99-002325 Board Of Clinical Laboratory Personnel vs. James A. Beyer Status: Closed Recommended Order on Wednesday, September 8, 1999.

Summary: Evidence failed to show clearly that Respondent was the technologist responsible for erroneous test results.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL LABORATORY PERSONNEL, )

)

Petitioner, )

)

vs. ) Case No. 99-2325C

)

JAMES A. BEYER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Fort Myers, Florida, on

July 29, 1999, before Arnold H. Pollock, an Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Howard M. Bernstein, Esquire

Agency for Health Care

Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: James A. Beyer, pro se

2501 8th Street West

Lehigh Acres, Florida 33971

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether

Respondent's license as a medical technologist in Florida should

be disciplined because of the matters alleged in the

Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated June 1, 1998, the Agency

for Health Care Administration charged Respondent, James A.

Beyer, with failing to follow the procedures for specimen

handling and processing, test analyses, and reporting and

maintaining records of patient test results in the clinical

laboratory in which he worked, in violation of Rule

64B-13.003(2)(b), Florida Administrative Code, and Section

483.825(7), Florida Statutes. Respondent requested formal

hearing on the allegations, and this hearing ensued.

At the hearing, the Agency presented the testimony of Martha

Sunyog, administrative director of the laboratory at Naples

Community Hospital, and Donna Teague, records custodian for

Naples Community Hospital. The Agency also introduced

Petitioner's Exhibits 1 and 2. Respondent testified in his own

behalf. He introduced no exhibits.

A Transcript of the proceedings was furnished. Counsel for

Petitioner submitted matters in writing after hearing which were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board

of Clinical Laboratory Personnel was the state agency in Florida

responsible for the regulation of the medical technology

profession in this state, and for the licensing of medical

technologists in Florida. Respondent, James A. Beyer, was

licensed as a medical technologist under license number

JC0033961, originally issued on November 27, 1995, and current

until June 30, 2000.

2. On February 23, 1996, B.A., a 21-year-old female, was

admitted to Naples Community Hospital complaining of increasing

abdominal pain. Laboratory tests run on the patient indicated

she was undergoing an ectopic pregnancy. A diagnostic

laporoscopy was performed, as were subsequent laporotomy and left

salpingectomy with lysis of adhesions. It was also determined

she had severe pelvic inflammatory disease with bilateral

tubo-ovarian complexes. As a result, she was placed on drug and

antibiotic therapy which improved her condition. The pathology

report based on the surgery performed on the patient revealed no

evidence of intrauterine pregnancy in the fallopian tube

specimen. She was discharged from the hospital on February 29,

1996. Final diagnosis, as indicated on the discharge summary,

was "left ectopic pregnancy" with secondary diagnoses of chronic

pelvic inflammatory disease and extensive pelvic adhesions.

3. Notwithstanding the final diagnosis, as noted on the

discharge summary, the Agency contends a second pregnancy test

done on the patient revealed she was not pregnant. The

laboratory tests giving rise to the allegedly erroneous initial

diagnosis were processed in the hospital's lab by one of two

technologists. Respondent was one of the two. It appears the

test results for patient B.A. were confused in the lab with those

of another patient.

4. No evidence was presented to show who actually handled

and processed B.A.'s specimen, nor was any evidence introduced by

Petitioner to show what the laboratory's appropriate procedures

were. However, Respondent's initials were entered into the

computer as having done the allegedly erroneous test.

5. Respondent labeled the incident regrettable, as indeed

it was. He admits that human error caused the mix-up in

specimens, but notes that the incident took place in the primary

care chemistry section of the laboratory which was staffed by

several different individuals. He claims it is impossible to

determine who was responsible for the error. Respondent has no

memory of doing the procedure and does not believe he did it.

His belief is based on several factors.

6. The first of these is that for the error to have

occurred, there would have to have been at least two specimens

present: that of B.A. and that of another patient. The

demographic information relating to B.A. would have to have been

placed on the analyzer with the specimen from the other patient.

When Respondent does this test, it is his procedure to hold the

specimen in his hand while he reads the label and enters the

patient identification information into the analyzer computer.

Then he labels the serum cup to be used with the same patient

identification information as is on the specimen container he is

holding. Before running the test, he verifies the identification

number on the test sample cup against the identification number

in the computer, and it is inconceivable to him that he would

have picked up another patient's sample and placed a portion of

it on the instrument instead of the sample on which he was

working.

7. Another reason he believes he did not commit the error

is that the incident was thoroughly and promptly investigated by

laboratory and hospital personnel, and the human error cause was

treated without placing blame on anyone. No disciplinary action

was taken against him by the hospital, and he is still employed

by Naples Community Hospital in the laboratory in the same

position as before the incident occurred. His annual ratings

before and after the incident have been "meets" or "exceeds"

standards.

8. Respondent is of the opinion that the Department of

Health's investigation into the incident was superficial at best

and lacks concrete evidence to support the claims of misconduct

made.

9. Petitioner presented no information to indicate what are

the appropriate procedures to be followed in the laboratory for

the procedure in issue.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

11. Petitioner seeks to discipline Respondent's license as

a medical technologist, alleging that he failed to follow proper

and established laboratory procedures in the incident involving

patient B.A., which resulted in test results from another

patient's sample being identified as that of B.A. Petitioner

alleges this is a violation of Section 483.825(7), Florida

Statutes.

12. Section 483.825(7), Florida Statutes, permits

disciplinary action against a licensee who has: " violat[ ed] or

aid[ ed] or abett[ ed] in the violation of any provision of this

part, or the rules adopted hereunder." If, as alleged,

Respondent violated Rule 64B3-13.003(2)(b), Florida

Administrative Code, such code violation would constitute a

violation of the statute as well.

13. Rule 64B-13.003(2)(b), Florida Administrative Code,

requires a technologist to follow the clinical laboratory's

procedures for specimen handling and processing, test analyses,

and reporting and maintaining records of patient test results.

If Petitioner proved that Respondent violated that professional

standard, that would constitute a violation upon which to base

discipline of his license.

14. Petitioner carries the burden of proof in this matter,

however, and that burden requires it to prove Respondent's guilt

of the matters alleged by clear and convincing evidence. Osborne

vs. Ster & Co. , 670 So. 2d.932, (Fla. 1996); Ferris v.

Turlington , 570 So. 2d 212, (Fla. 1987). Here, Petitioner has

shown that a mistake was made in the laboratory, and that

Respondent worked in the laboratory. It has not, however,

presented any evidence to demonstrate what is the proper

procedural standard for this test.

15. Respondent admits that his initials were placed in the

computer for this test. However, the evidence of record does not

clearly or convincingly establish Respondent's guilt of the

matters alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Board of Clinical Laboratory

Personnel enter a final order dismissing the Administrative

Complaint against Respondent.

DONE AND ENTERED this 8th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of September, 1999.

COPIES FURNISHED:

Howard M. Bernstein, Esquire

Agency for Health Care

Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

James A. Beyer

2501 8th Street West

Lehigh Acres, Florida 33971

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Eric G. Walker, Executive Director

Board of Clinical Laboratory Personnel

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.