brought her directly to Deion Hayes, the teacher responsible for the group of children still on the playground. Subsequently, Ms. Osterman made an intercom announcement to all staff not to allow K.P. to accompany her sister when only the sister is called for dismissal. At 11:55 a.m., the children and teacher came inside the building from the playground. However, K.P. was left outside on the playground, alone and unsupervised because the teacher who was responsible for her confused his "head count" of the children when he brought the children back in the building.1/ K.P. was alone and unsupervised playing on the playground for approximately 40 minutes. At 12:37 p.m., K.P. exited the playground by climbing a five-feet high chain-link fence, which surrounds the perimeter of the playground. Almost immediately, facility staff saw K.P. standing close to the front of the building (approximately three and one-half to four feet from the building) in front of the infant room, playing with rocks in a flower bed, at which time K.P. was retrieved and brought back inside the building for an immediate evaluation. K.P. never left the facility premises. A video recording shows K.P. on the playground, alone; climbing over the fence at 12:37 p.m.; and being retrieved and brought back inside the building almost immediately thereafter. K.P. was not injured or in any distress following the incident. In fact, K.P. was smiling and in very good spirits following the incident. Under the particular facts of this case, the Department failed to prove by clear and convincing evidence that the inadequate supervision of K.P. posed an imminent threat which could or did result in her death or serious harm to her health, safety, or well-being. At 1:12 p.m., Malissa Morgan, the owner of the facility, self-reported the incident. In addition, K.P.'s mother was contacted and came to the school. K.P.'s mother kept K.P. in school for the remainder of the day and K.P. returned to the school the very next day. A Child's World fired Mr. Hayes on January 29, 2019. In addition, the next day, A Child's World conducted a full retraining of its staff and imposed stricter policies regarding supervision. K.P. continued attending A Child's World for months after the incident and returned after summer vacation. K.P. and A.P. are currently enrolled for this new school year.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding that A Child's World did not commit a Class I violation and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of September, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2019.
Findings Of Fact The Petitioner premised the prosecution of its case upon certain oral testimony presented in the course of the hearing and certain tangible items of evidence presented in the course of the hearing. The Respondent presented a case in the form of oral testimony, to include testimony by the Respondent, and certain tangible evidence offered in the course of the hearing. The Respondent's presentation was conditioned on the possible rejection by the hearing officer and/or the Florida State Board of Podiatry Examiners, of the Respondent's motion to dismiss or in the alternative motion for more definite statement directed to count (2) of the administrative complaint, and the Respondent's motion which was in the form of a request for directed verdict addressing both counts in the administrative complaint, such motion being made at the close of the Petitioner's presentation. The first witness for the Petitioner was Irma Chanter, who is a dietary supervisor in a local hospital in Palm Beach County. The witness testified that she had been a patient of the Respondent for 3 or 4 years and during that time had received palliative care for her feet. One of the particular areas which was treated by Dr. Perry was the toenails of the patient, Irma Chanter. In connection with that foot problem the witness stated that Dr. Perry indicated that an operation was needed to remove the ingrown toenails and that Dr. Perry suggested that if this operation was not performed the patient would be crippled. The witness was not certain when in time the subject of the operation was discussed with the Respondent; however, it was developed in the course of her testimony that she had bean seeing Dr. Perry since June, 1969. This date was suggested to the witness as being the date of the initial visit to the Respondent and the witness did not take issue with the date. She also indicated that she had checked her income tax records and they showed that she had been Dr. Perry's patient for 4 or 5 years. By way of response to Dr. Perry's suggestion that surgery was necessary, the witness indicated that she wanted time to think about it, and it was also solicited from her that she could not afford such an operation at the beginning of her treatment by the Respondent. The witness did not know if the condition got progressively worse or better during the palliative care stages, but a decision was made by the witness to have an operation performed to remove the toenails and portions of the toenails that were providing problems for her. This operation was eventually performed on July 22 and July 23, 1974, in the office of the Respondent. Mrs. Chanter wasn't particularly satisfied with the Respondent's care, but she said he was never rude, or otherwise objectional before the operation in July of 1974. After that date complaints against the doctor were made, complaints about matters arising in the course of the operation and the post operative treatment, as alleged by the witness in her affidavit attached to the administrative complaint which is Exhibit "A" in that complaint. The witness also seemed to indicate that there were other areas of dissatisfaction. One of the areas was an assertion by the witness that the respondent had over charged for certain X-ray procedures, in that the charge was $250.00 and the witness thought that this was excessive. Additionally the witness complained that the Respondent had charged $75.00 for certain appliances (arch supports) which were allegedly tailored for her purposes and in fact could have been purchased at any retail drug store. The witness brought the above items with her to the hearing and showed them to the hearing examiner. The items were two metal apparatus which appear to be arch supports with the trade name, Dr. Scholls, affixed. In alluding to the complaints which the witness had about the operation, the initial area of consideration is the cost of the operation. The witness seemed to state that she was told the price of certain procedures to be performed was in the amount of $1,275.00 which is the amount stated in her deposition before the hearing. The witness, however, seemed concerned that the Respondent had not indicated the specific cost of the process of the operation which was performed on July 22 and July 23, 1974, as opposed to giving a quotation which would include certain procedures involving bunions and callouses on her feet, as well as the toenail treatment. It was noted later in the course of the hearing, that charges for the procedures effected on July 22 and July 23, 1974, were in the amount of around $580.00, which was in compliance with the insurance rates of Blue Cross Blue Shield's analysis of proper payment by an insurance carrier for such procedures. Of that quoted amount of $580.00, the witness testified that $243.00 was paid by the Blue Cross - Blue Shield and that $219.00 which was tendered under a separate section of the policy was spent by the witness for matters other than payment of the Respondent. In further testimony about the cost of the operation, the witness indicated that she had been unduly put upon about the payment of her bill to the extent of threats directed from the Respondent about her bill. She said she had not paid the bill because she had contracted staph infection following the operation and consequently did not pay anything out of her pocket for the cost of the operation. The operation itself was a radical matricetomy, in which the toenails on the three lesser toes of both feet were completely removed and portions of the toenails of the great toe and the toe adjacent to the great toe were removed from both feet. The process utilized by the Respondent in the operation was a phenol alcohol technique, by the application of carbolic acid. The witness indicated that something was injected into her toes as an anesthetic and that anesthetic was later identified as being xylocaine with epinephrine, 1-200,000. The witness testified that when the toenails were being removed, she said, "it hurt like sam hill when he started digging in." Nevertheless, she never told him to stop the process during the first day's operation * * NOTE: Page 5 is missing from the Original Recommended Order on file with DOAH and is therefore not available in this ACCESS document. any odor at that time. She doesn't know how many days after the operation it was, that she saw the doctor in the office but she does remember going to work the same day she saw Dr. Perry for the visit. She said she made no further follow ups with the Respondent because she contracted staph infection, as diagnosed by Dr. Donald R. Alkema, a local podiatrist. On the Thursday before her initial examination by Dr. Alkema, the witness said that there was a certain excretion which she characterized as being puss, emanating from the area of the feet where the operation had been performed. On Sunday morning the witness notified Dr. Alkema of her problem and the doctor saw her in the office. At the time she went to see Dr. Alkema on Sunday morning there was an excretion from the area where the operation had been performed and her feet were extremely odoriferous, and the odor was nauseating. The witness testified that Dr. Alkema cleaned her feet and prescribed medicine for her. Since that time Dr. Alkema has been her attending physician as it relates to her foot problem. The witness says that she still has pain in her toes and that she can't perform her work as well as before the operation, and that she takes two aspirin for discomfort associated with her present problem. She said that her right large toe in the nail area aches and throbs. Furthermore, she said that on the toe which is immediately adjacent to the left small toe, the toenail has come back and that the right small toenail has come back, when it was her understanding that none of the last three toenails on the toes of her feet would come back. The Petitioner called Dr. Joseph Castronuovo, a specialist in internal medicine. Dr. Castronuovo has been Mrs. Chanter's treating physician and has treated her for high blood pressure and cardiac problems. The cardiac problems mentioned by the doctor were not identified as major problems. The doctor indicated that his contact with Mrs. Chanter around the time of the operations, as performed by the Respondent in July, 1974, was to the extent of seeing the patient on July 29, 1974 after such operation had been performed. This office visit was after being called by Dr. Alkema. At the time of the office visits the blood pressure was 180/102, when the norm in that time sequence had been 140/80. The feet of the patient, Chanter, appeared inflamed but not particularly infected and the witness testified that he did not treat her feet, although Mrs. Chanter had indicated that he did treat the alleged infection. The doctor further stated that he was not aware of the procedure involved in a radical matricetomy, nor was he aware of the normal post operative appearance of a patient's feet. The Petitioner attempted to solicit testimony from the witness to the effect that the failure of the Respondent to notify the witness at a time when the operation was contemplated was unprofessional conduct on the part of the Respondent, because of the patient's high blood pressure and minor cardiac problem. This testimony was objected to and not allowed as acceptable evidence for deliberation by the hearing officer because the hearing officer was of the opinion that the Respondent was not duly noticed of such a claim by the Petitioner to allow the Respondent to adequately defend against it. It should also be noted that the witness indicated that these standards of notification apply to the medical profession of which the witness is a practitioner and not specifically to the canons prescribed for practicing podiatrists. One comment was made by the witness that he felt that application of anesthetic which had as a part the substance known as ephinephrine was not advisable in the case of Mrs. Chanter. However, later testimony by the Respondent indicated that the percentage of ephinephrine in the xylocaine applied to the patient was one half the normal strength. Further, development of the testimony offered by the doctor concerning the question of the alleged unprofessional conduct for failing to notify the witness of the proposed operation will be developed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Petitioner next tried to produce testimony through a witness Ayn Dupay. Ayn Dupay had been a patient of Dr. Perry in the Spring of 1974, and had had heavy callouses and ingrown toenails. Additionally, she was operated on by the Respondent in July, 1974. This witness' testimony was objected to since it was the contention of the Respondent, that the Respondent had not been duly apprised of any allegations pertaining to this witness, notwithstanding the fact that the Petitioner had subpoened the records of this patient to be produced at the hearing. This objection by the Respondent was sustained because the requirement for notice was felt to be lacking as it relates to testimony by Ayn Dupay and because there appeared to be no other basis for allowing that testimony. A more complete examination of the objections and the reasons for sustaining the objections will be addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Nathan Johnson, a representative of Blue Cross - Blue Shield was called to the stand. He had with him a report rendered by G. M. Perry about the patient, Irma Chanter. This report referred to the procedures which were performed on Mrs. Chanter as being a radical matricetomy. The witness further identified himself as a person who has had a long standing association with people in the field of podiatry, as it relates to the processing of certain insurance claims in this field. Moreover, the witness though not a medical practitioner, has studied the literature on the procedures in the field of podiatry. Based upon the witness' ability and expertise in the field of insurance, the Petitioner tried to establish the witness' opinion on whether or not the toenail should have come back on toes where a total matricetomy had been performed. This testimony was objected to by the Respondent and the objection was sustained on the question of the witness' expertise to determine the reasonable result of a total radical matricetomy. A more complete discussion of the objection and ruling will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Rosemary Colvin, Director of Medical Records, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, was called to the stand. She produced the records of the patient identified as Albert Frankel, deceased. This patient had been admitted in the Palm Beach Gardens Hospital in the past. Albert Frankel had been a patient of the Respondent, and the purpose of introducing the facts pertaining to Albert Frankel was identified by the Petitioner's counsel as a showing of impropriety on the part of the Respondent pertaining to matters about Albert Frankel. This testimony was objected to because of the lack of notice to defend against matters pertaining to Albert Frankel. Because of such problems with the notice and an insufficient showing of any other reason to justify the introduction of such evidence, the evidence was deemed improper for consideration by the hearing officer in the deliberation of the matters in this case. A more complete discussion of the reasons will be set forth in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Donald Alkema took the stand. Dr. Alkema is a practicing podiatrist who has been in the profession for five years and is licensed in the State of Florida to practice. A stipulation was entered into concerning the expertise of the witness to testify about matters relating to the treatment of Irma Chanter's foot problems. The witness testified that he first saw Irma Chanter on July 28, 1974, at which time he debrided certain necrotic tissue associated with the operation performed by Dr. Perry, and that he drained the puss and applied a cleansing agent. The witness provided certain slides of photographs taken of the condition, the first two slides showing the right and left foot on Sunday morning, July 28, 1974, was depicting, according to the witness, infection and an abscess on the left great toe. Slides three and four were taken on August 1, 1974, which the witness indicated showed an improvement because of an antibiotic which had been prescribed. Slides five and six were taken August 19, 1974, which showed further improvement of the condition. The witness testified that in his opinion the procedure which had been utilized in the treatment of Irma Chanter was a phenol technique involving carbolic acid, which is an application of that substance to the matrix of the nail. The witness further stated that the procedure involved was a total matricetomy of the three smallest nails of the left and right foot, and a partial matricetomy of the remaining toenails on both feet. The diagnosis by Dr. Alkema of the infection was acute infection of the left foot, first and second toes; and right foot, first and third toes, with the remainder of the toes showing subacute infection. The appearance of Mrs. Chanter's feet at the time of examination revealed that the feet were clean in terms of the overall condition; however, there was a certain purulent discharge with associated odor, which the witness deemed to be some form of staphylococcus bacteria. Based upon the visual observation of the patient and the fact that the witness' mind time was of the essence, the witness said that he did not request laboratory analysis of the excretion from Mrs. Chanter's feet, in the way of a culture workup, but prescribed a broad spectrum antibiotic known as tetracycline hydrochloride. The witness felt that the antibiotic, as prescribed helped to defeat the infection. At present Mrs. Chanter is still under the treatment of Dr. Alkema and the patient still has problems with ingrown toenails. To the witness' recollection, Mrs. Chanter still has some pain associated with the great toe of the left foot and the fifth toe of the right foot, but not with the great toe of the right foot, as testified by Mrs. Chanter. In discussing the technique utilized by Dr. Perry in performing the operation on Mrs. Chanter, the witness testified that he does not utilize the process, but uses another process called SNT-1 which is a method of extraction by surgical instrument. His direct knowledge of the phenol process is to the extent of involvement four times as a student and two dozen observations. Nevertheless, the witness testified that in his estimation the phenol technique was relatively simple, although he agreed that that technique would be more effective if the practitioner had done it more. The witness said that he was unable to comment on the effectiveness of the operation since he was not in attendance at that operation. In response to questions about the outcome of the operation, the witness stated that Mrs. Chanter came to him and was complaining of pain in her toes radiating into her foot, and as related before, that in his estimation there was infection present in all ten toes. Based upon this observation, it was felt by the witness that the prescription of aspirin for treatment of the pain was insufficient. In support of this position the witness indicated that xylocaine is a prescribed anesthetic for the phenol technique and that when the effects of the xylocaine wear off that 10 percent of the patients experience pain and 1 to 2 percent experience excruciating pain, and that percentage may rise according to the number of toes involved in the operation. These statistics were based upon a certain medical text referred to by the witness, which was not authored by the witness. In the witness' opinion there is a certain risk of infection in any surgery and he agreed that the staphylococcus infection is common in many places to include the soil. In discussing the history of the situation with Mr. Chanter on July 29, 1974, the witness indicated the history only involved the history of the surgery and not the history of the patient's activities following the surgery. Although the witness felt that discussion of the technique involved in the performance of the phenol process was better stated by a person who had administered this technique on more numerous occasions, the witness felt that he was qualified, certainly as qualified as the practitioner utilizing the phenol technique in discussing the post operative procedures. In the witness' mind the post operative techniques employed by the Respondent were not acceptable in that, to his knowledge, the Respondent had prescribed the use of garamycin antibiotic ointment and this ointment was felt to be improper because it tended to cap the infection. The witness indicated that he has an office that is located essentially 100 yards away from the office of the Respondent, but that the Respondent and he are in no respect in competition for business, and the witness expressed his resentment to the characterization of his profession in those terms. In a related area an effort was made by the Petitioner's counsel to introduce through the witness, certain matters pertaining to surgery performed on Albert Frankel and Ayn Dupay, who have been previously mentioned in the course of the Findings of Facts, and this testimony was objected to based upon the lack of notice of such claims against the Respondent. The objection was sustained and will be more fully addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Finally, the witness indicated that the podiatrist's ethics call for consulting a treating physician who is a medical doctor when appropriate since the podiatrist may only treat a situation for which he has expertise, and the witness seemed to indicate that this should have been done by the Respondent in treating Mrs. Chanter. Furthermore, the witness did notify Dr. Castronuovo of the condition which he observed upon examining Mrs. Chanter on July 28, 1974. Dr. James Vance, who is a specialist in internal medicine, was called to the stand. Dr. Vance indicated the treatment of Albert Frankel, deceased, while in the Palm Beach Gardens Hospital. The witness indicated that there were some entries on the chart of Albert Frankel which he did not make, nor the urological service that was treating the patient and that were later discovered to have been made by the Respondent, who was not authorized to practice in the Palm Beach Gardens Hospital. An objection was made to the offering of such testimony on the basis of lack of notice on the part of the Respondent to contentions of this sort, concerning the treatment of Albert Frankel and that objection was sustained. A more complete examination of the objection will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Vance was the last witness on behalf of the Petitioner and at the close of the Petitioner's case a motion for directed verdict was made by the Respondent, in that the Respondent contended that insufficient proof had been established to show violations of either Count 1 or 2 of the Administrative Complaint, whether the standard be one of preponderance of evidence or a standard of clear and convincing evidence. Ruling on that motion was reserved until such time as the facts in this matter were considered by way of deliberation and the Respondent elected to present a case based upon the hearing officer's desire to reserve ruling and upon the possibility that the Petitioner would overturn a decision adverse to its position when it examined the Recommended Order entered by Hearing Officer. After hearing the testimony offered by the Petitioner, the Motion for Directed Verdict against Count 2 of the Administrative Complaint would seem well taken, for reasons more completely discussed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent, in the presentation of its case first called Dr. Arthur Binkowitz, D.P.N. Dr. Binkowitz has been a podiatrist for five years and it was stipulated to between the parties that the witness was qualified to give testimony in the area of podiatry. The witness testified that a matricetomy is an excision at the matrix cells which produce nail plates. The witness also testified that the method he utilizes to accomplish this is the phenol technique and that he utilizes that technique 99 percent of the time. These excisions are accomplished under local anesthesia. In addressing the terms total or partial matricetomy the witness said that these procedures are the same in that they are both radical procedures, one designed to excise the total nail and the other designed to excise part of the nail. The witness said he has done hundreds of these excisions under the phenol technique, and that this technique is not a learning situation. The witness was shown the slides as produced by Dr. Alkema in his testimony, and stated that this is the first viewing of those slides by the witness. After establishing the underlying facts by way of a hypothetical depiction of the slides, the witness offered testimony. Looking at slides 1 and 2 he felt that the depiction was normal and that inflammation present was as in phenol operations but that there was no indication of infection. In looking at the slides, he said he did not see any unusual redness. He said the item in number 2 which had been described as an abscess by Dr. Alkema, in his mind was a condition caused by a drop phenol, perhaps. Slides 3 and 4 looked normal to him, with slight inflammation and the alleged abscess as shown on 4 looked like a phenol burn. Slides 5 and 6 looked normal to him. Describing the pain associated with the process he felt that the process was relatively painless and that he usually prescribes aspirin for his patients. He said that he feels that garamycin, the antibiotic, or HCB cream among others are acceptable antibiotics to utilize in the post operative treatment where the phenol process had been utilized. He also indicated that utilization of the phenol technique is a technique in which infection is less likely. When shown the appliances which were brought by Mrs. Chanter he said that these appliances might have been utilized but they don't do anything to assist, and that they are not normally prescribed. Furthermore, these appliances could be bought at any drug store. Finally he indicated to prescribe such appliances would be a disservice to the patient. The witness indicated that he is a friend of Dr. Perry, but indicated that he could be objective. Under questioning about the regrowth of a nail which had been totally excised by a radical matricetomy, he felt that this nail should not return but that because of certain permeability problems associated with certain patients that the procedure is not always 100 percent effective and that this effectiveness percentage cannot be predetermined. He further elaborated on the use of analgesic, stating that he prescribed a heavier analgesic as necessary. The post operative condition of the normal patient according to the witness was one that would allow the patient to stand on their feet as long as they continued to apply soaks. In addressing the high blood pressure problem associated with Mrs. Chanter he said that this was not of itself sufficient in his mind to consult a medical doctor before operating. In the matter related to the pain associated with the process of the operation he indicated that the pain is relatively free after the phenol compound goes to work in the prescribed area. When shown the patient's feet in the course of the hearing he felt that the process was most likely a phenol technique that the first two toes on both feet including the largest toe were partial matricetomies and that the third, fourth, and fifth toes of both feet were total matricetomies and that there appeared to be no problem with the outcome of the operation. Under examination of the hearing officer the witness felt that the improvement shown in slides 3, 4, 5, and 6 was not due to the application of the antibiotic tetracycline hydrochloride. He also stated to the hearing officer's questions, that there is a certain odor associated with the post operative condition when the phenol process is used. The Respondent next called Dr. Bruce Neal Kramer, D.P.N., licensed since 1967 and licensed in the State of Florida since 1971. A stipulation was entered into concerning this witness' ability to offer testimony in the field of podiatry. Dr. Kramer testified much in the same way as Dr. Binkowitz with several additional observations. One of the observations was to the effect that the appearance of Mrs. Chanter's feet upon his examination during the course of the hearing showed a growth on the lesser toe of the left foot which could have been a callous or possibly a regrowth of a toenail. He also indicated that if there was odor associated with the feet that the odor could mean some infection, but not staphlococcus infection. Finally the doctor indicated that if there was some purulent discharge associated with the post operative condition of the feet, that he would have ordered a culture (laboratory culture) made of the substance to determine the nature of the bacteria. The witness' overall description of the slides, prepared by Dr. Alkema, was to the effect that the condition was a normal post operative appearance. The Respondent took the stand and testified that he had been licensed to practice podiatry in the State of Florida. He first saw the patient Irma Chanter on June 27, 1969 and treated her for callouses, bunions, corns and ingrown toenails. The initial treatment was palliative in nature, but from the beginning he recommended more than palliative care after viewing the x-rays which showed a problem, that in his mind could be alleviated by operations. The charge for those x rays was $20.00. The Respondent indicated that Mrs. Chanter did not want the surgery performed because she could not afford it and he continued to treat her on a monthly basis and to remove the corners of the toenails that were presenting problems. In response to the appliances which were produced by Mrs. Chanter, the witness stated that these appliances were not in fact the appliances that he had prescribed for her. He had prescribed a leather device because metal was not the technique used on adult patients. Moreover, he indicated that the metal apparatus had been shown to him on the initial visit. The charge for the appliances prescribed by the witness was $75.00 for examination, molding and the device itself. The witness recommended the phenol technique for the problem that Mrs. Chanter was having with her ingrown toenails and also some surgical procedure to be applied for the bunion problem. He quoted a fee for hospital work to include the bunions, toenails and other procedures. The fee quoted was $1,125.00 for all work. He explained all surgery, to include the surgery for removing the toenails which was performed on July 22 and July 23, 1974. The reasons for splitting the days of the surgery was as an accommodation for Mrs. Chanter because of her nervousness about the operation. At the end of the first day's operation on July 22, 1974, he sent Mrs. Chanter back to work without a day off for the procedures. In describing the technique employed in the removal of the toenails he indicated the preparation of scrubbing of the patient's feet and the application of the phenol until the tissue turned gray and then he flushed the surface with alcohol. There was no indication of pain by the patient except on the injection of the xylocaine, although his office assistant did hold Mrs. Chanter's hand because of her nervousness. He prescribed nothing for pain except to say to take an aspirin but he told the patient to call if she experienced any pain. There was no call or complaints the night of the 22nd, nor any complaints on the 23rd of July, at which time the procedure was completed. On the second day of the surgical procedure, again Mrs. Chanter was nervous and the office assistant held her hand, although there was no pain beyond the moment of the injection of the xylocaine. The instructions given to the patient at the close of both days was to soak the feet in domboro solution; to apply garamycin cream; and to bandage the toes with a particular bandaid which was shown to the patient, Mrs. Chanter. Mrs. Chanter was also provided with a list of instructions which is similar to Respondent's Exhibit 1 (that Exhibit being a part of the record) When the patient came back to the doctor's office on July 25th, she had the wrong bandaids and plastic wedge closed shoes, and her feet were not clean. The doctor made corrections in these matters and noted that although there was a dirty appearance of the feet, that there was not any infection. After leaving on the 25th the patient called the doctor's office and said that she would not be coming back and in response to the efforts of the Respondent to contact Mrs. Chanter by phone, the phone was hung up by Mrs. Chanter. The doctor feels that the reason for the disagreement concerned a fee dispute in which he had indicated that he would be willing to work with her on some basis to pay for the operation but his office personnel had asked for some token payment and Mrs. Chanter had become offended by this matter. The doctor said he saw Mrs. Chanter's feet at the time of her deposition in this matter which was October 9, 1975, and again at the hearing, and felt that the appearance of the feet was acceptable. He knew of the high blood pressure condition but did not contact Dr. Castronuovo because he felt that the condition was within his ability to control. In that pursuit he used the xylocaine with 1/200,000 parts epinephrine, as opposed to the normal 1/100,000 parts epinephrine. An effort was attempted on the part of the counsel for the Petitioner to consider the matters involving Albert Frankel and Ayn Dupay in certain law suits in the interest of those parties. These attempts were objected to and the objection was sustained on the basis that the Respondent was not duly noticed of these potential allegations prior to the hearing. A more complete description of the reason for disallowing that testimony will be set forth in the section entitled CONCLUSIONS OF LAW. Based upon the facts as presented in the course of the testimony at the hearing, the hearing officer is convinced that the Respondent did not overcharge Mrs. Chanter for the performance of the operation. The infection, if any, was not caused by any procedures involved with the operation or post operative treatment afforded by the Respondent. It is established that as of July 25, 1974, according to the Respondent and Mrs. Chanter, the infection was not present. It has also been established that the opportunity existed for infection to set in beyond the control of the Respondent and Mrs. Chanter removed herself from the Respondent's treatment after July 25, 1974, such that he would not have been aware if such infection had set in. Dr. Alkema testified that in his opinion, infection was present on July 28, 1974, but his analysis was not followed up by any laboratory confirmation and was contradicted by Dr. Binkowitz and Dr. Kramer. The contradiction by the latter was on the basis of their statement that a visual observation of the purulent discharge would not, and in their estimation could not, label the infection as staphylococcus. Moreover, the only reasonable way they felt to effect an identification was by laboratory analysis. Again such a staphylococcus infection according to Dr. Kramer was not best treated by tetracycline hydrochloride. Dr. Binkowitz and Dr. Kramer also felt that from the examination of the slides as prepared by Dr. Alkema, that infection probably was not present and that the appearance of the slides indicated a normal recovery for the phenol process, a process that they were more familiar with than Dr. Alkema. In considering the possible contention that the operation was not successful as it relates to the lesser toe of the left foot, there is some dispute as to whether or not the recurrence is one of a toenail or some callous, which appears in the area of the toenail. Nevertheless, assuming that the substance is a toenail, accepting the statement of Dr. Binkowitz as to the possibility that a toenail will reappear even with the best efforts of the physician, because of a problem with permeability of a patient's toe, it would not appear that the operation was unsuccessful because of any willful negligence or incompetence on the part of the Respondent, nor any unprofessional conduct in performing the treatment. The contention was made that the Respondent was unprofessional in failing to notify Dr. Castronuovo of the impending operation on Mrs. Chanter, knowing that Mrs. Chanter was a patient of Dr. Castronuovo. Accepting the fact that Mrs. Chanter was a patient of Dr. Castronuovo, and keeping in mind the ruling that the Respondent was not duly noticed of such a charge of unprofessional conduct, nevertheless, it would appear that under the circumstances of the testimony set forth In the course of the Findings of Fact, it was not unprofessional on the part of the Respondent to fail to notify Dr. Castronuovo. It was suggested in the course of the hearing that there was a failure on the part of the Respondent to prescribe adequate analgesic for pain. From the testimony offered by doctors Perry, Binkowitz and Kramer, it would appear that the prescription of aspirin as a beginning analgesic was appropriate and the Respondent did not act in a willfully negligent or incompetent manner or unprofessional manner in failing to prescribe any stronger analgesic. Dr. Alkema's testimony on the question of the proper analgesic did not seem to contradict this position, in that he only suggested that he would prescribe a stronger analgesic if the condition warranted, and in this instance Mrs. Chanter did not sufficiently indicate to the Respondent that she desired a stronger analgesic. It was also brought out in the course of the hearing that the Respondent utilized the wrong anesthetic, in prescribing xylocaine with epinephrine. However, he did utilize a solution in which the epinephrine had been reduced and the testimony did not show any ill effects from the use of any anesthetic which had as a part of the solution the substance epinephrine.
Recommendation It is therefore recommended that the Respondent, Gerson M. Perry, be released from all charges brought under this Administrative Complaint. DONE and ENTERED this 28th day of January, 1976, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence M. Kukey, Esquire 507 North Olive Avenue P. O. Box 3466 West Palm Beach, Florida, 33402 John S. Miller, Jr., Esquire P. O. Box 10137 Tallahassee, Florida 32301 For the Board
